Huerta v. Ducote, 14–1023.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtMILLETT, Circuit Judge
Citation792 F.3d 144
PartiesMichael P. HUERTA, Administrator, Federal Aviation Administration, Petitioner v. Jody DUCOTE and National Transportation Safety Board, Respondents.
Docket NumberNo. 14–1023.,14–1023.
Decision Date30 June 2015

792 F.3d 144

Michael P. HUERTA, Administrator, Federal Aviation Administration, Petitioner
Jody DUCOTE and National Transportation Safety Board, Respondents.

No. 14–1023.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 13, 2014.
Decided June 30, 2015.

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.

Before: HENDERSON, GRIFFITH and MILLETT, Circuit Judges.


Opinion for the Court by Circuit Judge MILLETT.

792 F.3d 147

Opinion concurring in part and concurring in the judgement 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.


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 alleges lack of qualification of the respondent.” Id. § 821.33(b).1

792 F.3d 148

“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).

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 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

792 F.3d 149

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 copiloted 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 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...

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