Michael Huerta v. Jody Ducote

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 13, 2014 Decided June 30, 2015

No. 14-1023

MICHAEL P. HUERTA, ADMINISTRATOR, FEDERAL AVIATION

ADMINISTRATION,

PETITIONER

v.

JODY DUCOTE AND NATIONAL TRANSPORTATION SAFETY

BOARD,

RESPONDENTS

On Petition for Review of a Decision

of the National Transportation Safety Board

Dana J. Martin, Attorney, U.S. Department of Justice,

argued the cause for petitioner. With her on the briefs were

Stuart F. Delery, Assistant Attorney General, and Michael S.

Raab, Attorney.

Gregory S. Winton argued the cause and filed the brief

for respondents.

Kathleen A. Yodice, Elizabeth M. Candelario, and

Kenneth M. Mead were on the brief for amicus curiae Aircraft

Owners and Pilots Association in support of respondents.

2

Before: HENDERSON, GRIFFITH and MILLETT, Circuit

Judges.

Opinion for the Court by Circuit Judge MILLETT.

Opinion concurring in part and concurring in the

judgment filed by Circuit Judge HENDERSON.

MILLETT, Circuit Judge: In June 2010, Jody Ducote co-

piloted a passenger-carrying flight round-trip between the

United States and the Bahamas. The problem is that he was

not qualified to pilot or co-pilot that flight. In addition,

although his personal records accurately recorded his

unlawful flight activities, the record he submitted to Federal

Aviation Administration (“FAA”) investigators mysteriously

omitted any record of the forbidden flight, substituting in its

place a fictional flight that Ducote would have been qualified

to pilot—if he had actually flown it.

Needless to say, the FAA does not cotton to such

conduct. It issued an emergency order revoking Ducote’s

pilot license. In administrative proceedings, Ducote admitted

both that he improperly piloted the Bahamas flights and that

there was a material discrepancy between his personal flight

log and the one he gave to the FAA. The National

Transportation Safety Board, nevertheless, dismissed the

Administration’s complaint for failure to plead with sufficient

factual specificity the seriousness of those violations. The

Board also relied on a credibility determination that the Board

mistakenly thought the Administrative Law Judge had made.

We vacate and remand both determinations as arbitrary

and capricious, and unsupported by substantial evidence.

3

I

Statutory and Regulatory Framework

The Federal Aviation Act, Pub. L. 85-726 § 609, 72 Stat.

731, 779–780 (1958), amended by Pub. L. 103-272 § 1(e),

108 Stat. 745, 1190 (1994), authorizes the Administrator of

the Federal Aviation Administration to revoke a pilot’s

license when, after investigation, the Administrator

determines “that safety in air commerce or air transportation

and the public interest require that action,” 49 U.S.C.

§ 44709(b)(1)(A). An emergency order of revocation may be

issued when the Administrator informs the National

Transportation Safety Board “that an emergency exists and

safety in air commerce or air transportation requires the order

to be effective immediately.” Id. § 44709(e)(2).

The pilot whose license is terminated—the “respondent”

in the administrative proceeding—can seek administrative

review of the revocation order by filing an appeal with the

National Transportation Safety Board. 49 U.S.C. § 44709(d).

The Administrator’s order from which the appeal is taken

then serves as the complaint in the administrative proceeding.

49 C.F.R. § 821.31. Appeals are heard by an administrative

law judge (“ALJ”), id. § 821.35, whose decision can be

reviewed by the Board, id. § 821.43.

At the beginning of the administrative process, the pilot

can seek dismissal of the Administrator’s complaint as “stale”

if it was filed more than six months after the conduct that

triggered revocation. 49 C.F.R. § 821.33. The stale

complaint rule does not apply, however, when the “complaint

4

alleges lack of qualification of the respondent.” Id.

§ 821.33(b).1

“Lack of qualification” is an FAA term of art that refers

to those regulatory violations that, by their very nature,

warrant revocation of a pilot’s certificate, rather than a lesser

sanction like suspension. See Administrator v. Bellis, NTSB

Order No. EA-4528, 1997 WL 101432, at *2 (1997); 49

C.F.R. § 821.33. Such offenses “raise[] a significant question

as to whether the airman continues to possess the care,

judgment, responsibility, knowledge or technical ability

required by his certificate.” Bellis, 1997 WL 101432, at *2.

Thus “lack of qualification” goes beyond just questions of

technical proficiency to include offenses showing a lack of

“judgment and integrity.” Thunderbird Propellers, Inc. v.

FAA, 191 F.3d 1290, 1295 (10th Cir. 1999).

