Gorman v. National Transportation Safety Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 13, 2009 Decided March 17, 2009

No. 07-1532

MICHAEL CHARLES GORMAN,

PETITIONER

v.

NATIONAL TRANSPORTATION SAFETY BOARD

AND FEDERAL AVIATION ADMINISTRATION,

RESPONDENTS

On Petition for Review of an Order of

the Department of Transportation,

National Transportation Safety Board

Steven A. Ellis argued the cause for the petitioner.

Catherine V. Barrad was on brief.

James A. Barry, Senior Attorney, Federal Aviation

Administration, argued the cause for the respondents.

Before: HENDERSON, TATEL and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: Michael C.

Gorman petitions for review of an opinion and order of the

National Transportation Safety Board (NTSB or Board), which

affirmed a Federal Aviation Administration (FAA) emergency

2

order revoking Gorman’s commercial pilot certificate. The

FAA found that Gorman deliberately violated Federal Aviation

Regulations (FARs) by operating aircraft carrying cargo for

compensation or hire without obtaining the required operating

certificate and operations specifications and without complying

with competency and line check requirements set out in Subpart

C of FAR Part 119, 14 C.F.R. §§ 119.31 et seq., and FAR Part

135, id. §§ 135.1 et seq., even after the FAA informed him he

was required to do so under FAR section 119.23(b), 14 C.F.R.

§ 119.23(b). Gorman maintains, as he did below, that the

regulation, which on its face applies only to aircraft “having a

passenger-seat configuration of less than 20 seats,” id., does not

apply to his two aircraft because they have no passenger seats

and therefore no “passenger-seat configuration” whatsoever.

Gorman also asserts that FAR section 119.23, as interpreted by

the FAA, is ultra vires and that license revocation was too

severe a sanction. For the reasons set out below, we conclude

that the FAA reasonably construed its regulation to apply to

aircraft with no passenger seats, that the regulation is not ultra

vires and that Gorman has waived his objection to the severity

of the penalty. Accordingly, we deny the petition for review.

I.

In 2003, Gorman obtained a Part 135 operating certificate

to operate his business flying cargo in the form of bank checks

for a single bank. In 2005, Gorman decided he did not need a

Part 135 certificate to operate his business under the applicable

FARs and obtained a written opinion from Robert Griscom, an

“aviation attorney,” that as a “private carrier” Gorman did not

need such a certificate which, Griscom averred, is required only

for “common carriers.”1 See Hearing Ex. C-1, Sturgell v.

1

A “common” carrier is a carrier “that holds itself out to the

public, or to a particular class or segment, as willing to furnish

transportation for hire.” 14 C.F.R. § 375.40(b). “Noncommon” or

3

Gorman, Docket No. SE-18094, at 2-3 (NTSB Sept. 25, 2007)

(July 18, 2005 Letter from Robert Griscom to Mike Gorman).

Gorman’s “private” carriage, Griscom opined, “may be

conducted under the Rules of FAR Part 91,” id. at 3, which is

titled “Air Traffic and General Operating Rules.” Griscom sent

a copy of his opinion letter to Monroe P. Balton, FAA Regional

Counsel for the Western Pacific Region, who responded that the

opinion “accurately reflects the current state of the [FAA’s]

regulations, Advisory Circular 120-12A and policy on the issue

of private carriage.” Hearing Ex. C-2, Sturgell v. Gorman, at 1

(NTSB Sept. 25, 2007) (Aug. 19, 2005 Letter from Monroe P.

Balton to Robert Griscom).

In March 2007, while on routine surveillance at the Long

Beach, CA airport, two FAA aviation safety inspectors observed

an airplane displaying “Charter advertising” on the side of the

fuselage. When questioned by one of the inspectors, Gorman,

the airplane’s pilot, responded that he did not need an “Air

Carrier Certificate” to operate his business. In a subsequent

telephone conversation, the other inspector told Gorman that “he

might be in violation of Pt. 119.23(b) if he was transporting

bank checks for hire without an Air Carrier Certificate.”

Hearing Ex. C-4, Sturgell v. Gorman, at 1 (NTSB Sept. 25,

2007) (Record of Apr. 10, 2007 telephone call from Mike

Gorman to Gary Lackey). Gorman insisted that FAR section

119.23(b) did not apply to him because he was in “private

carriage” and that he had legal opinions from Griscom and from

FAA counsel Balton supporting his position. When contacted

by the inspectors, Balton opined that “indeed Mr. Gorman

“private” carriage is “an aircraft operation for compensation or hire

that does not involve a holding out to others.” 14 C.F.R. § 119.3; see,

e.g., 14 C.F.R. § 119.5(h) (contrasting “common carriage” with

“noncommon or private carriage”).

