Richard Boeta v. FAA , 831 F.3d 636 ( 2016 )

Case: 15-60431 Document: 00513623655 Page: 1 Date Filed: 08/04/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-60431 FILED
August 4, 2016
RICHARD L. BOETA,
Lyle W. Cayce
Clerk
Petitioner
v.
FEDERAL AVIATION ADMINISTRATION,
Respondent
Appeal from the Decision of the
National Transportation Safety Board
Before JONES, WIENER, and HIGGINSON, Circuit Judges.
WIENER, Circuit Judge:
Petitioner Richard Boeta appeals the final decision of the National
Transportation Safety Board (“NTSB”), affirming the initial decision of an
Administrative Law Judge (“ALJ”) which upheld the Federal Aviation
Administration’s (“FAA”) sixty days suspension of Boeta’s air transport pilot
certificate. For the reasons hereafter set forth, we (1) grant Boeta’s petition for
review of the NTSB’s final decision; (2) reverse that decision with respect to
Boeta’s waiver-of-sanction defense; (3) vacate the FAA’s sixty days suspension
of his air transport pilot certificate; and (4) remand for further disposition and
completion of this matter by the NTSB and the FAA, consistent herewith.
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I.
A.
The appealed ruling of the ALJ that affirmed the FAA’s order suspending
Boeta’s air transport pilot certificate resulted from the flight of a small, twin-
engine jet aircraft (“N497RC”) that Boeta occasionally piloted. At all relevant
times, Redi-Carpet Properties, LLC (“Redi-Carpet”) owned N497RC and
Capital Aerospace, LLC (“Capital”) managed it. At no time did either Redi-
Carpet or Capital have a certificate under 14 C.F.R. part 119, without which
Redi-Carpet was restricted to operating N497RC under 14 C.F.R. part 91,
noncommercially, for its or its lessee’s own use. 1 Redi-Carpet only did so
through Capital, which served as its agent. Under this arrangement, Redi-
Carpet, through Capital, had possession of and “operational control”—viz., the
“exercise of authority over initiating, conducting or terminating a flight”—over
N497RC as its owner. 2 Boeta, who was employed by Capital, was thus an agent
of both Capital and Redi-Carpet.
Redi-Carpet could also transfer its possession and operational control of
N497RC to another entity through a “dry lease” agreement, under which the
lessor provides an aircraft to a lessee without furnishing the pilot or any other
crew members. 3 During the course of a dry lease, Redi-Carpet, as lessor, would
1 In this context, an aircraft is operated “commercially” only when it is used in air
commerce. For instance, when “conducting passenger-carrying flights for compensation or
hire.” 14 C.F.R. § 91.147; see 14 C.F.R. § 1.1 (“Commercial operator means a person who, for
compensation or hire, engages in the carriage by aircraft in air commerce of persons or
property . . . . Where it is doubtful that an operation is for ‘compensation or hire’, the test
applied is whether the carriage by air is merely incidental to the person’s other business or
is, in itself, a major enterprise for profit.”).
2 14 C.F.R. § 1.1.
3Truth in Leasing, FAA Advisory Circular No. 91-37A (1978),
http://www.faa.gov/documentLibrary/media/Advisory_Circular/AC%2091-37A.pdf; see Legal
Interpretation to Eric L. Johnson, from Rebecca B. MacPherson, Assistant.Chief Counsel
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relinquish—and the other entity, as lessee, would assume—possession and
operational control of N497RC. Capital would then operate N497RC as that
lessee’s agent.
In 2009, Capital and Redi-Carpet agreed that Capital would obtain a
certificate under part 119 so that Capital could operate N497RC commercially,
for the benefit of other entities apart from Redi-Carpet or its lessees, under
part 135. Once Capital obtained that certificate, Redi-Carpet planned to
transfer possession and operational control of N497RC to Capital through a
dry lease agreement, 4 and Capital would then act as N497RC’s “operator” in
its own right, not merely as Redi-Carpet’s agent.
To obtain its certificate under part 119, Capital entered into an
agreement with USAC Airways (“USAC”). USAC was to consult with Capital
during the term of that agreement. To facilitate this arrangement, Redi-Carpet
transferred possession of and operational control over N497RC to USAC under
a separate dry lease agreement. This dry lease agreement stated that “[USAC]
shall have full and exclusive operational control, as well as possession,
command and control of [N497RC]” and “shall have full and final authority
over the dispatch and conduct of flights in [N497RC], except for safety or flight
issues, over which such issues the Pilot-in-Command shall have full and final
authority.”
To operate a flight commercially under part 135, the operator must not
only have a certificate under part 119, but must have operations specifications
for Regulations (Aug. 11, 2011), http://www.faa.gov/about/office_org/
headquarters_offices/agc/pol_adjudication/agc200/interpretations/data/interps/2011/johnson
-johnson%20-%20%282011%29%20legal%20interpretation.pdf.
4Capital could operate N497RC noncommercially for Capital’s own use under part
91 because it would have taken possession of it through the dry lease. Stated differently,
Capital would have assumed the rights and obligations of Redi-Carpet, the owner.
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(“OpSpecs”) as well. 5 OpSpecs are issued by the FAA and “prescribe [the
operator’s] authorizations, limitations, and procedures,” 6 including the “[t]ype
of aircraft, registration markings, and serial numbers of each aircraft
authorized for use.” 7
After entering the dry lease with Redi-Carpet, USAC requested that the
FAA amend USAC’s existing OpSpecs to include N497RC, after which USAC
would be authorized to operate N497RC commercially under part 135.
