Amerijet International, Inc. v. John Pistole , 753 F.3d 1343 ( 2014 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 27, 2014 Decided June 13, 2014
No. 13-1176
AMERIJET INTERNATIONAL, INC.,
PETITIONER
v.
JOHN S. PISTOLE, IN HIS OFFICIAL CAPACITY AS
ADMINISTRATOR OF THE TRANSPORTATION SECURITY
ADMINISTRATION,
RESPONDENT
Consolidated with 13-1317, 14-1008
On Petitions for Review of an Agency Decision
of the Transportation Security Administration
Joan M. Canny argued the cause and filed the briefs for
petitioner.
Sharon Swingle, Attorney, U.S. Department of Justice,
argued the cause for respondent. With her on the briefs were
Stuart F. Delery, Assistant Attorney General, Ronald C.
Machen, Jr., U.S. Attorney, and Jeffrey E. Sandberg,
Attorney.
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Before: BROWN and PILLARD, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: These consolidated
petitions concern proposed alternatives to security procedures
mandated by the Transportation Security Administration
(“TSA”) and call on us to consider how much TSA must
explain itself when it denies an aircraft operator’s application
for such alternate security procedures.
In two letters to TSA, Petitioner Amerijet International,
Inc. (“Amerijet”) requested alternative cargo screening
procedures at various foreign airports it services. TSA largely
denied its requests, first in a letter sent in May 2013, then in a
videoconference held in November 2013, and, lastly, in a
letter sent in January 2014. Amerijet filed three petitions for
review in this court challenging these three denials. Amerijet
argues that TSA’s denials fail for want of reasoned
decisionmaking because TSA offered “no explanation” and
failed to identify “facts or other support” for its decisions. Br.
of Pet’r at 40. Amerijet also contends that TSA’s actions
resulted in a violation of Amerijet’s right to equal protection
of the law. Id. at 47-48.
Even under a highly deferential standard of review,
TSA’s denials were arbitrary and capricious as to most of
Amerijet’s requests. The record indicates that TSA failed to
adequately explain most of its denials. And by saying too
little, TSA has provided “no basis upon which we [can]
conclude that [its denials were] the product of reasoned
decisionmaking.” Tourus Records, Inc. v. DEA, 259 F.3d 731,
737 (D.C. Cir. 2001). Because we have no meaningful basis
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upon which to evaluate TSA’s decisionmaking, the “proper
course . . . is to remand to the agency for additional
investigation or explanation.” Fla. Power & Light Co. v.
Lorion, 470 U.S. 729, 744 (1985).
Our decision to remand excludes two issues that have
been raised by Amerijet on appeal. First, in one of its
requests, Amerijet sought an alternative procedure that
included removing a TSA requirement that the shipper not
tender the cargo “at the aircraft operator’s facility.” TSA
granted this request only for perishable products and only for
those products tendered at one particular location, not at all
foreign locations as Amerijet requested. TSA explained that it
did not have sufficient information about the Amerijet
locations at issue to make the determination required by its
regulations. TSA invited Amerijet to submit additional
information, which agency officials did not receive before
denying Amerijet’s request. In these circumstances, the
agency’s action survives arbitrary and capricious review.
Second, Amerijet sought to amend training protocols set
forth in an alternate procedure that TSA had approved in
2011. This alternate procedure expired in October 2013
during the pendency of Amerijet’s request to amend it.
Nothing remains at stake in a dispute over a proposed
amendment to a document that no longer has legal effect. And
with nothing at stake, we have no power to resolve the
dispute. “Because the exercise of judicial power under Article
III depends upon the existence of a case or controversy, a
federal court may not . . . decide questions that do not affect
the rights of parties properly before it.” EDWARDS, ELLIOTT &
LEVY, FEDERAL STANDARDS OF REVIEW 134 (2d ed. 2013)
(citing North Carolina v. Rice, 404 U.S. 244, 246 (1971)). We
therefore dismiss as moot Amerijet’s request to amend
training protocols.
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Because we are remanding this case for further
consideration by TSA, Amerijet’s equal protection claim is
presently unripe for review. We therefore dismiss this claim
without prejudice.
I. BACKGROUND
A. Regulatory Framework
Congress has charged TSA with safeguarding the
country’s civil aviation security. See 49 U.S.C. § 114(d)(1).
This responsibility includes regulating the security of all-
cargo flights. By statute, TSA administers a system “to
screen, inspect, or otherwise ensure the security of all cargo
that is to be transported in all-cargo aircraft.” Id. § 44901(f).
