## Facts

- After the September 11 attacks, Congress expanded federal aviation security authority, creating the Transportation Security Administration (TSA) and assigning it major responsibility for civil aviation security.
- Two Saudi citizens, Tarek H. Jifry and Maan H. Zarie, were nonresident alien pilots holding FAA airman certificates used primarily for flying abroad; neither had recently flown flights into the United States.
- TSA issued security threat assessments stating that, based on information available to TSA, each pilot posed a security risk to civil aviation or national security and requested FAA action.
- The FAA issued emergency orders revoking their airman certificates based on TSA’s assessments.
- The pilots appealed to the National Transportation Safety Board (NTSB), which upheld the revocations under procedures that relied in part on classified security information not fully disclosed to the pilots.
- The FAA later promulgated regulations (effective January 2003) allowing certificate action, including automatic suspension, when TSA advised the FAA in writing that a person posed a security threat; the FAA issued the rule without prior notice and comment, citing imminent hazards.

## Issues

1. Whether the FAA’s security-related regulations were invalid under the Administrative Procedure Act because they were promulgated without notice-and-comment rulemaking.
2. Whether the emergency revocations were unlawful because the agency decisions lacked substantial evidentiary support.
3. Whether the revocation procedures violated the Fifth Amendment by denying meaningful notice and an opportunity to be heard, including due to reliance on classified information.

## Decision

- The court denied the petitions for review and left the FAA revocations in place.
- The court upheld the regulations as validly issued under the APA good-cause exception, given the post-September 11 security context and the asserted need to act immediately to prevent imminent hazards.
- The court held the FAA could rely on TSA security threat assessments and concluded the record, including classified material reviewed by the court, supported the certificate actions.
- The court rejected the due-process challenge, reasoning that nonresident aliens outside the United States do not receive the same scope of constitutional due-process protection, and that the procedures provided were constitutionally sufficient in any event.

## Legal Principles

- An agency may dispense with notice-and-comment procedures under the APA when good cause exists, including when delay would be impracticable or contrary to the public interest due to urgent national security risks.
- In a security-driven regulatory scheme, the FAA may base airman certificate actions on TSA threat assessments where Congress has assigned TSA a central role in aviation security determinations.
- Nonresident aliens outside U.S. territory generally lack the full range of Fifth Amendment due-process protections; even when some process is assumed, procedures may be adequate despite limited disclosure of classified evidence when strong national security interests are present and there is administrative and judicial review.

## Conclusion

The D.C. Circuit sustained TSA-driven FAA certificate revocations and the related security regulations, holding that good cause justified bypassing prior notice and comment, the record supported the security determinations, and the process provided—despite use of classified information—did not violate the Fifth Amendment as applied to nonresident alien pilots abroad.


Jifry v. Fed. Aviation Admin., 370 F.3d 1174 (D.C. Cir. 2004)