Legal.com Links:

Home
Bookstore
Legal Forms
Legal Service Plans Legal Research
Legal Tech

Legal Areas :

Bankruptcy
Criminal
DUI DWI
Family-Divorce
Personal Injury
ADR-Mediation

Resources for:

Legal Professionals
Law Students

Supreme Court Upholds Lethal Injection. Full Opinion: Baze v. Rees

II.

Under the Administrative Procedure Act (APA), a court may set aside agency action found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Our review under the APA is highly deferential, but agency action is arbitrary and capricious if it departs from agency precedent without explanation. Agencies are free to change course as their expertise and experience may suggest or require, but when they do so they must provide a "reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored." Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C.Cir. 1970); see also Philadelphia Gas Works v. FERC, 989 F.2d 1246, 1250-51 (D.C.Cir. 1993). An agency's failure to come to grips with conflicting precedent constitutes "an inexcusable departure from the essential requirement of reasoned decision making." Columbia Broad. Sys. v. FCC, 454 F.2d 1018, 1027 (D.C.Cir.1971).

In the orders challenged here, the Board deviated from its precedent in three respects. The first is in the NTSB's answer to the question whether FAA delays should be more readily excused if the alleged FAR violation is relatively serious. In Administrator v. U.S. Jet, Inc., 7 NTSB 246, 1990 WL 339004 (1990) — a case involving an alleged lack of qualification — the Board unequivocally rejected the argument that it should bend its procedural rules because the alleged violation was serious. In dismissing the FAA's appeal on the grounds that the FAA had failed to show "good cause" for its failure to meet the prescribed deadline for filing its appeal brief, the NTSB stated:

We decline the invitation to carve out for the Administrator's benefit alone a public interest exception to our policy of dismissing appeals that are not prosecuted with due diligence.

We recognize that even cases involving important air safety issues can fall victim to procedural non-feasance.... However, ... we think the public interest and basic principles of fairness favor rules that treat litigants equally over those that, based on presumptions flowing from the seriousness of alleged conduct, create procedural advantage for one party. That circumstance ... counsels against both the necessity and the propriety of modifying the good cause standard in a way that, in effect, would allow the Administrator to escape responsibility for compliance with rules of practice we strictly apply to all others. 7 NTSB at 246-47.

In a nearly identical case four years later, the Board again refused to find that the public interest in air safety could create an exception to the Board's requirement that good cause be shown to excuse a delay:

[P]rocedural decisions should [not] be based on post-default generalities or presumptions about the importance or the desirability of reaching the merits of a case a party ha[s] not handled in accordance with applicable rules. ...

We continue to believe that requiring parties to exercise a high level of diligence in the prosecution of their appeals to us is the best way to ensure that all cases, and especially those that may involve extraordinary air safety concerns, will be heard by the full Board.

Petition of White, NTSB Order No. EA-4100, 1994 WL 66062, at *1-*2.

In its Order Denying Appeal in this case, however, the NTSB considered the nature and seriousness of Ramaprakash's FAR violation in determining whether the FAA had shown good cause. The Board emphasized that it would be "particularly difficult to justify" applying the stale complaint rule to bar the FAA's complaint, "given the importance to air safety of monitoring the alcohol-related infractions of certificated airmen, and the likelihood that they would go undetected but for the self-disclosure requirements of FAR section 61.15(e)." Order Denying Appeal at 7.

This suggestion that the Board is more willing to find good cause in cases that have serious implications for air safety is inconsistent with U.S. Jet and White, and the Board did not attempt to explain that departure from precedent. Nor did the Board explain how its statement comports with the text of Rule 33. The rule allows a stale complaint to escape dismissal if the FAA can show good cause for the delay, but it also states that a stale complaint can survive if the FAA can show that "the imposition of a sanction is warranted in the public interest, notwithstanding the delay or the reasons therefor." 49 C.F.R. § 821.33(a)(1). There would appear to be little need for the public interest to be weighed in any determination of whether good cause exists for delay, when the rule provides an independent and adequate avenue by which stale complaints found to implicate the public interest can proceed.