Two tools TSA uses to protect the airways are security
programs and security directives. In its security programs,
TSA requires all-cargo aircraft operators like Amerijet to
develop what is called a Full All-Cargo Aircraft Operator
Standard Security Program. See 49 C.F.R. §§ 1544.101(h)-(i),
1544.103, 1544.105. Each aircraft operator’s security program
must meet certain safety standards and be approved by TSA.
Id. § 1544.103(a). And TSA requires that an aircraft operator
implement the procedures “described in its security program
to prevent or deter the carriage of . . . any unauthorized
explosives, incendiaries, and other destructive substances or
items in cargo onboard an aircraft.” Id. § 1544.205(a).
On top of these security programs, TSA issues security
directives. Security directives set forth mandatory security
measures that, in TSA’s judgment, are “necessary to respond
to a threat assessment or to a specific threat against civil
aviation.” Id. § 1544.305(a). Aircraft operators generally must
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implement the security measures prescribed by a security
directive. Id. § 1544.305(a)-(c).
TSA regulations allow aircraft operators to seek
adjustments to their security programs. Such adjustments,
however, must be approved by TSA, and approval is
conditioned on TSA’s determining that “safety and the public
interest will allow [the amendment], and [that] the proposed
amendment provides the level of security required under this
part.” Id. § 1544.105(b)(3).
Aircraft operators can also request alternative measures
to those mandated in a TSA security directive. TSA
regulations provide that, “[i]n the event that the aircraft
operator is unable to implement the measures in the Security
Directive, the aircraft operator must submit proposed
alternative measures and the basis for submitting the
alternative measures to TSA for approval. . . . The aircraft
operator must implement any alternative measures approved
by TSA.” Id. § 1544.305(d).
B. Agency Proceedings and Amerijet’s Petitions
Amerijet is a shipping company that operates all-cargo
aircraft to transport cargo from international locations to the
United States. Amerijet has a TSA-approved security
program, although the measures outlined therein are generally
not at issue here. This dispute arises from the procedures
mandated in a TSA security directive.
In 2011, TSA issued Security Directive No. 1544-11-04
(the “Directive”) in response to an October 2010 incident in
which “terrorists concealed explosives in cargo bound for the
United States.” Directive at 1, reprinted in Joint Appendix
(“J.A.”) 1. Reauthorized annually since its issuance, the
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Directive requires specific screening procedures for certain
categories of U.S.-bound cargo. These procedures are more
stringent than those mandated by an aircraft operators’ regular
security program. For some categories of cargo, the Directive
simply requires that aircraft operators follow their normal
screening procedures. We need not go into more detail than
this because the specifics are immaterial to our decision and
would likely succumb to redaction in any event.
Shortly after the Directive issued, Amerijet sought – and
TSA approved – an alternative procedure for screening cargo.
See Security Directive Alternative Procedures at 1, reprinted
in J.A. 10. TSA permitted Amerijet to use an enhanced
physical search in lieu of the Directive’s screening
requirements at locations where the “inability to screen cargo
with Explosives Trace Detection . . . would prevent the
aircraft operator from transporting the cargo.” Id. The
approved alternative procedure included a requirement that
Amerijet train its screeners in a manner detailed by TSA’s
order. Id. at 3-4. TSA’s approval of this alternative expired in
October 2013, while Amerijet’s request to amend the
alternative training procedures was pending. As explained
above, the dispute over this matter is now moot.
Amerijet’s 2011 request for alternative procedures was
not its last. In 2012, Amerijet discovered that compliance with
the Directive was infeasible at certain locations even with the
“physical search” accommodation that TSA had approved.
Amerijet concluded this after it learned, in connection with a
TSA enforcement proceeding against it, that TSA interpreted
some of the Directive’s provisions differently than it did.
Amerijet therefore requested additional modifications to the
procedures required in the Directive, first in February 2013
and then in August 2013. See Application for Alternate
Procedures, Feb. 8, 2013, reprinted in J.A. 34-39 (“February
7
Application”); Application for Alternate Procedures, Aug. 9,
2013, reprinted in Supplemental Joint Appendix (“S.J.A.”)
59-63 (“August Application”); see also 49 C.F.R.
§ 1544.305(d). These requests form the basis of the present
dispute.
In its February Application, Amerijet requested four
alternative procedures. February Application at 1-2. Here
again, we need not discuss specifics. Suffice it to say that the
four requests sought to broaden the categories of cargo
exempted from the Directive’s specific screening procedures.