1

The text of the stale complaint rule provides, as relevant here,

that:

Where the complaint states allegations of offenses which

occurred more than 6 months prior to the Administrator’s

advising the respondent as to reasons for proposed action

under 49 U.S.C. 44709(c), the respondent may move to

dismiss such allegations as stale pursuant to the following

provisions:

*****

(b) In those cases where the complaint alleges lack of

qualification of the respondent, the law judge shall first

determine whether an issue of lack of qualification would be

presented if all of the allegations, stale and timely, are assumed

to be true. If so, the law judge shall deny the respondent’s

motion. * * *

49 C.F.R. § 821.33.

5

One offense that “the Board has repeatedly held

implicates a lack of qualification warranting revocation * * *

[is] falsifying a logbook.” Bellis, 1997 WL 101432, at *2; see

Thunderbird Propellers, 191 F.3d at 1295 (FAA complaint

“presents an issue of qualifications” because it alleges

“Thunderbird intentionally falsified required records[.]”).2

While the question of lack of qualification generally “is

based on consideration of the pleaded incidents in the

aggregate, not one by one,” Administrator v. Brassington,

NTSB Order No. EA-5180, 2005 WL 2477524, at *5 & n.14

(2005), the Board has recognized that “one intentionally false

log entry would be sufficient, in and of itself, to warrant

revocation,” Administrator v. Olsen, NTSB Order No. EA-

3582, 1992 WL 127810, at *4 (1992); see also Administrator

v. Gusek, NTSB Order No. EA-4745, 1999 WL 64489, at *2

(1999) (“It is also established that one intentional falsification

finding will justify a lack of qualification finding and

certificate revocation.”).

Under the Board’s rules, if an otherwise stale complaint

alleges such disqualifying offense conduct, the ALJ must

“determine whether an issue of lack of qualification would be

presented if all of the allegations, stale and timely, are

assumed to be true.” 49 C.F.R. § 821.33(b). If so, then the

ALJ “shall deny” the motion to dismiss, and the

2

See also, e.g., Administrator v. Lonergan, NTSB Order No. EA-

4477, 1996 WL 494079, at *2 (1996) (“A showing of intentional

falsification is a serious offense which in virtually all cases the

Administrator imposes and the Board affirms revocation.”);

Administrator v. Farrington, NTSB Order No. EA-4171, 1994 WL

239001, at *2 (1994) (“[I]ntentional falsification charges inherently

present an issue of lack of qualification.”).

6

Administrator’s complaint will go forward. Id. But if the

Administrator cannot make such a showing, the law judge

“shall dismiss the stale allegations[.]” 49 C.F.R.

§ 821.33(a)(2).

Even if the complaint does not present an issue of lack of

qualification, an otherwise stale complaint can go forward if

the Administrator “show[s]” either that “good cause existed

for the delay” or that the sanction is in the “public interest.”

49 C.F.R. § 821.33(a)(1).

Factual Background

Jody Ducote held an Airline Transport Pilot certificate

which allowed him to fly as a commercial pilot. 14 C.F.R.

§ 61.167. That certificate, however, did not allow Ducote to

operate all types of aircraft. In order to operate an airplane

over 12,500 pounds or one powered by turbojets, the pilot’s

license must have a specific “type rating” for that airplane.

Id. § 61.31. A license holder may co-pilot domestic flights

without the required type-rating, but not international ones.

Id. § 61.55.

Even though he lacked the appropriate type-rating for the

flight, Ducote co-piloted a Cessna S550 carrying passengers

from Mississippi to the Bahamas on June 6, 2010. He co-

piloted the same plane, again carrying passengers, from the

Bahamas to Florida and then back to Mississippi on June 10,

2010.

Ducote accurately recorded the Bahamas flights in his

personal, online flight log. When an FAA investigator

requested that Ducote submit his flight record, however, all

reference to the June 6th and 10th Bahamas flights vanished.

In place of the June 10th Bahamas flight appeared a fictional

7

record indicating that Ducote piloted a domestic flight

between Picayune, Mississippi and Jackson, Mississippi, for

which Ducote would have been qualified.

Procedural History

On April 16, 2012, the Administrator issued an

Emergency Order revoking Ducote’s airline pilot certificate

on the grounds that he falsified flight records and pilot

logbook entries in March, April, May and June of 2010, and

that he piloted a passenger-carrying flight between the

Bahamas and Florida in June 2010 in an aircraft that he was

not qualified to fly.

Ducote sought administrative review of the Order, and

then filed a motion to dismiss the Administrator’s complaint

as stale because it was filed almost two years after the alleged

wrongdoing. The ALJ denied Ducote’s motion to dismiss.

He explained that, if “all of the allegations” in the complaint

were “assumed to be true,” they would demonstrate a “lack of

qualification,” and thus the complaint was excepted from the

stale complaint rule. J.A. 28–29; 49 C.F.R. § 821.33(b).

At the administrative hearing, Ducote admitted that he

co-piloted the Bahamas flights without the appropriate type

rating. He also did not dispute the discrepancy between his

personal flight record and the one he submitted to the FAA

investigator.

