           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                        2    Kratt v. Garvey                             No. 02-3324
        ELECTRONIC CITATION: 2003 FED App. 0309P (6th Cir.)
                    File Name: 03a0309p.06                                                    _________________
                                                                                                   COUNSEL
UNITED STATES COURT OF APPEALS
                                                                          ARGUED: G. Christopher Kelly, Atlanta, Georgia, for
                  FOR THE SIXTH CIRCUIT                                   Petitioner.   Jeffrica Jenkins Lee, UNITED STATES
                    _________________                                     DEPARTMENT OF JUSTICE, CIVIL DIVISION,
                                                                          APPELLATE SECTION, Washington, D.C., for Respondent.
 FREDERICK JOHN KRATT,          X                                         ON BRIEF: G. Christopher Kelly, Atlanta, Georgia, for
                    Petitioner, -                                         Petitioner. Jeffrica Jenkins Lee, John C. Hoyle, UNITED
                                 -                                        STATES DEPARTMENT OF JUSTICE, CIVIL DIVISION,
                                 -  No. 02-3324                           APPELLATE SECTION, Washington, D.C., for Respondent.
           v.                    -
                                  >                                                           _________________
                                 ,
 JANE F. GARVEY ,                -                                                                OPINION
 Administrator, Federal          -                                                            _________________
 Aviation Administration,        -
                  Respondent. -                                              ALGENON L. MARBLEY, District Judge. Frederick John
                                 -                                        Kratt (“Kratt” or “Petitioner”) petitions this Court to review
                                N                                         the decision of the National Transportation Safety Board
       On Appeal from the National Transportation                         (“NTSB”), affirming the revocation of his pilot’s license.
                      Safety Board.                                       Respondent, the Administrator of the Federal Aviation
                     No. SE 15239.                                        Administration (the “Administrator”), revoked Kratt’s pilot’s
                                                                          license because he pleaded guilty to the charge of possession
                     Argued: June 17, 2003                                of marijuana with the intent to distribute and flew an airplane
                                                                          in the commission of that crime. Kratt appealed the
             Decided and Filed: August 28, 2003                           Administrator’s order revoking his pilot’s license to the
                                                                          NTSB, which affirmed the Administrator’s order. Kratt now
        Before: BOGGS and GILMAN, Circuit Judges;                         seeks review of the NTSB’s order, contending that the order
                 MARBLEY, District Judge.*                                was based on insufficient evidence to revoke his license and
                                                                          that he was denied due process of law. This Court has
                                                                          jurisdiction over this appeal from the NTSB pursuant to 49
                                                                          U.S.C. § 44710(d)(3), which specifically gives this Court
                                                                          authority to review NTSB orders revoking a pilot’s license,
                                                                          and 49 U.S.C. § 46110(a), which generally vests this Court
                                                                          with jurisdiction over petitions for review of an order of the
    *
                                                                          Administrator of the FAA. For the following reasons, we
     The Honorable Algenon L. Marbley, United States District Judge for   AFFIRM the order of the NTSB.
the Southern District of Ohio, sitting by designation.

                                  1
No. 02-3324                             Kratt v. Garvey      3    4      Kratt v. Garvey                             No. 02-3324

                    I. BACKGROUND                                 abandoned the plane. Later that night, Kratt called an
                                                                  attorney, who assisted him in surrendering to customs
                  A. Factual Background                           officers.
   Petitioner lives outside Memphis, Tennessee, where he has        Kratt eventually agreed to plead guilty to possession of
been an automobile salesman for about twenty years.               marijuana with intent to distribute and to testify against
Although his primary job is selling cars, he has a passion for    Johnson and the other men involved with the drug operation
flying airplanes. To fund his interest in flying, Kratt has       that Kratt had been facilitating. Kratt was unaware that he
frequently chartered or leased airplanes and flown people for     could lose his pilot’s license by pleading guilty and feared
hire to both business and pleasure destinations. In April         that if he did not plead guilty, he would face greater harm to
1996, Kratt began to fly business trips for Andre Johnson, one    his life and career.
