United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 12, 2013 Decided July 19, 2013

No. 12-1140

STEPHEN L. TAYLOR,

PETITIONER

v.

MICHAEL P. HUERTA, ADMINISTRATOR, FEDERAL AVIATION

ADMINISTRATION AND NATIONAL TRANSPORTATION SAFETY

BOARD,

RESPONDENTS

On Petition for Review of an Order 

of the National Transportation Safety Board

Timothy V. Anderson argued the cause and filed the brief for

petitioner.

Amanda K. Bruchs, Attorney, Federal Aviation

Administration, argued the cause and filed the brief for

respondents. 

Before: GARLAND, Chief Judge, GRIFFITH, Circuit Judge,

and GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge GARLAND.
2

GARLAND, Chief Judge: The Federal Aviation

Administration (FAA) revoked Stephen Taylor’s pilot and

medical certificates because he falsely stated that he had never

been arrested for drunk driving. An administrative law judge

upheld the revocation order, and the National Transportation

Safety Board (NTSB) affirmed. Taylor now petitions this court

for review. For the reasons stated below, we deny his petition. 

Although this case would not otherwise warrant a published

disposition, the number of similar cases that have recently come

before this court1 convince us of the need to provide clear

guidance to applicants for FAA medical certificates. See D.C.

CIR. R. 36(c)(2)(G).

I

In June 2011, Taylor submitted an application for a medical

certificate using the FAA’s online system, MedXPress. See

FAA MEDXPRESS, at J.A. 24-26. The application required

Taylor to answer a series of questions. Question 18v asked

whether he had a history of, among other things, “any arrest(s)

and/or conviction(s) involving driving while intoxicated.” Id. at

25. Taylor answered “no.” In fact, he had been arrested by the

California Highway Patrol (although not convicted) for drunk

driving in 2008.

On September 12, 2011, the FAA notified Taylor that it had

learned of his “alcohol-related motor vehicle incident” and was

conducting an investigation into whether he had violated 14

C.F.R. § 67.403(a)(1), which forbids, among other things,

submitting an “intentionally false statement on any application

1

See, e.g., Porco v. Huerta, 472 Fed. App’x 2 (D.C. Cir. 2012);

Cooper v. NTSB, 660 F.3d 476 (D.C. Cir. 2011); Manin v. NTSB, 627

F.3d 1239 (D.C. Cir. 2011); Dillmon v. NTSB, 588 F.3d 1085 (D.C.

Cir. 2009); Singleton v. Babbitt, 588 F.3d 1078 (D.C. Cir. 2009).
3

for a medical certificate.” The FAA gave Taylor ten days in

which to submit evidence or written statements. On November

9, 2011, it issued an emergency order revoking Taylor’s pilot

and medical certificates. 

Taylor appealed the order, and a hearing was held before an

NTSB administrative law judge (ALJ). At the hearing, Taylor

did not deny that he gave a false answer to Question 18v. He

claimed, however, that he did so only because he had failed to

read the question carefully. He testified that he did not realize

that Question 18v had been expanded, in the years since his

previous medical certificate application, to include drunkdriving arrests (as opposed to convictions). He thus clicked a

“button” on the application to “Set All Blank Items in 18a - y to

No” and then submitted the form without reading the text of the

questions. Huerta v. Taylor, NTSB Order No. EA-5611, 2012

WL 158766, at *9-10 (Jan. 9, 2012).

The ALJ did not find Taylor’s testimony credible. To the

contrary, he found it unbelievable that, “after having been

arrested[,] a pilot of [Taylor]’s experience[ and] intelligence,

would not read the form to determine if his arrest would in any

way affect the application.” Id. at *11. Moreover, the ALJ

agreed with the FAA that Taylor had violated § 67.403(a)(1),

even according to his own testimony. Under the FAA’s

established interpretation of the regulation, “where an airman

intentionally chooses not to carefully read the question for

which he is providing an answer that he certifies by his signature

to be true, a factfinder can infer ‘actual knowledge’ from a

willful disregard for truth or falsity.” Cooper v. NTSB, 660 F.3d

476, 484 (D.C. Cir. 2011). Accordingly, “[a] defense of

deliberate inattention fails where the applicant is attesting to

events about which he has actual knowledge.” Id.
4

The ALJ found that, in light of this standard, he “ha[d] to

agree with the [FAA]” that Taylor “hung himself” “through his

own testimony.” Taylor, 2012 WL 158766, at *10. The ALJ

thus agreed with the FAA that Taylor had violated the

regulation. Id. at *11. Further noting that he was required to

defer to the FAA’s choice of sanction -- here, revocation --

unless it was arbitrary, capricious, or otherwise not in

accordance with law, the ALJ affirmed the FAA’s emergency

revocation order in its entirety. Id. at *12.

