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Amerijet Int'l, Inc. v. United States Dep't of Homeland Sec.

United States District Court, D. Columbia.

May 22, 2014

AMERIJET INTERNATIONAL, INC., Plaintiff,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, TRANSPORTATION SECURITY ADMINISTRATION, and JOHN S. PISTOLE, in his official capacity as Administrator of the TRANSPORTATION SECURITY ADMINISTRATION, Defendants

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[Copyrighted Material Omitted]

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Re Document No.: 15.

For AMERIJET INTERNATIONAL, INC., Plaintiff: Joan Marie Canny, AMERIJET INTERNATIONAL, INC., Legal Department, Fort Lauderdale, FL.

For UNITED STATES DEPARTMENT OF HOMELAND SECURITY, TRANSPORTATION SECURITY ADMINISTRATION, JOHN S. PISTOLE, in his official capacity as Administrator of the Transportation Security Administration, Defendants: Kristina Ann Wolfe, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division, Federal Programs Branch, Washington, DC.

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MEMORANDUM OPINION

Granting Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction

RUDOLPH CONTRERAS, United States District Judge.

I. INTRODUCTION

Plaintiff, Amerijet International, Inc. (" Amerijet" ), has brought suit under the

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Administrative Procedure Act, 5 U.S.C. § 701 et seq. (the " APA" ), the Fifth Amendment of the United States Constitution, and the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq., against the Department of Homeland Security (the " DHS" ), the Transportation Security Administration (the " TSA" ), and John S. Pistole, in his official capacity as Administrator of the TSA (collectively, " Defendants" ), alleging an unlawful pattern or practice by the TSA in connection with the security screening procedures for all-cargo aircraft bound for the United States. Before the Court is Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction (the " Motion" ). Upon consideration of the pleadings and the relevant legal authorities, the Court concludes that it lacks subject matter jurisdiction and grants the Motion. Further, the Court transfers this action to the U.S. Court of Appeals for the District of Columbia Circuit pursuant to 28 U.S.C. § 1631.

II. THE STATUTORY AND REGULATORY SCHEME

In the aftermath of the terrorist attacks of September 11, 2001, Congress created the TSA to increase protections for all modes of transportation and, in particular, charged the TSA's Administrator with overall responsibility for civil aviation security. See 49 U.S.C. § 114(d). Congress further mandated that the TSA implement a system " to screen, inspect, or otherwise ensure the security of all cargo that is to be transported in all-cargo aircraft in air transportation." Id. § 44901(f). In furtherance of Congress's directive, the TSA requires " full all-cargo" aircraft operators to adopt and implement a security program known as a Full All-Cargo Aircraft Operator Standard Security Program (" FACAOSSP" ).[1] See 49 C.F.R. § § 1544.101(h), (i); Compl., Sept. 16, 2013, ECF No. 1, at ¶ 21. It is undisputed that Amerijet is a full all-cargo operator, and it therefore must operate in accordance with a TSA-approved FACAOSSP. See Compl., ECF No. 1, at ¶ ¶ 26, 30.

Each all-cargo aircraft operator's security program must describe the procedures, facilities, and equipment employed to " prevent or deter the carriage of any unauthorized persons, and any unauthorized explosives, incendiaries, and other destructive substances or items in cargo onboard an aircraft[,]" and the TSA must approve the security program. 49 C.F.R. § 1544.205(a). In addition, each all-cargo aircraft operator must comply with supplemental requirements known as " security directives," which are issued when the TSA " determines that additional security measures are necessary to respond to a threat assessment or to a specific threat against civil aviation." Id. § 1544.305(a).

The TSA also has a process through which all-cargo aircraft operators may request an amendment to their approved security program. See id. § 1544.105(b). If an aircraft operator believes it is " unable to implement the measures in [a] [s]ecurity [d]irective," the operator is entitled to " submit proposed alternative measures" for the TSA's review and approval. Id. § 1544.305(d). The TSA has discretion to approve a proposed alternative procedure if the agency " determines that safety and the public interest will allow it, and the proposed amendment provides the level of security required under [49 C.F.R. Part 1544]." Id. § 1544.105(b)(3).

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The TSA issued the security directive about which Amerijet now complains in the wake of a 2010 Yemen-based terrorist plot to detonate explosive devices on board two all-cargo aircraft traveling inbound to the United States. Compl., ECF No. 1, at ¶ 23. This directive, entitled Security Directive 1544-11-04 (the " Security Directive" ), requires full all-cargo aircraft operators to employ certain additional screening requirements to " detect and deter unauthorized explosives in cargo." [2] Defs.' Mem. in Supp., Dec. 10, 2013, ECF No. 15-1, Ex. 1 at 1. Certain classes of cargo are not subject to these additional screening requirements if the Security Directive's exemption criteria are satisfied. Compl., ECF No. 1, at ¶ ¶ 17, 25.

Finally, within this civil aviation regulatory scheme, the TSA is empowered to undertake investigation and enforcement actions to ensure compliance with the all-cargo aircraft security requirements, including the Security Directive. See 49 U.S.C. § 114(f), (v); 49 C.F.R. Part 1503; 49 C.F.R. § 1544.3. For example, if an investigation reveals that a regulated all-cargo aircraft operator has likely committed a violation of an applicable requirement but the operator has taken corrective measures, the TSA may take administrative, non-adjudicative action by issuing a Warning Notice or Letter of Correction.[3] See 49 C.F.R. § 1503.301. But if corrective action is not taken, or if the TSA determines that the alleged violation requires the assessment of a civil penalty, the agency may commence an enforcement proceeding by issuing a Notice of Proposed Civil Penalty. See id. § § 1503.301(b)(2), 1503.413(a)-(b). The operator then may elect to pay the penalty, request an informal conference with an agency attorney, or request a formal hearing before an Administrative Law Judge (" ALJ" ). See id. § § 1503.413(c), 1503.427. If the operator fails to respond to a Notice of Proposed Civil Penalty or fails to resolve the alleged violation after an informal conference, the TSA may issue a Final Notice of Proposed Civil Penalty and Order, see id. § 1503.417, after which the operator may elect to pay the penalty or request a formal hearing before an ALJ. See id. § 1503.419(a)-(b).