Although Boeta remained Capital’s employee throughout, he also became
USAC’s agent during this transition and was allowed to operate N497RC as its
agent. 8
USAC also obtained FAA authorization to operate N497RC in reduced
vertical separation (“RVSM”) airspace, in which air traffic control (“ATC”)
reduces the minimum vertical separation between aircraft from 2,000 to 1,000
feet. 9 To obtain such authorization, the operator must implement specified
maintenance and training procedures which ensure that its aircraft and its
pilots will operate safely in RVSM airspace. 10 It also must demonstrate that
5 14 C.F.R. § 119.33(a), (b).
6 Id.
7 14 C.F.R. § 119.49(a)(4).
8 USAC’s operation manual states: “All crewmembers are direct employees or agents
for all aspects of Part 135 operations.” Likewise, its OpSpecs provide: “The significance of
the words ‘agent’ and ‘agents’ as used in these operations specifications is that the
certificate holder is the principal and that the certificate holder is accountable and liable for
the acts or omissions of each of its agent or agents.”
9 Authorization of Aircraft and Operators for Flight in Reduced Vertical Separation
Minimum Airspace, FAA Advisory Circular No. 91-85 (2009); see 14 C.F.R. pt. 91, app. G.
(“Within RVSM airspace, air traffic control (ATC) separates aircraft by a minimum of 1,000
feet vertically between flight level (FL) 290 and FL 410 inclusive.”).
10 14 C.F.R. pt. 91, app. G.
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its aircraft meets specified standards. Since USAC already held a certificate
under part 119, its authority to operate N497RC in RVSM airspace was
included in its OpSpecs. (If it had not had such a certificate in its Op Specs,
that authority could have been included in a letter of authorization (“LOA”)). 11
USAC, which had operational control of N497RC during its dry lease
from Redi-Carpet, dispatched all flights on N497RC through a computer-
generated flight dispatch sheet. At the ALJ’s hearing, USAC’s chief pilot stated
that Boeta and all other pilots at USAC “had gone through our training
program so they understood about operational control and all the aspects of
setting up a flight, conducting a flight, terminating a flight, and who has
operational control. They understood the importance of a dispatch sheet.”
By 2011, USAC had apparently become concerned that it was “losing
operation control” of N497RC. As a result, USAC gave oral notice to Capital
that it was terminating their agreement. (It does not appear, however, that
USAC gave notice to Redi-Carpet that it was terminating their seperate dry
lease agreement, although that seems to have been USAC’s intention.) USAC
dispatched its last flight for Capital in March 2011. In May, USAC requested
that the FAA amend its OpSpecs to remove N497RC. In so doing, USAC
surrendered its authorization to operate N497RC in RVSM airspace.
Capital, which had no part 119 certificate, was not authorized to operate
commercially under part 135. Instead, it operated N497RC as it had prior to
its agreement with USAC—viz., as Redi-Carpet’s or its lessee’s agent.
Even though the agreement between Capital and USAC had terminated
(and the dry lease between Redi-Carpet and USAC had presumably terminated
as well), the agency relationship between Boeta and USAC continued. No one
11 14 C.F.R. pt. 91, app. G, sec. 3.
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at USAC ever spoke with or wrote to Boeta about that. Neither did USAC
notify Boeta that operational control of N497RC had shifted away from USAC
or that USAC was no longer authorized by the FAA to operate N497RC because
USAC’s OpSpecs had been amended. However, Boeta ceased receiving USAC’s
dispatch sheets and instead began receiving Capital’s trip sheets. This could
have—and probably should have—indicated to him that USAC no longer had
possession of or operational control over N497RC.
In September 2011—four months after USAC had the FAA remove
N497RC from its OpSpecs—Boeta received a trip sheet from Capital,
instructing him to pilot N497RC from Sugar Land, Texas, to Palm Beach,
Florida. Redi-Carpet apparently operated that flight noncommercially,
through Capital, for its own use under part 91. Boeta, as Capital’s employee
and agent, was presumably to pilot it as Redi-Carpet’s agent.
Before commencing the flight to Palm Beach, Boeta filed a flight plan
with the FAA. On it, he indicated that N497RC’s operator was authorized to
use N497RC in RVSM airspace, and he proceeded to pilot the subject flight in
RVSM airspace.
We can only speculate that, for reasons of its own, USAC might have
alerted the FAA to N497RC’s unauthorized flight in RVSM airspace: It cannot
be purely coincidental that, when Boeta landed N497RC at Palm Beach, the
aircraft was met by FAA inspectors who performed a “ramp check.” They asked
Boeta to verify that the operator had authorization for N497RC to be flown in
RVSM airspace. Boeta initially told the inspectors that the flight had been
operated under part 91, prompting the inspectors to ask to see the owner’s LOA
authorizing it to operate in RVSM airspace. Boeta returned to the aircraft and
“searched for sometime” before calling Capital to fax him a copy of the LOA.
Instead, Capital faxed a copy of USAC’s unamended OpSpecs. Boeta then told
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the inspectors that he had misspoken; that the flight had actually been
operated under part 135, not part 91.
The inspectors then asked to see the operator’s OpSpecs. Boeta gave
them USAC’s outdated OpSpecs, which indicated that USAC was authorized
to operate N497RC in RVSM airspace. The inspectors, however, had procured
USAC’s current OpSpecs from a FAA database. (At the ALJ hearing, the
inspectors noted that, if they had not been aware that USAC’s current OpSpecs
existed, the outdated OpSpecs that Boeta presented would have been valid.)
Within ten days following the subject flight, Boeta filed a voluntary
Aviation Safety Report (“ASR”) under the FAA’s Aviation Safety Reporting
System. More about this later.
B.
The FAA suspended Boeta’s air transport pilot certificate for a period of
sixty days. The suspension order stated that Boeta had violated 14 C.F.R. part
91, appendix G, section (4)(b)(1), and 14 C.F.R. § 91.180(a)(1), which prohibit
anyone from either filing a flight plan for, or operating a flight in, RVSM
airspace unless the aircraft’s operator is authorized to do so by the FAA. The
suspension order stated that Boeta, as pilot-in-command, had filed a flight plan
for and operated the flight of N497RC in RVSM, even though no operator was
authorized to do so at the time.
