United States Court of Appeals

For the Eighth Circuit 

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No. 22-3138

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Amy McNaught

 Petitioner

v.

Billy Nolen, Acting Administrator, Federal Aviation Administration

 Respondent

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Petition for Review of an Order of the

Federal Aviation Administration

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Submitted: May 10, 2023

Filed: August 4, 2023

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Before SHEPHERD, STRAS, and KOBES, Circuit Judges. 

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SHEPHERD, Circuit Judge.

Amy McNaught is a pilot and flight instructor. After she failed to produce 

her pilot logbooks and training records upon request by the Federal Aviation 

Administration (FAA), the FAA suspended McNaught’s pilot certificate. McNaught 

appealed the suspension to the National Transportation Safety Board (NTSB) but, 

days later, complied with the records request. The FAA then terminated her 

suspension, which lasted 14 days in total, and reinstated her certificate. Nonetheless, 
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an NTSB administrative law judge held a hearing on McNaught’s appeal and 

concluded that the suspension was reasonable. McNaught appealed the decision to 

the full NTSB, but it dismissed the matter as moot. McNaught now petitions this 

Court for review of the NTSB’s final order under 49 U.S.C. §§ 44709(f) and 46110. 

Because we conclude that McNaught lacks Article III standing, we dismiss the 

petition for lack of jurisdiction.

I. 

On April 21, 2022, the FAA sent a letter to McNaught at her address of record 

in Fairbanks, Alaska, asking her to produce her pilot logbooks and training records 

pursuant to an ongoing investigation of allegedly irregular flight operations. Federal 

regulations require pilots to “present their pilot certificate, medical certificate, 

logbook, or any other record required . . . for inspection upon a reasonable request” 

by the FAA. 14 C.F.R. § 61.51(i)(1). The letter stated that McNaught had 10 days 

from receipt to arrange for the inspection, otherwise action would be taken to 

suspend her pilot certificate. The FAA received no response.

 An FAA inspector, Robert Markise, then called McNaught at a telephone 

number obtained from her FAA records. At the time, McNaught was in Dubai 

receiving training for her job as a flight instructor. She anticipated being there for a 

few months before returning to the United States. Inspector Markise reached 

McNaught in Dubai. In their brief telephone conversation, McNaught stated that 

she never received the April 21 letter, confirmed the Alaska address as her address 

of record, and provided an email address. Inspector Markise then emailed 

McNaught a copy of the initial request letter. Again, the FAA received no response.

Accordingly, on May 20, Inspector Markise sent a letter to McNaught’s 

Alaska address notifying her that she was under investigation for failing to produce 

her logbooks and training records. He also emailed McNaught a copy of the letter. 

Inspector Markise again received no response. Thus, on July 14, the FAA issued an 

emergency order suspending McNaught’s pilot certificate pending her compliance 
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with the records request, pursuant to 49 U.S.C. § 44709(b) (providing that the FAA 

“may issue an order amending, modifying, suspending, or revoking” a pilot 

certificate if it “decides after conducting a reinspection, reexamination, or other 

investigation that safety in air commerce or air transportation and the public interest 

require that action”).

Days later, McNaught returned to the United States and sought review of the 

FAA’s suspension order by the NTSB. See id. § 44709(d). McNaught then 

complied with the records request by meeting with Inspector Markise and providing 

her logbooks and training documentation, pursuant to 14 C.F.R. § 61.51(i)(1). She 

also changed her address of record from the Fairbanks, Alaska address to an address 

in Lincoln, Nebraska. On July 28, the FAA terminated McNaught’s suspension and 

closed all legal enforcement of the matter.

McNaught’s still-pending appeal was referred to an NTSB administrative law 

judge (ALJ). Having terminated the suspension order, the FAA asked the ALJ to 

dismiss the appeal as moot. McNaught opposed the motion to dismiss, arguing that 

there was still “a dispute as to whether the [records] request was made and, if so, 

[whether it was] reasonably communicated to [McNaught] under the circumstances” 

and, further, that the suspension was “potentially a permanent reporting event” in 

the Pilot Records Database (PRD).1

 The ALJ denied the FAA’s motion to dismiss, 

1

The PRD is an electronic database maintained by the FAA pursuant to statute. 