of his automobile customers. Only later did Kratt learn that
Andre Johnson was transporting marijuana from Texas to              On August 25, 1996, Kratt entered his plea of guilty before
Memphis. Kratt first flew Johnson and his brother to              the United States District Court for the Northern District of
McAllen, Texas, a town near the Mexican border. Kratt             Mississippi to the charge of possessing with intent to
believed that Johnson owned a cleaning business of some           distribute approximately 200 pounds of marijuana. At Kratt’s
kind and did not think to question his reasons for traveling to   plea hearing, the United States presented the following factual
Texas.                                                            basis for Kratt’s plea:
   Later, Kratt flew Johnson’s brother to Harlingen, Texas,              The government would show that on or about May the
and flew a third trip with Johnson’s brother and cousin to            15th, 1996, Frederick John Kratt piloted a plane, to wit:
Brownsville, Texas. On the third trip, the brother took a bus         A Cessna 182 Skylane aircraft, from south Texas to the
home and, during the flight home with the cousin, Kratt               Olive Branch, Mississippi airport, briefly stopping before
thought he smelled marijuana in his plane. Kratt asked the            continuing onto the Holly Springs Airport in Marshall
cousin about the odor, who informed him that they had been            County, Mississippi. Upon arriving at the Holly Springs
transporting marijuana on all three trips. Kratt became angry         Airport, the defendant and a passenger abandoned the
and landed his plan in Texarkana, where he put Johnson’s              airplane and attempted to escape.
cousin and his bags out of the plane. Kratt did not receive
payment for the third trip.                                              The government would show that the defendant’s
                                                                      aircraft was being surveilled from south Texas to the
   Although Kratt planned never to fly again for Johnson, he          Holly Springs Airport by a chase plane operated by the
ultimately gave in when Johnson repeatedly telephoned him             U.S. Custom[s] Service agents utilizing a forward
and threatened to injure Kratt’s children. During the fourth          looking infrared tracking system known as Fleer. When
trip to Texas, Johnson’s cousin allegedly kept Kratt at               the defendant’s plane initially arrived at the Olive
gunpoint during the entire trip. On the trip home, Kratt first        Branch, Mississippi airport, U.S. Custom[s] agents on
landed his plane at an airport in Mississippi where customs           the ground attempted to block the runway, but were
officials were waiting for him. Johnson’s cousin ordered              unsuccessful, and the defendant’s plane took off headed
Kratt to take off again immediately after they landed. Kratt          for the Holly Springs Airport where the plane [was]
flew the plane to another airport nearby, where they                  abandoned after landing.
No. 02-3324                             Kratt v. Garvey       5   6    Kratt v. Garvey                             No. 02-3324

     The government would show through testimony and              certificate because he had been convicted of possession of
  documentary evidence that approximately 200 pounds of           marijuana with intent to distribute and had used an aircraft
  marijuana was seized from the area immediately                  and served as an airman in connection with the offense. The
  surrounding the airplane along with the flight log and          FAA issued its Order of Revocation on April 29, 1998, but
  flight bag and other documentation linking the defendant        only after Kratt had a telephone conference with the FAA in
  to the abandoned airplane.                                      February 1998. Kratt chose to appeal the FAA’s decision to
                                                                  the NTSB, and the FAA filed its Complaint, consisting of a
    The government would further show that the                    copy of its Order of Revocation, before the NTSB on May 18,
  surveilling agents witnessed the removal of the marijuana       1998. The FAA’s Complaint stated that Kratt’s pilot’s license
  from the airplane by one of its occupants prior to being        was revoked pursuant to 14 C.F.R. § 61.15(a)(2), 49 U.S.C.
  abandoned.                                                      § 44709(b), and 49 U.S.C. § 44710(b)(1).
