The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 6, 2009 Decided December 8, 2009
No. 09-1117
HAROLD B. SINGLETON,
PETITIONER
v.
J. RANDOLPH BABBITT, ADMINISTRATOR, FEDERAL AVIATION
ADMINISTRATION, ET AL.,
RESPONDENTS
On Petition for Review of an Order
of the National Transportation Safety Board
Kathleen A. Yodice argued the cause and filed the briefs for
petitioner.
Agnes M. Rodriguez, Senior Attorney, Federal Aviation
Administration, argued the cause and filed the brief for
respondent. With her on the brief were Peter J. Lynch, Assistant
Chief Counsel, and Laura R. Ponto, Counsel.
Before: GARLAND, BROWN, and GRIFFITH, Circuit Judges.
Opinion for the Court filed PER CURIAM.
-2-
PER CURIAM: The Federal Aviation Administration (FAA)
revoked petitioner Harold Singleton’s medical certificate and
pilot’s license after finding that he gave an intentionally false
answer on his application for the medical certificate. The
National Transportation Safety Board affirmed the FAA’s
revocation order. We conclude that the Board erred in two
respects. It wrongly suggested that Singleton’s understanding
of the form was irrelevant to the offense of intentional
falsification. And it granted summary judgment to the FAA
without giving Singleton a chance to present evidence bearing
on that understanding. Accordingly, we vacate the grant of
summary judgment and remand for further proceedings.
I
In March 2008, North Carolina police stopped Singleton at
a driver’s license checkpoint. A breathalyzer test showed that
he had a blood alcohol concentration of .08 or more, a level that
constitutes an “implied-consent offense[]” and results in a “civil
license revocation” under North Carolina law. N.C. GEN. STAT.
§ 20-16.5. Singleton was arrested and charged with the implied-
consent offense, and his license was revoked for thirty days.
The revocation order was issued by the District Court Division
of the General Court of Justice of Gaston County, North
Carolina, and was signed by a magistrate, whom the order
described as a “Judicial Official.” Revocation Order When
Person Present (Mar. 14, 2008) (J.A. 158). Singleton was also
charged criminally for driving while impaired, but that charge
was eventually dismissed. See Appellant’s Br. 18 n.7; id. at
Addendum B.
A few months later, in June 2008, Singleton applied to the
FAA for an Airman Medical Certificate. Question 18 of the
application form covers “Medical History.” At the time
Singleton applied for his certificate, Question 18v was listed
-3-
under a separate subheading entitled “Conviction and/or
Administrative Action History,” and asked applicants to answer
“Yes” or “No” to the following:
History of (1) any conviction(s) involving driving
while intoxicated by, while impaired by, or while under
the influence of alcohol or a drug; or (2) history of any
conviction(s) or administrative action(s) involving an
offense(s) which resulted in the denial, suspension,
cancellation, or revocation of driving privileges or
which resulted in attendance at an educational or a
rehabilitation program.
FAA Form 8500-8 (3-99) (J.A. 151) (emphasis added).
Singleton checked “No.”
On July 24, 2008, the FAA informed Singleton by letter that
it had learned of the driver’s license revocation. The agency
stated that it was investigating whether Singleton had
“intentionally provided false or fraudulent information” in his
response to Question 18v, “in that [he] did not reference [his]
alcohol related offense.” Letter from C. Johnson to H. Singleton
(July 24, 2008) (J.A. 155). Singleton responded a week later,
denying that he had intentionally provided false information. He
explained that he had not been convicted of any alcohol-related
charges and that he “did not look upon [the revocation] as a
revocation due to a conviction but only a part of the process.”
Letter from H. Singleton to C. Johnson (July 31, 2008) (J.A.
156-57). “In retrospect,” he continued, “I wished that I had
asked the FAA for clarification on the meaning of
‘Administrative Action’, however, at the time it seemed clear to
me that I was not to answer ‘yes’ until or unless there were to be
a conviction.” Id. (bolding removed).
-4-
On October 2, 2008, the FAA issued an emergency order
revoking Singleton’s pilot’s license and medical certificate. The
FAA charged Singleton with violating 14 C.F.R. § 67.403(a)(1),
which bars “fraudulent or intentionally false statement[s] on any
application for a medical certificate.”
