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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 18, 2003 Decided October 21, 2003
No. 02-1283
TILAK S. RAMAPRAKASH,
PETITIONER
v.
FEDERAL AVIATION ADMINISTRATION AND
NATIONAL TRANSPORTATION SAFETY BOARD,
RESPONDENTS
On Petition for Review of an Order of the
National Transportation Safety Board
Mark T. McDermott argued the cause for petitioner. With
him on the briefs was Peter J. Wiernicki.
Kathleen A. Yodice was on the brief for amicus curiae
Aircraft Owners and Pilots Association.
James A. Barry, Attorney, Federal Aviation Administra-
tion, argued the cause for respondents. With him on the
briefs was Peter J. Lynch, Assistant Chief Counsel.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: ROGERS and ROBERTS, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge ROBERTS.
ROBERTS, Circuit Judge: Learned Hand once remarked
that agencies tend to ‘‘fall into grooves, TTT and when they
get into grooves, then God save you to get them out.’’1 Judge
Hand never met the National Transportation Safety Board.
In this case, we grant the petition for review because the
Board has failed adequately to explain its departures from its
own precedent in no fewer than three significant respects.
I.
Petitioner Tilak Ramaprakash was arrested for driving
under the influence of alcohol in Doraville, Georgia, in De-
cember 1996, and was convicted of that offense on February
25, 1997. As a licensed pilot, he was subject to Federal
Aviation Regulation (FAR) § 61.15 (codified at 14 C.F.R.
§ 61.15 (2003)), which requires pilots to provide the Federal
Aviation Administration (FAA) with a written report of any
‘‘motor vehicle action’’ within sixty days. Id. § 61.15(e). The
regulation defines ‘‘motor vehicle action’’ to include a ‘‘convic-
tion TTT for the violation of any Federal or State statute
relating to the operation of a motor vehicle while intoxicated
by alcohol or a drug, while impaired by alcohol or a drug, or
while under the influence of alcohol or a drug.’’ Id.
§ 61.15(c)(1).
Ramaprakash admits that he did not file the required
report. His violation of FAR § 61.15(e) occurred on April 26,
1997, when the sixty-day period for filing the report ended.
Twelve months later, on April 22, 1998, the FAA formally
initiated administrative proceedings to suspend his pilot’s
certificate by issuing a Notice of Proposed Certificate Action
1 Hearings to Study Senate Concurrent Resolution 21 Before a
Subcommittee of the Senate Committee on Labor and Public Wel-
fare, 82nd Cong., 1st Sess. 224 (1951) (quoted in Henry J. Friendly,
Benchmarks 106 (1967)).
3
(NOPCA). The NOPCA proposed to suspend his certificate
for thirty days in accordance with FAR § 61.15(f)(2), which
provides that a violation of § 61.15(e) is grounds for ‘‘[s]us-
pension or revocation of any certificate’’ issued under FAR
Part 61. In February 1999, the FAA ordered that Ramapra-
kash’s license be suspended for thirty days. He appealed to
the National Transportation Safety Board (NTSB or Board).
Before the NTSB, Ramaprakash conceded that he had
committed a FAR violation, but moved for dismissal of the
FAA’s action against him in light of the Board’s ‘‘stale
complaint rule’’ — Rule 33 of the NTSB’s Rules of Practice in
Air Safety Proceedings, codified at 49 C.F.R. § 821.33 (2002).
That rule provides, in pertinent part:
Where the complaint states allegations of offenses
which occurred more than 6 months prior to the
[FAA] Administrator’s advising respondent as to
reasons for proposed [certificate] action TTT, respon-
dent may move to dismiss such allegations pursuant
to the following provisions:
(a) In those cases where a complaint does not
allege lack of qualification of the certificate holder:
(1) The Administrator shall be required to show
by answer filed within 15 days of service of the
motion that good cause existed for the delay, or that
the imposition of a sanction is warranted in the
public interest, notwithstanding the delay or the
reasons therefor.
