Ramaprakash v. Federal Aviation Administration

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 18, 2003 Decided October 21, 2003

No. 02-1283

TILAK S. RAMAPRAKASH,

PETITIONER

v.

FEDERAL AVIATION ADMINISTRATION AND

NATIONAL TRANSPORTATION SAFETY BOARD,

RESPONDENTS

On Petition for Review of an Order of the

National Transportation Safety Board

Mark T. McDermott argued the cause for petitioner. With

him on the briefs was Peter J. Wiernicki.

Kathleen A. Yodice was on the brief for amicus curiae

Aircraft Owners and Pilots Association.

James A. Barry, Attorney, Federal Aviation Administra-

tion, argued the cause for respondents. With him on the

briefs was Peter J. Lynch, Assistant Chief Counsel.

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

2

Before: ROGERS and ROBERTS, Circuit Judges, and

SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge ROBERTS.

ROBERTS, Circuit Judge: Learned Hand once remarked

that agencies tend to ‘‘fall into grooves, TTT and when they

get into grooves, then God save you to get them out.’’1 Judge

Hand never met the National Transportation Safety Board.

In this case, we grant the petition for review because the

Board has failed adequately to explain its departures from its

own precedent in no fewer than three significant respects.

I.

Petitioner Tilak Ramaprakash was arrested for driving

under the influence of alcohol in Doraville, Georgia, in De-

cember 1996, and was convicted of that offense on February

25, 1997. As a licensed pilot, he was subject to Federal

Aviation Regulation (FAR) § 61.15 (codified at 14 C.F.R.

§ 61.15 (2003)), which requires pilots to provide the Federal

Aviation Administration (FAA) with a written report of any

‘‘motor vehicle action’’ within sixty days. Id. § 61.15(e). The

regulation defines ‘‘motor vehicle action’’ to include a ‘‘convic-

tion TTT for the violation of any Federal or State statute

relating to the operation of a motor vehicle while intoxicated

by alcohol or a drug, while impaired by alcohol or a drug, or

while under the influence of alcohol or a drug.’’ Id.

§ 61.15(c)(1).

Ramaprakash admits that he did not file the required

report. His violation of FAR § 61.15(e) occurred on April 26,

1997, when the sixty-day period for filing the report ended.

Twelve months later, on April 22, 1998, the FAA formally

initiated administrative proceedings to suspend his pilot’s

certificate by issuing a Notice of Proposed Certificate Action

1 Hearings to Study Senate Concurrent Resolution 21 Before a

Subcommittee of the Senate Committee on Labor and Public Wel-

fare, 82nd Cong., 1st Sess. 224 (1951) (quoted in Henry J. Friendly,

Benchmarks 106 (1967)).

3

(NOPCA). The NOPCA proposed to suspend his certificate

for thirty days in accordance with FAR § 61.15(f)(2), which

provides that a violation of § 61.15(e) is grounds for ‘‘[s]us-

pension or revocation of any certificate’’ issued under FAR

Part 61. In February 1999, the FAA ordered that Ramapra-

kash’s license be suspended for thirty days. He appealed to

the National Transportation Safety Board (NTSB or Board).

Before the NTSB, Ramaprakash conceded that he had

committed a FAR violation, but moved for dismissal of the

FAA’s action against him in light of the Board’s ‘‘stale

complaint rule’’ — Rule 33 of the NTSB’s Rules of Practice in

Air Safety Proceedings, codified at 49 C.F.R. § 821.33 (2002).

That rule provides, in pertinent part:

Where the complaint states allegations of offenses

which occurred more than 6 months prior to the

[FAA] Administrator’s advising respondent as to

reasons for proposed [certificate] action TTT, respon-

dent may move to dismiss such allegations pursuant

to the following provisions:

(a) In those cases where a complaint does not

allege lack of qualification of the certificate holder:

(1) The Administrator shall be required to show

by answer filed within 15 days of service of the

motion that good cause existed for the delay, or that

the imposition of a sanction is warranted in the

public interest, notwithstanding the delay or the

reasons therefor.

