Concepcion v. Transportation Security Administration ( 2017 )

FILED
NOT FOR PUBLICATION
OCT 11 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEONARD CONCEPCION, No. 16-73892
Petitioner, TSA No. 37649
v.
MEMORANDUM*
TRANSPORTATION SECURITY
ADMINISTRATION,
Respondent.
On Petition for Review of an Order of the
Transportation Security Administration
Submitted October 3, 2017**
Pasadena, California
Before: GRABER and WARDLAW, Circuit Judges, and MOLLOY,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
Leonard Concepcion petitions for review of the Transportation Security
Administration’s (“TSA”) second Final Determination of Ineligibility issued upon
remand on October 17, 2016, which disqualified him from serving as a flightcrew
member based on his 2012 conviction for conspiring to launder money under 18
U.S.C. § 1956(h) in violation of 18 U.S.C. § 1957(a). The TSA based its
determination on two independent grounds: (1) sufficient “other factors” justified
precluding Concepcion from unrestricted access to the secure areas of planes or
airports under 49 U.S.C. § 44936(b)(2) and, alternatively, (2) that a conviction
under 18 U.S.C. § 1957(a) is categorically a “felony involving dishonesty” within
the meaning of 49 U.S.C. § 44936(b)(1)(B)(xiv)(V). We have jurisdiction
pursuant to 49 U.S.C. § 46110(a). Because the TSA properly concluded the “other
factors” standard in 49 U.S.C. § 44936(b)(2) was met, we need not reach the
question whether a § 1957(a) conviction is categorically a crime involving
dishonesty. We deny the petition for review.
1. We reject Concepcion’s argument that 49 U.S.C. § 44936(b)(2)
precludes the TSA from looking to the underlying facts and circumstances of his
conviction. Section 44936(b)(2) expressly authorizes the Under Secretary to
specify “other factors that are sufficient to prohibit the employment of an
individual” as a flightcrew member. “Other factors” is not a term that, in ordinary
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speech, sometimes refers to a generic crime and sometimes does not. Cf. Nijhawan
v. Holder, 557 U.S. 29, 33–34 (2009) (identifying “crime,” “felony,” and “offense”
as terms that can refer to generic crimes). One is not convicted of “other factors;”
one is convicted of a crime. Moreover, an examination of the context of the phrase
“other factors,” which follows the list of generic crimes in § 44936(b)(1), makes
clear that the TSA may consider the circumstances of a crime regardless of its
categorical match to the generic crime.
2. The TSA reasonably concluded that, “[B]ecause a flightcrew member
has unescourted access to the secure areas of planes and airports, that person must
be especially trustworthy and a person of integrity . . . and not someone who would
turn a blind eye or ignore unlawful activity taking place on an aircraft for personal
profit.” This is precisely what Concepcion pleaded to in his § 1957(a) conviction.
Concepcion admitted that he piloted numerous chartered flights over eight months
between Los Angeles and Baltimore. He knew that the hundreds of thousands of
dollars he received for his services, of which 10% was personal profit, were
derived from criminal activity. In fact, Concepcion’s passengers were using his
plane to transport cocaine to Maryland and its proceeds to California. And he
pleaded guilty to advising co-conspirators about the best times to travel to avoid
detection, receiving luggage filled with cocaine, and taking payment from the drug
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proceeds, $40,000 of which was in the microwave of his aircraft. The TSA Deputy
Director of Security Threat Assessment Operations examined these facts and came
to a wholly reasonable conclusion—Concepcion “accept[ed] money in exchange
for facilitating the distribution of controlled substances,” turning a blind eye to
illegal activity in and around his plane in pursuit of personal profit. In accordance
with guidance issued by the TSA’s Program Management Division that
enumerated the “other factors” of 49 U.S.C. § 44936(b)(2), the Deputy Director
decided Concepcion lacked the trustworthiness required of flightcrew members
given the privilege of unescorted access to planes and secure areas of airports. The
Deputy Director’s ruling that Concepcion is ineligible pursuant to 49 U.S.C.
