Marie Finazzo v. Robert Sturgell , 407 F. App'x 241 ( 2011 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 05 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MARIE ROSE FINAZZO, No. 09-70617
Petitioner, FAA Nos. SE-18095
SE-18095
v.
ROBERT A. STURGELL, Acting MEMORANDUM*
Administrator of FAA; FEDERAL
AVIATION ADMINISTRATION,
Respondents.
On Petition for Review of an Order of the
Federal Aviation Administration
Argued and Submitted November 4, 2010
San Francisco, California
Before: THOMAS and IKUTA, Circuit Judges, and SETTLE, District Judge.**
Pilot Maria Finazzo petitions for review of orders issued by the National
Transportation Safety Board (“NTSB”) granting the appeal of the Federal Aviation
Administration (“FAA”), reversing the initial decision of the NTSB Administrative
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Benjamin Hale Settle, United States District Judge for
the Western District of Washington, sitting by designation.
Law Judge (“ALJ”), affirming the FAA’s order revoking Finazzo’s Airline
Transport Pilot Certificate, and denying reconsideration, entered on October 16,
2008 and January 2, 2009. We grant the petition.
The NTSB’s reversal of the ALJ’s credibility determination is at odds with
the Board’s precedents and unsupported by substantial evidence. The Board must
defer to an ALJ’s credibility finding “unless there is a compelling reason or the
finding was clearly erroneous.” Andrzejewski v. FAA, 563 F.3d 796, 799 (9th Cir.
2009) (quoting Chirino v. NTSB, 849 F.2d 1525, 1529-30 (D.C. Cir. 1988)); see
also Roarty, NTSB Order No. EA-5261, 2006 WL 3472333 at *2 (Nov. 27, 2006)
(“[The Board] may not reverse the law judge simply because, on the appellate
record, [it] might come to a different conclusion.”). This deference reflects the
ALJ’s function in the adjudicative process: seeing and hearing witnesses, the ALJ
is best positioned to evaluate their credibility. Dillmon v. NTSB, 588 F.3d 1085,
1090 (D.C. Cir. 2009). Accordingly, the Board rejects testimony accepted by an
ALJ when it is “inherently incredible” or “inconsistent with the overwhelming
weight of the evidence.” Id.; Hodges, NTSB Order No. EA-5303, 2007 WL
2253336 at *5 (Aug. 1, 2007).
Here, substantial evidence does not support the Board’s determination that
the record “directly and overwhelmingly contradicts” the ALJ’s credibility finding.
Finazzo, NTSB Order No. EA-5412 (Oct. 15, 2008). First, the Board had little
cause to fault Finazzo for not reporting that she was “diagnosed” with a “[m]ental
disorder,” as Question 18 requires. The record abundantly supports Finazzo’s
testimony that Doctor Seberg never shared his notes with her, and Doctor Ingram
testified that Finazzo did not have general anxiety disorder. Second, the Board’s
attempt to discredit Finazzo’s reasons for seeing Dr. Ingram rests on thin evidence.
Dr. Ingram agreed that Finazzo saw her for job counseling. Finazzo’s testimony is
not rendered “incongruent” by her anxious appearance in these meetings or
Ingram’s private speculation about potential future diagnoses. Finally, the Board’s
decision ignores additional record evidence buttressing Finazzo’s credibility. See
Van Dyke v. NTSB, 286 F.3d 594, 597 (D.C. Cir. 2002). For example, while the
FAA presented only hearsay testimony of Dr. Seberg’s notes, both of Finazzo’s
physicians, Doctors Ingram and Young, gave live testimony praising her credibility
and honesty.
Because substantial evidence does not support the Board’s adverse
credibility finding, the NTSB acted arbitrarily and capriciously in finding that the
FAA met its burden of establishing that Finazzo intentionally falsified her medical
application. In particular, the Board should have deferred to Finazzo’s credible
explanations for her responses to Questions 18 and 19, which negate the Board’s
reasons for finding the knowledge element satisfied.
The Board may have other sufficient reasons for finding in favor of the
FAA, but we cannot “supply a reasoned basis for the agency’s action that the
agency itself has not given.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm
Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983) (quoting SEC v. Chenery Corp., 332
U.S. 194, 196 (1947)).
