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Fairness and the Adjudicatory Process:

Balancing the Rights of Individuals Versus the Rights of Society in Matters of National Security

Airplane pilots are licensed by the Federal Aviation Administration (FAA). The Administrator of the FAA is statutorily authorized to modify or revoke a pilot's license if he/she determines that "safety in air commerce or air transportation and the public interest require that action."

Following the terrorists' attacks on September 11, 2001, the FAA adopted new rules governing the revocation of pilots' licenses in cases involving national security. Under the regulations, which were promulgated pursuant to section 553 of the Administrative Procedure Act (APA), the Administrator of the FAA may revoke the license of any pilot when the Administrator determines the pilot poses a threat to national security.

The revocation can then be considered by an Administrative Law Judge (ALJ) assigned to the FAA. In that proceeding, the Administrator may present the ALJ with a sealed file containing evidence that cannot be revealed openly because of national security issues. The pilot and his/her representative will not get to see the evidence in the sealed file. The attorney for the pilot may cross-examine witnesses i and he/she may also present evidence on behalf the client.

Pursuant to these rules, the Administrator proposes to revoke the license of Mohammed Khan, a pilot for one of the major airlines which is headquartered in the U.S. The Administrator states that he/she has determined that Khan poses a threat to national security. In the proceeding before the ALJ, the Administrator states that here is no evidence that can be presented openly.

The Administrator gives the ALJ the government's evidence in a sealed file pursuant to the rules. Khan does not get to see the evidence in the sealed file. Khan presents testimony from himself and other witnesses that he is an upstanding, patriotic U.S. citizen who served his country honorably by flying fighter jets the First Iraq War. Khan was honorably discharged from the Air Force and presently receives Veteran's Benefits from an injury he sustained during a combat mission.

After hearing and reviewing the evidence, the administrative law judges (ALJ) rules in favor of the FAA. The ALJ's ruling states, "the evidence in the sealed file shows that Mr. Khan is a threat to national security and that, if allowed to retain his pilot's license, he might participate in terrorists' actions involving airplanes/jets." Khan feels that he has been aggrieved and the basis of the sanctions imposed against him are unsubstantiated.

Given these facts, please address the following questions:

1. Has Mr. Khan been afforded his due process and/or equal protection rights in accordance with the Constitution?

2. Could an argument be made that Khan's rights were violated by the FAA because he had been denied an opportunity to defend himself in a public trial whereby he could rebut the charges against him and provide evidence and witnesses on his behalf?

3. Based on the limited information provided in this scenario, did the FAA adhere to the procedural rules stipulated by statutes and agency rules? Did the FAA acting in an ultra vires manner?

4. What if the evidence upon which the FAA relied in making its decision had been "illegally obtained" (Fourth Amendment violation of an unreasonable search and seizure or was based on hearsay evidence

5. Can Kahn and his attorney file a petition under the Freedom of Information Act (FIOA) and/or the Privacy Act seeking copies of information about him that are kept in agency files?

6. Finally, one function of the courts in the administrative state is to thwart the "abuse of power" by administrative agencies. However, federal courts tend to defer to administrative expertise regarding policy.

Based on your readings of judicial review of administrative action, how likely or unlikely is it that a federal court would overrule the decision of the FAA to suspend Mr. Kahn's license (and thereby deny him his livelihood)?