United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 17, 2005 Decided June 10, 2005
No. 04-1239
DAVID J. DONNELLY,
PETITIONER
v.
FEDERAL AVIATION ADMINISTRATION AND
NATIONAL TRANSPORTATION SAFETY BOARD,
RESPONDENTS
On Petition for Review of an Order of the
Federal Aviation Administration
Mark T. McDermott argued the cause for petitioner. With
him on the briefs was Peter J. Wiernicki.
James W. Tegtmeier, Attorney, Federal Aviation
Administration, argued the cause for respondent. With him on
the brief was Peter J. Lynch, Assistant Chief Counsel.
James W. Johnson and John E. Wells were on the brief of
amicus curiae Air Line Pilots Association, International in
support of petitioner. Jonathan A. Cohen entered an appearance.
Before: SENTELLE, HENDERSON and ROGERS, Circuit
Judges.
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Opinion for the Court filed by Circuit Judge SENTELLE.
SENTELLE, Circuit Judge: David J. Donnelly petitions for
review of an order of the National Transportation Safety Board
(“NTSB”) upholding a decision of the Federal Aviation
Administration (“FAA”) to revoke Donnelly’s airman
certification under 49 U.S.C. § 44710(b)(2) for exporting a
controlled substance into Japan, an action that is a violation of
United States law, for which he was convicted in a Japanese
criminal proceeding, and which involved the use of an aircraft.
Petitioner Donnelly claims that the FAA and NTSB’s
determination was not supported by substantial evidence
because of its reliance on findings in a foreign criminal
proceeding and also that it was arbitrary and capricious or
contrary to law to conclude that Donnelly “used” the aircraft in
the commission of the illegal act. For the reasons more fully set
forth below, we conclude that the FAA and NTSB committed no
reversible error, and deny the petition for review.
I. Background
Factual Overview
Petitioner Donnelly was employed as a pilot with Federal
Express in June of 1999 when he traveled to Japan on a
Northwest Airlines non-stop commercial flight from Detroit to
Nagoya, Japan. Although he obtained his ticket by virtue of his
Fed-Ex pilot status, he was on a personal trip, not on duty, and
occupied a regular passenger seat. Upon arrival in Nagoya,
customs officers searched Donnelly and found six pills in his
pocket. The pills were determined to be “N alpha dimethyl-3,4-
(methylenedioxi)phenethyl amine,” a substance the Japanese
officials claimed was the drug MDMA (Ecstasy). He was held
in a Japanese prison for 73 days and, on August 24, 1999, was
convicted in Japanese court of attempting to import six pills
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containing MDMA. Upon returning to the United States,
Donnelly informed his employer of the conviction and was fired.
Donnelly reported the incident to the FAA after his pilot union’s
medical advisor suggested that he submit a psychiatric
evaluation to the FAA to confirm his fitness as a pilot. The
medical advisor also reported some of the circumstances
surrounding the conviction to the FAA. Although the FAA
found him qualified for first-class medical certification, it sought
revocation of his airman certification under 49 U.S.C. §
44710(b)(2). The FAA ultimately revoked Donnelly’s airman
certification in a February 1, 2001 order, amended on June 20,
2001 with minor factual corrections.
Statutory Background
Under 49 U.S.C. § 44710, the FAA must revoke airman
certifications for certain controlled substance violations in which
aircraft were implicated. Subsection (b)(1) provides for
revocation if the individual is convicted of a felony under a
federal or state controlled substance law and
(A) an aircraft was used to commit, or facilitate the
commission of, the offense; and
(B) the individual served as an airman, or was on the
aircraft, in connection with committing, or facilitating
the commission of, the offense.
49 U.S.C. § 44710(b)(1). The FAA relied upon subsection
(b)(2) in its revocation of Donnelly’s certification. This
subsection provides for revocation if
(A) the individual knowingly carried out an activity
punishable, under a law of the United States or a State
related to a controlled substance (except a law related
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to simple possession of a controlled substance), by
death or imprisonment for more than one year;
(B) an aircraft was used to carry out or facilitate the
activity; and
(C) the individual served as an airman, or was on the
aircraft, in connection with carrying out, or facilitating
the carrying out of, the activity.
49 U.S.C. § 44710(b)(2). Once a certificate has been thus
revoked, it may not be reissued. Id. § 44703(f).
It is unlawful to export a nonnarcotic controlled substance
listed in schedule I from the United States without a permit, and
conviction can result in up to 20 years in prison. 21 U.S.C. §
960(a), (b)(3). At all relevant times, MDMA, or Ecstasy, was
listed in schedule I as “3, 4-methylendioxymethamphetamine”
(MDMA). 21 C.F.R. § 1308.11(d)(10) (1999).
