[00:00:08] Speaker 02: Administration at ELL. [00:00:10] Speaker 02: Mr. Wynton for the petitioner, Ms. [00:00:12] Speaker 02: Carroll for the response. [00:00:18] Speaker 01: Good morning and may it please the Court. [00:00:20] Speaker 01: My name is Gregory Wynton and I represent the petitioner, Jeffrey Siegel. [00:00:23] Speaker 01: I'd like to reserve two minutes of my time for rebuttal. [00:00:28] Speaker 01: We are here today because the National Transportation Safety Board issued an order basically rubber-stamping and affirming [00:00:35] Speaker 01: an order by the administrator of the Federal Aviation Administration revoking my client's private pilot certificate. [00:00:44] Speaker 01: That case with the board and that decision is not supported by substantial evidence in the record. [00:00:51] Speaker 01: Furthermore, the board's decision is contrary to established law, precedent, and policy, and therefore is arbitrary and capricious. [00:01:01] Speaker 01: We talk about the record in this case and why the board's decision [00:01:05] Speaker 01: affirming the revocation order is not supported by substantial evidence. [00:01:09] Speaker 01: Specifically, the board at A223 of the record stated that there was an absence of any mitigating factors which would allow for a suspension of my client's certificate instead of the revocation. [00:01:24] Speaker 01: Because if you recall, the regulation that was violated, 14 CFR 91.19a, also works with [00:01:33] Speaker 01: 14 CFR 6115, which says a violation of 91.19A is grounds for either suspension or revocation of a pilot certificate. [00:01:45] Speaker 01: Well, what mitigation is in the record that was found by the administrative law judge? [00:01:50] Speaker 01: The judge said specifically, 16 months elapsed from the time of the flight on October 1, 2016 until the FAA actually issued an emergency order of revocation on February 7, 2018. [00:02:03] Speaker 01: That's the record at A22233. [00:02:07] Speaker 01: Furthermore, the judge found that the state of Kansas dismissed all charges resulting from the simple possession charge of a controlled substance within the state of Kansas. [00:02:17] Speaker 01: The judge also found that the civil possession charge would have been a misdemeanor if the state decided to carry out that charge. [00:02:23] Speaker 01: That's record 8234. [00:02:26] Speaker 01: Interestingly enough, the judge who based his decision on the substantial evidence in the record and assessed the credibility of the witnesses, which by the way was adopted by the board, the judge found that whether my client admitted that the chocolate was his to the trooper who was on scene to protect his [00:02:47] Speaker 01: at that time, future wife from criminal charges, I don't know. [00:02:51] Speaker 01: So the judge, even considering the credibility of my witness and that of his wife, said, I still don't know if Mr. Siegel admitted to the police officer that the chocolate bars that were his was to protect his wife, who by the way was in the hospital. [00:03:07] Speaker 03: Even if that were the case, that would still be evidence that he knew they were there. [00:03:14] Speaker 03: It could be. [00:03:14] Speaker 03: And the judge found it was, no challenge to that. [00:03:16] Speaker 03: How could it not be? [00:03:17] Speaker 03: I mean, he didn't say, what are you talking about? [00:03:20] Speaker 03: When he said, we found something over here, he said, yeah, that's mine. [00:03:24] Speaker 03: Do the patrons or nobody know it's not hers, it's mine. [00:03:27] Speaker 03: Either way, either he was lying and saying it was his or he couldn't have been saying it, but either way, he knew it was there. [00:03:32] Speaker 03: And if he knew it was there, he's in violation, right? [00:03:35] Speaker 03: And we're not challenging violation, Judge. [00:03:36] Speaker 03: I understand that. [00:03:37] Speaker 01: That's not what we're talking about. [00:03:38] Speaker 03: What you're talking about now sounds like you are. [00:03:40] Speaker 01: No, no, no. [00:03:41] Speaker 01: Not at all. [00:03:41] Speaker 01: No. [00:03:42] Speaker 01: What I'm saying is this is what the Judge found, okay? [00:03:44] Speaker 01: So these are all mitigating factors. [00:03:46] Speaker 01: Also, the Judge found that it may have refreshed his recollection, speaking of my client, at the time of the accident, but as you mentioned, he knew it was there. [00:03:54] Speaker 01: So my point in saying that is, first of all, there was no use involved. [00:03:59] Speaker 01: The drug tested him at the hospital. [00:04:01] Speaker 01: He wasn't transporting for commercial