Moshea v. National Transportation Safety Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 24, 2009 Decided June 30, 2009

No. 08-1218

RYAN J. MOSHEA,

PETITIONER

v.

NATIONAL TRANSPORTATION SAFETY BOARD AND FEDERAL

AVIATION ADMINISTRATION,

RESPONDENTS

On Petition for Review of an Order

of the Department of Transportation

Joseph H. Thibodeau argued the cause and filed the

briefs for petitioner.

Agnes M. Rodriguez, Attorney, Federal Aviation

Administration, argued the cause and filed the brief for

respondent.

Before: GINSBURG and KAVANAUGH, Circuit Judges, and

RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge

KAVANAUGH, in which Circuit Judge GINSBURG joins and in

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all but Section II-A of which Senior Circuit Judge RANDOLPH

joins.

Opinion concurring in all but Section II-A filed by Senior

Circuit Judge RANDOLPH.

KAVANAUGH, Circuit Judge: In 2005, the Federal

Aviation Administration suspended Ryan Moshea’s pilot

certificate after the agency found that he had violated certain

record-keeping safety regulations. Moshea appealed to the

National Transportation Safety Board pursuant to the

statutory process for Board review of FAA sanctions. In

proceedings before the Board, he attempted to raise an

affirmative defense based on his compliance with the

voluntary disclosure program set out in FAA Advisory

Circular 00-58. The Board ruled that it lacked jurisdiction to

entertain Moshea’s affirmative defense, and it affirmed his

suspension. Moshea petitioned for review in this Court. We

grant Moshea’s petition for review, vacate the Board’s

decision, and remand to the Board for further proceedings.

I

Ryan Moshea worked as a certified pilot for the Key

Lime Air Corporation, a commercial air cargo carrier. While

conducting a cargo flight in October 2004, Moshea

encountered difficulty extending the plane’s landing gear.

After landing, Moshea told a Key Lime mechanic about the

problem. According to Moshea, the mechanic said that such

difficulties were normal in cold weather. Moshea did not note

the problem in the maintenance log for the plane, as required

by FAA regulations. See 14 C.F.R. § 135.65(b); see also

§ 91.7(a); § 91.13(a). Several days later, after a few

uneventful flights in the same aircraft, Moshea again had

trouble lowering the aircraft’s gear. Upon landing, Moshea

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contacted another Key Lime mechanic and received

assurances that the difficulties likely resulted from cold

weather. This time, the mechanic relayed the report to his

supervisor, who scheduled the plane for maintenance two

days later. Moshea again did not enter the problem in the

maintenance log. On the intervening day, another pilot flying

the same plane experienced difficulty in deploying the landing

gear. After the second pilot landed safely, the ground crew

found that the landing gear was damaged.

Shortly thereafter, Key Lime voluntarily disclosed those

incidents to the Federal Aviation Administration pursuant to

FAA Advisory Circular 00-58, which is a publicly available

document setting forth the FAA’s voluntary disclosure

program. Under that Circular, the FAA agrees to forgo

enforcement actions under certain circumstances so as to

encourage regulated parties to voluntarily report apparent

violations of FAA regulations. In this case, Key Lime’s

voluntary disclosures included Moshea’s failure to make

maintenance log entries of the in-flight mechanical problems

he experienced.

Applying Circular 00-58 to this case, the FAA concluded

that Key Lime and a number of Key Lime employees would

receive no penalty. But the FAA suspended Moshea from

flying for 60 days. Moshea appealed the FAA’s decision to

the National Transportation Safety Board. An Administrative

Law Judge initially heard the case. In that proceeding,

Moshea asserted an affirmative defense based on the FAA’s

voluntary disclosure program, which as explained in footnote

1 covers individual employees of regulated parties under

certain circumstances.1 But the ALJ ruled that the Board

1

The relevant portions of Advisory Circular 00-58 read:

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6. VOLUNTARY DISCLOSURE POLICY. The FAA

believes that the open sharing of apparent violations and a

cooperative as well as an advisory approach to solving

problems will enhance and promote aviation safety.

Certificate holders, indirect air carriers, foreign air carriers,

and PAHs will receive a letter of correction in lieu of civil

penalty action for covered instances of noncompliance that are

voluntarily disclosed to the FAA in accordance with the

procedures set forth in this AC. Once the letter of correction is

issued, the case will be considered closed unless the agreed-

upon comprehensive fix is not satisfactorily completed by the

appropriate entity.

