Darst v. Federal Aviation Administration

57 F. App'x 530
CourtCourt of Appeals for the Third Circuit
DecidedFebruary 6, 2003
DocketNo. 02-2446
StatusPublished

This text of 57 F. App'x 530 (Darst v. Federal Aviation Administration) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Darst v. Federal Aviation Administration, 57 F. App'x 530 (3d Cir. 2003).

Opinion

OPINION

AMBRO, Circuit Judge.

Kim Ann Darst (“Darst”) seeks review of an order of the National Transportation Safety Board (“NTSB”) revoking her ATP, Ground Instructor, Flight Engineer and Flight Instructor certificates. We affirm the NTSB.

1. Statutory Scheme

The Federal Aviation Act is a “split-enforcement regime.” Garvey v. Nat’l Transp. Safety Bd., 190 F.3d 571, 576 (D.C.Cir.1999). Under this regime, Congress has given the FAA both rulemaking and enforcement authority. Garvey, 190 F.3d at 576. Congress has given adjudicatory authority to the NTSB. Id. A pilot whose certificate is affected by an FAA [532]*532order may appeal to the NTSB. The appeal is first heard by an ALJ, whose final decision can be appealed to the entire Board. While the Board “is not bound by findings of fact of the [FAA] Administrator,” the Board is “bound by all validly adopted interpretations of laws and regulations ..., unless [it] finds an interpretation is arbitrary, capricious, or otherwise not according to law.” Id.

During our review of the Board’s decision, its findings of fact are conclusive “if supported by substantial evidence.” 49 U.S.C. § 44709(f). Like all agency action, Board decisions must be set aside if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

2. Factual and Procedural Background

This case began when the FAA requested that Darst provide her pilot logbooks in connection with an FAA investigation of an accident involving a gyroplane operated by Darst.1 That request was made in person, on August 1, 2001, by FAA Inspector Bourey. It was renewed in a letter sent on August 7, 2001, requesting a number of records, including “pilot’s logs showing all of [Darst’s] flight time,” in an administrative subpoena sent in late August 2001, and in a letter sent on October 25, 2001.

While Darst sent a number of records to the FAA, including, she claims, a page torn from her diary, the FAA inspectors testified that they did not receive any pilot logbooks. As a result of her failure to comply with this request, the FAA issued an Emergency Order of Suspension of her ATP, or pilot, certificate. After the Order of Suspension had been issued, Darst was observed by FAA inspectors on February 6, 2002 flying a helicopter (and, allegedly, making an obscene gesture at the inspectors). The FAA issued an Order of Revocation of Darst’s ATP, Ground Instructor, Flight Engineer and Flight Instructor certificates as a result of her failure to comply with the Order of Suspension.

Darst claims not to have been aware that her pilot certificate had been suspended. Her address of record with the FAA is that of her parents. Darst’s mother, Della Darst, performs various tasks for Darst’s business, including bookkeeping and picking up and reading Darst’s mail. She testified that she had received, signed for, and read all relevant correspondence. Darst’s business manager testified that they had not told her about the Order of Suspension because “when she receives these bad reports on what she is doing, ... she has stomach problems.”

Darst appealed both orders. A hearing in the consolidated appeal was held on February 21, 2002. At the conclusion of the proceedings, the ALJ issued an oral decision, concluding that Darst had made a “good faith effort” to comply with the FAA’s request to provide her pilot logbooks and modifying the sanction sought by the FAA to a six-month suspension. The ALJ also concluded that Darst had received the Order of Suspension, but modified the sanction sought by the FAA to a six-month suspension of Darst’s pilot certificate because she posed no threat. Both parties appealed.

On March 29, 2002, the NTSB (over a strong dissent) granted the FAA’s appeal and denied Darst’s appeal, affirming both the suspension and the revocation orders and concluding that the offenses warranted revocation of all of her certificates. The NTSB concluded that Darst had “pro[533]*533vided no flight records that satisfied her obligation to document and record recent flight experience and flight review requirements.” While there was “abundant and persuasive evidence” that Darst had not actually given the diary page to the FAA, whether she had done so did not matter because the “brief, cryptic diary pages” did not satisfy the requirements of 14 C.F.R. § 61.51(b). This appeal followed.

3. Discussion

Darst makes three arguments on appeal, two in support of her claim that her appeal was improperly denied by the NTSB, and one in support of her claim that the FAA’s appeal was improperly granted by the NTSB. She claims that her pilot certificate was improperly suspended because (a) the suspension resulted from her failure to comply with a subpoena that asked for information she was not required to maintain, the subpoena therefore was invalid, and her certificate improperly suspended, and (b) she provided all the information that she was required to provide. She argues that her certificates were improperly revoked because she lacked actual knowledge that her pilot certificate had been suspended at the time of the February 6 helicopter flight. Finally, Darst claims that the FAA’s appeal was improperly granted because the revocation of her certificates was not warranted. We reject Darst’s claims and affirm the NTSB’s decision to reject her appeal and grant the FAA’s appeal.

A. Was the Subpoena Valid?

The stated reason given by the FAA for issuing the Order of Suspension was Darst’s failure to comply with requests, made by letters and subpoena, that she provide “pilot logbooks showing all of [her] flight time.” Darst argues first that because she is not required by law to log all of her flight time, but only the flight time required by 14 C.F.R. § 61.51, the subpoena asked for information she was not legally required to provide and was therefore “illegal and unenforceable.” As a result, she contends, the Order of Suspension was legally insufficient. In addition, Darst claims that she did, in fact, comply with the letters and subpoenas by providing the excerpt from her calendar diary, and that the conclusion that she had not, which led to the decision to issue the Order of Suspension, was therefore erroneous.

We uphold actions of the FAA unless they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Here, the Order of Suspension was legally sufficient. To the extent that the subpoena requested more information than was in Darst’s possession, we agree with the NTSB that “the Administrator’s requests were not rendered invalid because they sought more information than respondent keeps or is required to keep; they simply do not have to be complied with to the extent that they were overbroad and could not be fulfilled.”

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57 F. App'x 530, Counsel Stack Legal Research, https://law.counselstack.com/opinion/darst-v-federal-aviation-administration-ca3-2003.