Procedural Background
On July 9, 2001, the case was tried before an Administrative
Law Judge (“ALJ”), who affirmed the revocation of Donnelly’s
certification, but imposed only an 18-month revocation rather
than the lifetime revocation required by statute because he
viewed a lifetime revocation as too “draconian.” Both Donnelly
and the FAA appealed to the National Transportation Safety
Board, Donnelly seeking reinstitution of his certification and the
FAA seeking lifetime revocation.
The Board was short-handed when it voted on the case in
January 2003, and split 2-2 on how to dispose of the case,
leaving the ALJ’s decision to stand and become final. Both
parties moved for reconsideration and a full Board considered
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the case in June 2004. The NTSB, with two different majorities,
denied both Donnelly’s and the FAA’s petitions for review.
Three members voted to deny the FAA’s petition, one because
she disagreed with the FAA’s interpretation and the other two
because they believed the 18-month limitation had no force of
law and therefore the FAA’s petition was moot because the
revocation was already permanent. Four members voted to deny
Donnelly’s petition for review on the merits. See Blakey v.
Donnelly, N.T.S.B. Order No. EA-5101 (June 18, 2004).
Donnelly petitioned this Court for review.
II. Analysis
Donnelly challenges two aspects of the NTSB’s final
determination. First, he asserts that reliance on the Japanese
criminal proceeding as evidence in his case was impermissible
and therefore that the revocation was not supported by
substantial evidence. Second, he argues that the NTSB’s
interpretation of “use” of an aircraft under 49 U.S.C. §
44710(b)(2) was arbitrary and capricious or contrary to law.
A. Foreign Judgments as Evidence
We will set aside any findings not supported by “substantial
evidence,” that is, “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Chritton v.
Nat’l Transp. Safety Bd., 888 F.2d 854, 856 (D.C. Cir. 1989).
Appellant Donnelly challenges the sufficiency of the evidence
in his case because he claims that his Japanese conviction was
improperly admitted as the sole direct evidence of facts in the
case and that aside from this conviction there was not substantial
evidence supporting his revocation. He makes a statutory
argument that, because 49 U.S.C. § 44710(b)(1) provides for
revocation only after a U.S. conviction for a drug crime,
allowing foreign judgments as evidence under 49 U.S.C. §
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44710(b)(2) would bypass and nullify the stricter requirements
of (b)(1). He bases this conclusion partly on the allegation that
the Japanese conviction was the only evidence submitted against
him in the administrative hearing, making his (b)(2) revocation
identical to a (b)(1) revocation except for the national identity of
the convicting court. The Air Line Pilots Association
International (“ALPAI”) submitted an amicus brief in support of
Donnelly, arguing that the statute’s requirement that a violation
of U.S. law be proven implied a guarantee of due process.
ALPAI also argued that Japan’s criminal system should not be
accepted as one affording due process without positive proof
that it was reliable and non-corrupt.
We find no support in the statute for Donnelly’s contention
that evidence of the Japanese conviction should be excluded.
First, Donnelly’s own statutory argument rests on the
assumption that the Japanese conviction was the only evidence
against him and was conclusive, making it a replacement for
subsection (b)(1) which requires an American conviction.
Regardless of whether such a use of foreign judgments may be
consistent with the text and intent of the statute, on the record
before us the revocation was also based on corroborating
evidence and admissions of several of the relevant facts.
Donnelly admitted, in response to the FAA’s request, that he
was on the flight in question from Detroit to Nagoya. He also
admitted that he carried some tablets to Japan, although he did
not admit that they were Ecstasy. Donnelly’s medical
representative went further and acknowledged in a letter that
Donnelly had attempted to pass through customs in Nagoya with
tablets of Ecstasy. There is also expert evidence on the record
that the chemical name identified by the Japanese analysts is
equivalent to the description of MDMA in schedule I.
Beyond the corroborating evidence, principles of comity
suggest that the Japanese judgment should be given weight as
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prima facie evidence of the facts underlying it and the burden
was on Donnelly to impeach the judgment. In Tahan v.
Hodgson, 662 F.2d 862, 864 (D.C. Cir. 1981), a case involving
the enforcement of a foreign judgment, we noted “that ‘the
merits of the case should not, in an action brought in this
country upon the judgment, be tried afresh, as on a new trial or
appeal, upon the mere assertion of the party that the judgment
was erroneous in law or in fact’ if there has been opportunity for
a full and fair trial abroad before a court of competent
jurisdiction . . . .” (quoting Hilton v. Guyot, 159 U.S. 113,
205-06 (1895)). While the Hilton and Tahan decisions are
obviously not directly on point, as they involve the enforcement
of a civil judgment, rather than the collateral use of a criminal
judgment as evidence, the same principles are at least
persuasive.