Indeed, the Board in the past has found the seriousness of a violation to be a reason to be less, rather than more, lenient in finding good cause for delay. The Board noted in Administrator v. Dill, NTSB Order No. EA-4099, 1994 WL 78131, that the stale complaint rule stems from the fact that "unsafe conditions require speedy remedy" and that the rule "is meant to advance, not retard, safety enforcement." Id. at *3. An NTSB administrative law judge later took Dill to mean that "justice delayed is safety denied." Neel v. Administrator, NTSB Docket No. 210-EAJA-SE-13573 (1996), 1994 WL 804032, app. (Administrative Law Judge Opinion) at *11 n.34. In Ramaprakash's case, by contrast, the Board accepted the argument that serious violations can serve to excuse investigative delays — that even when justice is delayed, safety is enhanced.

The Board's second departure from its precedent lies in its analysis of the role that prejudice plays under the stale complaint rule. For more than twenty years, the NTSB has explained that a party seeking dismissal of a stale complaint is not required to show prejudice from the delay. In Administrator v. Zanlunghi, 3 NTSB 3696, 1981 WL 40257 (1981), the Board was unequivocal: "[Rule 33] ... does not impose on a respondent the burden of demonstrating that a specific delay has in fact prejudiced his defense." Id. at 3697. Administrator v. Parish, 3 NTSB 3474, 1981 WL 40232 (1981), is equally clear: "Rule 33 reflects our recognition that a respondent's ability to defend against FAA charges can be seriously prejudiced through unreasonable delay.... The rule thus creates a presumption that prejudice does exist when six months have passed and a respondent has not been informed that action is contemplated...." Id. at 3474 (emphases added); see also Dill, 1994 WL 78131, at *3 n. 9 ("The [stale complaint] rule does not impose on a respondent the burden of demonstrating that a specific delay has in fact prejudiced his defense. Instead, a respondent is presumed to have been prejudiced" (citing Zanlunghi)); Administrator v. Brea, NTSB Order No. EA-3657, 1992 WL 220488, at *1 ("Rule 33 raises a presumption that a lapse of more than six months between the occurrence of an alleged FAR violation and the issuance of a [NOPCA] prejudices a respondent" (citing Parish)).

The Board's approach here is a complete about-face. In the Order Denying Appeal, the Board stated:

[Ramaprakash] does not assert that, had the complaint been filed sooner, he would have answered differently or been better equipped to defend against the Administrator's allegations....

In these circumstances, specifically, where a respondent's ability to defend against a charge has not been compromised by the passage of time between the admitted violation and the action to sanction it, it would be arbitrary to dismiss the complaint under a rule designed to forestall evidentiary difficulties that can arise because of prosecutorial delay.

Order Denying Appeal at 7. The Board reiterated this holding in the Order Denying Reconsideration: "As we explained in our original decision, we decline to extend the stale complaint rule under these circumstances, i.e., where the `delay' is non-prejudicial to respondent's ability to defend against the charges (having admitted all factual allegations)...." Order Denying Reconsideration at 1. This language is impossible to square with Zanlunghi, Parish, and their progeny. Those cases make it clear that prejudice is presumed when a complaint alleges violations that occurred more than six months before the NOPCA. Applying the stale complaint rule to Ramaprakash's case would not "extend" the rule at all — unless the Board is no longer adopting a presumption of prejudice.

The FAA argues that the Board did not impose a requirement of prejudice — that it simply concluded that the presumption of prejudice had been overcome in Ramaprakash's case. FAA Br. at 41. The NTSB has indeed indicated that the presumption of prejudice is rebuttable. See, e.g., Dill, 1994 WL 78131, at *3 n. 9 (citing Zanlunghi, 3 NTSB at 3697). Contrary to the FAA's assertion, however, the Board did not characterize its decision as a finding that the presumption in Ramaprakash's case had been rebutted. Both of the challenged orders simply noted that prejudice was absent — not that it had been presumed and then rebutted. Order Denying Appeal at 7; Order Denying Reconsideration at 1.

