United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 8, 2010 Decided January 14, 2011
No. 09-1157
MICHAEL GEORGE MANIN,
PETITIONER
v.
NATIONAL TRANSPORTATION SAFETY BOARD AND FEDERAL
AVIATION ADMINISTRATION,
RESPONDENTS
On Petition for Review of an Order
of the Department of Transportation
Kathleen A. Yodice argued the cause and filed the briefs for
petitioner.
Agnes M. Rodriguez, Senior Attorney, Federal Aviation
Administration, argued the cause and filed the briefs for
respondent.
Before: SENTELLE, Chief Judge, WILLIAMS and RANDOLPH,
Senior Circuit Judges.
Opinion for the Court filed by Chief Judge SENTELLE.
SENTELLE, Chief Judge: Michael George Manin petitions
for review of a National Transportation Safety Board (“NTSB”
2
or “Board”) order affirming the Federal Aviation
Administration’s (“FAA”) emergency revocation of his airline
transport pilot, flight instructor, flight engineer, and first class
airman medical certificates for failure to provide correct
information about his criminal history on a series of applications
for renewal of his medical certificate. Because the NTSB’s
decision departed from agency precedent without explanation
and was inconsistent with recent case law in this circuit, we
vacate the Board’s order and remand for further proceedings
consistent with this opinion.
I.
Petitioner Michael Manin had for several years before the
events under review held various FAA certificates, including a
first class airman medical certificate, which is a certification by
a physician that the pilot meets medical standards for aircraft
operation. A first class airman medical certificate must be
renewed periodically: every year for pilots under the age of 40
and every six months for pilots aged 40 and older.
The application for renewal of this medical certificate
includes questions regarding the applicant’s criminal history.
The FAA revoked Manin’s airline transport pilot certificate and
his medical certificate in 1994 for intentional falsification of a
medical application, after discovering that he had failed to
disclose a March 1992 conviction for making a false statement
on a passport application. Manin made the proper disclosure on
his next application and was issued a medical certificate in
February 1995. He regularly applied for and received renewals
of his certificate in succeeding years.
On December 14, 1995, Manin was convicted in the
Barberton, Ohio, Municipal Court of disorderly conduct, which
is classified as a “minor misdemeanor” under Barberton’s
3
municipal code. He next applied for a medical certificate on
June 1, 1996. Question 18(w) on the application asks: “Have
you ever had or have you now any . . . [h]istory of nontraffic
conviction(s) (misdemeanors or felonies).” Manin answered
“yes” and wrote “previously reported, no change.” His lawyer
confirmed during the administrative proceedings that this
disclosure referred only to the 1992 conviction. On April 8,
1997, Manin was again convicted in Barberton Municipal Court
of disorderly conduct. On subsequent medical certificate
applications, Manin repeatedly failed to disclose either the 1995
or 1997 convictions.
In late 2007, the FAA discovered Manin’s two disorderly
conduct convictions. On June 20, 2008, it issued an emergency
order immediately revoking his flight certificates and his first
class airman medical certificate because of his “multiple
falsifications” on airman medical certificate applications in
violation of 14 C.F.R. § 67.403. Manin filed an answer to this
emergency revocation order, which doubled as an administrative
complaint, and in his answer he asserted the affirmative defenses
that the complaint was stale under NTSB regulations and that
the equitable doctrine of laches applied. He also asserted that he
“belie[ved] that the disorderly charge was a minor summary
offense, [and] would not have to be reported.” The parties filed
cross-motions for summary judgment with the ALJ assigned to
hear the case. The ALJ initially denied both motions, finding
that material issues of fact remained in dispute.
