Calvin Alexander v. Transportation Security Administration

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-14455
Non-Argument Calendar
________________________
Agency No. TSA 140866
CALVIN ALEXANDER,
Petitioner-Appellant,
versus
TRANSPORTATION SECURITY ADMINISTRATION,
Respondent-Appellee.
________________________
Petition for Review of a Decision of the
Transportation Security Administration
________________________
(August 30, 2021)
Before JORDAN, NEWSOM and DUBINA, Circuit Judges.
PER CURIAM:
USCA11 Case: 20-14455 Date Filed: 08/30/2021 Page: 1 of 9

-- 1 of 9 --

2
Petitioner/Appellant Calvin Alexander petitions for review of the
Transportation Security Administration’s (“TSA”) determination that Alexander is
ineligible to serve as a flight crew member due to two disqualifying criminal
convictions. See 49 U.S.C. § 44936(b)(1)(B)(xiv)(V) (prohibiting air carriers from
employing individuals who have committed a felony involving dishonesty, fraud,
or misrepresentation within the last 10 years). On petition for review, Alexander
contends that the TSA’s determination violates his due process rights and that the
statute upon which the TSA relied to disqualify him is unconstitutionally vague.
After reading the parties’ briefs and reviewing the record, we deny the petition for
review.
I.
Alexander is a commercial pilot who, in June 2012, pled guilty to knowingly
and willfully making false statements regarding his birth date on his application for
a pilot certificate, in violation of 18 U.S.C. § 1001, and knowingly and willfully
using and attempting to use a passport obtained by reason of a false statement, in
violation of 18 U.S.C. § 1542. Although the offenses would disqualify him from
serving as a flight crew member, these offenses did not appear in the criminal
history record checks provided to the TSA; thus, the TSA inadvertently deemed
him eligible as a flight crew member.
USCA11 Case: 20-14455 Date Filed: 08/30/2021 Page: 2 of 9

-- 2 of 9 --

3
In September 2019, Alexander applied to serve as a flight crew member with
the private charter operator Kalitta Air. TSA performed a criminal history record
check and discovered Alexander’s prior convictions. TSA erroneously concluded
that the convictions were outside of the relevant disqualification time period and
approved his application. The TSA realized its mistake in June 2020 when
Alexander renewed his application to serve as a flight crew member with Ace
Aviation Service Corporation, a Twelve-Five operator (“Ace Aviation”). The TSA
sent Alexander a preliminary determination of ineligibility on June 9, 2020,
explaining that he might be ineligible to serve as a flight crew member for Ace
Aviation because of his criminal history. The TSA provided Alexander with
information regarding the appeals process, stated that he could request pertinent
materials on which the TSA based its preliminary determination, and informed him
that he should reply within 60 days or request an extension of time to reply. The
TSA also informed Alexander that he could not request a waiver because the
criminal history standard is not waivable. Alexander requested an appeal of the
preliminary determination, an extension of time, the pertinent materials, and a
waiver.
On August 10, 2020, the TSA issued a similar preliminary determination of
ineligibility in connection with Alexander’s employment with Kalitta Air. In the
determination letter, the TSA provided the same information it provided in the
USCA11 Case: 20-14455 Date Filed: 08/30/2021 Page: 3 of 9

-- 3 of 9 --

4
preliminary determination regarding Alexander’s employment with Ace Aviation.
The TSA also granted Alexander’s request for an extension of time in connection
with his appeal of the agency’s June 2020 preliminary determination and enclosed
the requested documents that TSA reviewed in making its eligibility determination.
Alexander appealed both preliminary determinations.
In September 2020, the TSA issued a final determination of ineligibility,
informing Alexander that it would notify both Ace Aviation and Kalitta Air that he
was not eligible to serve as a flight crew member. The agency stated that it had
reviewed the preliminary determination, the appeal request and the supporting
documentation, and confirmed that Alexander was ineligible to serve as a flight
crew member. The agency stated that individuals who have been convicted of a
felony involving dishonesty, fraud, or misrepresentation are ineligible to serve as
flight crew members onboard flights covered by the Twelve-Five program and the
Private Charter program for 10 years following the date of conviction, pursuant to
49 U.S.C. § 44936(b)(1)(B)(xiv)(V) and 49 C.F.R. § 1544.230(b). The agency
acknowledged that the prior determinations of eligibility were erroneous but
reiterated that convictions for a disqualifying criminal offense within 10 years of
the flight member’s application cannot be waived. The agency informed
Alexander that his convictions will cease to be disqualifying on June 27, 2022.
USCA11 Case: 20-14455 Date Filed: 08/30/2021 Page: 4 of 9