The ALJ denied the Administrator’s claim that Ducote

had intentionally falsified flight log entries for the June 10th

Bahamas flight. The ALJ reasoned that the written flight

record that Ducote prepared for the FAA was not a “material”

filing, and thus could not form the basis of an intentional

8

falsification charge under 14 C.F.R. § 61.59(a).3 In the ALJ’s

view, whether Ducote just “missed some or maybe even he

intentionally falsified that document,” the log book “is not a

document that is required to be maintained by the

Administrator.” J.A. 398.

In addition, even though Ducote admitted the violation,

the ALJ dismissed the unauthorized-flight charge, reasoning

that the count had become “stale” once the intentional

falsification counts were dismissed.4 J.A. 398.

The Administrator appealed to the National

Transportation Safety Board and, with respect to the June

flight record and Bahamas flights that are relevant here, the

3

That regulation provides: “No Person may make or cause to be

made:

(1) Any fraudulent or intentionally false statement on any

application for a certificate, rating, authorization, or

duplicate thereof, issued under this part;

(2) Any fraudulent or intentionally false entry in any

logbook, record, or report that is required to be kept,

made, or used to show compliance with any requirement

for the issuance or exercise of the privileges of any

certificate, rating, or authorization under this part;

(3) Any reproduction for fraudulent purpose of any

certificate, rating, or authorization, under this part; or

(4) Any alteration of any certificate, rating, or authorization

under this part.”

14 C.F.R. § 61.59(a).

4

The ALJ also dismissed the charges that Ducote had intentionally

falsified records made in March, April, and May of 2010. Those

counts are not at issue in this petition for review.

9

Board affirmed on alternative grounds. Administrator v.

Ducote, NTSB Order No. EA-5664, 2013 WL 3227362

(2013).

First, concerning Ducote’s falsification of the June 10th

flight record, the Board disagreed with the ALJ and ruled that

the log was a “material” submission the intentional

falsification of which would render a pilot disqualified.

Ducote, 2013 WL 3227362, at *8. The Board nevertheless

upheld dismissal of the count on the ground that the

Administrator had failed to demonstrate that Ducote “had the

intent to falsify the document he provided to the [FAA

investigating office] upon its request.” Id. In so holding, the

Board said it was adopting a credibility finding that it

perceived the ALJ to have made. Id. (“[W]e find the law

judge’s finding concerning [Ducote’s] credibility was not

arbitrary and capricious. As we decline to disturb the law

judge’s credibility assessment, we find the Administrator has

not established [Ducote] had the intent to falsify the

document.”).

Secondly, the Board affirmed dismissal of the operational

violation arising from the Bahamas flights. Taking a different

tack from the ALJ, the Board ruled that the Administrator

must “plead the complaint in such a manner as to provide

sufficient specificity as to the seriousness of the alleged

violation[s].” Ducote, 2013 WL 3227362, at *11. The

exception to the stale complaint rule, the Board elaborated,

only applies when the complaint “specifically plead[s] facts

concerning a violation that unequivocally indicates a lack of

qualification[.]” Id. (latter emphasis added). To that end, the

complaint must “legitimately demonstrate[], not merely

allege[], that a lack of qualification exists.” Id.

10

Applying that standard, the Board held that the

Administrator’s complaint failed to allege adequately a “lack

of qualification.” In so ruling, the Board did not question its

longstanding precedent holding that the intentional

falsification of a material record like Ducote’s flight record

established a lack of qualification. Instead, the Board

concluded that the complaint failed to demonstrate that the

Administrator had the “evidence” to “pursue most of the

charges therein,” Ducote, 2013 WL 3227362, at *10, and that

“failure to provide specific bases for the allegations in the

complaint” required dismissal of the operational violation as

stale, id. at *12. The Board thus denied the appeal in full.

II

Jurisdiction

Both 49 U.S.C. § 1153(c) and 49 U.S.C. § 44709(f)

provide that the Administrator “may” petition for review of a

Board order if the “Administrator decides” that the Board’s

order “will have a significant adverse impact” on air safety

and commerce. Id. While the Administrator filed a timely

petition for review under those provisions, amicus curiae, the

Aircraft Owners and Pilots Association, argues that this court

lacks jurisdiction because the Administrator lacked statutory

“standing” to bring this case. Specifically, the Association

contends that the Administrator erred in concluding that the

Board’s application of the stale complaint rule will have the

statutorily required “significant adverse impact” and that

judicial concurrence in that judgment is a jurisdictional

prerequisite.

Ducote does not join that argument, and ordinarily this

court will not entertain an amicus’s argument if not presented

by a party. See, e.g., Narragansett Indian Tribe v. National

11

Indian Gaming Comm’n, 158 F.3d 1335, 1338 (D.C. Cir.

