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Dustman v. Huerta

United States District Court, Seventh Circuit

October 23, 2013

MICHAEL P HUERTA, Administrator, Federal Aviation Administration, Respondent.


ELAINE E. BUCKLO, District Judge.

In this action-the first of its kind in this district since Congress enacted the Pilot's Bill of Rights ("PBR"), Pub. L. No. 112-153, 126 Stat. 1159 (2012), in August of 2012-petitioner[1] Andrew Dustman seeks judicial review of an emergency order by the Federal Aviation Administration ("FAA") revoking his unrestricted medical certificate. The order became final after it was upheld by the National Transportation Safety Board ("NTSB") following discovery and a full hearing before an administrative law judge.

At the initial status hearing in this case, disputes arose with respect to several threshold issues. First, the parties disagree about both the scope and the standard of district court review of the FAA's decision under the PBR. Second, the parties dispute whether, in seeking review of the agency's decision in this court, petitioner is required to comply with the Federal Rules of Civil Procedure regarding service of a summons. I directed the parties to brief these issues, which brought to light a further dispute: whether I may consider press releases and other public statements by Senator Jim Inhofe, who drafted and co-sponsored the bill that became the PBR, in construing the statute. The parties submitted additional briefs to address this issue, and I resolve their threshold disputes as follows.


According to the petition for review, on January 28, 2013, the FAA Administrator issued an emergency order revoking petitioner's airman medical certificate[2] on the ground that he no longer met the qualification standards set forth in 14 C.F.R. ' 67.107(a)(4)(ii)(A) and (C) because he met the criteria these sections establish for alcohol dependence. Petitioner timely appealed the Administrator's emergency order to the NTSB. The Administrator then filed a complaint against petitioner, which raised the same allegations.[3] Petitioner responded, denying the allegations of the emergency order and the complaint.

Following discovery and disclosure of documents and witnesses, a hearing was held before an NTSB administrative law judge. Both parties presented documentary and testimonial evidence through lay and expert witnesses.[4] At the conclusion of the hearing, the ALJ issued an initial decision reversing the Administrator's emergency order of revocation, concluding that the Administrator had not established that petitioner met the FAA criteria for alcohol dependence.

The Administrator timely appealed the ALJ's initial decision to the full NTSB. Both parties submitted appellate briefs. The NTSB then issued an opinion and order reversing the ALJ's initial decision and affirming the Administrator's emergency order, which then became final. Thereafter, petitioner invoked his right, pursuant to Section 2(d)(1) of the PBR, to have this court review the agency's decision.


The parties' first dispute-which is really two related but distinct disputes, one about the scope and the other about the standard of my review-essentially boils down to the question of whether the Administrative Procedure Act ("APA") applies to petitioner's request for review in this court.

The APA enacted a comprehensive regulatory scheme designed "to bring uniformity to a field full of variation and diversity." Dickinson v. Zurko, 527 U.S. 150, 155 (1999). The statute governs numerous aspects of agency action, including licensing and adjudication, among others, and it also provides for judicial review of administrative proceedings. The Dickinson Court explained that Congress intended the APA to establish "a uniform approach to judicial review of administrative action, " which would apply not only to decisions made under then-current statutory and regulatory regimes, but also to decisions taken pursuant to future legislation, unless the legislation clearly and expressly provided otherwise. Id. The Court concluded that this was Congress's intent based on "the congressional specification in the APA that [n]o subsequent legislation shall be held to supersede or modify the provisions of this Act except to the extent that such legislation shall do so expressly.' § 12, 60 Stat. 244, 5 U.S.C. § 559." Id. Accordingly, the Court held that any "legislative departure from the norm must be clear." Id.

It is undisputed that before Congress enacted the PBR, judicial review of NTSB decisions-which at the time was entrusted exclusively to the United States Courts of Appeals-was governed by the APA. See, e.g., Singleton v. Babbitt, 588 F.3d 1078, 1081 (D.C. Cir. 2009) ("Our review of decisions by the NTSB is governed by the Administrative Procedure Act (APA) and the Federal Aviation Act"); Garvey v. NTSB, 190 F.3d 571, 577 (D.C. Cir. 1999) (explaining that on judicial review, the NTSB's findings of fact are "conclusive if supported by substantial evidence, " and that its decisions must be set aside only if they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, " pursuant to 5 U.S.C. § 706(a)(2)); Johnson v. NTSB, 979 F.2d 618, 620 (7th Cir. 1992) (describing review of NTSB decision as "narrow" and citing "arbitrary or capricious" standard of § 706(a)(2)(A)). Indeed, until 1994, the Federal Aviation Act explicitly required that judicial review of NTSB orders "be conducted in accordance with the provisions of the Administrative Procedure Act (APA), including 5 U.S.C. ' 706(2)(A)." 49 U.S.C. § 1903(d)(1994). Although this language was later repealed, the Garvey court explained that it was simply "omitted as unnecessary because [the APA] applies by its own terms." 190 F.3d at 577 n.4 (citing H.R. Rep No. 103-180, at 18 (1993)). The parties further agree that the PBR did not change the judicial review standards applicable to NTSB appeals filed directly in the Courts of Appeals.

It is likewise beyond dispute that when reviewing NTSB decisions, the Courts of Appeals have done so based on the existing administrative record, as is the norm under the APA. Indeed, 5 U.S.C. § 706 provides that the reviewing "court shall review the whole record or those parts of it cited by a party, " and does not contemplate the submission of additional evidence beyond the existing record on appeal. On review of an administrative decision subject to this provision, the Supreme Court observed in Camp v. Pitts, 441 U.S. 138, 142 (1973), that the "focal point for judicial review" of agency decisions is "the administrative record already in existence, not some new record made initially in the reviewing court." The Court went on to emphasize that "de novo review is appropriate only where there are inadequate factfinding procedures in an adjudicatory proceeding, or where judicial proceedings are brought to enforce certain administrative actions." Id. See also U.S. v. Carlo Bianchi & Co., 373 U.S. 709 at 715 and n. 7 (1963) (observing that the "arbitrary or capricious" and "substantial evidence" standards adopted in the APA "have consistently been associated with a review limited to the administrative record.").

Confining a reviewing court to the administrative record is not only consistent with the express terms of 5 U.S.C. § 706, it also reflects "practical considerations that deserve respect." Cronin v. U.S. Dept. of Agriculture, 919 F.2d 439, 444 (7th Cir. 1990). As the Cronin court observed,

Administrative agencies deal with technical questions, and it is imprudent for the generalist judges of the federal district courts and courts of appeals to consider testimonial and documentary evidence bearing on those questions unless the ...

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