4

would need an Air Carrier Certificate if he was transporting for

hire in private carriage.” Id.

In April 2007, according to Gorman, FAA inspector Gary

Lackey informed him by telephone that he was “grounded,” that

he had “received bad advice from [his] attorney” and that he was

“operating illegally.” Admin. Hearing Transcript, Sturgell v.

Gorman, at 66 (Sept. 25, 2007 NTSB) (testimony of Gorman)

(Hearing Tr.). After being advised by Griscom and other private

counsel that Lackey lacked authority to ground him, Gorman

called FAA Operations Unit Supervisor Robert W. Kemp.

Kemp clarified that Gorman was not “grounded” but Kemp

advised Gorman that “operations defined as ‘private carriage’

require the issuance of an operator’s certificate” and that

Gorman’s operation “appears to meet this definition” and

warned him that if Gorman was “engaged in this type of activity,

[he] m[ight] be in violation of Title 14 of the Code of Federal

Aviation Regulations (Title 14 CFR) and subject to civil

penalties.” Hearing Ex. C-5, Sturgell v. Gorman (NTSB Sept.

25, 2007) (April 20, 2007 Letter from Robert W. Kemp to Mike

Gorman).

On May 21, 2007, Balton drafted a memorandum

addressing certification requirements for private carriage by a

small airplane operator. Hearing Ex. C-6, Sturgell v. Gorman,

(NTSB Sept. 25, 2007) (May 21, 2007 Memorandum from M.

Balton to Long Beach Flight Standards District Offices) (Balton

Memo). In it Balton stated that Advisory Circular 120-12A,

which he had cited in his earlier opinion, had not been revised

since 1986 and therefore did not take into account FAR Part

119, which “was issued and became effective later in time” and

therefore “better represents the FAA’s position with respect to

private carriage.” Id. at 1. Balton then set out the text of FAR

section 119.23(b):

Each person who conducts noncommon carriage

(except as provided in § 91.501(b) of this chapter) or

5

private carriage operations for compensation or hire

with airplanes having a passenger-seat configuration

of less than 20 seats, excluding each crewmember seat,

and a payload capacity of less than 6,000 pounds

shall—

(1) Comply with the certification and

operations specifications requirements in

subpart C of this part;

(2) Conduct those operations in

accordance with the requirements of part 135

of this chapter, except for those requirements

applicable only to commuter operations;

14 C.F.R. § 119.23(b), quoted in Balton Memo at 2 (emphasis

added). FAR section 119.23(b), Balton noted, “is regulatory in

nature and must be complied with,” while Advisory Circular

120-12A “is . . . advisory only—a suggested means of

complying with the regulations” and “is not regulatory and is not

enforced by the FAA.” Balton Memo at 2. Under FAR section

119.23, he explained, “large aircraft operators engaged in

private carriage must have at least a certificate and operations

specifications issued under Part 125, and small aircraft operators

must hold a certificate and operations specifications issued

under Part 119 and conduct operations in accordance with FAR

Part 135.” Id. He therefore advised that Griscom’s opinion, “to

the extent it fails to recognize this fact, . . . is in error” and his

earlier “concurrence” in Griscom’s opinion was “completely in

error,” admitting that he had “failed to review the requirements

of FAR Part 119” and had “only reread the advisory circular.”

Id. at 3.

On June 1, 2001, Lackey drafted a letter to Gorman, with a

copy of Balton’s memo attached, in which Lackey indicated that

“cargo operations of this nature are indeed subject to Title 14

Code of Federal Regulations 119.23(b) and require an air carrier

6

certificate.” Hearing Ex. C-7, Sturgell v. Gorman, at 1 (NTSB

Sept. 25, 2007) (June 1, 2007 Letter from Gary W. Lackey to

Mike Gorman). Thus, Lackey advised, “[c]ontinued operations

by you without an air carrier certificate [are] contrary to 14 CFR

Part 119 and Part 135 and would be subject to enforcement

action.” Id. Gorman responded in a letter dated June 6, 2007,

expressing his disagreement with Balton’s revised opinion.