See generally 49 U.S.C. § 44703(i); 14 C.F.R. § 111.1. The PRD includes various 

records on individual pilots, including pilot certificates, ratings, tests, and 

“summaries of legal enforcement actions resulting in a finding by the Administrator 

of a violation of this title or a regulation prescribed or order issued under this title 

that was not subsequently overturned.” 49 U.S.C. § 44703(i)(2)(A)(iii). Covered 

“air carrier[s]”—a subset of FAA-certified entities that generally provide air 

transportation for passengers or property as common carriers—must review a new 

hire’s PRD file before allowing the pilot to begin service. Id. § 44703(i)(1). Air 

carriers and other entities who want to access the PRD must apply for access with 

the FAA. 14 C.F.R. § 111.15. Further, a reviewing entity may not access an 

individual pilot’s PRD file without receiving that pilot’s written consent. Id. 

§ 111.120(a).
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so as to afford McNaught “every benefit of the doubt,” and held a hearing on the 

matter. The ALJ allowed the parties to call witnesses and present evidence on 

whether notice of the records request was reasonably communicated to McNaught 

and whether the suspension was reasonable. Ultimately, the ALJ found that the 

records request and the suspension were both reasonable.

McNaught appealed the ALJ’s decision to the full NTSB. McNaught alleged 

a bevy of procedural errors by the ALJ, including that the ALJ erred in denying a 

pretrial motion to compel evidence and in overruling various objections made during 

the hearing. The FAA disputed those errors and asked the NTSB to affirm on the 

merits. In its order, the NTSB held that the matter should have been dismissed as 

moot “[b]ecause there was no existing order before the [ALJ]” and, thus, “no action 

for the [ALJ] to take.” Citing agency case law, the NTSB concluded that the ALJ 

“no longer had jurisdiction over the matter once the order and complaint bringing 

the action against [McNaught] were withdrawn.” Accordingly, the NTSB found that 

it lacked jurisdiction over the appeal, granted the FAA’s motion to dismiss, and 

vacated the ALJ’s decision.

McNaught timely filed this petition for review of the NTSB’s final order 

pursuant to 49 U.S.C. §§ 44709(f) and 46110(a), which allow any “person 

substantially affected by an order of the [NTSB]” to “obtain judicial review” thereof. 

Id. § 44709(f). In her petition, McNaught argues that the NTSB erred in two 

respects: (1) by ruling that her appeal of the FAA’s order of suspension was moot; 

and (2) by failing to address clear errors committed by the ALJ.

II.

 We first must decide whether McNaught’s petition presents a justiciable case 

or controversy. Before us, the parties debate related issues of standing and mootness. 

McNaught focuses her briefing on refuting the NTSB’s conclusion that her case was 

moot before the ALJ. But the FAA argues that the case now presents a question of 

standing, not mootness. It contends that McNaught lacks standing to petition this 
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Court for review because she has not suffered a concrete injury in fact from the nowterminated 14-day suspension. McNaught responds by arguing that she has standing 

because she has a personal stake in removing the suspension from her record, which 

constitutes an injury in fact.

“No principle is more fundamental to the judiciary’s proper role in our system 

of government than the constitutional limitation of federal-court jurisdiction to 

actual cases or controversies.” Sch. of the Ozarks, Inc. v. Biden, 41 F.4th 992, 997

(8th Cir. 2022) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006)). 

As the Supreme Court has recognized, standing doctrine is “rooted in the traditional 

understanding of a case or controversy.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338

(2016). To establish standing to sue in federal court, a plaintiff “must have 

(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of 

the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” 

Id. The related mootness doctrine asks whether “during the course of litigation, the 

issues presented in a case ‘lose their life because of the passage of time or a change 

in circumstances . . . and a federal court can no longer grant effective relief.’” 

