In a recent decision following remand from the 9th Circuit Court of Appeals, the NTSB affirmed an administrative law judge’s (“ALJ”) dismissal of the FAA’s emergency order revoking an airman’s commercial pilot certificate. In the underlying action, Administrator v. Andrzejewski, NTSB Order No. EA-5263 (2006), the Board granted the FAA’s appeal and reversed the ALJ’s decision dismissing the emergency order of revocation. Although the Board acknowledged the deference it owed to the ALJ’s credibility findings, it held that, “credibility of witnesses is not controlling here; the weight of relevant and material evidence is the critical determination that was improperly applied below.”
However, the 9th Circuit disagreed. In Andrzejewski v. FAA the Court held that “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.” As a result, the Court remanded the case back to the Board because the Board had “not yet addressed whether there is a ‘compelling reason’ to reverse the ALJ’s credibility finding or whether the finding was ‘clearly erroneous,'” the second step of the analysis to determine whether an ALJ’s credibility findings should be reversed.
On remand, in Administrator v. Andrzejewski, NTSB Order No. EA-5481 (2009), the Board initially reiterated established precedent that “resolution of a credibility determination, unless made in an arbitrary or capricious manner or unless clearly erroneous, is within the exclusive province of the law judge.” Unless the testimony accepted by the ALJ is found to be inherently incredible or inconsistent with the overwhelming weight of the evidence, the Board will defer to the ALJ’s credibility determination even if other evidence in the record could have been given greater weight.
The Board then concluded that “[u]pon reevaluation of this record in light of the Court’s remand and the Court’s interpretation of the Board’s precedent, we are compelled to find insufficient basis to reverse the law judge’s decision, based upon what the Ninth Circuit characterizes as exclusively credibility-based evidence.” It also observed that the FAA had not demonstrated that the ALJ’s determination was arbitrary and capricious or clearly erroneous. As a result, the Board affirmed the ALJ’s dismissal of the FAA’s charges against the airman.
Nice to see the NTSB called to task. It can be hard enough to convince an ALJ that an airman’s witnesses/evidence are more credible than the witnesses/evidence the FAA presents at the hearing. However, to convince the ALJ (especially someone like Judge Fowler) and then have the NTSB ignore the ALJ’s findings is frustrating, to say the least. Hopefully the 9th Circuit’s remand/reprimand will encourage the NTSB to follow its precedent more closely in the future.
