Jeszka v. Ntsb, 09-15721
| Decision Date | 16 August 2010 |
| Docket Number | No. 09-15721,No. EA-5479-NTSB,No. EA-5458-NTSB,09-15721,EA-5479-NTSB,EA-5458-NTSB |
| Parties | EDWARD T. JESZKA, RAYMOND A. LEDBETTER, Petitioners, v. NTSB, Respondent. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
DO NOT PUBLISH
Petition for Review of a Decision of the Department of Transportation
Before EDMONDSON, BIRCH and CARNES, Circuit Judges.
On April 17, 2009, the Federal Aviation Administration issued emergencyorders finding that petitioners Edward Jeszka and Raymond Ledbetter had intentionally falsified required records, in violation of 14 C.F.R. § 61.59(a)(2). The FAA's orders revoked the airman certificates of both Ledbetter and Jeszka. See 14 C.F.R. § 61.59(a)(2). Ledbetter and Jeszka appealed, and the two cases were consolidated. The administrative law judge affirmed the Administration's orders, and his ruling was in turn affirmed by the National Transportation Safety Board. The Board later denied Ledbetter and Jeszka's petition for rehearing. They have petitioned this Court for review.
During February and March 2008, Jeszka was employed as an FAA inspector in the Birmingham, Alabama Flight Standards District Office (FSDO). He had been on extended sick leave since October 2006 while undergoing treatment for cancer. In order to return to his full duties at the FAA, Jeszka needed to have his Certified Flight Instructor certificate reinstated, which required him to successfully complete an oral knowledge test and a practical flight test administered by a Designated Pilot Examiner.
On March 28, 2008, Jeszka initiated an FAA online Integrated Airman Certificate and Rating Application. Jeszka was applying to reinstate his Certified Flight Inspector certificate. Later that day, Ledbetter, acting as Jeszka's Designated Pilot Examiner, signed Jeszka's application. Ledbetter and Jeszka are longtime friends.
According to the application signed by both men, on March 28, 2008, Ledbetter had administered to Jeszka, and Jeszka had successfully completed, both the oral and practical tests required to reinstate his CFI certificate. The application also stated that the practical test had been administered to Jeszka at the Walker County Airport in Jasper, Alabama, using civil aircraft N272TL. Ledbetter issued a temporary airman certificate to Jeszka on that same day, March 28.
Civil aircraft N272TL is a Cessna 172 airplane owned by the family of Joey Sanders, who is a longtime friend of both Jeszka and Ledbetter. Sanders runs a business, Sanders Aviation, that is one of only two fixed base operations at the Walker County Airport. In that role, Sanders Aviation provides "services [at the airport] similar to those that a service station provides for those who operate automobiles." City of Pompano Beach v. F.A.A., 774 F.2d 1529, 1532 n.5 (11th Cir. 1985). The Walker County Airport is a small, non-commercial airport with a very low volume of flights. Sanders Aviation is located in a building attached to a hangar facing the lone runway at that airport. The building and hangar are not soundproof, and all flights taking off or landing at the Walker County Airport can be heard inside the building and hangar.
In April 2009, the FAA issued one emergency order revoking all of Ledbetter's airman certificates and another one revoking all of Jeszka's airman certificates. Those emergency orders were based on the FAA's finding that the two had violated 14 C.F.R. § 61.59(a)(2) by intentionally falsifying required records. Specifically, the FAA found that: Jeszka electronically submitted an Integrated Airman Certificate and Rating Application on March 28, 2008; based on that application, Ledbetter, acting as a Designated Pilot Examiner, issued a temporary airman certificate to Jeszka; and Ledbetter and Jeszka falsely stated on that temporary airman certificate that Jeszka had completed a practical test flight on March 28, 2008.
Jeszka and Ledbetter appealed the emergency orders and an evidentiary hearing was held before an ALJ. Sanders testified at the hearing that he stores his Cessna in the hangar attached to his fixed base operation, and the hangar is usually locked. In 2008, Sanders' Cessna flew only thirty-eight hours and was not required to keep records of its usage. Sanders treats the Cessna as "just a family plane," and he occasionally, but "[n]ot very often," allows his friends to borrow it if they ask his permission first. When someone borrows his Cessna, Sanders arranges for the aircraft to be taken out of the hangar and readied for the borrower's use. If he is present at the airport, Sanders takes the plane out himself.
