agency interpretation of its own regulation “is to be accorded deference unless it .is clearly contrary to the plain and sensible meaning of the regulation”
How later courts described this case
- agency interpretation of its own regulation “is to be accorded deference unless it .is clearly contrary to the plain and sensible meaning of the regulation”
Written by the judges who cited it.
The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 12, 2013 Decided July 19, 2013
No. 12-1140
STEPHEN L. TAYLOR,
PETITIONER
v.
MICHAEL P. HUERTA, ADMINISTRATOR, FEDERAL AVIATION
ADMINISTRATION AND NATIONAL TRANSPORTATION SAFETY
BOARD,
RESPONDENTS
On Petition for Review of an Order
of the National Transportation Safety Board
Timothy V. Anderson argued the cause and filed the brief for
petitioner.
Amanda K. Bruchs, Attorney, Federal Aviation
Administration, argued the cause and filed the brief for
respondents.
Before: GARLAND, Chief Judge, GRIFFITH, Circuit Judge,
and GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge GARLAND.
2
GARLAND, Chief Judge: The Federal Aviation
Administration (FAA) revoked Stephen Taylor’s pilot and
medical certificates because he falsely stated that he had never
been arrested for drunk driving. An administrative law judge
upheld the revocation order, and the National Transportation
Safety Board (NTSB) affirmed. Taylor now petitions this court
for review. For the reasons stated below, we deny his petition.
Although this case would not otherwise warrant a published
disposition, the number of similar cases that have recently come
before this court1 convince us of the need to provide clear
guidance to applicants for FAA medical certificates. See D.C.
CIR. R. 36(c)(2)(G).
I
In June 2011, Taylor submitted an application for a medical
certificate using the FAA’s online system, MedXPress. See
FAA MEDXPRESS, at J.A. 24-26. The application required
Taylor to answer a series of questions. Question 18v asked
whether he had a history of, among other things, “any arrest(s)
and/or conviction(s) involving driving while intoxicated.” Id. at
25. Taylor answered “no.” In fact, he had been arrested by the
California Highway Patrol (although not convicted) for drunk
driving in 2008.
On September 12, 2011, the FAA notified Taylor that it had
learned of his “alcohol-related motor vehicle incident” and was
conducting an investigation into whether he had violated 14
C.F.R. § 67.403(a)(1), which forbids, among other things,
submitting an “intentionally false statement on any application
1
See, e.g., Porco v. Huerta, 472 Fed. App’x 2 (D.C. Cir. 2012);
Cooper v. NTSB, 660 F.3d 476 (D.C. Cir. 2011); Manin v. NTSB, 627
F.3d 1239 (D.C. Cir. 2011); Dillmon v. NTSB, 588 F.3d 1085 (D.C.
Cir. 2009); Singleton v. Babbitt, 588 F.3d 1078 (D.C. Cir. 2009).
3
for a medical certificate.” The FAA gave Taylor ten days in
which to submit evidence or written statements. On November
9, 2011, it issued an emergency order revoking Taylor’s pilot
and medical certificates.
Taylor appealed the order, and a hearing was held before an
NTSB administrative law judge (ALJ). At the hearing, Taylor
did not deny that he gave a false answer to Question 18v. He
claimed, however, that he did so only because he had failed to
read the question carefully. He testified that he did not realize
that Question 18v had been expanded, in the years since his
previous medical certificate application, to include drunk-
driving arrests (as opposed to convictions). He thus clicked a
“button” on the application to “Set All Blank Items in 18a - y to
No” and then submitted the form without reading the text of the
questions. Huerta v. Taylor, NTSB Order No. EA-5611, 2012
WL 158766, at *9-10 (Jan. 9, 2012).
The ALJ did not find Taylor’s testimony credible. To the
contrary, he found it unbelievable that, “after having been
arrested[,] a pilot of [Taylor]’s experience[ and] intelligence,
would not read the form to determine if his arrest would in any
way affect the application.” Id. at *11. Moreover, the ALJ
agreed with the FAA that Taylor had violated § 67.403(a)(1),
even according to his own testimony. Under the FAA’s
established interpretation of the regulation, “where an airman
intentionally chooses not to carefully read the question for
which he is providing an answer that he certifies by his signature
to be true, a factfinder can infer ‘actual knowledge’ from a
willful disregard for truth or falsity.” Cooper v. NTSB, 660 F.3d
476, 484 (D.C. Cir. 2011). Accordingly, “[a] defense of
deliberate inattention fails where the applicant is attesting to
events about which he has actual knowledge.” Id.