Singleton appealed the revocation order to the National
Transportation Safety Board (NTSB). On October 27, the FAA
moved for summary judgment before an administrative law
judge (ALJ), stating that Singleton’s driving record showed that
his license “was administratively revoked/suspended for a cause
related to alcohol.” Mot. for Summ. J. at 2 (J.A. 146). The FAA
noted that Singleton knew of the revocation and failed to seek
clarification about the meaning of Question 18v. “Instead,” the
FAA contended, “on his own, [Singleton] chose to interpret the
plain language of item 18.v to require a ‘yes’ answer only after
a conviction,” and this interpretation was a “rationalization.” Id.
at 4. Singleton knew that his “no” answer was false, the FAA
maintained, id. at 5, and summary judgment was therefore
appropriate under NTSB Rule 17(d), 49 C.F.R. § 821.17(d),
because there were “no material facts in dispute,” id. at 1.
Singleton filed an opposition to the FAA’s summary
judgment motion on November 5, arguing that Question 18v
was confusing and that the term “administrative action” was not
defined on the form or in the instructions. Singleton argued that
his knowledge and understanding of the meaning of Question
18v was a disputed issue of fact that ought to be resolved at a
hearing. See Opp’n to Complainant’s Mot. for Summ. J. at 2-4
(J.A. 163-65). He attached an affidavit attesting that he “did not
know the events were an administrative action as asked for in
Question 18.v.” Singleton Aff. ¶ 6 (J.A. 170). On November
18, 2008, Singleton filed a “Supplemental Response to Pre-
Hearing Order,” updating the information he had previously
provided about witnesses and exhibits he would offer at a
-5-
hearing. The exhibits included a page from Black’s Law
Dictionary, stating that “administrative functions or acts are
distinguished from such as are judicial.” BLACK’S LAW
DICTIONARY 45 (6th ed. 1990), Attach. to Supplemental Resp.
to Pre-Hearing Order (J.A. 187).
On November 19, the ALJ granted the FAA’s motion for
summary judgment. The ALJ concluded that, because Singleton
had signed “court documents” attesting to the revocation, “it is
patently absurd and unbelievable that he did not know that his
North Carolina driver license had been administratively
revoked/suspended.” Am. Order Granting Acting
Administrator’s Mot. for Summ. J. at 5 (J.A. 202). The question
and the documents reflecting the revocation, the ALJ said, “are
stated in plain English.” Id.
Singleton appealed to the NTSB. The Board’s opinion first
noted that its regulations permit summary judgment where “no
factual issues exist” and the moving party is “entitled to
judgment as a matter of law.” Administrator v. Singleton, NTSB
Order No. EA-5437 at 5-6, 2009 WL 870356 (Mar. 24, 2009)
[hereinafter Board Opinion]; see 49 C.F.R. § 821.17(d). The
Board then explained that, to sustain a charge under the
intentional falsification prong of 14 C.F.R. § 67.403(a)(1), the
FAA “must prove that a pilot (1) made a false representation, (2)
in reference to a material fact, (3) with knowledge of the falsity
of the fact.” Board Opinion at 6-7.
Turning to the evidence, the Board rejected Singleton’s
contention that he did not know that the phrase “administrative
action” covered the court-ordered revocation of his driver’s
license. “There is indeed a plain meaning to the term
‘administrative action,’” the Board opined, “and respondent’s
efforts to sow confusion upon it we find unavailing.” Id. at 8.
The Board explained that “[w]hen the question is not confusing,
-6-
where the wording has a literal meaning, and where the DUI
infraction at issue clearly begs candidness with the
Administrator, respondent cannot claim he did not knowingly
provide a false response.” Id. The Board found that no “factual
question remains” about Singleton’s knowledge and that
summary judgment was appropriate. Id.
The Board then went on to indicate that Singleton’s
understanding of Question 18v was not even relevant to whether
he had the knowledge requisite to make an intentionally false
statement under 14 C.F.R. § 67.403(a)(1). A pilot’s “failure to
understand a question,” the Board stated, “does not establish a
lack of intent to provide false information.” Id. at 9. Singleton
“knew that his driving privileges had been revoked, and he knew
that the reason for that revocation was because of an alcohol-
related incident.” Id. at 8. Hence, the Board concluded, “the
evidence shows that [he] was aware of the statement’s falsity.”