Boeta appealed the FAA’s order of suspension and, after a hearing, the
ALJ upheld the FAA’s order in an “initial decision.” Boeta appealed the ALJ’s
decision to the National Transportation Safety Board (“NTSB”) which issued a
“final decision” affirming the ALJ. Boeta now appeals the NTSB’s final
decision. In this appeal, he asserts that the NTSB’s erred in ruling that the
ALJ (1) properly limited Boeta’s cross-examination of several witnesses, (2)
properly rejected Boeta’s defense of reasonable reliance, and (3) properly
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rejected Boeta’s request for a waiver of sanction under the FAA’s ASR
procedure.
II.
A.
We must uphold a decision of the NTSB unless it is “unsupported by
substantial evidence” or is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 12 The NTSB’s findings of fact, “if
supported by substantial evidence, are conclusive.” 13 Substantial evidence is
“more than a scintilla, less than a preponderance, and is such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.” 14 There is a “very narrow window of appellate scrutiny” for an
ALJ’s credibility assessment. 15 “[A] determination of credibility is non-
reviewable unless there is uncontrovertible documentary evidence or physical
fact which contradicts it.” 16 We review de novo the NTSB’s resolution of purely
legal questions. 17
We have reviewed the record on appeal, the briefs of the parties as
supplemented and explained by counsel at oral argument, and the multi-level
considerations of Boeta’s claims by the FAA, the ALJ, and the NTSB, and we
have done so in the framework of Chevron deference and the highly deferential
125 U.S.C. § 706(2)(A),(E); see Miranda v. Nat’l Transp. Safety Bd., 866 F.2d 805,
807 (5th Cir. 1989).
13 49 U.S.C. §§ 1153(b)(3), 46110(c).
14 Ellis v. Liberty Life Assur. Co. of Bos., 394 F.3d 262, 273 (5th Cir. 2004).
15 Miranda, 866 F.2d at 807.
16 Id.
17See Kratt v. Garvey, 342 F.3d 475, 480 (6th Cir. 2003) (collecting cases); cf. Pool
Co. v. Cooper, 274 F.3d 173, 177 (5th Cir. 2001).
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abuse-of-discretion, substantial evidence, and arbitrary-and-capricious
standards by which our appellate consideration is cabined. This review leads
us to conclude that the NTSB did not err reversibly in rejecting (1) Boeta’s
assertion that the ALJ improperly limited his cross-examination of several
witnesses and (2) his affirmative defense of reasonable reliance. We therefore
affirm those determinations and turn to the NTSB’s denial of Boeta’s claim
that he is nevertheless entitled to a waiver of sanctions under the ASR
procedure.
B.
1.
Boeta insists that it was arbitrary and capricious for the NTSB to affirm
the ALJ’s rejection of his affirmative defense of waiver of sanction. He asserts
that any violation of the regulations was inadvertent and not deliberate on his
part, entitling him to a waiver of sanctions, given his timely reporting of the
incident to NASA pursuant to the FAA’s ASR procedure.
The FAA instituted the ASR procedure in 1975, with the goal of
encouraging the “identification and reporting of deficiencies and discrepancies
in the system.” 18 To ensure the pilot’s anonymity, the FAA has an ASR received
by and processed through NASA, a neutral third party. 19 NASA reports the
ASR to the FAA, but does so without identifying the pilot who filed it. (Here,
the FAA was already aware of Boeta’s violation by virtue of the ramp check.)
“The FAA considers the filing of a report with NASA concerning an
incident or occurrence involving a violation of . . . the 14 CFR to be indicative
18 Aviation Safety Reporting Program, FAA Advisory Circular No. 00-46E (2011).
19 Id.
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of a constructive attitude” that “will tend to prevent future violations.” 20
“[A]lthough a finding of violation may be made” after a pilot voluntarily
submits an ASR, “neither a civil penalty nor certificate suspension will be
imposed” if (1) the violation was “inadvertent and not deliberate,” (2) the
violation did not involve a criminal offense, an accident, or action showing a
lack of qualification or competency, (3) the pilot has not committed a similar
violation within the previous five years, and (4) the pilot can prove that he filed
the ASR within ten days of the violation. 21 Here, the parties dispute only
whether Boeta’s violation was inadvertent. 22
2.
“Inadvertent” is neither a technical legal term nor a FAA term of art.
Rather, it is a “plain vanilla” English adjective and must be interpreted here
as such. According to the New Shorter Oxford English Dictionary,
“inadvertent” means unintentional when modifying an action. 23 It is defined
variously as “not duly attentive” and “accidental; unintentional” in the
American Heritage Dictionary of the English Language. 24 Inadvertent is not
defined in Black’s Law Dictionary, but “inadvertence” is defined there as “an
accidental oversight; a result of carelessness.” 25
20 Id.
21 Id.
22 The parties agree that the violation was “not deliberate,” but for immunity to apply,
a pilot must establish that his actions were both not deliberate and inadvertent. See Adm’r
v. Ricotta, NTSB Order No. EA-5593, at *2 (2011); Ferguson v. Nat’l Transp. Safety Bd., 678
F.2d 821, 828 (9th Cir. 1982).
23 Inadvertent, NEW SHORTER OXFORD ENGLISH DICTIONARY (1993).
24 Inadvertent, AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (1976).
25 Inadvertence, BLACK’S LAW DICTIONARY (10th ed. 2014).
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The United States Court of Appeals for the Ninth Circuit has stated that,
in this context, “an inadvertent act is one that is not the result of a purposeful
choice.” 26 It illustrated this principle with two examples:
[A] person who turns suddenly and spills a cup
of coffee has acted inadvertently. On the other hand, a
person who places a coffee cup precariously on the
edge of a table has engaged in purposeful behavior.