    The government would show further that shortly                  On August 17, 1999, an Administrative Law Judge (“ALJ”)
  thereafter the defendant contacted the U.S. Custom[s]           granted the Administrator partial summary judgment
  Service and surrender[ed] to authorities.          The          affirming her revocation of Kratt’s pilot’s license pursuant to
  government would show that the defendant thereafter             14 C.F.R. § 61.15(a)(2). That provision permits the
  fully cooperated with the U.S. Customs Service                  revocation of a pilot’s license if the pilot is convicted of
  admitting his involvement and the involvement of others         certain drug-related offenses. See 14 C.F.R. § 61.15(a)(2)
  in the possession with intent to distribute marijuana           (2003). But the ALJ denied the Administrator summary
  recovered from the defendant’s plane.                           judgment regarding revocation of Kratt’s license pursuant to
                                                                  49 U.S.C. § 44710(b)(1). The ALJ determined that summary
After the United States presented this factual basis for its      judgment was not appropriate because revocation pursuant to
charges against Kratt, the court asked him, “Is the factual       § 44710(b)(1) requires the Administrator to establish that
basis essentially correct, Mr. Kratt?” Kratt responded, “Yes,     Kratt was not only convicted of a drug-related offense, but
sir.”                                                             also that an aircraft was used in commission of the offense
                                                                  and that Kratt served as an airman or was on the aircraft in
                  B. Procedural History                           commission of the offense. See 49 U.S.C. § 44710(b)(1)(A),
                                                                  (B) (West 2003).
   The Federal Aviation Administration (“FAA”) sent Kratt a
letter on June 23, 1997, informing him that he was under            On November 30, 1999, the ALJ held a hearing on the
investigation because he had pled guilty to possession of         record to consider evidence regarding the revocation of
marijuana with intent to distribute. Kratt accepted the           Kratt’s pilot’s license pursuant to § 44710(b)(1). The ALJ
opportunity to respond to the FAA’s letter, and wrote a           ultimately found that the transcript of Kratt’s plea hearing
handwritten response in which he explained the circumstances      conclusively established that the requirements of
surrounding his conviction. Although he argued that he was        § 44710(b)(1) were satisfied. Nevertheless, the ALJ heard
not a willing participant in the crime, he noted that he “felt    testimony from Kratt concerning his conviction. Kratt
responsible for at least some of the crime.” The FAA sent         appealed the decision of the ALJ to the full NTSB, which
Kratt a Notice of Proposed Certificate Action on August 27,       affirmed the ALJ’s ruling. Finally, the NTSB denied Kratt’s
1997, notifying Kratt that it intended to revoke his pilot’s      request for reconsideration.
No. 02-3324                              Kratt v. Garvey      7    8      Kratt v. Garvey                              No. 02-3324

  Kratt now petitions this Court for review of the NTSB’s          NTSB de novo.”); Bennett v. NTSB, 66 F.3d 1130, 1136 (10th
decision.                                                          Cir. 1995) (“[W]e review [the NTSB’s] interpretation of
                                                                   constitutional or statutory provisions de novo.”); Essery v.
              II. STANDARD OF REVIEW                               NTSB, 857 F.2d 1286, 1288 (9th Cir. 1988) (noting that when
                                                                   reviewing NTSB decisions, “[p]urely legal questions are
   We review the NTSB’s factual findings according to the          reviewed de novo”).
“substantial evidence” standard of review. “Findings of fact
of the Board are conclusive if supported by substantial                                   III. DISCUSSION
evidence.” 49 U.S.C.A. § 44710(d)(3) (West 2003)
(providing for judicial review specifically for revocation of a                 A. Evidence to Support Revocation
pilot’s license); see also § 46110(c) (providing generally for
judicial review of decisions of the Administrator).                   Kratt argues that the Administrator relied on insufficient
Substantial evidence “means such relevant evidence as a            evidence when she revoked his pilot’s license pursuant to 49
reasonable mind might accept as adequate to support a              U.S.C. § 44710(b)(1). He maintains that his criminal
conclusion.” Consol. Edison Co. of N.Y. v. NLRB, 305 U.S.          conviction for possession of marijuana with intent to
197, 229 (1938); Blackman v. Busey, 938 F.2d 659, 661 (6th         distribute was insufficient evidence to satisfy the
Cir. 1991) (applying substantial evidence standard for             requirements of § 44710(b)(1) for revocation of his pilot’s
reviewing revocation of pilot’s license). The Administrative       license. The Administrator contends that Kratt’s guilty plea
Procedure Act (“APA”) also requires the substantial evidence       provided sufficient evidence for revocation pursuant to
standard of review in this case. 5 U.S.C.A. § 706(2)(E) (West      § 44710(b)(1) and that the Administrator and the NTSB in
2003). According to the APA, this Court has authority to           fact relied on more than just Kratt’s conviction.