At a hearing before the ALJ on September 16, 2008, the
FAA renewed its motion for summary judgment. The ALJ
granted the motion and affirmed the emergency revocation
order. Manin appealed to the full Board, which affirmed. In its
opinion, the NTSB piggybacked its unelaborated rejection of his
laches defense on its longer discussion of why the stale
complaint rule is inapplicable, stating that the Board has “long
4
held that the doctrine of laches is relevant to Board cases only
in the context of the stale complaint rule.” Adm’r v. Manin,
NTSB Order No. EA-5430, 2008 WL 5972912, at *3 (April 13,
2009). The Board also rejected Manin’s protestations that he
did not commit an intentional falsification because he did not
know that he was required to report a conviction for a “minor
misdemeanor.” It stated that “a respondent’s own interpretation
of the requirements of a medical certificate” was not relevant to
a determination of intentional falsity. Id. at *4.
Our review of the Board’s opinion and order is governed by
the Administrative Procedure Act, which instructs us to uphold
the NTSB’s decision unless it is “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.” 5
U.S.C. § 706(2)(A).
II.
A.
Laches is “an equitable defense that applies where there is
(1) lack of diligence by the party against whom the defense is
asserted, and (2) prejudice to the party asserting the defense.”
Pro Football, Inc. v. Harjo, 565 F.3d 880, 882 (D.C. Cir. 2009)
(internal quotation marks omitted). Manin asserted the laches
defense in the administrative proceedings against him, arguing
that (1) over 12 years had passed since the time of his first
conviction for disorderly conduct, and (2) this passage of time
prejudiced his defense, because witnesses and relevant files
were no longer available and his own memory of the events in
question had faded. In addition, he said, the FAA had delayed
for longer than six months after discovering Manin’s previous
convictions before revoking his certificates. Manin also invoked
the NTSB’s stale complaint rule, which provides for the
dismissal of a complaint stating allegations that occurred more
5
than six months prior to the FAA’s advising the respondent of
the reasons for the complaint. 49 C.F.R. § 821.33. If the
complaint alleges that an airman lacks the qualifications to hold
a certificate, the stale complaint rule does not apply. 49 C.F.R.
§ 821.33(b).
The ALJ found any delay in the FAA’s commencement of
its action against Manin to be “inconsequential,” because the
FAA “proceeded diligently” once it became aware of Manin’s
previous convictions. Manin challenged this decision in his
appeal to the Board. The Board held that the stale complaint
rule was inapplicable because under Board precedent an
allegation of intentional falsification amounts to an allegation of
a lack of qualifications. Manin, 2008 WL 5972912, at *3 (citing
Adm’r v. Brassington, NTSB Order No. EA-5180, 2005 WL
2477524, at *6 (Oct. 5, 2005)). Stating that it had “long held
that the doctrine of laches is relevant to Board cases only in the
context of the stale complaint rule” – and citing three cases to
illustrate its point – the Board also rejected Manin’s laches
defense. Id. at *3.
As the FAA now acknowledges, the Board’s statement
describing the “long held” limitation on the applicability of the
doctrine of laches was simply not accurate. Board case law
establishes that the laches defense may be available even when
the stale complaint rule is inapplicable. “The Board has
indicated on several occasions that, notwithstanding the fact that
a complaint may survive dismissal under the stale complaint
rule, it might still be subject to attack if an airman could
establish actual prejudice in his defense which is attributable to
the Administrator’s delay.” Adm’r v. Wells, 7 N.T.S.B. 1247,
1249 (1991); see also Adm’r v. Peterson, 6 N.T.S.B. 1306, 1307
n.8 (1989). In stating the contrary and failing to offer any
explanation for its departure from its own precedent, the NTSB
acted arbitrarily and capriciously. See Ramaprakash v. FAA,
6
346 F.3d 1121, 1124 (D.C. Cir. 2003) (“Agencies are free to
change course as their expertise and experience may suggest or
require, but when they do so they must provide a reasoned
analysis indicating that prior policies and standards are being
deliberately changed, not casually ignored.” (internal quotation
marks omitted)).
The FAA argues that the Board’s order should be affirmed
despite its unexplained departure from precedent because Manin
failed to establish a genuine issue of material fact concerning
whether the FAA’s alleged delay in revoking his certificates
resulted in actual prejudice to his defense. However, we cannot
affirm on that basis. It is true that the Board will not give an
airman the benefit of a laches defense when he makes only
“conclusory allegations . . . that delay has adversely affected
[his] ability to locate witnesses or produce evidence,” because
such allegations are “insufficient to establish that an airman has
in fact been prejudiced in defending against a charge.”