purposes. [00:04:04] Speaker 04: But the regulation prohibits simple possession on the plane. [00:04:10] Speaker 04: And the policy statement says violation will be ground for revocation absent exceptional circumstances. [00:04:18] Speaker 04: So all of your arguments about how this wasn't [00:04:22] Speaker 04: a distribution case. [00:04:25] Speaker 04: Neither here nor there. [00:04:26] Speaker 01: And I'm not advocating that because it wasn't a distribution case. [00:04:29] Speaker 01: It should be thrown out. [00:04:30] Speaker 01: Again, I'm not challenging the regulation. [00:04:32] Speaker 01: The judge found the regulation was violated. [00:04:35] Speaker 04: Nor the policy statement setting forth the rule that the governing rule is revocation absent exceptional circumstances. [00:04:44] Speaker 01: Yes, we are challenging the policy statement. [00:04:46] Speaker 01: Number one, Judge, nowhere in this record does a policy statement exist. [00:04:51] Speaker 01: The opportunity to put the FAA order 2150.3b into the record was actually baited by the administrative law judge to the FAA attorney. [00:05:02] Speaker 01: Specifically, he said, I can take judicial notice of the FAA policy. [00:05:08] Speaker 01: And she said, no. [00:05:10] Speaker 01: Interesting. [00:05:11] Speaker 01: We have to leave it at that. [00:05:12] Speaker 03: The order still affected the order that you just cited. [00:05:18] Speaker 03: I'm not going to go back and recite the numbers of the orders you just gave. [00:05:21] Speaker 03: Is that order still in effect? [00:05:24] Speaker 01: No, the new order is 2150.3C as in Charlie. [00:05:29] Speaker 01: But regardless, all this discussion in the government's brief about the policy that apparently the board is relying upon to revoke my client's certificate [00:05:40] Speaker 01: is not in the record. [00:05:41] Speaker 01: More importantly, the Pilots' Bill of Rights, which was signed into law in 2012, specifically told the NTSB that it shall no longer basically just rubber-stamp the FAA's proposed sanctions. [00:05:52] Speaker 01: I don't know what it said. [00:05:53] Speaker 03: Well, in fact... It took out a section that said the high deference was given, right? [00:05:59] Speaker 01: It did, but more importantly, Judge, it said that it shall consider mitigating and aggravating circumstances. [00:06:05] Speaker 01: Keep in mind, [00:06:06] Speaker 01: The NTSB has already issued precedent on this issue. [00:06:10] Speaker 01: Administrator versus Jones, NTSB order number EA5647, January 16, 2013, which, by the way, was relied upon in the government's brief. [00:06:21] Speaker 01: The board said in determining the appropriate sanction under the Pilots' Bill of Rights, the board itself must consider both aggravating and mitigating factors in evaluating an imposed sanction. [00:06:34] Speaker 01: In the past, [00:06:35] Speaker 01: The Board compared factually similar cases in determining whether the Administrator's sanction was appropriate. [00:06:41] Speaker 01: However, at this juncture, post-Pilot's Bill of Rights, the Board said, we are reluctant to engage in sanctioned comparison to cases decided prior to the enactment of the Pilot's Bill of Rights. [00:06:53] Speaker 01: So in this case, the plain language of the regulation, 61.15, says it provides for either suspension or revocation, and therefore the board was required to examine the potential of both penalties in this case. [00:07:08] Speaker 01: The board completely disregarded all the mitigating factors that the judge threw out there in his oral decision. [00:07:15] Speaker 01: as being supported by substantial evidence in the record. [00:07:20] Speaker 01: They completely disregarded those mitigating factors. [00:07:22] Speaker 01: But more importantly, there are no aggravating factors in the entire record. [00:07:27] Speaker 01: And the board never tried to address any of those. [00:07:29] Speaker 05: So the question is... The compliance policy 2153.3B, it's invoked in the board's order, right? [00:07:40] Speaker 01: It's invoked in the board's order. [00:07:42] Speaker 01: Yes, they referenced it quite a bit. [00:07:45] Speaker 01: And I find that interesting because it was not in the administrative record. [00:07:49] Speaker 01: And more importantly, the law judge did not take what we would call a judicial order. [00:07:53] Speaker 05: But for our purposes, it's part of the decision. [00:07:56] Speaker 05: It's the rationale of the decision to impose the sanction of revocation is grounded in 2150.3B. [00:08:03] Speaker 05: Right. [00:08:04] Speaker 01: And this court has held the board to task in the past where