(2) If the Administrator does not establish good
cause for the delay or for imposition of a sanction
notwithstanding the delay, the law judge shall dis-
miss the stale allegations and proceed to adjudicate
only the remaining portion, if any, of the complaint.2
2 Rule 33 provides a separate procedure for cases in which the
FAA alleges a lack of qualification — typically a more serious
charge. Even if some or all of the allegations in the complaint are
stale, the case may proceed if the administrative law judge ‘‘deems
that an issue of lack of qualification would be presented by any or
all of the allegations, if true.’’ 49 C.F.R. § 821.33(b)(2). See
4
It was undisputed that the FAA had failed to meet Rule 33’s
six-month deadline: the NOPCA was issued nearly one year
after Ramaprakash’s FAR violation. The question before the
NTSB was whether ‘‘good cause existed for the delay.’’
Answering that question requires some understanding of
how the FAA monitors compliance with the FAR reporting
requirement. One way it does so is by compiling and periodi-
cally sending to the National Driver Register (NDR) lists of
individuals who seek to obtain or renew their medical certifi-
cations. The NDR then matches the names against its own
records, which contain information on individuals whose driv-
ers’ licenses have been denied, revoked, suspended, or can-
celed for cause, or who have been convicted of serious driving
offenses. See 49 U.S.C. § 30304(a). The information in the
NDR is not detailed enough to show whether the offense
involved is one for which a report must be filed under FAR
§ 61.15; when the FAA receives a computer tape from the
NDR with a list of the names that have matched an NDR
record, an FAA investigator must then check the National
Law Enforcement Telecommunications System (NLETS) da-
tabase for details of each airman’s motor vehicle incident. If
the NLETS data show that the incident was a reportable
offense, the FAA investigator then searches the agency’s
records to determine whether the airman filed the required
report.
A detailed affidavit from FAA official Mark Sweeney de-
scribed the course of the FAA’s investigation of Ramapra-
kash’s violation. On May 16, 1997, the FAA received from
the NDR a computer tape indicating a motor vehicle incident
in Georgia involving Ramaprakash. The tape was routed to
an FAA investigator in May 1997, but apparently no action
was taken until September 1997, when the investigator was
Administrator v. Stewart, 2 NTSB 1140, 1142 (1974) (‘‘If the
complaint involves the qualifications of the airman, then the safety
implications are deemed sufficiently compelling to override the
purposes of the rule’’).
5
transferred to a new FAA assignment. A second investigator
took possession of the tape, but this investigator too was
reassigned in October 1997, and the tape was passed on to a
third investigator. After working through a backlog of prior
tapes, this investigator turned to the tape that included
Ramaprakash’s record and conducted the NLETS query on
February 4, 1998. The NLETS database revealed that the
incident disclosed on the NDR was in fact a DUI conviction,
and by February 10, 1998, the investigator had searched FAA
records and learned that Ramaprakash had failed to report it.
See Sweeney Aff. at 2–3, JA 101–02.
The Board, by a 3–2 vote, concluded that the FAA had
shown good cause for the delay in issuing the NOPCA. The
Board stated that under Rule 33, ‘‘the Administrator must
show that good cause existed for the delay in discovering the
offense and that, upon discovery, she investigated the matter
with due diligence.’’ Administrator v. Ramaprakash, NTSB
Order No. EA–4947 (February 7, 2002), at 5, available at
2002 WL 226617 (Order Denying Appeal). The NTSB fur-
ther found that the FAA ‘‘did not have an indication of a
possible section 61.15(e) violation until [the] NLETS query
indicated that the NDR listing was in reference to a reporta-
ble alcohol-related motor vehicle action,’’ and that the FAA
had been sufficiently diligent in proceeding to issue the
NOPCA after receiving the NLETS information. Id. at 6.
The Board then observed that there was no evidence that the
delay had affected Ramaprakash’s ability to defend against
the FAA complaint, and concluded that the FAA was entitled
to some — but not unlimited — leeway in prioritizing its
enforcement efforts. Id. at 7, 8. In dissent, Member Goglia
(joined by Member Hammerschmidt) rejected the majority’s
contention that Rule 33 allowed a balancing of the FAA’s
interest in prioritizing enforcement against pilots’ need for
timely prosecution: ‘‘There either ‘is’ a stale complaint rule,
or there ‘is not.’ ’’ Id. at 9.
