United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 24, 2009 Decided June 30, 2009
No. 08-1218
RYAN J. MOSHEA,
PETITIONER
v.
NATIONAL TRANSPORTATION SAFETY BOARD AND FEDERAL
AVIATION ADMINISTRATION,
RESPONDENTS
On Petition for Review of an Order
of the Department of Transportation
Joseph H. Thibodeau argued the cause and filed the
briefs for petitioner.
Agnes M. Rodriguez, Attorney, Federal Aviation
Administration, argued the cause and filed the brief for
respondent.
Before: GINSBURG and KAVANAUGH, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge
KAVANAUGH, in which Circuit Judge GINSBURG joins and in
2
all but Section II-A of which Senior Circuit Judge RANDOLPH
joins.
Opinion concurring in all but Section II-A filed by Senior
Circuit Judge RANDOLPH.
KAVANAUGH, Circuit Judge: In 2005, the Federal
Aviation Administration suspended Ryan Moshea’s pilot
certificate after the agency found that he had violated certain
record-keeping safety regulations. Moshea appealed to the
National Transportation Safety Board pursuant to the
statutory process for Board review of FAA sanctions. In
proceedings before the Board, he attempted to raise an
affirmative defense based on his compliance with the
voluntary disclosure program set out in FAA Advisory
Circular 00-58. The Board ruled that it lacked jurisdiction to
entertain Moshea’s affirmative defense, and it affirmed his
suspension. Moshea petitioned for review in this Court. We
grant Moshea’s petition for review, vacate the Board’s
decision, and remand to the Board for further proceedings.
I
Ryan Moshea worked as a certified pilot for the Key
Lime Air Corporation, a commercial air cargo carrier. While
conducting a cargo flight in October 2004, Moshea
encountered difficulty extending the plane’s landing gear.
After landing, Moshea told a Key Lime mechanic about the
problem. According to Moshea, the mechanic said that such
difficulties were normal in cold weather. Moshea did not note
the problem in the maintenance log for the plane, as required
by FAA regulations. See 14 C.F.R. § 135.65(b); see also
§ 91.7(a); § 91.13(a). Several days later, after a few
uneventful flights in the same aircraft, Moshea again had
trouble lowering the aircraft’s gear. Upon landing, Moshea
3
contacted another Key Lime mechanic and received
assurances that the difficulties likely resulted from cold
weather. This time, the mechanic relayed the report to his
supervisor, who scheduled the plane for maintenance two
days later. Moshea again did not enter the problem in the
maintenance log. On the intervening day, another pilot flying
the same plane experienced difficulty in deploying the landing
gear. After the second pilot landed safely, the ground crew
found that the landing gear was damaged.
Shortly thereafter, Key Lime voluntarily disclosed those
incidents to the Federal Aviation Administration pursuant to
FAA Advisory Circular 00-58, which is a publicly available
document setting forth the FAA’s voluntary disclosure
program. Under that Circular, the FAA agrees to forgo
enforcement actions under certain circumstances so as to
encourage regulated parties to voluntarily report apparent
violations of FAA regulations. In this case, Key Lime’s
voluntary disclosures included Moshea’s failure to make
maintenance log entries of the in-flight mechanical problems
he experienced.
Applying Circular 00-58 to this case, the FAA concluded
that Key Lime and a number of Key Lime employees would
receive no penalty. But the FAA suspended Moshea from
flying for 60 days. Moshea appealed the FAA’s decision to
the National Transportation Safety Board. An Administrative
Law Judge initially heard the case. In that proceeding,
Moshea asserted an affirmative defense based on the FAA’s
voluntary disclosure program, which as explained in footnote
1 covers individual employees of regulated parties under
certain circumstances.1 But the ALJ ruled that the Board
1
The relevant portions of Advisory Circular 00-58 read:
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6. VOLUNTARY DISCLOSURE POLICY. The FAA
believes that the open sharing of apparent violations and a
cooperative as well as an advisory approach to solving
problems will enhance and promote aviation safety.
Certificate holders, indirect air carriers, foreign air carriers,
and PAHs will receive a letter of correction in lieu of civil
penalty action for covered instances of noncompliance that are
voluntarily disclosed to the FAA in accordance with the
procedures set forth in this AC. Once the letter of correction is
issued, the case will be considered closed unless the agreed-
upon comprehensive fix is not satisfactorily completed by the
appropriate entity.
