Newton v. F.A.A.

Citation457 F.3d 1133
Decision Date08 August 2006
Docket NumberNo. 05-9548.,05-9548.
PartiesRobert W. NEWTON, Petitioner, v. FEDERAL AVIATION ADMINISTRATION, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

D. Scott Crook, (R. Christopher Preston, on the brief), Smith Hartvigsen, PLLC, Salt Lake City, UT, for Petitioner.

Susan S. Caron, Attorney (Peter J. Lynch, Assistant Chief Counsel, on the brief), Enforcement Division, AGC-300, Federal Aviation Administration, Washington, DC, for Respondent.

Before KELLY, SEYMOUR, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

This case arises under the Federal Aviation Act, 49 U.S.C. § 40101 et seq. (as amended). Robert Newton petitions for our review of an order of the National Transportation Safety Board (NTSB) determining that it lacked jurisdiction to review the decision of the Utah Air National Guard (ANG) to withdraw permanently Mr. Newton's air-traffic-control-specialist (ATCS) certificate. We have jurisdiction under 49 U.S.C. §§ 1153, 44709(f), 46110(a), to review the NTSB's order. We affirm.

I. BACKGROUND

Mr. Newton became an air traffic controller1 in 1968, when the Federal Aviation Administration (FAA) issued his first ATCS certificate. This certificate authorizes the bearer to perform specified air-traffic-control duties at a designated facility. He worked for the FAA at civilian air-traffic-control facilities in Idaho and Utah until 1981. In 1985 he became certified to work as a controller at Hill Air Force Base, and obtained a part-time position with the 299th Range Control Squadron of the Utah ANG. In 1988 he was employed full-time as a civilian air traffic controller working for the Department of Defense at Hill. In 1993 his ATCS certificate was reissued, apparently only because there was no room for additional certifications and ratings on his old one.

On December 7, 2003, the Utah ANG suspended Mr. Newton's ATCS certificate and restricted him from performing air-traffic-control duties because "[i]t has been determined that [he is] a hazard to aviation safety for repeated failure in performing the duties of an Air Traffic Control Supervisor." R. at 6. His ATCS certificate was permanently withdrawn by the ANG on February 24, 2004, and he was therefore "not authorized to perform any function related to ATC in the Air National Guard or USAF." Id. at 1. Mr. Newton appealed the withdrawal of the ATCS certificate to the NTSB under 49 U.S.C. § 1133(1), which permits the NTSB to review on appeal "the denial, amendment, modification, suspension, or revocation of a certificate issued by the Secretary of Transportation under section 44703, 44709, or 44710 of [Title 49]." The timing and other procedural requirements for an appeal to the NTSB are governed by 49 C.F.R. §§ 821.30, 821.53.

On June 14, 2004, an NTSB Administrative Law Judge (ALJ) issued an "Order Not Accepting Appeal and Terminating Proceeding for Lack of Jurisdiction." R. at 700. The ALJ observed that the NTSB's statutory jurisdiction to review certificate actions encompasses only orders of the FAA respecting certificates issued under 49 U.S.C. chapter 447. The ALJ decided that the ATCS certificate was not such a certificate. He rejected Mr. Newton's arguments that (1) his ATCS certificate was an "airman certificate" under 49 U.S.C. §§ 44702(a), 44703, and (2) even if it was not an airman certificate, it was nonetheless a certificate issued under chapter 447. Mr. Newton appealed the ALJ's decision to the Board. Rejecting Mr. Newton's arguments relying on FAA Order 7220.1A, a handbook entitled, "Certification and Rating Procedures," the NTSB affirmed the jurisdictional conclusions of the ALJ and denied the appeal.

II. STANDARD OF REVIEW

We review the NTSB's factual findings to determine whether they are supported by "substantial evidence." 49 U.S.C. §§ 1153(b)(3), 44709(f). In other respects the scope of our review is governed by 5 U.S.C. § 706 of the Administrative Procedures Act (APA). See 5 U.S.C. § 701; Jifry v. Fed. Aviation Admin., 370 F.3d 1174, 1180-81 (D.C.Cir.2004) (applying APA review to pilots' challenge to the revocation of their airman certificates); cf. Boca Airport, Inc. v. Fed. Aviation Admin., 389 F.3d 185, 189 (D.C.Cir.2004) (applying APA to extent that 49 U.S.C. § 46110 does not govern standard of review). Under the APA we "may overturn nonfactual aspects of the . . . decision only if they are `arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.'" Boca Airport, Inc., 389 F.3d at 189 (quoting 5 U.S.C. § 706(2)(A)). In particular, we have held that we review issues of law, such as matters of statutory interpretation, de novo. See Bennett v. Nat'l Transp. Safety Bd., 66 F.3d 1130, 1136 (10th Cir.1995); see also 5 U.S.C. § 706; Kratt v. Garvey, 342 F.3d 475, 480 (6th Cir.2003) (de novo review of issues of law on appeal from NTSB).

Under the line of cases following Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), we ordinarily defer to an agency's interpretation of an ambiguous statute that it implements. See McGraw v. Barnhart, 450 F.3d 493, 500 (10th Cir. 2006); see also Donnelly v. Fed. Aviation Admin., 411 F.3d 267, 271 (D.C.Cir.2005) (applying Chevron to an FAA statutory interpretation). There are three agency pronouncements relevant to this case: (1) the NTSB's adjudication of Mr. Newton's appeal; (2) FAA regulations governing airman certificates; and (3) the FAA handbook, FAA Order 7220.1A, which establishes ATCS certificates and contrasts them with airman certificates.

