Dickson v. National Transportation Safety Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 21, 2011 Decided May 6, 2011

No. 10-1091

NEWTON R. DICKSON,

PETITIONER

v.

NATIONAL TRANSPORTATION SAFETY BOARD AND FEDERAL

AVIATION ADMINISTRATION,

RESPONDENTS

On Petition for Review of an Order

of the National Transportation Safety Board

Gregory S. Winton argued the cause and filed the briefs for

petitioner.

Susan Caron, Attorney, Federal Aviation Administration,

argued the cause for respondent. On the brief was Autumn

Killingham, Attorney.

Before: SENTELLE, Chief Judge, and HENDERSON and

GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

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GARLAND, Circuit Judge: The Federal Aviation

Administration (FAA) denied Newton Dickson’s application for

a first-class airman medical certificate because he had a history

of “disturbance of consciousness without satisfactory medical

explanation” or “other seizure disorder, disturbance of

consciousness, or neurologic condition.” With respect to one of

the incidents that led the FAA to this conclusion -- an incident

aboard a passenger-carrying Boeing 757 -- the best that

Dickson’s own medical expert could say was that “the much

more likely story is [that] he was acting like a teenager.” Had

the National Transportation Safety Board (NTSB) believed that

expert, it might well have taken away the “teenager’s” jet keys

on that ground alone. Instead, it affirmed the FAA’s

determination that Dickson was not medically qualified to fly.

We do so as well.

I

On December 20, 2006, Dickson applied for a first-class

airman medical certificate pursuant to 49 U.S.C. § 44703. After

a period of evaluation, FAA Federal Air Surgeon Frederick

Tilton issued a denial letter in March 2008, amended in March

2009, concluding that Dickson did not meet the medical

standards set out in the relevant regulations because he had “a

history of disturbance of consciousness without satisfactory

medical explanation, and/or other seizure disorder, disturbance

of consciousness, or neurologic condition.” Tilton Letter (Mar.

19, 2009) (JA 28) (citing, inter alia, 14 C.F.R. § 67.109(a)(2),

(b)). “These findings,” Tilton said, made the grant of a medical

certificate “incompatible with aviation safety.” Id.

The FAA’s denial was based on two incidents that took

place in the spring of 2004. As of that time, Dickson had been

flying MD-80 aircraft for Continental Airlines and was training

to fly the Boeing 757. On April 8, during a layover in London,

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he collapsed at a restaurant. Emergency Medical Services

(EMS) paramedics who arrived at the scene wrote

“Convulsions/Fitting, Shivering” in their report, Emergency Call

Receipt (Apr. 8, 2004) (JA 43), and further stated, among other

things, that the “patient had just finished eating when he stood

up and collapsed to the floor and began fitting for approx. 4

minutes,” EMS Report (Apr. 8, 2004) (JA 45). Dickson was

transported to the University College London Hospital, a

hospital “world-renowned for its expertise in neurology.”

Petition of Dickson, NTSB Order No. EA-5517, at 4 n.3 (Apr.

9, 2010) (citing expert testimony). There, he was examined by

several doctors, including Dr. Clement Loy, who discharged him

the following day with the diagnosis: “generalized seizure.”

UCL Hosp. Discharge Record (Apr. 9, 2004) (JA 66).

One month later, Dickson was paired with Captain Frank

Metzner for a Boeing 757 training flight. On the second leg of

the passenger-carrying flight, from Cleveland to Las Vegas,

Captain Metzner “noticed enroute degradation in his

performance, and deterioration in his level of awareness and

application of autoflight functions.” NTSB Order at 7.

According to Metzner, Dickson “stared at the computer, seemed

to ignore the input procedures, and had significant problems

with automation that he had not experienced earlier.” Id. When

Dickson failed to achieve a reasonable glide angle for arrival,

Metzner took over the controls and assisted in the landing.