...
13. SEPARATE ACTIONS AGAINST AIRMEN OR
OTHER INDIVIDUAL AGENTS.
a. The voluntary disclosure policy applies to individual
airmen or other agents of an employing certificate holder,
indirect air carrier, foreign air carrier, or PAH when:
(1) The apparent violation involves a deficiency of the
employing entity’s practices or procedures that causes the
employing certificate holder, indirect air carrier, foreign air
carrier, or PAH to be in violation of a covered violation of an
FAA regulation;
(2) The airman or other agent of the employing entity,
while acting on behalf of the employing entity, inadvertently
violates the FAA’s regulations as a direct result of a deficiency
of the employing entity that causes the employing entity to be
in violation of the regulations. (The voluntary disclosure
policy does not apply to the airman or other agent when his/her
apparent violation is the result of actions unrelated to the
employing entity’s deficiency);
(3) The airman or other agent immediately makes the
report of his/her apparent violation to the employing entity;
and
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lacked jurisdiction to consider the affirmative defense and
refused Moshea’s effort to admit evidence bearing on his
compliance with that program. The ALJ upheld Moshea’s
suspension (albeit reducing it from 60 to 50 days). Moshea
then appealed the ALJ’s decision to the Board. The Board
agreed with the ALJ that it lacked jurisdiction to hear
Moshea’s affirmative defense, and it affirmed the sanction of
suspension. In dicta, the Board suggested (but did not rule)
that Moshea may not have satisfied the specific requirements
of the voluntary disclosure program in this case even if the
Board had jurisdiction to entertain such a challenge.
II
A
The National Transportation Safety Board possesses
jurisdiction to review certain Federal Aviation Administration
orders, including the order of suspension at issue in this case.
See 49 U.S.C. § 44709(d)(1). In exercising that jurisdiction,
the Board is “not bound by findings of fact of the
Administrator but 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.” Id.
§ 44709(d)(3) (emphasis added).
(4) The employing certificate holder, indirect air carrier,
foreign air carrier, or PAH immediately notifies the FAA of
both the airman or other agent’s apparent violation and the
apparent deficiency in its practice or procedures.
FAA Advisory Circular 00-58 at 3-4, 9-10.
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In this case, the Board concluded that FAA Circular 00-
58 is not “related to sanctions” under § 44709(d)(3), even
though the Circular provides that no sanctions will be
imposed in cases of voluntary disclosure. Moshea, NTSB No.
EA-5328, slip op. at 7, 2007 WL 3088248 (Oct. 17, 2007).
On that basis alone, the Board concluded that Moshea could
not present his affirmative defense based on Circular 00-58.
Id. That conclusion allowed the Board to distinguish this case
from the many Board cases addressing whether FAA
sanctions comport with published FAA guidance documents.
In this Court, the FAA reiterates the argument that Circular
00-58 is unavailable to Moshea because it purportedly “does
not relate to the sanctions to be imposed.” FAA Br. at 22.
We find unreasonable the efforts of the FAA and the
Board to evade Circular 00-58 in this way. Without getting
into a metaphysical discussion of the meaning of the phrase
“related to,” it suffices here to say that the words “related to”
are broad. Cf. Celotex Corp. v. Edwards, 514 U.S. 300, 307-
08 (1995) (“Congress did not delineate the scope of ‘related
to’ jurisdiction, but its choice of words suggests a grant of
some breadth.”) (footnote omitted). And we think a Circular
that says no sanction will be imposed in a case of voluntary
disclosure is quite obviously “related to sanctions.” We
conclude that the Board’s analysis was unreasonable and
contrary to the statute.2
2
It is at least theoretically conceivable that the FAA in the
future could try to interpret Circular 00-58 as not binding on it (for
a reason other than that the Circular is purportedly unrelated to
sanctions) and that the Board would uphold such an interpretation
as not arbitrary and capricious under § 44709(d)(3). It seems
doubtful, given the structure of this unusual statute, that the FAA’s
authority to “interpret[] . . . [FAA] guidance available to the public
related to sanctions” under § 44709(d)(3) includes the authority to
say that FAA “guidance available to the public related to sanctions”
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B
The Board’s analysis suffers from a separate flaw that
also requires vacatur. The Board’s position in Moshea’s case
is inconsistent with its handling of a prior case. In Liotta, the
Board allowed an employee of an air carrier to assert an
“affirmative defense” based on Advisory Circular 00-58.
