 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued November 13, 2014              Decided June 30, 2015

                        No. 14-1023

 MICHAEL P. HUERTA, ADMINISTRATOR, FEDERAL AVIATION
                  ADMINISTRATION,
                     PETITIONER

                             v.

  JODY DUCOTE AND NATIONAL TRANSPORTATION SAFETY
                      BOARD,
                   RESPONDENTS


             On Petition for Review of a Decision
         of the National Transportation Safety Board


    Dana J. Martin, Attorney, U.S. Department of Justice,
argued the cause for petitioner. With her on the briefs were
Stuart F. Delery, Assistant Attorney General, and Michael S.
Raab, Attorney.

     Gregory S. Winton argued the cause and filed the brief
for respondents.

   Kathleen A. Yodice, Elizabeth M. Candelario, and
Kenneth M. Mead were on the brief for amicus curiae Aircraft
Owners and Pilots Association in support of respondents.
                              2
    Before: HENDERSON, GRIFFITH and MILLETT, Circuit
Judges.

    Opinion for the Court by Circuit Judge MILLETT.

    Opinion concurring in part and concurring in the
judgment filed by Circuit Judge HENDERSON.

     MILLETT, Circuit Judge: In June 2010, Jody Ducote co-
piloted a passenger-carrying flight round-trip between the
United States and the Bahamas. The problem is that he was
not qualified to pilot or co-pilot that flight. In addition,
although his personal records accurately recorded his
unlawful flight activities, the record he submitted to Federal
Aviation Administration (“FAA”) investigators mysteriously
omitted any record of the forbidden flight, substituting in its
place a fictional flight that Ducote would have been qualified
to pilot—if he had actually flown it.

     Needless to say, the FAA does not cotton to such
conduct. It issued an emergency order revoking Ducote’s
pilot license. In administrative proceedings, Ducote admitted
both that he improperly piloted the Bahamas flights and that
there was a material discrepancy between his personal flight
log and the one he gave to the FAA. The National
Transportation Safety Board, nevertheless, dismissed the
Administration’s complaint for failure to plead with sufficient
factual specificity the seriousness of those violations. The
Board also relied on a credibility determination that the Board
mistakenly thought the Administrative Law Judge had made.

    We vacate and remand both determinations as arbitrary
and capricious, and unsupported by substantial evidence.
                              3
                              I

           Statutory and Regulatory Framework

     The Federal Aviation Act, Pub. L. 85-726 § 609, 72 Stat.
731, 779–780 (1958), amended by Pub. L. 103-272 § 1(e),
108 Stat. 745, 1190 (1994), authorizes the Administrator of
the Federal Aviation Administration to revoke a pilot’s
license when, after investigation, the Administrator
determines “that safety in air commerce or air transportation
and the public interest require that action,” 49 U.S.C.
§ 44709(b)(1)(A). An emergency order of revocation may be
issued when the Administrator informs the National
Transportation Safety Board “that an emergency exists and
safety in air commerce or air transportation requires the order
to be effective immediately.” Id. § 44709(e)(2).

     The pilot whose license is terminated—the “respondent”
in the administrative proceeding—can seek administrative
review of the revocation order by filing an appeal with the
National Transportation Safety Board. 49 U.S.C. § 44709(d).
The Administrator’s order from which the appeal is taken
then serves as the complaint in the administrative proceeding.
49 C.F.R. § 821.31. Appeals are heard by an administrative
law judge (“ALJ”), id. § 821.35, whose decision can be
reviewed by the Board, id. § 821.43.

     At the beginning of the administrative process, the pilot
can seek dismissal of the Administrator’s complaint as “stale”
if it was filed more than six months after the conduct that
triggered revocation.     49 C.F.R. § 821.33.      The stale
complaint rule does not apply, however, when the “complaint
                                 4
alleges lack of qualification of the respondent.”                 Id.
§ 821.33(b).1

    “Lack of qualification” is an FAA term of art that refers
to those regulatory violations that, by their very nature,
warrant revocation of a pilot’s certificate, rather than a lesser
sanction like suspension. See Administrator v. Bellis, NTSB
Order No. EA-4528, 1997 WL 101432, at *2 (1997); 49
C.F.R. § 821.33. Such offenses “raise[] a significant question
as to whether the airman continues to possess the care,
judgment, responsibility, knowledge or technical ability
required by his certificate.” Bellis, 1997 WL 101432, at *2.
Thus “lack of qualification” goes beyond just questions of
technical proficiency to include offenses showing a lack of
“judgment and integrity.” Thunderbird Propellers, Inc. v.
FAA, 191 F.3d 1290, 1295 (10th Cir. 1999).