Upon arrival in Las Vegas, Metzner instructed Dickson to

prepare the aircraft for the final leg to Houston. Dickson,

however, “did not appear to be able to complete the tasks

without assistance.” Id. at 8. Instead:

He stared at the computer and did not enter the take-off

data for Houston. He was unable to perform some basic

automation procedures . . . . He was unable to load the

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Flight Management Computer, repeatedly pushing the

auto-initiation prompt, even after Captain Metzner told

him where to find the correct prompt. Petitioner

continued to hit the auto initiation key, repeating the

phrase, ‘got to load fuel.’

Id. When “Metzner called for the before-start checklist,

[Dickson] reached for the wrong hydraulic pump . . . . After

push off, when petitioner reached for the overhead panel to

begin the after-start checklist procedure, ‘his arm was shaking

in a spastic shaking motion.’” Id. 8-9. Dickson again reached

for the wrong switch and, according to Metzner, “was lethargic

and unable to load several sets of data before take-off.” Id. at 9.

Metzner decided to fly the last leg himself. During the

flight, the “petitioner was disengaged and uninvolved; he stared

straight ahead with his hands in his lap.” Id. During arrival, he

was unable to perform basic tasks. After the engines shut down,

Captain Gary Small, an Assistant Chief Pilot for Continental

Airlines, entered the cockpit and was present for Dickson’s

debriefing. According to Small, there was about Dickson “‘just

a very removed, detached sense that everything was slow

motion, everything was disconnected.’” Id. at 10. Small

decided to stop Dickson’s training because he had

“demonstrated very unusual, bizarre behavior.” Id.

In response to the flight training incident, Dr. Michael Berry

was assigned to evaluate Dickson’s medical fitness. Following

interviews of Dickson and Metzner, consultation with a

neurologist, review of the London hospital records, and his own

physical examination and laboratory tests, Dr. Berry concluded

that Dickson had suffered a loss of consciousness secondary to

seizure, and that he was not qualified for flying duties. Fitness

for Duty Med. Eval. (Aug. 9, 2004) (JA 76-79). Based on this

evaluation, as well as the other information in Dickson’s

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medical file, Federal Air Surgeon Tilton denied Dickson’s

subsequent application for a first-class airman medical

certificate. Tilton Ltr. (JA 28).

Claiming that the first episode was the result of a trip, fall

and concussion, and that the second was the result of

inexperience, fatigue and personality conflict, Dickson appealed

the denial of his application to the NTSB. See 49 U.S.C.

§ 44703(d). At the conclusion of a three-day hearing, an

Administrative Law Judge (ALJ) affirmed the FAA’s denial.

Dickson then appealed to the Board, which affirmed the ALJ’s

order on April 9, 2010. Dickson now seeks judicial review

pursuant to 49 U.S.C. § 1153.

II

This court must uphold an NTSB decision unless it is

“arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. § 706(2)(A); see Chritton v.

NTSB, 888 F.2d 854, 856 (D.C. Cir. 1989). The Board’s

“[f]indings of fact . . . , if supported by substantial evidence, are

conclusive.” 49 U.S.C. § 1153(b)(3). Substantial evidence “is

such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Chritton, 888 F.2d at 856

(internal quotation marks omitted); see AJP Constr., Inc. v.

Sec’y of Labor, 357 F.3d 70, 73 (D.C. Cir. 2004). “Thus, a

conclusion may be supported by substantial evidence even

though a plausible alternative interpretation of the evidence

would support a contrary view.” Chritton, 888 F.2d at 856. In

determining whether substantial evidence supports the NTSB’s

decision, we must accept “reasonable credibility determinations”

made by the ALJ and approved by the Board. Throckmorton v.

NTSB, 963 F.2d 441, 444 (D.C. 1992).

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Dickson’s sole contention is that the NTSB’s affirmance of

the denial of his medical certificate was not supported by

substantial evidence. We note that in agency proceedings under

49 U.S.C. § 44703, “the burden of proof is on petitioner to

establish his medical qualifications by a preponderance of

reliable, probative, and substantial evidence.” Petition of Peet,

NTSB Order No. EA-4854, 2000 WL 1239201, at *3 (Aug. 24,

2000); see 49 C.F.R. § 821.25; Petitioner’s Br. 43. Thus, to

succeed in this court, Dickson has a particularly difficult burden:

he must show that substantial evidence does not support the

Board’s determination that Dickson failed to establish his

medical qualifications by a preponderance of the evidence.