Different types of agency pronouncements are entitled to different degrees of deference. In United States v. Mead, 533 U.S. 218, 226-27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001), the Supreme Court held:

[A]dministrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority. Delegation of such authority may be shown in a variety of ways, as by an agency's power to engage in adjudication or notice-and-comment rulemaking, or by some other indication of a comparable congressional intent.

Under this holding the NTSB's adjudication would appear to qualify for Chevron deference, although the extent to which such deference should be accorded an agency's interpretation of its own jurisdictional statute has been a matter of dispute. Compare, e.g., McBryde v. Comm. to Review Circuit Council Conduct & Disability Orders of the Judicial Conf. of the U.S., 264 F.3d 52, 62 (D.C.Cir.2001) (applying Chevron deference to agency's interpretation); Fleischmann v. Dir., Office of Workers' Comp. Programs, 137 F.3d 131, 136 n. 2 (2d Cir.1998) (same); with, e.g., N. Ill. Steel Supply Co. v. Sec. of Labor, 294 F.3d 844, 846-47 (7th Cir.2002) (Chevron deference is not applicable to an agency's jurisdictional determination); Bolton v. Merit Systems Prot. Bd., 154 F.3d 1313, 1316 (Fed.Cir.1998) (same). See generally Cass R. Sunstein, Chevron Step Zero, 92 Va. L.Rev. 187, 234-36 (2006). As for the FAA's regulations, they are clearly entitled to Chevron deference. See Toomer v. City Cab, 443 F.3d 1191, 1196 (10th Cir. 2006) (regulations promulgated by an agency in exercising Congressionally granted rulemaking authority are entitled to deference under Chevron). The FAA handbook, in contrast, was not issued as a regulation. Nevertheless, insofar as the handbook is interpreting the provisions of the Federal Aviation Act governing air traffic controllers, it is entitled to deference to the extent that it is persuasive, see McGraw, 450 F.3d at 501; Friends of Richards-Gebaur Airport v. Fed. Aviation Admin., 251 F.3d 1178, 1195 (8th Cir. 2001); and it is entitled to great deference insofar as it is interpreting the agency's own regulations, see Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997); Archuleta v. Wal-Mart Stores, Inc. (In re Wal-Mart Stores, Inc.), 395 F.3d 1177, 1184-85 (10th Cir.2005). See Humanoids Group v. Rogan, 375 F.3d 301, 306 (4th Cir.2004) ("[A]gency interpretations that lack the force of law (such as those embodied in opinion letters and policy statements) do not warrant Chevron-style deference when they interpret ambiguous statutes but do receive deference under Auer when interpreting ambiguous regulations." (internal quotation marks omitted)). Should we encounter an inconsistency between the interpretation of the NTSB and that of the FAA, we would likely give greater deference to the FAA as the primary agency overseeing the certification provisions of the Federal Aviation Act. See Olson v. Fed. Mine Safety & Health Review Comm., 381 F.3d 1007, 1011 (10th Cir.2004) (addressing possibility of conflict between interpretations by (1) Federal Mine Safety and Health Review Commission and (2) Mine Safety and Health Administration). In the following discussion we have no quarrel with any relevant pronouncements of the NTSB or the FAA. To the extent that we should accord deference to such pronouncements, our conclusions are only strengthened.

III. ANALYSIS

The NTSB's jurisdiction in this case is determined by 49 U.S.C. § 1133, which states in relevant part:

The National Transportation Safety Board shall review on appeal —

(1) the denial, amendment, modification, suspension, or revocation of a certificate issued by the Secretary of Transportation under section 44703, 44709, or 44710 of this title . . . .

Section 44703 governs the FAA's issuance of "airman" certificates and specifically provides for an NTSB appeal by "[a]n individual whose application for the issuance or renewal of an airman certificate has been denied" by the FAA Id. § 44703(c). Section 44709 governs orders by the FAA Administrator "amending, modifying, suspending, or revoking . . . any part of a certificate...

To continue reading

Request your trial
15 cases
  • United Keetoowah Band of Cherokee Indians v. Hud
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 5 Junio 2009
    ...to the statute." Nutraceutical Corp. v. Von Eschenbach, 459 F.3d 1033, 1038 (10th Cir.2006) (quotation omitted); Newton v. F.A.A., 457 F.3d 1133, 1136 (10th Cir.2006) ("[W]e ordinarily defer to an agency's interpretation of an ambiguous statute that it implements."). HUD's application of th......
  • Newton v. Lee, s. 10–4063
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 24 Abril 2012
    ...An ATCS certificate “authorizes the bearer to perform specified air-traffic-control duties at a designated facility.” Newton v. FAA, 457 F.3d 1133, 1135 (10th Cir.2006). Under Air Force Instruction 13–203, which regulates military air traffic controllers and applies to the UANG, “only perso......
  • Ferry v. Gonzales
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 8 Agosto 2006
  • Via Christi Regional Medical Center v. Leavitt
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 7 Diciembre 2007
    ...quotation marks omitted). "Different types of agency pronouncements are entitled to different degrees of deference." Newton v. FAA, 457 F.3d 1133, 1136 (10th Cir.2006). In reviewing the validity of an agency regulation interpreting a statute, courts rely upon the familiar two-step framework......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT