United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 12, 2016 Decided April 15, 2016

No. 15-1001

ALBERTO IGNACIO ARDILA OLIVARES,

PETITIONER

v.

TRANSPORTATION SECURITY ADMINISTRATION AND PETER 

NEFFENGER, IN HIS OFFICIAL CAPACITY AS ADMINISTRATOR OF 

THE TRANSPORTATION SECURITY ADMINISTRATION,

RESPONDENTS

On Petition for Review of the Decision 

of the Transportation Security Administration

Jason Goldstein argued the cause and filed the briefs for 

petitioner. 

Dana L. Kaersvang, Attorney, U.S. Department of 

Justice, argued the cause for respondents. With her on the 

brief were Benjamin C. Mizer, Principal Deputy Assistant 

Attorney General, Vincent Cohen, U.S. Attorney, and Sharon 

Swingle, Attorney.

Before: BROWN, Circuit Judge, and EDWARDS and 

WILLIAMS, Senior Circuit Judges.
2

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

EDWARDS, Senior Circuit Judge: Alberto Ardila Olivares, 

the Petitioner before the court, is a foreign alien from 

Venezuela. In 2014, he applied to attend a Federal Aviation 

Administration (“FAA”)-certified flight school in France to 

obtain a pilot certification to fly large, U.S.-registered aircraft.

After conducting a background check, the Transportation 

Security Administration (“TSA”) determined that Petitioner 

was a risk to aviation and national security and denied his 

application for training. Petitioner now seeks review of TSA’s 

action, invoking the court’s jurisdiction under 49 U.S.C. § 

46110(a), and asserting causes of action under the 

Administrative Procedure Act (“APA”), 5 U.S.C. §§ 555(e),

702, 704, 706(2).

If TSA, on behalf of the Secretary of Homeland Security, 

determines that an alien presents a “risk to aviation or national 

security,” then flight instructors, pilot schools, and aviation 

training centers are prohibited from giving training to that 

alien on specified large, U.S.-registered aircraft. 49 U.S.C. 

44939(a); see also 49 C.F.R. § 1552.3(a)(4), (e). As a 

consequence, an alien like Petitioner who has been denied 

clearance by TSA is ineligible to be certified by FAA to fly 

these U.S.-registered aircraft. 

Petitioner claims that TSA failed to satisfy the 

requirements of 5 U.S.C. § 555(e) when it initially rejected 

his application for training because the agency gave no 

“grounds for denial.” Petitioner also claims that TSA’s action 

was “arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A), 

because TSA failed to consider all relevant factors regarding 

his application for flight training. 
3

The record supports Petitioner’s claim under § 555(e). In 

these circumstances, we would normally remand the case to 

the agency to explain the grounds for its denial of Petitioner’s 

training application. However, shortly after Petitioner filed his 

petition for review, TSA submitted to the court internal 

agency materials that include the findings of TSA’s 

background investigation of Petitioner as well as internal 

agency communications regarding Petitioner’s application.

TSA also submitted the sworn declaration of Andrea Vara, the 

Government official who acted on behalf of TSA to deny 

Petitioner’s application, explaining the grounds supporting 

TSA’s determination that Petitioner was a risk to aviation and 

national security. The Vara Declaration confirms that the 

internal agency materials express TSA’s reasoned, 

contemporaneous explanation for its decision.

Petitioner does not question the authenticity of the Vara 

Declaration or the authority of the declarant; and we do not 

have any reason to doubt the veracity of the submission. TSA 

thus contends that a remand of this case would be pointless.

We agree. See, e.g., Tourus Records, Inc. v. DEA, 259 F.3d 

731, 737-40 (D.C. Cir. 2001) (holding that even though a 

letter from the Drug Enforcement Agency to the claimant was

insufficient to satisfy DEA’s obligation under 5 U.S.C. 