The FAA had filed a pre-hearing brief explaining Japanese
criminal protections and procedure which were modeled on
United States procedures and adopt fundamental protections
including informing the defendant of the nature of his charges,
an immediate right to counsel, a privilege against self-
incrimination, confrontation of witnesses, testimony under oath,
cross-examination, and the right to object to evidence and appeal
the judgment. The NTSB had ample evidence of the prima facie
weight of the decision. Nothing prevented Donnelly from
testifying about any deficiencies in the Japanese judgment, but
he did not.
Furthermore, we see no statutory requirement for a
particular criminal procedure as urged by ALPAI; indeed, the
very inclusion of subsection (b)(2) supports a conclusion that
Congress intended to allow revocation even without criminal
conviction in a United States court where the FAA finds
sufficient evidence of an “activity” described by the statute.
Were this not the case, subsection (b)(1) alone would have been
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sufficient. We must strive to interpret a statute to give meaning
to every clause and word, and certainly not to treat an entire
subsection as mere surplusage. See United States v. Philip
Morris USA, Inc., 396 F.3d 1190, 1198-99 (D.C. Cir. 2005).
Under the circumstances, we cannot say that the ALJ or the
NTSB admitted evidence arbitrarily or revoked Donnelly’s
airman certification without substantial evidence.
B. Statutory Interpretation
We will uphold agency decisions unless they are “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with the law.” Chritton, 888 F.2d at 856. In
reviewing an agency’s interpretation of a statute, we apply the
test of Chevron U.S.A. Inc. v. Natural Resources Defense
Council, 467 U.S. 837, 842-43 (1984), first examining whether
a statute’s language is ambiguous. If it is, we will look to the
agency’s interpretation and defer to it if it is reasonable. Here
the statutory language is unambiguous and coincides with the
FAA’s interpretation, and thus we must uphold Donnelly’s
revocation.
Donnelly argues that the FAA’s interpretation of “use” is
inconsistent with the unambiguous language of § 44710(b)(2).
Subsection (b)(2)(B) requires that an aircraft be “used” to carry
out or facilitate the activity, but (b)(2)(C) requires also that the
individual at least be on the aircraft. Donnelly claims that, if
“use” of an aircraft includes merely being on the aircraft, then
(b)(2)(C) is superfluous. ALPAI argues in support of Donnelly
that he did not “use” the aircraft because exportation of drugs
was not the primary purpose of his trip. It argues that “use” of
an aircraft as required in § 44710(b)(2)(B) must be interpreted
in light of a line of cases interpreting “use” of a firearm in the
commission of a drug offense. In Bailey v. United States, 516
U.S. 137 (1995), the Supreme Court adopted a test requiring the
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evidence to show “active employment” of a weapon beyond its
mere presence at the crime -- a “use” that makes the firearm an
“operative factor” in relation to the predicated offense. 516 U.S.
at 148. This includes “brandishing, displaying, bartering,
striking with, or attempting to fire a firearm” but not the “inert
presence of a firearm” or “storing a weapon near drugs or drug
proceeds.” Id. at 148-49. ALPAI analogizes to conclude that
Donnelly’s mere presence on the plane is insufficient to say he
“used” the plane in the commission of the unlawful activity.
Donnelly’s interpretation of § 44710(b)(2)(C) fails to give
meaning to every word of the statute because it makes “use”
equivalent to serving as an airman on the aircraft. The statute
requires, in addition to “use” of an aircraft, that the individual
either served as an airman or was on the aircraft in connection
with the outlawed activity. 49 U.S.C. § 44710(b)(2)(C). Thus
Congress clearly intended that one could “use” an airplane
within the statutory meaning without serving as an airman, or
even without being on the plane. Donnelly is correct that the
statute does allow for redundancy in some fact situations,
including the one before us, but it is difficult to conceive of an
interpretation that would not allow for some redundancy. The
statute’s words so plainly encompass the interpretation adopted
by the Board that we need not venture beyond the first step of
our Chevron analysis. While both sides appeal to legislative
history to support their interpretation, we need not resort to
legislative history where the statute itself is clear. Recording
Indus. Ass’n of Am., Inc. v. Verizon Internet Servs., 351 F.3d
1229, 1237-38 (D.C. Cir. 2003) (quoting Ratzlaf v. United
States, 510 U.S. 135, 147-48 (1994)). Neither does ALPAI’s
appeal to the interpretation of “use” in a completely different
legal context bind the FAA’s interpretation of “use” of an
aircraft under § 44710(b)(2).
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III. Conclusion
Because the determination of the NTSB was supported by
substantial evidence and because the FAA’s interpretation of 49
U.S.C. § 44710(b)(2)(C) accorded with the statute’s
unambiguous meaning, we affirm the order of the NTSB.