Even though the person may not deliberately intend
the coffee to spill, the conduct is not inadvertent
because it involves a purposeful choice between two
acts—placing the cup on the edge of the table or
balancing it so that it will not spill. Likewise, a pilot
acts inadvertently when he flies at an incorrect
altitude because he misreads his instruments. But his
actions are not inadvertent if he engages in the same
conduct because he chooses not to consult his
instruments to verify his altitude. 27
We conclude that whether an act—or, as here, an omission or failure to
act—is “inadvertent” depends on the exact nature of the act or omission in
question and the discrete facts and details of the situation. We now explain
briefly our conclusion that Boeta’s failure to determine, immediately before the
subject flight, whether N497RC remained eligible for operation in RVSM
airspace was inadvertent for purposes of the waiver of sanction under the ASR
procedure.
Here, the NTSB affirmed the ALJ’s determination that Boeta’s violation
was not inadvertent. The ALJ reasoned that Boeta, as the pilot in command,
had an obligation (1) to review the OpSpecs or LOA immediately before each
flight and (2) to ensure that either an OpSpecs or LOA was actually in the
26 Ferguson, 678 F.2d at 828.
27 Id.
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aircraft during each flight. Had he done so, Boeta would have become aware of
the change in RVSM authorization. The ALJ decided that Boeta’s failure to
perform these tasks constituted an intervening circumstance that made his
otherwise inadvertent conduct advertent:
[An FAA inspector] testified that it is the
responsibility of the pilot-in-command to ensure that
all required documents are current and on board the
aircraft before each flight. If a flight involves a flight
in RVSM airspace, an RVSM authorization must be on
board the aircraft, and the pilot-in-command has to
review that document to determine whether or not it
is current. The conduct of [Boeta] during the ramp
check . . . and his interactions with . . . [the FAA
inspectors] indicate he did not know where the proper
RVSM documentation was located because he had not
checked on the RVS compliance for his aircraft before
the flight. . . . [Another FAA inspector] testified he
thought [Boeta] provided a portion of the RVSM
maintenance manual under the belief that the
document constituted an RVSM authorization. [Boeta]
did not dispute that testimony, and [Boeta]'s conduct
during the ramp check does not convince me or
establish that his violation . . . was inadvertent.
The NTSB likewise indicated:
[Boeta]’s failure to verify RVSM compliance
prior to take off was not inadvertent, as respondent
chose not to check the status of N497RC's RVSM
authorization prior to the September 8, 2011 flight.
Again, the ALJ’s and the NTSB’s decisions that Boeta’s violation was not
inadvertent focused only on (1) Boeta’s failure to review either an OpSpecs or
LOA immediately before each flight in RVSM airspace, and (2) his failure to
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ensure that such an OpSpecs or LOA was physically in the aircraft during the
flight. It did not consider any other surrounding circumstances. 28
These reasons, however, do not withstand scrutiny. As we discuss below,
the ALJ and NTSB erred in their determination that Boeta had an obligation
(1) to review any OpSpecs or LOA before each flight or (2) to ensure such a
OpSpecs or LOA was in the aircraft during each flight. Without any
intervening obligation to perform either of those tasks, during which Boeta
would have become aware of the change in the RVSM authorization, his
conduct would remain inadvertent.
In reaching its decision, the ALJ noted that an FAA inspector stated at
the hearing that the pilot is always responsible for verifying that an operator
is authorized for RVSM operations by actually consulting the authorization in
an operator’s OpSpecs or LOA. Even though this assertion was made on the
basis of the inspector’s personal, not expert, knowledge, the ALJ citied it in
determining that Boeta, as the pilot in command, had such a responsibility.
The ALJ, however, did not cite any other source for this responsibility.
If such an obligation existed, it would likely have been included within
the regulations that enumerate the authorizations a pilot in command must
consult before each flight. But such an obligation does not appear in these
regulations. 29 To the contrary, in its advisory circular supplying the RVSM
28Judge Higginson, in his dissent, suggests that we also consider whether “Boeta
ignored surrounding circumstances of the invalidity of the flight’s RVSM authorization.”
This would require us to do what he warns against. As he notes, “review of NTSB decisions
is circumscribed and highly deferential.”
29 See, e.g., 14 C.F.R. § 91.9(b) (“No person may operate a U.S.-registered civil
aircraft . . . unless there is available in the aircraft a current, approved Airplane or
Rotorcraft Flight Manual . . . .”); 14. C.F.R. § 91.103 (“Each pilot in command shall, before
beginning a flight, become familiar with all available information concerning that flight
[including] weather reports and forecasts, fuel requirements, alternatives available if the
planned flight cannot be completed, and any known traffic delays of which the pilot in
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operating practices and procedures, the FAA states that a pilot must “verif[y]
that the aircraft is approved for RVSM operations,” but does not state that the
pilot must verify that the operator is authorized for such operations. 30 By its
own assertion, this circular, “describes an acceptable means . . . for
authorization of aircraft and operators to conduct flight in airspace or on routes
where RVSM is applied.” 31 Like the regulations, this circular does not require
that the pilot actually consult any LOA or OpSpecs immediately before
operating in RVSM airspace. 32
The regulations also make it clear that a pilot, once aware that the
authorization exists in the operator’s OpSpecs, has no ongoing obligation to
confirm that it remains current and therefore valid. Instead, 14 C.F.R.