Exhibit C-8, Sturgell v. Gorman, at 1 (NTSB Sept. 25, 2007)

(June 6, 2007 Letter from Mike Gorman to FAA). Following

this exchange, Gorman continued to operate his private carriage

business as before, without regard to FAR section 119.23(b)’s

directives to “[c]omply with the certification and operations

specifications requirements in subpart C of [Part

119]”—requiring a covered person to obtain an “operating

certificate” and “operations specifications that prescribe the

authorizations, limitations, and procedures under which each

kind of operation must be conducted,” 14 C.F.R.

§ 119.33(b)—and to “[c]onduct [his] operations in accordance

with the requirements of part 135.”

On August 27, 2007, the FAA served an emergency order

revoking Gorman’s commercial pilot certificate because,

notwithstanding he was “advised by the FAA that [his] cargo

operations were in violation of the FAR’s,” “on at least 20

occasions” he “continued said operations” from San Diego to

Long Beach as “pilot in command,” “in deliberate disregard of

FAA notification . . . that such operation was in violation of the

FAR’s,” in particular, FAR section 119.23(b). Emergency

Order of Revocation, Michael Charles Gorman, Case No.

2007WP050040, at 1-2 (FAA Aug. 27, 2007). The emergency

order stated that each of the two aircraft Gorman was operating

had “a passenger-seat configuration of less than 20 seats” and a

“payload capacity of less than 6,000 pounds” and his operation

of the flights “constituted noncommon carriage or private

carriage operations, for compensation or hire,” thereby

triggering the certification and operations specifications

7

requirements of FAR section 119.23 as well as the competency

and line check requirements of FAR Part 135. Id. at 2. The

order set out a list of provisions in FAR Parts 119 and 135 that

Gorman’s operations violated.2 Id. at 2-3. Based on the

foregoing, the order concluded:

As a result of your operation in deliberate disregard of

the FAA’s notification to you that such operations are

in violation of the FAR’s, the Administrator finds that

you lack the qualification necessary to hold a

commercial pilot certificate, or an airman pilot

certificate of any kind. She therefore has determined

that safety in air commerce or air transportation and the

public interest require the revocation of any and all

airman pilot certificates you hold. The Administrator

further finds that an emergency requiring immediate

action exists with respect to safety in air commerce or

air transportation.

Id. at 4. Accordingly, the emergency order directed that any

certificate Gorman held be immediately revoked and

surrendered to FAA Regional Counsel and that for one year

thereafter, no application for a new airman certificate be

accepted from him nor an airman certificate issued to him. Id.

Gorman appealed and a hearing was conducted by an NTSB

administrative law judge (ALJ) on September 25, 2007. At the

hearing, Gorman argued that “Part 119.23(b) absolutely does not

apply to all cargo operations, noncommon carriage in aircraft of

[his] class.” Hearing Tr. at 71. He reasoned that FAR section

119.23(b) “only applies to aircraft having a passenger seat

configuration” and his aircraft “d[id] not have a passenger seat

configuration” because it did not have any passenger seats. Id.

2

These sections are 14 C.F.R. §§ 119.5(g), 119.23(b)(1)-(2),

119.33(b)(2)-(3), 135.295(a), 135.299(a)-(b). Hearing Tr. at 120-21.

8

The FAA disagreed, maintaining that FAR section 119.23

applied to Gorman’s aircraft because “[z]ero is less than 20.”

Id. at 14.

At the conclusion of the hearing, the ALJ issued an oral

ruling affirming the emergency order with respect to all but one

of the alleged regulatory violations as well as the revocation of

Gorman’s pilot’s certificate.3 Id. at 120-21, 124. The ALJ

concluded that, contrary to Gorman’s contention, the FAA

reasonably interpreted FAR section 119.23(b)(1)-(2), which

applies to “airplanes having a passenger-seat configuration of

less than 20 seats,” to apply to aircraft such as Gorman’s which

have no passenger seats:

If you have zero seats, you do have less than 20, in my

view.

I, therefore find on the reasonable interpretation of

this regulation, . . . that Respondent did, in fact, change

the passenger seat configuration in his aircraft by

removing all of the passenger seats to zero seats, and

zero seats is less than 20.

