Dustman v. Huerta
Filing
20
Enter MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 10/23/2013. Mailed notice (jdh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANDREW DUSTMAN,
Petitioner,
v.
MICHAEL P HUERTA,
Administrator, Federal
Aviation Administration,
Respondent.
)
)
)
)
)
)
)
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No. 13 C 3565
MEMORANDUM OPINION AND ORDER
In this action—the first of its kind in this district since
Congress enacted the Pilot’s Bill of Rights (“PBR”), Pub. L. No.
112-153, 126 Stat. 1159 (2012), in August of 2012—petitioner1
Andrew Dustman seeks judicial review of an emergency order by the
Federal Aviation Administration (“FAA”) revoking his unrestricted
medical certificate.
The order became final after it was upheld
by the National Transportation Safety Board (“NTSB”) following
discovery and a full hearing before an administrative law judge.
At the initial status hearing in this case, disputes arose
with respect to several threshold issues.
1
First, the parties
In his brief, petitioner refers to himself as “respondent” to
reflect his posture in the administrative proceedings below. But
because all agree that the current proceedings arise out of his
“petition” for review, I follow my usual custom of referring to him
as “petitioner.” So as not to confuse things unduly, however, I
refer to the Administrator by that title, rather than as
“respondent.”
disagree about both the scope and the standard of district court
review of the FAA’s decision under the PBR.
Second, the parties
dispute whether, in seeking review of the agency’s decision in
this court, petitioner is required to comply with the Federal
Rules of Civil Procedure regarding service of a summons.
I
directed the parties to brief these issues, which brought to
light a further dispute: whether I may consider press releases
and other public statements by Senator Jim Inhofe, who drafted
and co-sponsored the bill that became the PBR, in construing the
statute.
The parties submitted additional briefs to address this
issue, and I resolve their threshold disputes as follows.
I.
According to the petition for review, on January 28, 2013,
the
FAA
Administrator
issued
an
emergency
order
revoking
petitioner’s airman medical certificate2 on the ground that he no
longer met the qualification standards set forth in 14 C.F.R.
' 67.107(a)(4)(ii)(A) and (C) because he met the criteria these
sections establish for alcohol dependence.
Petitioner timely
appealed the Administrator’s emergency order to the NTSB.
The
Administrator then filed a complaint against petitioner, which
2
“Airman certificates” authorize individuals to serve as, inter
alia, pilots, crew members, aircraft mechanics, and air-traffic
controllers. See 49 U.S.C. § 40102(a)(8) (defining “airman”).
2
raised the same allegations.3
Petitioner responded, denying the
allegations of the emergency order and the complaint.
Following
discovery
and
disclosure
of
documents
and
witnesses, a hearing was held before an NTSB administrative law
judge.
Both
parties
presented
documentary
evidence through lay and expert witnesses.4
and
testimonial
At the conclusion of
the hearing, the ALJ issued an initial decision reversing the
Administrator’s emergency order of revocation, concluding that
the Administrator had not established that petitioner met the FAA
criteria for alcohol dependence.
The Administrator timely appealed the ALJ’s initial decision
to the full NTSB.
Both parties submitted appellate briefs.
The
NTSB then issued an opinion and order reversing the ALJ’s initial
decision and affirming the Administrator’s emergency order, which
then became final.
Thereafter, petitioner invoked his right,
3
I presume, although petitioner does not so specify, that this
complaint is the one contemplated by the procedure set forth in 49
C.F.R. ' 821.31(a), which governs NTSB proceedings relating to
amendments,
modifications,
suspensions
and
revocations
of
certificates, and provides, “[t]he order of the Administrator from
which an appeal has been taken shall serve as the complaint. … If
the Administrator has determined that the respondent lacks
qualification to be a certificate holder, the order filed as the
complaint…shall identify the pleaded factual allegations on which
this determination is based.”
4
Pursuant to the PBR, these proceedings were required to “be
conducted, to the extent practicable, in accordance with the
Federal Rules of Civil Procedure and the Federal Rules of
Evidence.”
126 Stat. 1159. See also 49 C.F.R. ' 821.38 (“The
Federal Rules of Evidence will be applied in these proceedings to
the extent pracicable.”) Petitioner does not allege that these
requirements were not observed.