the board has relied upon [00:08:09] Speaker 01: information, testimony or documenting information that's not in the record and said, wait a minute, you made a factual finding in this case based upon evidence that's not in the record. [00:08:19] Speaker 01: That FAA order 2150.3B was never introduced into the record and therefore the government, the NTSB can't rely upon it in rubber stamping and affirming the FAA's order of revocation. [00:08:32] Speaker 01: The opportunity was there. [00:08:33] Speaker 01: The judge baited the lawyer and said, would you like me to take judicial notice? [00:08:37] Speaker 01: And by the way, it's very important. [00:08:39] Speaker 01: Official notice, as it's termed in the NTSB rules of practice, require the FAA to ask for official notice, the law judge to accept it, and give the respondent an opportunity, 10 days, to object to that official notice. [00:08:54] Speaker 01: I did not have that opportunity. [00:08:56] Speaker 01: The FAA Order 2150.3B is a large document. [00:08:59] Speaker 01: And I should have had the opportunity, if it were being considered as evidence in the record, to object to it and respond to it, which I didn't. [00:09:07] Speaker 01: But yet the NTSP took hold of it and used it to revoke my client's certificate. [00:09:13] Speaker 01: It's not supported by evidence in the record. [00:09:16] Speaker 01: And, quite frankly, it's contrary to the congressional intent. [00:09:19] Speaker 01: The Pilots' Bill of Rights, here I didn't say [00:09:22] Speaker 01: you shall no longer defer to the board. [00:09:25] Speaker 01: But the NTSB itself, in its decision that I was just reading, says that the board is required to examine both potential penalties when faced with an opportunity to suspend or revoke. [00:09:36] Speaker 01: And more importantly, when Congress grants a regulator discretion to choose between suspension and revocation, the respondent presents facts [00:09:45] Speaker 01: material to the exercise of that discretion, which we did, because the FAA had a choice to make both suspension and verification, the agency must hold a hearing, which they did, and must articulate why, and has chosen to impose the more severe penalty. [00:10:00] Speaker 01: If you look at the record in this case, there was no evidence whatsoever concerning the sanction. [00:10:06] Speaker 01: The judge even [00:10:08] Speaker 01: I mentioned that in his decision. [00:10:11] Speaker 01: Special Agent Martinez was asked, did you assign the sanction? [00:10:14] Speaker 01: His answer, no, it's all based on FA order 2150.3b, which is certificate action with revocation. [00:10:21] Speaker 01: And then, what did you use to make the recommendation? [00:10:24] Speaker 01: I used that order. [00:10:25] Speaker 01: And then it said, Kraft leads up to certificate action. [00:10:29] Speaker 01: Even the administrator's own witness said contraband society act that leads up to revocation, suggesting it could also have been suspension. [00:10:38] Speaker 01: That is the extent of all the testimony. [00:10:40] Speaker 01: My time is up. [00:10:41] Speaker 01: I'd like to reserve two minutes for rebuttal. [00:10:43] Speaker 01: Thank you. [00:10:50] Speaker 00: May it please the court, Sarah Carroll, on behalf of the FAA. [00:10:53] Speaker 00: Petitioner does not deny that he knowingly carried drugs on an aircraft. [00:10:56] Speaker 00: He does not deny it. [00:10:58] Speaker 03: He doesn't deny the offense. [00:10:59] Speaker 03: He doesn't dispute the legality of the penalty. [00:11:03] Speaker 03: Your brief response to those arguments, but it doesn't have much to say about the one he actually makes. [00:11:12] Speaker 03: The question here is not whether he violated. [00:11:14] Speaker 03: He violated. [00:11:14] Speaker 03: The question is not whether the FAA has the authority to revoke as opposed to spend. [00:11:21] Speaker 03: They have the authority. [00:11:22] Speaker 03: The question, as I understand it, is, is the authority required to explain its reasons to avoid arbitrary and capricious ruling, or is it good enough that you have a standing order that gives the preference to the replication? [00:11:38] Speaker 03: Is that not really what this case is about? [00:11:40] Speaker 00: I think that that is at least one aspect of this case. [00:11:44] Speaker 00: And so the FAA expressly found that petitioner's violation showed that he lacked the care and judgment needed to possess a pilot certificate, which according to FAA longstanding policy shows that he lacks the qualifications to hold their certificate. [00:11:59] Speaker 03: The NTSB then... That's not a very case