Michael John Taylor, Petitioner, v. Barry L. Valentine, Acting Administrator, Federal Aviationadministration**, Respondent.no. 97-70175.faa-se-14370, 142 F.3d 445 (9th Cir. 1998)

On Petition for Review of an Order of the National Transportation Safety Board.

Before WOOD, JR.,^**** HALL and O'SCANNLAIN Circuit Judges.

MEMORANDUM^* 

Petitioner, Michael John Taylor ("Taylor"), was suspended for 60 days by the Federal Aviation Administration ("FAA") for endorsing a student pilot certificate for solo cross-country privileges prior to providing the student all required flight instruction. Taylor appealed the Administrator's order to the National Transportation Safety Board (the "NTSB"). An administrative law judge ("ALJ") affirmed the Administrator's order of suspension and Taylor appealed to the full NTSB. The NTSB affirmed the ALJ's initial decision and denied Taylor's motion for reconsideration of that decision. As a result, Taylor filed this petition for review.

FACTS

Taylor is a licensed pilot and flight instructor. He holds FAA certificates as a transport pilot, flight engineer. He also holds FAA flight instructor certificates for both single and multi-engine airplanes and instrument training. One of Taylor's students, Kenneth C. Batey ("Batey"), was involved in a crash of a Varga 2150A aircraft on February 11, 1995 during a solo cross-country flight. Although he had not flown in the military for over 20 years, Batey had over 1000 hours of flight time as a Navy pilot and was an FAA Air Traffic Controller. As a result, Batey's training progressed much faster than most beginning students. On February 3, 1995, Taylor gave Batey ground and flight instruction in preparation for Batey's solo cross-country flight. However, the required ground instruction, and some of the required flight instruction were not logged.

After the accident, the FAA assigned FAA Aviation Safety Inspector George DeMartini ("DeMartini") to conduct an investigation. As part of the investigation, DeMartini obtained Batey's pilot logbook. In a letter dated March 21, 1995, DeMartini notified Taylor that an enforcement investigation had commenced because of Taylor's actions in endorsing Batey's logbook for cross-country flight. DeMartini's review of the logbook revealed an absence of in-flight instruction, required by 14 C.F.R. § 61.93(c) (1) (I), prior to Taylor's signing the solo cross-country endorsement on February 11, 1995, and, thus, a violation of 14 C.F.R. § 61.195(C). In particular, DeMartini found a discrepancy between Batey's flight logbook and his student pilot certificate which led DeMartini to believe that Taylor failed to complete the required in-flight training prior to Batey's solo cross-country flight. Although Taylor denies it, DeMartini testified before the ALJ that, in a phone conversation, Taylor told him he had covered the subjects with Batey on the ground and not during in-flight instruction. Taylor testified that all the in-flight requirements of § 61.93(c) (1) (I) had been conducted during Batey's February 3 flight. Batey's testimony corroborated Taylor's testimony concerning the February 3 flight. However, DeMartini testified that in his opinion all the required maneuvers could not be completed in a single 1.5 hour flight.

On January 10, 1996, an Order of Suspension was issued by the FAA Regional Counsel's Office, suspending Taylor's flight instructor and airmen certificates for 90 days for violations of FAR § 61.93(c) (1) (I) and 61.189(a). Taylor filed a motion to dismiss the Order pursuant to 49 C.F.R. § 821.33. Prior to the hearing on the motion to dismiss, the Order of Suspension was modified, dropping the § 61.189(a) charge because it was deemed stale under 49 C.F.R. § 821.33. The modified Order of Suspension, reducing the suspension period to 60 days, became the Administrator's Complaint ("Complaint") pursuant to NTSB Rules of Practice. See 49 C.F.R. § 821.

On April 25, 1996, a hearing was conducted before an ALJ. Resolving credibility issues in favor of the Administrator, the ALJ issued an order affirming the earlier order of suspension for sixty days. Taylor appealed the ALJ's decision to the NTSB pursuant to 49 C.F.R. § 821.47.