Sanders also testified that Ledbetter and Jeszka used his Cessna on February 11, 2008, but he did not remember either of them using it after that date. He did not remember even seeing Jeszka at the Walker County Airport again until after June 2008, when Jeszka flew in a Beechcraft Barron airplane.
On cross-examination, when counsel for Ledbetter and Jeszka asked Sanders if he remembered being at the airport on March 28, 2008, he stated that nothing about that day stood out in his mind beyond the fact that he was "in and out all day." He added that if he was not running errands, he would have been at his operations at the airport. When asked if it was possible that Ledbetter had administered a check ride to Jeszka using Sanders' Cessna on March 28, Sanders replied that if such a flight did occur, it occurred without his knowledge. He explained that it would be difficult for someone to use his Cessna without his knowledge because he usually keeps it locked in the hangar, and if someone had started the airplane while he was there, he would have known it. When asked if he remembered Ledbetter and Jeszka being at the Walker County Airport on March 28, Sanders answered: "I don't remember them being there, and as far as I know, they were not there."
Ledbetter and Jeszka also testified at the hearing. Both denied that Jeszka was at the airport in Jasper, Alabama on February 11, and Ledbetter testified that Sanders incorrectly informed the FAA that Jeszka had been at the airport that day. Ledbetter testified that he had never flown Sanders' Cessna without getting Sanders' permission. Both Jeszka and Ledbetter testified that Ledbetter had called Sanders to get permission to use the Cessna for the practical test on March 28.
Originally, Ledbetter and Jeszka testified that they met in Sumiton, Alabama, at around 2:30 p.m. on March 28, before riding together to the Walker County Airport. Both of them testified that Ledbetter administered the oral test to Jeszka during the drive to the airport. Ledbetter also testified that he had a conversation with Sanders after arriving at the airport, although he did not remember what they discussed.
Ledbetter and Jeszka also testified that, after arriving at the airport on March 28, they entered data into the Integrated Airman Certificate and Rating Application before conducting the practical test flight. Jeszka testified that Ledbetter entered the data into the application for him because he did not have an application account and was unfamiliar with the application system. Jeszka also testified that, following the flight, he and Ledbetter used a computer at Sanders' operation to complete the application and Jeszka's temporary airman certificate was printed after the application was completed.
The Integrated Airman Certificate and Rating Application systemautomatically stores a variety of information, including the time that a particular event occurs. A report detailing the stored information relating to Jeszka's application revealed that he began the application process at 8:23 a.m. on March 28, and that he completed his portion of the process and electronically signed the application at 12:13 p.m. Ledbetter completed the process by signing the application as the Designated Pilot Examiner at 5:52 p.m.
When confronted with that data from the application report, Jeszka changed his story. He said that he had started the application at his home at 8:23 a.m., rather than in the afternoon at Sanders' operation. He added that Ledbetter had come by his house that morning to help him finish the initial portion of the application. Jeszka did not deny signing the application at noon, as indicated in the report. He added that Ledbetter must have been present when he signed it, because that is part of Ledbetter's duties as the Designated Pilot Examiner. Jeszka still maintained that, after the practical test flight, he and Ledbetter completed the application using a computer in the upstairs office at Sanders' Aviation. The upstairs office is Sanders' private office, and he normally keeps it secured. Jeszka testified that he was unsure if Sanders was there when he and Ledbetter completed the application, but he thought so "because there was some kind of computer glitch."
At the conclusion of the evidentiary hearing, the ALJ issued an oral opinion and order upholding the FAA's emergency orders. The ALJ explained that he found Sanders to be a credible witness who "delivered his testimony in a straightforward manner" and who had no motive to lie about whether he had administered a practical test to Jeszka on March 28, 2008. The ALJ also determined that Jeszka and Ledbetter were not credible witnesses. The ALJ relied on the fact that their initial version of the events of March 28 was contradicted by the information contained in the electronic application report, and both of the men had a motive to lie in order to avoid the revocation of their airman certificates. Relying on those findings, the ALJ affirmed the FAA's orders revoking the airman certificates of the two men.
Ledbetter and Jeszka appealed to the Board, which affirmed the ALJ's decision and the FAA's emergency orders revoking the airman certificates held by Ledbetter and Jeszka. The two then filed a petition for rehearing, which the Board denied. They have petitioned us for review of the Board's order affirming the decision of the ALJ and...
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