specific. [00:12:04] Speaker 03: explanation given that you wouldn't have the offense here if you did not have a pilot who knowingly violated the regulation. [00:12:13] Speaker 03: And the question that I understand the petition to be raising is, do you have to give an explanation for the choice of the revocation in this case to avoid being called, being with Arbitrator Precious and sent back for further proceeding? [00:12:29] Speaker 03: Or is it good enough that you have a standing order to defer revocation? [00:12:34] Speaker 00: A couple of responses, Your Honor. [00:12:36] Speaker 00: First, I think this court has, for instance, in cases like Ducote deferred to the FAA's determination that certain categories of offenses on their own show that a violator lacks the qualifications to possess a pilot certificate. [00:12:50] Speaker 00: That's not an unusual thing. [00:12:52] Speaker 00: That's an approach that this court has accepted. [00:12:54] Speaker 00: But beyond that, the petitioner says that the NTSB was required to look at aggravating and mitigating circumstances in the facts of this case. [00:13:02] Speaker 00: And the NTSB did precisely that. [00:13:05] Speaker 00: He tries to claim that they applied the wrong standard, but they did not. [00:13:08] Speaker 00: They looked at all of the purportedly mitigating circumstances that he had offered and found essentially that even assuming the factual assertions he was making to be true, they did not mitigate what he had done. [00:13:20] Speaker 00: They did not render unreasonable the FAA's determination that he showed a lack of care and judgment by knowingly bringing drugs on an aircraft. [00:13:31] Speaker 04: Is Order 2153b publicly available? [00:13:36] Speaker 00: Yes, Your Honor, it is. [00:13:37] Speaker 00: And I'm aware of no authority that suggests that a publicly available sanction document of an agency has to be somehow formally introduced into evidence in an administrative proceeding to be considered. [00:13:49] Speaker 00: The ALJ, as petitioner notes, said that he could take judicial notice of it. [00:13:53] Speaker 00: I'm not sure it makes a difference, but FAA counsel didn't, as he implies. [00:13:57] Speaker 00: say, no, don't take judicial notice. [00:13:59] Speaker 00: But the ALJ said he could. [00:14:00] Speaker 00: This court certainly could. [00:14:02] Speaker 00: And as you noted, Judge Katz, that document notes that in exceptional circumstances, perhaps the FAA could find that a violation of 91.19a did not show a lack of qualifications. [00:14:17] Speaker 00: But certainly, the FAA and the NTSB were not unreasonable here to find that there was nothing that [00:14:24] Speaker 00: that created such an exceptional circumstance. [00:14:29] Speaker 00: One thing that I think I would like to clear up, just in case there's any confusion on the court's behalf, a petitioner says in his reply brief that he obtained a temporary student certificate, which I thought might confuse the court. [00:14:41] Speaker 00: I wanted to be clear that a petitioner did obtain a temporary student certificate, but he should not have obtained it, and it did not reflect a judgment by the FAA that he had the qualifications to hold a student certificate. [00:14:53] Speaker 00: My understanding is that people can get these temporary student certificates essentially pretty much instantly by filling out an application online and then having a flight instructor certify that they're eligible. [00:15:06] Speaker 00: These documents are not on the record, although I can submit them to the court. [00:15:09] Speaker 00: Here the flight instructor, curiously, who made that certification was Mr. Winton, petitioner's lawyer. [00:15:15] Speaker 00: And when the FAA realized what had happened, the FAA [00:15:18] Speaker 00: returned the application on the basis of the petition. [00:15:21] Speaker 05: When you say it shouldn't have been granted, you're basing that on the timing? [00:15:25] Speaker 05: That it was within a year? [00:15:26] Speaker 00: Right. [00:15:26] Speaker 00: The FAA has said that he can't reapply for a certificate until February 2019. [00:15:30] Speaker 00: I'm happy to answer any other questions the court might have. [00:15:40] Speaker 00: Thank you. [00:15:41] Speaker 05: Thank you, counsel. [00:15:44] Speaker 05: I'll give you your two minutes. [00:15:46] Speaker 01: Sure, thank you. [00:15:50] Speaker 01: I heard counsel argue that my client knowingly brought contraband on an aircraft. [00:15:55] Speaker 01: It's a big distinction here. [00:15:57] Speaker 01: The board also found that my client knowingly brought contraband on an aircraft. [00:16:05] Speaker 