...

13. SEPARATE ACTIONS AGAINST AIRMEN OR

OTHER INDIVIDUAL AGENTS.

a. The voluntary disclosure policy applies to individual

airmen or other agents of an employing certificate holder,

indirect air carrier, foreign air carrier, or PAH when:

(1) The apparent violation involves a deficiency of the

employing entity’s practices or procedures that causes the

employing certificate holder, indirect air carrier, foreign air

carrier, or PAH to be in violation of a covered violation of an

FAA regulation;

(2) The airman or other agent of the employing entity,

while acting on behalf of the employing entity, inadvertently

violates the FAA’s regulations as a direct result of a deficiency

of the employing entity that causes the employing entity to be

in violation of the regulations. (The voluntary disclosure

policy does not apply to the airman or other agent when his/her

apparent violation is the result of actions unrelated to the

employing entity’s deficiency);

(3) The airman or other agent immediately makes the

report of his/her apparent violation to the employing entity;

and

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lacked jurisdiction to consider the affirmative defense and

refused Moshea’s effort to admit evidence bearing on his

compliance with that program. The ALJ upheld Moshea’s

suspension (albeit reducing it from 60 to 50 days). Moshea

then appealed the ALJ’s decision to the Board. The Board

agreed with the ALJ that it lacked jurisdiction to hear

Moshea’s affirmative defense, and it affirmed the sanction of

suspension. In dicta, the Board suggested (but did not rule)

that Moshea may not have satisfied the specific requirements

of the voluntary disclosure program in this case even if the

Board had jurisdiction to entertain such a challenge.

II

A

The National Transportation Safety Board possesses

jurisdiction to review certain Federal Aviation Administration

orders, including the order of suspension at issue in this case.

See 49 U.S.C. § 44709(d)(1). In exercising that jurisdiction,

the Board is “not bound by findings of fact of the

Administrator but 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.” Id.

§ 44709(d)(3) (emphasis added).

(4) The employing certificate holder, indirect air carrier,

foreign air carrier, or PAH immediately notifies the FAA of

both the airman or other agent’s apparent violation and the

apparent deficiency in its practice or procedures.

FAA Advisory Circular 00-58 at 3-4, 9-10.

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In this case, the Board concluded that FAA Circular 00-

58 is not “related to sanctions” under § 44709(d)(3), even

though the Circular provides that no sanctions will be

imposed in cases of voluntary disclosure. Moshea, NTSB No.

EA-5328, slip op. at 7, 2007 WL 3088248 (Oct. 17, 2007).

On that basis alone, the Board concluded that Moshea could

not present his affirmative defense based on Circular 00-58.

Id. That conclusion allowed the Board to distinguish this case

from the many Board cases addressing whether FAA

sanctions comport with published FAA guidance documents.

In this Court, the FAA reiterates the argument that Circular

00-58 is unavailable to Moshea because it purportedly “does

not relate to the sanctions to be imposed.” FAA Br. at 22.

We find unreasonable the efforts of the FAA and the

Board to evade Circular 00-58 in this way. Without getting

into a metaphysical discussion of the meaning of the phrase

“related to,” it suffices here to say that the words “related to”

are broad. Cf. Celotex Corp. v. Edwards, 514 U.S. 300, 307-

08 (1995) (“Congress did not delineate the scope of ‘related

to’ jurisdiction, but its choice of words suggests a grant of

some breadth.”) (footnote omitted). And we think a Circular

that says no sanction will be imposed in a case of voluntary

disclosure is quite obviously “related to sanctions.” We

conclude that the Board’s analysis was unreasonable and

contrary to the statute.2

2

It is at least theoretically conceivable that the FAA in the

future could try to interpret Circular 00-58 as not binding on it (for

a reason other than that the Circular is purportedly unrelated to

sanctions) and that the Board would uphold such an interpretation

as not arbitrary and capricious under § 44709(d)(3). It seems

doubtful, given the structure of this unusual statute, that the FAA’s

authority to “interpret[] . . . [FAA] guidance available to the public

related to sanctions” under § 44709(d)(3) includes the authority to

say that FAA “guidance available to the public related to sanctions”

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B

The Board’s analysis suffers from a separate flaw that

also requires vacatur. The Board’s position in Moshea’s case

is inconsistent with its handling of a prior case. In Liotta, the

Board allowed an employee of an air carrier to assert an

“affirmative defense” based on Advisory Circular 00-58.