Ramaprakash sought reconsideration, but the Board re-
fused to reconsider its decision. In its brief order, the Board
stated:
6
As we explained in our original decision, we decline
to extend the stale complaint rule under these cir-
cumstances, i.e., where the ‘‘delay’’ is non-prejudicial
to respondent’s ability to defend against the charges
TTT and accrued, essentially, because the Adminis-
trator chose to delegate her resources in a manner
that would not immediately, but eventually, detect
airmen’s non-compliance with a mandatory reporting
requirement that respondent admits to not adhering
to.
Administrator v. Ramaprakash, NTSB Order No. EA–4984
(July 16, 2002), at 1, available at 2002 WL 1586404 (Order
Denying Reconsideration). Member Goglia, again joined by
Member Hammerschmidt, dissented. Id. at 2–6. This peti-
tion for review followed.
II.
Under the Administrative Procedure Act (APA), a court
may set aside agency action found to be ‘‘arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accordance
with law.’’ 5 U.S.C. § 706(2)(A). Our review under the APA
is highly deferential, but agency action is arbitrary and
capricious if it departs from agency precedent without expla-
nation. 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.’’ Greater Boston Television Corp. v. FCC,
444 F.2d 841, 852 (D.C. Cir. 1970); see also Philadelphia Gas
Works v. FERC, 989 F.2d 1246, 1250–51 (D.C. Cir. 1993). An
agency’s failure to come to grips with conflicting precedent
constitutes ‘‘an inexcusable departure from the essential re-
quirement of reasoned decision making.’’ Columbia Broad.
Sys. v. FCC, 454 F.2d 1018, 1027 (D.C. Cir. 1971).
In the orders challenged here, the Board deviated from its
precedent in three respects. The first is in the NTSB’s
answer to the question whether FAA delays should be more
readily excused if the alleged FAR violation is relatively
7
serious. In Administrator v. U.S. Jet, Inc., 7 NTSB 246
(1990) — a case involving an alleged lack of qualification —
the Board unequivocally rejected the argument that it should
bend its procedural rules because the alleged violation was
serious. In dismissing the FAA’s appeal on the grounds that
the FAA had failed to show ‘‘good cause’’ for its failure to
meet the prescribed deadline for filing its appeal brief, the
NTSB stated:
We decline the invitation to carve out for the Admin-
istrator’s benefit alone a public interest exception to
our policy of dismissing appeals that are not prose-
cuted with due diligence.
We recognize that even cases involving important
air safety issues can fall victim to procedural non-
feasanceTTTT However, TTT we think the public
interest and basic principles of fairness favor rules
that treat litigants equally over those that, based on
presumptions flowing from the seriousness of alleged
conduct, create procedural advantage for one party.
That circumstance TTT counsels against both the
necessity and the propriety of modifying the good
cause standard in a way that, in effect, would allow
the Administrator to escape responsibility for com-
pliance with rules of practice we strictly apply to all
others.
7 NTSB at 246–47.
In a nearly identical case four years later, the Board again
refused to find that the public interest in air safety could
create an exception to the Board’s requirement that good
cause be shown to excuse a delay:
[P]rocedural decisions should [not] be based on post-
default generalities or presumptions about the im-
portance or the desirability of reaching the merits of
a case a party ha[s] not handled in accordance with
applicable rules. TTT
We continue to believe that requiring parties to
exercise a high level of diligence in the prosecution
8
of their appeals to us is the best way to ensure that
all cases, and especially those that may involve
extraordinary air safety concerns, will be heard by
the full Board.
Petition of White, NTSB Order No. EA–4100, 1994 WL
66062, at *1–2.
In its Order Denying Appeal in this case, however, the
NTSB considered the nature and seriousness of Ramapra-
kash’s FAR violation in determining whether the FAA had
shown good cause. The Board emphasized that it would be
‘‘particularly difficult to justify’’ applying the stale complaint
rule to bar the FAA’s complaint, ‘‘given the importance to air
safety of monitoring the alcohol-related infractions of certifi-
cated airmen, and the likelihood that they would go undetect-
ed but for the self-disclosure requirements of FAR section
61.15(e).’’ Order Denying Appeal at 7.
