Paul Connors v. NTSB, et al

Filing

FILED OPINION (MARSHA S. BERZON, JACQUELINE H. NGUYEN and JACK ZOUHARY) DENIED. Judge: JHN Authoring. FILED AND ENTERED JUDGMENT. [10253220]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PAUL CONNORS,

No. 15-70333
Petitioner,
NTSB No. SE-19621
v.

NATIONAL TRANSPORTATION
SAFETY BOARD; MICHAEL P.
HUERTA, Administrator, Federal
Aviation Administration,
Respondents.

OPINION

On Petition for Review of an Order of the
National Transportation Safety Board
Submitted November 9, 2016 *
Pasadena, California
Filed January 4, 2017
Before: Marsha S. Berzon and Jacqueline H. Nguyen,
Circuit Judges, and Jack Zouhary, ** District Judge.
Opinion by Judge Nguyen
*

The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.

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SUMMARY ***

National Transportation Safety Board
The panel denied a petition for review of a decision of
the National Transportation Safety Board affirming an order
of the Federal Aviation Administration revoking petitioner’s
aircraft registration certificate.
Petitioner admitted to the FAA that he used his aircraft
to transport marijuana. The FAA revoked his registration
certificate because “the aircraft was used to carry out, or
facilitate, an activity that is punishable” as a drug-related
felony. 49 U.S.C. § 44106(b)(1)(A). Separate state court
criminal proceedings against petitioner were then dismissed
after the trial court suppressed the drug evidence found on
his plane. Petitioner argued that § 44106 did not apply to
him because, in light of the suppression order, his act was no
longer “punishable.”
The panel held that under the statute’s plain language,
the proper inquiry was whether the “activity” is
“punishable,” not whether the certificate holder is at risk of
being punished.
Because the activity—transporting
marijuana—was punishable as a felony, petitioner’s
certificate was properly revoked even though he may no
longer have been subject to punishment under state law.

***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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COUNSEL
Robert J. Hajek, Esq., Del Mar, California, for Petitioner.
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General; Mark B. Stern and Katherine Twomey Allen,
Attorneys, United States Department of Justice,
Washington, D.C. for Respondent Michael P. Huerta.

OPINION
NGUYEN, Circuit Judge:
Paul Connors petitions for review of a National
Transportation Safety Board (“NTSB”) decision affirming
an order of the Federal Aviation Administration (“FAA”)
revoking his aircraft registration certificate. Connors
admitted to the FAA that he used his aircraft to transport
marijuana. The FAA revoked his registration certificate
because “the aircraft was used to carry out, or facilitate, an
activity that is punishable” as a drug-related felony.
49 U.S.C. § 44106(b)(1)(A). Separate, state court criminal
proceedings against Connors were dismissed after the trial
court suppressed the drug evidence found on his plane.
Connors argues that § 44106 does not apply to him
because, in light of the suppression order, his act is no longer
“punishable.” Under the statute’s plain language, however,
the proper inquiry is whether the “activity” is “punishable,”
not whether the certificate holder is at risk of being punished.
Because the activity—transporting marijuana—was
punishable as a felony, Connors’s certificate was properly
revoked even though he may no longer be subject to
punishment under state law.

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CONNORS V. NTSB
I.

Connors flew his Lancair aircraft to a municipal airport
in Portales, New Mexico. When he landed, law enforcement
personnel searched the aircraft and found 15 pounds of
marijuana. He was charged in state court with possession of
marijuana with intent to distribute. N.M. Stat. Ann. § 30-3122(A)(1). The district attorney dismissed the charges with
prejudice after the trial court found the search warrant
invalid and suppressed the evidence.
After the evidence was suppressed but before the
criminal charges were dismissed, the FAA revoked
Connors’s aircraft registration certificate for his knowing
use of the aircraft to transport marijuana in violation of
49 U.S.C. § 44106(b)(1). In response, Connors admitted
that he “knowingly transported” the marijuana but appealed
the FAA’s revocation order on the basis of the state court’s
suppression order.
It was while the administrative proceedings were
pending before an NTSB administrative law judge (“ALJ”)
that Connors’s criminal case was dismissed. The ALJ
affirmed the FAA’s revocation order, and, after Connors
appealed, the NTSB affirmed the ALJ’s decision.
II.
Section 44106 authorizes the FAA to revoke an aircraft
registration certificate for a controlled substance violation.
Appeals from a revocation order are heard by the NTSB.
49 U.S.C. §§ 1133(2), 44106(d). We have jurisdiction to
review the NTSB’s decision pursuant to 49 U.S.C.
§ 1153(a).