3
pursuant to Section 2(d)(1) of the PBR, to have this court review
the agency’s decision.
II.
The parties’ first dispute—which is really two related but
distinct disputes, one about the scope and the other about the
standard of my review—essentially boils down to the question of
whether
the
Administrative
Procedure
Act
(“APA”)
applies
to
petitioner’s request for review in this court.
The APA enacted a comprehensive regulatory scheme designed
“to bring uniformity to a field full of variation and diversity.”
Dickinson
v.
Zurko,
527
U.S.
150,
155
(1999).
The
statute
governs numerous aspects of agency action, including licensing
and adjudication, among others, and it also provides for judicial
review
of
administrative
proceedings.
The
Dickinson
Court
explained that Congress intended the APA to establish “a uniform
approach
would
to
apply
judicial
not
only
review
to
of
administrative
decisions
made
action,”
under
which
then-current
statutory and regulatory regimes, but also to decisions taken
pursuant to future legislation, unless the legislation clearly
and expressly provided otherwise.
this
was
Congress’s
intent
Id.
based
The Court concluded that
on
“the
congressional
specification in the APA that ‘[n]o subsequent legislation shall
be held to supersede or modify the provisions of this Act except
to the extent that such legislation shall do so expressly.’ § 12,
4
60 Stat. 244, 5 U.S.C. § 559.”
Id.
Accordingly, the Court held
that any “legislative departure from the norm must be clear.”
Id.
It
is
undisputed
that
before
Congress
enacted
the
PBR,
judicial review of NTSB decisions—which at the time was entrusted
exclusively to the United States Courts of Appeals—was governed
by the APA.
See, e.g., Singleton v. Babbitt, 588 F.3d 1078,
1081 (D.C. Cir. 2009) (“Our review of decisions by the NTSB is
governed
by
the
Administrative
Procedure
Act
(APA)
and
the
Federal Aviation Act”); Garvey v. NTSB, 190 F.3d 571, 577 (D.C.
Cir.
1999)
(explaining
that
on
judicial
review,
the
NTSB’s
findings of fact are “conclusive if supported by substantial
evidence,” and that its decisions must be set aside only if they
are “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law,” pursuant to 5 U.S.C. ' 706(a)(2));
Johnson v. NTSB, 979 F.2d 618, 620 (7th Cir. 1992) (describing
review of NTSB decision as “narrow” and citing “arbitrary or
capricious” standard of ' 706(a)(2)(A)).
Indeed, until 1994, the
Federal Aviation Act explicitly required that judicial review of
NTSB orders “be conducted in accordance with the provisions of
the
Administrative
Procedure
Act
(APA),
' 706(2)(A).” 49 U.S.C. ' 1903(d)(1994).
including
5
U.S.C.
Although this language
was later repealed, the Garvey court explained that it was simply
“omitted as unnecessary because [the APA] applies by its own
5
terms.”
190 F.3d at 577 n.4 (citing H.R. Rep No. 103–180, at 18
(1993)).
The parties further agree that the PBR did not change
the judicial review standards applicable to NTSB appeals filed
directly in the Courts of Appeals.
It
is
decisions,
likewise
the
beyond
Courts
of
dispute
Appeals
that
have
when
done
reviewing
so
based
on
NTSB
the
existing administrative record, as is the norm under the APA.
Indeed, 5 U.S.C. ' 706 provides that the reviewing “court shall
review the whole record or those parts of it cited by a party,”
and does not contemplate the submission of additional evidence
beyond
the
existing
record
on
appeal.
On
review
of
an
administrative decision subject to this provision, the Supreme
Court observed in Camp v. Pitts, 441 U.S. 138, 142 (1973), that
the “focal point for judicial review” of agency decisions is “the
administrative record already in existence, not some new record
made initially in the reviewing court.”
The Court went on to
emphasize that “de novo review is appropriate only where there
are
inadequate
factfinding
procedures
in
an
adjudicatory
proceeding, or where judicial proceedings are brought to enforce
certain administrative actions.”
Id.