Id.
The Board denied Singleton’s appeal, and he petitioned for
review in this court.
II
Our review of decisions by the NTSB is governed by the
Administrative Procedure Act (APA) and the Federal Aviation
Act, the latter of which sets up a “split-enforcement regime.”
Garvey v. NTSB, 190 F.3d 571, 576 (D.C. Cir. 1999). The FAA
issues regulations governing air safety that it enforces against
pilots -- for example, by revoking their pilot’s licenses or
medical certificates. See 49 U.S.C. §§ 44701(a), 44709(b). A
pilot may appeal revocation orders to the NTSB, which makes
independent findings of fact but must defer to the FAA’s
interpretation of its own regulations. Id. § 44709(d)(3); see
Garvey, 190 F.3d at 576. Finally, a pilot may appeal a decision
-7-
of the NTSB to this court. We review such a decision under the
APA’s familiar arbitrary and capricious standard. 5 U.S.C.
§ 706(2)(A); see Garvey, 190 F.3d at 576-77. We are bound by
the Board’s factual findings if they are supported by “substantial
evidence,” 49 U.S.C. § 44709(f), and we too must defer to the
FAA’s interpretations of its own regulations, Garvey, 190 F.3d
at 577.
We first consider the Board’s interpretation of the FAA
regulation prohibiting intentionally false statements on medical
certificate applications. We then turn to the Board’s reading of
Singleton’s application and its decision that the phrase
“administrative action” was so clear as to warrant summary
judgment in favor of the FAA.
A
The FAA regulation at issue, 14 C.F.R. § 67.403(a)(1),
prohibits the making of a “fraudulent or intentionally false
statement” on an application for a medical certificate. The
leading case interpreting that phrase is Hart v. McLucas, which
explained that the elements of intentional falsity were “(1) a
false representation (2) in reference to a material fact (3) made
with knowledge of its falsity.” 535 F.2d 516, 519 (9th Cir.
1976) (internal quotation marks omitted). Hart held that an
intentionally false statement -- unlike a fraudulent statement --
did not require “intent to deceive.” Id. But it rejected the
FAA’s and NTSB’s contention that not even “knowledge of
falsity” was required, explaining that the regulation “explicitly
includes an intent requirement” and hence requires “reference to
the mental state of the person who makes the entry.” Id.
Thereafter, both the FAA and the NTSB adopted Hart’s
standard as their own for intentional falsification cases like
-8-
Singleton’s. See Dillmon v. NTSB, No. 08-1390, slip op. at 13
(D.C. Cir. Dec. 8, 2009).1
The NTSB invoked Hart when it explained what was
required to sustain a charge against Singleton. But it concluded
that the “knowledge” element of intentional falsity was satisfied
because Singleton knew his license had been revoked for an
alcohol-related incident. Board Opinion at 8. Whether
Singleton knew that the question asked him to report that
particular type of revocation was of no moment, the Board
suggested, for “failure to understand a question . . . does not
establish a lack of intent to provide false information.” Id. at 9.
Singleton contends this was error, and we agree. As we
held in Dillmon v. NTSB, under Board law a pilot’s
understanding of a question is not irrelevant to whether he
offered an intentionally false answer under § 67.403(a)(1). See
Dillmon, slip op. at 14-15. Rather, § 67.403(a)(1) requires proof
that the “airman subjectively understood what the question
meant.” Id. at 15. The Board’s contrary view in this case is
inconsistent with its own precedent. As the Board explained in
Administrator v. Sue, intentional falsification “requires actual
knowledge of the false statement.” NTSB Order No. EA-3877,
1993 WL 157467, at *1 (Apr. 28, 1993). There, the Board went
on to explain that the actual knowledge requirement was
satisfied because an ALJ found that the pilot “did know . . . that
what they were asking on the form he should have said yes to.”
Id. (internal quotation mark omitted). Likewise, in
Administrator v. Robbins, the Board explained that the “issue for
the law judge was whether respondent knew he was giving false
1
Although Hart itself interpreted a regulation related to fraudulent
or intentionally false entries in logbooks, the FAA and the Board
adopted its requirements for purposes of § 67.403(a)(1) as well. See
Dillmon, slip op. at 13.