“hold unlawful and set aside agency action, findings, and
conclusions found to be . . . (E) unsupported by substantial         The Administrator is required to revoke an individual’s
evidence in a case subject to sections 556 and 557 of this title   “airman certificate” if that individual
or otherwise reviewed on the record of an agency hearing
provided by statute.” Id. The decision of the NTSB under               is convicted, under a law of the United States or a State
review in this case was made “after providing notice and an            related to a controlled substance (except a law related to
opportunity for a hearing on the record.” 49 U.S.C.A.                  simple possession of a controlled substance), of an
§ 44710(d)(1). Therefore, the substantial evidence standard            offense punishable by death or imprisonment for more
of 5 U.S.C.A. § 706(2)(E) is applicable in this case. See              than one year if the Administrator finds that—
Camp v. Pitts, 411 U.S. 138, 141 (1973) (noting that the
“substantial evidence” test is used “when reviewing findings             (A) an aircraft was used to commit, or facilitate the
made on a hearing record”).                                            commission of, the offense; and

  We review questions of law on appeal from the NTSB de                  (B) the individual served as an airman, or was on the
novo. Watkins v. NTSB, 178 F.3d 959, 961 (8th Cir. 1999)               aircraft, in connection with committing, or facilitating the
(“We review questions of law de novo.”); Zukas v. Hinson,              commission of, the offense.
124 F.3d 1407, 1409 (11th Cir. 1997) (“We review the               49 U.S.C.A. § 44710(b)(1). The term “airman” is defined to
interpretation of constitutional and statutory provisions by the   include a “pilot, mechanic, or member of the crew, who
No. 02-3324                              Kratt v. Garvey       9    10   Kratt v. Garvey                              No. 02-3324

navigates aircraft when under way.”              49 U.S.C.A.        Kratt’s plea hearing] was clear and unequivocal and does not
§ 40102(a)(8)(A). Therefore, this Court can overturn the            reasonably permit the construction urged by [Kratt] now.”
NTSB’s decision only if that decision was based on less than
substantial evidence that Kratt was convicted of the specified        Therefore, we find that the ALJ relied on sufficient
type of crime, that an aircraft was used in the commission of       evidence to uphold the Administrator’s determination that
the offense, and that Kratt either “served as an airman” or         Kratt served as an airman in commission of the offense to
“was on the aircraft” in connection with committing the             which he pled guilty. Contrary to Kratt’s contention, the ALJ
offense.                                                            relied not just on Kratt’s conviction, but also considered the
                                                                    evidence in the transcript from Kratt’s guilty plea hearing.
  Kratt does not dispute that he was convicted of a drug-
related crime punishable by death or imprisonment for more            Furthermore, although the ALJ determined that the
than one year. He was convicted pursuant to 21 U.S.C. § 841,        testimony from Kratt’s plea hearing was sufficient evidence
and sentenced to two years in prison. Kratt argues that the         to support revocation of Kratt’s pilot’s license, the ALJ
NTSB erred by relying solely on his conviction for evidence         nevertheless heard testimony from Kratt regarding his
that an airplane was used in commission of his offense and          conviction. Kratt admits that he piloted the aircraft in which
that he served as an airman or was on the aircraft in               the marijuana was transported, and admits in his answer filed
commission of the offense. In fact, the NTSB relied not only        before the NTSB that he served as the pilot in commission of
on Kratt’s conviction, but also on the transcript of Kratt’s plea   the offense, but he denies that he was a willing participant.
hearing and his testimony before the ALJ.