1998). But the Administrator joins the Association in

characterizing the “significant adverse impact” standard as

“jurisdictional,” Pet. Br. 23–24, and we labor under a

perpetual and “‘independent obligation to assure ourselves of

[our] jurisdiction,’” VanderKam v. VanderKam, 776 F.3d 883,

888 (D.C. Cir. 2015) (quoting Floyd v. District of Columbia,

129 F.3d 152, 155 (D.C. Cir. 1997)). Accordingly, in this

narrow circumstance, we will follow the amicus’s argument

only as far as necessary to assure ourselves of our jurisdiction.

In this case, it is a short trip.

The Association must “clear a high bar” to establish that

the Administrator’s “significant adverse impact”

determination is jurisdictional. See United States v. Kwai Fun

Wong, 135 S. Ct. 1625, 1632 (2015). That is because the

Supreme Court, of late, has “pressed a stricter distinction

between truly jurisdictional rules, which govern a court’s

adjudicatory authority, and nonjurisdictional claim-processing

rules, which do not.” Gonzalez v. Thaler, 132 S. Ct. 641, 648

(2012) (internal quotation marks omitted).5 The “significant

adverse impact” requirement comes nowhere near hurdling

that bar.

First, courts will enforce a rule as jurisdictional “[i]f the

Legislature clearly states that a threshold limitation on a

statute’s scope shall count as jurisdictional.” Arbaugh v.

Y&H Corp., 546 U.S. 500, 515 (2006); see also Kwai Fun

Wong, 135 S. Ct. at 1632. But nothing in Section 1153(c) (or

the identical language of Section 44709(f)) “clearly”—or

even unclearly—“states” that the Administrator’s

5

See also Sebelius v. Auburn Regional Medical Ctr., 133 S. Ct.

817, 824 (2013) (warning against “profligate use of the term

‘jurisdiction’”).

12

determination is “jurisdictional.” The term “jurisdiction”

appears nowhere at all in 49 U.S.C. § 44709; that Section

focuses entirely on the type of administrative processing

matters that the Supreme Court and this court have repeatedly

held lack jurisdictional consequence. See, e.g., Henderson ex

rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1204 (2011)

(statutory deadline for an appeal from the Board of Veterans’

Appeals “does not speak in jurisdictional terms or refer in any

way to the jurisdiction of the [Veterans Court]” (internal

quotation marks omitted; alteration in original)); Reed

Elsevier, Inc. v. Muchnick, 559 U.S. 154, 166 (2010)

(requirement that copyright holders register work before suing

“imposes a precondition to filing a claim that is not clearly

labeled jurisdictional, is not located in a jurisdiction-granting

provision, and admits of congressionally authorized

exceptions”).6

Section 1153(c) likewise is devoid of jurisdictional

trappings, in sharp contrast to the express jurisdictional

reference in the preceding statutory subsection, 49 U.S.C.

§ 1153(b)(3) (“When the petition is sent to the Board, the

court has exclusive jurisdiction to affirm, amend, modify, or

6

See also Auburn Regional, 133 S. Ct. at 824 (Because “[t]he

language Congress used hardly reveals a design to preclude any

regulatory extension,” the statutory deadline to appeal a decision of

the Provider Reimbursement Review Board is nonjurisdictional.);

Vermont Dep’t of Public Service v. United States, 684 F.3d 149,

156 (D.C. Cir. 2012) (Since “the language of the Hobbs Act offers

no such unequivocal bar,” its administrative exhaustion requirement

is nonjurisdictional.); Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C.

Cir. 2003) (The Freedom of Information Act’s administrative

“exhaustion requirement is not jurisdictional because the [statute]

does not unequivocally make it so.”).

13

set aside any part of the order and may order the Board to

conduct further proceedings.”). That omission says much

because the “proximity * * * highlights the absence of clear

jurisdictional terms in” Section 1153(c). Gonzalez, 132 S. Ct.

at 651. “‘[W]here Congress includes particular language in

one section of a statute but omits it in another section of the

same Act, it is generally presumed that Congress acts

intentionally[.]’” Id. at 649 (quoting Russello v. United

States, 464 U.S. 16, 23 (1983)).

Second, the statutory structure confirms that the

Administrator’s “significant adverse impact” determination is

decidedly nonjurisdictional. The critical statutory language

speaks entirely in terms of what an agency official—the

Administrator—must “decide[]” before filing a petition for

review, not what a court must find to exercise decisional

authority over that petition. 49 U.S.C. §§ 1153(c), 44709(f).