Young Am.’s Found. v. Kaler, 14 F.4th 879, 886 (8th Cir. 2021) (alteration in 

original) (citation omitted). “The difference between standing and mootness . . . is 

merely one of ‘time frame: The requisite personal interest that must exist at the 

commencement of the litigation (standing) must continue throughout its existence 

(mootness).’” Sisney v. Kaemingk, 15 F.4th 1181, 1194 (8th Cir. 2021) (quoting 

Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 68 n.2 (1997)).

We agree with the FAA that this case first presents a question of standing, not 

mootness. Cf. Narragansett Indian Tribal Historic Pres. Off. v. FERC, 949 F.3d 8, 

12 (D.C. Cir. 2020) (“Th[e] problem ‘may sound like one of mootness—a justiciable 

controversy existed but no longer remains—but the timing makes [it] one of 

standing.’” (second alteration in original) (citation omitted)). After all, standing is 

assessed “at the time the action commences.” Friends of the Earth, Inc. v. Laidlaw 

Env’t Servs. (TOC), Inc., 528 U.S. 167, 169 (2000); see also Davis v. FEC, 554 U.S. 

724, 734 (2008) (“[T]he standing inquiry remains focused on whether the party 
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invoking jurisdiction had the requisite stake in the outcome when the suit was filed.”

(emphasis added)). And because McNaught’s petition for review marks the 

“commencement of the litigation” in federal court, Sisney, 15 F.4th at 1194 (citation 

omitted), we must ask whether she has standing to seek Article III review in the first 

place. See Narragansett Indian Tribal Historic Pres. Off., 949 F.3d at 12 (“‘Standing 

is assessed “at the time the action commences,”’ which in the case of a petition for 

review is ‘the time [the petitioner] sought relief from an Article III court[.]’” 

(alterations in original) (citation omitted)). Further, the “mere fact” that McNaught 

was a party to NTSB proceedings “is not dispositive of the issue of standing for 

purposes of invoking the jurisdiction of a federal court.” City of St. Louis v. Dep’t 

of Transp., 936 F.2d 1528, 1532 (8th Cir. 1991). As we have explained, “[a]gencies 

are not Article III creatures, and Congress may allow anyone it wishes . . . to become 

parties in agency proceedings. When the case gets to court, though, the courts must 

independently satisfy themselves that the Article III requirement that a case or 

controversy be presented is satisfied.” Id.

The standing inquiry in this case comes down to whether McNaught has 

plausibly alleged an injury in fact. An injury in fact is “‘an invasion of a legally 

protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not 

conjectural or hypothetical.’” Spokeo, 578 U.S. at 339 (citation omitted). As to the 

concrete-harm requirement, we “assess whether the alleged injury to the plaintiff has 

a ‘close relationship’ to a harm ‘traditionally’ recognized as providing a basis for a 

lawsuit in American courts.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2204

(2021) (citation omitted).2 As the party invoking federal jurisdiction, McNaught 

2

Beyond the Article III standing requirements, petitions for judicial review of 

NTSB orders also must satisfy a statutory requirement that the petitioner be 

“substantially affected by an order of the [NTSB].” 49 U.S.C. § 44709(f). However, 

we need not decide whether McNaught has a statutory cause of action to seek relief 

from this Court because we can resolve this case on Article III standing grounds—

and, therefore, must do so. See Miller v. Redwood Toxicology Lab’y, Inc., 688 F.3d 

928, 934 (8th Cir. 2012) (“Article III standing must be decided first by the court and 

presents a question of justiciability; if it is lacking, a federal court has no subject-
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bears the burden of establishing standing “in the same way as any other matter on 

which the plaintiff bears the burden of proof, i.e., with the manner and degree of 

evidence required at the successive stages of litigation.” Young Am.’s Found., 14 

F.4th at 887 (citation omitted). “At the pleading stage, therefore, [McNaught] must 

‘allege sufficient facts to support a reasonable inference that [she] can satisfy the 

elements of standing.’” Sch. of the Ozarks, 41 F.4th at 997 (citation omitted). On 

this basis, we address McNaught’s claims of injury and conclude that she lacks 

standing to sue in federal court. 

