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Grillo v. National Transportation Safety Board

filed*fn*: May 15, 1995.

MARCO ANTHONY GRILLO, PETITIONER
v.
NATIONAL TRANSPORTATION SAFETY BOARD; FEDERAL AVIATION ADMINISTRATION, RESPONDENTS



Petition for Review of a Decision of the National Transportation Safety Board. Order No. EA-3994.

Before: Hall and Leavy, Circuit Judges, and Hogan, District Judge*fn*

MEMORANDUM *

Marco Anthony Grillo petitions for review of an order of the National Transportation Safety Board ("NTSB") affirming the revocation of his airline transport pilot ("ATP") and certified flight instructor ("CFI") certificates based on his falsification of airman certification records in violation of 14 C.F.R. § 61.59(a)(2). The NTSB had jurisdiction to review the Federal Aviation Administration's ("FAA") emergency order of revocation pursuant to 49 U.S.C.App. § 1429(a). We have jurisdiction over petitioner's timely appeal pursuant to 49 U.S.C.App. § 1486(a). We affirm.

I.

Under 49 U.S.C. § 1429(a), any certificate held by an airman may be suspended or revoked "if, as a result of any . . . investigation made by the Secretary of Transportation, he determines that safety in air commerce or air transportation and the public interest [so] requires." 49 U.S.C. § 1429(a). Grillo admits that he violated section 61.59(a)(2) by falsely reporting that airmen Clument, Judeh and McCutchen failed their flight checks when, in truth, they passed. He explains his conduct as an attempt to achieve what he perceived to be the FAA's "required" failure rate. Grillo argues that the Administrator violated his substantive due process rights by finding that his act of tampering with his pass/fail ratio was detrimental to aviation safety. In Grillo's mind, his falsifications could have had no effect on air safety because Clument, Judeh and McCutchen were fully qualified airmen.

In support of his position, Grillo points to the opinion of retired FAA Inspector Stowe who testified that the false failure of qualified airmen had "no impact . . . on aviation safety whatsoever." R. at 515. However, the record contains contradictory testimony that the NTSB was entitled to credit. Inspector Swanson opined that Grillo's conduct had an indirect impact on air safety in that it called into question "the integrity of the system." R. at 415.

Grillo's argument that the impact of his conduct on air safety should be Judged solely by reference to the qualifications of the three airmen ignores the FAA's larger interest in the integrity of its airman certification system. The NTSB has previously emphasized:

the need, when determining materiality in a case such as this, to look at the intentionally false entry in the logbook as it relates to the certification framework generally, not just in connection with the application which gave rise to the alleged violation. Viewed in this broader light, any logbook entry which in any way illustrates compliance with any certification or rating requirement . . . is material for purposes of a Section 61.59(a)(2) violation. The maintenance of the integrity of the system of qualification for airman certification, which is vital to aviation safety and the public interest, depends directly on the cooperation of the participants and on the reliability and accuracy of the records and documents presented [to the FAA] to demonstrate qualification."

Administrator v. Cassis, 4 N.T.S.B. 555, 557, 1982 WL 44941, at *2-*3 (N.T.S.B. Sept. 22, 1982), aff'd sub nom. Cassis v. Helms, 737 F.2d 545 (6th Cir. 1984).

See also Administrator v. Cranford, 5 N.T.S.B. 343, 1985 WL 71063, at *4 (same) (N.T.S.B. May 22, 1985); Administrator v. Berry, 1988 WL 250286, at *6 (N.T.S.B. Mar. 3, 1988) ("In recent years, the Board has held that intentional falsification . . . is sufficiently damaging to the airman certification process as to pose a substantial threat to aviation safety and to demonstrate lack of qualifications on the part of the person who falsified . . . the application or record."); Twomey v. National Transp. Safety Bd., 821 F.2d 63, 68 (1st Cir. 1987) ("Deliberate falsification, even in relatively small matters, can undermine the effectiveness of the system, with adverse effects on airline safety.")

In connection with Grillo's case, the NTSB pointed out that inaccurate record-keeping may prevent the FAA from making a timely discovery of a Designated Pilot Examiner's ("DPE") inadequate testing practices, thus calling into question the qualifications of both the DPEs and the individuals they certificate. Grillo does not dispute that his "false failures" allowed him to avoid stepped up monitoring of his performance as a DPE. Because such avoidance potentially could have thwarted the FAA's important efforts at quality control, we conclude that the NTSB's finding that Grillo's conduct had a negative impact on air safety was supported by substantial evidence. Further, we are persuaded that the NTSB did not violate Grillo's constitutional rights by finding that he compromised air safety. As stated in Borregard v. National Transp. Safety Bd., 46 F.3d 944, 947 (9th Cir. 1995), "the state has broad discretion to regulate professions through the police power, subject only to rational basis review. Because the qualification standards requiring accurate entries in [records] are rationally connected to the public interest in safe air travel, there is no constitutional violation here."*fn1

II.

The NTSB held that Grillo lacked the "care, judgment, and responsibility required of the holder of any certificate." Grillo disagrees, contending that the FAA should have suspended, rather than revoked, only the certificate necessary to his service as a DPE -- i.e., the CFI certificate.

The plain language of section 1429(a) authorizes the FAA to suspend or revoke "any type certificate" if air safety requires. 49 U.S.C. § 1429(a). In determining whether a particular sanction is appropriate, the relevant inquiry is whether the penalty is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Go Leasing, Inc. v. National Transp. Safety Bd., 800 F.2d 1514, 1518 (9th Cir. 1986). "The arbitrary and capricious standard requires a 'wide deference' be given to an agency's choice of sanctions." Id. (quoting Holmes v. Helms, 705 F.2d 343, 347 (9th Cir. 1983) (per curiam)). However, because the FAA operates under a specific policy of mandating uniformity of sanctions, in deciding whether a particular sanction is arbitrary and capricious this court considers whether the sanction has been imposed in the past for similar violations. Essery v. Dept. of Transp., Nat. Transp. Safety Bd., 857 F.2d 1286, 1291 (9th Cir. 1988). See Department of Transportation FAA Order No. 2150, P 203c.3 ("Each ...


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