Kratt v. Garvey

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 28, 2003
• Docket: 02-3324
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Kratt v. Garvey No. 02-3324 ELECTRONIC CITATION: 2003 FED App. 0309P (6th Cir.) File Name: 03a0309p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: G. Christopher Kelly, Atlanta, Georgia, for FOR THE SIXTH CIRCUIT Petitioner. Jeffrica Jenkins Lee, UNITED STATES _________________ DEPARTMENT OF JUSTICE, CIVIL DIVISION, APPELLATE SECTION, Washington, D.C., for Respondent. FREDERICK JOHN KRATT, X ON BRIEF: G. Christopher Kelly, Atlanta, Georgia, for Petitioner, - Petitioner. Jeffrica Jenkins Lee, John C. Hoyle, UNITED - STATES DEPARTMENT OF JUSTICE, CIVIL DIVISION, - No. 02-3324 APPELLATE SECTION, Washington, D.C., for Respondent. v. - > _________________ , JANE F. GARVEY , - OPINION Administrator, Federal - _________________ Aviation Administration, - Respondent. - ALGENON L. MARBLEY, District Judge. Frederick John - Kratt (“Kratt” or “Petitioner”) petitions this Court to review N the decision of the National Transportation Safety Board On Appeal from the National Transportation (“NTSB”), affirming the revocation of his pilot’s license. Safety Board. Respondent, the Administrator of the Federal Aviation No. SE 15239. Administration (the “Administrator”), revoked Kratt’s pilot’s license because he pleaded guilty to the charge of possession Argued: June 17, 2003 of marijuana with the intent to distribute and flew an airplane in the commission of that crime. Kratt appealed the Decided and Filed: August 28, 2003 Administrator’s order revoking his pilot’s license to the NTSB, which affirmed the Administrator’s order. Kratt now Before: BOGGS and GILMAN, Circuit Judges; seeks review of the NTSB’s order, contending that the order MARBLEY, District Judge.* was based on insufficient evidence to revoke his license and that he was denied due process of law. This Court has jurisdiction over this appeal from the NTSB pursuant to 49 U.S.C. § 44710(d)(3), which specifically gives this Court authority to review NTSB orders revoking a pilot’s license, and 49 U.S.C. § 46110(a), which generally vests this Court with jurisdiction over petitions for review of an order of the * Administrator of the FAA. For the following reasons, we The Honorable Algenon L. Marbley, United States District Judge for AFFIRM the order of the NTSB. the Southern District of Ohio, sitting by designation.

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I. BACKGROUND abandoned the plane. Later that night, Kratt called an attorney, who assisted him in surrendering to customs A. Factual Background officers. Petitioner lives outside Memphis, Tennessee, where he has Kratt eventually agreed to plead guilty to possession of been an automobile salesman for about twenty years. marijuana with intent to distribute and to testify against Although his primary job is selling cars, he has a passion for Johnson and the other men involved with the drug operation flying airplanes. To fund his interest in flying, Kratt has that Kratt had been facilitating. Kratt was unaware that he frequently chartered or leased airplanes and flown people for could lose his pilot’s license by pleading guilty and feared hire to both business and pleasure destinations. In April that if he did not plead guilty, he would face greater harm to 1996, Kratt began to fly business trips for Andre Johnson, one his life and career. of his automobile customers. Only later did Kratt learn that Andre Johnson was transporting marijuana from Texas to On August 25, 1996, Kratt entered his plea of guilty before Memphis. Kratt first flew Johnson and his brother to the United States District Court for the Northern District of McAllen, Texas, a town near the Mexican border. Kratt Mississippi to the charge of possessing with intent to believed that Johnson owned a cleaning business of some distribute approximately 200 pounds of marijuana. At Kratt’s kind and did not think to question his reasons for traveling to plea hearing, the United States presented the following factual Texas. basis for Kratt’s plea: Later, Kratt flew Johnson’s brother to Harlingen, Texas, The government would show that on or about May the and flew a third trip with Johnson’s brother and cousin to 15th, 1996, Frederick John Kratt piloted a plane, to wit: Brownsville, Texas. On the third trip, the brother took a bus A Cessna 182 Skylane aircraft, from south Texas to the home and, during the flight home with the cousin, Kratt Olive Branch, Mississippi airport, briefly stopping before thought he smelled marijuana in his plane. Kratt asked the continuing onto the Holly Springs Airport in Marshall cousin about the odor, who