FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MELISSA ANDRZEJEWSKI,  No. 06-75730

Petitioner, FAA No.

v. EA-5263 

FEDERAL AVIATION ADMINISTRATION, ORDER AND

Respondent. AMENDED

OPINION 

On Petition for Review of an Order of the

Federal Aviation Administration

Submitted September 12, 2008*

San Francisco, California

Filed December 3, 2008

Amended April 10, 2009

Before: Diarmuid F. O’Scannlain, Ronald M. Gould and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea

*The panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a) (2). 

4203
COUNSEL

Kathleen A. Yodice, Law Offices of Yodice Associates,

Washington, D.C., for the petitioner. 

4204 ANDRZEJEWSKI v. FAA
James A. Barry, Senior Attorney, Office of the Chief Counsel,

Federal Aviation Administration, Washington, D.C., for the

Respondent.

ORDER

The opinion filed December 3, 2008, slip op. at 15885, is

hereby amended as follows:

slip op. at 15890, 

line 32 Replace <The ALJ simply gave more

weight to Andrzejewski’s witnesses

than to those of the FAA because of

Andrzejewski’s witnesses’ greater

experience and familiarity with the

flight characteristics of an Edge aircraft. This is precisely what triers-offact should do when confronted with

expert witnesses whose testimony conflicts on such basic issues as whether

the pilot operated the particular plane

in an “aerobatic flight” or in a “careless or reckless” manner. After all,

what may look like derring-do to a

Sunday driver may be a routine cut to

a NASCAR driver. The weight of evidence, measured by the witness’

knowledge, experience, and other qualifications, is every bit as much a component of “credibility” as whether the

witness has contradicted himself or

given the trier-of-fact other reasons to

find him not credible.> with <The ALJ

simply gave more weight to the

account of Andrzejewski’s flight as set

forth by one side’s witnesses rather

ANDRZEJEWSKI v. FAA 4205
than the other. This is precisely what

triers-of-fact should and must do when

confronted with testimony that conflicts on such basic issues as flight path

and altitude. See Dutton, 7 N.T.S.B. at

521-22; see also Gould, No. EA-5085,

2004 WL 595290 (N.T.S.B. Mar. 18,

2004); Oliveira, No. EA-4995, 2002

WL 31094174 (N.T.S.B. Sept. 17,

2002).>

With this amendment, the panel votes unanimously to deny

the petition for rehearing. Fed. R. App. P. 40. No further petitions will be entertained.

OPINION

BEA, Circuit Judge: 

Melissa Andrzejewski, a 22-year-old pilot, petitions for

review of an order by the National Transportation Safety

Board (“NTSB”) reversing the decision of an Administrative

Law Judge (“ALJ”). After a hearing, the ALJ had found in

Andrzejewski’s favor and had reversed a Federal Aviation

Administration (“FAA”) Emergency Order of Revocation

(“Revocation Order”), handed down without a hearing, which

revoked Andrzejewski’s commercial pilot’s license on the

ground that Andrzejewski performed aerobatic maneuvers too

close to the ground—indeed during takeoff—in violation of

14 C.F.R. § 91.303(e).1

We have jurisdiction pursuant to 49 U.S.C. § 46110 and 5

1

14 C.F.R. § 91.303(e) provides that “[n]o person may operate an aircraft in an aerobatic flight . . . [b]elow an altitude of 1,500 feet above the

surface.” 

4206 ANDRZEJEWSKI v. FAA
U.S.C. § 706. We grant Andrzejewski’s petition and remand

to the NTSB.

Background

Andrzejewski started flying in 2002 when she was 18 years

old. She has logged more than 1500 hours of flight time, most

during aerobatic flights in air shows and competitions. 

On May 22, 2006, Andrzejewski showed her new highperformance, single-seat Zivco Edge 540 aircraft to her family at the Butler County Airport in Butler, Pennsylvania.

Andrew Pierce, an aviation safety inspector for the Allegheny

Flight Standards Office, and Christopher Hayden, the chief

pilot for AirQuest Aviation, were at the Butler County Airport

that day and witnessed Andrzejewski’s flight. Neither Pierce

nor Hayden had experience with Edge aircraft. 