Hearing Tr. at 117-18. Based on his interpretation of FAR

section 119.23(b), the ALJ found that Gorman violated not only

FAR section 119.23(b) but also FAR sections 119.5(g),

119.33(b)(2), 119.33(b)(3), 135.293(a), 135.293(b) and

135.299(a), the requirements of which were triggered by FAR

section 19.23(b). The ALJ also found that revocation was the

appropriate sanction because:

[G]iven the fact that [Gorman] was advised in June,

whether or not he agreed with it, he was advised that

his operations were in probable violation of the

3

The ALJ found that Gorman did not violate FAR section

119.23(b)(3) as set forth in the emergency order.

9

appropriate regulation, he intentionally continued to

operate upon his own determination that the FAA was

wrong and he was right. . . .

This was deliberate choice by [Gorman] to

disregard the advice and caution issued to him on his

belief that his interpretation was correct and nobody in

the [FAA] that he had dealt with knew what they were

talking about. . . . That is inappropriate. If pilots

simply disregard some portion of the regulations,

operational, medical, whatever, maintenance, and say

whatever they require or your interpretation that I’ve

got to use this tool or this condition does not prohibit

safe performance or I don’t have to comply, that would

be chaos.

Id. at 122-23.

Gorman appealed the ALJ’s decision to the NTSB, which

issued an order on November 1, 2007, denying the appeal and

affirming the ALJ’s decision upholding the FAA’s emergency

order (except as to FAR section 119.23(b)(3)). Opinion and

Order, Sturgell v. Gorman, Docket SE-18094 (NTSB Nov. 1,

2007). The Board concluded that (1) it is “bound by all validly

adopted interpretations of laws and regulations that the

Administrator carries out, unless [it] find[s] that an

interpretation is arbitrary, capricious, or otherwise not in

accordance with law,” id. at 6, and (2) that section 119.23(b) is

“clear on its face” and the FAA’s interpretation of it was

therefore “not arbitrary, capricious or contrary to law and

precedent,” id. at 8.

Gorman filed a petition for review with this court on

December 31, 2007. On January 28, 2008, Gorman filed a

petition for rehearing with the NTSB, which the Board denied

in an order issued May 13, 2008 for the following reason:

10

Respondent filed a petition for review of his case

in the United States Court of Appeals for the District of

Columbia Circuit on December 31, 2007, and that

court has so notified the Board; therefore, the Board no

longer has jurisdiction and the petition is subject to

dismissal.

Sturgell v. Gorman, Docket SE-18094 at 1-2 (NTSB May 13,

2008) (NTSB Rehearing Order) (footnotes omitted) (citing 49

U.S.C. § 1153(b)(3)). Alternatively, the Board noted that, even

if the filing of the petition for judicial review did not deprive it

of jurisdiction, Gorman’s petition for rehearing “would have

been untimely, and therefore subject to dismissal.” Id. at 2 n.3.

On July 11, 2008, we ordered sua sponte “that the parties

address in their briefs whether petitioner’s filing of a petition for

agency rehearing after filing this petition for review renders the

petition for review incurably premature.” Order, Gorman v.

NTSB, No. 07-1532, at 1 (July 11, 2008).

II.

We first address the jurisdictional issue and then move on

to the merits.

A. Jurisdiction

As recited supra, the NTSB issued its final decision on the

merits on November 1, 2007 and Gorman filed a petition for

review with the court on December 31, 2007. Gorman

subsequently filed a rehearing petition with the NTSB on

January 28, 2008—outside the prescribed 30-day window, see

49 C.F.R. § 821.50(a)-(b) (petition “for rehearing, reargument,

reconsideration or modification of a Board order on appeal from

a law judge’s initial decision or order . . . must be filed with the

Board, and simultaneously served on the other parties, within 30

days after the date of service of the Board’s order on appeal

from the law judge’s initial decision or order”)—and on May 13,

11

2008, the NTSB issued the order dismissing the rehearing

petition. Pursuant to the court’s July 11, 2008 order, the parties

have briefed the issue whether Gorman’s petition here is

“incurably premature.” Order, Gorman v. NTSB, No. 07-1532,

at 1 (citing Collins v. NTSB, 351 F.3d 1246, 1250 (D.C. Cir.

2003); TeleSTAR, Inc. v. FCC, 888 F.2d 132, 133-34 (D.C. Cir.

1989)). The parties agree that the petition is not incurably

premature. We agree as well.