informed him that they had been County, Mississippi. Upon arriving at the Holly Springs transporting marijuana on all three trips. Kratt became angry Airport, the defendant and a passenger abandoned the and landed his plan in Texarkana, where he put Johnson’s airplane and attempted to escape. cousin and his bags out of the plane. Kratt did not receive payment for the third trip. The government would show that the defendant’s aircraft was being surveilled from south Texas to the Although Kratt planned never to fly again for Johnson, he Holly Springs Airport by a chase plane operated by the ultimately gave in when Johnson repeatedly telephoned him U.S. Custom[s] Service agents utilizing a forward and threatened to injure Kratt’s children. During the fourth looking infrared tracking system known as Fleer. When trip to Texas, Johnson’s cousin allegedly kept Kratt at the defendant’s plane initially arrived at the Olive gunpoint during the entire trip. On the trip home, Kratt first Branch, Mississippi airport, U.S. Custom[s] agents on landed his plane at an airport in Mississippi where customs the ground attempted to block the runway, but were officials were waiting for him. Johnson’s cousin ordered unsuccessful, and the defendant’s plane took off headed Kratt to take off again immediately after they landed. Kratt for the Holly Springs Airport where the plane [was] flew the plane to another airport nearby, where they abandoned after landing. No. 02-3324 Kratt v. Garvey 5 6 Kratt v. Garvey No. 02-3324

The government would show through testimony and certificate because he had been convicted of possession of documentary evidence that approximately 200 pounds of marijuana with intent to distribute and had used an aircraft marijuana was seized from the area immediately and served as an airman in connection with the offense. The surrounding the airplane along with the flight log and FAA issued its Order of Revocation on April 29, 1998, but flight bag and other documentation linking the defendant only after Kratt had a telephone conference with the FAA in to the abandoned airplane. February 1998. Kratt chose to appeal the FAA’s decision to the NTSB, and the FAA filed its Complaint, consisting of a The government would further show that the copy of its Order of Revocation, before the NTSB on May 18, surveilling agents witnessed the removal of the marijuana 1998. The FAA’s Complaint stated that Kratt’s pilot’s license from the airplane by one of its occupants prior to being was revoked pursuant to 14 C.F.R. § 61.15(a)(2), 49 U.S.C. abandoned. § 44709(b), and 49 U.S.C. § 44710(b)(1). The government would show further that shortly On August 17, 1999, an Administrative Law Judge (“ALJ”) thereafter the defendant contacted the U.S. Custom[s] granted the Administrator partial summary judgment Service and surrender[ed] to authorities. The affirming her revocation of Kratt’s pilot’s license pursuant to government would show that the defendant thereafter 14 C.F.R. § 61.15(a)(2). That provision permits the fully cooperated with the U.S. Customs Service revocation of a pilot’s license if the pilot is convicted of admitting his involvement and the involvement of others certain drug-related offenses. See 14 C.F.R. § 61.15(a)(2) in the possession with intent to distribute marijuana (2003). But the ALJ denied the Administrator summary recovered from the defendant’s plane. judgment regarding revocation of Kratt’s license pursuant to 49 U.S.C. § 44710(b)(1). The ALJ determined that summary After the United States presented this factual basis for its judgment was not appropriate because revocation pursuant to charges against Kratt, the court asked him, “Is the factual § 44710(b)(1) requires the Administrator to establish that basis essentially correct, Mr. Kratt?” Kratt responded, “Yes, Kratt was not only convicted of a drug-related offense, but sir.” also that an aircraft was used in commission of the offense and that Kratt served as an airman or was on the aircraft in B. Procedural History commission of the offense. See 49 U.S.C. § 44710(b)(1)(A), (B) (West 2003). The Federal Aviation Administration (“FAA”) sent Kratt a letter on June 23, 1997, informing him that he was under On November 30, 1999, the ALJ held a hearing on the investigation because he had pled guilty to possession of record to consider evidence regarding the revocation of marijuana with intent to distribute. Kratt accepted the Kratt’s pilot’s license pursuant to § 44710(b)(1). The ALJ opportunity to respond to the FAA’s letter, and wrote a ultimately found that the transcript of Kratt’s plea hearing handwritten response in which he explained the circumstances conclusively established that the requirements of surrounding his conviction. Although he argued that he was § 44710(b)(1) were satisfied. Nevertheless, the ALJ heard not a willing participant in the crime, he noted that he “felt testimony from Kratt concerning his conviction. Kratt responsible for at least some of the crime.” The FAA sent appealed the decision of the ALJ to the full NTSB, which Kratt a Notice of Proposed Certificate Action on August 27, affirmed the ALJ’s ruling. Finally, the NTSB denied Kratt’s 1997, notifying Kratt that it intended to revoke his pilot’s request for reconsideration. No. 02-3324 Kratt v. Garvey 7 8 Kratt v. Garvey No. 02-3324

