Borregard v. National Transp. Safety Bd.

Decision Date10 January 1995
Docket NumberNo. 93-70533,93-70533
Citation46 F.3d 944
PartiesRobert S. BORREGARD, Petitioner, v. NATIONAL TRANSPORTATION SAFETY BOARD; Federal Aviation Administration, Respondents.
CourtU.S. Court of Appeals — Ninth Circuit

Jay C. White, Redwood City, CA, for petitioner.

Susan S. Caron, Office of Chief Counsel, Federal Aviation Admin., Washington, DC, for respondents.

Petition to Review a Decision of the National Transportation Safety Board.

Before: GOODWIN and SCHROEDER, Circuit Judges, and TASHIMA, ** District Judge.

GOODWIN, Circuit Judge:

Robert Borregard appeals an NTSB decision affirming an FAA Emergency Order revoking his aircraft mechanic certificate and inspection authority on the charge that Borregard altered an aircraft's maintenance logs for a fraudulent purpose in violation of 14 C.F.R. Sec. 43.12(a)(3). Borregard contends that the Board's finding that he breached Sec. 43.12(a)(3) is not supported by substantial evidence and that the revocation of his certificates was an inappropriate and unconstitutional response to the charged violation. Because the Board's decision is not arbitrary and capricious and is supported by substantial evidence, we affirm. The penalty, too, was appropriate in light of the gravity of Borregard's infraction and established Board precedent.

I. Standards of Review

Review of NTSB orders is deferential. This Court must affirm unless the NTSB's order is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. Sec. 706(2)(A). Findings of fact are conclusive, so long as they are supported by substantial evidence in the record. Legal conclusions are generally reviewed de novo. Olsen v. NTSB, 14 F.3d 471, 474 (9th Cir.1994). However, an agency's interpretation of its own organic statute and regulations are accorded deference, unless "the administrative construction is clearly contrary to the plain and sensible meaning of the regulation." Hart v. McLucas, 535 F.2d 516, 520 (9th Cir.1976).

II. The Legal Standard

The Board's interpretation of Sec. 43.12(a)(3) is arguably contrary to the plain meaning of the regulation. Correctly understanding Sec. 43.12(a)(3) as an attempted fraud provision, the Board enunciated the elements of a Sec. 43.12(a)(3) violation: 1) a false representation; 2) in regard to a material fact; 3) made with knowledge of its falsity; and 4) with the intent to deceive.

The language and purpose of Sec. 43.12(a)(3), however, may call for a less exacting standard. The regulation prohibits "[a]ny alteration, for fraudulent purpose." (Emphasis added). By requiring that the alteration be actually false and made with knowledge of that falsity, the Board has effectively read the word "any" out of the regulation and replaced it with an implicit "knowingly false." The elements of attempted fraud would seem to be met so long as the actor subjectively believes the alteration is false, whether or not the information is actually false.

Although we note this lurking question, we do not need to make such subtle interpretive distinctions today as Borregard clearly violated Sec. 43.12(a)(3) even under the more stringent standard applied by the Board.

III. Each Element of a Sec. 43.12(a)(3) Violation is Supported

Each element of a Sec. 43.12(a)(3) violation is supported by substantial evidence. The basic facts of the case are not in dispute. Borregard initially entered October 24 as the date of inspection in the engine log of the plane at issue and October 28 as the inspection date in the air frame log. In fact, the inspection had not been completed by October 24 or 28. Keith Mason, the director of maintenance of Squadron Two Flying Club, Borregard's employer, asked Borregard to backdate the annual inspection to September in an apparent attempt to shield a club member from any liability arising from his flying an uncertified plane. Borregard covered the entries of the October dates with a sticker and entered September 1 as the date he completed the annual inspection. Once Borregard learned that the FAA had received the false records, he attempted to cover up his misstatement. He again placed stickers over the entries, rewriting October 24 in the logs and submitting the new copies to the FAA. Later, he wrote "void" over the new October 24 entry. He finally recorded November 1 as the completion date, despite the fact that as of November 1, the annual inspection still had not been completed.

Borregard concedes that he made all the above date changes and that he knew that the inspection had not been completed even by November 1, the latest date entered. Accordingly, there is no question that the four entries were false and that Borregard knew of their falsity. Entry of the exact completion date only satisfies the air safety regulations. Administrator v. Olsen, NTSB Order No. 3582 at 10.

Borregard argues that he had no intent to deceive the FAA. In a nutshell, he argues that he intended to defraud only those who would rely on the records of Squadron Two, not the FAA. However, the fact that Borregard intended to defraud certain people and not others does not negate his bad intent. The pilots, mechanics, insurers, and anyone else who might rely on Squadron Two's safety records, even the public at large, are within the ambit of those protected by the air safety regulations requiring that maintenance records for aircraft be trustworthy. Cf. Administrator v. Berglin, NTSB Order No. EA-3846 at 5. Furthermore, there is substantial evidence suggesting that Borregard intended to defraud the FAA. Borregard knowingly presented false information to the FAA, sending the FAA copies of re-doctored records showing an October 24 inspection date. Later, Borregard showed up at the hearing with records bearing a November 1 completion date, when, by Borregard's own testimony, the inspection was completed after November 1.

As a matter of law, Borregard's false entries in the logs are material. The test of materiality is whether the false statements had the natural tendency to influence, or were capable of influencing, the decision of the FAA inspector to whom the logbook was submitted. Janka v. NTSB, 925 F.2d 1147, 1150 (9th Cir.1991). As one would expect, materiality in the context of regulations requiring logbooks has been interpreted broadly to include any logbook entry which in any way illustrates compliance with the referenced regulations. Administrator v. Olsen, NTSB Order No. EA-3582 at 10. Clearly, certifying that maintenance on a plane had been completed when in fact it had not is material. 1

IV. The Propriety of Revocation of Licenses as a Penalty

Borregard contends that revocation of his mechanic and inspection certificates is not an appropriate sanction for the violation charged in that 1) it violates his substantive due process rights and 2) his actions do not show a lack of qualification. Both arguments are contrary to the great weight of authority.

The "liberty" that the Constitution protects does include choice of occupation. Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972). However, the state has broad discretion to regulate professions...

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