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Review of an NTSB decision is governed by the
Administrative Procedure Act, 5 U.S.C. § 706.
Andrzejewski v. FAA, 563 F.3d 796, 799 (9th Cir. 2009). We
may set aside the decision only if it is “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with
law.” Id. (quoting 5 U.S.C. § 706(2)(A)). We review legal
questions de novo. Janka v. Dep’t of Transp., 925 F.2d
1147, 1149 (9th Cir. 1991). We apply Chevron deference,
however, to the agency’s interpretation of the statute it
administers. See Donnelly v. FAA, 411 F.3d 267, 271 (D.C.
Cir. 2005) (citing Chevron U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 842–43 (1984)) (determining
whether FAA reasonably interpreted “use” in 49 U.S.C.
§ 44710(b)(2) to revoke airman’s certificate).
Under Chevron, “we are prohibited from substituting our
‘own construction of a statutory provision for a reasonable
interpretation made by the administrator of an agency’”
when Congress has not directly addressed the provision’s
meaning. Redmond-Issaquah R.R. Pres. Ass’n v. Surface
Transp. Bd., 223 F.3d 1057, 1061 (9th Cir. 2000) (quoting
Chevron U.S.A., Inc., 467 U.S. at 844). If, on the other hand,
“the intent of Congress is clear, that is the end of the matter;
for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.”
The
Wilderness Soc’y v. U.S. Fish & Wildlife Serv., 353 F.3d
1051, 1059 (9th Cir. 2003) (en banc) (quoting Chevron,
467 U.S. at 842–43).
III.
In general, an aircraft may not be operated in the United
States unless it is registered. 49 U.S.C. § 44101(a). Upon a
successful application, the FAA issues a certificate of
registration to the aircraft’s owner. Id. § 44103(a). The
FAA may revoke a registration certificate, however, if the

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aircraft is knowingly used for felonious drug-related
activity:
[T]he [FAA] shall issue an order revoking the
certificate of registration for an aircraft . . . if
[it] finds that—(A) the aircraft was used to
carry out, or facilitate, an activity that is
punishable by . . . imprisonment for more
than one year under a law . . . related to a
controlled substance . . . ; and (B) the owner
of the aircraft permitted the use of the aircraft
knowing that the aircraft was to be used for
the activity . . . .
49 U.S.C. § 44106(b)(1) (emphasis added).
Connors argues that “punishable” means that “there must
at least be the possibility of conviction and imprisonment”
under the law, and the suppression of the evidence from his
plane foreclosed any chance of his conviction. 1 (Emphasis
added). The NTSB concluded that under the plain language
of the statute, “punishable” refers to the “proscribed
activity”—not, as Connors would have it, a “person” or his
specific “act.” Applying that concept to Connors, the agency
noted that transporting marijuana, which Connors admitted
he “knowingly” did, was an “activity [that] carried with it

1

Connors also argued to the NTSB that his act was not punishable
because the criminal charge was dismissed with prejudice. The NTSB
rejected that argument, and he does not appeal the decision on that
ground.

