2004 WL 595290 (N.T.S.B. Mar. 18,
2004); Oliveira, No. EA-4995, 2002
WL 31094174 (N.T.S.B. Sept. 17,
2002).>
With this amendment, the panel votes unanimously to deny
the petition for rehearing. Fed. R. App. P. 40. No further peti-
tions will be entertained.
OPINION
BEA, Circuit Judge:
Melissa Andrzejewski, a 22-year-old pilot, petitions for
review of an order by the National Transportation Safety
Board (“NTSB”) reversing the decision of an Administrative
Law Judge (“ALJ”). After a hearing, the ALJ had found in
Andrzejewski’s favor and had reversed a Federal Aviation
Administration (“FAA”) Emergency Order of Revocation
(“Revocation Order”), handed down without a hearing, which
revoked Andrzejewski’s commercial pilot’s license on the
ground that Andrzejewski performed aerobatic maneuvers too
close to the ground—indeed during takeoff—in violation of
14 C.F.R. § 91.303(e).1
We have jurisdiction pursuant to 49 U.S.C. § 46110 and 5
1
14 C.F.R. § 91.303(e) provides that “[n]o person may operate an air-
craft in an aerobatic flight . . . [b]elow an altitude of 1,500 feet above the
surface.”
ANDRZEJEWSKI v. FAA 4207
U.S.C. § 706. We grant Andrzejewski’s petition and remand
to the NTSB.
Background
Andrzejewski started flying in 2002 when she was 18 years
old. She has logged more than 1500 hours of flight time, most
during aerobatic flights in air shows and competitions.
On May 22, 2006, Andrzejewski showed her new high-
performance, single-seat Zivco Edge 540 aircraft to her fam-
ily at the Butler County Airport in Butler, Pennsylvania.
Andrew Pierce, an aviation safety inspector for the Allegheny
Flight Standards Office, and Christopher Hayden, the chief
pilot for AirQuest Aviation, were at the Butler County Airport
that day and witnessed Andrzejewski’s flight. Neither Pierce
nor Hayden had experience with Edge aircraft.
Both Pierce and Hayden observed Andrzejewski’s plane
departing the airport at a steep angle. They saw the plane do
a “wing wag.”2 Then, the plane banked steeply before making
a fast descent over the runway. After another wing wag, the
plane climbed at a very high pitch before departing. Based
solely on statements Pierce and Hayden submitted to the
FAA, but without any explanation from Andrzejewski, the
FAA Administrator concluded Andrzejewski had performed
aerobatic maneuvers during takeoff in violation of 14 C.F.R.
§ 91.303(e). The FAA Administrator issued an Emergency
Order of Revocation of Andrzejewski’s commercial pilot’s
license on September 28, 2006.
Andrzejewski timely appealed the Revocation Order to the
NTSB. At a hearing before an ALJ, the FAA presented the
testimony of Hayden and Pierce. It also presented expert testi-
2
A wing wag is a maneuver in which a pilot tilts a wing of the plane
down on one side, and then on the other side, in quick succession.
4208 ANDRZEJEWSKI v. FAA
mony concluding that Andrzejewski’s maneuvers were con-
trary to the normal operation of the Edge aircraft.
Andrzejewski presented ten witnesses, including herself.
Andrzejewski contended that nothing about her flight was
aerobatic. After takeoff, she executed a “clearing turn,” a
quick right turn followed by a left turn, which was the normal
method for the pilot of an Edge aircraft to see obstacles
directly in front of the plane during takeoff. She explained
that, due to the steep pitch at which the Edge takes off, the
area directly in front of the nose of the plane is difficult to see.
Andrzejewski planned to touch down on the runway before
taking off again, but she abandoned the maneuver due to a
tailwind.
Andrzejewski’s eyewitnesses testified that they saw noth-
ing abnormal about her flight. Her three expert witnesses tes-
tified that Andrzejewski’s flight was within the normal
operating procedures for the Edge aircraft, which procedures
include steep takeoffs, high speeds, and clearing turns. Robert
Holland, an aerobatic pilot and flight instructor, specifically
noted that a witness unfamiliar with the Edge might think that
Andrzejewski’s flight was abnormal, while in fact, for an
Edge, the flight was actually “very normal.”
The ALJ concluded Andrzejewski did not violate FAA reg-
ulations during her flight. In his oral decision, the ALJ noted
Andrzejewski’s witnesses testified that there was nothing
aerobatic about the flight. In considering the FAA’s wit-
nesses, the ALJ concluded, “I’m not saying that the [FAA’s]
witnesses didn’t see what they say, but perhaps they misun-
derstood what they saw.”
The FAA timely appealed the ALJ’s decision to the NTSB.
In a written order, the NTSB reversed the ALJ. The NTSB
concluded that the ALJ had not made credibility determina-
tions to which the NTSB owed deference. Instead, the NTSB
conducted a de novo review of the evidence. The NTSB found
ANDRZEJEWSKI v. FAA 4209
the FAA’s witnesses more credible than Andrzejewski’s and
held Andrzejewski violated 14 C.F.R. § 91.303(e) by flying
aerobatically and 14 C.F.R. § 91.13(a)3 by flying in a careless
or reckless manner. Accordingly, the NTSB reversed the
ALJ’s decision and reinstated the Revocation Order.