This suggestion that the Board is more willing to find good
cause in cases that have serious implications for air safety is
inconsistent with U.S. Jet and White, and the Board did not
attempt to explain that departure from precedent. Nor did
the Board explain how its statement comports with the text of
Rule 33. The rule allows a stale complaint to escape dismis-
sal if the FAA can show good cause for the delay, but it also
states that a stale complaint can survive if the FAA can show
that ‘‘the imposition of a sanction is warranted in the public
interest, notwithstanding the delay or the reasons therefor.’’
49 C.F.R. § 821.33(a)(1). There would appear to be little
need for the public interest to be weighed in any determina-
tion of whether good cause exists for delay, when the rule
provides an independent and adequate avenue by which stale
complaints found to implicate the public interest can proceed.
Indeed, the Board in the past has found the seriousness of
a violation to be a reason to be less, rather than more, lenient
in finding good cause for delay. The Board noted in Admin-
istrator v. Dill, NTSB Order No. EA–4099, 1994 WL 78131,
that the stale complaint rule stems from the fact that ‘‘unsafe
conditions require speedy remedy’’ and that the rule ‘‘is
meant to advance, not retard, safety enforcement.’’ Id. at *3.
9
An NTSB administrative law judge later took Dill to mean
that ‘‘justice delayed is safety denied.’’ Neel v. Administra-
tor, NTSB Docket No. 210–EAJA–SE–13573 (1996), 1994 WL
804032, app. (Administrative Law Judge Opinion) at *11 n.34.
In Ramaprakash’s case, by contrast, the Board accepted the
argument that serious violations can serve to excuse investi-
gative delays — that even when justice is delayed, safety is
enhanced.
The Board’s second departure from its precedent lies in its
analysis of the role that prejudice plays under the stale
complaint rule. For more than twenty years, the NTSB has
explained that a party seeking dismissal of a stale complaint
is not required to show prejudice from the delay. In Admin-
istrator v. Zanlunghi, 3 NTSB 3696 (1981), the Board was
unequivocal: ‘‘[Rule 33] TTT does not impose on a respondent
the burden of demonstrating that a specific delay has in fact
prejudiced his defense.’’ Id. at 3697. Administrator v. Par-
ish, 3 NTSB 3474 (1981), is equally clear: ‘‘Rule 33 reflects
our recognition that a respondent’s ability to defend against
FAA charges can be seriously prejudiced through unreason-
able delayTTTT The rule thus creates a presumption that
prejudice does exist when six months have passed and a
respondent has not been informed that action is contemplat-
edTTTT’’ Id. at 3474 (emphases added); see also Dill, 1994
WL 78131, at *3 n.9 (‘‘The [stale complaint] rule does not
impose on a respondent the burden of demonstrating that a
specific delay has in fact prejudiced his defense. Instead, a
respondent is presumed to have been prejudiced’’ (citing
Zanlunghi)); Administrator v. Brea, NTSB Order No. EA–
3657, 1992 WL 220488, at *1 (‘‘Rule 33 raises a presumption
that a lapse of more than six months between the occurrence
of an alleged FAR violation and the issuance of a [NOPCA]
prejudices a respondent’’ (citing Parish)).
The Board’s approach here is a complete about-face. In
the Order Denying Appeal, the Board stated:
[Ramaprakash] does not assert that, had the com-
plaint been filed sooner, he would have answered
10
differently or been better equipped to defend
against the Administrator’s allegations. TTT
In these circumstances, specifically, where a re-
spondent’s ability to defend against a charge has not
been compromised by the passage of time between
the admitted violation and the action to sanction it, it
would be arbitrary to dismiss the complaint under a
rule designed to forestall evidentiary difficulties that
can arise because of prosecutorial delay.