Kratt now petitions this Court for review of the NTSB’s NTSB de novo.”); Bennett v. NTSB, 66 F.3d 1130, 1136 (10th decision. Cir. 1995) (“[W]e review [the NTSB’s] interpretation of constitutional or statutory provisions de novo.”); Essery v. II. STANDARD OF REVIEW NTSB, 857 F.2d 1286, 1288 (9th Cir. 1988) (noting that when reviewing NTSB decisions, “[p]urely legal questions are We review the NTSB’s factual findings according to the reviewed de novo”). “substantial evidence” standard of review. “Findings of fact of the Board are conclusive if supported by substantial III. DISCUSSION evidence.” 49 U.S.C.A. § 44710(d)(3) (West 2003) (providing for judicial review specifically for revocation of a A. Evidence to Support Revocation pilot’s license); see also § 46110(c) (providing generally for judicial review of decisions of the Administrator). Kratt argues that the Administrator relied on insufficient Substantial evidence “means such relevant evidence as a evidence when she revoked his pilot’s license pursuant to 49 reasonable mind might accept as adequate to support a U.S.C. § 44710(b)(1). He maintains that his criminal conclusion.” Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. conviction for possession of marijuana with intent to 197, 229 (1938); Blackman v. Busey, 938 F.2d 659, 661 (6th distribute was insufficient evidence to satisfy the Cir. 1991) (applying substantial evidence standard for requirements of § 44710(b)(1) for revocation of his pilot’s reviewing revocation of pilot’s license). The Administrative license. The Administrator contends that Kratt’s guilty plea Procedure Act (“APA”) also requires the substantial evidence provided sufficient evidence for revocation pursuant to standard of review in this case. 5 U.S.C.A. § 706(2)(E) (West § 44710(b)(1) and that the Administrator and the NTSB in 2003). According to the APA, this Court has authority to fact relied on more than just Kratt’s conviction. “hold unlawful and set aside agency action, findings, and conclusions found to be . . . (E) unsupported by substantial The Administrator is required to revoke an individual’s evidence in a case subject to sections 556 and 557 of this title “airman certificate” if that individual or otherwise reviewed on the record of an agency hearing provided by statute.” Id. The decision of the NTSB under is convicted, under a law of the United States or a State review in this case was made “after providing notice and an related to a controlled substance (except a law related to opportunity for a hearing on the record.” 49 U.S.C.A. simple possession of a controlled substance), of an § 44710(d)(1). Therefore, the substantial evidence standard offense punishable by death or imprisonment for more of 5 U.S.C.A. § 706(2)(E) is applicable in this case. See than one year if the Administrator finds that— Camp v. Pitts, 411 U.S. 138, 141 (1973) (noting that the “substantial evidence” test is used “when reviewing findings (A) an aircraft was used to commit, or facilitate the made on a hearing record”). commission of, the offense; and

We review questions of law on appeal from the NTSB de (B) the individual served as an airman, or was on the novo. Watkins v. NTSB, 178 F.3d 959, 961 (8th Cir. 1999) aircraft, in connection with committing, or facilitating the (“We review questions of law de novo.”); Zukas v. Hinson, commission of, the offense. 124 F.3d 1407, 1409 (11th Cir. 1997) (“We review the 49 U.S.C.A. § 44710(b)(1). The term “airman” is defined to interpretation of constitutional and statutory provisions by the include a “pilot, mechanic, or member of the crew, who No. 02-3324 Kratt v. Garvey 9 10 Kratt v. Garvey No. 02-3324