1
   The text of the stale complaint rule provides, as relevant here,
that:

     Where the complaint states allegations of offenses which
     occurred more than 6 months prior to the Administrator’s
     advising the respondent as to reasons for proposed action
     under 49 U.S.C. 44709(c), the respondent may move to
     dismiss such allegations as stale pursuant to the following
     provisions:

         *****

     (b) In those cases where the complaint alleges lack of
    qualification of the respondent, the law judge shall first
    determine whether an issue of lack of qualification would be
    presented if all of the allegations, stale and timely, are assumed
    to be true. If so, the law judge shall deny the respondent’s
    motion. * * *

49 C.F.R. § 821.33.
                                 5

      One offense that “the Board has repeatedly held
implicates a lack of qualification warranting revocation * * *
[is] falsifying a logbook.” Bellis, 1997 WL 101432, at *2; see
Thunderbird Propellers, 191 F.3d at 1295 (FAA complaint
“presents an issue of qualifications” because it alleges
“Thunderbird intentionally falsified required records[.]”).2

     While the question of lack of qualification generally “is
based on consideration of the pleaded incidents in the
aggregate, not one by one,” Administrator v. Brassington,
NTSB Order No. EA-5180, 2005 WL 2477524, at *5 & n.14
(2005), the Board has recognized that “one intentionally false
log entry would be sufficient, in and of itself, to warrant
revocation,” Administrator v. Olsen, NTSB Order No. EA-
3582, 1992 WL 127810, at *4 (1992); see also Administrator
v. Gusek, NTSB Order No. EA-4745, 1999 WL 64489, at *2
(1999) (“It is also established that one intentional falsification
finding will justify a lack of qualification finding and
certificate revocation.”).

     Under the Board’s rules, if an otherwise stale complaint
alleges such disqualifying offense conduct, the ALJ must
“determine whether an issue of lack of qualification would be
presented if all of the allegations, stale and timely, are
assumed to be true.” 49 C.F.R. § 821.33(b). If so, then the
ALJ “shall deny” the motion to dismiss, and the

2
   See also, e.g., Administrator v. Lonergan, NTSB Order No. EA-
4477, 1996 WL 494079, at *2 (1996) (“A showing of intentional
falsification is a serious offense which in virtually all cases the
Administrator imposes and the Board affirms revocation.”);
Administrator v. Farrington, NTSB Order No. EA-4171, 1994 WL
239001, at *2 (1994) (“[I]ntentional falsification charges inherently
present an issue of lack of qualification.”).
                               6
Administrator’s complaint will go forward. Id. But if the
Administrator cannot make such a showing, the law judge
“shall dismiss the stale allegations[.]”      49 C.F.R.
§ 821.33(a)(2).

     Even if the complaint does not present an issue of lack of
qualification, an otherwise stale complaint can go forward if
the Administrator “show[s]” either that “good cause existed
for the delay” or that the sanction is in the “public interest.”
49 C.F.R. § 821.33(a)(1).

                    Factual Background

     Jody Ducote held an Airline Transport Pilot certificate
which allowed him to fly as a commercial pilot. 14 C.F.R.
§ 61.167. That certificate, however, did not allow Ducote to
operate all types of aircraft. In order to operate an airplane
over 12,500 pounds or one powered by turbojets, the pilot’s
license must have a specific “type rating” for that airplane.
Id. § 61.31. A license holder may co-pilot domestic flights
without the required type-rating, but not international ones.
Id. § 61.55.

     Even though he lacked the appropriate type-rating for the
flight, Ducote co-piloted a Cessna S550 carrying passengers
from Mississippi to the Bahamas on June 6, 2010. He co-
piloted the same plane, again carrying passengers, from the
Bahamas to Florida and then back to Mississippi on June 10,
2010.

     Ducote accurately recorded the Bahamas flights in his
personal, online flight log. When an FAA investigator
requested that Ducote submit his flight record, however, all
reference to the June 6th and 10th Bahamas flights vanished.
In place of the June 10th Bahamas flight appeared a fictional
                               7
record indicating that Ducote piloted a domestic flight
between Picayune, Mississippi and Jackson, Mississippi, for
which Ducote would have been qualified.

                     Procedural History

     On April 16, 2012, the Administrator issued an
Emergency Order revoking Ducote’s airline pilot certificate
on the grounds that he falsified flight records and pilot
logbook entries in March, April, May and June of 2010, and
that he piloted a passenger-carrying flight between the
Bahamas and Florida in June 2010 in an aircraft that he was
not qualified to fly.

