United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 13, 2009 Decided March 17, 2009
No. 07-1532
MICHAEL CHARLES GORMAN,
PETITIONER
v.
NATIONAL TRANSPORTATION SAFETY BOARD
AND FEDERAL AVIATION ADMINISTRATION,
RESPONDENTS
On Petition for Review of an Order of
the Department of Transportation,
National Transportation Safety Board
Steven A. Ellis argued the cause for the petitioner.
Catherine V. Barrad was on brief.
James A. Barry, Senior Attorney, Federal Aviation
Administration, argued the cause for the respondents.
Before: HENDERSON, TATEL and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Michael C.
Gorman petitions for review of an opinion and order of the
National Transportation Safety Board (NTSB or Board), which
affirmed a Federal Aviation Administration (FAA) emergency
2
order revoking Gorman’s commercial pilot certificate. The
FAA found that Gorman deliberately violated Federal Aviation
Regulations (FARs) by operating aircraft carrying cargo for
compensation or hire without obtaining the required operating
certificate and operations specifications and without complying
with competency and line check requirements set out in Subpart
C of FAR Part 119, 14 C.F.R. §§ 119.31 et seq., and FAR Part
135, id. §§ 135.1 et seq., even after the FAA informed him he
was required to do so under FAR section 119.23(b), 14 C.F.R.
§ 119.23(b). Gorman maintains, as he did below, that the
regulation, which on its face applies only to aircraft “having a
passenger-seat configuration of less than 20 seats,” id., does not
apply to his two aircraft because they have no passenger seats
and therefore no “passenger-seat configuration” whatsoever.
Gorman also asserts that FAR section 119.23, as interpreted by
the FAA, is ultra vires and that license revocation was too
severe a sanction. For the reasons set out below, we conclude
that the FAA reasonably construed its regulation to apply to
aircraft with no passenger seats, that the regulation is not ultra
vires and that Gorman has waived his objection to the severity
of the penalty. Accordingly, we deny the petition for review.
I.
In 2003, Gorman obtained a Part 135 operating certificate
to operate his business flying cargo in the form of bank checks
for a single bank. In 2005, Gorman decided he did not need a
Part 135 certificate to operate his business under the applicable
FARs and obtained a written opinion from Robert Griscom, an
“aviation attorney,” that as a “private carrier” Gorman did not
need such a certificate which, Griscom averred, is required only
for “common carriers.”1 See Hearing Ex. C-1, Sturgell v.
1
A “common” carrier is a carrier “that holds itself out to the
public, or to a particular class or segment, as willing to furnish
transportation for hire.” 14 C.F.R. § 375.40(b). “Noncommon” or
3
Gorman, Docket No. SE-18094, at 2-3 (NTSB Sept. 25, 2007)
(July 18, 2005 Letter from Robert Griscom to Mike Gorman).
Gorman’s “private” carriage, Griscom opined, “may be
conducted under the Rules of FAR Part 91,” id. at 3, which is
titled “Air Traffic and General Operating Rules.” Griscom sent
a copy of his opinion letter to Monroe P. Balton, FAA Regional
Counsel for the Western Pacific Region, who responded that the
opinion “accurately reflects the current state of the [FAA’s]
regulations, Advisory Circular 120-12A and policy on the issue
of private carriage.” Hearing Ex. C-2, Sturgell v. Gorman, at 1
(NTSB Sept. 25, 2007) (Aug. 19, 2005 Letter from Monroe P.
Balton to Robert Griscom).
In March 2007, while on routine surveillance at the Long
Beach, CA airport, two FAA aviation safety inspectors observed
an airplane displaying “Charter advertising” on the side of the
fuselage. When questioned by one of the inspectors, Gorman,
the airplane’s pilot, responded that he did not need an “Air
Carrier Certificate” to operate his business. In a subsequent
telephone conversation, the other inspector told Gorman that “he
might be in violation of Pt. 119.23(b) if he was transporting
bank checks for hire without an Air Carrier Certificate.”
Hearing Ex. C-4, Sturgell v. Gorman, at 1 (NTSB Sept. 25,
2007) (Record of Apr. 10, 2007 telephone call from Mike
Gorman to Gary Lackey). Gorman insisted that FAR section
119.23(b) did not apply to him because he was in “private
carriage” and that he had legal opinions from Griscom and from
FAA counsel Balton supporting his position. When contacted
by the inspectors, Balton opined that “indeed Mr. Gorman
“private” carriage is “an aircraft operation for compensation or hire
that does not involve a holding out to others.” 14 C.F.R. § 119.3; see,
e.g., 14 C.F.R. § 119.5(h) (contrasting “common carriage” with
“noncommon or private carriage”).