In support of its denial of Dickson’s application, the FAA

submitted the London EMS and hospital records, the testimony

of Captains Metzner and Small (as described in Part I above),

Dickson’s medical records, and the medical testimony of three

experts. In support of his appeal, Dickson offered his own

testimony, that of his London dinner companion, Sophie Myhill,

and that of his own medical expert. There is no doubt that, if

credited, the FAA’s submissions provided substantial evidence

for the denial of Dickson’s application. And because Dickson

has not shown that it was unreasonable for the NTSB to credit

the FAA’s evidence over his own, his challenge fails.

With respect to the facts of the London incident, Dickson’s

testimony was that he merely tripped, fell and hit his head; both

he and Myhill testified that he did not have a “fit.” But even

Dickson concedes that neither’s testimony was dispositive:

Myhill “was not physically present” when he fell, and Dickson

himself was “unable to provide a clear and unbiased recollection

of the facts and circumstances leading up to and immediately

following the fall.” Petitioner’s Reply Br. 15. Instead of relying

on Dickson and Myhill, the ALJ credited the EMS and hospital

records, which reported what witnesses to the event (including

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Myhill) told medical personnel at the time: that Dickson had

suffered “Convulsions/Fitting, Shivering,” Emergency Call

Receipt (Apr. 8, 2004) (JA 43); that he “had just finished eating

when he stood up and collapsed to the floor and began fitting for

approx. 4 minutes,” EMS Report (Apr. 8, 2004) (JA 45); and

that he “became less coherent following dinner,” “fell over,” and

was “foaming @ mouth,” Dr. Brian Kennedy, UCL Hosp.,

Clinical Notes (Apr. 8, 2004) (JA 70). Moreover, the NTSB

noted, the ALJ “made an implicit credibility determination

[against] the hearing testimony of Ms. Myhill, which

contradicted other evidence attributed to her” in the medical

records. NTSB Order at 20.

Dickson objects that the decision to credit the London

medical records was improper because they contain reports of

witness observations that constitute “unreliable hearsay.”

Petitioner’s Reply Br. 9. As Dickson concedes, however, the

NTSB’s Rules of Practice provide that “‘[h]earsay evidence

(including hearsay within hearsay, where there are acceptable

circumstantial indicia of trustworthiness) shall be admissible.’”

Petitioner’s Reply Br. 7 (quoting 49 C.F.R. § 821.38). The ALJ

found the records trustworthy on the ground that medical

personnel are trained to take statements and interview witnesses,

and hence that such statements are likely to be credible. ALJ

Oral Decision at 695 (Aug. 6, 2009) (JA 171). That conclusion

is not unreasonable. See generally FED. R. EVID. 803(4)

(providing that “statements for purposes of medical diagnosis or

treatment” are “not excluded by the hearsay rule”).

With respect to the facts of the training flight incident,

although Dickson admitted that he was slow to respond to

Captain Metzner’s commands, he attributed it to inexperience

and fatigue. Dickson Aff. 1-2 (Aug. 31, 2004) (JA 73-74). He

also admitted his withdrawn behavior, but attributed that to a

personality conflict with Captain Metzner. Dickson Aff. 1-2

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(June 7, 2005) (JA 61-62); see Petitioner’s Br. 25. The ALJ,

however, “made an explicit credibility determination in favor of

Captain Metzner and against petitioner.” NTSB Order at 18.