§ 555(e) to set forth reasons for its decision against the 

claimant, the court would not remand the case for additional 

proceedings because internal DEA memoranda upon which

the letter was based clarified and justified the agency’s

decision). The internal agency materials, as illuminated by the 

Vara Declaration, offer a clear and reasonable statement of 

the grounds upon which TSA relied in denying Petitioner’s 

application for flight training. And, as we explain below, the 

Declaration and the internal agency materials to which it 

refers are not impermissible post hoc rationalizations.
4

Therefore, because Petitioner and the court have a written 

statement explaining the grounds and rationale for TSA’s

action, and because we find that the agency action against 

Petitioner was not arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law, we 

conclude that there is no need to remand the case for further 

consideration. We therefore deny the petition for review.

I. BACKGROUND

In the aftermath of the tragic terrorist attacks on 

September 11, 2001, Congress created the Transportation 

Security Administration to shore up our nation’s civil aviation 

security. See 49 U.S.C. § 114. TSA was initially housed in the 

Department of Transportation and headed by the Under 

Secretary of Transportation for Security. Id. § 114(a)-(b). In 

2002, TSA was moved to the newly created Department of 

Homeland Security under the direction of the Secretary of 

Homeland Security. See 6 U.S.C. § 203(2).

This case involves TSA’s role in determining whether 

alien pilots may be certified to operate large, U.S.-registered 

aircraft. “Large aircraft means aircraft of more than 12,500 

pounds, maximum certificated takeoff weight.” 14 C.F.R. 

§ 1.1 (emphasis omitted). No pilot may “serve in any capacity 

as an airman with respect to a civil aircraft . . . in air 

commerce . . . without an airman certificate” from FAA. 49 

U.S.C. § 44711(a)(2); see also 14 C.F.R. § 61.3(a). For large 

aircraft, pilots must obtain additional certification known as a 

Type Rating. 14 C.F.R. § 61.31(a)(1). Aliens who seek 

training and certification to operate large, U.S.-registered 

aircraft must first secure clearance by TSA. See 49 U.S.C. 

§ 44939(a). If TSA “determine[s] that [an alien applicant] 

presents a risk to aviation or national security,” then that 

applicant is ineligible to receive the training necessary to 
5

secure a large aircraft Type Rating from FAA. See id.; see 

also 49 C.F.R. § 1552.3(a)(4), (e).

Petitioner is an alien pilot who formerly lived and worked 

in the United States. On February 14, 2007, he was convicted 

in federal court of conspiracy to possess with intent to 

distribute controlled substances in violation of 21 U.S.C. § 

846. He was sentenced to serve 80 months in prison, followed 

by 60 months of supervised release. On December 17, 2007, 

FAA sent Petitioner a letter revoking his pilot certification, 

effective January 7, 2008. Petitioner was subsequently 

deported on March 3, 2010.

After being deported, Petitioner worked as a pilot in 

Venezuela. In 2011, he was presented with an opportunity to 

fly a large, U.S.-registered aircraft, which required him to 

receive training for the appropriate Type Rating and then seek 

the appropriate certification from FAA. To achieve these 

ends, Petitioner applied for admission to an FAA-certified 

flight school in France. TSA then conducted a background 

investigation of Petitioner. Although TSA uncovered 

Petitioner’s 2007 drug conviction, TSA granted him 

permission to attend flight school. Petitioner successfully 

completed flight school and obtained his Type Rating as well 

as various other FAA certifications.

In 2012, the U.S. Government Accountability Office 

(“GAO”) published a report criticizing TSA’s background 

investigations of alien pilots. GAO, WEAKNESSES EXIST IN 

TSA’S PROCESS FOR ENSURING FOREIGN FLIGHT STUDENTS 

DO NOT POSE A SECURITY THREAT (July 2012) (“GAO 

Report” or “Report”). The Report highlighted that TSA’s 

investigation methods did not always thoroughly examine an 

alien’s immigration status, and expressed concern that, as a 

result, the investigation might not identify all alien flight-
6

school applicants presenting a security threat. See id. at 28-33. 

In response to the Report, TSA revised its background check 

procedures. Under the new procedures, TSA thoroughly 

examines the immigration statuses of flight-school applicants. 

If an applicant is not eligible for admission into the United 

States and is seeking permission to attend an FAA-certified 

flight training program outside of the United States, TSA 

pursues a more searching investigation to determine whether 

the applicant presents a risk to aviation or national security. 