4
would need an Air Carrier Certificate if he was transporting for
hire in private carriage.” Id.
In April 2007, according to Gorman, FAA inspector Gary
Lackey informed him by telephone that he was “grounded,” that
he had “received bad advice from [his] attorney” and that he was
“operating illegally.” Admin. Hearing Transcript, Sturgell v.
Gorman, at 66 (Sept. 25, 2007 NTSB) (testimony of Gorman)
(Hearing Tr.). After being advised by Griscom and other private
counsel that Lackey lacked authority to ground him, Gorman
called FAA Operations Unit Supervisor Robert W. Kemp.
Kemp clarified that Gorman was not “grounded” but Kemp
advised Gorman that “operations defined as ‘private carriage’
require the issuance of an operator’s certificate” and that
Gorman’s operation “appears to meet this definition” and
warned him that if Gorman was “engaged in this type of activity,
[he] m[ight] be in violation of Title 14 of the Code of Federal
Aviation Regulations (Title 14 CFR) and subject to civil
penalties.” Hearing Ex. C-5, Sturgell v. Gorman (NTSB Sept.
25, 2007) (April 20, 2007 Letter from Robert W. Kemp to Mike
Gorman).
On May 21, 2007, Balton drafted a memorandum
addressing certification requirements for private carriage by a
small airplane operator. Hearing Ex. C-6, Sturgell v. Gorman,
(NTSB Sept. 25, 2007) (May 21, 2007 Memorandum from M.
Balton to Long Beach Flight Standards District Offices) (Balton
Memo). In it Balton stated that Advisory Circular 120-12A,
which he had cited in his earlier opinion, had not been revised
since 1986 and therefore did not take into account FAR Part
119, which “was issued and became effective later in time” and
therefore “better represents the FAA’s position with respect to
private carriage.” Id. at 1. Balton then set out the text of FAR
section 119.23(b):
Each person who conducts noncommon carriage
(except as provided in § 91.501(b) of this chapter) or
5
private carriage operations for compensation or hire
with airplanes having a passenger-seat configuration
of less than 20 seats, excluding each crewmember seat,
and a payload capacity of less than 6,000 pounds
shall—
(1) Comply with the certification and
operations specifications requirements in
subpart C of this part;
(2) Conduct those operations in
accordance with the requirements of part 135
of this chapter, except for those requirements
applicable only to commuter operations;
14 C.F.R. § 119.23(b), quoted in Balton Memo at 2 (emphasis
added). FAR section 119.23(b), Balton noted, “is regulatory in
nature and must be complied with,” while Advisory Circular
120-12A “is . . . advisory only—a suggested means of
complying with the regulations” and “is not regulatory and is not
enforced by the FAA.” Balton Memo at 2. Under FAR section
119.23, he explained, “large aircraft operators engaged in
private carriage must have at least a certificate and operations
specifications issued under Part 125, and small aircraft operators
must hold a certificate and operations specifications issued
under Part 119 and conduct operations in accordance with FAR
Part 135.” Id. He therefore advised that Griscom’s opinion, “to
the extent it fails to recognize this fact, . . . is in error” and his
earlier “concurrence” in Griscom’s opinion was “completely in
error,” admitting that he had “failed to review the requirements
of FAR Part 119” and had “only reread the advisory circular.”
Id. at 3.
On June 1, 2001, Lackey drafted a letter to Gorman, with a
copy of Balton’s memo attached, in which Lackey indicated that
“cargo operations of this nature are indeed subject to Title 14
Code of Federal Regulations 119.23(b) and require an air carrier
6
certificate.” Hearing Ex. C-7, Sturgell v. Gorman, at 1 (NTSB
Sept. 25, 2007) (June 1, 2007 Letter from Gary W. Lackey to
Mike Gorman). Thus, Lackey advised, “[c]ontinued operations
by you without an air carrier certificate [are] contrary to 14 CFR
Part 119 and Part 135 and would be subject to enforcement
action.” Id. Gorman responded in a letter dated June 6, 2007,
expressing his disagreement with Balton’s revised opinion.