In a December 11, 1996 order, the NTSB rejected what it saw as Taylor's two principal arguments and affirmed the decision of the ALJ. First, the NTSB rejected Taylor's argument that the action was barred under the "stale complaint rule." The NTSB found that the original NOPCA had, more likely than not, been sent to Taylor's correct address. It also ruled that, although the original NOPCA did not propose suspending Taylor's airmen certificates, Taylor was not prejudiced by the Administrator's later order suspending both his flight instructor and airmen certificates. Taylor was represented at the enforcement hearing by counsel who had received prior notice through an informal conference call with the administrator. Second, the NTSB rejected Taylor's argument that the ALJ's decision was not supported by a preponderance of the evidence. Taylor then filed a request for reconsideration. In an order dated March 26, 1997, the NTSB denied Taylor's request for reconsideration. This timely petition for review followed.

DISCUSSION

Taylor's petition raises two arguments for reversing the NTSB's order. First, Taylor argues that the NTSB erred in failing to dismiss the FAA's complaint under the FAA's "stale complaint rule." Second, Taylor argues that the NTSB's factual findings were not supported by substantial evidence. We reject both of Taylor's arguments for the following reasons.

I. Whether the NTSB erred In falling to dismiss the FAA's complaint under the "stale complaint rule."

Taylor initially argues that the FAA complaint should have been dismissed as stale pursuant to 49 C.F.R. § 821.33 ("Rule 33"). Taylor argues that Federal Air Regulations create a six-month statute of limitations period for the commencement of FAA enforcement actions. Since the alleged improper activities occurred on or before February 11, 1995, and Taylor did not receive a copy of the Notice & Proposed Certificate Action ("NOPCA") until about November 9, 1995, almost nine months later, Taylor argues the Rule 33's "stale complaint rule" required the ALJ to dismiss the complaint. Taylor further asserts that none of the exceptions to the "stale complaint rule" are applicable here. Under section 706(2) (a) of the Administrative review act, we review agency actions, such as application of its "stale complaint rule," under an arbitrary, capricious, abuse of discretion standard. See 5 U.S.C. § 706(2) (A) (1994); Henderson v. FAA, 7 F.3d 875, 877 (9th Cir. 1993).

In response, the Administrator argues that the NTSB's affirmation of the ALJ's findings, that good cause existed for Taylor's delayed receipt and that dismissal was unwarranted, was not an abuse of discretion. As evidence of good cause, the Administrator points to the fact that on August 3, 1995, eight days before the case would become stale on August 11, 1995, the FAA sent Taylor the NOPCA via certified mail, return receipt requested. When neither the return receipt nor the August 3, NOPCA were returned to the FAA, a second copy of the NOPCA was sent to Taylor via regular mail on November 9, 1995.

Agreeing with the Administrator, the NTSB determined it was more likely than not that the original August 3, NOPCA had been correctly addressed and should have been delivered in a timely manner by the postal service. Relying on Administrator v. Wilson, 7 NTSB 106, 107 (April 4, 1990), the NTSB found the Administrator's notice sufficient to prevent dismissal because the NOPCA was timely sent by certified mail, properly addressed with return receipt requested, and neither the envelope nor the receipt were returned.

Rule 33 states:

Where the complaint states allegations of offenses which occurred more than 6 months prior to the Administrators advising respondent as to reasons for proposed action under section 609 of the Act, respondent may move to dismiss such allegations pursuant to the following provisions:

(a) In those cases where a complaint does not allege lack of qualification of the certificate holder:

(1) The Administrator shall be required to show by answer filed within 15 days of service of the motion that good cause existed for the delay, or that the imposition of a sanction is warranted in the public interest, notwithstanding the delay or the reasons therefor.

(2) If the Administrator does not establish good cause for the delay or for imposition of a sanction notwithstanding the delay, the law judge shall dismiss the stale allegations and proceed to adjudicate only the remaining portion, if any, of the complaint.

49 C.F.R. § 821.33. Rule 33 requires that the Administrator provide notice to respondents within six months of an alleged offense. The date of respondent's receipt of the NOPCA, rather than the date of the mailing, governs compliance with the rule, absent a showing of good cause. Administrator v. Tracy, 4 NTSB 200 (1982). Here, the Administrator was required to provide Taylor notice within six months of February 11, 1995. Thus, notice was required by August 11, 1995, unless the Administrator can establish good cause for delay.