§ 44936(b)(2) was not arbitrary, capricious, or ad hoc.
3. The TSA properly exercised its adjudicatory authority. Section
44936(b)(2) grants the TSA both rulemaking and adjudicatory authority. In
general, “[a]n agency is not precluded from announcing new principles in an
adjudicative proceeding and the choice between rulemaking and adjudication lies
in the first instance within the agency’s discretion.” Mendez-Garcia v. Lynch, 840
F.3d 655, 664–65 (9th Cir. 2016) (internal quotation marks and alterations
omitted). Section 44936(b)(2) authorizes the TSA administrator to “specify other
factors,” a broad grant of authority that contrasts with statutory provisions that
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explicitly mandate rulemaking. Cf. 49 U.S.C. § 44936(a)(1)(A) (provision in the
same statutory section directing the TSA to “require by regulation that an
employment investigation . . . shall be conducted” for each flightcrew member).
This was not one of the narrow circumstances where an agency’s reliance on
adjudication amounts to an abuse of discretion: the adjudication of Concepcion’s
conviction under 18 U.S.C. §§ 1956(h), 1957 did not amend a recently amended
rule or bypass rulemaking, there is no indication that Concepcion’s violation of 18
U.S.C. §§ 1956(h), 1957 was in reliance on a prior TSA ruling, and a fact-specific
inquiry limits the extent to which the adjudication announces a new rule of
widespread application. Cf. Union Flights, Inc. v. Adm’r, FAA, 957 F.2d 685, 688
(9th Cir. 1992); Cities of Anaheim, Riverside, Banning, Colton & Azusa v. FERC,
723 F.2d 656, 659 (9th Cir. 1984); Ford Motor Co. v. FTC, 673 F.2d 1008, 1010
(9th Cir. 1981).
4. The Deputy Director had the delegable authority to make the final
ineligibility determination. Express statutory authority for delegation is not
required. See Frankl v. HTH Corp., 650 F.3d 1334, 1350 (9th Cir. 2011); Inland
Empire Pub. Lands Council v. Glickman, 88 F.3d 697, 703 (9th Cir. 1996). The
TSA’s decision to proceed via adjudication through the Deputy Director was not
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“arbitrary, capricious, or manifestly contrary” to 49 U.S.C. § 44936(b)(2).
Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844 (1984).
5. The TSA did not violate Concepcion’s vaguely asserted due process
rights.1 “[I]dentification of the specific dictates of due process generally requires
consideration of three distinct factors: First, the private interest that will be affected
by the official action; second, the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the Government’s interest, including
the function involved and the fiscal and administrative burdens that the additional
or substitute procedural requirement would entail.” Mathews v. Eldridge, 424 U.S.
319, 335 (1976). The TSA provided Concepcion written notice of its initial
decision, invited him to challenge its reasoning and findings, which he did, and
then issued a written final decision laying out its conclusions and responding to his
arguments. LaChance v. Erickson, 522 U.S. 262, 266 (1998) (“The core of due
process is the right to notice and a meaningful opportunity to be heard.”). The only
additional procedure that Concepcion identifies in this appeal is a hearing, but the
Administrative Procedure Act does not require a hearing, he never requested one,
1
Concepcion may not incorporate by reference arguments made in filings in
a prior appeal. Ninth Cir. R. 28-1(b); Sandgathe v. Maass, 314 F.3d 371, 380 &
380 n.8 (9th Cir. 2002).
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and Concepcion has not identified any prejudice from the TSA’s decision to
resolve a wholly legal question on a paper record. Greene v. Babbitt, 64 F.3d
1266, 1275 (9th Cir. 1995); see also United States v. Consol. Mines & Smelting
Co., 455 F.2d 432, 453 (9th Cir. 1971).
Petition DENIED.
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