     Ducote sought administrative review of the Order, and
then filed a motion to dismiss the Administrator’s complaint
as stale because it was filed almost two years after the alleged
wrongdoing. The ALJ denied Ducote’s motion to dismiss.
He explained that, if “all of the allegations” in the complaint
were “assumed to be true,” they would demonstrate a “lack of
qualification,” and thus the complaint was excepted from the
stale complaint rule. J.A. 28–29; 49 C.F.R. § 821.33(b).

     At the administrative hearing, Ducote admitted that he
co-piloted the Bahamas flights without the appropriate type
rating. He also did not dispute the discrepancy between his
personal flight record and the one he submitted to the FAA
investigator.

     The ALJ denied the Administrator’s claim that Ducote
had intentionally falsified flight log entries for the June 10th
Bahamas flight. The ALJ reasoned that the written flight
record that Ducote prepared for the FAA was not a “material”
filing, and thus could not form the basis of an intentional
                                 8
falsification charge under 14 C.F.R. § 61.59(a).3 In the ALJ’s
view, whether Ducote just “missed some or maybe even he
intentionally falsified that document,” the log book “is not a
document that is required to be maintained by the
Administrator.” J.A. 398.

     In addition, even though Ducote admitted the violation,
the ALJ dismissed the unauthorized-flight charge, reasoning
that the count had become “stale” once the intentional
falsification counts were dismissed.4 J.A. 398.

     The Administrator appealed to the National
Transportation Safety Board and, with respect to the June
flight record and Bahamas flights that are relevant here, the

3
 That regulation provides: “No Person may make or cause to be
made:

       (1) Any fraudulent or intentionally false statement on any
           application for a certificate, rating, authorization, or
           duplicate thereof, issued under this part;
       (2) Any fraudulent or intentionally false entry in any
           logbook, record, or report that is required to be kept,
           made, or used to show compliance with any requirement
           for the issuance or exercise of the privileges of any
           certificate, rating, or authorization under this part;
       (3) Any reproduction for fraudulent purpose of any
           certificate, rating, or authorization, under this part; or
       (4) Any alteration of any certificate, rating, or authorization
           under this part.”

14 C.F.R. § 61.59(a).
4
   The ALJ also dismissed the charges that Ducote had intentionally
falsified records made in March, April, and May of 2010. Those
counts are not at issue in this petition for review.
                              9
Board affirmed on alternative grounds. Administrator v.
Ducote, NTSB Order No. EA-5664, 2013 WL 3227362
(2013).

     First, concerning Ducote’s falsification of the June 10th
flight record, the Board disagreed with the ALJ and ruled that
the log was a “material” submission the intentional
falsification of which would render a pilot disqualified.
Ducote, 2013 WL 3227362, at *8. The Board nevertheless
upheld dismissal of the count on the ground that the
Administrator had failed to demonstrate that Ducote “had the
intent to falsify the document he provided to the [FAA
investigating office] upon its request.” Id. In so holding, the
Board said it was adopting a credibility finding that it
perceived the ALJ to have made. Id. (“[W]e find the law
judge’s finding concerning [Ducote’s] credibility was not
arbitrary and capricious. As we decline to disturb the law
judge’s credibility assessment, we find the Administrator has
not established [Ducote] had the intent to falsify the
document.”).

     Secondly, the Board affirmed dismissal of the operational
violation arising from the Bahamas flights. Taking a different
tack from the ALJ, the Board ruled that the Administrator
must “plead the complaint in such a manner as to provide
sufficient specificity as to the seriousness of the alleged
violation[s].” Ducote, 2013 WL 3227362, at *11. The
exception to the stale complaint rule, the Board elaborated,
only applies when the complaint “specifically plead[s] facts
concerning a violation that unequivocally indicates a lack of
qualification[.]” Id. (latter emphasis added). To that end, the
complaint must “legitimately demonstrate[], not merely
allege[], that a lack of qualification exists.” Id.
                              10
     Applying that standard, the Board held that the
Administrator’s complaint failed to allege adequately a “lack
of qualification.” In so ruling, the Board did not question its
longstanding precedent holding that the intentional
falsification of a material record like Ducote’s flight record
established a lack of qualification. Instead, the Board
concluded that the complaint failed to demonstrate that the
Administrator had the “evidence” to “pursue most of the
charges therein,” Ducote, 2013 WL 3227362, at *10, and that
“failure to provide specific bases for the allegations in the
complaint” required dismissal of the operational violation as
stale, id. at *12. The Board thus denied the appeal in full.