Peterson, 6 N.T.S.B. at 1307 n.8; see also Adm’r v. Shrader, 6
N.T.S.B. 1400, 1403 (1989) (“It is not sufficient . . . simply to
claim . . . that the passage of time has or may have affected the
availability of documents or witnesses or the strength of the
latters’ memories.”). It is also true that Manin made his
assertions of prejudice in vague and conclusory terms: He never
identified particular people he was hoping to find or specific
details he had forgotten. Nor did he explain how any people,
files, or memories that he can no longer access would enhance
his ability to defend against the revocation of his airman
certificates. Therefore, if the Board had considered the merits
of Manin’s laches defense at the summary judgment stage, it
may well have ruled just as it did. But, with limited exception,
the law does not allow us to affirm an agency decision on a
ground other than that relied upon by the agency. See SEC v.
7
Chenery Corp., 318 U.S. 80, 87-88 (1943); America’s Cmty.
Bankers v. FDIC, 200 F.3d 822, 835 (D.C. Cir. 2000).1
When an agency departs from its prior precedent without
explanation, as the NTSB did here, its judgment cannot be
upheld. “[W]e do not require an agency to grapple with every
last one of its precedents, no matter how distinguishable . . . . At
the same time, we have never approved an agency’s decision to
completely ignore relevant precedent. . . . [A]n agency’s failure
to come to grips with conflicting precedent constitutes ‘an
inexcusable departure from the essential requirement of
reasoned decision making.’” Jicarilla Apache Nation v. Dep’t
of the Interior, 613 F.3d 1112, 1120 (D.C. Cir. 2010) (internal
citations and quotation marks omitted). Because the NTSB
incorrectly construed its own case law as allowing consideration
of a laches defense only in the context of the stale complaint
rule, and rejected Manin’s assertion of laches on that basis, we
remand to the agency for reconsideration of Manin’s defense.
We reiterate that we are not suggesting that the Board could not
have properly reached the same conclusion on a different basis,
only that we cannot accept that basis as a post hoc justification
when the reason offered by the Board does not withstand review.
1
The FAA invokes the harmless error doctrine, which derives from the
APA. See 5 U.S.C. § 706. We have previously held that “[w]hen ‘there is not
the slightest uncertainty as to the outcome of a proceeding’ on remand,
courts can affirm an agency decision on grounds other than those provided
in the agency decision.” Envirocare of Utah, Inc. v. Nuclear Regulatory
Comm’n, 194 F.3d 72, 79 (D.C. Cir. 1999) (quoting NLRB v. Wyman-
Gordon, 394 U.S. 759, 766 n.6 (1969)). We cast no doubt on the validity of
this doctrine but find only that the FAA has not met the standard here.
8
B.
Manin also defended on the merits against the charge of
intentional falsification. Intentional falsification of an airman
medical certificate, as prohibited by 14 C.F.R. § 67.403(a)(1),
has three elements: “(1) a false representation (2) in reference to
a material fact (3) made with knowledge of its falsity.”
Singleton v. Babbitt, 588 F.3d 1078, 1082 (D.C. Cir. 2009) (per
curiam) (quoting Hart v. McLucas, 535 F.2d 516, 519 (9th Cir.
1976)). The FAA accused Manin of committing intentional
falsification when he repeatedly failed to disclose his 1995 and
1997 convictions for disorderly conduct in response to the query
whether he had ever had a “history of nontraffic conviction(s)
(misdemeanors or felonies).” Manin maintained that the agency
failed to prove the third element of the offense. He denied ever
making a knowing and intentionally false statement, insisting
that “to the best of his knowledge and belief [he] was never
arrested or convicted for a non traffic Misdemeanor or Felony.”