See also U.S. v. Carlo
Bianchi & Co., 373 U.S. 709 at 715 and n. 7 (1963) (observing
that the “arbitrary or capricious” and “substantial evidence”
standards adopted in the APA “have consistently been associated
with a review limited to the administrative record.”).
6
Confining a reviewing court to the administrative record is
not only consistent with the express terms of 5 U.S.C. ' 706, it
also reflects “practical considerations that deserve respect.”
Cronin v. U.S. Dept. of Agriculture, 919 F.2d 439, 444 (7th Cir.
1990).
As the Cronin court observed,
Administrative agencies deal with technical questions, and
it is imprudent for the generalist judges of the federal
district
courts
and
courts
of
appeals
to
consider
testimonial and documentary evidence bearing on those
questions unless the evidence has first been presented to
and considered by the agency.
Id.
The D.C. Circuit has similarly explained that confining
district court review to administrative record
stems from well ingrained characteristics of the
administrative process. The administrative function is
statutorily committed to the agency, not the judiciary.
A reviewing court is not to supplant the agency on the
administrative aspects of the litigation. Rather, the
judicial function is fundamentally and exclusively an
inquiry into the legality and reasonableness of the
agency's action, matters to be determined solely on the
basis upon which the action was administratively
projected.
Doraiswamy v. Sec’y of Labor, 555 F.2d 832, 840 (D.C. Cir. 1991).
The rationale of these courts is apropos here.
The FAA’s
congressional mandate, established by the Federal Aviation Act,
49
U.S.C.
§§
40101
et
seq.,
includes
the
responsibility
“promote safe flight of civil aircraft in air commerce.”
U.S.C. ' 44701(a).
to
49
The FAA enjoys broad authority to prescribe
regulations and standards to establish “practices, methods, and
7
procedures the Administrator finds necessary for safety in air
commerce and national security.”
49 U.S.C. ' 44701(a)(5).
In
the exercise of its regulatory authority, the FAA may issue—and
likewise may suspend or revoke—airman certificates. See 49 U.S.C.
'' 44702(a), 4409(b).
The FAA is obligated to carry out its
mandate to regulate safety “in a way that best tends to reduce or
eliminate
the
possibility
or
recurrence
of
accidents
in
air
to
NTSB—an
transportation.” 49 U.S.C. ' 44701(c).
The
Federal
independent
Aviation
federal
Act
agency
delegates
composed
of
five
the
Presidential
appointees—the authority to adjudicate disputes arising out of
the FAA’s
enforcement
U.S.C. ' 1133.
of its
regulations
and
standards.
49
It may appoint administrative law judges to
conduct evidentiary hearings in accordance with sections 556 and
557 of the APA and to issue initial decisions that are subject to
full NTSB review on appeal.
As noted above, courts reviewing
final NTSB decisions have uniformly done so on the administrative
record, through the lens of the APA’s judicial review provisions.
In August of 2012, Congress passed the PBR, which amends
certain aspects of FAA enforcement proceedings.
It provides, for
example, that proceedings “shall be conducted, to the extent
practicable,
in
accordance
with
the
Federal
Rules
of
Civil
Procedure and the Federal Rules of Evidence,” and requires the
Administrator to inform airmen who are subject to investigation
8
of their rights.
It also requires that the Administrator provide
airmen who are investigated with access to information “that
would
facilitate
the
individual’s
ability
participate” in enforcement proceedings.
to
productively
With respect to appeals
from certificate actions, the PBR provides as follows:
(d) APPEAL FROM CERTIFICATE ACTIONS.-(1) IN GENERAL.--Upon a decision by the National
Transportation Safety Board upholding an order or a
final decision by the Administrator denying an airman
certificate under section 44703(d) of title 49, United
States Code, or imposing a punitive civil action or an
emergency order of revocation under subsections (d) and
(e) of section 44709 of such title, an individual
substantially affected by an order of the Board may, at
the individual's election, file an appeal in the United
States district court in which the individual resides
or in which the action in question occurred, or in the
United States District Court for the District of
Columbia. If the individual substantially affected by
an order of the Board elects not to file an appeal in a
United States district court, the individual may file
an appeal in an appropriate United States court of
appeals.
