Joseph Sheble, III v. Michael Huerta

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 9, 2014 Decided June 24, 2014

No. 13-1136

JOSEPH F. SHEBLE, III,

PETITIONER

v.

MICHAEL P. HUERTA, ET AL.,

RESPONDENTS

On Petition for Review of an Order

of the Federal Aviation Administration

Joseph Michael Lamonaca argued the cause and filed the

brief for petitioner.

Bradley J. Preamble, Trial Attorney, Federal Aviation

Administration, argued the cause for respondents. With him on

the brief was Richard H. Saltsman, Assistant Chief Counsel for

Litigation and General Law.

Before: GARLAND, Chief Judge, SRINIVASAN, Circuit

Judge, and WILLIAMS, Senior Circuit Judge.

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Opinion for the Court filed by Circuit Judge SRINIVASAN.

SRINIVASAN, Circuit Judge: Joseph F. Sheble, III, served

as a Designated Pilot Examiner on behalf of the Federal

Aviation Administration. That role called for him to conduct

flight examinations and issue FAA certificates to pilots. The

FAA revoked Sheble’s appointment based on deficiencies in his

performance. Sheble challenges his revocation, arguing that the

FAA failed to follow its own procedures and that one of his

FAA evaluators labored under a conflict of interest. We reject

those arguments and deny his petition for review.

I.

The FAA Administrator issues airman certificates, akin to

a driver’s license for pilots, to qualified individuals. See 49

U.S.C. § 44703(a). The Administrator delegates to Designated

Pilot Examiners the authority to perform “the examination,

testing, and inspection necessary to issue a certificate,” as well

as the authority to “issu[e] the certificate.” See id.

§ 44702(d)(1). Designated Pilot Examiners are private persons

rather than FAA employees, and are ordinarily appointed by the

manager of a local Flight Standards District Office. See 14

C.F.R. § 183.11(b). The appointment carries an expiration date,

id. § 183.13(b), but an appointment may be terminated in

advance of that date for “any reason the Administrator considers

appropriate,” 49 U.S.C. § 44702(d)(2); 14 C.F.R § 183.15(b)(6).

The FAA, in conjunction with the local Flight Standards

District Office, evaluates Designated Pilot Examiners according

to procedures set forth in FAA Order 8900.1, change 95, Flight

Standards Information Management System (2010) (FAA Order

8900.1). Evaluations occur at least annually. See FAA Order

8900.1, vol. 13, ch. 6, § 1, at 2. One type of evaluation is known

as a Special Emphasis Evaluation Designee (SEED) evaluation.

Id. ch. 5, § 5. A SEED evaluation is an in-depth assessment

conducted by a team of FAA inspectors. It usually takes place

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over several days and involves observation of the Designated

Pilot Examiner’s administration of a practical test to applicants.

Id. at 2-4. After a SEED evaluation, the evaluation team makes

a final report and transmits the findings to the local Flight

Standards District Office manager. Id. at 7-8. Based on those

findings, the local manager possesses discretion to implement

various corrective options, including remedial training or

termination of the examiner’s appointment. Id. § 2, at 8.

FAA Order 8900.1 contains instructions on how to

terminate a Designated Pilot Examiner’s appointment for

unsatisfactory performance. Id. § 3. The FAA must inform the

examiner in writing of the termination decision, “with the

reasons cited as specifically as possible.” Id. at 5. The Order

includes a template for a termination letter. Id. at 3 fig.13-4.

The individual may appeal his or her termination to an FAA

appeal panel. Id. at 5-6.

In 2011, the FAA conducted a risk assessment for all 1013

Designated Pilot Examiners nationwide. The assessment

identified Sheble as one of the six highest-risk examiners in the

country based on the large number of tests he conducted and the

comparatively high rate at which he gave passing marks. The

FAA therefore decided to conduct a SEED evaluation of Sheble.

The evaluation, administered by a team of seven FAA

inspectors, took place in September 2011. The evaluation team

identified a number of deficiencies in Sheble’s performance as

an examiner. The deficiencies included using an outdated copy

of the FAA’s test standards, giving the applicant the correct

answers, failing to cover mandatory subjects in the oral

examination, and failing to test mandatory maneuvers during the

flight examination. The SEED evaluators recommended that

Sheble undergo remedial training.