4
The ALJ found that, in light of this standard, he “ha[d] to
agree with the [FAA]” that Taylor “hung himself” “through his
own testimony.” Taylor, 2012 WL 158766, at *10. The ALJ
thus agreed with the FAA that Taylor had violated the
regulation. Id. at *11. Further noting that he was required to
defer to the FAA’s choice of sanction -- here, revocation --
unless it was arbitrary, capricious, or otherwise not in
accordance with law, the ALJ affirmed the FAA’s emergency
revocation order in its entirety. Id. at *12.
On appeal from the ALJ’s decision, the NTSB affirmed. Id.
at *7. Taylor petitions this court for review of the NTSB’s
decision.
II
Our review of the NTSB’s order is “limited to determining
whether the Board’s decision is ‘arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law,’ 5 U.S.C.
§ 706(2)(A), understanding that the Board’s findings need only
be supported by substantial evidence, id. § 706(2)(E).” Cooper,
660 F.3d at 481; see Dickson v. NTSB, 639 F.3d 539, 542 (D.C.
Cir. 2011). The FAA’s interpretation of its regulation is “to be
accorded deference . . . unless it is clearly contrary to the plain
and sensible meaning of the regulation.” Cooper, 660 F.3d at
481 (internal quotation marks omitted); see Auer v. Robbins, 519
U.S. 452, 461 (1997).
1. The Board’s conclusion that Taylor’s behavior, by his
own description, constituted a violation of 14 C.F.R.
§ 67.403(a)(1) was a straightforward and correct application of
the regulation under the interpretation we affirmed in Cooper v.
NTSB. Under that interpretation, an intentional failure to
carefully read the questions before submitting answers is
sufficient to meet the regulation’s scienter requirement, because
5
such behavior amounts to a “willful disregard for truth or
falsity.” Cooper, 660 F.3d at 484. Indeed, the facts of Cooper
are virtually indistinguishable from the instant case. Taylor, like
Kenneth Cooper, answered “no” to Question 18v despite a prior
drunk-driving arrest; Taylor, like Cooper, claimed that he did
not know that the question’s scope had been expanded; Taylor,
like Cooper, said that he would not have given a false answer if
he had read the question; and -- most important -- Taylor, like
Cooper, admitted that he deliberately and voluntarily chose not
to read the questions before answering them. Compare Taylor,
2012 WL 158766, at *3, with Cooper, 660 F.3d at 480.
Taylor attempts to distinguish his case from Cooper by
noting that, unlike Cooper, he used the FAA’s online application
system, MedXPress, to submit his application. As a
convenience to applicants, MedXPress provides a button that
will “Set All Blank Items in 18a - y to No” if an applicant clicks
on it. Taylor argues that this apparently ordinary piece of user-
interface design “encourag[es] airmen not to read the questions”
and “entrap[s] airmen” by implicitly “down[-]grading the
importance of the questions.” Taylor Br. 13.
Despite Taylor’s melodramatic description of the button’s
significance, the reality is that it does not limit in any way the
ability of applicants to read the questions carefully. The button
does not obscure or hide the questions. To the contrary, the
questions appear on the same screen as the button, and they can
be read by anyone who can see the button. J.A. 25. The FAA’s
decision to provide this modest convenience, rather than
requiring MedXPress users to click “yes” or “no” for each
question individually, does not “entrap” applicants. Nor does
MedXPress “downgrade” the questions’ importance. It
expressly requires the applicant to certify that “all . . . answers
provided . . . on this application form are complete and true to
the best of [his or her] knowledge.” Id. at 26. And it
6
prominently highlights the possibility that false answers may
expose the applicant to substantial criminal liability. Id. There
is nothing about the application Taylor filled out that would
justify distinguishing his case from Cooper.2
2. Taylor further argues that the FAA revoked his
certificates without due process of law. His principal assertion
is that the version of the governing statute, 49 U.S.C.
§ 44709(d)(3), that was in effect at the time of the agency
proceedings in this case was unconstitutional. Taylor Br. 14.