…
(e) STANDARD OF REVIEW.-(1) IN GENERAL.--In an appeal filed under subsection
(d) in a United States district court, the district
court shall give full independent review of a denial,
suspension, or revocation ordered by the Administrator,
including substantive independent and expedited review
of any decision by the Administrator to make such order
effective immediately.
(2) EVIDENCE.--A United States district court's
review under paragraph (1) shall include in evidence
9
any record of the proceeding before the Administrator
and any record of the proceeding before the National
Transportation
Safety
Board,
including
hearing
testimony, transcripts, exhibits, decisions, and briefs
submitted by the parties.
III.
With
the
jurisprudential
foregoing
landscape
legislative,
in
mind,
I
turn
regulatory,
to
and
petitioner’s
argument that the PBR creates an entitlement to a de novo trial
on a newly-created evidentiary record.
Petitioner insists that
this was Congress’s intent, as evidenced by the language in the
statute
providing
that
“the
district
independent review of a denial.”
position,
petitioner
cites
a
court
shall
give
full
As further support for his
press
release
and
other
public
statements made after the PBR was passed by its author and chief
sponsor, Senator Inhofe.
But the text of the statute does not
establish Congress’s intent to depart from clearly established
APA norms, and I am amply persuaded that I may not consider Sen.
Inhofe’s
statements
in
this
connection.
See
Covalt
v.
Carey
Canada Inc., 860 F.2d 1434, 1438 (7th Cir. 1988) (“Legislative
history is valuable only to the extent it reveals the background
of the law and the assumptions shared by those who wrote and
voted on the bills…. Statements and thoughts that not only did
not but also could not have come to the attention of Congress at
the time do not reveal the process of deliberations.”).
10
As the
Carey court explained, “[s]ubsequent writings may be nothing but
wishful thinking, and unless they are uttered as part of the
process of enacting a later law (and therefore show assumptions
on which Congress as a whole acted at least once) they are of no
account.” Id. (citing Quern v. Mandley, 436 U.S. 725, 736 n. 10
(1978)).
Drivers,
See also Continental Can Co., Inc. v. Chicago Truck
Helpers
and
Warehouse
Workers
Union
(Independent)
Pension Fund, 916 F.3d 1154, 1157 (7th Cir. 1990) (“[S]tatements
after enactment do not count; the legislative history of a bill
is valuable only to the extent it shows genesis and evolution.”)
The language Congress chose to establish the new right of
airmen to an appeal an adverse decision by the NTSB in the
district court is not a model of clarity.
that
Congress’s
intent
regarding
the
scope
Indeed, I conclude
and
standard
for
district court review cannot be ascertained from the literal text
of the PBR.
when
it
Fortunately, Congress was not writing in a vacuum
enacted
the
PBR.
“It
is
a
‘fundamental
canon
of
statutory construction that the words of a statute must be read
in their context and with a view to their place in the overall
statutory scheme.’” Mach Min., LLC v. Sec’y of Labor, Mine Safety
and Health Admin., ---F.3d---, at 2013 WL 4504802 (7th Cir. 2013)
(citations omitted).
The “context” and the “overall statutory
scheme” include, at a minimum, the entirety of the PBR, as well
11
as relevant portions of the Federal Aviation Act and the APA.
These plainly do not support petitioner’s position.
While it is true that the phrase “full, independent review”
can plausibly be interpreted, on its face, to require something
more than the deferential review the APA mandates (though the
Administrator cites several cases in which courts have described
their deferential review pursuant to the APA as an “independent
review”
of
the
administrative
record,
see
Krichbaum
v.
U.S.
Forest Serv., 973 F. Supp. 585, 588 (W.D. Va. 1997), aff’d, 139
F.3d 890 (4th Cir. 1998); Truth in Labeling v. Shalala, 999 F.
Supp. 1289, 1298 (E.D. Mo. 1998) (judicial review under the APA
“requires an independent review of the same administrative record
that was before the agency”)), when viewed in the context of the
statute as a whole, the APA, the FAA, and the scores of cases
interpreting the latter statutes, it is unreasonable to infer
from these words alone that Congress meant to provide pilots the
right to a complete “do-over” of the administrative proceedings
below.