Our caselaw “treat[s] a petition for review filed during the

pendency of a request for administrative reconsideration as

‘incurably premature,’ and in effect a nullity.” Collins, 351 F.3d

at 1250 (internal citation omitted); see also TeleSTAR, Inc., 888

F.2d at 134 (“filing of a challenge to agency action before the

agency has issued its decision on reconsideration is incurably

premature” so that “when a petition for review is filed before the

challenged action is final and thus ripe for review, subsequent

action by the agency on a motion for reconsideration does not

ripen the petition for review or secure appellate jurisdiction”).

In this case, we confront a question left unresolved in Collins.

In that case, the petitioner had filed two petitions for judicial

review—one 59 days after the NTSB’s initial decision and one

44 days after the NTSB’s dismissal of an untimely request for

administrative reconsideration (filed between the initial Board

decision and the first petition for judicial review). We

concluded that the petition for judicial review was not

“incurably premature” for two alternative reasons: “If the

request suspended the running of the time limit for appeal, then

the . . . second petition for review was timely; if it did not, then

the initial petition was effective. Either way, we have

jurisdiction.” Collins, 351 F.3d at 1250. Because jurisdiction

existed whether or not the untimely reconsideration request

tolled the time for filing a petition for judicial review, the court

found it unnecessary to determine “the precise effect of [an]

untimely request for NTSB reconsideration.” Id. We now

address this issue squarely and conclude the filing of an

12

untimely petition for agency reconsideration does not render

incurably premature an otherwise valid petition for judicial

review.

In United Transportation Union v. ICC, 871 F.2d 1114

(D.C. Cir. 1989), we concluded, as had other circuits, that the

filing of a timely petition for reconsideration “must render the

underlying agency action nonfinal,” explaining:

“Where a motion for rehearing is in fact filed there

is no final action until the action is denied * * *.

[W]hen the party elects to seek a rehearing there is

always a possibility that the order complained of will

be modified in a way which renders judicial review

unnecessary. Practical considerations[,] therefore,

dictate that when a petition for rehearing is filed,

review may properly be deferred until this has been

acted upon.”

871 F.2d at 1116-17 (quoting Outland v. CAB, 284 F.2d 224,

227-28 (D.C. Cir. 1960)) (emphasis in United Transp. Union).

Once the time to file for agency reconsideration is past,

however, the order is final and ripe for review and the filing of

a subsequent—late—petition for administrative rehearing does

not vitiate the timely judicial petition, at least not where, as here,

the agency does not consider the merits of the tardy request. Cf.

Bowman v. Lopereno, 311 U.S. 262, 266 (1940) (“The filing of

an untimely petition for rehearing which is not entertained or

considered on its merits, or a motion for leave to file such a

petition out of time, if not acted on or if denied by the trial court,

cannot operate to extend the time for appeal.”); see NTSB

Rehearing Order (dismissing Gorman’s petition for rehearing,

alternatively, for lack of jurisdiction or tardiness). Thus,

Gorman’s late petition for Board rehearing filed on January 28,

2008 does not affect our jurisdiction, which attached upon his

13

filing of the December 31, 2007 petition for judicial review.4

This holding is consistent with our cases that have found a

petition for judicial review to be incurably premature, as each of

the latter involved a timely request for administrative review.

See, e.g., Clifton Power Corp. v. FERC, 294 F.3d 108 (D.C. Cir.

2002); TeleSTAR, Inc., supra; United Transp. Union, supra.

B. The Merits

Gorman offers three challenges to the NTSB’s affirmance

of the FAA’s emergency order. We address each challenge

seriatim.

1. FAR section 119.23(b)

Gorman argues that the NTSB erred in two respects when

it concluded that the language of FAR section 119.23(b) requires

Gorman to obtain an operating certificate and operations

specifications and to comply with Part 135. We find neither

argument persuasive.

First, Gorman contends the regulation’s language

unambiguously excludes Gorman’s two aircraft from its

requirements for the reason he argued before the NTSB, namely,

that, because all of the seats have been removed from each

aircraft, neither can be described as “having a passenger-seat

configuration of less than 20 seats.” Instead, he maintains that

his airplanes now have no seating configuration whatsoever.

4

Our holding does not necessarily bar the agency from

entertaining a late filed petition for rehearing or the court from

remanding to the agency if it deems the agency likely to reconsider its

decision. See 49 C.F.R. § 821.11(b) (“Extensions of time to file

petitions for reconsideration shall . . . be granted . . . only in

extraordinary circumstances.”); cf. Williston Basin Interstate Pipeline

Co. v. FERC, 165 F.3d 54, 62-63 (D.C. Cir. 1999) (remanding to

agency to reconsider in light of agency’s “recent refinement” of

model).

