# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 12, 2018 Decided March 5 , 2019

No. 18

- 1102

J EFFREY O. S IEGEL

, P ETITIONER

v.

A DMINISTRATOR OF THE F EDERAL A VIATION A DMINISTRATION

AND N ATIONA L T R ANSPORTATION S AFETY B OARD

, R ESPONDENTS

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

Gregory S. Winton argue d the cause and filed the briefs for petitioner.

Sarah Carroll , Attorney, U.S. Department of Ju s tic e, argued the cause for respondents. With her on the brief were

Mark B. Stern , Attorney, and Christopher Stevenson , Senior Attorney, Federal Aviation Ad ministration.

Before: S RINIVASAN and K ATSAS

, Circuit Judges , and

S ENTELLE

, Senior Circuit Judge

.2

Op inion for the Court filed by Senior Circuit Judge

S ENTELLE

.

S ENTELLE

, Senior Circuit Judge : Law en forcement officers respondi n g to a n airplane crash discovered THC

infused chocolate ba rs on board. T he pilot, Jeffr e y Siegel,

admit ted that they were his

. In this petition

, Siegel claims that

the F ederal Aviation Administration ’ s decision to revoke his pilot ’ s certificate for knowingl y operating an a i rcraft with

na r c otics on board was ar bitrary and capricious

. We disagree

and deny the petition

.

I. Legal Back g roun d

The Administrator of the F ederal Aviation Administration ( FAA )

, by statute

, has the authority to prescribe regulations for “practices, methods, and procedure [ s ] the Administrato r finds neces s ary for safety in air commerce and national security.” 49 U.S. C. § 44701(a)(5). The Administrator also has the authority to issue pilot

certi ficates to those he finds “qualified” to operat e aircraft. 49 U.S.C. § 44703(a). The Administr a tor may suspen d or revoke

a certificate if he “decides

. . . th at safety in ai r com merce or air transportation and the public interest require that action.”

49 U.S.C. § 44709(b)(1)(A).

Under the authority granted by these provision s, the FAA

pr o mulgated a regulation prohibiting any person from operating a civil aircraft within the U nite d States with knowledge that a controlled substance

, including marijuana , is

on boa rd. 14 C.F.R. § 91.19

. U nder published FAA

enfo rcement guidance

, violation of 14 C.F.R. § 91.19 generally warrants revocation of a pilot’s certificate . FAA

Order 2150.3 B at 7

- 22. P ilots subject to a revocation may3

reapply for a new certificate one yea r after the revocation

date. 14 C. F.R. § 61.13(d)(2)

.

II. Factual Background

On October 1, 2016, Jeffrey Siegel crash

- landed his airplane on a road in Kansas due to an engine m alfu nction

. Kansas S tate Troope rs responded

. W hile Siegel and his

passenger were taken to the h ospital with minor injuries

, the

t roopers conducted a routine inventory of the aircraft ’ s

contents

. During the inventory, Trooper Lucas Wa gner found

three choc o late bars infused with tetrahydrocannabinol (THC

, the psychoactive agent in marijuana ) in Siegel’s briefc a se. The packaging on the bars ident ified them as containing THC

. Trooper Wagner asked Siegel a bout the bars at th e hospital

and t estified that Siege l claimed ownersh ip

. Testing by th e Kansas Bureau of Investigation confirmed the prese n ce of

THC. Siegel was charged wit h misdemeanor simple possession of marijuana under K.S.A. § 21

- 5706(b)(3)

, but

t he charge was later dismissed

.

III. Procedural Background

O n February 7 , 2018 , following a n investigation into the

October 201 6 incident

, the Acting Administrator of the FAA

issued an e mergency o rder revoking Sie gel ’ s p rivate p ilot

certificate

. In t he order, the FAA found that Siegel operate d

an aircraft with kno w ledge that ma rijuana was on board , in

violation of 14 C.F. R. § 91.19

. The order invok ed the Acti ng Administrat or ’ s authority under 49 U.S.C. § 44709 to
determine that “ safety i n air

. . . transportation ” require d

revocation of the certificate

.

Siegel so u ght review of the FAA ’ s order b y the Na tional

Trans portation Safety Board ( NTSB )

. O n March 13, 2018 , a4

hearing on the merits of his case wa s held before an administrative law j udge ( ALJ ) of the NTSB. At the hearing,

the FAA presented several witnesse s. T r o oper Wagner testified that he responded to th e accident, located the

chocolate bars , and asked Siegel about them at the hospital.

He testified that Siegel told h im that the bars were “ all his ”

and that he “ w as hoping that [the police] wouldn ’ t have found

it

. ” Kelly Daniel, a forensic scient ist with the Kansas Bureau of Investigation, testified that she tested the bars and that they

contained THC. Final ly, Manny Martinez, a special age nt for the FAA, te stified that based on his review o f the police report

a nd Siegel ’s admission to Troop er Wagner in the hospital, he

concluded that Siegel had knowingly transported controlled

substances on his aircraft in v iolation of 14 C.F.R. § 91.19

. In
defense

, Siegel testified and presented one witness

, Bethany

Brandst e tt e r , Siegel ’ s passenge r at the time of the accident

and now wife . She testified that she placed the bars in Siegel ’s

briefcase without his kno wledge a month or two prior to the flight. In contra diction to his st atement at the hospital, Siegel

testified that he did not know the bars were on the aircraft.