Both Pierce and Hayden observed Andrzejewski’s plane

departing the airport at a steep angle. They saw the plane do

a “wing wag.”

2

 Then, the plane banked steeply before making

a fast descent over the runway. After another wing wag, the

plane climbed at a very high pitch before departing. Based

solely on statements Pierce and Hayden submitted to the

FAA, but without any explanation from Andrzejewski, the

FAA Administrator concluded Andrzejewski had performed

aerobatic maneuvers during takeoff in violation of 14 C.F.R.

§ 91.303(e). The FAA Administrator issued an Emergency

Order of Revocation of Andrzejewski’s commercial pilot’s

license on September 28, 2006. 

Andrzejewski timely appealed the Revocation Order to the

NTSB. At a hearing before an ALJ, the FAA presented the

testimony of Hayden and Pierce. It also presented expert testi2A wing wag is a maneuver in which a pilot tilts a wing of the plane

down on one side, and then on the other side, in quick succession. 

ANDRZEJEWSKI v. FAA 4207
mony concluding that Andrzejewski’s maneuvers were contrary to the normal operation of the Edge aircraft. 

Andrzejewski presented ten witnesses, including herself.

Andrzejewski contended that nothing about her flight was

aerobatic. After takeoff, she executed a “clearing turn,” a

quick right turn followed by a left turn, which was the normal

method for the pilot of an Edge aircraft to see obstacles

directly in front of the plane during takeoff. She explained

that, due to the steep pitch at which the Edge takes off, the

area directly in front of the nose of the plane is difficult to see.

Andrzejewski planned to touch down on the runway before

taking off again, but she abandoned the maneuver due to a

tailwind. 

Andrzejewski’s eyewitnesses testified that they saw nothing abnormal about her flight. Her three expert witnesses testified that Andrzejewski’s flight was within the normal

operating procedures for the Edge aircraft, which procedures

include steep takeoffs, high speeds, and clearing turns. Robert

Holland, an aerobatic pilot and flight instructor, specifically

noted that a witness unfamiliar with the Edge might think that

Andrzejewski’s flight was abnormal, while in fact, for an

Edge, the flight was actually “very normal.” 

The ALJ concluded Andrzejewski did not violate FAA regulations during her flight. In his oral decision, the ALJ noted

Andrzejewski’s witnesses testified that there was nothing

aerobatic about the flight. In considering the FAA’s witnesses, the ALJ concluded, “I’m not saying that the [FAA’s]

witnesses didn’t see what they say, but perhaps they misunderstood what they saw.” 

The FAA timely appealed the ALJ’s decision to the NTSB.

In a written order, the NTSB reversed the ALJ. The NTSB

concluded that the ALJ had not made credibility determinations to which the NTSB owed deference. Instead, the NTSB

conducted a de novo review of the evidence. The NTSB found

4208 ANDRZEJEWSKI v. FAA
the FAA’s witnesses more credible than Andrzejewski’s and

held Andrzejewski violated 14 C.F.R. § 91.303(e) by flying

aerobatically and 14 C.F.R. § 91.13(a)3 by flying in a careless

or reckless manner. Accordingly, the NTSB reversed the

ALJ’s decision and reinstated the Revocation Order. 

Andrzejewski timely filed a petition for review with this

court.

Standard of Review

Our review of a decision by the NTSB is governed by the

Administrative Procedure Act, 5 U.S.C. § 706(2)(A). Janka v.

Dep’t of Transp., 925 F.2d 1147, 1149 (9th Cir. 1991).

Accordingly, we will set aside the NTSB’s decision if we find

it to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). An

agency’s decision is arbitrary and capricious if the agency

fails to follow its own precedent or fails to give a sufficient

explanation for failing to do so. See Atchison, Topeka & Santa

Fe Ry. Co. v. Wichita Bd. of Trade, 412 U.S. 800, 807-08

(1973). 