navigates aircraft when under way.” 49 U.S.C.A. Kratt’s plea hearing] was clear and unequivocal and does not § 40102(a)(8)(A). Therefore, this Court can overturn the reasonably permit the construction urged by [Kratt] now.” NTSB’s decision only if that decision was based on less than substantial evidence that Kratt was convicted of the specified Therefore, we find that the ALJ relied on sufficient type of crime, that an aircraft was used in the commission of evidence to uphold the Administrator’s determination that the offense, and that Kratt either “served as an airman” or Kratt served as an airman in commission of the offense to “was on the aircraft” in connection with committing the which he pled guilty. Contrary to Kratt’s contention, the ALJ offense. relied not just on Kratt’s conviction, but also considered the evidence in the transcript from Kratt’s guilty plea hearing. Kratt does not dispute that he was convicted of a drug- related crime punishable by death or imprisonment for more Furthermore, although the ALJ determined that the than one year. He was convicted pursuant to 21 U.S.C. § 841, testimony from Kratt’s plea hearing was sufficient evidence and sentenced to two years in prison. Kratt argues that the to support revocation of Kratt’s pilot’s license, the ALJ NTSB erred by relying solely on his conviction for evidence nevertheless heard testimony from Kratt regarding his that an airplane was used in commission of his offense and conviction. Kratt admits that he piloted the aircraft in which that he served as an airman or was on the aircraft in the marijuana was transported, and admits in his answer filed commission of the offense. In fact, the NTSB relied not only before the NTSB that he served as the pilot in commission of on Kratt’s conviction, but also on the transcript of Kratt’s plea the offense, but he denies that he was a willing participant. hearing and his testimony before the ALJ. Kratt also argues that the term “served” as an airman When the Administrator moved for summary judgment “connotes that the individual knowingly and willingly used an before the NTSB, the ALJ decided that Kratt’s conviction airplane in the commission of a crime.” Pet’r Br. at 8. alone was insufficient evidence to prove that an aircraft was Section 44710(b)(1), however, contains no such requirement. used in commission of the offense and that Kratt served as an Rather, the statute states that the Administrator must find that airman or was on the aircraft in connection with the offense. the “individual served as an airman, or was on the aircraft, in Later, when presented with the transcript from Kratt’s plea connection with committing, or facilitating the commission hearing, the ALJ decided that the transcript provided of, the offense.” 49 U.S.C.A. § 44710(b)(1)(B). There is no sufficient evidence that Kratt served as an airman in requirement, therefore, that one knowingly and willingly commission of the offense to which he pled guilty. serve as an airman prior to revocation of the individual’s pilot’s license. Nor is there a requirement that one serve as an The facts that the United States presented established that airman at all. Rather, one need only be on the aircraft. Kratt had served as the pilot of a plane carrying 200 pounds Despite what Kratt claims about his willingness to pilot his of marijuana. When the judge at the plea hearing asked Kratt airplane, he does not deny that he was on the aircraft during whether the “factual basis” presented by the government was commission of the offense to which he pled guilty. “essentially correct,” Kratt responded, “Yes, sir.” The ALJ rejected Kratt’s argument that he only meant that the facts To the extent that the statute requires that an individual act presented by the United States were the facts that the knowingly or willingly prior to having his pilot’s license government intended to prove, not that those were the actual revoked, that requirement is embedded in the requirement that facts. The ALJ found that the “question asked by the court [at the individual be convicted of a drug-related offense. Indeed, No. 02-3324 Kratt v. Garvey 11 12 Kratt v. Garvey No. 02-3324

the crime to which Kratt pled guilty includes the requirement For the foregoing reasons, we find that the NTSB’s that he acted “knowingly or intentionally.” 21 U.S.C.A. decision affirming the Administrator’s order revoking Kratt’s § 841(a) (West 2003). During Kratt’s guilty plea hearing, the pilot’s license is supported by substantial evidence. judge informed Kratt of these elements of the crime, and Kratt chose to plead guilty. B. Due Process

