Donnelly v. Federal Aviation Administration

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 17, 2005 Decided June 10, 2005

No. 04-1239

DAVID J. DONNELLY,

PETITIONER

v.

FEDERAL AVIATION ADMINISTRATION AND

NATIONAL TRANSPORTATION SAFETY BOARD,

RESPONDENTS

On Petition for Review of an Order of the

Federal Aviation Administration

Mark T. McDermott argued the cause for petitioner. With

him on the briefs was Peter J. Wiernicki.

James W. Tegtmeier, Attorney, Federal Aviation

Administration, argued the cause for respondent. With him on

the brief was Peter J. Lynch, Assistant Chief Counsel.

James W. Johnson and John E. Wells were on the brief of

amicus curiae Air Line Pilots Association, International in

support of petitioner. Jonathan A. Cohen entered an appearance.

Before: SENTELLE, HENDERSON and ROGERS, Circuit

Judges.

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Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge: David J. Donnelly petitions for

review of an order of the National Transportation Safety Board

(“NTSB”) upholding a decision of the Federal Aviation

Administration (“FAA”) to revoke Donnelly’s airman

certification under 49 U.S.C. § 44710(b)(2) for exporting a

controlled substance into Japan, an action that is a violation of

United States law, for which he was convicted in a Japanese

criminal proceeding, and which involved the use of an aircraft.

Petitioner Donnelly claims that the FAA and NTSB’s

determination was not supported by substantial evidence

because of its reliance on findings in a foreign criminal

proceeding and also that it was arbitrary and capricious or

contrary to law to conclude that Donnelly “used” the aircraft in

the commission of the illegal act. For the reasons more fully set

forth below, we conclude that the FAA and NTSB committed no

reversible error, and deny the petition for review.

I. Background

Factual Overview

Petitioner Donnelly was employed as a pilot with Federal

Express in June of 1999 when he traveled to Japan on a

Northwest Airlines non-stop commercial flight from Detroit to

Nagoya, Japan. Although he obtained his ticket by virtue of his

Fed-Ex pilot status, he was on a personal trip, not on duty, and

occupied a regular passenger seat. Upon arrival in Nagoya,

customs officers searched Donnelly and found six pills in his

pocket. The pills were determined to be “N alpha dimethyl-3,4-

(methylenedioxi)phenethyl amine,” a substance the Japanese

officials claimed was the drug MDMA (Ecstasy). He was held

in a Japanese prison for 73 days and, on August 24, 1999, was

convicted in Japanese court of attempting to import six pills

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containing MDMA. Upon returning to the United States,

Donnelly informed his employer of the conviction and was fired.

Donnelly reported the incident to the FAA after his pilot union’s

medical advisor suggested that he submit a psychiatric

evaluation to the FAA to confirm his fitness as a pilot. The

medical advisor also reported some of the circumstances

surrounding the conviction to the FAA. Although the FAA

found him qualified for first-class medical certification, it sought

revocation of his airman certification under 49 U.S.C. §

44710(b)(2). The FAA ultimately revoked Donnelly’s airman

certification in a February 1, 2001 order, amended on June 20,

2001 with minor factual corrections.

Statutory Background

Under 49 U.S.C. § 44710, the FAA must revoke airman

certifications for certain controlled substance violations in which

aircraft were implicated. Subsection (b)(1) provides for

revocation if the individual is convicted of a felony under a

federal or state controlled substance law and

(A) an aircraft was used to commit, or facilitate the

commission of, the offense; and

(B) the individual served as an airman, or was on the

aircraft, in connection with committing, or facilitating

the commission of, the offense.

49 U.S.C. § 44710(b)(1). The FAA relied upon subsection

(b)(2) in its revocation of Donnelly’s certification. This

subsection provides for revocation if

(A) the individual knowingly carried out an activity

punishable, under a law of the United States or a State

related to a controlled substance (except a law related

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to simple possession of a controlled substance), by

death or imprisonment for more than one year;

(B) an aircraft was used to carry out or facilitate the

activity; and

(C) the individual served as an airman, or was on the

aircraft, in connection with carrying out, or facilitating

the carrying out of, the activity.

49 U.S.C. § 44710(b)(2). Once a certificate has been thus

revoked, it may not be reissued. Id. § 44703(f).

It is unlawful to export a nonnarcotic controlled substance

listed in schedule I from the United States without a permit, and

conviction can result in up to 20 years in prison. 21 U.S.C. §

960(a), (b)(3). At all relevant times, MDMA, or Ecstasy, was

listed in schedule I as “3, 4-methylendioxymethamphetamine”

(MDMA). 21 C.F.R. § 1308.11(d)(10) (1999).