After a conference with TSA officials in March 2013,
Amerijet supplemented and clarified its four proposals.
Supplementation and Clarification of Application for
Alternate Procedures at 1, reprinted in J.A. 42.
In May 2013, TSA denied all four proposals in a short
letter. Letter from Walter Craig to Richard Carpenter & Joan
Canny (May 6, 2013), reprinted in J.A. 54-55 (“May Letter”).
The letter states that, “[b]ased on a comprehensive review of
the proposed [alternative procedures], the request is hereby
denied.” Id. at 1. It then states that the “basis for this denial is
that TSA has determined that the procedures contained in the
[proposal] are based on Amerijet’s interpretation of [the
Directive].” Id. The only other statement in the letter that is
colorably responsive to Amerijet’s application is TSA’s
assertion that one of the proposals, which concerned
perishable commodities, was “not in the best interest of safety
and the public interest” and did not “provide the level of
security required under 49 C.F.R. Section 1544.205(a), (b),
and (f).” Id. Amerijet timely petitioned for review of the May
Letter, which is before the court as Petition No. 13-1176.
With its petition pending before this court, Amerijet
submitted its August Application to TSA. Amerijet sought
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TSA’s approval of three alternate procedures and asked for
clarification concerning certain screening requirements.
August Application at 1. Two of its proposals sought to alter
the Directive’s requirements. Id. at 2-3. The third sought to
alter the training protocols required in the alternate procedure
TSA had approved in 2011. Id. at 3-5.
On November 4, 2013, TSA officials held a
videoconference with representatives of Amerijet. TSA
offered a counterproposal for one of the three alternative
procedures Amerijet requested. And a TSA official said that
Amerijet should consider its August Application denied
except with respect to the counterproposal. See Pet’r’s
Supplemental Br. at 8-9. Amerijet sought review of this oral
denial, filing Petition No. 13-1317. In the meantime, Amerijet
and TSA reached an agreement concerning TSA’s
counterproposal, which led to TSA approving in December
2013 a set of alternative procedures for perishable
commodities at one of the foreign airports serviced by
Amerijet.
In January 2014, TSA issued a “final decision” denying
the remaining requests for alternate procedures in the August
Application. Letter from Joni M. Millan to Richard Carpenter
(Jan. 14, 2014), reprinted in S.J.A. 79-83 (“January Letter”).
Amerijet filed a third petition for review, Petition No. 14-
1008, challenging the January Letter.
The court has consolidated the three petitions for review.
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II. ANALYSIS
A. Jurisdiction and Finality
Amerijet’s petition for review was properly filed under
the Federal Aviation Act, which provides in pertinent part that
“a person disclosing a substantial interest in an order issued
[under the Act] . . . may apply for review of the order by
filing a petition” in this court. 49 U.S.C. § 46110(a). Amerijet
undoubtedly has a substantial interest in whether TSA
approves or denies its request for alternate procedures, and the
agency does not contest this.
Nonetheless, judicial review is “restricted to review of
final agency orders” so as to “avoid premature intervention in
the administrative process.” CSI Aviation Servs., Inc. v. U.S.
Dep’t of Transp., 637 F.3d 408, 411 (D.C. Cir. 2011) (internal
quotation marks omitted). Agency action is “final” when it (1)
marks “the consummation of the agency’s decisionmaking
process,” and (2) is one in which “rights or obligations have
been determined” or “from which legal consequences will
flow.” Bennett v. Spear, 520 U.S. 154, 178 (1997) (citations
and internal quotation marks omitted).
Amerijet’s first and third petitions for review (Nos.
13-1176 and 14-1008) challenge final agency action in the
form of TSA’s May Letter and January Letter. These letters
have “legal consequences” and were the “consummation” of
TSA’s consideration of Amerijet’s requests. Amerijet’s
second petition (No. 13-1317) is another matter. It challenges
TSA’s oral denial delivered in a November 2013
videoconference. The oral denial was, quite obviously, a
tentative conclusion and not the “consummation” of TSA’s
decisionmaking, which came two months later in the January
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Letter. Amerijet’s second petition is therefore not properly
subject to review by this court.
B. The Standard of Review
We recently explained the applicable standard of review
in a related context in Suburban Air Freight, Inc. v. TSA, 716
F.3d 679 (D.C. Cir. 2013):
Pursuant to the Administrative Procedure Act, we
must uphold TSA’s decisions unless they are “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law,” or unsupported by “substantial
evidence.” 5 U.S.C. § 706(2); 49 U.S.C. § 46110(c); see
Alaska Airlines, Inc. v. TSA, 588 F.3d 1116, 1120 (D.C.