Exhibit C-8, Sturgell v. Gorman, at 1 (NTSB Sept. 25, 2007)
(June 6, 2007 Letter from Mike Gorman to FAA). Following
this exchange, Gorman continued to operate his private carriage
business as before, without regard to FAR section 119.23(b)’s
directives to “[c]omply with the certification and operations
specifications requirements in subpart C of [Part
119]”—requiring a covered person to obtain an “operating
certificate” and “operations specifications that prescribe the
authorizations, limitations, and procedures under which each
kind of operation must be conducted,” 14 C.F.R.
§ 119.33(b)—and to “[c]onduct [his] operations in accordance
with the requirements of part 135.”
On August 27, 2007, the FAA served an emergency order
revoking Gorman’s commercial pilot certificate because,
notwithstanding he was “advised by the FAA that [his] cargo
operations were in violation of the FAR’s,” “on at least 20
occasions” he “continued said operations” from San Diego to
Long Beach as “pilot in command,” “in deliberate disregard of
FAA notification . . . that such operation was in violation of the
FAR’s,” in particular, FAR section 119.23(b). Emergency
Order of Revocation, Michael Charles Gorman, Case No.
2007WP050040, at 1-2 (FAA Aug. 27, 2007). The emergency
order stated that each of the two aircraft Gorman was operating
had “a passenger-seat configuration of less than 20 seats” and a
“payload capacity of less than 6,000 pounds” and his operation
of the flights “constituted noncommon carriage or private
carriage operations, for compensation or hire,” thereby
triggering the certification and operations specifications
7
requirements of FAR section 119.23 as well as the competency
and line check requirements of FAR Part 135. Id. at 2. The
order set out a list of provisions in FAR Parts 119 and 135 that
Gorman’s operations violated.2 Id. at 2-3. Based on the
foregoing, the order concluded:
As a result of your operation in deliberate disregard of
the FAA’s notification to you that such operations are
in violation of the FAR’s, the Administrator finds that
you lack the qualification necessary to hold a
commercial pilot certificate, or an airman pilot
certificate of any kind. She therefore has determined
that safety in air commerce or air transportation and the
public interest require the revocation of any and all
airman pilot certificates you hold. The Administrator
further finds that an emergency requiring immediate
action exists with respect to safety in air commerce or
air transportation.
Id. at 4. Accordingly, the emergency order directed that any
certificate Gorman held be immediately revoked and
surrendered to FAA Regional Counsel and that for one year
thereafter, no application for a new airman certificate be
accepted from him nor an airman certificate issued to him. Id.
Gorman appealed and a hearing was conducted by an NTSB
administrative law judge (ALJ) on September 25, 2007. At the
hearing, Gorman argued that “Part 119.23(b) absolutely does not
apply to all cargo operations, noncommon carriage in aircraft of
[his] class.” Hearing Tr. at 71. He reasoned that FAR section
119.23(b) “only applies to aircraft having a passenger seat
configuration” and his aircraft “d[id] not have a passenger seat
configuration” because it did not have any passenger seats. Id.
2
These sections are 14 C.F.R. §§ 119.5(g), 119.23(b)(1)-(2),
119.33(b)(2)-(3), 135.295(a), 135.299(a)-(b). Hearing Tr. at 120-21.
8
The FAA disagreed, maintaining that FAR section 119.23
applied to Gorman’s aircraft because “[z]ero is less than 20.”
Id. at 14.
At the conclusion of the hearing, the ALJ issued an oral
ruling affirming the emergency order with respect to all but one
of the alleged regulatory violations as well as the revocation of
Gorman’s pilot’s certificate.3 Id. at 120-21, 124. The ALJ
concluded that, contrary to Gorman’s contention, the FAA
reasonably interpreted FAR section 119.23(b)(1)-(2), which
applies to “airplanes having a passenger-seat configuration of
less than 20 seats,” to apply to aircraft such as Gorman’s which
have no passenger seats:
If you have zero seats, you do have less than 20, in my
view.
I, therefore find on the reasonable interpretation of
this regulation, . . . that Respondent did, in fact, change
the passenger seat configuration in his aircraft by
removing all of the passenger seats to zero seats, and
zero seats is less than 20.
Hearing Tr. at 117-18. Based on his interpretation of FAR
section 119.23(b), the ALJ found that Gorman violated not only
FAR section 119.23(b) but also FAR sections 119.5(g),
119.33(b)(2), 119.33(b)(3), 135.293(a), 135.293(b) and
135.299(a), the requirements of which were triggered by FAR
section 19.23(b). The ALJ also found that revocation was the
appropriate sanction because:
[G]iven the fact that [Gorman] was advised in June,
whether or not he agreed with it, he was advised that
his operations were in probable violation of the
3
The ALJ found that Gorman did not violate FAR section
119.23(b)(3) as set forth in the emergency order.