Procedural Background

On July 9, 2001, the case was tried before an Administrative

Law Judge (“ALJ”), who affirmed the revocation of Donnelly’s

certification, but imposed only an 18-month revocation rather

than the lifetime revocation required by statute because he

viewed a lifetime revocation as too “draconian.” Both Donnelly

and the FAA appealed to the National Transportation Safety

Board, Donnelly seeking reinstitution of his certification and the

FAA seeking lifetime revocation.

The Board was short-handed when it voted on the case in

January 2003, and split 2-2 on how to dispose of the case,

leaving the ALJ’s decision to stand and become final. Both

parties moved for reconsideration and a full Board considered

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the case in June 2004. The NTSB, with two different majorities,

denied both Donnelly’s and the FAA’s petitions for review.

Three members voted to deny the FAA’s petition, one because

she disagreed with the FAA’s interpretation and the other two

because they believed the 18-month limitation had no force of

law and therefore the FAA’s petition was moot because the

revocation was already permanent. Four members voted to deny

Donnelly’s petition for review on the merits. See Blakey v.

Donnelly, N.T.S.B. Order No. EA-5101 (June 18, 2004).

Donnelly petitioned this Court for review.

II. Analysis

Donnelly challenges two aspects of the NTSB’s final

determination. First, he asserts that reliance on the Japanese

criminal proceeding as evidence in his case was impermissible

and therefore that the revocation was not supported by

substantial evidence. Second, he argues that the NTSB’s

interpretation of “use” of an aircraft under 49 U.S.C. §

44710(b)(2) was arbitrary and capricious or contrary to law.

A. Foreign Judgments as Evidence

We will set aside any findings not supported by “substantial

evidence,” that is, “such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Chritton v.

Nat’l Transp. Safety Bd., 888 F.2d 854, 856 (D.C. Cir. 1989).

Appellant Donnelly challenges the sufficiency of the evidence

in his case because he claims that his Japanese conviction was

improperly admitted as the sole direct evidence of facts in the

case and that aside from this conviction there was not substantial

evidence supporting his revocation. He makes a statutory

argument that, because 49 U.S.C. § 44710(b)(1) provides for

revocation only after a U.S. conviction for a drug crime,

allowing foreign judgments as evidence under 49 U.S.C. §

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44710(b)(2) would bypass and nullify the stricter requirements

of (b)(1). He bases this conclusion partly on the allegation that

the Japanese conviction was the only evidence submitted against

him in the administrative hearing, making his (b)(2) revocation

identical to a (b)(1) revocation except for the national identity of

the convicting court. The Air Line Pilots Association

International (“ALPAI”) submitted an amicus brief in support of

Donnelly, arguing that the statute’s requirement that a violation

of U.S. law be proven implied a guarantee of due process.

ALPAI also argued that Japan’s criminal system should not be

accepted as one affording due process without positive proof

that it was reliable and non-corrupt.

We find no support in the statute for Donnelly’s contention

that evidence of the Japanese conviction should be excluded.

First, Donnelly’s own statutory argument rests on the

assumption that the Japanese conviction was the only evidence

against him and was conclusive, making it a replacement for

subsection (b)(1) which requires an American conviction.

Regardless of whether such a use of foreign judgments may be

consistent with the text and intent of the statute, on the record

before us the revocation was also based on corroborating

evidence and admissions of several of the relevant facts.

Donnelly admitted, in response to the FAA’s request, that he

was on the flight in question from Detroit to Nagoya. He also

admitted that he carried some tablets to Japan, although he did

not admit that they were Ecstasy. Donnelly’s medical

representative went further and acknowledged in a letter that

Donnelly had attempted to pass through customs in Nagoya with

tablets of Ecstasy. There is also expert evidence on the record

that the chemical name identified by the Japanese analysts is

equivalent to the description of MDMA in schedule I.

Beyond the corroborating evidence, principles of comity

suggest that the Japanese judgment should be given weight as

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prima facie evidence of the facts underlying it and the burden

was on Donnelly to impeach the judgment. In Tahan v.

Hodgson, 662 F.2d 862, 864 (D.C. Cir. 1981), a case involving

the enforcement of a foreign judgment, we noted “that ‘the

merits of the case should not, in an action brought in this

country upon the judgment, be tried afresh, as on a new trial or

appeal, upon the mere assertion of the party that the judgment

was erroneous in law or in fact’ if there has been opportunity for

a full and fair trial abroad before a court of competent

jurisdiction . . . .” (quoting Hilton v. Guyot, 159 U.S. 113,

205-06 (1895)). While the Hilton and Tahan decisions are

obviously not directly on point, as they involve the enforcement

of a civil judgment, rather than the collateral use of a criminal

judgment as evidence, the same principles are at least

persuasive.