01: He was found to have violated a regulation at 91 points. [00:16:08] Speaker 01: No person may operate a civil aircraft with knowledge that marijuana was carried in the aircraft. [00:16:14] Speaker 01: Again, these are two chocolate bars with an unknown amount of THC. [00:16:18] Speaker 01: The difference between knowledge and knowingly [00:16:20] Speaker 01: is substantial because when I was a young FAA lawyer, I used to prosecute the gun cases. [00:16:24] Speaker 01: When somebody showed up at the secured area of an airport, they would put a carry-on bag on the x-ray belt, and the x-ray belt would find a loaded weapon in that carry-on bag. [00:16:34] Speaker 01: They would stop it. [00:16:34] Speaker 01: Police would come over. [00:16:35] Speaker 01: The person was arrested, and the person would say, oh, yeah, that's my bag. [00:16:39] Speaker 01: That's my loaded weapon. [00:16:40] Speaker 01: My wife put it in the closet when the grandchildren came over, and I grabbed it for this business meeting. [00:16:45] Speaker 01: That person had knowledge that that loaded weapon was in the bag, but that person did not knowingly put that bag on the x-ray belt to get it to a secured area in an airport. [00:16:54] Speaker 01: That's the difference between knowledge and knowingly. [00:16:56] Speaker 01: My client never knowingly left that morning with the intent to operate with marijuana in the air. [00:17:03] Speaker 03: All there has to be is evidence that he knowingly did, sir. [00:17:08] Speaker 03: When he told the cop, it's mine, [00:17:11] Speaker 03: I was hoping you wouldn't find it, and then told him it's mine. [00:17:14] Speaker 03: It's not hers. [00:17:15] Speaker 03: Is that not evidence of doing it knowingly? [00:17:18] Speaker 01: That is not evidence that he knowingly left that morning. [00:17:21] Speaker 01: Because remember, the judge even said in his credibility assessment, he might have refreshed his recollection at the time of the accident. [00:17:28] Speaker 01: It was in the bag. [00:17:29] Speaker 03: We're not really reviewing the judge. [00:17:32] Speaker 03: We're reviewing the decision that reviewed the judge. [00:17:35] Speaker 01: Which is all the evidence in the record. [00:17:37] Speaker 01: Right, right. [00:17:37] Speaker 03: I don't see how you can say there's not evidence that he did this knowingly when he told Lee Howard Petrone. [00:17:43] Speaker 03: Howard Petrone said what he found. [00:17:46] Speaker 03: He said, I was hoping you wouldn't find that. [00:17:47] Speaker 03: He couldn't have been hoping that if he hadn't done it knowingly. [00:17:50] Speaker 03: He said, it was his thing. [00:17:51] Speaker 03: He said, it's mine. [00:17:52] Speaker 03: He couldn't have said that if he wasn't doing it knowingly. [00:17:54] Speaker 03: That's all evidence. [00:17:55] Speaker 01: We have to go with what the judge found on the credibility assessment because the board adopted that. [00:18:00] Speaker 01: The judge said, you know, he may have said that to protect his wife who was hurt in the accident. [00:18:05] Speaker 01: Regardless, Judge, what's important here is that the NTSB has precedent. [00:18:09] Speaker 01: It's Administrator versus Zoukas, Z-U-K-A-S, which is NTSB Order EA 4464. [00:18:17] Speaker 01: What the board said in that case is that a conviction for a drug offense that did not involve willful conduct might have a bearing on sanction in a proceeding brought under the basis of 14 CFR 60 1.15. [00:18:32] Speaker 01: That's the regulation in this case, suspension versus revocation. [00:18:36] Speaker 01: The board further held in that case, it seems to us that the willfulness of the airman's conduct [00:18:42] Speaker 01: under the regulation is relevant to the choice between suspension or revocation. [00:18:48] Speaker 01: Not to the underlying regulation. [00:18:49] Speaker 01: We are not disputing that. [00:18:51] Speaker 01: But the board did not follow its own precedent. [00:18:54] Speaker 01: It departed from precedent without a reasoned analysis. [00:18:57] Speaker 01: So they didn't consider aggravating versus mitigating circumstances. [00:19:00] Speaker 01: They departed from their precedent without reasoned analysis. [00:19:03] Speaker 01: And for that reason, we respectfully request that you vacate the order of the board. [00:19:07] Speaker 01: and reinstate the finding of the law judge that a 90-day suspension of his pilot certificate is relevant and applicable in this case. [00:19:15] Speaker 05: Thank you. [00:19:15] Speaker 05: Thank you, counsel. [00:19:16] Speaker 05: Thank you, counsel. [00:19:17] Speaker 05: The case is submitted.