(2) If the Administrator does not establish good

cause for the delay or for imposition of a sanction

notwithstanding the delay, the law judge shall dis-

miss the stale allegations and proceed to adjudicate

only the remaining portion, if any, of the complaint.2

2 Rule 33 provides a separate procedure for cases in which the

FAA alleges a lack of qualification — typically a more serious

charge. Even if some or all of the allegations in the complaint are

stale, the case may proceed if the administrative law judge ‘‘deems

that an issue of lack of qualification would be presented by any or

all of the allegations, if true.’’ 49 C.F.R. § 821.33(b)(2). See

4

It was undisputed that the FAA had failed to meet Rule 33’s

six-month deadline: the NOPCA was issued nearly one year

after Ramaprakash’s FAR violation. The question before the

NTSB was whether ‘‘good cause existed for the delay.’’

Answering that question requires some understanding of

how the FAA monitors compliance with the FAR reporting

requirement. One way it does so is by compiling and periodi-

cally sending to the National Driver Register (NDR) lists of

individuals who seek to obtain or renew their medical certifi-

cations. The NDR then matches the names against its own

records, which contain information on individuals whose driv-

ers’ licenses have been denied, revoked, suspended, or can-

celed for cause, or who have been convicted of serious driving

offenses. See 49 U.S.C. § 30304(a). The information in the

NDR is not detailed enough to show whether the offense

involved is one for which a report must be filed under FAR

§ 61.15; when the FAA receives a computer tape from the

NDR with a list of the names that have matched an NDR

record, an FAA investigator must then check the National

Law Enforcement Telecommunications System (NLETS) da-

tabase for details of each airman’s motor vehicle incident. If

the NLETS data show that the incident was a reportable

offense, the FAA investigator then searches the agency’s

records to determine whether the airman filed the required

report.

A detailed affidavit from FAA official Mark Sweeney de-

scribed the course of the FAA’s investigation of Ramapra-

kash’s violation. On May 16, 1997, the FAA received from

the NDR a computer tape indicating a motor vehicle incident

in Georgia involving Ramaprakash. The tape was routed to

an FAA investigator in May 1997, but apparently no action

was taken until September 1997, when the investigator was

Administrator v. Stewart, 2 NTSB 1140, 1142 (1974) (‘‘If the

complaint involves the qualifications of the airman, then the safety

implications are deemed sufficiently compelling to override the

purposes of the rule’’).

5

transferred to a new FAA assignment. A second investigator

took possession of the tape, but this investigator too was

reassigned in October 1997, and the tape was passed on to a

third investigator. After working through a backlog of prior

tapes, this investigator turned to the tape that included

Ramaprakash’s record and conducted the NLETS query on

February 4, 1998. The NLETS database revealed that the

incident disclosed on the NDR was in fact a DUI conviction,

and by February 10, 1998, the investigator had searched FAA

records and learned that Ramaprakash had failed to report it.

See Sweeney Aff. at 2–3, JA 101–02.

The Board, by a 3–2 vote, concluded that the FAA had

shown good cause for the delay in issuing the NOPCA. The

Board stated that under Rule 33, ‘‘the Administrator must

show that good cause existed for the delay in discovering the

offense and that, upon discovery, she investigated the matter

with due diligence.’’ Administrator v. Ramaprakash, NTSB

Order No. EA–4947 (February 7, 2002), at 5, available at

2002 WL 226617 (Order Denying Appeal). The NTSB fur-

ther found that the FAA ‘‘did not have an indication of a

possible section 61.15(e) violation until [the] NLETS query

indicated that the NDR listing was in reference to a reporta-

ble alcohol-related motor vehicle action,’’ and that the FAA

had been sufficiently diligent in proceeding to issue the

NOPCA after receiving the NLETS information. Id. at 6.

The Board then observed that there was no evidence that the

delay had affected Ramaprakash’s ability to defend against

the FAA complaint, and concluded that the FAA was entitled

to some — but not unlimited — leeway in prioritizing its

enforcement efforts. Id. at 7, 8. In dissent, Member Goglia

(joined by Member Hammerschmidt) rejected the majority’s

contention that Rule 33 allowed a balancing of the FAA’s

interest in prioritizing enforcement against pilots’ need for

timely prosecution: ‘‘There either ‘is’ a stale complaint rule,

or there ‘is not.’ ’’ Id. at 9.

Ramaprakash sought reconsideration, but the Board re-

fused to reconsider its decision. In its brief order, the Board

stated:

6

As we explained in our original decision, we decline

to extend the stale complaint rule under these cir-

cumstances, i.e., where the ‘‘delay’’ is non-prejudicial

to respondent’s ability to defend against the charges

TTT and accrued, essentially, because the Adminis-

trator chose to delegate her resources in a manner

that would not immediately, but eventually, detect

airmen’s non-compliance with a mandatory reporting

requirement that respondent admits to not adhering

to.

Administrator v. Ramaprakash, NTSB Order No. EA–4984

(July 16, 2002), at 1, available at 2002 WL 1586404 (Order

Denying Reconsideration). Member Goglia, again joined by

Member Hammerschmidt, dissented. Id. at 2–6. This peti-

tion for review followed.

II.

Under the Administrative Procedure Act (APA), a court

may set aside agency action found to be ‘‘arbitrary, capri-

cious, an abuse of discretion, or otherwise not in accordance

with law.’’ 5 U.S.C. § 706(2)(A). Our review under the APA

is highly deferential, but agency action is arbitrary and

capricious if it departs from agency precedent without expla-

nation. Agencies are free to change course as their expertise

and experience may suggest or require, but when they do so

they must provide a ‘‘reasoned analysis indicating that prior

policies and standards are being deliberately changed, not

casually ignored.’’ Greater Boston Television Corp. v. FCC,

444 F.2d 841, 852 (D.C. Cir. 1970); see also Philadelphia Gas

Works v. FERC, 989 F.2d 1246, 1250–51 (D.C. Cir. 1993). An

agency’s failure to come to grips with conflicting precedent

constitutes ‘‘an inexcusable departure from the essential re-

quirement of reasoned decision making.’’ Columbia Broad.

Sys. v. FCC, 454 F.2d 1018, 1027 (D.C. Cir. 1971).

In the orders challenged here, the Board deviated from its

precedent in three respects. The first is in the NTSB’s

answer to the question whether FAA delays should be more

readily excused if the alleged FAR violation is relatively

7

serious. In Administrator v. U.S. Jet, Inc., 7 NTSB 246

(1990) — a case involving an alleged lack of qualification —

the Board unequivocally rejected the argument that it should

bend its procedural rules because the alleged violation was

serious. In dismissing the FAA’s appeal on the grounds that

the FAA had failed to show ‘‘good cause’’ for its failure to

meet the prescribed deadline for filing its appeal brief, the

NTSB stated:

We decline the invitation to carve out for the Admin-

istrator’s benefit alone a public interest exception to

our policy of dismissing appeals that are not prose-

cuted with due diligence.

We recognize that even cases involving important

air safety issues can fall victim to procedural non-

feasanceTTTT However, TTT we think the public

interest and basic principles of fairness favor rules

that treat litigants equally over those that, based on

presumptions flowing from the seriousness of alleged

conduct, create procedural advantage for one party.

That circumstance TTT counsels against both the

necessity and the propriety of modifying the good

cause standard in a way that, in effect, would allow

the Administrator to escape responsibility for com-

pliance with rules of practice we strictly apply to all

others.

7 NTSB at 246–47.

In a nearly identical case four years later, the Board again

refused to find that the public interest in air safety could

create an exception to the Board’s requirement that good

cause be shown to excuse a delay:

[P]rocedural decisions should [not] be based on post-

default generalities or presumptions about the im-

portance or the desirability of reaching the merits of

a case a party ha[s] not handled in accordance with

applicable rules. TTT

We continue to believe that requiring parties to

exercise a high level of diligence in the prosecution

8

of their appeals to us is the best way to ensure that

all cases, and especially those that may involve

extraordinary air safety concerns, will be heard by

the full Board.

Petition of White, NTSB Order No. EA–4100, 1994 WL

66062, at *1–2.

