Zukas v. Hinson, 96-5137

• Decision Date: 21 October 1997
• Docket Number: No. 96-5137,96-5137
• Citation: 124 F.3d 1407
• Parties: 11 Fla. L. Weekly Fed. C 708 Anton G. ZUKAS, Petitioner, v. David R. HINSON, Administrator, Federal Aviation Administration, Respondent. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1407

124 F.3d 1407

11 Fla. L. Weekly Fed. C 708

Anton G. ZUKAS, Petitioner, v. David R. HINSON, Administrator, Federal Aviation

Administration, Respondent.

No. 96-5137

Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

Oct. 21, 1997.

Anton G. Zukas, Coral Gables, FL, pro se.

James William Tegtmeier, Washington, DC, for Respondent.

Petition for Review of a Final Order of the National Transportation Safety Board.

Before BIRCH, DUBINA and BARKETT, Circuit Judges.

BIRCH, Circuit Judge:

In this petition for review of a final order by the National Transportation Safety Board ("NTSB"), we determine whether revocation of a commercial pilot certificate by the Federal Aviation Administration ("FAA") after petitioner's conviction of a drug crime that involved an aircraft and sentence of imprisonment violates the ex post facto and double jeopardy prohibitions under the federal Constitution. Additionally, we review procedural challenges. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On November 5, 1986, petitioner, Anton G. Zukas, piloted a Piper Navajo, civil aircraft on a flight from Miami, Florida, to Austin, Texas. When the plane was searched by a Drug Enforcement Administration agent, two bags of cocaine were found. Zukas was convicted of conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) ¹ and 846 in the United States District Court for the Western District of Texas. ² He was sentenced to fifteen years of imprisonment and a fine of $10,000.00. The Fifth Circuit Court of Appeals affirmed his conviction. See United States v. Zukas, 843 F.2d 179 (5th Cir.1988).

Because of Zukas's drug conviction in connection with his operation of an aircraft transporting cocaine, the Administrator of the FAA revoked his Commercial Pilot Certificate No. 263743302 pursuant to 49 U.S.C. § 44709 (1994) ³ and 14 C.F.R. § 61.15(a) (1995) ⁴ on May 11, 1995. Zukas appealed the revocation of his commercial pilot certificate to the NTSB and requested a hearing with an administrative law judge ("ALJ"). The FAA Administrator filed the revocation order as the agency's complaint in the appeal and moved for summary judgment. Although Zukas conceded his conviction, he filed a motion to dismiss and argued that the FAA Administrator had failed to prove that the revocation of Zukas's pilot certificate was warranted under 49 U.S.C. § 44709 and 14 C.F.R. § 61.15(a) and that the revocation order was barred by the six-month limitations period. He also asserted that the revocation order violated the constitutional protection against ex post facto laws and that it constituted multiple punishment in violation of the Double Jeopardy Clause. The ALJ determined that the revocation of Zukas's pilot certificate was warranted, but he reserved judgment as to the appropriate sanction. Thus, the ALJ granted partial summary judgment for the FAA Administrator and set a hearing to decide the sanction issue. The ALJ denied Zukas's motion to dismiss. Zukas then filed a notice of appeal to the full board of the NTSB.

During the proceedings before the ALJ, the FAA Administrator issued an amended revocation order. The ALJ, however, did not receive this order before ruling on the parties' motions. The only difference between the original and amended orders was an additional statutory basis for the revocation of Zukas's pilot certificate, 49 U.S.C. § 44710(b). ⁵ Zukas filed a separate notice of appeal from the amended order and, alternatively, requested that the order be joined with his appeal from the ALJ's decision. He also filed a motion to dismiss the amended order as untimely, duplicitous, and barred because of his appeal to the full board of the NTSB. The FAA Administrator filed a copy of the amended revocation order as his amended complaint and an amended summary judgment motion. The ALJ vacated only the part of his earlier order granting partial summary judgment to the FAA Administrator. Treating Zukas's notice of appeal as a request for an interlocutory appeal, the ALJ refused to certify the record for the appeal, and he denied Zukas's motion to dismiss the FAA Administrator's amended complaint.

The ALJ subsequently granted summary judgment to the FAA Administrator based on the undisputed allegations of the amended complaint and 49 U.S.C. § 44710(b). Zukas appealed to the full board of the NTSB and made the same arguments advanced to the ALJ. The NTSB denied the appeal, adopted the ALJ's order denying Zukas's motion to dismiss, and affirmed the ALJ's decision because of its conclusion that Zukas's pilot certificate was revocable under 49 U.S.C. § 44710(b) and 14 C.F.R. 61.15(a). Zukas petitions this court for review of the final order by the NTSB that affirmed summary judgment granted to the FAA.