The third, and perhaps most consequential, respect in which the Board departed from its precedent involves the longstanding requirement of prosecutorial diligence in stale complaint cases. In denying Ramaprakash's appeal, the Board noted that the stale complaint rule is "designed to forestall evidentiary difficulties that can arise because of prosecutorial delay," Order Denying Appeal at 7, but avoiding such prejudice is not the only purpose of the stale complaint rule. At least as important, the Board has emphasized for decades, is the incentive that the rule provides for the FAA to improve air safety by promptly investigating and punishing those who violate the FAR. As long ago as 1974, the NTSB declared that "[i]t is the purpose of [the stale complaint rule] to assure that the Administrator's investigation and prosecution of alleged regulatory violations is pursued with reasonable diligence and that prospective charges not be held over an airman's head for an unreasonable period...." Stewart, 2 NTSB at 1142; see also Dill, 1994 WL 78131, at *3 (same, adding that the rule "will ordinarily bar untimely prosecution, and thereby act as a stimulus to diligent safety enforcement").

In its prior cases interpreting Rule 33, the Board has repeatedly stated that diligent investigation of possible violations is essential to a finding that good cause exists for a delay in issuing a NOPCA. In Zanlunghi, for example, the NTSB noted that a finding of good cause is warranted when there is evidence that "reasonable diligence [was] exercised following the FAA's non-contemporaneous receipt of information concerning the potentially actionable conduct." 3 NTSB at 3697. The Board elaborated that it knew that "the FAA may not always immediately learn of conduct which may have been violative of the FAR." Id. In the same vein, the Board stated in Brea that "belated awareness" of "the possibility of an FAR violation" may serve as good cause for a delay in issuing a NOPCA, "provided that reasonable prosecutorial diligence is exercised" after the FAA receives "information concerning the act(s) or omission(s) which may be indicative of such a violation." 1992 WL 220488, at *1. Most recently, in Dill, the Board said that to avoid dismissal of a stale complaint, the Administrator must show "that he exercised reasonable prosecutorial diligence after his receipt of the information concerning the possible violations." 1994 WL 78131, at *4.

Zanlunghi, Brea, and Dill speak of potentially actionable conduct, of possible violations, of conduct that may have violated the FAR, or of acts or omissions that may indicate a violation. None of the cases suggests that the FAA can wait until it has confirmation of a violation before beginning to work diligently on issuing a NOPCA. This choice of language makes sense: if diligence is required, it should begin as soon as the ball is in the FAA's court. It would make little sense to apply a requirement of diligence to only part of the period during which a case demanded nothing other than FAA attention. The Board in these cases quite reasonably recognized that in some situations the FAA may be completely ignorant of a potential violation for some time, but insisted that once the FAA is tipped off to a potential violation, it must act diligently if it intends to show good cause for the overall delay.

The Board departed from this precedent in the Order Denying Appeal, adopting a different trigger for the diligence requirement. Preliminary indications were once adequate, but now the discovery of the violation itself is the triggering event. See Order Denying Appeal at 5 (holding that the Administrator must show that "upon discovery, she investigated the matter with due diligence"). As the dissenting Board members noted, the Board's holding meant that "so long as the Administrator proceeds with due diligence after she discovers the violation, she may wait an indefinite amount of time ... to discover that violation and save her complaint from the stale complaint rule." Order Denying Reconsideration at 4.