                                                                       Kratt also argues that the term “served” as an airman
   When the Administrator moved for summary judgment                “connotes that the individual knowingly and willingly used an
before the NTSB, the ALJ decided that Kratt’s conviction            airplane in the commission of a crime.” Pet’r Br. at 8.
alone was insufficient evidence to prove that an aircraft was       Section 44710(b)(1), however, contains no such requirement.
used in commission of the offense and that Kratt served as an       Rather, the statute states that the Administrator must find that
airman or was on the aircraft in connection with the offense.       the “individual served as an airman, or was on the aircraft, in
Later, when presented with the transcript from Kratt’s plea         connection with committing, or facilitating the commission
hearing, the ALJ decided that the transcript provided               of, the offense.” 49 U.S.C.A. § 44710(b)(1)(B). There is no
sufficient evidence that Kratt served as an airman in               requirement, therefore, that one knowingly and willingly
commission of the offense to which he pled guilty.                  serve as an airman prior to revocation of the individual’s
                                                                    pilot’s license. Nor is there a requirement that one serve as an
  The facts that the United States presented established that       airman at all. Rather, one need only be on the aircraft.
Kratt had served as the pilot of a plane carrying 200 pounds        Despite what Kratt claims about his willingness to pilot his
of marijuana. When the judge at the plea hearing asked Kratt        airplane, he does not deny that he was on the aircraft during
whether the “factual basis” presented by the government was         commission of the offense to which he pled guilty.
“essentially correct,” Kratt responded, “Yes, sir.” The ALJ
rejected Kratt’s argument that he only meant that the facts           To the extent that the statute requires that an individual act
presented by the United States were the facts that the              knowingly or willingly prior to having his pilot’s license
government intended to prove, not that those were the actual        revoked, that requirement is embedded in the requirement that
facts. The ALJ found that the “question asked by the court [at      the individual be convicted of a drug-related offense. Indeed,
No. 02-3324                              Kratt v. Garvey      11    12       Kratt v. Garvey                                    No. 02-3324

the crime to which Kratt pled guilty includes the requirement         For the foregoing reasons, we find that the NTSB’s
that he acted “knowingly or intentionally.” 21 U.S.C.A.             decision affirming the Administrator’s order revoking Kratt’s
§ 841(a) (West 2003). During Kratt’s guilty plea hearing, the       pilot’s license is supported by substantial evidence.
judge informed Kratt of these elements of the crime, and Kratt
chose to plead guilty.                                                                         B. Due Process

  Although Kratt argues that he flew Andre Johnson and his                     1. Facial Challenge to 49 U.S.C. § 44710
companions only under duress, the ALJ noted that the
Administrator cannot question the validity of Kratt’s guilty           Kratt argues that he was deprived of his constitutional right
plea when deciding whether to revoke his pilot’s license. The       to due process when the Administrator revoked his pilot’s
revocation statute expressly states that the “Administrator has     license based on his conviction for possession of marijuana
no authority . . . to review whether an airman violated a law       with intent to distribute.1 At oral argument, counsel for Kratt
of the United States or a State related to a controlled             argued that 49 U.S.C. § 44710(b) is unconstitutional on its
substance.” 49 U.S.C.A. § 44710(b)(3); see also Rawlins v.          face because it provides for automatic revocation of a pilot’s
NTSB, 837 F.2d 1327, 1329 (5th Cir. 1988) (“Congress                license when a pilot is convicted of certain drug-related
obviously determined that a harsh penalty was the only              crimes.