Nothing in the statute requires the Administrator to make that

determination in any particular form or to submit it to the

court.7

In the absence of a long legislative or judicial history of

jurisdictional treatment, see Bowles v. Russell, 551 U.S. 205,

209–211 (2007), a statutory requirement like the

Administrator’s duty to find a “significant adverse impact,”

just “requires a party to take some action before filing” an

appeal, Reed Elsevier, 559 U.S. at 166, and “says nothing

about whether a federal court has subject-matter jurisdiction

to adjudicate claims,” id. at 164. Here, as in Gonzalez, there

7

This case thus stands in sharp contrast to In re Sealed Case, 131

F.3d 208, 215 (D.C. Cir. 1997), in which the statute explicitly

required a prosecutor to “certif[y] to the appropriate district court”

that the Attorney General had found a “substantial Federal interest”

in the crime’s prosecution to “warrant the exercise of Federal

jurisdiction,” 18 U.S.C. § 5032.

14

is no tradition whatsoever of according the Administrator’s

determination jurisdictional consequence. See Gonzalez, 132

S. Ct. at 649. Indeed, the nature of the “significant adverse

impact” determination closely parallels the “substantial

showing” of a constitutional claim requirement in Gonzalez,

which was held to be nonjurisdictional. Id. at 649–650. Both

are statutory mechanisms for sifting out insubstantial appeals,

not limitations on judicial power.

Third, the very nature of the inquiry defies jurisdictional

treatment. The statutory text expressly leaves it to the

“Administrator”—not a court—to “decide[]” what impact a

Board order will have on “carrying out this chapter related to

an aviation matter.” 49 U.S.C. § 1153(c). That type of

operational assessment falls squarely within the

Administrator’s area of expertise. Nothing in the relevant

statutory provisions offers any meaningful guideposts for

judicial second-guessing of that quintessentially

administrative judgment.

In short, neither the statutory text nor structure provides

the type of “‘sweeping and direct’” congressional command

needed to attach jurisdictional consequence to the

Administrator’s “significant adverse impact” determination.

Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1248 (D.C.

Cir. 2004) (quoting Weinberger v. Salfi, 422 U.S. 749, 757

(1975)). As Congress did not treat the requirement as

jurisdictional, neither will we. And since the issue does not

concern our jurisdiction, we will not accept amicus’s

invitation to review (or decide if we can review) the merits of

the Secretary’s “significant adverse impact” determination as

neither party pressed that argument. See Narragansett Indian

Tribe, 158 F.3d at 1338.

15

III

Analysis

This court will uphold a decision of the National

Transportation Safety Board unless it is “arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with

law,” 5 U.S.C. § 706(2)(A), or “unsupported by substantial

evidence,” 5 U.S.C. § 706(2)(E). Taylor v. Huerta, 723 F.3d

210, 213 (D.C. Cir. 2013).

To the extent the agency has interpreted its own “stale

complaint” regulation, that interpretation is ‘“to be accorded

deference * * * unless it is clearly contrary to the plain and

sensible meaning of the regulation.’” Taylor, 723 F.3d at 213

(quoting Cooper v. NTSB, 660 F.3d 476, 481 (D.C. Cir.

2011)); see Perez v. Mortgage Bankers Ass’n, 135 S. Ct.

1199, 1208 n.4 (2015) (discussing deference under Auer v.

Robbins, 519 U.S. 452 (1997)). The Board’s position will be

deemed “arbitrary and capricious if it departs from agency

precedent without explanation.” Dillmon v. National

Transportation Safety Board, 588 F.3d 1085, 1090 (D.C. Cir.

2009) (internal quotation omitted). Accordingly, if the Board

wishes this court to defer to a change in application of its own

rules, it must “acknowledge and provide an adequate

explanation for its departure from established precedent.” Id.

at 1089–1090.

The “Stale Complaint” Rule

The Board held that the Administrator’s complaint could

not escape the clutches of the stale complaint rule because it

did not “specifically plead facts” that “unequivocally

indicate[d] a lack of qualification.” Ducote, 2013 WL

3227362, at *11 (latter emphasis added). The Administrator’s

16

complaint, the Board continued, failed to “legitimately

demonstrate[], not merely allege[],” that a lack of

qualification existed. Id. That ruling placed upon the

Administrator a heightened pleading standard that departed so

severely from regulatory text and precedent, and was

accompanied by only the most superficial Board analysis, that

it must be vacated as arbitrary and capricious.

To begin with, the Board’s holding is unhinged from the

regulation’s plain text. The stale complaint rule is written as a

threshold inquiry that is enforced at the outset of an

administrative proceeding through a motion to dismiss the

complaint. 49 C.F.R. § 821.33. As such, the regulation

dictates what the Administrator must “allege[]” and what the

“allegations” must “state[].” Id. Nothing in the rule requires

the Administrator to “demonstrate,” anything at that

preliminary pleading stage. To the contrary, the rule is

explicit that the stale complaint analysis will “assume[]” the

truth of “allegations,” not require their “unequivocal[]”

establishment. Id.