Andrzejewski timely filed a petition for review with this
court.
Standard of Review
Our review of a decision by the NTSB is governed by the
Administrative Procedure Act, 5 U.S.C. § 706(2)(A). Janka v.
Dep’t of Transp., 925 F.2d 1147, 1149 (9th Cir. 1991).
Accordingly, we will set aside the NTSB’s decision if we find
it to be “arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law.” 5 U.S.C. § 706(2)(A). An
agency’s decision is arbitrary and capricious if the agency
fails to follow its own precedent or fails to give a sufficient
explanation for failing to do so. See Atchison, Topeka & Santa
Fe Ry. Co. v. Wichita Bd. of Trade,
412 U.S. 800, 807-08
(1973).
Analysis
[1] Where an ALJ chooses to credit one set of witnesses’
version of events over another, he has made an implicit credi-
bility determination to which the NTSB must defer “in the
absence of any arbitrariness, capriciousness or other compel-
ling reasons.” Dutton, 7 N.T.S.B. 521, 523 (1990). The NTSB
must leave undisturbed an ALJ’s credibility finding “unless
there is a compelling reason or the finding was clearly errone-
ous.” Chirino v. NTSB, 849 F.2d 1525, 1529-30 (D.C. Cir.
1988).
3
14 C.F.R. § 91.13(a) provides that “[n]o person may operate an aircraft
in a careless or reckless manner so as to endanger the life or property of
another.”
4210 ANDRZEJEWSKI v. FAA
[2] Here, the ALJ made an implicit credibility finding when
he determined that Andrzejewski’s witnesses gave a more
accurate version of events than the version given by the
FAA’s witnesses. While the ALJ admitted he was not denying
the FAA’s witnesses saw what they said they saw, the ALJ
noted the FAA’s witnesses did not have experience with the
Edge aircraft and its flight characteristics—compared with
Andrzejewski’s witnesses—and they may have misunder-
stood the flight maneuvers they witnessed.
[3] The ALJ simply gave more weight to the account of
Andrzejewski’s flight as set forth by one side’s witnesses
rather than the other. This is precisely what triers-of-fact
should and must do when confronted with testimony that con-
flicts on such basic issues as flight path and altitude. See Dut-
ton, 7 N.T.S.B. at 521-22; see also Gould, No. EA-5085,
2004
WL 595290 (N.T.S.B. Mar. 18, 2004); Oliveira, No. EA-
4995,
2002 WL 31094174 (N.T.S.B. Sept. 17, 2002). There-
fore, in this case, the NTSB erroneously concluded the ALJ
did not make a credibility determination to which the NTSB
was required to defer.
[4] The NTSB’s failure to give the ALJ’s implicit credibil-
ity determination the requisite level of deference was contrary
to NTSB precedent and, therefore, arbitrary and capricious.4
See
Atchison, 412 U.S. at 807-08. Because the NTSB incor-
4
There is some language in the NTSB’s opinion that could be construed
as an “explanation” for failing to adhere to its own precedent. See Atchi-
son, 412 U.S. at 807-08. Such “explanations” are themselves in conflict
with NTSB precedent. First, the NTSB’s assertion that the ALJ “aban-
doned any detailed assessment of the evidence in the case as it relates to
his findings” does not justify de novo review. Andrzejewski, No. EA-5263,
2006 WL 3568702, at *4 (N.T.S.B. Dec. 4, 2006). An ALJ’s “credibility
findings as to the witnesses are implicit” even where detailed assessment
is lacking. Air E. Mgmt., Ltd., No. EA-5089,
2004 WL 999217, at *2
(N.T.S.B. May 6, 2004). Likewise, the fact the ALJ found some of the
FAA’s witnesses’ testimony helpful does not mean he must credit their
testimony completely. Andrzejewski,
2006 WL 3568702, at *5; see Dut-
ton, 7 N.T.S.B. at 522-23 (stating that “a credibility determination does
ANDRZEJEWSKI v. FAA 4211
rectly concluded the ALJ’s decision was not based on an
implicit credibility determination, however, the NTSB has not
yet addressed whether there is a “compelling reason” to
reverse the ALJ’s credibility finding or whether the finding
was “clearly erroneous.” See Chirino, 849 F.2d at 1529-30.
Thus, we remand to the NTSB to make these determinations
in the first instance. See INS v. Orlando Ventura,
537 U.S. 12,
16 (2002) (holding that where an agency has not yet consid-
ered an issue, the “ ‘proper course’ ” is to remand the matter
to allow the agency to consider the issue in the first instance)
(quoting Fla. Power & Light Co. v. Lorion,
470 U.S. 726, 744
(1985)).
[5] Accordingly, we grant Andrzejewski’s petition and
remand to the NTSB for reconsideration.
PETITION GRANTED.
not require [an ALJ] to disbelieve the entire testimony of opposing wit-
nesses,” because “[e]ven if the [ALJ] found portions of [one party’s wit-
nesses’] testimony believable, it is not inconsistent for her to have credited
the testimony of the [other party’s] witnesses as the more accurate account
of what occurred”).