A.

McNaught first makes a claim of future injury: the suspension will harm her 

prospects of future employment. McNaught says that she wants to apply for certain 

pilot jobs, but her 14-day suspension in the PRD will be an “automatic 

disqualification.” Claims of future harm may be sufficient to establish Article III 

standing “if the threatened injury is certainly impending, or there is a substantial risk 

that the harm will occur.” Dep’t of Com. v. New York, 139 S. Ct. 2551, 2565 (2019)

(citation omitted). Put differently, “[a] plaintiff must show that he ‘sustained or is 

immediately in danger of sustaining some direct injury as the result of the 

challenged . . . conduct and that the injury or threat of injury must be both real and 

immediate.’” Smith v. Golden China of Red Wing, Inc., 987 F.3d 1205, 1209 (8th 

Cir. 2021) (alteration in original) (citation omitted). “‘[A]llegations of possible

future injury’ are not sufficient.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409

(2013) (citations omitted).

The first problem with McNaught’s theory of future injury is that she has not 

shown with particularity how her brief suspension for noncompliance with a records 

request would harm her job prospects. See Spokeo, 578 U.S. at 339 (requiring a 

“concrete and particularized” injury for standing). Instead, McNaught opts for broad 

matter jurisdiction over the claim.” (citing Steel Co. v. Citizens for a Better Env’t, 

523 U.S. 83, 92-94 (1998)). 
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generalities. At the hearing before the ALJ, McNaught asserted that the suspension 

is “devastating” and an “automatic disqualification” for certain jobs. J.A. 0368. 

And in her briefs, McNaught characterizes the suspension as a “permanent stain on 

her record,” Pet’r’s Br. 21, citing a line of out-of-circuit cases holding that 

terminated professional discipline confers a “continuing stigma” sufficient to defeat 

claims of mootness. See In re Surrick, 338 F.3d 224, 229-30 (3d Cir. 2003) (holding 

that attorney’s challenge to 30-month suspension from law practice was not moot, 

even though suspension had expired); Furline v. Blakey, 246 F. App’x 813, 815 (3d 

Cir. 2007) (per curiam) (holding that pilot’s challenge to 180-day suspension was 

not moot, even though suspension had expired). However, other cases have come 

out differently on similar facts. See Westmoreland v. NTSB, 833 F.2d 1461, 1463

(11th Cir. 1987) (per curiam) (holding that “possibility of . . . harm” from pilot’s 

temporary suspension “is too speculative to create a cognizable interest in the 

outcome of this litigation”). Moreover, the record before us is devoid of any facts 

demonstrating how or why that is the case here. Without more, McNaught’s alleged 

harms based on how unspecified employers might interpret a brief suspension is “too 

speculative for Article III purposes.” Wallace v. ConAgra Foods, Inc., 747 F.3d 

1025, 1030 (8th Cir. 2014) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 564 

n.2 (1992)); cf. Clapper, 568 U.S. at 413 (“[W]e have been reluctant to endorse 

standing theories that require guesswork as to how independent decisionmakers will 

exercise their judgment.”).

 Even assuming the 14-day suspension would be damaging to her job

prospects, McNaught’s claims of future harm are hardly “real and immediate.” 

Golden China of Red Wing, 987 F.3d at 1209 (citation omitted). Instead, they rest 

entirely on a “desire to engage in future conduct at an unspecified and indefinite 

time.” Bernbeck v. Gale, 829 F.3d 643, 648 (8th Cir. 2016). The most concrete 

statement of her intention to apply for future employment came at the ALJ hearing, 

where McNaught stated she wanted “a pilot position . . . to support our military, to 

support humanitarian efforts.” She reiterated that these are “job[s] that [she] really 

want[s].” J.A. 0368-69. But nowhere in the record does McNaught identify the 

specific jobs she wants to apply for or—just as essential to our analysis—when she 
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intends to apply for those jobs. Instead, the record reflects little more than an 

“amorphous level of intention” to apply for some vaguely defined positions at some 

indeterminate point in the future. Golden China of Red Wing, 987 F.3d at 1209. 