We GRANT the petition for review, VACATE the Board’s orders, and
REMAND for further proceedings.
FILED
Finazzo v. Sturgell, No. 09-70617 JAN 05 2011
IKUTA, Circuit Judge, dissenting; MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Under the National Transportation Safety Board’s precedents, the Board
may overturn an ALJ’s credibility finding if it is “made in an arbitrary or
capricious manner or [is] clearly erroneous,” Administrator v. Babbitt, NTSB
Order No. EA-5496, at 12 (Dec. 30, 2009), such as when it is “inconsistent with
the overwhelming weight of the evidence,” Administrator v. Taylor, NTSB Order
No. EA-4509, at 7 (Dec. 23, 1996). In reviewing the Board’s decision, we may not
substitute our judgment for that of the agency, Motor Vehicle Mfrs. Ass’n of U.S.,
Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983), and may set aside
the Board’s determination only if it is “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law,” Andrzejewski v. FAA, 563 F.3d 796, 799
(9th Cir. 2009) (quoting Administrative Procedure Act, 5 U.S.C. § 706(2)(A)).
Given our deferential standard of review, the Board could have reasonably
determined that the overwhelming weight of the evidence established that Finazzo
intentionally made a false representation of material fact with knowledge of its
falsity for one or more of the items on her applications for a medical certificate, in
violation of both 14 C.F.R. §§ 67.403 and 61.153.
In response to Item 17(a), “do you currently use any medication
(prescription or nonprescription),” Finazzo did not report her ongoing use of
Ambien (a sleeping pill) or Ativan (an anti-anxiety drug). Finazzo knew that she
was taking those drugs, but testified that in her view, and based on advice that she
had received, she thought that she did not need to report her use of them. The
ALJ’s determination that Finazzo’s response was not literally false because at the
moment she filled out the form she was not using either medication is wrong as a
matter of law, Richards v. Evans, NTSB Order No. EA-3679, at 3–4 (Oct. 1, 1992),
and therefore the Board was not arbitrary or capricious in rejecting the ALJ’s
conclusion, Andrzejewski, 563 F.3d at 799.
In response to Item 19, which required Finazzo to disclose visits to health
professionals within the last three years of the medical application, she did not
report her visits to Dr. Seberg or Dr. Ingram. Finazzo testified that she knew that
she had to report her visits to Dr. Seberg, but “just forgot” to report her first visit,
and believed that she had previously reported other visits and “[did not] need to
keep reporting [her] general practitioner.” Despite these claims, Finazzo reported
visits to Dr. Seberg for a sprained ankle and a cold. Finazzo also stated that she
did not think she had to report her visits to Dr. Ingram, a psychiatrist that she was
seeing for stress and who prescribed medication to her, because those visits were
for “job counsel.” Dr. Ingram testified at the hearing that Finazzo’s visits were
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about work-related stress.
Finazzo’s answers to Items 17a and 19 were literally false. The record
establishes that Finazzo knew that they were false, although she made excuses for
her false answers based on her own interpretation of the FAA requirements. It is
well-settled that narrow interpretations of the scope of a question do not excuse the
failure to disclose required information. United States v. Culliton, 328 F.3d 1074,
1079–80 (9th Cir. 2003). Moreover, her non-answers were material. Although we
have held that any false statement is material if it could influence the FAA, see
Janka v. NTSB, 925 F.2d 1147, 1150 (9th Cir. 1991), in this case, Finazzo’s
answers are material under any standard: the FAA rightly needs to know if pilots,
entrusted with the lives of their passengers, are taking mind-altering drugs and are
seeing doctors for treatment of mental or physical disabilities.
The overwhelming weight of the evidence establishes that Finazzo falsified
her application. Moreover, Finazzo’s pattern of evasive explanations and excuses
based on faulty memory and narrow interpretations well supports a conclusion that
Finazzo was not credible. Accordingly, the Board’s rejection of the ALJ’s
credibility determination was not arbitrary or capricious, nor an abuse of
discretion. Therefore, I respectfully dissent.
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