II. ANALYSIS

A. Review Standards

This court has jurisdiction to review a final order of the NTSB. See 49 U.S.C. § 1153(a); Oceanair of Florida, Inc. v. National Transp. Safety Bd., 888 F.2d 767, 768 (11th Cir.1989) (stating that the revocation of an operating certificate by the NTSB is "directly appealable to this court"). We uphold a decision by the NTSB unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" or the challenged decision is "contrary to constitutional right, power, privilege, or immunity." 5 U.S.C. § 706(2)(A), (B). "[W]hen reviewing an agency decision under the 'arbitrary and capricious' standard, we must defer to the wisdom of the agency provided [its] decision is reasoned and rational"; we are not authorized to substitute our judgment for that of the agency. McHenry v. Bond, 668 F.2d 1185, 1190 (11th Cir.1982). The NTSB has "broad discretion" in its determination of the appropriate sanction for violation of FAA regulations. Cobb v. National Transp. Safety Bd., 572 F.2d 202, 204 (9th Cir.1977) (per curiam). The factual findings of the NTSB are binding on this court if supported by substantial evidence. See 49 U.S.C. § 46110(c). We review the interpretation of constitutional and statutory provisions by the NTSB de novo. See Bennett v. National Transp. Safety Bd., 66 F.3d 1130, 1136 (10th Cir.1995); see also Essery v. National Transp. Safety Bd., 857 F.2d 1286, 1288 (9th Cir.1988) (holding that a court of appeals reviews de novo purely legal questions).

B. Procedural Challenges

1. Notice

Zukas argues that the FAA Administrator's amended order of revocation violated the notice requirement of 49 U.S.C. § 44709(d) because it was issued after he appealed to the full board of the NTSB. Zukas received notice prior to the revocation of his commercial pilot certificate and appealed to the NTSB in accordance with 49 U.S.C. §§ 44709(c), (d) and 44710(c), (d), which provide that the FAA must advise the holder of a pilot certificate of the charges against him, allow the holder an opportunity to be heard before issuing a revocation order, and permit the holder to appeal the order to the NTSB. Furthermore, when Zukas appealed the ALJ's decision to the full board of the NTSB, the ALJ had granted only partial summary judgment and had set a hearing to determine the appropriate sanction; the ALJ had not entered a final decision. Under the administrative regulations, the ALJ's ruling on the parties' motion cannot be appealed until the ALJ considers the entire proceedings or certifies the record for an appeal to the full board of the NTSB. See 49 C.F.R. §§ 821.16, 821.35(a), 821.41, 821.47 (1995). In this case, the ALJ had retained jurisdiction and had not certified the record to the NTSB at the time that the FAA Administrator filed the agency's amended complaint.

Furthermore, Zukas's reliance on Oceanair is misplaced. In Oceanair, this court determined that the FAA had violated section 609(a) of the Federal Aviation Act of 1958, 49 U.S.C. § 1429(a) (recodified as amended at 49 U.S.C. §§ 44709(c), (d) & 44710(c), (d) (1994)), "by amending its complaint against Oceanair at the appeal stage to include new charges and a revised order without first granting Oceanair an opportunity to be heard by the FAA on the new charges." Oceanair, 888 F.2d at 768-69 (emphasis added). Unlike the complaint in Oceanair, the FAA's amended order of revocation against Zukas was identical to the original revocation order, except that it added 49 U.S.C. § 44710(b) to augment 14 C.F.R. § 61.15(a) in requiring revocation of a pilot's operating certificate when the holder is convicted of a federal or state crime related to controlled substances. Therefore, we find no merit in Zukas's contention that the FAA Administrator's amended order of revocation violated 49 U.S.C. §§ 44709(c), (d) and 44710(c), (d).

2. Timeliness of the Pilot Certificate Revocation Order

Zukas also argues that the FAA failed to issue its pilot certificate revocation order within six months of the time that the FAA knew or should have known that his conviction was the basis for revocation. ⁶ Section 821.33 of the NTSB's Rules of Practice in Air Safety Proceedings, known as the "stale complaint rule," provides that "[w]here the [FAA's] complaint states allegations of offenses which occurred more than 6 months prior to the Administrator's advising [the pilot certificate holder] as to reasons for proposed action ... [the pilot certificate holder] may move to dismiss such allegations...." 49 C.F.R. § 821.33. By its specific terms, however, the stale complaint rule is preempted when there are allegations of the pilot certificate holder's lack of qualifications. ⁷ See id. § 821.33(a), (b). Since, under 49 U.S.C. § 44710 and 14 C.F.R. § 61.15(a), the FAA Administrator may revoke a pilot certificate if the holder is convicted of a crime related to the transporting of controlled substances, Zukas's conviction for conspiracy to possess and to distribute cocaine implicated his qualifications to retain his pilot certificate. We defer to an administrative agency's reasonable interpretation of its own...