We agree with the NTSB that it was more likely than not that the Administrator sent the NOPCA to Taylor's correct address on August 3, 1995, eight days before the expiration of Rule 33's six-month deadline. FAA documents showed the NOPCA was placed in the mail on August 3, 1995. Taylor's argument that internal tracking documents establish the NOPCA was improperly addressed is without merit. First, the return address printed on the NOPCA itself contained Taylor's proper address. Second, every other document in the NTSB case file appears to contain Taylor's correct address and Taylor cannot point to another instance in the record where his address was written incorrectly. As soon as the FAA recognized that Taylor may not have received the August 3, NOPCA, because neither the return receipt nor the NOPCA itself was returned, the FAA sent another document by regular mail which Taylor did receive. Thus, the NTSB did not abuse its discretion by finding the Administrator had established good cause for the delayed notice.

II. Whether the NTSB's factual findings were supported by substantial evidence.

The crux of Taylor's appeal is that the Administrator failed to show by substantial evidence that Taylor failed to complete the flight instruction required by FAR 61.93(C) (1) (I). That section of the regulations requires flight training, which means training given during flight, prior to student cross-country solo flights including the use of aeronautical charts for VFR navigation including pilotage and dead reckoning with the aid of a magnetic compass. According to the Administrator, Taylor failed to provide Batey with all of the required in-flight training prior to Batey's solo cross-country flight and subsequent crash.

The burden of proof with respect to allegations of the Complaint is on the Administrator. 49 C.F.R. § 821.32. The NTSB's factual findings are conclusive when supported by substantial evidence in the record. Meik v. NTSB, 710 F.2d 584, 586 (9th Cir. 1983). Purely legal issues are reviewable de novo. Hill v. National Transp. Safety Bd., 886 F.2d 1275, 1278 (10th Cir. 1989).

Relevant portions of section 61.93(c), as of February 11, 1995, provide:

A student pilot, in addition to the pre-solo flight training maneuvers and procedures required by § 91.87(c), must have received and logged instruction from an authorized flight instructor in the appropriate pilot maneuvers and procedures of this section. Additionally, a student pilot must have demonstrated an acceptable standard of performance, as judged by the authorized flight instructor certificated under this pan, who endorses the student's pilot certificate in the appropriate pilot maneuvers and procedures of this section.

(1) For all aircraft--

(I) The use of aeronautical charts for VFR navigation using pilotage and dead reckoning with the aid of a magnetic compass; ...

14 C.F.R. § 61.93(c) (1) (I). On February 11, 1995, section 61.195 provided that an instructor pilot "may not endorse a student pilot certificate for initial solo or solo cross-country flight privileges, unless he has given that student pilot flight instruction required by this part for the endorsement, and considers the student is prepared to conduct the flight safely with the aircraft involved." 14 C.F.R. § 61.195.

Taylor maintains that he provided all training required by § 61.93(c) (1) (I) during a dual instruction flight of February 3, 1995. Batey testified in support of Taylor, stating that Taylor's recitation of the flight was accurate. DeMartini, on the other hand, testified that Taylor told him he had not provided the required in-flight instruction but had instead only provided ground instruction, purportedly because Batey's prior experience was much more advanced than that of the average student. DeMartini also testified that in his opinion the required maneuvers could not be completed in the hour and a half flight time logged in Batey's flight logbook. The flight logbook did not indicate the required flight maneuvers were conducted although the student pilot certificate was endorsed as if all requirements had been met. Moreover, the NTSB noted that all Taylor's other logbook entries had provided detailed accounts of Batey's training as required by FAA regulations.

Making a credibility finding in favor of the Administrator, the ALJ found that Taylor failed to provide all the required in-flight training required by section 61.93 and, thus, violated section 61.95(C) (1). In particular, the ALJ found that Taylor had not completed the required in-flight pilotage training, including dead reckoning with use of a magnetic compass, required by FAA regulations. In affirming the ALJ's decision the NTSB order states: "as we have said repeatedly, see, e.g., Administrator v. Rivera and Helivan Helicopters, Inc., NTSB Order No. EA-4419 at 5 (1996), and cases cited therein, the [ALJ] sees and hears the witnesses, and he is in the best position to evaluate their credibility." We agree and, thus, we cannot say that the NTSB's findings were not supported by substantial evidence.

CONCLUSION

For the foregoing reasons the petition for review is DENIED.

DECISION AFFIRMED AND PETITION FOR REVIEW DENIED