John R. Jensen v. The Administrator of the Federal Aviation Administration and the National Transportation Safety Board

641 F.2d 797 John R. JENSEN, Petitioner, v. The ADMINISTRATOR OF the FEDERAL AVIATION ADMINISTRATION and the National Transportation Safety Board, Respondents. No. 78-2135. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 4, 1980. Decided April 9, 1981. Thomas H. Lambert, and B. Frank Kennerly, San Diego, Cal., for petitioner. 1 Douglas Letter, Washington, D. C., argued for respondents; William Kanter, Dept. of Justice, Washington, D. C., on brief. 2 Petition to Review an Order of the National Transportation Safety Board. 3 Before TRASK and FLETCHER, Circuit Judges, and SOLOMON * , District Judge. SOLOMON, Senior District Judge: 4 John R. Jensen applied to the Administrator of the Federal Aviation Administration (FAA) for recertification of his second-class medical certificate. His application was denied. This denial was affirmed by the National Transportation Safety Board (NTSB). Jensen petitions this court to review the NTSB order. 5 Under FAA regulations an individual must have both an FAA commercial pilot certificate and an FAA second-class medical certificate to be a commercial pilot. Jensen holds a lifetime commercial pilot certificate. 14 C.F.R.…

John R. Jensen applied to the Administrator of the Federal Aviation Administration (FAA) for recertification of his second-class medical certificate. His application *798 was denied. This denial was affirmed by the National Transportation Safety Board (NTSB). Jensen petitions this court to review the NTSB order.

Under FAA regulations an individual must have both an FAA commercial pilot certificate and an FAA second-class medical certificate to be a commercial pilot. Jensen holds a lifetime commercial pilot certificate. 14 C.F.R. § 61.19 (1980). In 1975 when Jensen applied for medical recertification, he disclosed that he had a history of alcoholism. Although Jensen asserted that he was fully cured, the FAA, without a hearing, denied recertification under its regulations which disqualify all prior alcoholics from obtaining a medical certificate. 14 C.F.R. §§ 67.15 , 67.17 (1980) (disqualifying regulations). 1

Jensen requested the NTSB to review the denial and. the NTSB affirmed. In this court, Jensen seeks to review this determination.

While Jensen’s request for NTSB review was pending, he applied to the FAA for an exemption from the disqualifying regulations under 49 U.S.C. §…

dissenting:

I respectfully disagree with the views of the majority.

There is no factual dispute in this case. Jensen concedes that he has a prior history of alcohol abuse. 1 The NTSB’s refusal to grant him a medical certificate rests implicitly on’ its interpretation of the disqualifying regulations as requiring mandatory denial of such a certificate once the fact of prior alcohol abuse has been established. An agency’s interpretation of its own regulations is a matter peculiarly within its discretion and, if challenged, is reviewable only under the arbitrary and capricious standard. But Jensen does not challenge the agency’s interpretation of the regulations; instead, he challenges their validity. Thus, the NTSB’s decision rests also on its determination that the regulations are valid. Because the NTSB has no jurisdiction to make such a determination, see Watson v. NTSB, 513 F.2d 1081, 1082 (9th Cir. 1975), however, I view that part of its decision as mere surplusage and review the issue de novo. 2

42 U.S.C. § 4561 (c)(1) applies by its terms to all “persons,” and to all federal licenses, including pilot certificates. 3 It is not clear that an FAA medical certificate can be…