After he completed remedial training, Sheble’s local Flight

Standards District Office conducted follow-up evaluations of

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him. Two evaluations noted concerns with his performance. On

November 26, 2012, the FAA conducted a second SEED

evaluation. An evaluation team of three FAA inspectors

observed Sheble conduct a pilot test. The team’s SEED report

explained that Sheble asked questions that were not part of the

test, asked questions at only a rote level, accepted incorrect

answers, omitted certain required procedures, and then failed the

applicant after asking the applicant a question on material not

contained in the test standards. The report recommended

termination of Sheble’s appointment as a Designated Pilot

Examiner.

Michelle Brown, the leader of the SEED-evaluation team,

orally informed Sheble of his unsatisfactory performance and

debriefed him on the team’s negative findings. Brown advised

Sheble to cease conducting pilot tests until he heard from his

local Flight Standards District Office. On November 28, 2012,

FAA inspector Anthony Roldan (Sheble’s contact at the local

District Office) talked to Sheble on the phone about the SEED

evaluation’s negative findings and confirmed Sheble’s

suspension. Roldan followed up with an email, and Sheble

responded with a three-page document disputing the SEED

findings that had been related to him by Brown and Roldan.

In December 2012, Sheble’s local manager accepted the

SEED report’s recommendation, and, in writing, terminated

Sheble’s appointment for cause. The letter informed Sheble that

he had been terminated “for not performing your duties under

your designation in accordance with current FAA guidance and

policy.” The letter cited an FAA regulation and highlighted five

negative findings from the November SEED report.

In January 2013, Sheble timely filed an administrative

appeal. He argued, among other things, that his termination

letter failed to cite the grounds for his termination with adequate

specificity, in violation of the FAA’s internal procedures. In

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addition, Sheble contended that Brown operated under a conflict

of interest because she was engaged to marry another FAA

inspector who allegedly had criticized Sheble’s performance in

the past. On February 15, 2013, the FAA’s appeals panel

affirmed Sheble’s termination.

II.

Sheble contends that the FAA contravened its own

procedural requirements by terminating his appointment as a

Designated Pilot Examiner without setting forth the reasons with

sufficient specificity. While we have held in a closely related

context that we lack jurisdiction to review the substantive merits

of an FAA termination decision, see Steenholdt v. FAA, 314

F.3d 633, 638 (D.C. Cir. 2003), Sheble raises a procedural rather

than a substantive challenge. We possess jurisdiction to address

his procedural claim. See Lopez v. FAA, 318 F.3d 242, 246-48

(D.C. Cir. 2003). To prevail, Sheble must show that the FAA

“fell substantially short” of the applicable procedural

requirements, “resulting in prejudice to him.” Id. at 248

(internal quotation marks omitted); see Steenholdt, 314 F.3d at

639-40. Sheble fails to make the requisite showing.

The FAA’s internal procedures prescribe that a decision to

terminate a Designated Pilot Examiner’s appointment must be

communicated in writing, “with the reasons cited as specifically

as possible.” FAA Order 8900.1, vol. 13, ch. 5, § 3, at 5. The

FAA does not dispute its obligation to abide by those procedural

requirements. See Vitarelli v. Seaton, 359 U.S. 535, 545 (1959);

Lopez, 318 F.3d at 247-48. Sheble argues that the FAA failed

to do so because his termination letter did not cite the reasons

“as specifically as possible.” The letter stated, in pertinent part:

Your designation is being terminated for not

performing your duties under your designation in

accordance with current FAA guidance and policy.

(FAA Order 8900.2, Chapter 7 and the current

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Practical Test Standards for the test being

administered)[.] During the November 26, 2012,

[SEED] inspection it was determined that:

1. Required elements of the Practical Test

Standards (PTS) were omitted during testing,

including special emphasis items.

2. Testing was not conducted beyond the rote

level.

3. Numerous PTS tasks used in evaluating the

applicant were not applicable to the practical

test being administered.

4. Pretest briefing items were omitted.

5. Incorrect answers were accepted without

objections or further testing.

That letter, contrary to Sheble’s argument, substantially

complied with the FAA’s internal procedures. The contours of

the FAA’s procedural requirements gain clarity not just from the

text of FAA Order 8900.1, but also from an appended “Sample

Letter of Termination.” The sample letter functions as a

template and illustrates for local managers how to implement the

procedural requirements. Of particular salience, the template

letter exhibits the FAA’s understanding of the requirement to

identify the termination reasons “as specifically as possible.”