advisable response to drug trafficking violations by FAA-
certified pilots.”). Additionally, NTSB precedent establishes         In determining what procedural due process protections are
that it may not entertain a collateral attack on Kratt’s            required, we must consider the following three factors:
conviction. See Hinson v. Manning, NTSB Order No. EA-
4363, Docket No. SE-13714, 1995 NTSB LEXIS 48, *3 (May                First, the private interest that will be affected by the
10, 1995); Hinson v. Gilliland, NTSB Order No. EA-4149,               official action; second, the risk of an erroneous
Docket No. SE-12706, 1994 NTSB LEXIS 113, *3 n.7 (Apr.                deprivation of such interest through the procedures used,
14, 1994). Kratt’s belated defense of duress is one that he           and the probable value, if any, of additional or substitute
could have raised in his criminal proceeding in lieu of a guilty      procedural safeguards; and finally, the Government’s
plea, but it is too late to do so now.                                interest, including the function involved and the fiscal
                                                                      and administrative burdens that the additional or
   Finally, Kratt argues that the Administrator’s interpretation      substitute procedural requirements would entail.
of the revocation statute is too broad because it would require
revocation of a commercial pilot’s license if the pilot flew a      Matthews v. Eldridge, 424 U.S. 319, 335 (1976). With
plane on which a passenger was carrying illegal drugs. This         respect to the first factor, the private interest at stake under 49
is not true, however, because the statute requires that the pilot   U.S.C. § 44710(b) is a pilot’s license. A pilot’s license is a
be convicted of a drug-related offense before revocation of
the pilot’s license. In Kratt’s hypothetical, there is no reason
that a commercial pilot would be convicted of a drug-related             1
                                                                           The NT SB did not co nsider Kratt’s due proce ss argum ent. Rather,
crime if unbeknownst to the pilot, a passenger carries illegal      in its Order Denying Reconsideration, the NTSB noted that “[t]o the
drugs onto the plane. In this case, however, Kratt has pled         extent that [Kratt] has articulated for the first time in his petition a
guilty to possession of marijuana with intent to distribute.        constitutional challenge to the Adm inistrator’s authority to use a criminal
                                                                    conviction to support a certificate revocation, it is answer enoug h to no te
                                                                    that the [N TS B] can not entertain such arguments.”
No. 02-3324                              Kratt v. Garvey      13    14       Kratt v. Garvey                                 No. 02-3324

sufficiently important interest that a licensee is entitled to      welfare benefits are revoked because such benefits may be
some due process protections when it is revoked. See Bennett        essential to a person’s subsistence. 397 U.S. at 264. On the
v. NTSB, 66 F.3d 1130, 1137 (10th Cir. 1995) (noting that           other hand, a post-revocation hearing is sufficient for
Fifth Amendment due process protections apply to revocation         revocation of social security disability benefits. Matthews,
of pilot’s license); see also Dixon v. Love, 431 U.S. 105, 112      424 U.S. at 340–41. A post-revocation hearing is also
(1977) (noting that due process protections are required for        sufficient when a driver’s license is revoked based on
deprivation of driver’s license); Bell v. Burson, 402 U.S. 535,     numerous traffic violations or accidents, especially where
539 (1971) (holding that due process is required for                hardship or commercial necessity would allow the licensee to
revocation of driver’s license). Although revocation of a           obtain a restricted license between the time of revocation and
pilot’s license may significantly impair the ability of a           the hearing. Dixon, 431 U.S. at 113.
professional pilot to earn a living, such a license is generally
not essential to a person’s survival. See Dixon, 431 U.S. at           In this case, however, we need not decide whether a pre-
113 (finding that driver’s license is not “so vital and essential   revocation hearing is required when a pilot’s license is
as are social insurance payments on which the recipient may         revoked because the statute in fact provides for a pre-
depend for his very subsistence”) (citing Goldberg v. Kelly,        revocation hearing.2        When a pilot appeals the
397 U.S. 254, 264 (1970)).                                          Administrator’s revocation of a license, the revocation is
                                                                    stayed until the NTSB decides the appeal, except in
  The second Matthews factor requires us to consider the risk       extraordinary circumstances where the Administrator advises
of erroneous deprivation under the procedures provided in 49        the NTSB that the safety of air transportation requires an
U.S.C. § 44710 and the potential value of additional                immediate revocation. 49 U.S.C.A. § 44710(d)(2). In cases
procedural safeguards. See Matthews, 424 U.S. at 335. The           where the Administrator requires immediate revocation, the
statute in this case permits a licensee to appeal the decision of   NTSB must decide the appeal within sixty days. Id. This
the Administrator to the NTSB, which “shall affirm or reverse       provision permitting the Administrator to require immediate
the order after providing notice and an opportunity for a           revocation for safety reasons does not deprive a licensee of
hearing on the record.” § 44710(d)(1). Notice and an                due process because an opportunity for a hearing is
evidentiary hearing, as provided under the statute, are the         nevertheless provided and the public’s safety justifies
touchstones of procedural due process. See Matthews, 424            revocation before the hearing. See Dixon, 431 U.S. at 114
U.S. at 333 (“The fundamental requirement of due process is         (finding that prompt removal of unsafe drivers from the road
the opportunity to be heard ‘at a meaningful time and in a          justified use of post-revocation hearings for driver’s license
meaningful manner.’”) (quoting Armstrong v. Manzo, 380              revocations based on multiple traffic violations or accidents).