-- 4 of 9 --

5
Alexander petitioned for review of the TSA’s final determination with this
court. See 49 U.S.C. § 46110. On April 26, 2021, Alexander simultaneously filed
his initial brief and a motion to stay the agency’s decision pending resolution of the
petition, and the government opposed the motion. This court denied the motion on
June 29, 2021.
II.
An agency action is entitled to great deference. “Under the Administrative
Procedure Act, a court shall set aside an action of an administrative agency where
it is arbitrary, capricious, or an abuse of discretion.” Preserve Endangered Species
Areas of Cobb’s History Inc. v. United States Army Corps of Eng’r, 87 F.3d 1242,
1246 (11th Cir. 1996) (citing 5 U.S.C. § 706(2)(A)). We review de novo legal
issues, including claims of due process violations and allegations that a statute is
unconstitutionally vague. See Schwarz v. Kogan, 132 F.3d 1387, 1390 (11th Cir.
1998) (reviewing whether state bar rule violates due process); Mason v. Florida
Bar, 208 F.3d 952, 955 (11th Cir. 2000) (reviewing the constitutionality of a
statute).
III.
A. Due Process
Alexander claims that the TSA violated his procedural due process rights
under the Fifth Amendment because the agency did not provide him notice and an
USCA11 Case: 20-14455 Date Filed: 08/30/2021 Page: 5 of 9

-- 5 of 9 --

6
opportunity to be heard before making its final ineligibility determination. Our
review of the record demonstrates to us that this claim is without merit.
“The fundamental requirement of due process is the opportunity to be heard
at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S.
319, 333, 96 S. Ct. 893, 902 (1976) (quotation marks omitted). Due Process “is
not a technical conception with a fixed content,” id. at 334, 96 S. Ct. at 902, but
rather, is “flexible and calls for such procedural protections as the particular
situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600
(1972). Under the Mathews balancing test, a court evaluates (1) “the private
interest that will be affected by the official action”; (2) “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 (3) “the Government’s
interest, including the function involved and the fiscal and administrative burdens
that the additional or substitute procedural requirement would entail.” Mathews,
424 U.S. at 335, 96 S. Ct. at 903.
In issuing its two preliminary determinations of eligibility, the TSA provided
Alexander with full notice that the agency had identified two disqualifying
convictions in his criminal history report. Although the TSA informed Alexander
that it could not waive the federal eligibility requirements, it explained the appeal
process to Alexander. The TSA also provided Alexander an opportunity to obtain
USCA11 Case: 20-14455 Date Filed: 08/30/2021 Page: 6 of 9

-- 6 of 9 --

7
the materials upon which the TSA relied in making its determination, to correct
any possible errors in his criminal history report with the FBI directly, and to
submit additional information to the TSA. Alexander availed himself of the
agency’s appeals process: he retained counsel, requested an extension of time to
respond, requested and obtained the criminal history record check reports, and
submitted a written request for waiver. Thus, no further process was due
Alexander regarding his flight crew member eligibility. See e.g. Concepcion v.
TSA, 709 F. App’x 876, 879 (9th Cir. 2017) (agency complied with due process
where it provided “written notice of its initial decision, invited [plaintiff] 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”).
The record demonstrates that Alexander received all the due process
required; thus, we deny the petition for review on this ground.
B. Vagueness
Alexander argues that the statute upon which the TSA relied in making its
ineligibility determination, 49 U.S.C. § 33936(b)(1)(B)(xiv)(V), is
unconstitutionally vague. Specifically, Alexander claims that the statute is
unconstitutionally vague as applied to him because his convictions involved
mistaken falsehoods. We disagree and find no merit to Alexander’s contention.
USCA11 Case: 20-14455 Date Filed: 08/30/2021 Page: 7 of 9

-- 7 of 9 --

8
“To overcome a vagueness challenge, statutes must give the person of
ordinary intelligence a reasonable opportunity to know what is prohibited, so that
he may act accordingly and must provide explicit standards for those who apply
them.” Leib v. Hillsborough Cnty. Pub. Transp. Comm’n, 558 F.3d 1301, 1310
(internal quotation marks omitted). The Supreme Court has “expressed greater
tolerance of enactments with civil rather than criminal penalties because the
consequences of imprecision are qualitatively less severe.” Vill. of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498, 102 S. Ct. 1186,
1193 (1982). Courts will find a civil statute unconstitutionally vague if “it is so
indefinite as really to be no rule or standard at all.” Leib, 558 F.3d at 1310
(internal quotation marks omitted).
We conclude that the statute at issue here is unambiguous. It prohibits “an
air carrier” from “employ[ing] . . . an individual [with unescorted access to aircraft
or certain secured areas of airports]” if an investigation “establish[es] that, in the
10-year period ending on the date of the investigation, the individual was convicted
. . . of . . . a felony involving . . . dishonesty, fraud, or misrepresentation.” 49
U.S.C. § 44936(b)(1)(B)(xiv)(V). The statute clearly puts both the ordinary person
and an air carrier on notice that certain felony offenses disqualify prospective
employees from certain jobs for a ten-year period following the date of conviction.
See Leib, 558 F.3d at 1310.
USCA11 Case: 20-14455 Date Filed: 08/30/2021 Page: 8 of 9

-- 8 of 9 --

9
Alexander contends that the statute is vague as applied to him because there
was nothing particularly material about his alleged falsehood. Alexander claims
that the conduct underlying his two convictions, falsifying and misrepresenting his
age on federal forms, did not make him a security risk to the TSA and did not pose
a threat to civil aviation. This contention is insufficient to render the statute
unconstitutionally vague. The statute puts a reasonable person on notice of the
conduct it prohibits.
For the aforementioned reasons, we deny Alexander’s petition for review of
the TSA’s final determination of ineligibility.
PETITION FOR REVIEW DENIED.
USCA11 Case: 20-14455 Date Filed: 08/30/2021 Page: 9 of 9

-- 9 of 9 --