In 2014, Petitioner received another opportunity to pilot a 

large, U.S.-registered aircraft. Although his general FAA 

credentials remained valid, Petitioner’s Type Rating had 

expired. As before, Petitioner applied to attend an FAAcertified flight school in France, and TSA conducted a 

background investigation.

Pursuant to TSA’s new procedures, the agency’s 

investigation flagged that Petitioner was inadmissible to enter 

the United States due to his 2007 drug conviction. As a result, 

Petitioner’s application was referred for further investigation. 

The investigation uncovered that, in addition to his 2007 drug 

conviction, Petitioner had been suspected of firearms 

trafficking in 1998 in Aruba. TSA also discovered that, even 

though he had been deported with no right to return to the 

United States, Petitioner maintained a local address in 

Massachusetts. 

TSA apparently believed that Petitioner was seeking to 

attend a flight school in the United States. As a result, the

agency initially declined to process Petitioner’s application.

On October 27, 2014, TSA sent Petitioner the following email 

message:
7

This training request cannot be processed for the 

following reason(s): [TSA] has received information in 

regards to your immigration status. As a result, your 

current training request to attend flight training at a 

United States flight school has been cancelled. If you 

resolve your immigration status and provide the 

appropriate supporting documentation this cancellation 

may be lifted and your training request approval 

reinstated.

Petitioner immediately responded to TSA, explaining that he 

sought to attend flight school in France and not in the United 

States. 

With Petitioner’s clarification in hand, TSA performed a

follow-up review of his file. After this further review, TSA 

concluded that Petitioner was a “Threat to 

Transportation/National Security.” On November 5, 2014, 

TSA sent an email to Petitioner denying his application. The 

email stated:

Pursuant to Title 49 of the Code of Federal Regulations 

[§] 1552.3(e), your training request has been denied as 

TSA is unable to determine that you do not pose a threat 

to aviation or national security. This letter constitutes 

TSA’s final determination.

TSA’s email gave no further explanation for its denial of 

Petitioner’s application.

On January 5, 2015, Petitioner filed his petition for 

review with this court. On March 26, 2015, Andrea Vara 

executed a sworn declaration explaining TSA’s grounds for 

denying Petitioner’s application for training. Ms. Vara is 

employed by the U.S. Department of Homeland Security, 
8

Transportation Security Administration, as the Alien Flight 

Student Program Manager. She has been “responsible for

managing TSA’s Alien Flight Student Program, which 

conducts security threat assessments on individuals who are 

not U.S. citizens or nationals who seek flight instruction or 

recurrent training from Federal Aviation Administration 

(FAA)-certified flight training providers . . . . [Her] duties 

include making final decisions regarding whether such 

individuals pose a threat to aviation or national security.”

Vara Declaration at 1, ¶ 3.

The Vara Declaration makes it clear that Ms. Vara was

the Government official who made the determination that 

Petitioner’s application should be denied because he 

presented a risk to aviation and national security. The 

Declaration not only explains the agency’s rationale, it also

cites internal materials that TSA had before it at the time 

when the determination was made to deny Petitioner’s 

application. These materials are included in the parties’ Joint 

Appendix. The Vara Declaration states, inter alia:

12. In October 2014, Petitioner submitted Training 

Request #565192, seeking to train at FlightSafety 

International – Paris Learning Center from November 10

- November 17, 2014.

13. Pursuant to the revised procedure, Petitioner was 

subject to an investigation, which revealed the following. 

In 2007, Petitioner pled guilty to conspiracy to possess 

with intent to distribute controlled substances and the 

U.S. District Court for the Northern District of Illinois 

sentenced him to eighty (80) months imprisonment. 

Petitioner’s conviction made him inadmissible to the 

United States and led to the revocation of his FAA 
9

Airman’s Certificate. Petitioner was deported to his home 

country of Venezuela in March 2010.

14. A public news article published after Petitioner 

was deported provided a U.S. address for Petitioner. 

