The D.C. Circuit Court of Appeals has upheld the NTSB’s revocation of an airman’s certificate based upon the airman’s Japanese conviction for importing the drug Ecstasy. In Donnelly v. Federal Aviation Administration, the airman was a Fed Ex pilot occupying a passenger seat on a Northwest flight from from Detroit to Nagoya. Upon arrival at Nagoya, customs officials found 6 ecstasy pills on the airman’s person. He was subsequently charged and convicted in a Japanese court of importing a controlled substance into Japan.
Back in the U.S., the FAA subsequently learned of the conviction and initiated a certificate action to revoke the airman’s certificate for violation of 49 U.S.C. §44710(b)(2)(revocation where an individual knowingly carried out an activity punishable, under a law of the United States or a State related to a controlled substance (except a law related to simple possession of a controlled substance), by death or imprisonment for more than one year; and an aircraft was used to carry out or facilitate the activity; and the individual served as an airman, or was on the aircraft, in connection with carrying out, or facilitating the carrying out of, the activity).
After a hearing and appeal to the full NTSB board, revocation of the airman’s certificate was affirmed. The airman then appealed the revocation to the D.C. Circuit Court of Appeals arguing that “reliance on the Japanese criminal proceeding as evidence in his case was impermissible and therefore that the revocation was not supported by substantial evidence” and “the NTSB’s interpretation of ‘use’ of an aircraft under 49 U.S.C. §44710(b)(2) was arbitrary and capricious or contrary to law.
The D.C. Circuit held that the revocation was supported by corroborative evidence in addition to the evidence of the Japanese conviction which was unrebutted by the airman and properly relied upon by the NTSB. The Court also rejected the airman’s argument that he did not “use” the aircraft because his mere presence on the plane is insufficient to say he “used” the plane in the commission of the unlawful activity. The Court noted that “[t]he statute requires, in addition to ‘use’ of an aircraft, that the individual either served as an airman or was on the aircraft in connection with the outlawed activity. 49 U.S.C. § 44710(b)(2)(C). Thus Congress clearly intended that one could ‘use’ an airplane within the statutory meaning without serving as an airman, or even without being on the plane.”
