Paul Lindsay v. National Transportation Safety Board Federal Aviation Administration

Circuit Judge TATEL,

concurring in part, and concurring in the judgment:

I agree with the majority that substantial evidence supports the decision of the Board. I write separately to express a concern that the Board’s reasoning regarding the burden of proof and certain related credibility determinations borders on the arbitrary and capricious.

The ALJ concluded that neither party had “proven” its version of events; neither established that Lindsay had, or had not, flown the plane. The Board considered this a misreading of the preponderance of the evidence standard. “This is not a complicated case,” the Board wrote; Lindsay “either made the flight the Administrator believes he made or he did not. The law judge’s task was to decide that issue one way or the other.” The ALJ, however, had no duty to determine whether Lindsay did or did' not fly the plane. His only duty was to determine whether the party with the burden of proof had established that its allegations were “more likely than not.” The ALJ did just that, concluding that the Administrator had not proven, by a preponderance of the evidence, that Lindsay flew the plane.

The Board’s confusion — and its insistence that the ALJ decide the matter “one way or the other” — is understandable: As a factual matter, Lindsay either was or was not in the pilot’s seat that night. In a legal sense, however, the ALJ’s findings were entirely plausible because neither party had provided him with the quantum of certainty that he needed to conclude that its version of events had occurred.

Lindsay, of course, was not responsible for proving he did not fly the plane; indeed, it was technically possible for Lindsay to have won without presenting any defense at all. But he did present a case, and his evidence was useful to the ALJ because it “created doubts” in his mind about the strength of the Administrator’s case. This language of doubt is not, as the Board seems to think, evidence of an inappropriately applied burden of proof. Instead, it is merely one way of articulating the necessary weighing of evidence that goes on in circumstantial eases like this one. See Administrator v. Williams, No. Order EA-3588, Docket SE-10463, 1992 WL 14200 ,1992 N.T.S.B. LEXIS 125, at *3 n. 4 (May 26,1992) (using language of “reasonable doubt” in a similar context); Administrator v. Saunders, No. Order EA- *1215 3672, Docket SE-10104, 1992 WL 224887 , 1992 N.T.S.B. LEXIS 189, at *14 (Aug. 29, 1992) (using language of “sufficient doubt” in a similar context). Lindsay’s failure to prove that he did not fly the plane — and the doubt that his witnesses cast on the Administrator’s case — was thus entirely consistent "with the ALJ’s finding that the Administrator failed to prove his ease. As Chairman Vogt recognized in dissenting from the Board’s opinion, the Board’s conclusion that the ALJ improperly applied the burden of proof was incorrect.

The Board compounded its error by failing to understand how Lindsay’s witnesses could have “cast doubt” on the Administrator’s ease when the ALJ did not entirely believe their testimony. According to the Board, the ALJ’s conclusion that Lindsay was “less than credible” “ha[d] to be equated” to a belief that Lindsay flew the plane — i.e. that the ALJ really must have believed the opposite of Lindsay’s testimony. The Board also concluded that the ALJ had “unwittingly” given credence to the testimony of other witnesses that he considered biased or not fully credible. Athough the ALJ may ignore the testimony of witnesses that appear “less than credible,” and although the ALJ may even choose to believe the opposite of the testimony of a witness who appears particularly deceitful, see 2 Davis & Pierce, Administrative Law Treatise § 11.2, at 188-90 (3rd ed. 1994); cf. United States v. Zeigler, 994 F.2d 845, 848-50 (D.C.Cir.1994), nothing requires, as the Board apparently concluded, that the factfinder must ignore the testimony of “less than credible” witnesses or must conclude the opposite of that testimony. Testimony by less than credible witnesses may be useful in several ways. For example, though the ALJ considers a portion of a witness’ testimony to be deceptive, the rest of it may be credible. Such testimony might also cast doubt on the credibility or certainty of the Administrator’s witnesses, or call into question the logical consistency of the Administrator’s evidence or inferences that he seeks to draw from that evidence. As noted above, these considerations led the ALJ to conclude that the testimony of Lindsay’s witnesses “cast doubt” — apparently significant doubt— on the Administrator’s version of events. See Joint Appendix at 624, 626, 628, 630 (giving credence to less than credible witnesses).

I can understand the Board’s frustration with trying to review seesawing credibility determinations like those made in this case. In such instances, the Board would be entirely justified in reviewing the evidence de novo, as it did here, or in directing its ALJs to provide less equivocal credibility determinations. The Board went further, however, resting much of its decision upon an apparent misconception of the burden of proof and a sweeping misunderstanding that testimony by less than credible witnesses can have no role in an adjudication. Since the Board’s own finding that Lindsay violated flight regulations is supported by substantial evidence, I can nevertheless concur in its reversal of the ALJ. Should its misconceptions regarding the burden of proof and the role of less than credible testimony affect the results of future Board opinions, however, I will come to view them with even more skepticism.