§ 119.43, which applies to part 135 commercial operators like USAC, 33 states
that the operator is responsible for “keep[ing] each of its employees and other
persons used in its operations informed of the provisions of its [OpSpecs] that
apply to that employee's or person's duties and responsibilities.” 34 The pilot is
command has been advised by ATC . . . .”); 14 C.F.R. § 91.203 (“[N]o person may operate a
civil aircraft unless it has within it . . . [a]n appropriate and current airworthiness
certificate . . . [and a]n effective U.S. registration certificate . . . .”); 14 C.F.R. § 91.503 (“The
pilot in command of an airplane shall ensure that the following flying equipment and
aeronautical charts and data, in current and appropriate form, are accessible for each flight
at the pilot station of the airplane: . . . [a] cockpit checklist containing the
procedures[,] . . . [p]ertinent aeronautical charts[, and] . . . each pertinent navigational en
route, terminal area, and approach and letdown chart.”); see 14 C.F.R. § 23.1589.
Authorization of Aircraft and Operators for Flight in Reduced Vertical Separation
30
Minimum Airspace, FAA Advisory Circular No. 91-85.
31 Id.
32It also raises a question as to whether the pilot even needs to verify that the
operator is authorized.
33 14 C.F.R. § 119.1; 14 C.F.R. § 119.5.
34 14 C.F.R. § 119.43(c).
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not responsible for keeping himself informed. He must rely on the operator for
the current OpSpecs.
It is undisputed that Boeta had, at some earlier point, consulted the
authorization in USAC’s outdated OpSpecs. USAC issued Boeta its “operations
manuals,” which included its then-current OpSpecs. 35 He was certainly aware
that, at some point, USAC’s outdated OpSpecs permitted him to pilot N497RC
in RVSM airspace. The ALJ’s determinations, as affirmed by the NTSB, bolster
this.
It is generally understood that an existing condition is presumed to
continue in existence, absent some indication that it has ceased or
substantially changed. 36 When USAC terminated its agreement with USAC,
its chief pilot called Boeta several times, but Boeta did not answer or return
his calls. 37 By the chief pilot’s account, USAC never terminated its agency
relationship with Boeta. The chief pilot conceded as much at the ALJ’s hearing.
Accordingly, Boeta remained USAC’s agent even after the agreement between
USAC and Capital concluded. As a result, USAC had a continuing obligation
USAC trained Boeta to operate in RVSM airspace and an FAA inspector tested
35
him on his knowledge and ability in that regard. Additionally, Boeta was aboard N497RC
during USAC’s proving runs, when an FAA inspector tested its capability.
Cent. Pac. Ry. Co. v. Alameda Cty., Cal., 284 U.S. 463, 468 (1932) (noting “the
36
general principle that a condition once shown to exist is presumed to continue.”); see 31A
C.J.S. Evidence § 216 (“Proof of the existence at a particular time of a fact or condition of a
continuous nature gives rise to an inference, within logical limits, that it exists at a
subsequent time.”); see e.g., Swift & Co. v. United States, 343 U.S. 373, 382-83 (1952); Lewis
v. Hawkins, 90 U.S. 119, 126 (1874); Mitchell v. United States, 88 U.S. 350, 353 (1874); In re
Baigorry, 69 U.S. 474, 480 (1864). But see Maggio v. Zeitz, 333 U.S. 56, 65 (1948)
(“Language can, of course, be gleaned from judicial pronouncements and texts that
conditions once existing may be presumed to continue until they are shown to have
changed. But such generalizations, useful enough, perhaps, in solving some problem of a
particular case, are not rules of law to be applied to all cases, with or without reason.”).
Boeta disputed this, stating that the chief pilot had never called him. The ALJ,
37
however, credited the chief pilot’s account, and we do not disrupt this determination.
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to keep Boeta informed of the changes in its OpSpecs that applied to his duties
and responsibilities as a pilot. 38 This obligation would not have existed had
USAC simply terminated its agency relationship, which it might have
accomplished by sending written notice to Boeta at the address on his
application to USAC or even the address in the FAA’s registry. 39
As the NTSB itself noted, an FAA inspector stated that “without more,
someone reading the [USAC’s outdated] OpSpecs . . . would conclude N497RC
was still approved for RVSM operations.” 40 There is no indication in the record
that USAC—nor Capital or Redi-Carpet, for that matter—expressly informed
Boeta that he was relying on outdated OpSpecs. As far as Boeta was concerned,
nothing had changed with regard to him, to any of those entities, or to N497RC
itself. 41 The authorization contained in USAC’s outdated OpSpecs, would have
allowed USAC to operate N497RC commercially for Redi-Carpet’s benefit
under part 135, provided that USAC’s dry lease was still in effect.
Alternatively, that authorization would have allowed USAC to operate
N497RC noncommercially for Redi-Carpet’s benefit under part 91, even after
the dry lease had ended. As the FAA states, “[o]perators issued OpSpecs are
not required to also obtain an LOA for those operations when they are
38 See 14 C.F.R. § 119.43(c).
39See AIRMAN INQUIRY, FEDERAL AVIATION ADMINISTRATION,
https://amsrvs.registry.faa.gov/airmeninquiry/.
40 Even so, the NTSB disregarded this, remarking that the same inspector stated
that “a pilot would have had other methods, in addition to the OpSpecs, available to
determine if an aircraft was authorized for RVSM operations.” Certainly, however, the
regulations and circular do not require a pilot to do more than review the authorization
itself.
41 Although Boeta’s violation was inadvertent and therefore excused by the waiver-
of-sanction defense, it was not excused by the reasonable reliance defense because, in part,
he had “reason to question” USAC’s silence.
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conducted under part 91, provided that,” among other things, “[t]he aircraft is
operated under the operator name listed on the OpSpecs.” 42 The absence of
USAC’s dispatch sheet was Boeta’s only indication that USAC might not be
operating the flight.
USAC, Capital, and Redi-Carpet were in much better positions to
determine who had possession of and operational control over N497RC. Boeta
was largely ignorant of the shifts in those entities’ respective relationships.