Cir. 2009). In addition, “[w]e must give substantial
deference to [the] agency’s interpretation of its own
regulations.” Thomas Jefferson University v. Shalala,
512 U.S. 504, 512 (1994). . . . [W]e should afford similar
deference to TSA’s interpretation of [a security
program]. . . . [W]e believe [security programs] are
analogous to other formal, standardized, agency-
approved documents with respect to which we afford
agencies deference. Just as we defer to the Federal
Energy Regulatory Commission’s and the Federal
Communications Commission’s interpretations of tariffs,
see e.g., FPL Energy Marcus Hook, L.P. v. FERC, 430
F.3d 441, 446 (D.C. Cir. 2005); Global NAPs, Inc. v.
FCC, 247 F.3d 252, 258 (D.C. Cir. 2001) (FCC), for
example, so too must we defer to TSA’s reasonable
interpretation of a [security program].
Id. at 681-82. The same principles are in play here with
respect to TSA security directives and agency decisions to
grant or deny alternative procedures. And in applying this
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standard of review, we remain mindful that, because Congress
has entrusted TSA with broad authority over “civil aviation
security,” 49 U.S.C. §§ 114(d)(1), (f)(10), (l)(1), 44901(f), it
is “TSA’s job – not [an airline’s] or ours – to strike a balance
between convenience and security.” Suburban Air, 716 F.3d
at 683.
Nevertheless, even pursuant to this deferential standard
of review, an agency must articulate an explanation for its
action. We have explained that a “fundamental requirement of
administrative law is that an agency set forth its reasons for
decision; an agency’s failure to do so constitutes arbitrary and
capricious agency action.” Tourus Records, 259 F.3d at 737(internal quotation marks omitted). This basic principle,
codified in 5 U.S.C. § 555(e), is indispensable to sound
judicial review. See id.; 5 U.S.C. § 555(e) (requiring that an
agency provide an interested party with a “brief statement of
the grounds for denial” of the party’s request except “in
affirming a prior denial or when the denial is self-
explanatory”). At bottom, an agency must explain “why it
chose to do what it did.” Tourus Records, 259 F.3d at 737(quoting Henry J. Friendly, Chenery Revisited: Reflections on
Reversal and Remand of Administrative Orders, 1969 DUKE
L.J. 199, 222). And to this end, conclusory statements will not
do; an “agency’s statement must be one of reasoning.” Butte
Cnty., Cal. v. Hogen, 613 F.3d 190, 194 (D.C. Cir. 2010)
(emphasis added) (internal quotation marks omitted).
C. TSA’s Denials of Amerijet’s Requests
We now turn to the merits of Amerijet’s first and third
petitions for review.
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1. May Letter
TSA’s May Letter failed to explain why it denied the
proposals in Amerijet’s February Application. TSA ignored
one of Amerijet’s four requests entirely, and, with respect to
two of the other requests, it simply restated the rules from
which Amerijet sought exceptions. May Letter at 1 (bullet
points (1) and (2)). Restating a rule from which an exception
is sought explains nothing about why the agency denied the
exception; it begs the question. And TSA’s fourth denial is no
better. TSA merely parroted the language of the standard,
stating that “TSA has determined that exclusions from
physical screening for special types of cargo . . . are not in the
best interest of safety and the public interest . . . [and] do not
provide the level of security required under [the regulations].”
Id.; see also 49 C.F.R. § 1544.105(b)(3). This response, like
the letter at issue in Tourus Records, is “not a statement of
reasoning, but of conclusion.” 259 F.3d at 737. It is arbitrary
because it says nothing about “why” TSA made the
determination. See id. Simply put, the May Letter had “all the
explanatory power of the reply of Bart[le]by the Scrivener to
his employer: ‘I would prefer not to.’” Butte Cnty., 613 F.3d
at 195 (quoting HERMAN MELVILLE, BARTLEBY, THE
SCRIVENER: A STORY OF WALL STREET 10 (Dover 1990)
(1853)). TSA must say more.
At oral argument, TSA contended that because Amerijet
sought discretionary exceptions from the Directive, Amerijet
bore “some burden to make a showing” that its alternatives
provided commensurate security. Oral Arg. Tape at 35:43
(Mar. 27, 2014). This is a sensible position in the abstract.