14

We conclude that the regulation is ambiguous regarding its

applicability to aircraft like Gorman’s and that the FAA

reasonably determined that it does apply.

In common parlance, the phrase “airplanes having a

passenger-seat configuration of less than 20 seats” may be

reasonably understood to include aircraft having no passenger

seats at all, as the FAA interpreted it. As the ALJ explained:

“Zero is, in fact, a number” and “[i]f you have zero seats, you do

have less than 20.” Hearing Tr. at 117. Any doubt that this is

a permissible interpretation is dispelled by the language of the

regulation’s heading which reads: “Operators engaged in

passenger-carrying operations, cargo operations, or both with

airplanes when common carriage is not involved,” 14 C.F.R.

§ 119.23 (emphasis added). This language plainly includes an

aircraft that carries cargo only—and therefore has zero

passenger seats—as well as one that carries passengers only or

a combination of passengers and cargo, both of which, by

contrast, would necessarily have at least one passenger seat.5

5

Gorman asserts that “longstanding legal principles” prohibit

considering the regulation’s heading to elicit the meaning of its text.

Reply Br. at 13-14 (citing Bhd. of R.R. Trainmen v. Balt. & Ohio R.R.,

331 U.S. 519, 528 (1947); Holland v. Williams Mountain Coal Co.,

256 F.3d 819, 822 (D.C. Cir. 2001)). The cases on which Gorman

relies, however, apply specifically to statutes “[w]here the text is

complicated and prolific” so that “headings and titles can do no more

than indicate the provisions in a most general manner” inasmuch as

an “attempt to refer to each specific provision would often be ungainly

as well as useless.” R.R. Trainmen, 311 U.S. at 528. In this case, by

contrast, we confront a short and simple, if ambiguous, subsection of

a regulation in which the language we construe is clarified by the

heading. The precedent Gorman invokes counsels only against using

a heading to “limit the plain meaning of the text.” Id. at 528-29; see,

e.g., Holland, 256 F.3d at 822 (declining “to use a heading, which

normally is a kind of shorthand, to justify stripping the actual text of

two words”). It acknowledges that headings “are of use . . . when they

15

Second, Gorman contends that even if the regulation is

ambiguous, the NTSB erred in deferring to the FAA’s

interpretation for two reasons: (1) “the NTSB itself acted

arbitrarily and capriciously by failing to consider and address

the arguments that Mr. Gorman raised against such deference”

and (2) “the NTSB erred in failing to recognize that the FAA’s

interpretation of its regulations was arbitrary, capricious, and

otherwise not entitled to any deference.” Pet’r Br. at 28.

Both arguments misapprehend—and limit—the nature of

our review. With regard to the meaning of the FAA’s regulation,

our review does not, as Gorman suggests, involve “two distinct

levels of deference”—ours to the NTSB and the NTSB’s to the

FAA. The NTSB does indeed owe deference to the FAA’s

interpretation of the regulation: “When conducting a hearing

under [49 U.S.C. § 449(d)], the Board . . . is bound by all validly

adopted interpretations of laws and regulations the Administrator

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).

Nonetheless, while we review the NTSB’s decision to determine

whether it is “ ‘arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law,’ ” when we construe the

regulation, “like the NTSB, we must defer to the FAA’s

interpretations of its own aviation regulations.” Garvey v. NTSB,

190 F.3d 571, 577 (D.C. Cir. 1999) (quoting 5 U.S.C.

§ 706(2)(A)) (citing Martin v. Occupational Safety & Health

Review Comm’n, 499 U.S. 144, 147, 150-57 (1991)). Thus, we

will reject a Board decision as not in accordance with law if it

does not properly defer to the FAA’s interpretation. See id. at

586. As we have already explained, the FAA’s interpretation of

the ambiguous phrase in FAR section 119.23 (“having a

shed light on some ambiguous word or phrase,” R.R. Trainmen, 311

U.S. at 529, as is the case here.

16

passenger-seat configuration of less than 20 seats”) is reasonable.

Deferring to the FAA, we must therefore uphold its

interpretation—whether or not the Board may have erred, as

Gorman claims, in failing to respond to all of his arguments.