Further, records indicated that Petitioner was a suspected 

international trafficker in firearms. There was evidence 

that Petitioner had previously been involved in the export 

of weapons and U.S. currency to Venezuela by private 

aircraft, was the second pilot of an aircraft from which 

several weapons and $500,000 was seized by local 

authorities in Aruba, and that one of his associates was 

arrested in Aruba for smuggling firearms. [Footnote 6]

[Footnote 6] Some of this information was from the late 1990s. 

I considered its age when determining whether Petitioner posed 

a risk. Because the evidence indicated Petitioner had smuggled 

weapons and money and was convicted for drug trafficking, I 

concluded these were not isolated incidents, and rather revealed 

Petitioner’s consistent disregard for the law.

15. This information, viewed as a whole, 

demonstrated Petitioner’s willingness to consistently 

disregard the law and to use an aircraft for criminal 

activity, in opposition to U.S. security interests. The 

information also raised concerns that Petitioner may use 

his flight training to advance the interests of a criminal 

enterprise, which could include an enterprise that seeks to 

do harm to the United States. 

16. Based on all the foregoing information, I 

concluded Petitioner posed a threat to aviation and 

national security and [TSA’s Alien Flight Student

Program] denied his training request on November 5, 

2014.
10

Vara Declaration at 3-4 & n.6, ¶¶ 12-16.

The entire Vara Declaration was included in the parties’ 

Joint Appendix that was submitted to the court. Both parties 

discuss the Vara Declaration in their briefs to the court. And,

as noted above, Petitioner does not question the authenticity 

of the Vara Declaration or the authority of the declarant; and 

we do not have any reason to doubt the veracity of TSA’s 

account of the grounds justifying the agency’s denial of 

Petitioner’s application for flight training.

II. ANALYSIS

A. THE COURT’S JURISDICTION 

As noted above, Petitioner has invoked the jurisdiction of 

the court under 49 U.S.C. § 46110(a). An action taken by 

TSA on behalf of the Secretary of Homeland Security under 

the authority of 49 U.S.C. § 44939(a) is clearly subject to 

review under § 46110(a). The Government does not question 

the court’s subject matter jurisdiction, nor do we have any 

doubt that Petitioner is properly before this court. 

The Government contends that, “[t]o the extent that 

petitioner argues that the agency erred in weighing the 

evidence, judicial review of the agency’s expert judgment

regarding the level of risk to accept in permitting aliens to 

attend flight school is highly deferential.” Br. for Respondents 

at 11. This is indisputable. There are portions of the 

Government’s argument, however, that appear to conflate 

subject matter jurisdiction, Petitioner’s APA causes of action,

and the applicable standard of review. See, e.g., id. at 11-12 & 

n.3. Lest there be any confusion on this point, we want to be 

plain in saying that, under established law, the court has 

jurisdiction under 49 U.S.C. § 46110(a) to review actions 
11

taken by TSA pursuant to the authority of § 44939. The extent 

to which the court defers to TSA’s judgment that a person 

should be denied flight training because he poses a risk to 

aviation or national security is a different matter that concerns 

the standard of review, not jurisdiction.

B. STANDARD OF REVIEW

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.” 5 U.S.C. § 706(2)(A); see also Alaska Airlines, Inc. v. 

TSA, 588 F.3d 1116, 1120 (D.C. Cir. 2009). During oral 

argument, Government counsel acknowledged that this case 

does not involve any materials of a sensitive nature that 

should not be disclosed due to security concerns. Even in 

cases in which sensitive materials may be in issue, however,

“the court has inherent authority to review classified material 

ex parte, in camera as part of its judicial review function.”

Jifry v. FAA, 370 F.3d 1174, 1181-82 (D.C. Cir. 2004)

(reviewing in camera TSA’s internal materials under the APA 

in upholding TSA’s determination that two pilots posed a 

security threat). 

What is important here is that, “because Congress has 

entrusted TSA with broad authority over ‘civil aviation 

security,’ it is ‘TSA’s job—not . . . ours—to strike a balance 

between convenience and security.’” Amerijet Int’l, Inc. v. 