Order Denying Appeal at 7. The Board reiterated this
holding in the Order Denying Reconsideration: ‘‘As we ex-
plained in our original decision, we decline to extend the stale
complaint rule under these circumstances, i.e., where the
‘delay’ is non-prejudicial to respondent’s ability to defend
against the charges (having admitted all factual allega-
tions)TTTT’’ Order Denying Reconsideration at 1. This lan-
guage is impossible to square with Zanlunghi, Parish, and
their progeny. Those cases make it clear that prejudice is
presumed when a complaint alleges violations that occurred
more than six months before the NOPCA. Applying the stale
complaint rule to Ramaprakash’s case would not ‘‘extend’’ the
rule at all — unless the Board is no longer adopting a
presumption of prejudice.
The FAA argues that the Board did not impose a require-
ment of prejudice — that it simply concluded that the pre-
sumption of prejudice had been overcome in Ramaprakash’s
case. FAA Br. at 41. The NTSB has indeed indicated that
the presumption of prejudice is rebuttable. See, e.g., Dill,
1994 WL 78131, at *3 n.9 (citing Zanlunghi, 3 NTSB at 3697).
Contrary to the FAA’s assertion, however, the Board did not
characterize its decision as a finding that the presumption in
Ramaprakash’s case had been rebutted. Both of the chal-
lenged orders simply noted that prejudice was absent — not
that it had been presumed and then rebutted. Order Deny-
ing Appeal at 7; Order Denying Reconsideration at 1.
The third, and perhaps most consequential, respect in
which the Board departed from its precedent involves the
longstanding requirement of prosecutorial diligence in stale
11
complaint cases. In denying Ramaprakash’s appeal, the
Board noted that the stale complaint rule is ‘‘designed to
forestall evidentiary difficulties that can arise because of
prosecutorial delay,’’ Order Denying Appeal at 7, but avoiding
such prejudice is not the only purpose of the stale complaint
rule. At least as important, the Board has emphasized for
decades, is the incentive that the rule provides for the FAA to
improve air safety by promptly investigating and punishing
those who violate the FAR. As long ago as 1974, the NTSB
declared that ‘‘[i]t is the purpose of [the stale complaint rule]
to assure that the Administrator’s investigation and prosecu-
tion of alleged regulatory violations is pursued with reason-
able diligence and that prospective charges not be held over
an airman’s head for an unreasonable periodTTTT’’ Stewart, 2
NTSB at 1142; see also Dill, 1994 WL 78131, at *3 (same,
adding that the rule ‘‘will ordinarily bar untimely prosecution,
and thereby act as a stimulus to diligent safety enforce-
ment’’).
In its prior cases interpreting Rule 33, the Board has
repeatedly stated that diligent investigation of possible viola-
tions is essential to a finding that good cause exists for a
delay in issuing a NOPCA. In Zanlunghi, for example, the
NTSB noted that a finding of good cause is warranted when
there is evidence that ‘‘reasonable diligence [was] exercised
following the FAA’s non-contemporaneous receipt of informa-
tion concerning the potentially actionable conduct.’’ 3 NTSB
at 3697. The Board elaborated that it knew that ‘‘the FAA
may not always immediately learn of conduct which may have
been violative of the FAR.’’ Id. In the same vein, the Board
stated in Brea that ‘‘belated awareness’’ of ‘‘the possibility of
an FAR violation’’ may serve as good cause for a delay in
issuing a NOPCA, ‘‘provided that reasonable prosecutorial
diligence is exercised’’ after the FAA receives ‘‘information
concerning the act(s) or omission(s) which may be indicative
of such a violation.’’ 1992 WL 220488, at *1. Most recently,
in Dill, the Board said that to avoid dismissal of a stale
complaint, the Administrator must show ‘‘that he exercised
reasonable prosecutorial diligence after his receipt of the
12
information concerning the possible violations.’’ 1994 WL
78131, at *4.