Gorman also challenges the FAA’s interpretation on three

grounds: (1) the regulation unambiguously excludes Gorman’s

aircraft from its scope, Pet’r Br. at 32; (2) the FAA changed

course without “reasoned analysis” when Balton revised his

opinion, id. at 34 (citing N. Mun. Distribs. Group v. FERC, 165

F.3d 935, 941 (D.C. Cir. 1999)); and (3) the court should not

defer to an agency interpretation “developed for the first time in

connection with litigation or enforcement proceedings,” Pet’r Br.

at 35 (citing Bowen v. Georgetown Univ. Hosp., 488 U.S. 204,

212 (1988)). We have addressed and rejected the first argument

because the regulation’s language does not bear the unambiguous

meaning that Gorman ascribes to it. As for the second, Balton

did not change his interpretation of FAR section 119.23—his

initial advice was based on the advisory circular and not the

regulation, which Balton acknowledged he had not consulted. In

any event, the precedent Gorman cites requires that an agency

explain a deviation from its “precedent and previous practices,”

N. Mun. Distribs., 165 F.3d at 941, and not from a position

adopted by an agency official early in the course of the same

proceeding. Gorman’s third argument ignores our own

precedent which holds that “[t]he FAA is not required to

promulgate interpretations through rulemaking or the issuance of

policy guidances, but may instead do so through litigation before

the NTSB.” Garvey, 190 F.3d at 577 (rejecting NTSB argument

that FAA “offered ‘no evidence of any policy guidance written

by the FAA, validly adopted or otherwise’ ” but “merely offered

the ‘litigation statements’ of FAA counsel, as well as citations to

the Board’s own case law,” former of which “NTSB believed . . .

insufficient to qualify for Board deference under section

44709(d)(3)”) (emphasis in original).

17

2. The FAA’s Statutory Authority

Next, Gorman asserts that if (contrary to his view) FAR

section 119.23 requires that he obtain a Part 135 certificate, the

regulation exceeds the FAA’s authority in two respects. We

reject this argument as well.

First, Gorman contends that FAR section 119.23 is ultra

vires because the FAA’s authority to issue operating certificates

is statutorily limited by 49 U.S.C. § 44702 to issuing operating

certificates to “air carriers” and “airports”—and Gorman is

neither one. Section 44702(a) provides in relevant part: “The

Administrator of the Federal Aviation Administration may issue

airman certificates, type certificates, production certificates,

airworthiness certificates, air carrier operating certificates,

airport operating certificates, air agency certificates, and air

navigation facility certificates under this chapter.” 49 U.S.C.

§ 44702 (emphasis added). It is true that this provision does not

specifically authorize the FAA to issue an operating certificate

to Gorman as he operates neither as an “airport” nor as an “air

carrier,” the latter being defined as “a citizen of the United States

undertaking . . . to provide . . . foreign air transportation,

interstate air transportation, or the transportation of mail by

aircraft,” none of which is a part of Gorman’s operations. Id.

§ 40102(a)(2)(5). Nor, however, does it prohibit the FAA from

issuing operating certificates in other circumstances under the

authority of a different statute.6 In this case, as the NTSB

asserts, such certification authority is found in 49 U.S.C.

§ 44701.

6

The Congress has itself recognized that the list of certificates has

proved incomplete and has therefore, as Gorman notes, inserted

additional kinds of certificates over the years. See, e.g., Vision 100—

Century of Aviation Reauthorization Act, Pub. L. No. 108-176, § 227,

117 Stat. 2490, 2531 (2003) (authorizing “design organization

certificates”).

18

Section 44701 provides in relevant part:

The Administrator of the Federal Aviation

Administration shall promote safe flight of civil aircraft

in air commerce by prescribing—

...

(5) regulations and minimum standards

for other practices, methods, and procedure

the Administrator finds necessary for safety in

air commerce and national security.

49 U.S.C. § 44701(a)(5). This statute grants the FAA “broad

authority to regulate civil aviation.” Ass’n of Flight

Attendants—CWA v. Chao, 493 F.3d 155, 157 (D.C. Cir. 2007)