The Board majority found that although the NDR tape of May 16, 1997, listed Ramaprakash's name, "the Administrator did not have an indication of a possible section 61.15(e) violation until her NLETS query" on February 4, 1998. Order Denying Appeal at 6. This statement purports to hew more closely to the language of Zanlunghi and Brea, but it does not stand up to scrutiny because it fails to account for why the investigator conducted the NLETS query. No NLETS query would have been necessary unless the FAA already had an indication of a possible violation. The NDR tape provided that indication, and the tape meets the definitions in Zanlunghi, Brea, and Dill that emphasize preliminary information as the trigger for the prosecutorial diligence requirement. The NLETS information increased the probability that a violation had occurred (which ripened to a certainty when the FAA agent determined on February 10, 1998, that Ramaprakash had not reported the motor vehicle action); but if the FAA can take as long as it pleases to move from one level of certainty to another — when the only constraint is the FAA's own allocation of its investigative resources — then the prosecutorial diligence requirement so clearly established in the Zanlunghi line of cases has all but disappeared. The Board cannot undertake such a departure from its precedent without providing a reasoned explanation for its decision, and it provided none here.

The Board's heavy reliance on Administrator v. Ikeler, NTSB Order No. EA-4695, 1998 WL 564088, in both of the challenged orders, see Order Denying Appeal at 5, 8; Order Denying Reconsideration at 1-2 n.1, may account for why the Board did not explain the inconsistency between its current approach and that of Zanlunghi and its progeny. Ikeler, decided in 1998, held that "in order to survive a motion to dismiss [a] stale complaint, [the Administrator] must show that good cause existed for the delay in discovering the incident, and that reasonable diligence was exercised in investigating the matter once she learned that a possible violation had occurred." 1998 WL 564088, at *1. Ikeler is at least arguably distinguishable from the orders at issue here,3 but even if we assume (as the majority of the Board did) that Ikeler is controlling, that assumption would not defeat the argument that the Board has departed from its precedent; it would merely require us to examine whether Ikeler itself contains an explanation for its departure from cases such as Brea and Zanlunghi. See Hatch v. FERC, 654 F.2d 825, 834 (D.C.Cir.1981) (noting that FERC's duty to explain a departure from precedent is not discharged by FERC's reliance on two of its recent cases "since they do not contain announcement of a new standard and supporting rationale either"); see also Pittsburgh Press Co. v. NLRB, 977 F.2d 652, 660 (D.C.Cir.1992) ("We do not think it enough to say that this latest decision is consistent with the general drift of NLRB precedent, as it is that very drift that troubles us."). Ikeler does not contain the needed explanation. It merely purports to rely on Brea and "cases cited therein," 1998 WL 564088, at *1, while articulating a different standard that led in Ramaprakash's case to a significant curtailment of the prosecutorial diligence requirement.

The FAA argues that Ikeler (and, by extension, the orders challenged here) is not a departure from Board precedent at all, suggesting that it is consistent with the Board's decisions in Administrator v. Gotisar, NTSB Order No. EA-4544, 1996 WL 784076, and Administrator v. Cady, 5 NTSB 364, 1985 WL 71068 (1985). FAA Br. at 28-30. The delay in Gotisar occurred when the FAA had to wait for the State of Hawaii to send it copies of an aviator's driving record; in Cady the respondent was a maintenance employee who used improper parts when overhauling an aircraft engine — a violation that was not discovered until the engine, still in the possession of its owners, was disassembled several years later. See Gotisar, 1996 WL 784076, at *1; Cady, 5 NTSB at 366. These cases may indeed hold that "good cause existed for the belated discovery of violations where the [FAA] had to go beyond information in its possession to determine the existence of a regulatory violation," FAA Br. at 35, but they are hardly analogous to the present case, in which no third party obstructed the FAA's access to the information not already in its possession. This may be why the Board itself did not rely on Cady or Gotisar in Ikeler, and cited Gotisar in Ramaprakash's case only for its dictum on the purpose of the stale complaint rule. See Order Denying Appeal at 7.

Next Page (3 of 3)

©2008 Legal.com, Inc. All rights reserved
Legal Recourse and Legal.com™ are trademarks of Legal.com, Inc.

The opinions expressed in the various articles collected here are the opinions of their authors and not necessarily the opinion of Legal Recourse or Legal.com. Trademarks are the property of their holders.