Frontier Airlines v. Department of Homeland Security

── Frontier Airlines v. Department of Homeland Security ── Court: Court of Appeals for the Tenth Circuit Date: April 20, 2026 Category: General Appellate Case: 25-9523 Document: 38-1 Date Filed: 04/20/2026 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS April 20, 2026 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________ FRONTIER AIRLINES, INC., Petitioner, v. No. 25-9523 DEPARTMENT OF HOMELAND SECURITY, Respondent. _________________________________ Petition for Review from the Department of Homeland Security _________________________________ Adam P. Feinberg of Miller & Chevalier Chartered, Washington, DC, for Petitioner. Weili J. Shaw, Attorney, Appellate Division (Brett A. Shumate, Assistant Attorney General, and Daniel Tenny, Attorney, Appellate Division, with him on the briefs) U.S. Department of Justice, Washington, D.C., for Respondent. _________________________________ Before HARTZ, KELLY, and TYMKOVICH, Circuit Judges. _________________________________ KELLY, Circuit Judge. _________________________________ Petitioner-Appellant Frontier Airlines, Inc. (Frontier) seeks review of a final order of the Transportation and Security Administration (TSA) upholding TSA’s determination that Frontier owed TSA for unpaid fees required to be remitted under  Appellate Case: 25-9523 Document: 38-1 Date Filed: 04/20/2026 Page: 2 49 U.S.C. § 44940. Exercising our jurisdiction under 49 U.S.C. § 46110(a), we deny the petition for review. Background A. TSA Security Service Fee. Under the Aviation and Transportation Security Act (ATSA), Pub. L. No. 107- 71, 115 Stat. 597 (2001) (codified in scattered sections of 49 U.S.C.), TSA must impose a “security service fee,” also known as the “September 11th security fee,” on travelers to defray the costs of TSA’s security services. 1 49 U.S.C. § 44940(a)(1). To aid in implementing the statutory scheme, TSA enacted related regulations. 49 C.F.R. Part 1510. The statutory and regulatory schemes task airlines with collecting security service fees from passengers and then remitting those fees to TSA. We discuss relevant statutory and regulatory provisions below. The ATSA states that the Administrator of the TSA “shall impose a uniform fee, on passengers of air carriers . . . in air transportation and intrastate air transportation originating at airports in the United States, to pay for . . . civil aviation security services[.]” 2 49 U.S.C. § 44940(a)(1). Air transportation involves “the transportation by a common carrier of passengers or property[,]” by aircraft, “for 1 The fee is currently set at $5.60 per one-way trip and cannot exceed $11.20 per round trip. 49 U.S.C. § 44940(c)(1); 49 C.F.R. § 1510.5(a). 2 An “air carrier” is a “citizen of the United States undertaking by any means, directly or indirectly, to provide air transportation.” 49 U.S.C. § 40102(a)(2). We use the term “air carrier” and “airline” interchangeably. 2  Appellate Case: 25-9523 Document: 38-1 Date Filed: 04/20/2026 Page: 3 compensation[.]” 3 Id. § 40102(a)(5), (23), (25), (27). Chapter 49 does not define “passenger.” The services funded by the fee include, inter alia, salaries of TSA personnel and federal law enforcement who pr