On Petition for Review of an Order of the Transportation Security Administration.
The opinion of the court was delivered by: Ginsburg, Circuit Judge
Before: GINSBURG, ROGERS and BROWN, Circuit Judges.
Concurring opinion filed by Circuit Judge GINSBURG.
Lewis Boniface petitions for review of a 2009 order of the Transportation Security Administration, an agency within the Department of Homeland Security, denying his request for waiver of a rule barring him from receiving a hazardous materials endorsement (HME) for his commercial driver‟s license because of his 1975 conviction for possession of an unregistered explosive device. We grant the petition and remand the matter to the agency to reconsider Boniface‟s request in the light of such evidence as he may submit.
A state may not grant a driver a "license to operate a motor vehicle transporting in commerce a hazardous material" unless the DHS first notifies the state "that the individual does not pose a security risk warranting denial of the license." 49 U.S.C. § 5103a(a)(1). The TSA, acting on behalf of the DHS, assesses whether an individual poses a security risk; in practice the TSA notifies the state an individual poses no threat by granting that individual an HME.
If the TSA determines an applicant for an HME has been convicted of any of several "disqualifying criminal offenses" listed in the TSA‟s threat assessment regulation, 49 C.F.R. § 1572.103, then it notifies the applicant of its "Initial Determination of Threat Assessment" he is "a security threat warranting denial" of his application. 49 C.F.R. §§ 1572.5(a)(1), 1572.15(d). The options then available to the applicant are summarized in the flow chart that follows.
Request waiver from Asst.
Review in court of appeals
Review in court of appeals
An applicant disqualified because of a criminal offense may within 60 days appeal that determination within the TSA and, if unsuccessful, then seek review in a court of appeals. 49 C.F.R. § 1515.5. If he does not appeal within 60 days, or if his administrative appeal is unsuccessful, then the Initial Determination of Threat Assessment becomes a Final Determination. See 49 C.F.R. §§ 1515.5(b)(1), (c). Alternatively, any time after receiving an Initial Determination of Threat Assessment and until 60 days after receiving a Final Determination, the applicant may request a waiver on the ground that in fact he "does not pose a security threat." 49 C.F.R. §§ 1515.7(b), (c)(iii). Should his waiver request be denied, he may seek review of that decision as well, first before an Administrative Law Judge, then before the Deputy Administrator, and then by petitioning a court of appeals for review. 49 C.F.R. § 1515.11.
In 2008 Boniface sought a renewed HME from the TSA because his California commercial driver‟s license was set to expire. The TSA made an Initial Determination that Boniface‟s 1975 conviction for possession of an unregistered explosive device was a disqualifying criminal offense and denied his application for an HME. It sent him a letter dated May 13 explaining its determination and informing him he could appeal, request a waiver, or request a copy of the materials upon which the agency had relied in making its determination. The subsequent intercourse between Boniface and the agency is summarized below:
Request, in Initial Determination