Zanlunghi, Brea, and Dill speak of potentially actionable
conduct, of possible violations, of conduct that may have
violated the FAR, or of acts or omissions that may indicate a
violation. None of the cases suggests that the FAA can wait
until it has confirmation of a violation before beginning to
work diligently on issuing a NOPCA. This choice of language
makes sense: if diligence is required, it should begin as soon
as the ball is in the FAA’s court. It would make little sense
to apply a requirement of diligence to only part of the period
during which a case demanded nothing other than FAA
attention. The Board in these cases quite reasonably recog-
nized that in some situations the FAA may be completely
ignorant of a potential violation for some time, but insisted
that once the FAA is tipped off to a potential violation, it
must act diligently if it intends to show good cause for the
overall delay.
The Board departed from this precedent in the Order
Denying Appeal, adopting a different trigger for the diligence
requirement. Preliminary indications were once adequate,
but now the discovery of the violation itself is the triggering
event. See Order Denying Appeal at 5 (holding that the
Administrator must show that ‘‘upon discovery, she investi-
gated the matter with due diligence’’). As the dissenting
Board members noted, the Board’s holding meant that ‘‘so
long as the Administrator proceeds with due diligence after
she discovers the violation, she may wait an indefinite amount
of time TTT to discover that violation and save her complaint
from the stale complaint rule.’’ Order Denying Reconsidera-
tion at 4.
The Board majority found that although the NDR tape of
May 16, 1997, listed Ramaprakash’s name, ‘‘the Administrator
did not have an indication of a possible section 61.15(e)
violation until her NLETS query’’ on February 4, 1998.
Order Denying Appeal at 6. This statement purports to hew
more closely to the language of Zanlunghi and Brea, but it
does not stand up to scrutiny because it fails to account for
why the investigator conducted the NLETS query. No
NLETS query would have been necessary unless the FAA
already had an indication of a possible violation. The NDR
13
tape provided that indication, and the tape meets the defini-
tions in Zanlunghi, Brea, and Dill that emphasize prelimi-
nary information as the trigger for the prosecutorial diligence
requirement. The NLETS information increased the proba-
bility that a violation had occurred (which ripened to a
certainty when the FAA agent determined on February 10,
1998, that Ramaprakash had not reported the motor vehicle
action); but if the FAA can take as long as it pleases to move
from one level of certainty to another — when the only
constraint is the FAA’s own allocation of its investigative
resources — then the prosecutorial diligence requirement so
clearly established in the Zanlunghi line of cases has all but
disappeared. The Board cannot undertake such a departure
from its precedent without providing a reasoned explanation
for its decision, and it provided none here.
The Board’s heavy reliance on Administrator v. Ikeler,
NTSB Order No. EA–4695, 1998 WL 564088, in both of the
challenged orders, see Order Denying Appeal at 5, 8; Order
Denying Reconsideration at 1–2 n.1, may account for why the
Board did not explain the inconsistency between its current
approach and that of Zanlunghi and its progeny. Ikeler,
decided in 1998, held that ‘‘in order to survive a motion to
dismiss [a] stale complaint, [the Administrator] must show
that good cause existed for the delay in discovering the
incident, and that reasonable diligence was exercised in inves-
tigating the matter once she learned that a possible violation
had occurred.’’ 1998 WL 564088, at *1. Ikeler is at least
arguably distinguishable from the orders at issue here,3 but
even if we assume (as the majority of the Board did) that
Ikeler is controlling, that assumption would not defeat the
argument that the Board has departed from its precedent; it
would merely require us to examine whether Ikeler itself
contains an explanation for its departure from cases such as
Brea and Zanlunghi. See Hatch v. FERC, 654 F.2d 825, 834
(D.C. Cir. 1981) (noting that FERC’s duty to explain a
3 The two Board members who dissented from the orders in
Ramaprakash’s case concurred in the Board’s unanimous order in
Ikeler; this suggests that, at least by their lights, Ikeler is distin-
guishable from the instant case.
14
departure from precedent is not discharged by FERC’s reli-
ance on two of its recent cases ‘‘since they do not contain
announcement of a new standard and supporting rationale
either’’); see also Pittsburgh Press Co. v. NLRB, 977 F.2d
652, 660 (D.C. Cir. 1992) (‘‘We do not think it enough to say
that this latest decision is consistent with the general drift of
NLRB precedent, as it is that very drift that troubles us.’’).