Although Boeta might have done more to inquire of them, they certainly should
have done more to inform him of how those shifts affected his authority to
operate N497RC for them.
More to the point, USAC, which had an obligation to inform Boeta of
changes to its OpSpecs, should not have merely assumed that Boeta would
notice the distinction between its dispatch sheet and Capital’s trip sheet. Boeta
understood that USAC was consulting with Capital on obtaining its certificate
under part 119, and he must have understood that at some point USAC would
transfer operational control from itself to Capital to allow that process to occur.
USAC should have provided clear and unambiguous notice to Boeta. We can
only speculate that USAC’s motive is not so informing Boeta was its quarrel
with Capital, which remained Boeta’s employer throughout.
Boeta urges that Administrator v. Meacham 43 supports the conclusion
that his conduct was inadvertent. In Meacham, an aircraft ran out of fuel four
miles from its destination after the pilot failed to check the fuel levels in each
Authorization of Aircraft and Operators for Flight in Reduced Vertical Separation
42
Minimum Airspace; FAA Advisory Circular No. 91-85.
43 Garvey v. Meacham, NTSB Order No. EA-4633 (1998).
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tank visually before the flight. 44 When the aircraft ran out of fuel, the gauges
showed the fuel level in one tank was empty and the other was almost full. The
NTSB determined that the pilot’s failure to check the tanks was at least partly
justified by the circumstances. The pilot had been the last person to refuel the
aircraft, knew how much fuel had been added, knew how long he had flown the
aircraft, and knew that one of the fuel gauges was inoperative. 45 The NTSB
also suggested that the reason the fuel level was low might have been because
someone siphoned it. 46
Any difference between Boeta’s failure to reinspect the RVSM
authorization and the Meacham pilot’s failure to reinspect the fuel level did
not rise to the level of a distinction. Any inadvertence was the result of, at least
in part, the improper acts or omissions of others. Like the pilot in Meacham,
Boeta inadvertently relied on what he understood to be an unchanged
condition. He is entitled to the waiver-of-sanction defense under the provisions
of the FAA’s ASR procedure.
Although we are aware of the danger posed by unauthorized RVSM
flight, we are also cognizant of the need, recognized by Congress, for pilots to
freely disclose violations to the FAA. Such disclosure allows the FAA to resolve
problems before they result in accidents. Pilots will be less likely to participate
if, after complying with the ASR procedure, they are not afforded the promised
protections. Boeta’s violation was malum prohibitum, not malum in se: He
knew that he was adequately trained, and that N497RC was adequately
44 Id.
45 Id.
46 Id.
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equipped, to operate safely in RVSM airspace, but he was mistaken in
believing that they were permitted to do so on the date of the flight in question.
III.
We are no less sensitive to air safety concerns than the FAA, the ALJ,
and the NTSB. But candidly, it defies common sense to conclude that Beota
was anything but inadvertent when he, as a pilot capable of flying in restricted
airspace, flew an airplane capable of flying in restricted airspace, without
checking the paperwork evidencing that the operator (not the pilot!) of that
craft was still authorized to commission such flights. This is especially so when
viewed in the context of the agencies’ conclusion that the pilot in Meacham—
who “forgot” to check his fuel level before taking off, with the potential of
causing a true disaster (not merely a paperwork glitch)—was inadvertent.
For the forgoing reasons, we hold that the NTSB’s decision affirming the
ALJ’s rejection of Boeta’s defense of waiver of sanction under the ASR
procedure was arbitrary and capricious as a matter of law. We therefore
REVERSE those rulings and RENDER judgment that Boeta is entitled to
waiver of all sanctions—expressly including the sixty days suspension of his
air transport pilot certificate—by virtue of his timely compliance with the
FAA’s ASR procedure; and we REMAND this matter to the NTSB with
instructions to expunge its suspension of Boeta’s said certificate and to take
any other steps that might be required to complete these proceedings,
consistent with the opinion.
REVERSED, RENDERED, and REMANDED with instructions.
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STEPHEN A. HIGGINSON, Circuit Judge, dissenting:
I write separately to concur in large part but dissent in small part,
because I agree with the majority that the National Transportation Safety
Board (“NTSB”) did not err reversibly in rejecting (1) Boeta’s assertion that the
administrative law judge (“ALJ”) improperly limited his cross-examination of
several witnesses and (2) his affirmative defense of reasonable reliance. I
respectfully dissent, however, from the majority’s reversal of the NTSB’s
decision affirming the ALJ’s determination that Boeta was not entitled to a
waiver of sanction. The Federal Aviation Administration (“FAA”) sanction was
upheld after two evidentiary hearings before the ALJ, spanning three days in
total, and then again on appeal by the NTSB. I do not perceive the NTSB’s
rulings to be arbitrary and capricious and believe its factual findings are
consistent with the record. For these reasons, and because the NTSB’s findings
of fact as to pilot safety requirements have such importance and sensitivity, I
would not disturb Boeta’s sixty-day pilot suspension.
Under this court’s precedent, appellate review of NTSB decisions is
circumscribed and highly deferential. See Miranda v. Nat’l Transp. Safety Bd.,
866 F.2d 805, 807 (5th Cir. 1989); Tokoph v. Blakey, 73 F. App’x 772, 773 (5th
Cir. 2002) (“We accord substantial deference to the NTSB’s interpretation of
the statutes and regulations it administers.”). We must uphold a decision of
the NTSB unless it is “unsupported by substantial evidence” or is “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” 5
U.S.C. § 706(2)(A),(E); see Miranda, 866 F.2d at 807; Harris v. Hinson, No. 96-
60670, 1997 WL 156807, at *1 (5th Cir. Mar. 19, 1997) (unpublished).