“Such ‘some day’ intentions—without any description of concrete plans, or indeed 

even any specification of when the some day will be—do not support a finding 

of . . . ‘actual or imminent’ injury.” Lujan, 504 U.S. at 564. This is especially so 

since “the acts necessary to make [McNaught’s] injury happen are at least partly 

within [her] own control.” Bernbeck, 829 F.3d at 648 (quoting Lujan, 504 U.S. 

at 564 n.2). Under such circumstances, the plaintiff must allege future injury with a 

“high degree of immediacy” and cannot rest on “a mere statement of intent.” Id. 

McNaught has not met that standard here.

B.

McNaught also argues that, apart from any injury based on “future 

employment,” she is injured by the simple fact of the “reporting of her indefinite 

suspension on the PRD.” Pet’r’s Reply 4; Pet’r’s Br. 19. We interpret this as a claim 

of reputational harm, which, as the Supreme Court has recognized, can be a basis for 

an injury in fact under Article III. See TransUnion, 141 S. Ct. at 2204 (“Various 

intangible harms can also be concrete. Chief among them are injuries with a close 

relationship to harms traditionally recognized as providing a basis for lawsuits in 

American courts. Those include, for example, reputational harms . . . .” (citation 

omitted)); see also Meese v. Keene, 481 U.S. 465, 475 (1987) (“[T]he need to take 

such affirmative steps to avoid the risk of harm to [plaintiff’s] reputation constitutes 

a cognizable injury . . . .”). 

Nonetheless, “naked assertion[s]” of reputational harm “fall[] short of 

plausibly establishing injury.” Auer v. Trans Union, LLC, 902 F.3d 873, 878 (8th 

Cir. 2018) (citation omitted). Rather, like any claim of injury in fact, reputational 

harm must be “concrete and particularized” to support standing. Spokeo, 578 U.S. 

at 339 (citation omitted). Consistent with the plaintiff’s burden to “allege sufficient 

facts to support a reasonable inference” of injury at the pleading stage, Sch. of the 
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Ozarks, 41 F.4th at 997 (citation omitted), a plaintiff alleging reputational harm must 

show how the defendant’s actions harm her reputation. See Auer, 902 F.3d at 878 

(rejecting claim of reputational harm when plaintiff “did not plead any facts 

establishing that the [defendant]’s actions damaged her reputation”). Further, 

concrete reputational harm typically requires disclosure of harmful information to 

third parties. See Braitberg v. Charter Commc’ns, Inc., 836 F.3d 925, 930 (8th Cir. 

2016) (“[T]he retention of information lawfully obtained, without further disclosure, 

traditionally has not provided the basis for a lawsuit in American courts.”); cf. 

TransUnion, 141 S. Ct. at 2209 (“[T]here is ‘no historical or common-law analog 

where the mere existence of inaccurate information, absent dissemination, amounts 

to concrete injury.’” (citation omitted)). 

McNaught’s claim of reputational harm based on the mere inclusion of her 

temporary suspension in the PRD fails on both fronts. First, as described in our 

future-injury analysis, McNaught has not shown how the 14-day suspension harms 

her reputation as a pilot. Reputational harms are generally actionable if the 

challenged action would “lower [the plaintiff] in the estimation of the community 

or . . . deter third persons from associating or dealing with him.” Restatement (First) 

of Torts § 559 (defining defamatory communication). But the record here lacks any 

facts showing that McNaught’s suspension would harm her reputation in the 

estimation of the pilot community. Instead, McNaught relies on vague, blanket 

statements of reputational harm, i.e., that the suspension is an “automatic 

disqualification” for future employment and a “permanent stain on her record.” 

Breezy declarations such as these fall well short of establishing the “concrete and 

particularized” injury required for standing. Spokeo, 578 U.S. at 339 (citation 

omitted); accord Crabtree v. Experian Info. Sols., Inc., 948 F.3d 872, 880 (7th Cir. 