He initially argued to the agency that he believed the two
convictions to be “minor summary offenses” that did not need
to be reported. (Elaborating on this defense before the Board,
Manin’s counsel explained that although Ohio classified
disorderly conduct as a “minor misdemeanor,” it would in other
jurisdictions be called a “minor summary offense.”). Counsel
explained further that Manin understood his offense to be “a
very, very minor infraction,” in a separate category from the
“misdemeanors” requested on the medical certificate
application. Manin offered no further explanation as to why he
believed the term “misdemeanor” did not include all
“misdemeanors,” including those designated as “minor.”
The ALJ and the NTSB both rejected Manin’s defense. The
Board, citing several cases, declared that it had “previously
rejected a respondent’s own interpretation of the requirements
of a medical certificate.” Manin, 2008 WL 5972912, at *4. It
9
concluded that Manin’s assertions that he believed he did not
have to report the convictions did not create a genuine issue of
material fact.
After the Board issued its opinion, we decided two cases
emphasizing that, under Board law, “a pilot’s understanding of
a question is not irrelevant to whether he offered an intentionally
false answer under § 67.403(a)(1).” Singleton, 588 F.3d at
1082; see also Dillmon v. NTSB, 588 F.3d 1085, 1093-94 (D.C.
Cir. 2009). In Dillmon and Singleton, decided the same day, we
stressed that the FAA is required to prove not only that an
airman knew that he had been convicted of an offense in the
past, but also that he knew that he was required to report that
offense in his response to question 18(w). See Dillmon, 588
F.3d at 1093-94; Singleton, 588 F.3d at 1082. In other words,
the FAA must “prove the airman subjectively understood what
the question meant.” Dillmon, 588 F.3d at 1094. Our analysis
in these cases drew on the Board’s own interpretation of the
intent element of intentional falsification. See id. As we noted,
the Board declared in Administrator v. Reynolds that a
determination of whether the intent element had been met
“necessarily hinged on respondent’s understanding of what
information the question was intended to elicit.” Id. (quoting
Adm’r v. Reynolds, NTSB Order No. EA-5135, 2005 WL
196535, at *4-5 (Jan. 24, 2005)).
“Having announced this interpretation of the intent element
in Reynolds, the Board was obligated to apply it consistently.”
Id. It did not do so in Manin’s case, instead treating Manin’s
subjective understanding of the requirements of question 18(w)
as irrelevant. The FAA now argues that the decision of the
Board was correct because Manin failed to offer any proof in
support of his assertion that he misunderstood the question: He
did not testify before the ALJ or the NTSB, and the record does
not contain any statement whatsoever from Manin himself
10
explaining his contemporaneous understanding of the question.
Because Manin did not create a genuine issue of material fact,
the FAA concludes, the Board’s decision should be affirmed.
We decline once again to affirm the decision of the Board
on an alternate basis. See Chenery, 318 U.S. at 87-88. The
Board rejected Manin’s knowledge argument without
considering the adequacy of the proof offered in its support
because it incorrectly treated Manin’s own interpretation of the
requirements of question 18(w) as irrelevant. As our decisions
in Dillmon and Singleton made clear, Board precedent requires
consideration of a pilot’s subjective understanding of questions
on a medical certificate application. The Board’s unexplained
failure to adhere to this precedent renders its action arbitrary and
capricious. See Ramaprakash, 346 F.3d at 1124. We remand to
the agency for further consideration of Manin’s assertion that he
did not understand question 18(w) to require him to report his
1995 and 1997 convictions for disorderly conduct. As with the
laches defense, we make clear that we are not rejecting the
possibility of the Board employing on remand the reasoning the
FAA has asserted in its briefing before us. We reject that
reasoning not necessarily because it lacks merit, but because it
was not relied upon in the decision under review.
III.
We generally may not uphold agency action on a basis other
than that relied upon by the agency. In affirming the revocation
of Michael George Manin’s airman certificates, the NTSB
departed from its own precedent twice, without explanation.
Accordingly, we vacate the Board’s decision and remand for
further proceedings consistent with Board precedent and the
precedent of this Court.
So Ordered.