The NTSB was correct to affirm the ALJ’s finding that Boeta’s violation
was not inadvertent. It is undisputed that Boeta flew in Reduced Vertical
Separation Minimum (“RVSM”) airspace without the required authorization.
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The ALJ, the factfinder tasked with hearing live testimony, including Boeta’s,
for a total of three days, discredited Boeta’s claim that his violation occurred
because he had misplaced his trust in Capital Aerospace, LLC (“Capital”), and
that individuals at Capital had lied to him by telling him on multiple occasions
that the aircraft’s RVSM authorization was still valid. The ALJ additionally
did not find credible or logical Boeta’s claim that the outdated Operations
Specifications (“OpSpecs”) were on board the aircraft on September 8. 1
The ALJ instead credited the testimony of FAA inspectors who were
present during the ramp check and found that Boeta’s interactions with them
demonstrated that he “did not know where the proper RVSM documentation
was located because he had not checked on the RVSM compliance for his
aircraft before the flight.” Although Boeta initially told the inspectors that his
flight was conducted under 14 C.F.R. Part 91, he later insisted that he
misspoke and that the flight was conducted under 14 C.F.R. Part 135. 2 This
distinction is important, because, as Boeta later testified, he knew that if
USAC did not dispatch a particular flight, the aircraft could not be flown under
Part 135 in reliance upon USAC’s OpSpecs, which were the basis of the
1 There is a “very narrow window of appellate scrutiny” for an ALJ’s credibility
assessment. Miranda, 866 F.2d at 807. “[A] determination of credibility is non-reviewable
unless there is uncontrovertible documentary evidence or physical fact which contradicts it.”
Id. (quoting N.L.R.B. v. J.M. Machinery Corp., 410 F.2d 587, 590 (5th Cir. 1969)).
2 As the majority discusses, flights operated under Part 135 are commercial in nature,
while flights operated under Part 91 are non-commercial and are operated by the owner or
lessee. Although the record reflects some contradiction regarding whether Boeta actually
believed the September 8 flight was operated under Part 135 or Part 91, he indicated in his
response to the FAA’s letter of investigation that the flight was operated under Part 135.
Regardless, the ALJ credited testimony that both Part 91 and Part 135 flights conducted
under USAC’s Part 135 certificate would be required to be dispatched and operated by USAC.
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aircraft’s RVSM authorization. He also testified that he understood that the
flight was not dispatched by or under the operational control of USAC. 3
The ALJ credited additional testimony of Michael Ohannesian, one of
the FAA Inspectors who examined the out-of-date USAC OpSpecs presented
by Boeta on the day of the ramp check. Ohannesian testified that, by its terms,
the OpSpecs were for the exclusive use of USAC and that the RVSM
authorization could not be used unless USAC had operational control of the
flight. In other words, according to the testimony heard by the ALJ, the
OpSpecs relied upon by Boeta only authorized USAC to operate the aircraft in
RVSM airspace, regardless of whether or not those OpSpecs were current or
outdated. Importantly, the NTSB ultimately found that Boeta had reason to
question whether the aircraft’s prior RVSM authorization was valid because
he “was aware [that] USAC did not dispatch the flight and [that] the flight was
not under the operational control of USAC.” Moreover, the ALJ credited FAA
Inspector Charles McKinley’s testimony that the pilot in command is
responsible for ensuring that all required documents are current before
making a flight, which would include ensuring that RVSM authorization is
current before making a flight in RVSM airspace.
These factual determinations are supported by “more than a scintilla” of
relevant evidence such that “a reasonable mind might accept [the evidence] as
adequate” to support the NTSB’s conclusion and thus satisfy the deferential
3 The majority questions how Boeta could have known that the aircraft was not under
the operational control of USAC. However, Boeta himself testified that the aircraft was
under the operational control of Redi-Carpet, not USAC. See Huerta v. Boeta, NTSB-ALJ
Order No. SE-19349, at 442. Additionally, the ALJ credited testimony that Boeta received
training regarding operational control of the aircraft and the importance of the aircraft being
dispatched by USAC, regardless of whether the flight was conducted under Part 91 or Part
135. Id at 429, 433. Moreover, the majority acknowledges that, according to Boeta’s own
testimony, he knew the September 8 dispatch sheet did not come from USAC. This confirmed
that the flight was not under USAC’s operational control.
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“substantial evidence” standard. See Ellis v. Liberty Life Assur. Co. of Bos.,
394 F.3d 262, 273 (5th Cir. 2004) (quoting Deters v. Sec’y of Health, Educ. &
Welfare, 789 F.2d 1181, 1185 (5th Cir. 1986)). Further, these factual findings
support the ALJ’s ultimate conclusion that Boeta’s violation was not
inadvertent because the evidence established that he “did not determine if his
aircraft was RVSM compliant before he flew in RVSM airspace, where jets fly
at high speed at reduced vertical separation; he simply did not check.” The
NTSB upheld the ALJ on these factual findings and likewise held that Boeta’s
violation did not qualify as inadvertent, because he “chose not to check” the
RVSM authorization before the September 8 flight, despite having good reason
to question whether the RVSM authorization he relied upon was valid.
Unlike the majority, I believe this NTSB conclusion is consistent with
Ferguson v. National Transportation Safety Board, 678 F.2d 821 (9th Cir.
1982), in which the United States Court of Appeals for the Ninth Circuit
defined an “inadvertent act” as “one that is not the result of a purposeful
choice.” Id. at 828. One could reasonably conclude that Boeta’s failure to
check on the RVSM status when he had good reason to question its validity for
the September 8 flight is akin to the Ninth Circuit’s example of a “purposeful
choice” to place a cup of coffee on a precarious table edge. Id. Likewise, Boeta’s
choice not to check on the RVSM status at all may reasonably be viewed like
the Ninth Circuit’s example of a pilot who flies at an incorrect altitude after
choosing not to consult his instruments to verify his altitude. Id.