Liotta, NTSB No. EA-5297, slip op. at 6, 2007 WL 1920600

(June 27, 2007). In Liotta, the Board thus exercised its

jurisdiction to consider an affirmative defense virtually

identical to Moshea’s. By departing from the Liotta precedent

without explanation, the Board here acted in an arbitrary and

capricious manner. Cf. Ramaprakash v. FAA, 346 F.3d 1121,

1125 (D.C. Cir. 2003) (“An agency’s failure to come to grips

with conflicting precedent constitutes an inexcusable

departure from the essential requirement of reasoned decision

making.”) (internal quotation marks omitted). The Board’s

inconsistent treatment of Moshea’s case and Liotta’s case

supplies an independent basis for vacating the Board’s order

in this case.

III

The FAA alternatively argues that the Board’s decision to

disallow Moshea’s affirmative defense was harmless even if

is not binding. At this point, however, we need not consider

whether the FAA (and the Board) could do so consistently with the

statutory scheme. We do note that the Board did not suggest in its

opinion in this case that Circular 00-58, if deemed to be related to

sanctions, would not be binding. Moreover, in Montgomery, the

Board stated with regard to a similar FAA policy that “regardless of

whether [the policy] is characterized as a rule, regulation, or

statement of policy, the Administrator is bound by its terms.”

Montgomery, 3 NTSB 2150, 2154 (1980).

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erroneous. See 5 U.S.C. § 706 (“due account shall be taken of

the rule of prejudicial error”). As the FAA points out, the

Board’s opinion stated that Moshea did not appear to meet the

requirements of the voluntary disclosure program even

assuming that Moshea could assert a defense based on it. At

the initial hearing, however, the ALJ denied Moshea’s attempt

to introduce evidence bearing on his compliance with the

voluntary disclosure program. We cannot assume that the

Board would have denied Moshea’s affirmative defense had

such evidence been introduced; the Board did not definitively

analyze the significance (if any) of Moshea’s proffered

evidence. Cf. Steenholdt v. FAA, 314 F.3d 633, 640 (D.C.

Cir. 2003) (no substantial prejudice where petitioner “has

presented no theory under which the weak record prejudiced”

his case). We therefore must decline the FAA’s invitation to

resolve this case on harmless error grounds.

***

The Board had jurisdiction to decide whether the FAA’s

suspension of Moshea comported with the FAA’s voluntary

disclosure policy set forth in Advisory Circular 00-58. We

accordingly grant Moshea’s petition for review, vacate the

decision of the Board, and remand to the Board for further

proceedings.

So ordered.

RANDOLPH , Senior Circuit Judge, concurring in all but

Section II-A: I do not agree that the FAA Administrator’s

Advisory Circular falls within the review provision of 49 U.S.C.

§ 44709(d)(3). The provision states that the Board is bound by

the Administrator’s interpretation “of written agency policy

guidance available to the public related to sanctions to be

imposed under this section” unless the interpretation is

“arbitrary, capricious, or otherwise not according to law.”

§ 44709(d)(3). Contradicting the Administrator and the Board,

my colleagues conclude that the Circular falls within

§ 44709(d)(3) because it is “related to sanctions.” Maj. Op. at 6.

The majority’s conclusion rests on a misreading of the statute.

It is not enough that the guidance is related to sanctions: the

guidance must be related to sanctions “to be imposed under this

section.” The provision thus contemplates an ongoing

enforcement action, not the Administrator’s decision whether to

institute the action. This much follows from the fact that

sanctions under § 44709 are to be imposed only in enforcement

actions. Yet the very point of the Circular is to spell out when

the Administrator will not bring an enforcement action. Section

44709(d)(3) therefore cannot encompass the Circular, or at least

the portion of it Moshea sought to invoke as a defense. That

was the Administrator’s and the Board’s interpretation, an

interpretation I believe to be correct. At a minimum it is a

reasonable view of the application of § 44709(d)(3) to the

Circular and was entitled to judicial respect. See Chevron

U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984).

I join the balance of the majority opinion dealing with the

Board’s unexplained departure from its precedent. Maj. Op. at

7.