As
both
parties observe
reflects
a
“compromise,”
proposed
would
have
as
allowed
in
their
the
bill
airmen
to
reply
as
briefs,
it
appeal
was
FAA
the PBR
originally
decisions
directly to district courts, rather than require them to exhaust
their administrative appeals through the full NTSB board, as the
bill that was enacted into law does.
12
See Dexter v. Huerta, No.
1:12 CV 1147, 2103 WL 5355748 (M.D.N.C. Sept. 24, 2013) (district
court jurisdiction under PBR requires exhaustion through a ruling
by the full board of the NTSB).
primacy
of
mandates
the
agencies’
enhanced
The PBR thus preserves the
enforcement
procedural
authority,
it
also
throughout
safeguards
but
the
administrative appeals, as well as an additional layer of review
in
federal
court.
Id.
Viewed
together,
and
as
part
of
a
“coherent and consistent framework of reforms,” id., at *2, the
PBR is best understood as striking a balance between the rights
of airmen to a fair and transparent appeals process with the
interests
of
public
safety,
agency
authority,
and
judicial
economy.
Petitioner suggests in his reply that the vast body of case
law explaining and interpreting the principles of judicial review
of administrative decisions generally, as well as pre-PBR caselaw
construing the contours of the FAA’s enforcement authority, have
all been rendered inapplicable to certificate appeals by virtue
of the PBR.
This interpretation freights a single, ambiguous
phrase with far more significance than it is due.
Although
Congress’s choice of the phrase “full, independent review” is
somewhat perplexing, I agree with the Administrator that it would
be senseless and wasteful to construe it such that the statute as
a whole requires airmen to exhaust their administrative appeals,
but then entitles them to scotch those proceedings entirely and
13
start afresh in the district court.
Enforcement proceedings
before the NTSB are not a prefatory scrimmage.
Whatever Congress
may have meant by the phrase “full independent review,” nothing
in the PBR or in any other statutory authority suggests that
Congress intended for district courts to supplant the entirety of
the administrative appeals process.
See Doraiswamy v. Secretary
of Labor, 555 F.2d 832, 840 (D.C. Cir. 1976).
Moreover, as the Administrator correctly points out, had
Congress intended district courts’ review to be “de novo,” or to
be based on a record containing new evidence, it could have
provided so expressly, as it has elsewhere.
See, e.g., 8 U.S.C.
' 1421(c) (court’s review of a denial of an application for
naturalization “shall be de novo, and the court shall make its
own
findings
of
fact
and
conclusions
of
law”);
20
U.S.C.
§
1415(i)(2)(C) (in civil action appealing administrative decision
pursuant
court
“shall
party.”)
PBR
to
if
Individuals
hear
with
additional
Disabilities
evidence
at
Education
the
Act,
request
the
of
a
Congress surely would have used similar language in the
it
had
intended
to
depart
from
well-settled
norms
enshrined in extensive authority mandating deferential judicial
review on the existing administrative record.
Nor does the PBR’s scant legislative history, none of which
directly addresses the standard or scope of judicial review,
support petitioner’s view.
Indeed, the statements made during
14
floor debates generally reaffirm agency expertise and traditional
principles of deference.
For example, Senator Rockefeller, who
objected to the bill as it was originally proposed because he
viewed the curtailment of FAA and NTSB authority as implicating
“serious safety consequences,” see 158 Cong. Rec. S4174 (daily
ed. June 14, 2012), noted that the statute as enacted “preserves
the FAA’s authority to take actions to maintain the safety of the
air transportation system.” 158 Cong. Rec. S4733 (daily ed. June
29, 2012).
He further emphasized that Congress intended appeals
of FAA decisions in the NTSB continue to be reviewed under an
“arbitrary or capricious” standard, despite the fact that the
statute eliminated language providing so expressly.
Id.
Sen.
Rockefeller explained that the deleted language was “redundant of
what is already provided for under the law,” and that the purpose
of the change was “to make the statute consistent with the laws
governing all other Federal agencies.”