U.S. 545, 552 (1965)); Goldberg v. Kelly, 397 U.S. 254,
267–68 (1970) (noting that notice and an evidentiary hearing         In this case, Kratt was afforded a pre-revocation hearing.
are the general procedures that due process affords).               He argues, however, that § 44710 on its faces deprives

   In some cases, the question before courts has been whether
due process mandates a pre-revocation hearing or whether a               2
hearing after a license or other entitlement has been revoked             Kra tt even admits in his brief that “[t]he existing system in the
is sufficient. In Goldberg, for example, the Supreme Court          NTSB is exceptional in its attempt to pro vide notice and hearing as a
                                                                    matter of course prior to revocation, unlike many system s that have only
held that a person is entitled to an evidentiary hearing before     post-revoc ation hearings.”
No. 02-3324                              Kratt v. Garvey     15    16     Kratt v. Garvey                             No. 02-3324

licensees of procedural due process because it requires an              2. Application of 49 U.S.C. § 44710 in Kratt’s Case
automatic revocation of a pilot’s license in the sense that the
Administrator and the NTSB may not review whether a                  Kratt also argues in his brief that the application of 49
licensee in fact committed the drug-related crime for which he     U.S.C. § 44710(b) in this case denied him of due process.
was convicted. 49 U.S.C.A. § 44710(b)(3). The statute does         Kratt essentially makes two arguments. First, he argues that
require a finding that the licensee was convicted of a drug-       use of his conviction as grounds for revocation denied him of
related felony, that an aircraft was used in commission of the     due process because he had no notice when he pled guilty that
offense, and that the licensee served as an airman or was on       his pilot’s license would be revoked. Second, he argues that
the aircraft in connection with committing the offense. 49         he had no opportunity for a hearing on the issue of whether he
U.S.C.A. § 44710(b)(1). Due process, however, does not             served as an airman in commission of the offense to which he
require that a licensee be permitted an opportunity to probe       pled guilty because the ALJ relied solely on his conviction to
the merits of his criminal conviction. Rather, the licensee        uphold the Administrator’s revocation of his pilot’s license.
must address the merits of his conviction during the criminal      The Administrator argues that due process did not require
proceedings concerning the criminal charges against him. See       Kratt to be informed of all possible consequences of his guilty
Dixon, 431 U.S. at 113 (finding that automatic revocation of       plea and that he was afforded due process during his
driver’s license based on convictions for numerous traffic         revocation proceedings before the Administrator and the
violations did not risk erroneous deprivation of license); Bell,   NTSB.