-9-
answers.” NTSB Order No. EA-4156, 1994 WL 159899, at *3
(Apr. 17, 1994). In Robbins, the ALJ had properly determined
that the respondent did know, but only after “question[ing] [him]
extensively regarding both his intentions and his understanding
of the application questions” and concluding that the
respondent’s “explanation was not credible.” Id. at *4. The
Board repeated this point in Administrator v. Reynolds, stating
that the knowledge required for intentional falsification
“necessarily hinge[s] on [a pilot’s] understanding of what
information the question was intended to elicit.” NTSB Order
No. EA-5135, 2005 WL 196535, at *4 (Jan. 24, 2005).
This series of cases alone would warrant remanding, for
“agency action is arbitrary and capricious if it departs from
agency precedent without explanation.” Ramaprakash v. FAA,
346 F.3d 1121, 1124 (D.C. Cir. 2003); see Dillmon, slip op. at
14-15. But there is yet another reason to reject the Board’s
interpretation of intentional falsity: the FAA does not share it.
As FAA counsel confirmed, the FAA’s position is that
knowledge of falsity under § 67.403(a)(1) depends on the pilot’s
understanding of the question. Oral Arg. Recording at 24:55-
25:03; see Dillmon, slip op. at 14. The NTSB is “bound by all
validly adopted interpretations of laws and regulations the
[FAA] carries out . . . unless the Board finds an interpretation is
arbitrary, capricious, or otherwise not according to law.” 49
U.S.C. § 44709(d)(3); see Garvey, 190 F.3d at 576. Section
67.403(a)(1) is the FAA’s regulation, and its interpretation is
plainly reasonable. Hence, the intentional falsification prong of
§ 67.403(a)(1) requires the FAA to show -- and the NTSB to
find -- that a pilot understood the question to which he or she
provided an allegedly false answer. Dillmon, slip op. at 14-15.
-10-
B
That a pilot had the requisite subjective understanding will
often be apparent from circumstantial evidence. And we will
uphold the Board's finding of a pilot's knowledge of falsity from
circumstantial evidence if supported by substantial evidence.
See Erickson v. NTSB, 758 F.2d 285, 288 (8th Cir. 1985) ("[T]he
Board's inference from circumstantial evidence that [the pilot]
knowingly made false entries was not an impermissible step if
supported by substantial evidence."). Thus none of the
foregoing is inconsistent with the NTSB’s view that
“introducing the medical applications and the record of
conviction” can constitute “sufficient prima facie proof of the
violation” of § 67.403(a)(1). Administrator v. Manin, NTSB
Order No. EA-4303, 1994 WL 702136, at *3 (Dec. 7, 1994). So
too, the NTSB may be warranted in proceeding by summary
judgment in that circumstance. As we have noted, the NTSB’s
rules permit summary judgment if “there are no material issues
of fact to be resolved.” 49 C.F.R. § 821.17(d). In the past, the
FAA and NTSB have suggested that credibility hearings are the
norm in intentional falsification cases because factual
determinations about knowledge do not readily lend themselves
to adjudication on paper. See Administrator v. Johnston, NTSB
Order No. EA-5414, 2008 WL 4771936, at *1 (Oct. 28, 2008);
Sue, NTSB Order No. EA-3877, 1993 WL 157467, at *2;
Administrator v. Barghelame, 7 N.T.S.B. 1276, 1276 (1991).
Nonetheless, where a question is sufficiently clear and the
proffered explanation of misunderstanding sufficiently
implausible, it may be true that no reasonable factfinder could
credit the explanation.2 In such a case, no hearing would be
2
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)
(holding that, under the Federal Rules of Civil Procedure, “summary
judgment will not lie if the dispute about a material fact is ‘genuine,’
that is, if the evidence is such that a reasonable [factfinder] could
-11-
required.
But Singleton contends that this is not such a case.
Question 18v did not require him to report every revocation of
his driving privileges. Rather, it required him to indicate
whether he had a “history of any conviction(s) or administrative
action(s)” that resulted in revocation. FAA Form 8500-8 (J.A.
