                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAR 30 2015

                                                                          MOLLY C. DWYER, CLERK
LEONARD CONCEPCION,                              No. 13-70998               U.S. COURT OF APPEALS



              Petitioner,                        TSA No. 37649

  v.

TRANSPORTATION SECURITY
ADMINISTRATION,                                  ORDER*

              Respondent.


                     On Petition for Review of an Order of the
                      Transportation Security Administration

                     Argued and Submitted February 12, 2015
                              Pasadena, California

Before: GRABER and WARDLAW, Circuit Judges, and MOLLOY,** Senior
District Judge.

       Leonard Concepcion petitions for review of the Transportation Security

Administration’s (“TSA”) final order disqualifying him from serving as a

flightcrew member pursuant to 49 U.S.C. § 44936(b)(1)(B)(xiv)(V) and 49 C.F.R.


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Donald W. Molloy, Senior United States District
Judge for the District of Montana, sitting by designation.
§ 1544.229(d)(26)(v), (28). We have jurisdiction pursuant to 49 U.S.C.

§ 46110(a), and we grant the petition and remand to the TSA for further

proceedings.

      The TSA disqualified Petitioner after concluding that his conviction for

“[c]onspiracy to Launder Money is a crime of dishonesty, fraud, or

misrepresentation under [49 C.F.R. § 1544.229(d)(26)(v), (28)].” The final order

fails to clarify whether the TSA applied the categorical approach in determining

whether Petitioner’s conviction qualified as a crime involving dishonesty, or

whether the TSA instead relied on facts underlying Petitioner’s conviction. Either

way, the petition must be granted.

      In Moncrieffe v. Holder, 133 S. Ct. 1678, 1690 (2013), the Supreme Court

explained that, when “the relevant . . . provision[] ask[s] what the [petitioner] was

‘convicted of,’ not what he did, . . . the inquiry in [agency] proceedings is limited

accordingly.” In other words, when Congress attaches consequences to the fact

that an individual was “convicted of” a certain type of offense—here, a crime

involving dishonesty—agencies are to “look not to the facts of the particular prior

case, but instead to whether the . . . statute defining the crime of conviction

categorically fits within the ‘generic’ . . . definition of a [crime involving

dishonesty].” Id. at 1684 (internal quotation marks omitted). Like the statute in


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Moncrieffe, 49 U.S.C. § 44936(b)(1)(B)(xiv)(V) attaches consequences to the fact

that an “individual was convicted (or found not guilty by reason of insanity) of . . .

a felony involving . . . dishonesty.” (Emphasis added.) Accordingly, to the extent

that the TSA considered the underlying facts of Petitioner’s conviction rather than

determining whether the particular offense underlying the conspiracy conviction

categorically involves dishonesty under § 44936(b)(1)(B)(xiv)(V), the TSA applied

the wrong legal framework and the petition must be granted. See Moncrieffe, 133

S. Ct. at 1684, 1690. On remand, the TSA may not consider the facts underlying

Petitioner’s conviction for purposes of determining whether Petitioner is

disqualified under § 44936(b)(1)(B)(xiv)(V).

      In its brief, the TSA argues that it may inquire into the circumstances

underlying Petitioner’s conviction pursuant to 49 U.S.C. § 44936(b)(2), which

authorizes the Under Secretary of the TSA to “specify other factors that are

sufficient to prohibit the employment of an individual [as a flight crew member].”

But because the agency did not cite that provision in its decision, we express no

opinion on that question.

      Even assuming that the TSA applied the categorical approach, the petition

must be granted because it is not clear that the TSA considered the correct statute

of conviction. Petitioner was convicted of conspiring to launder money under 18


                                           3
U.S.C. § 1956(h) in violation of 18 U.S.C. § 1957(a). The TSA cited § 1956(h)

and concluded without explanation that conspiracy to commit money laundering

involves dishonesty. But the TSA never cited 18 U.S.C. § 1957(a) in its

preliminary disqualification letter, final order, or even in its internal

communications. Thus, it is unclear from the record whether the TSA was aware

that Petitioner was convicted under a money laundering statute that does not

require intent to conceal. Compare 18 U.S.C. § 1956(a)(1)(B)(i) (requiring

“know[ledge] that the transaction is designed . . . to conceal or disguise the . . .

proceeds of specified unlawful activity”) with § 1957(a) (requiring knowledge that

the transaction involves the proceeds of unlawful activity but not that the

transaction is designed to conceal the illegal source of those proceeds).

      Thus, the TSA’s final order is ambiguous for two reasons. It is unclear

because it does not specify whether the agency applied a categorical or

circumstances-specific approach, and it is incomplete because it does not specify

which money laundering statute, if any, the agency considered. We may not

review an ambiguous, unclear, and incomplete final order. See Pinto v. Massanari,

249 F.3d 840, 847 (9th Cir. 2001) (“Although we can affirm the judgment of a

district court on any ground supported by the record, we cannot affirm the decision




                                            4
of an agency on a ground that the agency did not invoke in making its decision[.]”

(citation omitted)).

      In granting Concepcion’s petition, we vacate the TSA’s final order pursuant

to 49 U.S.C. § 46110(c). We do not, however, set aside the TSA’s January 10,

2013, initial decision prohibiting aircraft operators from assigning Petitioner to

flightcrew duties under 49 C.F.R. § 1544.230(i)(2). We remand for the TSA to

respond to Petitioner’s January 28, 2013 administrative appeal. On remand, the

TSA must clearly specify whether it is (1) applying the categorical approach

pursuant to § 44936(b)(1)(B)(xiv)(V), and, if so, the TSA must explain exactly

how it analyzes the crime of conviction under that approach; or (2) considering the

underlying facts pursuant to some other statutory provision, and, if so, the TSA

must explain why it has authority to do so and how it analyzes those facts.1

      Petition GRANTED; VACATED and REMANDED. Each party shall

bear its own costs on appeal.

      IT IS SO ORDERED.




      1
        In light of this remand, we need not decide the other issues raised in this
petition, including whether the TSA violated Petitioner’s due process rights.

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