On appeal from the ALJ’s decision, the NTSB affirmed. Id.

at *7. Taylor petitions this court for review of the NTSB’s

decision.

II

Our review of the NTSB’s order is “limited to determining

whether the Board’s decision is ‘arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law,’ 5 U.S.C.

§ 706(2)(A), understanding that the Board’s findings need only

be supported by substantial evidence, id. § 706(2)(E).” Cooper,

660 F.3d at 481; see Dickson v. NTSB, 639 F.3d 539, 542 (D.C.

Cir. 2011). The FAA’s interpretation of its regulation is “to be

accorded deference . . . unless it is clearly contrary to the plain

and sensible meaning of the regulation.” Cooper, 660 F.3d at

481 (internal quotation marks omitted); see Auer v. Robbins, 519

U.S. 452, 461 (1997).

1. The Board’s conclusion that Taylor’s behavior, by his

own description, constituted a violation of 14 C.F.R.

§ 67.403(a)(1) was a straightforward and correct application of

the regulation under the interpretation we affirmed in Cooper v.

NTSB. Under that interpretation, an intentional failure to

carefully read the questions before submitting answers is

sufficient to meet the regulation’s scienter requirement, because
5

such behavior amounts to a “willful disregard for truth or

falsity.” Cooper, 660 F.3d at 484. Indeed, the facts of Cooper

are virtually indistinguishable from the instant case. Taylor, like

Kenneth Cooper, answered “no” to Question 18v despite a prior

drunk-driving arrest; Taylor, like Cooper, claimed that he did

not know that the question’s scope had been expanded; Taylor,

like Cooper, said that he would not have given a false answer if

he had read the question; and -- most important -- Taylor, like

Cooper, admitted that he deliberately and voluntarily chose not

to read the questions before answering them. Compare Taylor,

2012 WL 158766, at *3, with Cooper, 660 F.3d at 480.

Taylor attempts to distinguish his case from Cooper by

noting that, unlike Cooper, he used the FAA’s online application

system, MedXPress, to submit his application. As a

convenience to applicants, MedXPress provides a button that

will “Set All Blank Items in 18a - y to No” if an applicant clicks

on it. Taylor argues that this apparently ordinary piece of userinterface design “encourag[es] airmen not to read the questions”

and “entrap[s] airmen” by implicitly “down[-]grading the

importance of the questions.” Taylor Br. 13.

Despite Taylor’s melodramatic description of the button’s

significance, the reality is that it does not limit in any way the

ability of applicants to read the questions carefully. The button

does not obscure or hide the questions. To the contrary, the

questions appear on the same screen as the button, and they can

be read by anyone who can see the button. J.A. 25. The FAA’s

decision to provide this modest convenience, rather than

requiring MedXPress users to click “yes” or “no” for each

question individually, does not “entrap” applicants. Nor does

MedXPress “downgrade” the questions’ importance. It

expressly requires the applicant to certify that “all . . . answers

provided . . . on this application form are complete and true to

the best of [his or her] knowledge.” Id. at 26. And it
6

prominently highlights the possibility that false answers may

expose the applicant to substantial criminal liability. Id. There

is nothing about the application Taylor filled out that would

justify distinguishing his case from Cooper.

2

2. Taylor further argues that the FAA revoked his

certificates without due process of law. His principal assertion

is that the version of the governing statute, 49 U.S.C.

§ 44709(d)(3), that was in effect at the time of the agency

proceedings in this case was unconstitutional. Taylor Br. 14.

At the time of the agency proceedings under review,

§ 44709(d)(3) provided that, in appeals of FAA revocation

orders, the NTSB “is bound by all validly adopted

interpretations of laws and regulations the [FAA] carries out and

of written agency policy guidance available to the public related

to sanctions to be imposed under this section unless the Board

finds an interpretation is arbitrary, capricious, or otherwise not

according to law.” 49 U.S.C. § 44709(d)(3) (2006).3

 Taylor

argues that this requirement, combined with the NTSB’s

practice of deferring to the FAA’s application of its sanction

policies except where arbitrary, capricious, or otherwise not in

accordance with law, see Taylor, 2012 WL 158766, at *6-7,

reduced the ALJ to a “rubber stamp for the FAA’s decisions,”

2

At oral argument, Taylor also argued that Cooper was wrongly

decided, although he acknowledged that this panel is bound by it. 