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the possibility of more than one year imprisonment” under
New Mexico law. 2
We agree that § 44106(b)(1) plainly connects
“punishable” to the “activity,” such that an aircraft
certificate may be revoked regardless of whether the
certificate holder could be convicted for “carry[ing] out” or
“facilitat[ing]” the activity. Notably, the statute applies
where a third party conducts the punishable activity, as long
as the owner knows that the aircraft was used for the activity.
See 49 U.S.C. § 44106(b)(1)(B). This third-party scenario,
express in the statute, confirms that the statute applies
whether or not the aircraft owner is at risk of criminal
punishment. Nothing in the statutory language ties the
revocation of an aircraft’s registration certificate to the
possibility of a successful criminal prosecution of the owner.
Moreover, the statute provides an exception for
acquittals that would be unnecessary if Connors’s
interpretation were correct. The FAA may not revoke the
registration of a certificate holder who “is acquitted of all
charges related to a controlled substance in an indictment or
information arising from the [felonious drug-related]
activity.” 49 U.S.C. § 44106(e)(1). If “punishable” required
“the possibility of conviction and imprisonment,” an
acquittal would categorically exclude such possibility, see
U.S. Const. amend. V; Evans v. Michigan, 133 S. Ct. 1069,
1074 (2013) (“[T]he Double Jeopardy Clause bars retrial
following
a
court-decreed
acquittal . . . .”),
and
§ 44106(e)(1) would serve no purpose.
We avoid
2

When the FAA revoked Connors’s certificate, distribution or
possession with intent to distribute marijuana was punishable under New
Mexico law by imprisonment for 18 months or more. See N.M. Stat.
Ann. §§ 30-31-22(A)(1), 31-18-15(A).

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constructions that render a statutory provision superfluous.
Hart v. McLucas, 535 F.2d 516, 519 (9th Cir. 1976).
Even if the statute’s meaning were not clear on its face,
the NTSB reasoned, and we agree, that the legislative history
leaves no doubt that Congress intended to give the FAA
authority to revoke a registration certificate even in
situations where a criminal conviction is not possible.
Congress enacted this provision as part of the Aviation
Drug-Trafficking Control Act, Pub. L. No. 98-499, § 4(a),
98 Stat. 2312 (1984). The conference report explains that
the FAA can “proceed against individuals who have engaged
in activities which are prohibited by state or federal drug
laws, but who have not been convicted of a drug law
offense,” such as when “an airman is not convicted because
of technicalities which apply to criminal proceedings but not
to administrative proceedings involving loss of a license.” 3
H.R. Rep. No. 98-1085, at 9 (1984), reprinted in 1984
U.S.C.C.A.N. 3920, 3992. The report continues:

3
This statement addressed a similar provision with the same
language authorizing the FAA to revoke an airman certificate—a type of
license—for felonious drug-related activity.
See 49 U.S.C.
§ 44710(b)(2) (“The [FAA] shall issue an order revoking an airman
certificate . . . if [it] finds that—(A) the individual knowingly carried out
an activity punishable, under a [felony] law . . . related to a controlled
substance . . . ; (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.”). The conference report notes that “[t]he procedures to
be followed” in both provisions “are similar.” H.R. Rep. No. 98-1085,
at 12. An “airman” is a “pilot, mechanic, or member of the crew” who
“command[s]” or “navigates aircraft when under way” or a person “who
is directly in charge of inspecting, maintaining, overhauling, or repairing
aircraft, aircraft engines, propellers, or appliances” or “who serves as an
aircraft dispatcher or air traffic control-tower operator.” 49 U.S.C.
§ 40102(a)(8).

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It should be clearly understood that the
reference to existing criminal law applies
only to the elements of the violation. We do
not intend to require [the] FAA or NTSB to
follow criminal law procedures or standards
of proof. These matters will be determined
by general principles of administrative law
applicable to license [and registration]
revocation cases.
Id.
IV.
Whether the suppression of the evidence against
Connors precluded his conviction is irrelevant.
He
knowingly allowed his plane to be used to transport
marijuana, an “activity” that was punishable by
imprisonment for more than one year. The FAA properly
revoked his registration certificate.
PETITION FOR REVIEW DENIED.