Moreover, the ALJ’s finding that the surrounding circumstances of the
September 8 flight should have alerted Boeta that the flight was not RVSM
authorized distinguishes the instant case from Administrator v. Meachum,
NTSB Order No. EA-4633 (1998). In Meachum, the NTSB concluded that a
pilot’s failure to check his aircraft’s fuel tanks prior to a flight was justified by
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the surrounding circumstances, which gave the pilot no reason to suspect that
the fuel level was lower than he believed it to be. 4 Id. This is in contrast to
the red flags found to exist in Boeta’s case. Again, Boeta was aware that USAC
neither dispatched nor operated the September 8 flight, that USAC had not
dispatched a Capital flight in six months, and that he was not permitted to
conduct a flight under USAC’s Part 135 OpSpecs unless the flight was
dispatched by USAC. Boeta was also aware that Capitol did not hold any form
of RVSM authorization itself.
The NTSB’s interpretation is additionally consistent with its past
decisions distinguishing a pilot “claim[ing] ignorance of the regulations” at the
time of a violation from a pilot who was aware of the regulations at the time of
the violation, but “believed, albeit mistakenly, that he was acting in
compliance” with them. See Administrator v. Halbert, NTSB Order No. EA-
3628 (1992); Administrator v. McKenna, NTSB Order No. EA-3960 (1993). In
these decisions, the NTSB clarified that the latter violation qualifies as
inadvertent, but the former does not, because, while the pilot “did not
purposefully violate the [Federal Aviation Regulations], neither did he make
any attempt to comply[.]” McKenna, NTSB Order No. EA-3960, at *4. While
the majority credits some of Boeta’s testimony to support his claim that he was
aware of the requirements and merely mistakenly believed his September 8
flight was in compliance with them, the factfinder who heard Boeta’s testimony
and cross-examination over the course of two days specifically discredited that
4 The circumstances in Meachum were highly unusual. In that case, the pilot had
been the last person to fuel the aircraft, knew how much fuel he had put in, knew how long
he had flown the aircraft, and knew that the left fuel gauge was not working properly.
Meachum, NTSB Order No. EA-4633, at *1. The NTSB also suggested that the reason the
fuel was low might have been because someone siphoned it, a possibility that understandably
might not occur to a pilot. Id. at *2.
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testimony, and there was factual support in the record for the NTSB to infer
instead an actual ignorance of the applicable regulations, and, as a result, no
attempt on Boeta’s part to comply with those regulations. Specifically, Boeta
testified, and the ALJ and NTSB found, that Boeta knew that USAC did not
dispatch or operate the September 8 flight. In fact, he was aware that USAC
had not dispatched a Capital flight in six months. These facts can reasonably
be understood to demonstrate that, because he at no time questioned how
USAC’s RVSM authorization could apply to a flight that USAC did not
dispatch or operate, Boeta lacked an understanding of the requirements of 14
C.F.R. § 91.180 and 14 C.F.R. § 91, App. G, which are explicit that both the
aircraft and the operator must be approved for RVSM authorization, rather
than a mere mistaken belief that his September 8 flight somehow complied
with those regulations. These facts also support the inference that Boeta was
not familiar with the content of the OpSpecs upon which he purportedly relied,
as those OpSpecs only provided for RVSM authorization if USAC had
operational control of the flight. 5
To summarize, yet I hope not to oversimplify, three factual points (none
of which is disputed by the majority or Boeta) provide substantial evidence for
5 Although the majority focuses on whether USAC and Capital provided Boeta with
notice that their relationship had ended and that, as a result, the aircraft was no longer listed
on USAC’s OpSpecs, The question of inadvertence does not require us to make our own
findings of fact on that point. Nor is it necessary for us to determine, based on our own
judgment, whether a pilot should be expected to verify that valid RVSM authorization
documents are on board every flight even if the pilot has no reason to suspect that prior
RVSM authorization may no longer be valid. Regardless, the ALJ credited testimony from
both a USAC employee and a Capitol employee indicating that pilots at Capital knew that
the relationship between the two companies had ceased to exist, and I would defer to the
ALJ’s determinations of witness credibility. The ALJ additionally credited FAA testimony
that pilots flying in RVSM airspace must check RVSM documents to confirm they are up-to-
date and on board a flight. On that point in particular, we should defer to the ALJ’s
determination of witness credibility, because pilot safety is of such complexity and
importance.
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the conclusion that Boeta’s actions did not qualify as inadvertent. First, Boeta
testified that his mistaken belief that the September 8 flight had valid RVSM
authorization was based on the out-of-date USAC OpSpecs that he presented
to FAA inspectors following his September 8 flight. Second, those out-of-date
OpSpecs provided that USAC’s RVSM authorization could not be used unless
USAC had operational control of the flight, and Boeta knew that when USAC
did not dispatch a flight, the aircraft could not be operated under Part 135.
Finally, and most importantly, Boeta knew that USAC did not dispatch or have
operational control of the September 8 flight, which he insisted to inspectors
was conducted under Part 135. In fact, Boeta was well aware that USAC had
not dispatched a single Capital flight in six months and had himself flown
flights for Capital in the interim. Based on these facts alone, substantial
evidence supported the finding that Boeta ignored surrounding circumstances
of the invalidity of the flight’s RVSM authorization, which the relevant Federal
Aviation Regulations make clear is operator-specific. Under this reasonable
view of the record, read in light of the precedent discussed above, it was not
arbitrary and capricious to conclude that Boeta’s violation did not qualify as
inadvertent and that a waiver of violation was therefore not justified. Hence,
I would AFFIRM the NTSB’s order in its entirety.
26