Oral Arg. Recording at 7:37-8:24.

3

The recently enacted Pilot’s Bill of Rights amended

§ 44709(d)(3) to remove the specific language that Taylor challenges. 

See Pilot’s Bill of Rights, Pub. L. No. 112-153, § 2(c)(2), 126 Stat.

1159, 1161 (2012). The Pilot’s Bill of Rights was enacted after the

NTSB decision under review in this case, and Taylor concedes that the

amended provision does not apply retroactively. Oral Arg. Recording

4:05-4:40; see Taylor Br. 15.
7

Taylor Br. 17. In so doing, Taylor contends, the NTSB deprived

him of due process.

When all is said and done, Taylor’s argument amounts to a

claim that due process entitles him to de novo review of the

FAA’s choice of sanction, or at least to a more searching

standard of review than the one the Board applied here. But the

Board’s standard of review, which asks whether the FAA’s

action was “arbitrary, capricious, or otherwise not in accordance

with law,” is identical to the one that Article III courts routinely

apply in reviewing agency actions of all kinds under the

Administrative Procedure Act. See 5 U.S.C. § 706(2)(A). 

Although this is a “highly deferential” standard, it does not, as

Taylor claims, reduce a reviewing body to “a mere rubber stamp

for agency decisions.” Lead Indus. Ass’n v. EPA, 647 F.2d

1130, 1145 (D.C. Cir. 1980). In reviewing FAA sanctions under

this standard, the NTSB “consider[s] aggravating and mitigating

factors” and “compare[s] factually similar cases” to determine

whether the FAA’s choice of sanction was appropriate. Taylor,

2012 WL 158766, at *6-7. It did both in Taylor’s case. Id. This

is neither “rubber-stamping” nor a violation of due process.

Nor is it uncommon for an adjudicative body to defer to the

reasonable legal interpretations of an agency clothed with

enforcement and rulemaking powers. See, e.g., Auer, 519 U.S.

at 461; Chevron, USA, Inc. v. Natural Res. Def. Council, Inc.,

467 U.S. 837, 842-45 (1984); Sec’y of Labor v. Spartan Mining

Co., 415 F.3d 82, 83 (D.C. Cir. 2005) (citing Sec’y of Labor v.

Cannelton Indus., 867 F.2d 1432, 1435 (D.C. Cir. 1989)). 

Indeed, the version of 49 U.S.C. § 44709(d)(3) that Taylor

challenges represented nothing more than an ordinary exercise

of Congress’ power “to decide the proper division of regulatory,

enforcement, and adjudicatory functions between agencies in a

split-enforcement regime,” Hinson v. NTSB, 57 F.3d 1144, 1147

n.1 (D.C. Cir. 1995) (citing Martin v. Occupational Safety &
8

Health Review Comm’n, 499 U.S. 144, 158 (1991)). Taylor

cites no authority, and presents no persuasive rationale, to

support his claim that due process requires more.

Taylor was given written notice and an opportunity to

respond before the FAA’s revocation order went into effect. 

After the order was issued, he had a full hearing and an

opportunity to present his case before an ALJ, as well as an

opportunity to appeal to the full Board. He then had the right to

petition this court for review of the Board’s order, which he did. 

Although we appreciate the gravity of Taylor’s personal and

professional interest in his lost certificates, see Mathews v.

Eldridge, 424 U.S. 319, 334-35 (1976), there can be no dispute

that he was accorded due process of law.4

III

For the foregoing reasons, the petition for review is

Denied.

4

Taylor further suggests that the interpretation of 14 C.F.R.

§ 67.403(a)(1) that this Circuit upheld in Cooper violates the Due

Process Clause by effectively imposing a “strict liability standard.” 

Taylor Br. 22. This misconstrues the standard. Disallowing a defense

on the basis of deliberate inattention to the questions asked -- behavior

that exhibits a willful disregard for the truth or falsity of the answers

given, Cooper, 660 F.3d at 484 -- is very different from holding

applicants strictly liable for erroneous answers.