III. FACTUAL BACKGROUND

Turning to the dispute before this Court, Amerijet is a Florida-based full all-cargo aircraft operator required to have a TSA-approved security program under the above-described statutory and regulatory scheme. Compl., ECF No. 1, at ¶ ¶ 26, 30. Amerijet transports cargo between the United States and various locations in the Caribbean and Latin America, and its operations are based at Miami International Airport. Id. ¶ ¶ 4, 27.

In the Complaint, Amerijet alleges that in July 2011, two months after the TSA Administrator issued the Security Directive,

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it requested and received permission to utilize two adjustments to the Security Directive's screening requirements. Id. ¶ 32. After an inspection at one of Amerijet's Caribbean locations in late 2011, the TSA issued a letter of investigation informing Amerijet that it was in noncompliance with the Security Directive and the approved alternate security screening procedures.[4] Id. ¶ 34. Amerijet disputed the TSA's determination in February 2012, asserting in a letter that it was exempt from the Security Directive's cargo screening requirements under its interpretation of the regulations. Id. ¶ 35. The TSA disagreed with Amerijet's interpretation and issued a Notice of Proposed Civil Penalty in November 2012 that charged the operator with violating the TSA security requirements by failing to conduct a full direct physical screening of the cargo at issue during the late 2011 inspection. Id. ¶ 44.

At a December 2012 informal conference with the TSA that Amerijet requested, the TSA explained that Amerijet was not exempt from the requirement to screen all cargo covered by the Security Directive, despite its interpretation to the contrary. Compl., ECF No. 1, at ¶ 44. The TSA subsequently issued a Final Notice of Proposed Civil Penalty and Order with respect to the late 2011 inspection. Id. ¶ 79. In response, Amerijet requested a formal administrative hearing as permitted by the TSA regulations. Id. At this administrative proceeding, which is pending,[5] Amerijet once again asserted that it is entitled to an exemption from the cargo screening procedures in the Security Directive. Id. ¶ ¶ 80-82.

Separately, in an effort to resolve the ongoing dispute, the TSA suggested that Amerijet submit an application for additional alternative procedures if it continued to desire a broader exemption from the Security Directive. Id. ¶ 54. In February 2013, Amerijet submitted a letter to the TSA requesting several alterations to its existing security procedures, which the TSA denied in May 2013. Id. ¶ ¶ 55-57. Amerijet then petitioned the U.S. Court of Appeals for the District of Columbia Circuit to review the TSA's denial of this request. See Amerijet Int'l, Inc. v. John Pistole, Case No. 13-1176 (D.C. Cir. filed May 15, 2013).[6]

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In May 2013, Amerijet also applied for an extension of its two existing alternative procedures to the Security Directive. Compl., ECF No. 1, at ¶ 68. The TSA denied Amerijet's request for an extension of both of these alternative procedures in July 2013, but the agency allowed Amerijet to resubmit its request. Id. ¶ ¶ 71-72. Amerijet submitted its second application for alternate procedures on August 9, 2013, id. ¶ 73, and the operator continues to engage in discussions with the TSA about this request. See Defs.' Mem. in Supp., ECF No. 15-1, at 15-16. Relevant to the dispute before this Court, Amerijet alleges that the TSA has granted its competitors' requests for similar alternate procedures, including permitting competitors to utilize the Security Directive's cargo screening exemptions for which the TSA determined Amerijet was ineligible. Compl., ECF No. 1, at ¶ ¶ 87, 89.

In the meantime, the TSA continued to monitor Amerijet's compliance with the aviation security requirements throughout the Caribbean and Latin America. See, e.g., id. ¶ ¶ 38, 58, 74. Several of these inspections revealed that Amerijet had committed additional violations of the Security Directive. Id. ¶ ¶ 58, 61. Amerijet responded to each TSA investigative action by asserting its " good faith belief that it was in full compliance with the [S]ecurity [D]irective through certain exemptions clearly applicable." Id. ¶ 61. Disagreeing each time, the TSA issued to Amerijet an unspecified number of Notices of Proposed Civil Penalty for violations of the Security Directive. Id. ¶ ¶ 66, 78.

On September 16, 2013, Amerijet filed a Complaint in this Court alleging that the TSA's interpretation and enforcement of the aviation screening requirements constituted a pattern or practice of conduct that was arbitrary and capricious, in bad faith, contrary to law, and in violation of Amerijet's Fifth Amendment Equal Protection rights. Id. ¶ ¶ 95, 97. Amerijet seeks declaratory relief and a permanent injunction enjoining the TSA from enforcing, applying, or implementing the security measures and program in the allegedly unconstitutional and unlawful manner. Compl., ECF No. 1, at ¶ ¶ 104, 108, 112, 117. Defendants moved to dismiss the Complaint for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). See Defs.' Mem. in Supp., ECF No. 15-1. Specifically, Defendants argue that Amerijet's ...


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