2020) (“It is not enough to say that your reputation was harmed without explaining 

how.”). 

McNaught also has not shown that her 14-day suspension has been or will 

likely be disseminated by the FAA to third parties, which is typically required for 

claims of reputational harm. See Braitberg, 836 F.3d at 930; Restatement (First) of 
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Torts § 577 (“[U]nless the defamatory matter is communicated to a third person 

there has been no loss of reputation, since reputation is the estimation in which one’s 

character is held by his neighbors or associates.”). McNaught is correct—and the 

FAA does not dispute—that her suspension qualifies for inclusion in the PRD as a 

“summar[y] of [a] legal enforcement action[]”. See 49 U.S.C. § 44703(i)(2)(A)(iii). 

However, the PRD is not a publicly accessible database. It is created as a resource 

for covered “air carrier[s],” who must “access and evaluate” a pilot’s records before 

hiring that pilot. 49 U.S.C. § 44703(i)(1). But access is not freely granted; rather, 

entities must apply for access. See 14 C.F.R. § 111.15. And once granted access, 

entities may not “share, distribute, publish, or otherwise release any record accessed 

in the database to any person or individual not directly involved in the hiring 

decision.” Id. § 111.30(b). Further, each entity “must protect the confidentiality of 

[a pilot’s] records.” Id. § 111.30(c). Finally, and perhaps most critically, reviewing 

entities may not retrieve a pilot’s records “prior to receiving that pilot’s written 

consent.” 14 C.F.R. § 111.120(a). In sum, the PRD is a private, internal database 

maintained by the FAA that certain employers access for limited purposes. Further, 

individual pilots ultimately control who sees their records. By merely including the 

fact of McNaught’s suspension in the PRD, the FAA is not disseminating that 

information to third parties. And without disclosure, there can be no reputational 

harm. Braitbert, 836 F.3d at 930; accord Barker v. TSA, 353 F. App’x 450, 453 (1st 

Cir. 2009) (“Barker also alleges that reputational harm may result from the TSA’s 

decision to place the warning notice in Barker’s TSA file. He has not, however, 

alleged that this confidential record has or ever will be accessed by the public.”). 

III.

In sum, McNaught has not demonstrated that she has suffered an injury in fact 

necessary for standing to sue in federal court. Therefore, we lack jurisdiction. The 

petition is dismissed. 
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STRAS, Circuit Judge, concurring.

Putting this case in the right jurisdictional box is more difficult than the court 

makes it out to be. One possibility is a lack of standing, the path the court chose, 

because “[t]he requisite personal interest” was gone by the time McNaught filed an 

appeal with us. Nat’l Right to Life Pol. Action Comm. v. Connor, 323 F.3d 684, 691 

(8th Cir. 2003) (quoting Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), 

Inc., 528 U.S. 167, 189 (2000)). 

Another way to view it is mootness. See Westmoreland v. NTSB, 833 F.2d 

1461, 1462–63 (11th Cir. 1987) (per curiam) (relying on mootness under nearidentical circumstances). When the administrative review process began, McNaught 

was still seeking the reinstatement of her pilot’s license. But then the case became 

moot once she received it back, even though there was no Article III court involved 

yet. See id. 

On these facts, the right answer appears to be a matter of semantics. It depends 

on whether the “[c]ase[]” or “[c]ontrovers[y]” began when the dispute was before 

the administrative agency or first reached us. U.S. Const. art. III, § 2, cl. 1. Under 

the latter scenario, McNaught lacked standing because the case was over before it 

began. If the controversy began earlier, it is now moot because there is no further 

relief we can give. See Sandidge v. Washington, 813 F.2d 1025, 1026 (9th Cir. 1987) 

(explaining that any injury was too “speculative” because the plaintiff could not 

connect a negative entry on his record to the potential loss of any specific job). Either 

way, there is no “[c]ase[]” or “[c]ontrovers[y]” for us to decide. U.S. Const. art. III, 

§ 2, cl. 1. 

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