Liotta, NTSB No. EA-5297, slip op. at 6, 2007 WL 1920600
(June 27, 2007). In Liotta, the Board thus exercised its
jurisdiction to consider an affirmative defense virtually
identical to Moshea’s. By departing from the Liotta precedent
without explanation, the Board here acted in an arbitrary and
capricious manner. Cf. Ramaprakash v. FAA, 346 F.3d 1121,
1125 (D.C. Cir. 2003) (“An agency’s failure to come to grips
with conflicting precedent constitutes an inexcusable
departure from the essential requirement of reasoned decision
making.”) (internal quotation marks omitted). The Board’s
inconsistent treatment of Moshea’s case and Liotta’s case
supplies an independent basis for vacating the Board’s order
in this case.
III
The FAA alternatively argues that the Board’s decision to
disallow Moshea’s affirmative defense was harmless even if
is not binding. At this point, however, we need not consider
whether the FAA (and the Board) could do so consistently with the
statutory scheme. We do note that the Board did not suggest in its
opinion in this case that Circular 00-58, if deemed to be related to
sanctions, would not be binding. Moreover, in Montgomery, the
Board stated with regard to a similar FAA policy that “regardless of
whether [the policy] is characterized as a rule, regulation, or
statement of policy, the Administrator is bound by its terms.”
Montgomery, 3 NTSB 2150, 2154 (1980).
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erroneous. See 5 U.S.C. § 706 (“due account shall be taken of
the rule of prejudicial error”). As the FAA points out, the
Board’s opinion stated that Moshea did not appear to meet the
requirements of the voluntary disclosure program even
assuming that Moshea could assert a defense based on it. At
the initial hearing, however, the ALJ denied Moshea’s attempt
to introduce evidence bearing on his compliance with the
voluntary disclosure program. We cannot assume that the
Board would have denied Moshea’s affirmative defense had
such evidence been introduced; the Board did not definitively
analyze the significance (if any) of Moshea’s proffered
evidence. Cf. Steenholdt v. FAA, 314 F.3d 633, 640 (D.C.
Cir. 2003) (no substantial prejudice where petitioner “has
presented no theory under which the weak record prejudiced”
his case). We therefore must decline the FAA’s invitation to
resolve this case on harmless error grounds.
***
The Board had jurisdiction to decide whether the FAA’s
suspension of Moshea comported with the FAA’s voluntary
disclosure policy set forth in Advisory Circular 00-58. We
accordingly grant Moshea’s petition for review, vacate the
decision of the Board, and remand to the Board for further
proceedings.
So ordered.
RANDOLPH , Senior Circuit Judge, concurring in all but
Section II-A: I do not agree that the FAA Administrator’s
Advisory Circular falls within the review provision of 49 U.S.C.
§ 44709(d)(3). The provision states that the Board is bound by
the Administrator’s interpretation “of written agency policy
guidance available to the public related to sanctions to be
imposed under this section” unless the interpretation is
“arbitrary, capricious, or otherwise not according to law.”
§ 44709(d)(3). Contradicting the Administrator and the Board,
my colleagues conclude that the Circular falls within
§ 44709(d)(3) because it is “related to sanctions.” Maj. Op. at 6.
The majority’s conclusion rests on a misreading of the statute.
It is not enough that the guidance is related to sanctions: the
guidance must be related to sanctions “to be imposed under this
section.” The provision thus contemplates an ongoing
enforcement action, not the Administrator’s decision whether to
institute the action. This much follows from the fact that
sanctions under § 44709 are to be imposed only in enforcement
actions. Yet the very point of the Circular is to spell out when
the Administrator will not bring an enforcement action. Section
44709(d)(3) therefore cannot encompass the Circular, or at least
the portion of it Moshea sought to invoke as a defense. That
was the Administrator’s and the Board’s interpretation, an
interpretation I believe to be correct. At a minimum it is a
reasonable view of the application of § 44709(d)(3) to the
Circular and was entitled to judicial respect. See Chevron
U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984).
I join the balance of the majority opinion dealing with the
Board’s unexplained departure from its precedent. Maj. Op. at
7.