Pistole, 753 F.3d 1343, 1350 (D.C. Cir. 2014) (citations 

omitted) (citing Suburban Air Freight, Inc. v. TSA, 716 F.3d 

679, 683 (D.C. Cir. 2013)). Therefore, in cases of this sort, we 

must defer to TSA actions that reasonably interpret and 

enforce the safety and security obligations of the agency. See

Suburban Air Freight, 716 F.3d at 683. As we explain below, 

courts do not second-guess expert agency judgments on 
12

potential risks to national security. Rather, we defer to the 

informed judgment of agency officials whose obligation it is 

to assess risks to national security. See the discussion in part 

II.D, infra.

C. PETITIONER’S CLAIM UNDER SECTION 555(e) OF THE 

APA

Section 555(e) of the APA provides:

Prompt notice shall be given of the denial in whole 

or in part of a written application, petition, or other 

request of an interested person made in connection with 

any agency proceeding. Except in affirming a prior denial 

or when the denial is self-explanatory, the notice shall be 

accompanied by a brief statement of the grounds for 

denial.

5 U.S.C. § 555(e). Petitioner claims that TSA’s November 5, 

2014 email to him denying his application for flight training 

violated the requirements of § 555(e) because the email 

offered no statement of the grounds for the agency’s denial. 

As noted above, Petitioner’s claim, at least at first blush, is 

compelling.

In Tourus Records, Inc. v. DEA, we explained:

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. That fundamental requirement 

is codified in section 6(d) of the APA, 5 U.S.C. § 555(e). 

Section 6(d) mandates that whenever an agency denies “a 

written application, petition, or other request of an 

interested person made in connection with any agency 
13

proceeding,” the agency must provide “a brief statement 

of the grounds for denial,” unless the denial is “selfexplanatory.” This requirement not only ensures the 

agency’s careful consideration of such requests, but also 

gives parties the opportunity to apprise the agency of any 

errors it may have made and, if the agency persists in its 

decision, facilitates judicial review. Although nothing 

more than a “brief statement” is necessary, the core 

requirement is that the agency explain “why it chose to 

do what it did.” Henry J. Friendly, Chenery Revisited: 

Reflections on Reversal and Remand of Administrative 

Orders, 1969 DUKE L.J. 199, 222.

259 F.3d at 737 (citations omitted). TSA’s email to Petitioner 

denying his application for flight training did not meet this 

APA standard. The email simply parroted the words of 49 

U.S.C. § 44939(a), without offering anything to explain why 

TSA had determined that Petitioner presented a risk to 

aviation or national security. And TSA has not argued that the 

reasons behind the denial of Petitioner’s application were 

“self-explanatory.” 5 U.S.C. § 555(e). “The [email] thus 

provides no basis upon which we could conclude that it was 

the product of reasoned decisionmaking.” Tourus Records, 

259 F.3d at 737.

“When an agency provides a statement of reasons 

insufficient to permit a court to discern its rationale, or states 

no reasons at all, the usual remedy is a ‘remand to the agency 

for additional investigation or explanation.’” Id. (quoting Fla.

Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)). This 

case presents an unusual situation, however, because, after 

Petitioner filed his petition for review, TSA submitted the 

Vara Declaration and other internal agency documents that, 

together, offer a clear statement of the grounds and rationale 

upon which TSA relied in denying Petitioner’s application for
14

flight training. The internal materials include the findings of 

TSA’s background investigation of Petitioner as well as 

internal agency communications. And, as explained by the 

Vara Declaration, these internal materials express TSA’s 

reasoned, contemporaneous explanation for its decision. The

internal materials are not impermissible “post hoc

rationalizations” for agency action. Tourus Records, 259 F.3d 

at 738 (quoting Burlington Truck Lines, Inc. v. United States, 

371 U.S. 156, 168 (1962)). Rather, they “represent the 

‘contemporaneous explanation of the agency decision,’” and, 

therefore, they are “appropriate subjects for our 

consideration.” Id.

The Vara Declaration is a post-hoc account. It is 

persuasive, however, because it shows that the previously 

undisclosed internal materials in fact do state the 

contemporaneous explanation for TSA’s denial of Petitioner’s 

application. The Vara Declaration “illuminate[s]” the reasons 

that are implicit in the internal materials. Clifford v. Peña, 77 

F.3d 1414, 1418 (D.C. Cir. 1996). In other words, the Vara 

Declaration furnishes an explanation of the administrative 

action that is necessary to facilitate effective judicial review. 

