On Petition for Review of an Order of the Department of Transportation.
The opinion of the court was delivered by: Kavanaugh, Circuit Judge
Before: GINSBURG and KAVANAUGH, Circuit Judges, and RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge KAVANAUGH, in which Circuit Judge GINSBURG joins and in all but Section II-A of which Senior Circuit Judge RANDOLPH joins.
Opinion concurring in all but Section II-A filed by Senior Circuit Judge RANDOLPH.
In 2005, the Federal Aviation Administration suspended Ryan Moshea's pilot certificate after the agency found that he had violated certain record-keeping safety regulations. Moshea appealed to the National Transportation Safety Board pursuant to the statutory process for Board review of FAA sanctions. In proceedings before the Board, he attempted to raise an affirmative defense based on his compliance with the voluntary disclosure program set out in FAA Advisory Circular 00-58. The Board ruled that it lacked jurisdiction to entertain Moshea's affirmative defense, and it affirmed his suspension. Moshea petitioned for review in this Court. We grant Moshea's petition for review, vacate the Board's decision, and remand to the Board for further proceedings.
Ryan Moshea worked as a certified pilot for the Key Lime Air Corporation, a commercial air cargo carrier. While conducting a cargo flight in October 2004, Moshea encountered difficulty extending the plane's landing gear. After landing, Moshea told a Key Lime mechanic about the problem. According to Moshea, the mechanic said that such difficulties were normal in cold weather. Moshea did not note the problem in the maintenance log for the plane, as required by FAA regulations. See 14 C.F.R. § 135.65(b); see also § 91.7(a); § 91.13(a). Several days later, after a few uneventful flights in the same aircraft, Moshea again had trouble lowering the aircraft's gear. Upon landing, Moshea contacted another Key Lime mechanic and received assurances that the difficulties likely resulted from cold weather. This time, the mechanic relayed the report to his supervisor, who scheduled the plane for maintenance two days later. Moshea again did not enter the problem in the maintenance log. On the intervening day, another pilot flying the same plane experienced difficulty in deploying the landing gear. After the second pilot landed safely, the ground crew found that the landing gear was damaged.
Shortly thereafter, Key Lime voluntarily disclosed those incidents to the Federal Aviation Administration pursuant to FAA Advisory Circular 00-58, which is a publicly available document setting forth the FAA's voluntary disclosure program. Under that Circular, the FAA agrees to forgo enforcement actions under certain circumstances so as to encourage regulated parties to voluntarily report apparent violations of FAA regulations. In this case, Key Lime's voluntary disclosures included Moshea's failure to make maintenance log entries of the in-flight mechanical problems he experienced.
Applying Circular 00-58 to this case, the FAA concluded that Key Lime and a number of Key Lime employees would receive no penalty. But the FAA suspended Moshea from flying for 60 days. Moshea appealed the FAA's decision to the National Transportation Safety Board. An Administrative Law Judge initially heard the case. In that proceeding, Moshea asserted an affirmative defense based on the FAA's voluntary disclosure program, which as explained in footnote 1 covers individual employees of regulated parties under certain circumstances.*fn1 But the ALJ ruled that the Board lacked jurisdiction to consider the affirmative defense and refused Moshea's effort to admit evidence bearing on his compliance with that program. The ALJ upheld Moshea's suspension (albeit reducing it from 60 to 50 days). Moshea then appealed the ALJ's decision to the Board. The Board agreed with the ALJ that it lacked jurisdiction to hear Moshea's affirmative defense, and it affirmed the sanction of suspension. In dicta, the Board suggested (but did not rule) that Moshea may not have satisfied the specific requirements of the voluntary disclosure program in this case even if the Board had jurisdiction to entertain such a challenge.
The National Transportation Safety Board possesses jurisdiction to review certain Federal Aviation Administration orders, including the order of suspension at issue in this case. See 49 U.S.C. § 44709(d)(1). In exercising that jurisdiction, the Board is "not bound by findings of fact of the Administrator but is bound by all validly adopted interpretations of laws and regulations the Administrator carries out and of written agency policy guidance available to the public related to sanctions to be imposed under this section unless the Board finds an interpretation is arbitrary, capricious, or otherwise not according to law." Id.§ 44709(d)(3) (emphasis added).
In this case, the Board concluded that FAA Circular 00-58 is not "related to sanctions" under § 44709(d)(3), even though the Circular provides that no sanctions will be imposed in cases of voluntary disclosure. Moshea, NTSB No. EA-5328, slip op. at 7, 2007 WL 3088248 (Oct. 17, 2007). On that basis alone, the Board concluded that Moshea could not present his affirmative defense based on Circular 00-58. Id. That conclusion allowed the Board to distinguish this case from the many Board cases addressing whether FAA sanctions comport with published FAA guidance documents. In this Court, the FAA ...