That formulation, without further explication, might well leave

questions in the minds of local managers concerning the level of

detail with which they are expected to set forth the reasons for

a termination decision. The template letter states, in pertinent

part:

Your designation is being terminated [for not

performing your duties under your designation OR

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because you no longer meet the eligibility

requirements for the designation.] [Cite the

reference to the regulations/policy that was

violated/noncompliance.]

FAA Order 8900.1, vol. 13, ch. 5, § 3, at 3 fig.13-4 (brackets in

original).

The termination letter sent to Sheble was in large measure

a verbatim copy of the template letter contained in the FAA’s

procedural rules. Sheble’s termination letter included at least as

much information as is called for by the template: Sheble’s

letter, in line with the template, cited the applicable regulation

and enumerated his violations of the regulation. Sheble in fact

makes no argument that his letter departed from the template

letter, and he gives us no reason to view the template as

constituting anything other than the FAA’s interpretation and

implementation of FAA Order 8900.1. Because Sheble’s

termination letter adhered to the FAA-prescribed template, it

substantially complied with the FAA’s internal procedures.

Of course, none of this is to suggest that the FAA could not

voluntarily elect to communicate the reasons for its termination

decisions with greater specificity than its rules and template

letter contemplate. The FAA has made us aware of no reason,

for instance, why it could not simply give an affected individual

a copy of a SEED report itself in the circumstances of this case

instead of distilling the evaluation into a list of reasons of the

kind given to Sheble. But for present purposes, Sheble’s

termination letter substantially complied with FAA Order

8900.1 as illustrated by the template.

Sheble, moreover, fails to demonstrate any prejudice caused

by the asserted deficiencies in his termination letter. See Lopez,

318 F.3d at 248. On two separate occasions, FAA inspectors

debriefed Sheble concerning the negative findings contained in

the November SEED evaluation. Brown, the leader of the

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evaluation team, spoke with Sheble about his unsatisfactory

performance as set forth in the evaluation. Brown discussed

examples of Sheble’s deficient performance, including Sheble’s

omission of portions of the test, his posing of questions on

subjects outside the testing materials, and his failure to ask

questions beyond a basic level. Sheble also spoke with Roldan,

another FAA inspector, about the negative findings from the

SEED evaluation. Sheble does not dispute that he received

specific information from both Brown and Roldan about the

performance deficiencies identified in the evaluation. Nor does

Sheble allege any shortcomings in the reports he received from

them, or any manner in which the conversations failed to give

him adequate information with which to meaningfully contest

his termination. Sheble thus has failed to demonstrate prejudice

from the alleged deficiencies in the specificity of his termination

letter.

III.

Sheble contends that Brown operated under a conflict of

interest that tainted Sheble’s evaluation. See U.S. Dep’t of

Transp. Order 3750.7A, § 12(a)(8) (Oct. 24, 2011) (“Employees

shall act impartially and not give preferential treatment to any

private organization or individual.”). We disagree. The basis of

Sheble’s claim is that Brown was engaged to marry another

FAA inspector with whom Sheble had some “negative history.”

Sheble alleges that Brown’s fiancé had, at some point in the

2000s, told Sheble that he was running a “ticket mill” and that

Brown later used the same phrase during Sheble’s SEED

evaluation. Beyond that assertion, Sheble provides no further

information and identifies no evidence in the record.

The FAA responds that a conflict-of-interest claim must

relate to a financial conflict of interest. We need not resolve

that issue in this case. Even assuming that a conflict-of-interest

claim can rest on a non-financial conflict, Sheble fails to

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establish any actionable conflict here. The mere fact that one of

Sheble’s evaluators was engaged to marry another FAA

inspector who had previously formed an opinion about Sheble

does not demonstrate any improper conflict of interest. Sheble

does not explain why there would be any impropriety in the

sharing of views about his performance among FAA inspectors,

regardless of their relationship. The use of the same phrase

several years apart by Brown and her fiancé, without additional

information or evidence, likewise fails to show that Brown’s

assessment may have been inappropriately colored by any

conflict of interest. Additionally, there were two other

inspectors on the SEED-evaluation team with Brown, both of

whom concluded that Sheble’s appointment should be

terminated. Sheble does not dispute that those inspectors

exercised independent discretion in recommending his

termination. Sheble’s local manager also made an independent

decision to accept the SEED report’s recommendations and

terminate Sheble’s appointment. Sheble, in short, has failed to

show that any improper conflict of interest affected the decision

to terminate his appointment as a Designated Pilot Examiner.

* * * * *

Accordingly, we deny the petition for review.

So ordered.