Ikeler does not contain the needed explanation. It merely
purports to rely on Brea and ‘‘cases cited therein,’’ 1998 WL
564088, at *1, while articulating a different standard that led
in Ramaprakash’s case to a significant curtailment of the
prosecutorial diligence requirement.
The FAA argues that Ikeler (and, by extension, the orders
challenged here) is not a departure from Board precedent at
all, suggesting that it is consistent with the Board’s decisions
in Administrator v. Gotisar, NTSB Order No. EA–4544, 1996
WL 784076, and Administrator v. Cady, 5 NTSB 364 (1985).
FAA Br. at 28–30. The delay in Gotisar occurred when the
FAA had to wait for the State of Hawaii to send it copies of
an aviator’s driving record; in Cady the respondent was a
maintenance employee who used improper parts when over-
hauling an aircraft engine — a violation that was not discov-
ered until the engine, still in the possession of its owners, was
disassembled several years later. See Gotisar, 1996 WL
784076, at *1; Cady, 5 NTSB at 366. These cases may
indeed hold that ‘‘good cause existed for the belated discovery
of violations where the [FAA] had to go beyond information
in its possession to determine the existence of a regulatory
violation,’’ FAA Br. at 35, but they are hardly analogous to
the present case, in which no third party obstructed the
FAA’s access to the information not already in its possession.
This may be why the Board itself did not rely on Cady or
Gotisar in Ikeler, and cited Gotisar in Ramaprakash’s case
only for its dictum on the purpose of the stale complaint rule.
See Order Denying Appeal at 7.
III.
After refusing to dismiss the FAA’s complaint as stale, the
Board said that it was nonetheless troubled by the length of
15
time between the FAA’s receipt of the NDR tape and the
NLETS query, and concluded:
[B]ecause our ruling in Ikeler sustained a suspension
order which involved a similar delay, the Adminis-
trator had no reason in this case to anticipate that
we might view the issue differently. Whether Ikeler
is followed in future cases may well depend on the
magnitude of the delay, for at some point, we are
inclined to believe, the Administrator’s interest in
prioritizing her enforcement efforts will not out-
weigh the negative impact of forcing an airman to
answer a charge long after the conduct giving rise to
it.
Order Denying Appeal at 8 (footnotes omitted).
The Board revisited this point when it denied reconsidera-
tion, stating:
[W]e have TTT placed the Administrator on notice
that in future cases we will look more closely at the
time that elapses between the time the Administra-
tor could have, but did not, learn of the violation by
comparing readily-available evidence. As we in-
ferred in our original decision, however, this analy-
sis, and our continued adherence to [Ikeler], will
depend on the specific facts of future cases and
arguments pertaining to the stale complaint rule.
Order Denying Reconsideration at 1–2 n.1.
This court has observed that ‘‘the core concern underlying
the prohibition of arbitrary or capricious agency action’’ is
that agency ‘‘ad hocery’’ is impermissible. Pacific N.W.
Newspaper Guild, Local 82 v. NLRB, 877 F.2d 998, 1003
(D.C. Cir. 1989). The statements extracted above indicate
that the Board has failed to satisfy this core requirement.
They amount to a promise from the Board that at some point
in the future, the stale complaint rule may again mean what it
once did — depending on ‘‘specific facts of future cases.’’ It
is impossible at this point to tell whether the Board, in the
next stale complaint case, will assess the seriousness of the
16
violation, or not; will insist on a showing of prejudice, or not;
will require FAA diligence in investigating a possible violation
as well as in prosecuting a known one, or not. We have it on
high authority that ‘‘the tendency of the law must always be
to narrow the field of uncertainty.’’ O.W. Holmes, The
Common Law 127 (1881). The Board’s unexplained depar-
tures from precedent do the opposite. ‘‘[W]here an agency
departs from established precedent without a reasoned expla-
nation, its decision will be vacated as arbitrary and capri-
cious.’’ ANR Pipeline Co. v. FERC, 71 F.3d 897, 901 (D.C.
Cir. 1995). For the reasons stated, we vacate the orders and
remand to the Board for further proceedings.