In addition, subsection (a) of the rule underscores that the

lack-of-qualification test turns on the facial allegations of the

complaint. To invoke the separate “good cause” or “public

interest” exceptions to the stale complaint rule, subsection (a)

requires the Administrator to “show” their applicability

through a supplemental filing that goes beyond the allegations

of the complaint itself. 49 C.F.R. § 821.33(a). The lack-of-

qualification exception, by contrast, does not require the

Administrator to “show” anything; the complaint must simply

“allege” the lack of qualification. Accordingly, the Board’s

holding here that Section 821.33(b)’s far less rigorous text

requires a far more rigorous demonstration than subsection (a)

turns the regulatory language and structure inside out.

17

Such atextual interpretations, unaccompanied by any

reasoned agency analysis, deserve no judicial deference. See

Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156,

2166 (2012) (“Deference is undoubtedly inappropriate, for

example, when the agency’s interpretation is ‘plainly

erroneous or inconsistent with the regulation,’” or when

“there is reason to suspect that the agency’s interpretation

‘does not reflect the agency’s fair and considered judgment on

the matter in question.’”); Drake v. FAA, 291 F.3d 59, 68

(D.C. Cir. 2002) (To give deference, “the language of the

regulation in question must be ambiguous,” the agency must

have given the issue “fair and considered judgment on the

matter,” and “the agency’s reading of its regulation must be

fairly supported by the text of the regulation itself[.]”).

Instead, it is incumbent on this court to “ultimately

decide[] whether a given regulation means what the [Board]

says,” Perez, 135 S. Ct. at 1208 n.4. And we can discern no

structural or textual basis for the heightened-pleading

standard imposed here on a complaint that facially and

plausibly alleges all of the key elements of an offense that

bears directly on a pilot’s qualification to hold a license.

The unprecedented reach of the Board’s demand for

factual specificity is underscored by the already-detailed

content of the Administrator’s complaint. The complaint, in

fact, is anything but “generally pleaded.” Specifically,

paragraph 9 of the complaint alleges that on June 10th, 2010,

Ducote operated the following flights: “Bahamas  Palm

Beach  Jackson Evers  Picayune.” Paragraph 10 then

alleges that Ducote made an entry in the logbook he provided

to the FAA stating that, on June 10th, he instead flew

“Picayune  Jackson Evers  Picayune.” Paragraph 11

brings home the intentionality of the conduct by alleging that

the latter entry was “fraudulent or intentionally false in that

18

the actual dates and route of the flights in question were

different from those presented in your logbook.” Paragraphs

12–15 then alleged a motivation for Ducote’s intentional

alteration of the records—that he lacked the appropriate type-

rating to operate the Bahamas flight, a passenger-endangering

violation of FAA Regulations.

Indeed, the Board’s precedent has long recognized that,

as a virtually categorical matter, similar allegations of

intentionally falsified records “inherently present an issue of

lack of qualification.” Administrator v. Farrington, NTSB

Order No. EA-4171, 1994 WL 239001, at *2 (1994); see also

Brassington, 2005 WL 2477524, at *6 (“It is undisputed that

an airman who falsifies required documents lacks

qualifications to hold an airman certificate.”); Gusek, 1999

WL 64489, at *2; Bellis, 1997 WL 101432, at *2

(“[F]alsifying a logbook” is “an offense which the Board has

repeatedly held implicates a lack of qualification warranting

revocation[.]”); Administrator v. Lonergan, NTSB Order No.

EA-4477, 1996 WL 494079, at *2 (1996).

The Board’s rule makes sense. The intentional

falsification of required records that are used to protect public

safety, by its very nature, suggests such a serious lack of

honesty and judgment and such a profound contamination of

the regulatory processes for protecting public safety as to

inherently call into question the individual’s qualifications.

See Bellis, 1997 WL 101432, at *2 (conduct calls

qualification into question if a violation “was so deficient that

it raises a significant question as to whether the airman

continues to possess the care, judgment, responsibility,

knowledge or technical ability required by his certificate”).

The Board and Ducote rely on Administrator v.

Armstrong, NTSB Order No. EA-5660, 2013 WL 3227358

19

(2013), to no avail. Armstrong is the last in a line of cases

explaining that the Administrator may not use clever pleading

strategies to avoid the stale complaint rule. See, e.g., Bellis,

1997 WL 101432; Administrator v. Hawes, NTSB Order No.

EA-3830, 1993 WL 97496 (1993). When a complaint

presents allegations of a rule violation that does not

customarily warrant revocation—such as the faulty

inspections in Hawes and Bellis—the Administrator cannot

escape the stale complaint rule merely by tacking on a

conclusory assertion that the allegations “present an issue of

lack of qualification,” as occurred in Bellis, 1997 WL 101432,

at *1, or by an unexplained order of revocation for a violation

that traditionally warrants a lesser sanction, as occurred in

Hawes, 1993 WL 97496, at *2.