(citing 49 U.S.C. § 44701). The broad statutory language

directing that the FAA promulgate regulations as “necessary for

safety in air commerce” easily encompasses the authority to

require operating certificates for commercial aircraft operations

be they common carriage or private. See FAA v. Landy, 705 F.2d

624, 629 n.6 (2d Cir. 1983) (“The appellants contend that the

FAA may not . . . require operating certificates that are ‘other

than . . . air carrier’ or airport operating certificates. . . . But the

statute is plainly broad enough to empower the FAA to regulate

commercial operators.”). This interpretation is consistent

with—if not required by—49 U.S.C. § 44711(a)(5), which

provides: “A person may not— . . . operate aircraft in air

commerce in violation of a regulation prescribed or certificate

issued under section 44701(a) or (b) or any of sections

44702-44716 of [Title 49]” (emphasis added). The quoted

language recognizes that both regulations and certificates may be

prescribed or issued under either “section 44701(a) or (b)” or

“sections 44702-44716.”7

7

Gorman contends that section 44711(a)(5) should be read to

mean that only regulations may be prescribed pursuant to section

19

Second, Gorman argues the FAA lacked statutory authority

to require Gorman to hold an operating certificate because the

FAA has itself limited its certificating authority under Part 119

to operations in “air commerce.” See 14 C.F.R. § 119.1(a)(1)

(“This part applies to each person operating or intending to

operate civil aircraft—(1) As an air carrier or commercial

operator, or both, in air commerce; . . . .”). In particular, Gorman

contends he does not operate aircraft as a “commercial operator”

which involves “air commerce”—defined by regulation to

include “interstate, overseas, or foreign air commerce,” 14

C.F.R. § 1.1 (emphasis added)8—because his flights are “wholly

intrastate, involving transportation of cargo between Long

Beach, California and Montgomery Field in San Diego.” Pet’r

Br. at 40. Gorman acknowledges, however, that “air commerce”

includes not only “interstate, overseas, or foreign air commerce”

but also “any operation or navigation of aircraft . . . which may

endanger safety in, interstate, overseas, or foreign air

commerce,” 14 C.F.R. § 1.1 (emphasis added), and he does not

deny that operations such as his could pose such a danger so as

to require certification and the consequent regulatory

compliance. See Hill v. NTSB, 886 F.2d 1275, 1280 (10th Cir.

44701 and that certificates must be issued pursuant to sections 44702-

44716. See Pet’r Supp. Br. (filed Jan. 15, 2009). We find this

cramped reading less natural and therefore less likely than the

meaning we ascribe in the text.

8

The definition reads in its entirety:

Air commerce means interstate, overseas, or foreign air

commerce or the transportation of mail by aircraft or any

operation or navigation of aircraft within the limits of any

Federal airway or any operation or navigation of aircraft

which directly affects, or which may endanger safety in,

interstate, overseas, or foreign air commerce.

14 C.F.R. § 1.1.

20

1989) (“The statutory definition of ‘air commerce’ is therefore

clearly not restricted to interstate flights occurring in controlled

or navigable airspace. The face of the statute expressly provides

that ‘air commerce’ includes ‘any operation or navigation of

aircraft which directly affects, or which may endanger safety in,

interstate, overseas, or foreign air commerce.’ ” (quoting 49

U.S.C. § 1301(4)) (emphasis by Hill court); Ickes v. FAA, 299

F.3d 260, 263 (3d Cir. 2002) (rejecting Commerce Clause

challenge to regulation of purely recreational and intrastate

flights on grounds that “Congress’s power over interstate

commerce includes the power to regulate use of the nation’s

navigable airspace, which is a channel of interstate commerce”

and “because airplanes constitute instrumentalities of interstate

commerce, any threat to them . . . is properly subjected to

regulation even if the threat comes from a purely intrastate

activity”) (internal citations omitted). The language “may

endanger” also makes clear that to come within the regulation,

it is not necessary that an airplane actually pose a demonstrable

threat, as Gorman suggests. See Hill, 886 F.2d at 1280 (“The

fact that the pilot’s unsafe conduct in a particular instance did not

actually endanger interstate, overseas, or foreign air commerce

does not exempt such conduct from FAA jurisdiction.”).

3. Appropriateness of Sanction

Finally, Gorman contends that the sanction the FAA

imposed—revocation of his commercial pilot certificate—is

excessive and arbitrary and capricious. Because Gorman failed

to raise this objection before the NTSB, and offers no reasonable

ground for this failure, we conclude that he has waived the

objection. See 49 U.S.C. § 1153(b)(4) (“In reviewing an order

under this subsection, the court may consider an objection to an

order of the Board only if the objection was made in the

proceeding conducted by the Board or if there was a reasonable

ground for not making the objection in the proceeding.”).

21

For the foregoing reasons, the petition for review is denied.

So ordered.