151). The FAA does not contend that Singleton’s revocation
resulted from a “conviction.” See Mot. for Summ. J. at 2, 4
(J.A. 146, 148); Appellee’s Br. 23. This leaves only the
possibility that it resulted from an “administrative action.” And
Singleton maintains that he did not understand that the
court-ordered civil revocation of his driver’s license constituted
an “administrative action.”
Singleton’s reading is not inherently implausible. In this
court, “administrative” action is typically distinguished from
“judicial” action and refers to action by an agency. See, e.g.,
Moore v. District of Columbia, 907 F.2d 165, 168 (D.C. Cir.
1990) (en banc); Hastings v. Judicial Conference, 770 F.2d
1093, 1102 (D.C. Cir. 1985) (citing Chandler v. Judicial
Council, 398 U.S. 74, 88 n.10 (1970)); Utz v. Cullinane, 520
F.2d 467, 472 n.9 (D.C. Cir. 1975); see also LOUIS L. JAFFE,
JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 124, 143
(1965); Peter L. Strauss, Revisiting Overton Park: Political and
Judicial Controls Over Administrative Actions Affecting the
Community, 39 UCLA L. REV. 1251, 1257 (1992). Congress has
made the same distinction. See 42 U.S.C. § 9627(i) (stating that
the “exemptions provided in this section shall not affect any
concluded judicial or administrative action or any pending
return a verdict for the nonmoving party”); Board Opinion at 6 (noting
that the NTSB has “historically considered the Federal Rules . . . to be
instructive in determining whether disposition of a case via summary
judgment is appropriate”).
-12-
judicial action”). Nor is this understanding confined to judges
and legislators. See WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 28
(1976) (defining “administrative law” as “law dealing with . . .
authorized agencies in the executive branch of government”).
The FAA insists that Singleton’s interpretation is “indefensible”
and “incredible,” Appellee’s Br. 29 (internal quotation marks
omitted), but the agency’s assertion does not make it so.
Likewise, the Board’s decision repeatedly proclaims that the
term has a “plain” or “literal” meaning, Board Opinion at 8, but
it never identifies what that meaning is or why it includes a
court-ordered revocation. Nor do the instructions for Question
18v provide any illumination. See Instructions to Form 8500-8
(J.A. 182).
There is no dispute that Singleton’s license was revoked by
a “judicial official.” The Board uses those words in its decision,
Board Opinion at 4, as does the North Carolina revocation form
itself, Revocation Order When Person Present (J.A. 158). The
Board also refers to the revocation as a “court order revoking his
driver’s license.” Board Opinion at 3 (emphasis added). Under
these circumstances, Singleton’s affidavit, averring that he did
not understand the revocation to be an administrative action,
raised a genuine issue of material fact as to his knowledge of
falsity. Summary judgment was thus inappropriate under the
Board’s regulation, 49 C.F.R. § 821.17(d), and it was arbitrary
and capricious for the Board to find otherwise, see Rogers Corp.
v. EPA, 275 F.3d 1096, 1097 (D.C. Cir. 2002).
None of this precludes the NTSB from finding, after a
hearing, that Singleton did understand that Question 18v called
for a “yes” answer in the circumstances of his case.3 Nor do we
3
At oral argument, Singleton made clear that he does not
challenge the NTSB’s finding that Question 18v was intended to call
-13-
cast doubt on the FAA’s ability to impose penalties when a
pilot’s driver’s license is revoked for an alcohol-related offense,
regardless of who issues the revocation or what the pilot knows
or intends. Cf. 14 C.F.R. § 61.15(c)(2), (d) (providing that a
pilot’s license or certificate may be revoked after two alcohol-
related driver’s license suspensions within three years). The
problem in this case is that the FAA did not purport to revoke
Singleton’s pilot’s license for the underlying offense, but rather
for intentionally providing false information on an application
form.
III
We conclude that it was arbitrary and capricious to deny
Singleton a hearing at which he could offer evidence that he did
not understand the phrase “administrative action” to include a
court-ordered revocation of his driver’s license. Accordingly,
we grant the petition for review, vacate the NTSB’s summary
judgment order, and remand for further proceedings consistent
with this opinion.
So ordered.
for a “yes” answer in his case, i.e., that the FAA regarded his
revocation as an administrative action. He challenges only the
NTSB’s finding that he understood that to be so. Oral Arg. Recording
at 8:33-9:42.