The FAA had filed a pre-hearing brief explaining Japanese

criminal protections and procedure which were modeled on

United States procedures and adopt fundamental protections

including informing the defendant of the nature of his charges,

an immediate right to counsel, a privilege against self-

incrimination, confrontation of witnesses, testimony under oath,

cross-examination, and the right to object to evidence and appeal

the judgment. The NTSB had ample evidence of the prima facie

weight of the decision. Nothing prevented Donnelly from

testifying about any deficiencies in the Japanese judgment, but

he did not.

Furthermore, we see no statutory requirement for a

particular criminal procedure as urged by ALPAI; indeed, the

very inclusion of subsection (b)(2) supports a conclusion that

Congress intended to allow revocation even without criminal

conviction in a United States court where the FAA finds

sufficient evidence of an “activity” described by the statute.

Were this not the case, subsection (b)(1) alone would have been

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sufficient. We must strive to interpret a statute to give meaning

to every clause and word, and certainly not to treat an entire

subsection as mere surplusage. See United States v. Philip

Morris USA, Inc., 396 F.3d 1190, 1198-99 (D.C. Cir. 2005).

Under the circumstances, we cannot say that the ALJ or the

NTSB admitted evidence arbitrarily or revoked Donnelly’s

airman certification without substantial evidence.

B. Statutory Interpretation

We will uphold agency decisions unless they are “arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with the law.” Chritton, 888 F.2d at 856. In

reviewing an agency’s interpretation of a statute, we apply the

test of Chevron U.S.A. Inc. v. Natural Resources Defense

Council, 467 U.S. 837, 842-43 (1984), first examining whether

a statute’s language is ambiguous. If it is, we will look to the

agency’s interpretation and defer to it if it is reasonable. Here

the statutory language is unambiguous and coincides with the

FAA’s interpretation, and thus we must uphold Donnelly’s

revocation.

Donnelly argues that the FAA’s interpretation of “use” is

inconsistent with the unambiguous language of § 44710(b)(2).

Subsection (b)(2)(B) requires that an aircraft be “used” to carry

out or facilitate the activity, but (b)(2)(C) requires also that the

individual at least be on the aircraft. Donnelly claims that, if

“use” of an aircraft includes merely being on the aircraft, then

(b)(2)(C) is superfluous. ALPAI argues in support of Donnelly

that he did not “use” the aircraft because exportation of drugs

was not the primary purpose of his trip. It argues that “use” of

an aircraft as required in § 44710(b)(2)(B) must be interpreted

in light of a line of cases interpreting “use” of a firearm in the

commission of a drug offense. In Bailey v. United States, 516

U.S. 137 (1995), the Supreme Court adopted a test requiring the

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evidence to show “active employment” of a weapon beyond its

mere presence at the crime -- a “use” that makes the firearm an

“operative factor” in relation to the predicated offense. 516 U.S.

at 148. This includes “brandishing, displaying, bartering,

striking with, or attempting to fire a firearm” but not the “inert

presence of a firearm” or “storing a weapon near drugs or drug

proceeds.” Id. at 148-49. ALPAI analogizes to conclude that

Donnelly’s mere presence on the plane is insufficient to say he

“used” the plane in the commission of the unlawful activity.

Donnelly’s interpretation of § 44710(b)(2)(C) fails to give

meaning to every word of the statute because it makes “use”

equivalent to serving as an airman on the aircraft. The statute

requires, in addition to “use” of an aircraft, that the individual

either served as an airman or was on the aircraft in connection

with the outlawed activity. 49 U.S.C. § 44710(b)(2)(C). Thus

Congress clearly intended that one could “use” an airplane

within the statutory meaning without serving as an airman, or

even without being on the plane. Donnelly is correct that the

statute does allow for redundancy in some fact situations,

including the one before us, but it is difficult to conceive of an

interpretation that would not allow for some redundancy. The

statute’s words so plainly encompass the interpretation adopted

by the Board that we need not venture beyond the first step of

our Chevron analysis. While both sides appeal to legislative

history to support their interpretation, we need not resort to

legislative history where the statute itself is clear. Recording

Indus. Ass’n of Am., Inc. v. Verizon Internet Servs., 351 F.3d

1229, 1237-38 (D.C. Cir. 2003) (quoting Ratzlaf v. United

States, 510 U.S. 135, 147-48 (1994)). Neither does ALPAI’s

appeal to the interpretation of “use” in a completely different

legal context bind the FAA’s interpretation of “use” of an

aircraft under § 44710(b)(2).

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III. Conclusion

Because the determination of the NTSB was supported by

substantial evidence and because the FAA’s interpretation of 49

U.S.C. § 44710(b)(2)(C) accorded with the statute’s

unambiguous meaning, we affirm the order of the NTSB.