9
appropriate regulation, he intentionally continued to
operate upon his own determination that the FAA was
wrong and he was right. . . .
This was deliberate choice by [Gorman] to
disregard the advice and caution issued to him on his
belief that his interpretation was correct and nobody in
the [FAA] that he had dealt with knew what they were
talking about. . . . That is inappropriate. If pilots
simply disregard some portion of the regulations,
operational, medical, whatever, maintenance, and say
whatever they require or your interpretation that I’ve
got to use this tool or this condition does not prohibit
safe performance or I don’t have to comply, that would
be chaos.
Id. at 122-23.
Gorman appealed the ALJ’s decision to the NTSB, which
issued an order on November 1, 2007, denying the appeal and
affirming the ALJ’s decision upholding the FAA’s emergency
order (except as to FAR section 119.23(b)(3)). Opinion and
Order, Sturgell v. Gorman, Docket SE-18094 (NTSB Nov. 1,
2007). The Board concluded that (1) it is “bound by all validly
adopted interpretations of laws and regulations that the
Administrator carries out, unless [it] find[s] that an
interpretation is arbitrary, capricious, or otherwise not in
accordance with law,” id. at 6, and (2) that section 119.23(b) is
“clear on its face” and the FAA’s interpretation of it was
therefore “not arbitrary, capricious or contrary to law and
precedent,” id. at 8.
Gorman filed a petition for review with this court on
December 31, 2007. On January 28, 2008, Gorman filed a
petition for rehearing with the NTSB, which the Board denied
in an order issued May 13, 2008 for the following reason:
10
Respondent filed a petition for review of his case
in the United States Court of Appeals for the District of
Columbia Circuit on December 31, 2007, and that
court has so notified the Board; therefore, the Board no
longer has jurisdiction and the petition is subject to
dismissal.
Sturgell v. Gorman, Docket SE-18094 at 1-2 (NTSB May 13,
2008) (NTSB Rehearing Order) (footnotes omitted) (citing 49
U.S.C. § 1153(b)(3)). Alternatively, the Board noted that, even
if the filing of the petition for judicial review did not deprive it
of jurisdiction, Gorman’s petition for rehearing “would have
been untimely, and therefore subject to dismissal.” Id. at 2 n.3.
On July 11, 2008, we ordered sua sponte “that the parties
address in their briefs whether petitioner’s filing of a petition for
agency rehearing after filing this petition for review renders the
petition for review incurably premature.” Order, Gorman v.
NTSB, No. 07-1532, at 1 (July 11, 2008).
II.
We first address the jurisdictional issue and then move on
to the merits.
A. Jurisdiction
As recited supra, the NTSB issued its final decision on the
merits on November 1, 2007 and Gorman filed a petition for
review with the court on December 31, 2007. Gorman
subsequently filed a rehearing petition with the NTSB on
January 28, 2008—outside the prescribed 30-day window, see
49 C.F.R. § 821.50(a)-(b) (petition “for rehearing, reargument,
reconsideration or modification of a Board order on appeal from
a law judge’s initial decision or order . . . must be filed with the
Board, and simultaneously served on the other parties, within 30
days after the date of service of the Board’s order on appeal
from the law judge’s initial decision or order”)—and on May 13,
11
2008, the NTSB issued the order dismissing the rehearing
petition. Pursuant to the court’s July 11, 2008 order, the parties
have briefed the issue whether Gorman’s petition here is
“incurably premature.” Order, Gorman v. NTSB, No. 07-1532,
at 1 (citing Collins v. NTSB, 351 F.3d 1246, 1250 (D.C. Cir.
2003); TeleSTAR, Inc. v. FCC, 888 F.2d 132, 133-34 (D.C. Cir.
1989)). The parties agree that the petition is not incurably
premature. We agree as well.
Our caselaw “treat[s] a petition for review filed during the
pendency of a request for administrative reconsideration as
‘incurably premature,’ and in effect a nullity.” Collins, 351 F.3d
at 1250 (internal citation omitted); see also TeleSTAR, Inc., 888
F.2d at 134 (“filing of a challenge to agency action before the
agency has issued its decision on reconsideration is incurably
premature” so that “when a petition for review is filed before the
challenged action is final and thus ripe for review, subsequent
action by the agency on a motion for reconsideration does not
ripen the petition for review or secure appellate jurisdiction”).