Analysis

[1] Where an ALJ chooses to credit one set of witnesses’

version of events over another, he has made an implicit credibility determination to which the NTSB must defer “in the

absence of any arbitrariness, capriciousness or other compelling reasons.” Dutton, 7 N.T.S.B. 521, 523 (1990). The NTSB

must leave undisturbed an ALJ’s credibility finding “unless

there is a compelling reason or the finding was clearly erroneous.” Chirino v. NTSB, 849 F.2d 1525, 1529-30 (D.C. Cir.

1988). 

3

14 C.F.R. § 91.13(a) provides that “[n]o person may operate an aircraft

in a careless or reckless manner so as to endanger the life or property of

another.” 

ANDRZEJEWSKI v. FAA 4209
[2] Here, the ALJ made an implicit credibility finding when

he determined that Andrzejewski’s witnesses gave a more

accurate version of events than the version given by the

FAA’s witnesses. While the ALJ admitted he was not denying

the FAA’s witnesses saw what they said they saw, the ALJ

noted the FAA’s witnesses did not have experience with the

Edge aircraft and its flight characteristics—compared with

Andrzejewski’s witnesses—and they may have misunderstood the flight maneuvers they witnessed. 

[3] The ALJ simply gave more weight to the account of

Andrzejewski’s flight as set forth by one side’s witnesses

rather than the other. This is precisely what triers-of-fact

should and must do when confronted with testimony that conflicts on such basic issues as flight path and altitude. See Dutton, 7 N.T.S.B. at 521-22; see also Gould, No. EA-5085, 2004

WL 595290 (N.T.S.B. Mar. 18, 2004); Oliveira, No. EA4995, 2002 WL 31094174 (N.T.S.B. Sept. 17, 2002). Therefore, in this case, the NTSB erroneously concluded the ALJ

did not make a credibility determination to which the NTSB

was required to defer. 

[4] The NTSB’s failure to give the ALJ’s implicit credibility determination the requisite level of deference was contrary

to NTSB precedent and, therefore, arbitrary and capricious.4

See Atchison, 412 U.S. at 807-08. Because the NTSB incor4There is some language in the NTSB’s opinion that could be construed

as an “explanation” for failing to adhere to its own precedent. See Atchison, 412 U.S. at 807-08. Such “explanations” are themselves in conflict

with NTSB precedent. First, the NTSB’s assertion that the ALJ “abandoned any detailed assessment of the evidence in the case as it relates to

his findings” does not justify de novo review. Andrzejewski, No. EA-5263,

2006 WL 3568702, at *4 (N.T.S.B. Dec. 4, 2006). An ALJ’s “credibility

findings as to the witnesses are implicit” even where detailed assessment

is lacking. Air E. Mgmt., Ltd., No. EA-5089, 2004 WL 999217, at *2

(N.T.S.B. May 6, 2004). Likewise, the fact the ALJ found some of the

FAA’s witnesses’ testimony helpful does not mean he must credit their

testimony completely. Andrzejewski, 2006 WL 3568702, at *5; see Dutton, 7 N.T.S.B. at 522-23 (stating that “a credibility determination does

4210 ANDRZEJEWSKI v. FAA
rectly concluded the ALJ’s decision was not based on an

implicit credibility determination, however, the NTSB has not

yet addressed whether there is a “compelling reason” to

reverse the ALJ’s credibility finding or whether the finding

was “clearly erroneous.” See Chirino, 849 F.2d at 1529-30.

Thus, we remand to the NTSB to make these determinations

in the first instance. See INS v. Orlando Ventura, 537 U.S. 12,

16 (2002) (holding that where an agency has not yet considered an issue, the “ ‘proper course’ ” is to remand the matter

to allow the agency to consider the issue in the first instance)

(quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 726, 744

(1985)).

[5] Accordingly, we grant Andrzejewski’s petition and

remand to the NTSB for reconsideration. 

PETITION GRANTED.

not require [an ALJ] to disbelieve the entire testimony of opposing witnesses,” because “[e]ven if the [ALJ] found portions of [one party’s witnesses’] testimony believable, it is not inconsistent for her to have credited

the testimony of the [other party’s] witnesses as the more accurate account

of what occurred”). 

ANDRZEJEWSKI v. FAA 4211