In its Order Denying Appeal in this case, however, the

NTSB considered the nature and seriousness of Ramapra-

kash’s FAR violation in determining whether the FAA had

shown good cause. The Board emphasized that it would be

‘‘particularly difficult to justify’’ applying the stale complaint

rule to bar the FAA’s complaint, ‘‘given the importance to air

safety of monitoring the alcohol-related infractions of certifi-

cated airmen, and the likelihood that they would go undetect-

ed but for the self-disclosure requirements of FAR section

61.15(e).’’ Order Denying Appeal at 7.

This suggestion that the Board is more willing to find good

cause in cases that have serious implications for air safety is

inconsistent with U.S. Jet and White, and the Board did not

attempt to explain that departure from precedent. Nor did

the Board explain how its statement comports with the text of

Rule 33. The rule allows a stale complaint to escape dismis-

sal if the FAA can show good cause for the delay, but it also

states that a stale complaint can survive if the FAA can show

that ‘‘the imposition of a sanction is warranted in the public

interest, notwithstanding the delay or the reasons therefor.’’

49 C.F.R. § 821.33(a)(1). There would appear to be little

need for the public interest to be weighed in any determina-

tion of whether good cause exists for delay, when the rule

provides an independent and adequate avenue by which stale

complaints found to implicate the public interest can proceed.

Indeed, the Board in the past has found the seriousness of

a violation to be a reason to be less, rather than more, lenient

in finding good cause for delay. The Board noted in Admin-

istrator v. Dill, NTSB Order No. EA–4099, 1994 WL 78131,

that the stale complaint rule stems from the fact that ‘‘unsafe

conditions require speedy remedy’’ and that the rule ‘‘is

meant to advance, not retard, safety enforcement.’’ Id. at *3.

9

An NTSB administrative law judge later took Dill to mean

that ‘‘justice delayed is safety denied.’’ Neel v. Administra-

tor, NTSB Docket No. 210–EAJA–SE–13573 (1996), 1994 WL

804032, app. (Administrative Law Judge Opinion) at *11 n.34.

In Ramaprakash’s case, by contrast, the Board accepted the

argument that serious violations can serve to excuse investi-

gative delays — that even when justice is delayed, safety is

enhanced.

The Board’s second departure from its precedent lies in its

analysis of the role that prejudice plays under the stale

complaint rule. For more than twenty years, the NTSB has

explained that a party seeking dismissal of a stale complaint

is not required to show prejudice from the delay. In Admin-

istrator v. Zanlunghi, 3 NTSB 3696 (1981), the Board was

unequivocal: ‘‘[Rule 33] TTT does not impose on a respondent

the burden of demonstrating that a specific delay has in fact

prejudiced his defense.’’ Id. at 3697. Administrator v. Par-

ish, 3 NTSB 3474 (1981), is equally clear: ‘‘Rule 33 reflects

our recognition that a respondent’s ability to defend against

FAA charges can be seriously prejudiced through unreason-

able delayTTTT The rule thus creates a presumption that

prejudice does exist when six months have passed and a

respondent has not been informed that action is contemplat-

edTTTT’’ Id. at 3474 (emphases added); see also Dill, 1994

WL 78131, at *3 n.9 (‘‘The [stale complaint] rule does not

impose on a respondent the burden of demonstrating that a

specific delay has in fact prejudiced his defense. Instead, a

respondent is presumed to have been prejudiced’’ (citing

Zanlunghi)); Administrator v. Brea, NTSB Order No. EA–

3657, 1992 WL 220488, at *1 (‘‘Rule 33 raises a presumption

that a lapse of more than six months between the occurrence

of an alleged FAR violation and the issuance of a [NOPCA]

prejudices a respondent’’ (citing Parish)).

The Board’s approach here is a complete about-face. In

the Order Denying Appeal, the Board stated:

[Ramaprakash] does not assert that, had the com-

plaint been filed sooner, he would have answered

10

differently or been better equipped to defend

against the Administrator’s allegations. TTT

In these circumstances, specifically, where a re-

spondent’s ability to defend against a charge has not

been compromised by the passage of time between

the admitted violation and the action to sanction it, it

would be arbitrary to dismiss the complaint under a

rule designed to forestall evidentiary difficulties that

can arise because of prosecutorial delay.