In this case, we confront a question left unresolved in Collins.
In that case, the petitioner had filed two petitions for judicial
review—one 59 days after the NTSB’s initial decision and one
44 days after the NTSB’s dismissal of an untimely request for
administrative reconsideration (filed between the initial Board
decision and the first petition for judicial review). We
concluded that the petition for judicial review was not
“incurably premature” for two alternative reasons: “If the
request suspended the running of the time limit for appeal, then
the . . . second petition for review was timely; if it did not, then
the initial petition was effective. Either way, we have
jurisdiction.” Collins, 351 F.3d at 1250. Because jurisdiction
existed whether or not the untimely reconsideration request
tolled the time for filing a petition for judicial review, the court
found it unnecessary to determine “the precise effect of [an]
untimely request for NTSB reconsideration.” Id. We now
address this issue squarely and conclude the filing of an
12
untimely petition for agency reconsideration does not render
incurably premature an otherwise valid petition for judicial
review.
In United Transportation Union v. ICC, 871 F.2d 1114
(D.C. Cir. 1989), we concluded, as had other circuits, that the
filing of a timely petition for reconsideration “must render the
underlying agency action nonfinal,” explaining:
“Where a motion for rehearing is in fact filed there
is no final action until the action is denied * * *.
[W]hen the party elects to seek a rehearing there is
always a possibility that the order complained of will
be modified in a way which renders judicial review
unnecessary. Practical considerations[,] therefore,
dictate that when a petition for rehearing is filed,
review may properly be deferred until this has been
acted upon.”
871 F.2d at 1116-17 (quoting Outland v. CAB, 284 F.2d 224,
227-28 (D.C. Cir. 1960)) (emphasis in United Transp. Union).
Once the time to file for agency reconsideration is past,
however, the order is final and ripe for review and the filing of
a subsequent—late—petition for administrative rehearing does
not vitiate the timely judicial petition, at least not where, as here,
the agency does not consider the merits of the tardy request. Cf.
Bowman v. Lopereno, 311 U.S. 262, 266 (1940) (“The filing of
an untimely petition for rehearing which is not entertained or
considered on its merits, or a motion for leave to file such a
petition out of time, if not acted on or if denied by the trial court,
cannot operate to extend the time for appeal.”); see NTSB
Rehearing Order (dismissing Gorman’s petition for rehearing,
alternatively, for lack of jurisdiction or tardiness). Thus,
Gorman’s late petition for Board rehearing filed on January 28,
2008 does not affect our jurisdiction, which attached upon his
13
filing of the December 31, 2007 petition for judicial review.4
This holding is consistent with our cases that have found a
petition for judicial review to be incurably premature, as each of
the latter involved a timely request for administrative review.
See, e.g., Clifton Power Corp. v. FERC, 294 F.3d 108 (D.C. Cir.
2002); TeleSTAR, Inc., supra; United Transp. Union, supra.
B. The Merits
Gorman offers three challenges to the NTSB’s affirmance
of the FAA’s emergency order. We address each challenge
seriatim.
1. FAR section 119.23(b)
Gorman argues that the NTSB erred in two respects when
it concluded that the language of FAR section 119.23(b) requires
Gorman to obtain an operating certificate and operations
specifications and to comply with Part 135. We find neither
argument persuasive.
First, Gorman contends the regulation’s language
unambiguously excludes Gorman’s two aircraft from its
requirements for the reason he argued before the NTSB, namely,
that, because all of the seats have been removed from each
aircraft, neither can be described as “having a passenger-seat
configuration of less than 20 seats.” Instead, he maintains that
his airplanes now have no seating configuration whatsoever.
4
Our holding does not necessarily bar the agency from
entertaining a late filed petition for rehearing or the court from
remanding to the agency if it deems the agency likely to reconsider its
decision. See 49 C.F.R. § 821.11(b) (“Extensions of time to file
petitions for reconsideration shall . . . be granted . . . only in
extraordinary circumstances.”); cf. Williston Basin Interstate Pipeline
Co. v. FERC, 165 F.3d 54, 62-63 (D.C. Cir. 1999) (remanding to
agency to reconsider in light of agency’s “recent refinement” of
model).