At the clo se of evidence, the ALJ issued an oral ruling.

He foun d that the testimony of Siegel and his passenger was not credible and that Si e gel “ was awar e that the mar ijuana

was on board the aircraft

. ” Ac c ordingly, the ALJ concluded that Siegel violated 14 C.F.R. § 91.19

. Notwithstanding the

viol ation, the ALJ reduced the sanction from revocation to a ninety

- day suspension. To support this decision, the ALJ

re lied on the fact that the marijuana was purchas e d legally in Colorado, was of a small quantity

, and was not being transported for commercial purposes

.

Siegel and the FAA cross

- appealed the ru ling of the ALJ

to the full N TSB

. Administrator v. Siegel , NTSB O rder No.

EA

- 5838 ( April 11, 2018 )

. Siegel cha l lenged the finding th at5

he violated 14 C.F.R. § 91.19, while t he FAA challenged the

reduced sanction. T he Board affirmed the ALJ ’ s find ing that Siegel knowingly transported a con tr olled su bstance in

v iolation of 14 C.F.R. § 91.19

. H oweve r, it vacated the A LJ ’ s reduced sanction and reinstated th e re vocatio n. T he Board

considered the ALJ ’ s finding s that the small amount of

ma rijuana w as purchased legally in Colorado and was not transpor ted for a commercial purpose

. It concluded that the se facts did not mitig a te against the FAA ’ s choice of sanct ion

, beca use m arijuana is illegal under Feder al law and be cause a vio lation of 14 C .F.R. § 91.19 is predicated on the knowledge

of the dr ugs aboard, not the quantity

. Furthermore, it note d

that a comm ercial purpose i s n o t required to show a violatio n

.

Siegel timely petitioned this Court for review

. We have jurisdiction to review fina l orders of the NTSB pursuan t to 49

U.S. C

. § 1153.

IV. Analysis

In t his petition, Siegel raises a sin g le issue : whether the

sanction o f revo c ation w as improper

. He does not disp ute the

NTSB ’s f inding that he violated 14 C.F. R. § 91.1 9.

W e review f inal actions of the NTSB under the

A dmin istrative Procedure Act . 5 U.S.C. § 7 0 1 et se q

. “ Our

review of the NTSB order is limited to determining wh e ther

the Boar d ’ s decision is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law

. ’ ” Taylor

v. Huerta , 723 F.3d 210, 213 (D.C. Cir. 2013) ( citations and

internal quot ation marks omitted )

. “ Findings of fact by the Board, i f suppo rted b y substantial evidence, are conclusive

. ”

49 U.S.C. § 1153 (b)(3)

.6

Siegel asserts t wo main argu ments that the revocatio n of

his certificate was imposed arbitr a rily, ca priciously, and not in

accor d an ce with the law. N either s u c c e e d s

.

Fir st, S i egel argues t hat the NTSB imposed the sanction without adequately articulating its reasoning. P rimarily, he

faults the NTS B for failing to consider “ mitigating fa cto rs , ”

such as : the small quantity of drugs on his airc raft ; that they were purchased lega ll y in Colorado ; that they w ere not transported for a commercial p urpose ; and that th ey were brough t on board “ inadvertent[ ly ]

. ”

T h is argument is factua lly incorr ect

. T he Board explicitly

consider ed these purported “ mitigating factors, ” but simply

d id not a gree that they warranted a lighter sanction. NTSB

Order No. EA

- 5838 at * 9

. The Board con cluded tha t knowingly transport ing illegal narcotics on an aircraft, regardless of quantity or purpose, falls within the scope of 14

C.F.R. § 91.19 an d i s g rounds for a certificate re vocation

. Id.

The regulation does not dis tinguish betwe en drugs transported for personal use and those intended for resal e. Likewise, that the marijuana was purch ased in Colorado does not change the

fact that marijuana is illegal under fede r al law and in federal airspace. See 21 U.S.C. § 844. Althoug h Siegel chara cterizes

the Board’s decision a s a failure to consider these facto rs , it is more accurate to say that he is simply unhappy with the result

of the NT SB ’ s consid eration

. W e cannot rem e dy his

discontent

. Even if we agreed w ith Siege l ’ s prefe rred analysis

,

we may not substitute our judgment for that of the agency

w hen review ing und er the arbitrary and capricious standard

. Motor Vehicle Mfrs. Ass ’ n v. State Farm , 463 U.S. 29, 43 (1983).