Although Kratt argues that he flew Andre Johnson and his 1. Facial Challenge to 49 U.S.C. § 44710 companions only under duress, the ALJ noted that the Administrator cannot question the validity of Kratt’s guilty Kratt argues that he was deprived of his constitutional right plea when deciding whether to revoke his pilot’s license. The to due process when the Administrator revoked his pilot’s revocation statute expressly states that the “Administrator has license based on his conviction for possession of marijuana no authority . . . to review whether an airman violated a law with intent to distribute.1 At oral argument, counsel for Kratt of the United States or a State related to a controlled argued that 49 U.S.C. § 44710(b) is unconstitutional on its substance.” 49 U.S.C.A. § 44710(b)(3); see also Rawlins v. face because it provides for automatic revocation of a pilot’s NTSB, 837 F.2d 1327, 1329 (5th Cir. 1988) (“Congress license when a pilot is convicted of certain drug-related obviously determined that a harsh penalty was the only crimes. advisable response to drug trafficking violations by FAA- certified pilots.”). Additionally, NTSB precedent establishes In determining what procedural due process protections are that it may not entertain a collateral attack on Kratt’s required, we must consider the following three factors: conviction. See Hinson v. Manning, NTSB Order No. EA- 4363, Docket No. SE-13714, 1995 NTSB LEXIS 48, *3 (May First, the private interest that will be affected by the 10, 1995); Hinson v. Gilliland, NTSB Order No. EA-4149, official action; second, the risk of an erroneous Docket No. SE-12706, 1994 NTSB LEXIS 113, *3 n.7 (Apr. deprivation of such interest through the procedures used, 14, 1994). Kratt’s belated defense of duress is one that he and the probable value, if any, of additional or substitute could have raised in his criminal proceeding in lieu of a guilty procedural safeguards; and finally, the Government’s plea, but it is too late to do so now. interest, including the function involved and the fiscal and administrative burdens that the additional or Finally, Kratt argues that the Administrator’s interpretation substitute procedural requirements would entail. of the revocation statute is too broad because it would require revocation of a commercial pilot’s license if the pilot flew a Matthews v. Eldridge, 424 U.S. 319, 335 (1976). With plane on which a passenger was carrying illegal drugs. This respect to the first factor, the private interest at stake under 49 is not true, however, because the statute requires that the pilot U.S.C. § 44710(b) is a pilot’s license. A pilot’s license is a be convicted of a drug-related offense before revocation of the pilot’s license. In Kratt’s hypothetical, there is no reason that a commercial pilot would be convicted of a drug-related 1 The NT SB did not co nsider Kratt’s due proce ss argum ent. Rather, crime if unbeknownst to the pilot, a passenger carries illegal in its Order Denying Reconsideration, the NTSB noted that “[t]o the drugs onto the plane. In this case, however, Kratt has pled extent that [Kratt] has articulated for the first time in his petition a guilty to possession of marijuana with intent to distribute. constitutional challenge to the Adm inistrator’s authority to use a criminal conviction to support a certificate revocation, it is answer enoug h to no te that the [N TS B] can not entertain such arguments.” No. 02-3324 Kratt v. Garvey 13 14 Kratt v. Garvey No. 02-3324

sufficiently important interest that a licensee is entitled to welfare benefits are revoked because such benefits may be some due process protections when it is revoked. See Bennett essential to a person’s subsistence. 397 U.S. at 264. On the v. NTSB, 66 F.3d 1130, 1137 (10th Cir. 1995) (noting that other hand, a post-revocation hearing is sufficient for Fifth Amendment due process protections apply to revocation revocation of social security disability benefits. Matthews, of pilot’s license); see also Dixon v. Love, 431 U.S. 105, 112 424 U.S. at 340–41. A post-revocation hearing is also (1977) (noting that due process protections are required for sufficient when a driver’s license is revoked based on deprivation of driver’s license); Bell v. Burson, 402 U.S. 535, numerous traffic violations or accidents, especially where 539 (1971) (holding that due process is required for hardship or commercial necessity would allow the licensee to revocation of driver’s license). Although revocation of a obtain a restricted license between the time of revocation and pilot’s license may significantly impair the ability of a the hearing. Dixon, 431 U.S. at 113. professional pilot to earn a living, such a license is generally not essential to a person’s survival. See Dixon, 431 U.S. at In this case, however, we need not decide whether a pre- 113 (finding that driver’s license is not “so vital and essential revocation hearing is required when a pilot’s license is as are social insurance payments on which the recipient may revoked because the statute in fact provides for a pre- depend for his very subsistence”) (citing Goldberg v. Kelly, revocation hearing.2 When a pilot appeals the 397 U.S. 254, 264 (1970)). Administrator’s revocation of a license, the revocation is stayed until the NTSB decides the appeal, except in The second Matthews factor requires us to consider the risk extraordinary circumstances where the Administrator advises of erroneous deprivation under the procedures provided in 49 the NTSB that the safety of air transportation requires an U.S.C. § 44710 and the potential value of additional immediate revocation. 