14
We conclude that the regulation is ambiguous regarding its
applicability to aircraft like Gorman’s and that the FAA
reasonably determined that it does apply.
In common parlance, the phrase “airplanes having a
passenger-seat configuration of less than 20 seats” may be
reasonably understood to include aircraft having no passenger
seats at all, as the FAA interpreted it. As the ALJ explained:
“Zero is, in fact, a number” and “[i]f you have zero seats, you do
have less than 20.” Hearing Tr. at 117. Any doubt that this is
a permissible interpretation is dispelled by the language of the
regulation’s heading which reads: “Operators engaged in
passenger-carrying operations, cargo operations, or both with
airplanes when common carriage is not involved,” 14 C.F.R.
§ 119.23 (emphasis added). This language plainly includes an
aircraft that carries cargo only—and therefore has zero
passenger seats—as well as one that carries passengers only or
a combination of passengers and cargo, both of which, by
contrast, would necessarily have at least one passenger seat.5
5
Gorman asserts that “longstanding legal principles” prohibit
considering the regulation’s heading to elicit the meaning of its text.
Reply Br. at 13-14 (citing Bhd. of R.R. Trainmen v. Balt. & Ohio R.R.,
331 U.S. 519, 528 (1947); Holland v. Williams Mountain Coal Co.,
256 F.3d 819, 822 (D.C. Cir. 2001)). The cases on which Gorman
relies, however, apply specifically to statutes “[w]here the text is
complicated and prolific” so that “headings and titles can do no more
than indicate the provisions in a most general manner” inasmuch as
an “attempt to refer to each specific provision would often be ungainly
as well as useless.” R.R. Trainmen, 311 U.S. at 528. In this case, by
contrast, we confront a short and simple, if ambiguous, subsection of
a regulation in which the language we construe is clarified by the
heading. The precedent Gorman invokes counsels only against using
a heading to “limit the plain meaning of the text.” Id. at 528-29; see,
e.g., Holland, 256 F.3d at 822 (declining “to use a heading, which
normally is a kind of shorthand, to justify stripping the actual text of
two words”). It acknowledges that headings “are of use . . . when they
15
Second, Gorman contends that even if the regulation is
ambiguous, the NTSB erred in deferring to the FAA’s
interpretation for two reasons: (1) “the NTSB itself acted
arbitrarily and capriciously by failing to consider and address
the arguments that Mr. Gorman raised against such deference”
and (2) “the NTSB erred in failing to recognize that the FAA’s
interpretation of its regulations was arbitrary, capricious, and
otherwise not entitled to any deference.” Pet’r Br. at 28.
Both arguments misapprehend—and limit—the nature of
our review. With regard to the meaning of the FAA’s regulation,
our review does not, as Gorman suggests, involve “two distinct
levels of deference”—ours to the NTSB and the NTSB’s to the
FAA. The NTSB does indeed owe deference to the FAA’s
interpretation of the regulation: “When conducting a hearing
under [49 U.S.C. § 449(d)], the Board . . . is bound by all validly
adopted interpretations of laws and regulations the Administrator
carries out and of written agency policy guidance available to the
public related to sanctions to be imposed under this section
unless the Board finds an interpretation is arbitrary, capricious,
or otherwise not according to law.” 49 U.S.C. § 44709(d).
Nonetheless, while we review the NTSB’s decision to determine
whether it is “ ‘arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law,’ ” when we construe the
regulation, “like the NTSB, we must defer to the FAA’s
interpretations of its own aviation regulations.” Garvey v. NTSB,
190 F.3d 571, 577 (D.C. Cir. 1999) (quoting 5 U.S.C.
§ 706(2)(A)) (citing Martin v. Occupational Safety & Health
Review Comm’n, 499 U.S. 144, 147, 150-57 (1991)). Thus, we
will reject a Board decision as not in accordance with law if it
does not properly defer to the FAA’s interpretation. See id. at
586. As we have already explained, the FAA’s interpretation of
the ambiguous phrase in FAR section 119.23 (“having a
shed light on some ambiguous word or phrase,” R.R. Trainmen, 311
U.S. at 529, as is the case here.
16
passenger-seat configuration of less than 20 seats”) is reasonable.
Deferring to the FAA, we must therefore uphold its
interpretation—whether or not the Board may have erred, as
Gorman claims, in failing to respond to all of his arguments.