Order Denying Appeal at 7. The Board reiterated this

holding in the Order Denying Reconsideration: ‘‘As we ex-

plained in our original decision, we decline to extend the stale

complaint rule under these circumstances, i.e., where the

‘delay’ is non-prejudicial to respondent’s ability to defend

against the charges (having admitted all factual allega-

tions)TTTT’’ Order Denying Reconsideration at 1. This lan-

guage is impossible to square with Zanlunghi, Parish, and

their progeny. Those cases make it clear that prejudice is

presumed when a complaint alleges violations that occurred

more than six months before the NOPCA. Applying the stale

complaint rule to Ramaprakash’s case would not ‘‘extend’’ the

rule at all — unless the Board is no longer adopting a

presumption of prejudice.

The FAA argues that the Board did not impose a require-

ment of prejudice — that it simply concluded that the pre-

sumption of prejudice had been overcome in Ramaprakash’s

case. FAA Br. at 41. The NTSB has indeed indicated that

the presumption of prejudice is rebuttable. See, e.g., Dill,

1994 WL 78131, at *3 n.9 (citing Zanlunghi, 3 NTSB at 3697).

Contrary to the FAA’s assertion, however, the Board did not

characterize its decision as a finding that the presumption in

Ramaprakash’s case had been rebutted. Both of the chal-

lenged orders simply noted that prejudice was absent — not

that it had been presumed and then rebutted. Order Deny-

ing Appeal at 7; Order Denying Reconsideration at 1.

The third, and perhaps most consequential, respect in

which the Board departed from its precedent involves the

longstanding requirement of prosecutorial diligence in stale

11

complaint cases. In denying Ramaprakash’s appeal, the

Board noted that the stale complaint rule is ‘‘designed to

forestall evidentiary difficulties that can arise because of

prosecutorial delay,’’ Order Denying Appeal at 7, but avoiding

such prejudice is not the only purpose of the stale complaint

rule. At least as important, the Board has emphasized for

decades, is the incentive that the rule provides for the FAA to

improve air safety by promptly investigating and punishing

those who violate the FAR. As long ago as 1974, the NTSB

declared that ‘‘[i]t is the purpose of [the stale complaint rule]

to assure that the Administrator’s investigation and prosecu-

tion of alleged regulatory violations is pursued with reason-

able diligence and that prospective charges not be held over

an airman’s head for an unreasonable periodTTTT’’ Stewart, 2

NTSB at 1142; see also Dill, 1994 WL 78131, at *3 (same,

adding that the rule ‘‘will ordinarily bar untimely prosecution,

and thereby act as a stimulus to diligent safety enforce-

ment’’).

In its prior cases interpreting Rule 33, the Board has

repeatedly stated that diligent investigation of possible viola-

tions is essential to a finding that good cause exists for a

delay in issuing a NOPCA. In Zanlunghi, for example, the

NTSB noted that a finding of good cause is warranted when

there is evidence that ‘‘reasonable diligence [was] exercised

following the FAA’s non-contemporaneous receipt of informa-

tion concerning the potentially actionable conduct.’’ 3 NTSB

at 3697. The Board elaborated that it knew that ‘‘the FAA

may not always immediately learn of conduct which may have

been violative of the FAR.’’ Id. In the same vein, the Board

stated in Brea that ‘‘belated awareness’’ of ‘‘the possibility of

an FAR violation’’ may serve as good cause for a delay in

issuing a NOPCA, ‘‘provided that reasonable prosecutorial

diligence is exercised’’ after the FAA receives ‘‘information

concerning the act(s) or omission(s) which may be indicative

of such a violation.’’ 1992 WL 220488, at *1. Most recently,

in Dill, the Board said that to avoid dismissal of a stale

complaint, the Administrator must show ‘‘that he exercised

reasonable prosecutorial diligence after his receipt of the

12

information concerning the possible violations.’’ 1994 WL

78131, at *4.