49 U.S.C.A. § 44710(d)(2). In cases procedural safeguards. See Matthews, 424 U.S. at 335. The where the Administrator requires immediate revocation, the statute in this case permits a licensee to appeal the decision of NTSB must decide the appeal within sixty days. Id. This the Administrator to the NTSB, which “shall affirm or reverse provision permitting the Administrator to require immediate the order after providing notice and an opportunity for a revocation for safety reasons does not deprive a licensee of hearing on the record.” § 44710(d)(1). Notice and an due process because an opportunity for a hearing is evidentiary hearing, as provided under the statute, are the nevertheless provided and the public’s safety justifies touchstones of procedural due process. See Matthews, 424 revocation before the hearing. See Dixon, 431 U.S. at 114 U.S. at 333 (“The fundamental requirement of due process is (finding that prompt removal of unsafe drivers from the road the opportunity to be heard ‘at a meaningful time and in a justified use of post-revocation hearings for driver’s license meaningful manner.’”) (quoting Armstrong v. Manzo, 380 revocations based on multiple traffic violations or accidents). U.S. 545, 552 (1965)); Goldberg v. Kelly, 397 U.S. 254, 267–68 (1970) (noting that notice and an evidentiary hearing In this case, Kratt was afforded a pre-revocation hearing. are the general procedures that due process affords). He argues, however, that § 44710 on its faces deprives

In some cases, the question before courts has been whether due process mandates a pre-revocation hearing or whether a 2 hearing after a license or other entitlement has been revoked Kra tt even admits in his brief that “[t]he existing system in the is sufficient. In Goldberg, for example, the Supreme Court NTSB is exceptional in its attempt to pro vide notice and hearing as a matter of course prior to revocation, unlike many system s that have only held that a person is entitled to an evidentiary hearing before post-revoc ation hearings.” No. 02-3324 Kratt v. Garvey 15 16 Kratt v. Garvey No. 02-3324

licensees of procedural due process because it requires an 2. Application of 49 U.S.C. § 44710 in Kratt’s Case automatic revocation of a pilot’s license in the sense that the Administrator and the NTSB may not review whether a Kratt also argues in his brief that the application of 49 licensee in fact committed the drug-related crime for which he U.S.C. § 44710(b) in this case denied him of due process. was convicted. 49 U.S.C.A. § 44710(b)(3). The statute does Kratt essentially makes two arguments. First, he argues that require a finding that the licensee was convicted of a drug- use of his conviction as grounds for revocation denied him of related felony, that an aircraft was used in commission of the due process because he had no notice when he pled guilty that offense, and that the licensee served as an airman or was on his pilot’s license would be revoked. Second, he argues that the aircraft in connection with committing the offense. 49 he had no opportunity for a hearing on the issue of whether he U.S.C.A. § 44710(b)(1). Due process, however, does not served as an airman in commission of the offense to which he require that a licensee be permitted an opportunity to probe pled guilty because the ALJ relied solely on his conviction to the merits of his criminal conviction. Rather, the licensee uphold the Administrator’s revocation of his pilot’s license. must address the merits of his conviction during the criminal The Administrator argues that due process did not require proceedings concerning the criminal charges against him. See Kratt to be informed of all possible consequences of his guilty Dixon, 431 U.S. at 113 (finding that automatic revocation of plea and that he was afforded due process during his driver’s license based on convictions for numerous traffic revocation proceedings before the Administrator and the violations did not risk erroneous deprivation of license); Bell, NTSB. 402 U.S. at 540 (finding that adjudication of liability for a traffic accident was not appropriate during an administrative Kratt contends that he was deprived of due process when he hearing concerning the potential revocation of a driver’s pled guilty to possession of marijuana with