In Armstrong, the Administrator sought to revoke a

pilot’s certificate under 14 C.F.R. § 61.15(d), which allows

the Administrator to seek suspension or revocation of a

certificate when the pilot has had two “motor vehicle

action[s]” within the same 3 year period. See Armstrong,

2013 WL 3227358, at *1. The complaint in Armstrong made

vague reference to three incidents in which the pilot’s driver’s

license had been suspended, all occurring within three years

of each other. Id. at *4 n.12. The complaint did not explain

why those violations warranted revocation rather than the

alternative sanction of suspension. See id. Instead, it vaguely

and conclusively alleged that “the Administrator finds you

lack the qualifications necessary to hold a[] [pilot’s]

certificate or any other airman certificate.” Id.

In those circumstances where neither law nor tradition

treated the violation as warranting revocation, the

Administrator could not avoid the stale complaint rule without

“provid[ing] sufficient specificity as to the seriousness of the

alleged violation” to elevate it to a qualification concern in

20

that case. Armstrong, 2013 WL 3227358, at *3. The concern

in Armstrong, as in Bellis and Hawes, was that wholesale

deference to the Administrator’s choice of sanction would

lead to standardized pleading strategies that would totally

undermine the stale complaint rule. See id. (giving

“wholesale leniency to the Administrator” might lead to the

Administrator “tack[ing] on a more serious [violation] even

though [he] knows that [he] could not fulfill [his] burden of

proof * * *, all in order to avoid the six-month deadline in the

stale complaint rule.”).

But here the Administrator’s complaint did not vaguely

or conclusorily refer to Ducote’s offense. The complaint

identified an offense that the Board had long held bore

directly on qualification, and it alleged with precision the

false content of the record at issue, what a true record would

have documented, and the factual basis for Ducote’s

motivation to intentionally falsify the records. The Board’s

exacting demand for specific and unequivocal demonstrations

went beyond the bounds of Armstrong and turned the stale

complaint exception into an evidentiary demand that is

ungrounded in precedent. Furthermore, what more factual

specificity the Board wanted and why is entirely unexplained.

To be clear, the question in this case is not whether the

Board could demand a heightened pleading or evidentiary

showing from the Administrator to avoid the stale-complaint

bar. All we decide is that the Board may not impose such a

heightened showing in this case given the regulation’s plain

text, past Board precedent, and the detailed content of the

underlying complaint. We accordingly vacate as arbitrary and

capricious the Board’s dismissal of Count 4 of the

21

Administrator’s complaint, and remand for further

proceedings.8

The Board’s Credibility Determination

In dismissing the allegation that Ducote intentionally

falsified his flight log entries for June 10, 2010, the Board

relied on an adverse credibility determination that it thought

the ALJ had made. Because the record is clear that no such

credibility judgment was made, we also vacate the dismissal

of that count in the complaint.

The false factual content of the record that Ducote

submitted to the FAA was never in dispute. Ducote admitted

that he flew from the Bahamas on June 10, 2010, that he

properly recorded that Bahamas flight in his online logbook,

and yet in preparing the flight record for the FAA, he omitted

the unlawful Bahamas/Palm Beach flight entirely and

substituted in what would have been a lawful domestic flight.

The only issue before the ALJ and the Board was whether

Ducote intentionally omitted the Bahamas flight from the

flight record he gave to the FAA. In dismissing that count of

the complaint, the Board did not make its own assessment of

the evidence, but instead it deferred to the ALJ’s “credibility

determination” that Ducote did not intend to falsify the

written log.

8

The Administrator did not raise, and thus we do not address, the

separate question of whether the stale complaint rule, which turns

on “allegations” in a complaint and addresses whether the ALJ

should “proceed to adjudicate” the claims, 49 C.F.R. § 821.33, can

be applied to dismiss claims on the merits after a full evidentiary

hearing, as the ALJ did here, see Schlagenhauf v. FAA, 1993 WL

128571, at *3 (4th Cir. 1993).

22

The problem for the Board is that the ALJ made no such

credibility finding. Quite the opposite, the ALJ expressly left

that question open, stating that “maybe [Ducote] intentionally

falsified the document.” J.A. 398. Or maybe it was a

mistake. Id. There thus was no credibility finding for the

Board to adopt on the key factual question underlying that

count in the complaint.9 For that reason, the Board’s

dismissal of Count 3 of the complaint is unsupported by

substantial evidence. See Pasternack v. NTSB, 596 F.3d 836,

838–839 (D.C. Cir. 2010); Van Dyke v. NTSB, 286 F.3d 594,

597–598 (D.C. Cir. 2002).