Zanlunghi, Brea, and Dill speak of potentially actionable

conduct, of possible violations, of conduct that may have

violated the FAR, or of acts or omissions that may indicate a

violation. None of the cases suggests that the FAA can wait

until it has confirmation of a violation before beginning to

work diligently on issuing a NOPCA. This choice of language

makes sense: if diligence is required, it should begin as soon

as the ball is in the FAA’s court. It would make little sense

to apply a requirement of diligence to only part of the period

during which a case demanded nothing other than FAA

attention. The Board in these cases quite reasonably recog-

nized that in some situations the FAA may be completely

ignorant of a potential violation for some time, but insisted

that once the FAA is tipped off to a potential violation, it

must act diligently if it intends to show good cause for the

overall delay.

The Board departed from this precedent in the Order

Denying Appeal, adopting a different trigger for the diligence

requirement. Preliminary indications were once adequate,

but now the discovery of the violation itself is the triggering

event. See Order Denying Appeal at 5 (holding that the

Administrator must show that ‘‘upon discovery, she investi-

gated the matter with due diligence’’). As the dissenting

Board members noted, the Board’s holding meant that ‘‘so

long as the Administrator proceeds with due diligence after

she discovers the violation, she may wait an indefinite amount

of time TTT to discover that violation and save her complaint

from the stale complaint rule.’’ Order Denying Reconsidera-

tion at 4.

The Board majority found that although the NDR tape of

May 16, 1997, listed Ramaprakash’s name, ‘‘the Administrator

did not have an indication of a possible section 61.15(e)

violation until her NLETS query’’ on February 4, 1998.

Order Denying Appeal at 6. This statement purports to hew

more closely to the language of Zanlunghi and Brea, but it

does not stand up to scrutiny because it fails to account for

why the investigator conducted the NLETS query. No

NLETS query would have been necessary unless the FAA

already had an indication of a possible violation. The NDR

13

tape provided that indication, and the tape meets the defini-

tions in Zanlunghi, Brea, and Dill that emphasize prelimi-

nary information as the trigger for the prosecutorial diligence

requirement. The NLETS information increased the proba-

bility that a violation had occurred (which ripened to a

certainty when the FAA agent determined on February 10,

1998, that Ramaprakash had not reported the motor vehicle

action); but if the FAA can take as long as it pleases to move

from one level of certainty to another — when the only

constraint is the FAA’s own allocation of its investigative

resources — then the prosecutorial diligence requirement so

clearly established in the Zanlunghi line of cases has all but

disappeared. The Board cannot undertake such a departure

from its precedent without providing a reasoned explanation

for its decision, and it provided none here.

The Board’s heavy reliance on Administrator v. Ikeler,

NTSB Order No. EA–4695, 1998 WL 564088, in both of the

challenged orders, see Order Denying Appeal at 5, 8; Order

Denying Reconsideration at 1–2 n.1, may account for why the

Board did not explain the inconsistency between its current

approach and that of Zanlunghi and its progeny. Ikeler,

decided in 1998, held that ‘‘in order to survive a motion to

dismiss [a] stale complaint, [the Administrator] must show

that good cause existed for the delay in discovering the

incident, and that reasonable diligence was exercised in inves-

tigating the matter once she learned that a possible violation

had occurred.’’ 1998 WL 564088, at *1. Ikeler is at least

arguably distinguishable from the orders at issue here,3 but

even if we assume (as the majority of the Board did) that

Ikeler is controlling, that assumption would not defeat the

argument that the Board has departed from its precedent; it

would merely require us to examine whether Ikeler itself

contains an explanation for its departure from cases such as

Brea and Zanlunghi. See Hatch v. FERC, 654 F.2d 825, 834

(D.C. Cir. 1981) (noting that FERC’s duty to explain a

3 The two Board members who dissented from the orders in

Ramaprakash’s case concurred in the Board’s unanimous order in

Ikeler; this suggests that, at least by their lights, Ikeler is distin-

guishable from the instant case.

14

departure from precedent is not discharged by FERC’s reli-

ance on two of its recent cases ‘‘since they do not contain

announcement of a new standard and supporting rationale

either’’); see also Pittsburgh Press Co. v. NLRB, 977 F.2d

652, 660 (D.C. Cir. 1992) (‘‘We do not think it enough to say

that this latest decision is consistent with the general drift of

NLRB precedent, as it is that very drift that troubles us.’’).