Turning to Siegel ’ s broader point, we disagree that the

B oard failed to adequa tely explain its reason ing when7

re voking his certificate . W e re view agency deci sions for a

“satis factory explanation for its action including a rational

co nnection between the f a cts found and the choice made.” Id. (internal quotation marks omitted). The Acting Administrator

stated in the E mergency O rder of Revocation that

“ [ c ] ertificate holders who knowingly engage in the possession and transportation of a c ontrolled substance by air have shown that the Agency cannot rely upon them to minima lly comply wit h the regulatory requirements designed to ens ure aviation safety with the highest degree of integrity. ” This is

consistent with t he FAA ’ s published pol icy of revoking

c ertificatio n s for certain types of misconduct that reflect a lack of “ ca re, judgme nt, and responsibility. ” S ee FAA Order

2150.3B at 7

- 2 1 , 7

- 22. The NTS B explicitly relied on this

FAA Order when re impo sing the re vocation. NTSB Order

No. EA

- 5838 at * 9

. U nder this publ i shed order, c ertain specific conduct w arrants re vocation : i ntenti onal l y fraudulent

statements, re fusal to submit to a n alcohol or drug test, and

the use of an aircraft to knowingly transport controlled

substances. S ee FAA Order 2150.3B at 7

- 22 , 7

- 23

.

Wh i le the FAA guidance and the NTSB could have been

more exp licit in artic ulating the ir precise rational e for revoking Siegel ’ s certificate

, the explanation provided is

sufficient

. Operating an aircraft i s an inherently dangerous

activit y that implicates pub l ic sa fety

. For this reason , Congress tightly regulate s federal airspace and has create d an

agency with the pr imary purpose of ensuring safet y in civil

aviation

. Given the potentially devastating results of unsafe

air traffic

, i t was not un reasonable for t h e Act ing

A dministra tor to make a categorical determination that p ilot s who cannot be tru sted to follow federal drug laws when operating aircr aft do not demonstrat e the “ ca re, judgment, and responsibility ” necessary to hold a ce rtificat e

. We therefore8

reje c t Sie gel ’ s argument that the FAA and the NTSB acted arbitrarily.

Siegel ’ s second main argument is that the law does not support the sanction of revocation for simple possession of a

controlled s ubstance. The FAA rev oked Sieg el ’ s license under

its aut hor i ty granted by 49 U.S.C. § 447 09

. N evertheless, Siegel claims that the existence of a separate statutory

prov ision

, 49 U.S.C. § 447 10

, removes the FAA ’ s discret ion to impose a revoc ation for “ simple possession. ” In relevant
part, 49 U.S.C. § 44710 provid e s :

(b)(1) The Administrator of the Federal

Aviation Administration shall issue an order revoking an airman certificate is sued an

individual under section 44703 of this title

after the individual is convict ed, under a law of

the United States or a State re l ated to a

controlled substance (except a law related to simple possession of a controlled substance)

, of an offense punis hable by death or imprisonment for more than one year if the

Administrator finds tha t

—

(A) an air craft was used to commit, or facilitate t he commiss ion of, the offense; and

(B) the individual served as an airman, or was on the aircraft, in

connection with commit ting, or facilitating the commission of, the

offense.9

( emphasis added )

. Siegel clai ms that the language of § 44710

, coup le d with its l egislative history

, reflect s that Congress

intended simple possession of a controlled s ubstance to be

insufficient to warr ant revocation of a pilot certificate.

Siegel ’ s a rgument ent irely mi sses the mark. As the NTSB explained i n several of i ts previou s decisions, the passage of § 44710 did not limit the FAA ’ s authority to revoke

certificates under § 44709

. See

, e.g. , Administrator v. Schlieve, NTSB Order No. EA

- 5250, 2 006 WL 2632087 (Sept. 11, 2006) , at *1

. A revocation under § 44710, which appl ies to f elony drug c rimes that involve the use of a ircraft

, is not discretionary

. T he word “ shall ” requires the FAA

Administrator to rev oke certificate s under the circumstances

described

. § 44710 ( b ) ( 1 )

. Furthermore, a re vocation under § 44710 is particular l y seve r e ; it appl ies for life. 49 U.S.C. § 44703( f )

. I n contrast

, pilots subject to a revocation under § 44709 may reapply for a ne w ce rtificate after one year

. 14

C. F.R. § 61.13(d)(2)

. It does not follow th at C ongress , by passing a law mandating li fetime certif i cate revocation for serious drug offenders, intend ed to re move the discretion of

the FAA Administrator to regulate less se rious drug offen s es involving aircraft under § 44709. We therefore conclude the

FA A retains authority to revoke a certif icate for “ si m ple possession ” of a controlled substance on an aircraft under § 44709

. Further , b ecause t he Government did not apply § 44 710 in this case

, Siegel’s arguments concerning that provision

— and his citation to other NTSB cases involving

revocat ion s under it

— ar e inapposite.

V. Conclusion

T he NTS B ’ s order wa s not arbitrary, capricious, an abuse of discretion, or otherwise not in acc ordance with law . We therefore deny Siegel ’ s petition for review.