intent to distribute license). Therefore, the fact that the statute prohibits the because he was not given notice that he could lose his pilot’s Administrator from reviewing the merits of a criminal license for pleading guilty. The Administrator argues that conviction does not risk erroneous deprivation of a pilot’s there is no constitutional requirement that a criminal license. defendant be informed of all possible consequences of a guilty plea. The court accepting a criminal defendant’s guilty The third Matthews factor requires us to consider the plea “is under no constitutional obligation to inform the government’s regulatory interest and the fiscal and defendant of all the possible collateral consequences of the administrative burdens that additional procedural safeguards plea.” King v. Dutton, 17 F.3d 151, 153 (6th Cir. 1994). “A would require. See Matthews, 424 U.S. at 335. We need not collateral consequence is one that ‘remains beyond the control give this factor much consideration because no additional and responsibility of the district court in which that procedures are required to afford due process under § 44710. conviction was entered.’” El-Nobani v. United States, 287 The statute already provides for notice and an evidentiary F.3d 417, 421 (6th Cir. 2002) (deciding that “deportation is hearing on the record before revocation of a pilot’s license. collateral to conviction”) (quoting United States v. Gonzalez, 202 F.3d 20, 27 (1st Cir. 2000)). Just like deportation in El- Therefore, we find that 49 U.S.C. § 44710 provides Nobani, revocation of Kratt’s pilot’s license is a matter adequate procedural safeguards when a pilot’s license is beyond the control and responsibility of the district court that revoked. By providing notice and an opportunity for a pre- accepted Kratt’s guilty plea. Therefore, Kratt’s constitutional revocation evidentiary hearing on the record, the statute rights were not violated when the district court failed to notify provides all that due process requires. No. 02-3324 Kratt v. Garvey 17 18 Kratt v. Garvey No. 02-3324

him that his pilot’s license would be revoked if he pled guilty FAA’s motion for summary judgment was granted in part and to possession of marijuana with intent to distribute. denied in part, Kratt received a hearing on the record before an ALJ in November 1999. In any event, the real issue before this Court is not whether Kratt received due process during his criminal proceedings, Therefore, we conclude that Kratt received all the process but rather, whether he was afforded due process in he was due when the Administrator revoked his pilot’s license proceedings related to the revocation of his pilot’s license. and the NTSB affirmed the Administrator’s order. The Administrator is not permitted to review whether Kratt in fact committed a drug-related crime, 49 U.S.C.A. IV. CONCLUSION § 44710(b)(3); rather, the Administrator need determine only whether Kratt was convicted of a drug-related crime, 49 For the foregoing reasons, we AFFIRM the order of the U.S.C.A. § 44710(b)(1). Kratt does not deny that he was NTSB affirming the Administrator’s revocation of Kratt’s convicted of possession of marijuana with intent to distribute. pilot’s license. Section 44710(b)(1) requires only that Kratt have been convicted of such a crime before his pilot’s license is revoked. The statute does not require, nor does it permit, the Administrator to probe whether Kratt in fact committed the crime. Therefore, there is no risk of erroneous deprivation of Kratt’s license if the Administrator fails to consider evidence mitigating Kratt’s conviction. Although Kratt may not like the result of his pleading guilty to a crime he claims he did not commit, whether he in fact committed the crime does not bear on whether his pilot’s license was erroneously revoked. Although Kratt contends that he had no opportunity for a hearing on the issue of whether he served as an airman or was on the aircraft in connection with the offense to which he pled guilty, Kratt in fact did receive numerous opportunities to present evidence regarding his participation in the crime. Kratt first received a letter from the FAA notifying him that he was under investigation in June 1997. He was given an opportunity to provide the FAA with information at that time, and he sent the FAA a seven-page handwritten letter. The FAA next sent Kratt a Notice of Proposed Certificate Action in August 1997, notifying Kratt that the FAA planned to revoke his pilot’s license. Kratt was then afforded a telephone conference with the FAA in February 1998 before the FAA issued its Order of Revocation in April 1998. Kratt then appealed the FAA’s order to the NTSB, and after the