Ikeler does not contain the needed explanation. It merely

purports to rely on Brea and ‘‘cases cited therein,’’ 1998 WL

564088, at *1, while articulating a different standard that led

in Ramaprakash’s case to a significant curtailment of the

prosecutorial diligence requirement.

The FAA argues that Ikeler (and, by extension, the orders

challenged here) is not a departure from Board precedent at

all, suggesting that it is consistent with the Board’s decisions

in Administrator v. Gotisar, NTSB Order No. EA–4544, 1996

WL 784076, and Administrator v. Cady, 5 NTSB 364 (1985).

FAA Br. at 28–30. The delay in Gotisar occurred when the

FAA had to wait for the State of Hawaii to send it copies of

an aviator’s driving record; in Cady the respondent was a

maintenance employee who used improper parts when over-

hauling an aircraft engine — a violation that was not discov-

ered until the engine, still in the possession of its owners, was

disassembled several years later. See Gotisar, 1996 WL

784076, at *1; Cady, 5 NTSB at 366. These cases may

indeed hold that ‘‘good cause existed for the belated discovery

of violations where the [FAA] had to go beyond information

in its possession to determine the existence of a regulatory

violation,’’ FAA Br. at 35, but they are hardly analogous to

the present case, in which no third party obstructed the

FAA’s access to the information not already in its possession.

This may be why the Board itself did not rely on Cady or

Gotisar in Ikeler, and cited Gotisar in Ramaprakash’s case

only for its dictum on the purpose of the stale complaint rule.

See Order Denying Appeal at 7.

III.

After refusing to dismiss the FAA’s complaint as stale, the

Board said that it was nonetheless troubled by the length of

15

time between the FAA’s receipt of the NDR tape and the

NLETS query, and concluded:

[B]ecause our ruling in Ikeler sustained a suspension

order which involved a similar delay, the Adminis-

trator had no reason in this case to anticipate that

we might view the issue differently. Whether Ikeler

is followed in future cases may well depend on the

magnitude of the delay, for at some point, we are

inclined to believe, the Administrator’s interest in

prioritizing her enforcement efforts will not out-

weigh the negative impact of forcing an airman to

answer a charge long after the conduct giving rise to

it.

Order Denying Appeal at 8 (footnotes omitted).

The Board revisited this point when it denied reconsidera-

tion, stating:

[W]e have TTT placed the Administrator on notice

that in future cases we will look more closely at the

time that elapses between the time the Administra-

tor could have, but did not, learn of the violation by

comparing readily-available evidence. As we in-

ferred in our original decision, however, this analy-

sis, and our continued adherence to [Ikeler], will

depend on the specific facts of future cases and

arguments pertaining to the stale complaint rule.

Order Denying Reconsideration at 1–2 n.1.

This court has observed that ‘‘the core concern underlying

the prohibition of arbitrary or capricious agency action’’ is

that agency ‘‘ad hocery’’ is impermissible. Pacific N.W.

Newspaper Guild, Local 82 v. NLRB, 877 F.2d 998, 1003

(D.C. Cir. 1989). The statements extracted above indicate

that the Board has failed to satisfy this core requirement.

They amount to a promise from the Board that at some point

in the future, the stale complaint rule may again mean what it

once did — depending on ‘‘specific facts of future cases.’’ It

is impossible at this point to tell whether the Board, in the

next stale complaint case, will assess the seriousness of the

16

violation, or not; will insist on a showing of prejudice, or not;

will require FAA diligence in investigating a possible violation

as well as in prosecuting a known one, or not. We have it on

high authority that ‘‘the tendency of the law must always be

to narrow the field of uncertainty.’’ O.W. Holmes, The

Common Law 127 (1881). The Board’s unexplained depar-

tures from precedent do the opposite. ‘‘[W]here an agency

departs from established precedent without a reasoned expla-

nation, its decision will be vacated as arbitrary and capri-

cious.’’ ANR Pipeline Co. v. FERC, 71 F.3d 897, 901 (D.C.

Cir. 1995). For the reasons stated, we vacate the orders and

remand to the Board for further proceedings.