IV

Conclusion

The Board’s interpretation and application of its stale

complaint rule to dismiss Count 4 of the Administrator’s

complaint marks an unexplained departure from prior

precedent that is unsustainable under the plain text of the

Board’s regulation. In addition, the Board relied on a finding

never made by the ALJ to dismiss Count 3, rendering its

reasoning entirely bankrupt. We vacate those portions of the

Board’s decision, and remand to the Board for further

proceedings. Accordingly, the Administrator’s petition for

review is granted.

So ordered.

9

The Board’s reliance on a never-made credibility finding in this

case is particularly troubling because the only ALJ actually to

decide Ducote’s credibility with respect to discrepancies in how he

recorded critical flight information found Ducote to be “utterly and

completely not credible.” Administrator v. Penton, 2011 WL

7664397, at *6 (2011) (discrediting Ducote's testimony in case

brought against his Bahamas flight co-pilot).

KAREN LECRAFT HENDERSON , Circuit Judge, concurring

in part and concurring in the judgment: Although I agree with

my colleagues’ resolution of the merits, I do not join their

jurisdictional analysis, see Op. 10–14. No one—petitioner,

respondent or amicus—briefed the question whether the

“significant adverse impact” requirement is jurisdictional.

And nothing requires us to decide that question because,

whether or not it is jurisdictional, the requirement was met

here. See, e.g., McClain v. Lufkin Indus., Inc., 519 F.3d 264,

275 n.1 (5th Cir. 2008) (“Because exhaustion was satisfied,

we need not here decide whether exhaustion is . . .

jurisdictional”); SKF USA, Inc. v. U.S. Customs & Border

Prot., 556 F.3d 1337, 1348 (Fed. Cir. 2009) (“We assume, but

do not decide, that the statute of limitations . . . is

jurisdictional” because “[the] complaint was timely in any

event”). The Administrator certified that the Board’s order

would have a “significant adverse impact,” Pet’r’s Br. A1,

and, as the Administrator argues in his brief, his

determination is “committed to agency discretion by law.” 5

U.S.C. § 701(a)(2). Because I do not think we should decide

an unbriefed question of law (jurisdictional vel non) to avoid

deciding a briefed one (committed to agency discretion), see

Nat’l Juvenile Law Ctr., Inc. v. Regnery, 738 F.2d 455, 467

(D.C. Cir. 1984) (“We are reluctant to render a decision on

. . . important jurisdictional questions without the benefit of

briefing and oral argument.”), I do not join my colleagues’

resolution of the “significant adverse impact” issue. Instead, I

would resolve the question as follows.

Before he can obtain “judicial review” of a Board order,

the Administrator must “decide[]” that the order will have a

“significant adverse impact” on his ability to carry out his

duties. 49 U.S.C. §§ 1153(c); 44709(f). Amicus contends

that, although the Administrator made such a determination

here, his certifying memorandum was “vague and general and

a mere legal conclusion.” Amicus Br. 22–23.

2

But the Court should not review the substance of the

Administrator’s certification because the “significant adverse

impact” requirement has all of the hallmarks of a decision

“committed to agency discretion by law.” 5 U.S.C.

§ 701(a)(2). First, the statutes put the onus on the

Administrator, not the courts, to “decide[]” that a Board order

will have a significant adverse impact. The statutes therefore

“exude[] deference to the [agency], and appear[] to foreclose

the application of any meaningful judicial standard of

review.” Webster v. Doe, 486 U.S. 592, 600 (1988); see also

Claybrook v. Slater, 111 F.3d 904, 909 (D.C. Cir. 1997);

Drake v. FAA, 291 F.3d 59, 72 (D.C. Cir. 2002). Second, it is

impossible for a court to meaningfully second-guess whether

a Board order is “significant.” Significance is simply too

amorphous to provide a meaningful judicial metric. See

Webster, 486 U.S. at 600 (“advisable in the interests of the

United States” unreviewable); Dep’t of Navy v. Egan, 484

U.S. 518, 528–29 (1988) (“clearly consistent with the

interests of the national security” unreviewable). Finally, the

certification decision is, by nature, closely akin to

prosecutorial discretion. See In re Sealed Case, 131 F.3d 208,

214 (D.C. Cir. 1997) (“The decision to certify that a particular

case involves a ‘substantial federal interest’ implicates the

core [of] prosecutorial discretion . . . .”). Such decisions are

“presumptively unreviewable,” id., because they turn on

factors like “the Government’s enforcement priorities” that

“are not readily susceptible to the kind of analysis the courts

are competent to undertake,” Wayte v. United States, 470 U.S.

598, 607 (1985).

In short, we should not review the correctness of the

Administrator’s “significant adverse impact” determination.

Instead, we should ask only whether the Administrator made

such a determination. See In re Sealed Case, 131 F.3d at 215.

3

He did so here. See Pet’r’s Br. A1. I would resolve the issue

this way.