Gorman also challenges the FAA’s interpretation on three
grounds: (1) the regulation unambiguously excludes Gorman’s
aircraft from its scope, Pet’r Br. at 32; (2) the FAA changed
course without “reasoned analysis” when Balton revised his
opinion, id. at 34 (citing N. Mun. Distribs. Group v. FERC, 165
F.3d 935, 941 (D.C. Cir. 1999)); and (3) the court should not
defer to an agency interpretation “developed for the first time in
connection with litigation or enforcement proceedings,” Pet’r Br.
at 35 (citing Bowen v. Georgetown Univ. Hosp., 488 U.S. 204,
212 (1988)). We have addressed and rejected the first argument
because the regulation’s language does not bear the unambiguous
meaning that Gorman ascribes to it. As for the second, Balton
did not change his interpretation of FAR section 119.23—his
initial advice was based on the advisory circular and not the
regulation, which Balton acknowledged he had not consulted. In
any event, the precedent Gorman cites requires that an agency
explain a deviation from its “precedent and previous practices,”
N. Mun. Distribs., 165 F.3d at 941, and not from a position
adopted by an agency official early in the course of the same
proceeding. Gorman’s third argument ignores our own
precedent which holds that “[t]he FAA is not required to
promulgate interpretations through rulemaking or the issuance of
policy guidances, but may instead do so through litigation before
the NTSB.” Garvey, 190 F.3d at 577 (rejecting NTSB argument
that FAA “offered ‘no evidence of any policy guidance written
by the FAA, validly adopted or otherwise’ ” but “merely offered
the ‘litigation statements’ of FAA counsel, as well as citations to
the Board’s own case law,” former of which “NTSB believed . . .
insufficient to qualify for Board deference under section
44709(d)(3)”) (emphasis in original).
17
2. The FAA’s Statutory Authority
Next, Gorman asserts that if (contrary to his view) FAR
section 119.23 requires that he obtain a Part 135 certificate, the
regulation exceeds the FAA’s authority in two respects. We
reject this argument as well.
First, Gorman contends that FAR section 119.23 is ultra
vires because the FAA’s authority to issue operating certificates
is statutorily limited by 49 U.S.C. § 44702 to issuing operating
certificates to “air carriers” and “airports”—and Gorman is
neither one. Section 44702(a) provides in relevant part: “The
Administrator of the Federal Aviation Administration may issue
airman certificates, type certificates, production certificates,
airworthiness certificates, air carrier operating certificates,
airport operating certificates, air agency certificates, and air
navigation facility certificates under this chapter.” 49 U.S.C.
§ 44702 (emphasis added). It is true that this provision does not
specifically authorize the FAA to issue an operating certificate
to Gorman as he operates neither as an “airport” nor as an “air
carrier,” the latter being defined as “a citizen of the United States
undertaking . . . to provide . . . foreign air transportation,
interstate air transportation, or the transportation of mail by
aircraft,” none of which is a part of Gorman’s operations. Id.
§ 40102(a)(2)(5). Nor, however, does it prohibit the FAA from
issuing operating certificates in other circumstances under the
authority of a different statute.6 In this case, as the NTSB
asserts, such certification authority is found in 49 U.S.C.
§ 44701.
6
The Congress has itself recognized that the list of certificates has
proved incomplete and has therefore, as Gorman notes, inserted
additional kinds of certificates over the years. See, e.g., Vision 100—
Century of Aviation Reauthorization Act, Pub. L. No. 108-176, § 227,
117 Stat. 2490, 2531 (2003) (authorizing “design organization
certificates”).
18
Section 44701 provides in relevant part:
The Administrator of the Federal Aviation
Administration shall promote safe flight of civil aircraft
in air commerce by prescribing—
...
(5) regulations and minimum standards
for other practices, methods, and procedure
the Administrator finds necessary for safety in
air commerce and national security.