402 U.S. at 540 (finding that adjudication of liability for a
traffic accident was not appropriate during an administrative         Kratt contends that he was deprived of due process when he
hearing concerning the potential revocation of a driver’s          pled guilty to possession of marijuana with intent to distribute
license). Therefore, the fact that the statute prohibits the       because he was not given notice that he could lose his pilot’s
Administrator from reviewing the merits of a criminal              license for pleading guilty. The Administrator argues that
conviction does not risk erroneous deprivation of a pilot’s        there is no constitutional requirement that a criminal
license.                                                           defendant be informed of all possible consequences of a
                                                                   guilty plea. The court accepting a criminal defendant’s guilty
  The third Matthews factor requires us to consider the            plea “is under no constitutional obligation to inform the
government’s regulatory interest and the fiscal and                defendant of all the possible collateral consequences of the
administrative burdens that additional procedural safeguards       plea.” King v. Dutton, 17 F.3d 151, 153 (6th Cir. 1994). “A
would require. See Matthews, 424 U.S. at 335. We need not          collateral consequence is one that ‘remains beyond the control
give this factor much consideration because no additional          and responsibility of the district court in which that
procedures are required to afford due process under § 44710.       conviction was entered.’” El-Nobani v. United States, 287
The statute already provides for notice and an evidentiary         F.3d 417, 421 (6th Cir. 2002) (deciding that “deportation is
hearing on the record before revocation of a pilot’s license.      collateral to conviction”) (quoting United States v. Gonzalez,
                                                                   202 F.3d 20, 27 (1st Cir. 2000)). Just like deportation in El-
  Therefore, we find that 49 U.S.C. § 44710 provides               Nobani, revocation of Kratt’s pilot’s license is a matter
adequate procedural safeguards when a pilot’s license is           beyond the control and responsibility of the district court that
revoked. By providing notice and an opportunity for a pre-         accepted Kratt’s guilty plea. Therefore, Kratt’s constitutional
revocation evidentiary hearing on the record, the statute          rights were not violated when the district court failed to notify
provides all that due process requires.
No. 02-3324                              Kratt v. Garvey     17    18   Kratt v. Garvey                            No. 02-3324

him that his pilot’s license would be revoked if he pled guilty    FAA’s motion for summary judgment was granted in part and
to possession of marijuana with intent to distribute.              denied in part, Kratt received a hearing on the record before
                                                                   an ALJ in November 1999.
  In any event, the real issue before this Court is not whether
Kratt received due process during his criminal proceedings,          Therefore, we conclude that Kratt received all the process
but rather, whether he was afforded due process in                 he was due when the Administrator revoked his pilot’s license
proceedings related to the revocation of his pilot’s license.      and the NTSB affirmed the Administrator’s order.
The Administrator is not permitted to review whether Kratt in
fact committed a drug-related crime, 49 U.S.C.A.                                      IV. CONCLUSION
§ 44710(b)(3); rather, the Administrator need determine only
whether Kratt was convicted of a drug-related crime, 49              For the foregoing reasons, we AFFIRM the order of the
U.S.C.A. § 44710(b)(1). Kratt does not deny that he was            NTSB affirming the Administrator’s revocation of Kratt’s
convicted of possession of marijuana with intent to distribute.    pilot’s license.
Section 44710(b)(1) requires only that Kratt have been
convicted of such a crime before his pilot’s license is revoked.
The statute does not require, nor does it permit, the
Administrator to probe whether Kratt in fact committed the
crime. Therefore, there is no risk of erroneous deprivation of
Kratt’s license if the Administrator fails to consider evidence
mitigating Kratt’s conviction. Although Kratt may not like
the result of his pleading guilty to a crime he claims he did
not commit, whether he in fact committed the crime does not
bear on whether his pilot’s license was erroneously revoked.
   Although Kratt contends that he had no opportunity for a
hearing on the issue of whether he served as an airman or was
on the aircraft in connection with the offense to which he pled
guilty, Kratt in fact did receive numerous opportunities to
present evidence regarding his participation in the crime.
Kratt first received a letter from the FAA notifying him that
he was under investigation in June 1997. He was given an
opportunity to provide the FAA with information at that time,
and he sent the FAA a seven-page handwritten letter. The
FAA next sent Kratt a Notice of Proposed Certificate Action
in August 1997, notifying Kratt that the FAA planned to
revoke his pilot’s license. Kratt was then afforded a
telephone conference with the FAA in February 1998 before
the FAA issued its Order of Revocation in April 1998. Kratt
then appealed the FAA’s order to the NTSB, and after the