Indeed, it seems reasonable and consistent with the
regulations for TSA to require an aircraft operator requesting
alternate measures to offer some explanation of why, in its
view, the requested alternative would be equally safe and to
13
provide supporting evidence (to the extent such evidence is in
the operator’s possession). See 49 C.F.R. § 1544.305(d)
(requiring aircraft operator to offer “the basis for submitting
the alternative measures”). The problem with this argument,
however, is that TSA did not articulate its denial on such
terms. Under well-established law, we evaluate an agency’s
contemporaneous explanation for its actions and not
“appellate counsel’s post hoc rationalizations.” Tourus
Records, 259 F.3d at 738 (internal quotation marks omitted).
TSA’s denials are not “self-explanatory,” see id. at 737(quoting 5 U.S.C. § 555(e)), and, therefore, the agency did not
afford Amerijet the “grounds for denial” to which it was
entitled, 5 U.S.C. § 555(e). And this court is left to evaluate
the reasons offered by TSA, which are insufficient.
2. January Letter
Whether the January Letter adequately explained why
TSA denied the requests in the August Application presents a
closer question. As explained above, one of the requests that
TSA denied is now moot. That leaves two requests, which we
consider in turn.
The first request concerned a requirement in the Directive
relating to the “Customs-Trade Partnership Against
Terrorism” (“C-TPAT”) program, which is a voluntary
partnership between the private sector and U.S. Customs and
Border Protection. When certain other conditions are met, the
Directive exempts cargo from additional screening
requirements so long as the shipper is certified under the
C-TPAT program. Directive at 4. Because Amerijet believed
that the other conditions were “adequate to establish the
consignor as known to Amerijet” and “based upon a
reasonable risk assessment” for the foreign airports it
services, Amerijet requested that this C-TPAT condition be
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“removed.” August Application at 3. TSA denied the request,
stating that eliminating the C-TPAT certification requirement
would not “provide a level of security commensurate with the
other screening options provided by the [Directive]” and
“would not be in the best interest of aviation security.”
January Letter at 3. TSA then listed three reasons why the
“C-TPAT certification requirement is important.” Id.This response is an improvement on the purported
explanation TSA offered in its May Letter, but it falls short of
reasoned decisionmaking. Though TSA does not explicitly
connect the dots in its explanation, this shortcoming is not
itself fatal. See Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (“We will
. . . uphold a decision of less than ideal clarity if the agency’s
path may reasonably be discerned.” (internal quotation marks
omitted)). By listing three ways in which the C-TPAT
certification is important, TSA appears to explain that,
because the C-TPAT requirement is useful, removing it
entirely would not provide commensurate security. But this
explanation does not address the main thrust of Amerijet’s
request – i.e., that, in the locations serviced by Amerijet, the
other conditions in Section II.C.1 of the Directive ensure
adequate security and render the C-TPAT requirement
unnecessary based “upon a reasonable risk assessment” of the
areas at issue. August Application at 3. Given the impetus of
Amerijet’s request, listing the general worth of the C-TPAT
requirement is programmatic boilerplate rather than reasoned
explanation. We simply cannot tell if TSA considered
whether, in the areas Amerijet services, the C-TPAT program
affords security beyond that provided by the other conditions
in Section II.C.1 of the Directive. Put another way, we cannot
discern if TSA considered the substance of Amerijet’s request
and, if so, what reasons it had for denying it.
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In its second request, Amerijet asked for two
modifications to Section II.C.2 of the Directive. This
provision exempts cargo from the Directive’s screening
requirements when the aircraft operator accepts the cargo
from a direct shipper with an established “business
relationship with the aircraft operator” and the cargo is not
tendered “at the aircraft operator’s facility.” Directive at 4.
Amerijet sought (1) to eliminate the requirement that the
cargo not be tendered “at the aircraft operator’s facility,” and
(2) to alter another condition in Section II.C.2. August
Application at 3. TSA granted this request but only for
perishable products and only for those products tendered at
one particular location, not at all foreign locations as Amerijet
requested. January Letter at 3-4. TSA explained that “local
government security procedures, business practices and
commodities . . . vary by location. . . . To ensure that safety
and the public interest will allow the requested procedures
. . . , TSA must review requests on a location-by-location
basis and Amerijet must provide supporting information on a
location-by-location basis. TSA is sufficiently aware of
security practices within [the country where it granted the
alternate procedures] and Amerijet’s security capabilities
within [that country] to implement the requested [procedures
there]. Such is not the case in other locations where Amerijet
operates.” Id. at 4.