Id.5
Having gone to great lengths to emphasize Congress’s intent
to “continue to apply principles of judicial deference to the FAA
interpretations
accordance
with
of
the
the
laws,
Supreme
regulations,
Court
5
and
precedent”
in
policies
in
proceedings
In statements made in the House, Rep. Bucshon similarly alluded
to the deference courts owe to agency expertise, noting that “[i]t
is the intent of Congress that courts not act in a way that is
contrary to civil aviation safety in conducting their reviews of
the NTSB's decisions.” 158 Cong. Rec. H5100 (daily ed. July 23,
2012).
15
before
the
NTSB,
it
is
implausible
to
suppose
that
Senator
Rockefeller declined to comment on a newly established appeals
process that, under petitioner’s interpretation, would jettison
these principles entirely on district court review.
In sum, neither the text of the statute, nor its legislative
history, suggests that Congress intended to depart from firmly
the
firmly
rooted
administrative
principles
proceedings.
that
What
govern
judicial
remains
are
review
of
petitioner’s
inferential arguments—for example, his argument that because the
PBR confers district court jurisdiction for only “a small subset
of appeals from NTSB decisions…the district court was meant to be
a trial court[,] not just a new ‘appellate’ venue,” Pet.’s Reply,
at 2, for which he cites no legal authority. Accordingly, I
conclude that petitioner is not entitled to a new hearing on the
merits in this court, and that I may overturn the decision to
revoke his medical certificate only if I determine, based on the
administrative
capricious,
an
record,
abuse
that
of
that
decision
discretion,
or
is
“arbitrary,
otherwise
not
in
accordance with law,” pursuant to 5 U.S.C. ' 706(a)(2).6
I now turn briefly to the parties’ dispute over whether
petitioner is required to serve summons on the United States
6
Of course, if I determine that the
insufficient to establish the legality
may ultimately vacate the decision
administrative proceedings, but in no
entitled to a “de novo” hearing here.
16
administrative record is
of the NTSB’s decision, I
and remand for further
event will petitioner be
Attorney for this district; the Attorney General of the United
States;
and
the
Administrator,
and
I
conclude
Administrator prevails on this issue as well.
that
the
Petitioner does
not dispute that these proceedings are subject to the Federal
Rules of Civil Procedure; in fact, he argues as much at length in
his brief.
The Federal Rules of Civil Procedure “govern the
procedure in all civil actions and proceedings in the United
States district courts,” with a handful exceptions not at issue
here.
That the action is in the nature of an appeal does not
exempt petitioner from the requirements of Fed. R. Civ. P. 4(a).
See, e.g., Riverdale Mills Corp. v. U.S. Dept. of Transp., 225
F.R.D. 393, 395 (D. Mass. 2005) (applying Rule 4(a) to “motion
for review” of FAA decision); Word v. Michigan, No. 10-CV-13441,
2010 WL 4609107, at *2 (E.D. Mich. Nov. 4, 2010) (rejecting
argument that because action was styled “Petition for Judicial
Review,”
no
complaint
or
summons
was
required);
Delicata
v.
Bowen, 116 F.R.D. 564, 565 (S.D.N.Y. 1987) (dismissing action for
judicial
review
of
administrative
denial
of
social
security
benefits for failure to serve timely summons)
Petitioner’s argument that he need not serve summons is tied
up
in
his
misguided
argument
that
in these
proceedings,
the
Administrator bears the burden of proof in a trial on the merits
of the FAA’s enforcement decision.
nearly every turn.
This argument goes wrong at
It is petitioner, not the Administrator, who
17
commenced this action, regardless of whether it is in the nature
of a review of the NTSB’s decision.
And as I explained above,
petitioner is not entitled to a new trial on the merits in this
court.
At
this
juncture,
the
issue
is
not
whether
the
Administrator met his burden of proof to establish the alleged
ground for revocation of petitioner’s certificate, but whether
the NTSB’s conclusion that he did was “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.”
It is petitioner who bears the burden of proving that it was, and
the procedural posture of the case is consistent with requiring
him to serve summons.
ENTER ORDER:
_____________________________
Elaine E. Bucklo
United States District Judge
Dated: October 23, 2013
18
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