Camp v. Pitts, 411 U.S. 138, 142-43 (1973). The critical point 

is that the Vara Declaration contains “no new 

rationalizations”; it is “merely explanatory of the original 

record,” and thus admissible for our consideration. Envtl. Def. 

Fund., Inc. v. Costle, 657 F.2d 275, 285 (1981) (citations 

omitted); see also Manhattan Tankers, Inc. v. Dole, 787 F.2d 

667, 672 n.6 (D.C. Cir. 1986) (upholding “the [agency’s] 

decision on the basis of [the decision maker’s] affidavit[],” 

where the affidavit was “consistent with the administrative 

record”).

Importantly, the Vara Declaration explains that, as a 

result of the July 2012 GAO Report, TSA changed the way 
15

that it conducts its background investigations. TSA now 

thoroughly examines the immigration statuses of flight-school 

applicants, and, if an applicant is not eligible for admission to 

the United States and is seeking training outside the country, 

the applicant’s file is flagged for further review. The Vara 

Declaration then summarizes what is stated in TSA’s internal 

materials: that in this case, the investigation had flagged that 

Petitioner was inadmissible due to his 2007 drug conviction 

and had then further discovered that Petitioner maintained a 

U.S. address and had been suspected of firearms trafficking.

The Declaration also makes it clear that Ms. Vara, on behalf 

of TSA, considered all of the information in Petitioner’s 

record, and, on the basis of that record, reached the following 

conclusion:

Some of this information [that I considered] was 

from the late 1990s. I considered its age when 

determining whether Petitioner posed a risk. Because the 

evidence indicated Petitioner had smuggled weapons and 

money and was convicted for drug trafficking, I 

concluded these were not isolated incidents, and rather 

revealed Petitioner’s consistent disregard for the law.

This information, viewed as a whole, demonstrated 

Petitioner’s willingness to consistently disregard the law 

and to use an aircraft for criminal activity, in opposition 

to U.S. security interests. The information also raised 

concerns that Petitioner may use his flight training to 

advance the interests of a criminal enterprise, which 

could include an enterprise that seeks to do harm to the 

United States.

Based on all the foregoing information, I concluded 

Petitioner posed a threat to aviation and national security 
16

and [TSA’s Alien Flight Student Program] denied his 

training request on November 5, 2014.

Vara Declaration at 4 & n.6, ¶¶ 14-16.

The Vara Declaration confirms that TSA’s decision was 

based on some concrete information relating to Petitioner’s

personal history, which raised reasonable suspicions and 

caused TSA to reach an informed judgment that Petitioner 

presented a risk to aviation and national security. 

Although we find that the internal agency materials, as 

illuminated by the Vara Declaration, satisfy the requirements

of § 555(e), we add a word of caution. In the future, agencies 

will be well advised to obey the explicit command of § 

555(e), rather than counting on being able to salvage their 

actions later, after the losing party has been forced to seek 

redress in court. Persistent scofflaw behavior might cause the 

courts to insist that the contemporaneous explanation actually 

be expressed to the complaining party, as the statute requires, 

on pain of vacatur and remand. Or the courts might insist on 

progressively more compelling indications that the reasons 

offered were in fact the reasons governing the decision when 

it was made. The offending agency action in this case was 

mitigated somewhat because the internal materials and the 

Vara Declaration were included in the parties’ Joint 

Appendix, and Petitioner had an opportunity to review these 

materials before briefing and oral argument. This may not be 

sufficient in future cases involving agency defiance of § 

555(e).

D. PETITIONER’S OTHER APA CLAIMS

In addition to his claim under § 555(e), Petitioner also 

contends that TSA’s action was “arbitrary, capricious, an 
17

abuse of discretion, or otherwise not in accordance with law,” 

5 U.S.C. § 706(2)(A), because TSA failed to consider all 

relevant factors regarding his application for flight training. 

We disagree.