TSA’s response passes muster. It is adequately explained,
consistent with the regulations, and reasonable. As TSA
interprets the regulations, it may approve a request for
alternative procedures only if the “alternative measures
provide a commensurate level of security and are consistent
with the public interest.” Supplemental Br. for Resp’t at 10;
see also Br. for Resp’t at 30 (“TSA ‘may’ approve a proposed
security program amendment where the ‘designated official
determines that safety and the public interest will allow it’ and
16
where the proposed amendment ‘provides the level of security
required under this part.’” (quoting 49 C.F.R.
§ 1544.105(b)(3)). TSA determined that it did not have
adequate information about other Amerijet locations to make
the determination required by the regulations. It therefore
elected for a phased approach, approving the request as to one
location and inviting Amerijet to submit additional
information as to other locations. (We note that it appears
from the record that Amerijet planned to submit the requested
information as part of a separate administrative request. See
Letter from Rosa Fernandez to Joni M. Millan (Dec. 2, 2013)
at 1, reprinted in S.J.A. 69.)
D. The Appropriate Remedy
The Supreme Court has made clear that when an
agency’s explanation does not permit a court to evaluate the
agency’s action, “the proper course, except in rare
circumstances, is to remand to the agency for additional
investigation or explanation.” Lorion, 470 U.S. at 744. So it is
here. Neither party has identified a rare circumstance that
would justify departing from the “usual remedy” of a remand.
Tourus Records, 259 F.3d at 737.
We are not in a position to assess Amerijet’s equal
protection claim because, as noted above, we have no
meaningful basis upon which to evaluate TSA’s denials of
Amerijet’s requests. Amerijet’s equal protection claim is
premised on TSA denying its requests for alternate
procedures, together with an allegation that TSA allowed a
competitor to use these same procedures. There is no way to
weigh the viability of Amerijet’s equal protection claim
without a clear understanding of the agency’s position with
respect to the disputed denials. And with our remand of this
case, the possibility remains that TSA may reconsider its prior
17
denials or offer adequate explanations for the agency’s
actions, either of which may moot Amerijet’s equal protection
claim.
In these circumstances, we find Amerijet’s equal
protection claim unripe for review. “[I]f a claim challenging
final agency action is not concrete, it may be unfit for judicial
review without regard to whether the complaining party has
standing to pursue the claim.” Marcum v. Salazar, 694 F.3d
123, 129 (D.C. Cir. 2012) (quoting EDWARDS & ELLIOTT,
FEDERAL STANDARDS OF REVIEW 119 (2007)). The courts
look to “both the fitness of the issues for judicial decision and
the hardship to the parties of withholding court
consideration.” Abbott Labs. v. Gardner, 387 U.S. 136, 149
(1967). The “fitness” of the issue for judicial review turns on
whether a court’s consideration of the case “would benefit
from further factual development” and “whether judicial
intervention would inappropriately interfere with further
administrative action.” Ohio Forestry Ass’n, Inc. v. Sierra
Club, 523 U.S. 726, 733 (1998). The ripeness doctrine thus
protects “the agency’s interest in crystallizing its policy
before that policy is subjected to judicial review and the
court’s interests in avoiding unnecessary adjudication and in
deciding issues in a concrete setting.” Eagle–Picher Indus.,
Inc. v. EPA, 759 F.2d 905, 915 (D.C. Cir. 1985). These are
particularly salient considerations in this case because the
matters in dispute involve sensitive security issues. And it is
also noteworthy that Amerijet does not contend that it will
suffer any “hardship” if its equal protection claim is dismissed
without prejudice pending further consideration by TSA on
remand. See Marcum, 694 F.3d at 130. Therefore, it would be
inappropriate for this court to consider the constitutionality of
TSA’s denials without affording the agency an opportunity to
more fully address Amerijet’s requests.
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III. CONCLUSION
For the reasons stated above, we dismiss Petition No.
13-1317, grant Petition No. 13-1176, and grant in part and
deny in part Petition No. 14-1008. TSA’s denials of
Amerijet’s requests for alternate security procedures are
hereby remanded for further consideration, with the exception
of the agency’s partial denial of Requested Alternate
Procedure 2, see S.J.A. 61, which was adequately explained,
and its denial of Requested Alternate Procedure 3, see id.,
which is now moot. Amerijet’s equal protection claim is
dismissed without prejudice as unripe.
So ordered.