That is a determination that we “cannot reexamine,” as there is

no ground for finding it “unreasonable,” Throckmorton, 963

F.2d at 444.1

Finally, with respect to the medical explanation for

Dickson’s behavior, Dickson’s expert -- board-certified

neurologist Dr. Brian Loftus -- opined that Dickson did not have

a seizure in London, but instead merely suffered a mild

concussion caused by a trip and fall at the restaurant. Loftus

Expert Report at 2 (JA 38); ALJ Hr’g Tr. at 585 (Aug. 6, 2009)

(JA 451). He also opined that Dickson did not suffer a seizure

on the training flight, concluding that “the more likely story is,

you know, he was acting like a teenager.” ALJ Hr’g Tr. at 188

(Aug. 4, 2009) (JA 227). When asked to explain what this

meant, Loftus elaborated as follows:

“I don’t know if you have a teenager. . . . There are

times you try to talk to them and they just don’t answer

you. You say their name a second time, and they still

don’t answer you. And then you kind of get in their

face and then they answer you, shout at you, storm off

to their room. They don’t talk to you for a while. My

1

The ALJ’s determination was based in part on his comparative

assessment of Metzner’s and Dickson’s testimony, and in part on his

finding that Dickson plainly did not tell the truth about a letter he had

sent to Metzner. Although Dickson “vehemently denied” authorship

of the letter, the ALJ found that Dickson was “the only one [who]

would have known the information” it contained, and that “the

signature on th[e] letter is exactly the same” as several other Dickson

signatures in the record. ALJ Oral Decision at 698 (JA 174).

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son and I get along now that he’s 19, but we went

through that phase. Obviously in a cockpit he can’t

storm off. So there’s times he’s just ignoring the guy.

That’s sort of what [Dickson] describes. I think that’s

probably true.

Id.

Dr. Loftus’ opinion was contrary to that of the FAA’s three

medical experts. Board-certified neurologist Dr. John Hastings

opined that Dickson had experienced a generalized seizure in

London and a series of complex partial seizures during the

training flights. ALJ Hr’g Tr. at 481, 493-94 (Aug. 5, 2009) (JA

382, 394-95). Board-certified neurologist Dr. Willard Hauser

opined that Dickson had a generalized seizure in London and a

prolonged partial seizure during the flights. ALJ Hr’g Tr. at

404, 418, 422-23 (Aug. 5, 2009) (JA 320, 332, 335-36). And

Dr. James DeVoll, Board-certified in aerospace medicine and

the manager of the Medical Appeals Branch of the FAA’s Office

of Aerospace Medicine, concluded that Dickson offered “no

satisfactory medical explanation for any disturbance of

consciousness.” NTSB Order at 18.

As Dickson concedes, “[t]here is clearly a difference of

medical opinion as to whether [he] experienced a seizure or a

concussion at the restaurant on April 8, 2004,” with the FAA’s

experts opining as to the former and Dickson’s expert opining

as to the latter. Petitioner’s Br. 53. Likewise, there is clearly a

difference in opinion as to whether he experienced a seizure or

merely acted like a teenager on the Boeing 757 training flight.

But a difference of opinion is not enough to show that the NTSB

lacked substantial evidence for its decision. As we noted at the

outset, “a conclusion may be supported by substantial evidence

even though a plausible alternative interpretation of the evidence

would support a contrary view.” Chritton, 888 F.2d at 856.

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Moreover, the NTSB had a perfectly reasonable basis for

choosing the opinion of the FAA’s experts over that of Dr.

Loftus. As Loftus explained, his opinion regarding the London

incident was “based upon the eye witness accounts of the event

which stated that he tripped, struck his head, and there was no

apparent epileptic activity.” Loftus Ltr. (JA 53). But the only

witness who said Dickson tripped and struck his head was

Dickson himself; and the only witnesses who said there was no

apparent epileptic activity were Dickson and Myhill. Similarly,

Dr. Loftus’ opinion regarding the training flight was

substantially based on “Dickson’s explanation of the events.”

Id. Because the NTSB reasonably rejected the version of the

facts upon which Dr. Loftus relied for his opinion, it reasonably

rejected that opinion as well. Indeed, noting that Captain

Metzner’s version of what happened during the training flight

was more credible than Dickson’s, the ALJ declared himself

“not particularly impressed by Dr. Loftus’ characterization of

[Dickson] acting like a teenager.” ALJ Oral Dec. at 698 (JA

174). We have no basis for second-guessing that judgment.

III

For the forgoing reasons, the petition for review is

Denied.