Petitioner argues that TSA’s rejection of his application 

is inconsistent with TSA’s October 27, 2014 email message, 

which merely stated that Petitioner’s status as an inadmissible 

alien precluded him from attending flight school in the United 

States. We do not perceive any inconsistency. The October 

27, 2014 message declined to process Petitioner’s application 

due to his inadmissibility. Once Petitioner informed TSA that 

he sought to attend a flight school in France and not in the 

United States, TSA performed a follow-up review of his 

application and concluded that Petitioner presented a risk to 

aviation and national security.

Petitioner also contends that TSA acted arbitrarily 

because the agency granted his application in 2011 but denied 

it in 2014. In his Reply Brief, however, Petitioner concedes 

that TSA was unaware in 2011 of Petitioner’s Massachusetts 

address and his suspected involvement in firearms trafficking. 

More importantly, the 2011 investigation took place before 

TSA changed its investigation procedures to address the 

concerns raised in the July 2012 GAO Report. 

Petitioner further claims that it is illogical for TSA to 

consider him a threat to aviation or national security, given 

that Petitioner still holds his other FAA credentials and is 

currently authorized to fly various aircraft. The validity of 

Petitioner’s other credentials, however, are not before the 

court. Moreover, FAA is directed by statute to respond to 

TSA threat assessments by “amending, modifying, 

suspending, or revoking any part of a certificate issued under 

this title.” 49 U.S.C. § 46111(a). The statute also makes it 
18

clear that if, after approving an alien’s application for 

training, TSA “determines that the individual presents a risk 

to aviation or national security,” the prior approval can be 

revoked. Id. § 44939(b).

Finally, Petitioner argues that TSA should not have used 

his suspected firearms trafficking or his Massachusetts 

address to support its decision. Petitioner claims that the 

Massachusetts address actually belongs to his brother, and 

Petitioner insists that he has never illegally entered the United 

States. Petitioner also points out that the firearms incident 

occurred nearly two decades ago and that he was merely

suspected of being involved. In light of the limited standard of 

review that controls the disposition of this case, these 

arguments are not persuasive. It was rational for TSA to find 

it suspicious and thus consider information indicating that a 

deported individual appeared to maintain a current U.S. 

address and had been suspected of involvement in firearms 

trafficking. The agency’s weighing of this information, along 

with the information regarding Petitioner’s known criminal 

history, was not inconsistent with reasoned decision making.

As the Vara Declaration makes clear, Petitioner’s record as a 

whole “raised concerns that Petitioner [might] use his flight 

training to advance the interests of a criminal enterprise, 

which could include an enterprise that seeks to do harm to the 

United States.” Vara Declaration at 4, ¶ 15.

Given TSA’s broad authority to assess potential risks to

aviation and national security, the agency’s clear and 

reasonable explanation offered in the Vara Declaration, and 

the limited standard of review, we are in no position to 

second-guess TSA’s judgment in denying Petitioner’s 

application. See Jifry, 370 F.3d at 1180. In assessing risks to 

national security, “conclusions must often be based on 

informed judgment rather than concrete evidence, and that 
19

reality affects what we may reasonably insist on from the 

Government.” Holder v. Humanitarian Law Project, 561 U.S. 

1, 34-35 (2010). “[W]hen it comes to collecting evidence and 

drawing factual inferences in this area, ‘the lack of 

competence on the part of the courts is marked,’ and respect 

for the Government’s conclusions is appropriate.” Id. at 34 

(citation omitted). “[W]here no factual certainties exist or 

where facts alone do not provide the answer . . . we require 

only that the agency so state and go on to identify the 

considerations it found persuasive.” Jifry, 370 F.3d at 1180

(citation omitted). 

It is self-evident that TSA’s action against Petitioner was 

related to the agency’s “goals of improving the safety of air 

travel.” Id. TSA was not required to show that Petitioner 

would engage in activities designed to compromise aviation or

national security. Rather, the agency was merely required to 

give a reasonable explanation as to why it believed that 

Petitioner presented a risk to aviation or national security. 

The Vara Declaration satisfies this legal obligation.

III. CONCLUSION

For the reasons set forth above, the petition for review is 

denied.

So ordered.