Tokoph v. Blakey , 73 F. App'x 772 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS September 11, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-60183
(Summary Calendar)
DAVID PAUL TOKOPH,
Petitioner,
versus
MARION C. BLAKEY, ADMINISTRATOR,
FEDERAL AVIATION ADMINISTRATION, and
NATIONAL TRANSPORTATION SAFETY BOARD,
Respondents.
On Petition for Review of An Order of
The National Transportation Safety Board
(EA-5018)
Before JOLLY, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:*
The petitioner, David P. Tokoph, is a pilot challenging the
suspension of his pilot’s certificate for operating a surplus
military jet in violation of Federal Aviation Regulation, 14 C.F.R.
§ 91.319(c) (“Section 91.319(c)”). Tokoph petitions for review of
the National Transportation Safety Board’s (“NTSB”) decision
affirming the order of the Administrative Law Judge (“ALJ”) in
favor of the Federal Aviation Administration’s (“FAA”) charge and
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
suspension. Because NTSB’s decision is not arbitrary or capricious
and is supported by substantial evidence, we deny the petition for
review.
I. FACTS & PROCEEDINGS
Petitioner Tokoph operated a North American F-100F Super
Sabre (the “F-100”) —— a surplus military aircraft with an
experimental-category special airworthiness certificate —— under
written operating limitations issued by the FAA. While piloting
the F-100 on the day in question, Tokoph made a high-speed approach
to, and low-level pass over, a runway at the Lordsburg, New Mexico
airport. During this approach, the plane was in the “clean”
configuration, i.e., without flaps or landing gear extended.
Tokoph’s airspeed was at least 300 knots. For this maneuver, the
FAA charged Tokoph with violating § 91.319(c).1 The aircraft-
specific operating limitations issued to Tokoph for the F-100 state
that the “aircraft may not be operated over densely populated areas
or congested airways, except when otherwise directed by Air Traffic
Control” and require that Tokoph “plan routing that will avoid
1
At the time of Tokoph’s flight, Section 91.319(c)
provided:
Unless otherwise authorized by the Administrator in
special operating limitations, no person may operate an
aircraft that has an experimental certificate over a
densely populated area or in a congested airway. The
Administrator may issue special operating limitations
for particular aircraft to permit takeoffs and landings
to be conducted over a densely populated area or in a
congested airway, in accordance with the terms and
conditions specified in the authorization in the
interest of safety in air commerce.
14 C.F.R. § 91.319(c)(2000)(emphasis added).
2
densely populated areas and congested airways when operating VFR.”
Because the Lordsburg, New Mexico-area is densely populated, the
FAA ordered a 180-day suspension of Tokoph’s pilot certificate.
Tokoph appealed the suspension, and, after exhausting the
administrative review and appeals process, found himself facing a
thirty-day suspension of his pilot’s certificate. He now petitions
us for review.
II. ANALYSIS
A. Standard of Review
We accord substantial deference to the NTSB’s interpretation
of the statutes and regulations it administers.2 That deference,
to be sure, is not unlimited: As with any federal administrative
agency, we will not defer to the NTSB’s interpretation if it is
“arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A).3 In other words, we
will not substitute our own judgment for that of the agency and
will affirm unless the agency fails to articulate a rational
relationship between the facts found and the choice made.4
B. Tokoph’s Complaints
Tokoph complains that the NTSB erred in affirming his
violation of § 91.319(c). Tokoph advances three arguments in his
petition for review. First, he claims to have received oral
2
City of Abilene v. U.S. E.P.A., 325 F.3d 657, 664 (5th
Cir. 2003).
3
See also City of Abilene, 325 F.3d at 664.
4
See id.3
authorization from an FAA Inspector permitting him to operate the
F-100 in the way that he did. Second, the operating limitations
issued to prior owners of the F-100 contained an exception for
takeoffs and landings from the restriction governing flights over
densely populated areas. Tokoph argues that it is unfair to deny
him equally broad operating authority. Tokoph’s third argument is
that the flight in question was permitted by the language of §
91.319(c) as a necessary component of the landing or pre-landing
phase of flight. After carefully reviewing the facts and legal
arguments in the record on appeal and the parties’ briefs, we are
convinced that his petition must be denied.
Given the airspeed and configuration of the F-100 during
Tokoph’s approach over the Lordsburg runway, the NTSB determined
that no landing could have been made. There is substantial
evidence in the record to support this pivotal conclusion, which,
as we shall explain, requires us to reject Tokoph’s first two
claims.5
Tokoph’s first claim relies on the fact that the FAA Principal
Maintenance Inspector (the “Inspector”) who issued the aircraft-
specific operating limitations for Tokoph’s F-100 advised Tokoph
orally that he could make reconnoitering approaches over densely
populated areas. The Inspector also told Tokoph that he needed
nothing in writing to reflect this exception. Tokoph contends that
this oral statement by the Inspector either constitutes binding FAA
5
See Texas Oil & Gas Ass’n v. U.S. E.P.A., 161 F.3d 923,
934 (5th Cir. 1998).
4
authorization or should estop the FAA from charging a violation of
§ 91.319(c). The NTSB concluded, however, that the Inspector’s
guidance was limited to the context of landings and takeoffs and
that, by his own concession, Tokoph was not landing the F-100 at
Lordsburg that day. Again, because there is substantial evidence
to support this determination,6 we will not reverse the NTSB’s
conclusion that any purported FAA authorization to fly over a
densely populated area when landing could not apply to Tokoph’s
conduct. The NTSB articulated a rational relationship between the
facts found and its decision.7
Likewise, Tokoph cannot prevail on his second claim, that his
approach fell within the takeoffs-and-landings exception contained
in the operating limitations governing prior owners of the F-100.
Even assuming arguendo that prior owners’ operating limitations
could be extended to Tokoph, however, the exception could not apply
to his conduct. This is because the NTSB determined that Tokoph
was not actually landing the F-100. Again, the deference we must
accord the NTSB’s factual determinations requires us to uphold its
decision.
Tokoph’s third argument, that the language of § 91.319(c)
itself permits his maneuver, also fails. First, it is unclear from
Tokoph’s appellate brief exactly what language in § 91.319(c) he
6
See id.
7
See City of Abilene, 325 F.3d at 664.
5
contends authorized his reconnaissance pre-landing approach.8 More
importantly, when, as here, a court reviews an agency’s application
and interpretation of its own regulations, the standard of review
is even more deferential.9 Under this standard, we cannot conclude
that Tokoph’s approach is exempted from the prohibitions of §
91.319(c).
III. CONCLUSION
Because substantial evidence supports the NTSB’s findings, and
it cannot be deemed to have acted in an arbitrary or capricious
manner, we cannot disturb its disposition of this matter. For the
foregoing reasons, Tokoph’s pleas must be rejected.
PETITION DENIED.
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8
Tokoph argues that the flight in question “was part of the
landing or pre-landing phase of flight, was ‘necessary,’ and is
accordingly exempted from the low flight prohibition of 91.319(c)
by the language of 91.319 itself, as well as being expressly
authorized by the [FAA]’s representative.” Yet, he fails to
identify any language that supports this argument.
9
Texas Coalition of Cities for Utility Issues v. F.C.C.,
324 F.3d 802, 811 (5th Cir. 2003).
6
7