At the time of the agency proceedings under review,
§ 44709(d)(3) provided that, in appeals of FAA revocation
orders, the NTSB “is bound by all validly adopted
interpretations of laws and regulations the [FAA] carries out and
of written agency policy guidance available to the public related
to sanctions to be imposed under this section unless the Board
finds an interpretation is arbitrary, capricious, or otherwise not
according to law.” 49 U.S.C. § 44709(d)(3) (2006).3 Taylor
argues that this requirement, combined with the NTSB’s
practice of deferring to the FAA’s application of its sanction
policies except where arbitrary, capricious, or otherwise not in
accordance with law, see Taylor, 2012 WL 158766, at *6-7,
reduced the ALJ to a “rubber stamp for the FAA’s decisions,”
2
At oral argument, Taylor also argued that Cooper was wrongly
decided, although he acknowledged that this panel is bound by it.
Oral Arg. Recording at 7:37-8:24.
3
The recently enacted Pilot’s Bill of Rights amended
§ 44709(d)(3) to remove the specific language that Taylor challenges.
See Pilot’s Bill of Rights, Pub. L. No. 112-153, § 2(c)(2), 126 Stat.
1159, 1161 (2012). The Pilot’s Bill of Rights was enacted after the
NTSB decision under review in this case, and Taylor concedes that the
amended provision does not apply retroactively. Oral Arg. Recording
4:05-4:40; see Taylor Br. 15.
7
Taylor Br. 17. In so doing, Taylor contends, the NTSB deprived
him of due process.
When all is said and done, Taylor’s argument amounts to a
claim that due process entitles him to de novo review of the
FAA’s choice of sanction, or at least to a more searching
standard of review than the one the Board applied here. But the
Board’s standard of review, which asks whether the FAA’s
action was “arbitrary, capricious, or otherwise not in accordance
with law,” is identical to the one that Article III courts routinely
apply in reviewing agency actions of all kinds under the
Administrative Procedure Act. See 5 U.S.C. § 706(2)(A).
Although this is a “highly deferential” standard, it does not, as
Taylor claims, reduce a reviewing body to “a mere rubber stamp
for agency decisions.” Lead Indus. Ass’n v. EPA, 647 F.2d
1130, 1145 (D.C. Cir. 1980). In reviewing FAA sanctions under
this standard, the NTSB “consider[s] aggravating and mitigating
factors” and “compare[s] factually similar cases” to determine
whether the FAA’s choice of sanction was appropriate. Taylor,
2012 WL 158766, at *6-7. It did both in Taylor’s case. Id. This
is neither “rubber-stamping” nor a violation of due process.
Nor is it uncommon for an adjudicative body to defer to the
reasonable legal interpretations of an agency clothed with
enforcement and rulemaking powers. See, e.g., Auer, 519 U.S.
at 461; Chevron, USA, Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 842-45 (1984); Sec’y of Labor v. Spartan Mining
Co., 415 F.3d 82, 83 (D.C. Cir. 2005) (citing Sec’y of Labor v.
Cannelton Indus., 867 F.2d 1432, 1435 (D.C. Cir. 1989)).
Indeed, the version of 49 U.S.C. § 44709(d)(3) that Taylor
challenges represented nothing more than an ordinary exercise
of Congress’ power “to decide the proper division of regulatory,
enforcement, and adjudicatory functions between agencies in a
split-enforcement regime,” Hinson v. NTSB, 57 F.3d 1144, 1147
n.1 (D.C. Cir. 1995) (citing Martin v. Occupational Safety &
8
Health Review Comm’n, 499 U.S. 144, 158 (1991)). Taylor
cites no authority, and presents no persuasive rationale, to
support his claim that due process requires more.
Taylor was given written notice and an opportunity to
respond before the FAA’s revocation order went into effect.
After the order was issued, he had a full hearing and an
opportunity to present his case before an ALJ, as well as an
opportunity to appeal to the full Board. He then had the right to
petition this court for review of the Board’s order, which he did.
Although we appreciate the gravity of Taylor’s personal and
professional interest in his lost certificates, see Mathews v.
Eldridge, 424 U.S. 319, 334-35 (1976), there can be no dispute
that he was accorded due process of law.4
III
For the foregoing reasons, the petition for review is
Denied.
4
Taylor further suggests that the interpretation of 14 C.F.R.
§ 67.403(a)(1) that this Circuit upheld in Cooper violates the Due
Process Clause by effectively imposing a “strict liability standard.”
Taylor Br. 22. This misconstrues the standard. Disallowing a defense
on the basis of deliberate inattention to the questions asked -- behavior
that exhibits a willful disregard for the truth or falsity of the answers
given, Cooper, 660 F.3d at 484 -- is very different from holding
applicants strictly liable for erroneous answers.