49 U.S.C. § 44701(a)(5). This statute grants the FAA “broad
authority to regulate civil aviation.” Ass’n of Flight
Attendants—CWA v. Chao, 493 F.3d 155, 157 (D.C. Cir. 2007)
(citing 49 U.S.C. § 44701). The broad statutory language
directing that the FAA promulgate regulations as “necessary for
safety in air commerce” easily encompasses the authority to
require operating certificates for commercial aircraft operations
be they common carriage or private. See FAA v. Landy, 705 F.2d
624, 629 n.6 (2d Cir. 1983) (“The appellants contend that the
FAA may not . . . require operating certificates that are ‘other
than . . . air carrier’ or airport operating certificates. . . . But the
statute is plainly broad enough to empower the FAA to regulate
commercial operators.”). This interpretation is consistent
with—if not required by—49 U.S.C. § 44711(a)(5), which
provides: “A person may not— . . . operate aircraft in air
commerce in violation of a regulation prescribed or certificate
issued under section 44701(a) or (b) or any of sections
44702-44716 of [Title 49]” (emphasis added). The quoted
language recognizes that both regulations and certificates may be
prescribed or issued under either “section 44701(a) or (b)” or
“sections 44702-44716.”7
7
Gorman contends that section 44711(a)(5) should be read to
mean that only regulations may be prescribed pursuant to section
19
Second, Gorman argues the FAA lacked statutory authority
to require Gorman to hold an operating certificate because the
FAA has itself limited its certificating authority under Part 119
to operations in “air commerce.” See 14 C.F.R. § 119.1(a)(1)
(“This part applies to each person operating or intending to
operate civil aircraft—(1) As an air carrier or commercial
operator, or both, in air commerce; . . . .”). In particular, Gorman
contends he does not operate aircraft as a “commercial operator”
which involves “air commerce”—defined by regulation to
include “interstate, overseas, or foreign air commerce,” 14
C.F.R. § 1.1 (emphasis added)8—because his flights are “wholly
intrastate, involving transportation of cargo between Long
Beach, California and Montgomery Field in San Diego.” Pet’r
Br. at 40. Gorman acknowledges, however, that “air commerce”
includes not only “interstate, overseas, or foreign air commerce”
but also “any operation or navigation of aircraft . . . which may
endanger safety in, interstate, overseas, or foreign air
commerce,” 14 C.F.R. § 1.1 (emphasis added), and he does not
deny that operations such as his could pose such a danger so as
to require certification and the consequent regulatory
compliance. See Hill v. NTSB, 886 F.2d 1275, 1280 (10th Cir.
44701 and that certificates must be issued pursuant to sections 44702-
44716. See Pet’r Supp. Br. (filed Jan. 15, 2009). We find this
cramped reading less natural and therefore less likely than the
meaning we ascribe in the text.
8
The definition reads in its entirety:
Air commerce means interstate, overseas, or foreign air
commerce or the transportation of mail by aircraft or any
operation or navigation of aircraft within the limits of any
Federal airway or any operation or navigation of aircraft
which directly affects, or which may endanger safety in,
interstate, overseas, or foreign air commerce.
14 C.F.R. § 1.1.
20
1989) (“The statutory definition of ‘air commerce’ is therefore
clearly not restricted to interstate flights occurring in controlled
or navigable airspace. The face of the statute expressly provides
that ‘air commerce’ includes ‘any operation or navigation of
aircraft which directly affects, or which may endanger safety in,
interstate, overseas, or foreign air commerce.’ ” (quoting 49
U.S.C. § 1301(4)) (emphasis by Hill court); Ickes v. FAA, 299
F.3d 260, 263 (3d Cir. 2002) (rejecting Commerce Clause
challenge to regulation of purely recreational and intrastate
flights on grounds that “Congress’s power over interstate
commerce includes the power to regulate use of the nation’s
navigable airspace, which is a channel of interstate commerce”
and “because airplanes constitute instrumentalities of interstate
commerce, any threat to them . . . is properly subjected to
regulation even if the threat comes from a purely intrastate
activity”) (internal citations omitted). The language “may
endanger” also makes clear that to come within the regulation,
it is not necessary that an airplane actually pose a demonstrable
threat, as Gorman suggests. See Hill, 886 F.2d at 1280 (“The
fact that the pilot’s unsafe conduct in a particular instance did not
actually endanger interstate, overseas, or foreign air commerce
does not exempt such conduct from FAA jurisdiction.”).
3. Appropriateness of Sanction
Finally, Gorman contends that the sanction the FAA
imposed—revocation of his commercial pilot certificate—is
excessive and arbitrary and capricious. Because Gorman failed
to raise this objection before the NTSB, and offers no reasonable
ground for this failure, we conclude that he has waived the
objection. See 49 U.S.C. § 1153(b)(4) (“In reviewing an order
under this subsection, the court may consider an objection to an
order of the Board only if the objection was made in the
proceeding conducted by the Board or if there was a reasonable
ground for not making the objection in the proceeding.”).
21
For the foregoing reasons, the petition for review is denied.
So ordered.