                              II

                         Jurisdiction

     Both 49 U.S.C. § 1153(c) and 49 U.S.C. § 44709(f)
provide that the Administrator “may” petition for review of a
Board order if the “Administrator decides” that the Board’s
order “will have a significant adverse impact” on air safety
and commerce. Id. While the Administrator filed a timely
petition for review under those provisions, amicus curiae, the
Aircraft Owners and Pilots Association, argues that this court
lacks jurisdiction because the Administrator lacked statutory
“standing” to bring this case. Specifically, the Association
contends that the Administrator erred in concluding that the
Board’s application of the stale complaint rule will have the
statutorily required “significant adverse impact” and that
judicial concurrence in that judgment is a jurisdictional
prerequisite.

    Ducote does not join that argument, and ordinarily this
court will not entertain an amicus’s argument if not presented
by a party. See, e.g., Narragansett Indian Tribe v. National
                               11
Indian Gaming Comm’n, 158 F.3d 1335, 1338 (D.C. Cir.
1998). But the Administrator joins the Association in
characterizing the “significant adverse impact” standard as
“jurisdictional,” Pet. Br. 23–24, and we labor under a
perpetual and “‘independent obligation to assure ourselves of
[our] jurisdiction,’” VanderKam v. VanderKam, 776 F.3d 883,
888 (D.C. Cir. 2015) (quoting Floyd v. District of Columbia,
129 F.3d 152, 155 (D.C. Cir. 1997)). Accordingly, in this
narrow circumstance, we will follow the amicus’s argument
only as far as necessary to assure ourselves of our jurisdiction.
In this case, it is a short trip.

     The Association must “clear a high bar” to establish that
the     Administrator’s     “significant   adverse     impact”
determination is jurisdictional. See United States v. Kwai Fun
Wong, 135 S. Ct. 1625, 1632 (2015). That is because the
Supreme Court, of late, has “pressed a stricter distinction
between truly jurisdictional rules, which govern a court’s
adjudicatory authority, and nonjurisdictional claim-processing
rules, which do not.” Gonzalez v. Thaler, 132 S. Ct. 641, 648
(2012) (internal quotation marks omitted).5 The “significant
adverse impact” requirement comes nowhere near hurdling
that bar.

     First, courts will enforce a rule as jurisdictional “[i]f the
Legislature clearly states that a threshold limitation on a
statute’s scope shall count as jurisdictional.” Arbaugh v.
Y&H Corp., 546 U.S. 500, 515 (2006); see also Kwai Fun
Wong, 135 S. Ct. at 1632. But nothing in Section 1153(c) (or
the identical language of Section 44709(f)) “clearly”—or
even     unclearly—“states”      that    the     Administrator’s

5
   See also Sebelius v. Auburn Regional Medical Ctr., 133 S. Ct.
817, 824 (2013) (warning against “profligate use of the term
‘jurisdiction’”).
                                 12
determination is “jurisdictional.” The term “jurisdiction”
appears nowhere at all in 49 U.S.C. § 44709; that Section
focuses entirely on the type of administrative processing
matters that the Supreme Court and this court have repeatedly
held lack jurisdictional consequence. See, e.g., Henderson ex
rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1204 (2011)
(statutory deadline for an appeal from the Board of Veterans’
Appeals “does not speak in jurisdictional terms or refer in any
way to the jurisdiction of the [Veterans Court]” (internal
quotation marks omitted; alteration in original)); Reed
Elsevier, Inc. v. Muchnick, 559 U.S. 154, 166 (2010)
(requirement that copyright holders register work before suing
“imposes a precondition to filing a claim that is not clearly
labeled jurisdictional, is not located in a jurisdiction-granting
provision, and admits of congressionally authorized
exceptions”).6

     Section 1153(c) likewise is devoid of jurisdictional
trappings, in sharp contrast to the express jurisdictional
reference in the preceding statutory subsection, 49 U.S.C.
§ 1153(b)(3) (“When the petition is sent to the Board, the
court has exclusive jurisdiction to affirm, amend, modify, or

6
   See also Auburn Regional, 133 S. Ct. at 824 (Because “[t]he
language Congress used hardly reveals a design to preclude any
regulatory extension,” the statutory deadline to appeal a decision of
the Provider Reimbursement Review Board is nonjurisdictional.);
Vermont Dep’t of Public Service v. United States, 684 F.3d 149,
156 (D.C. Cir. 2012) (Since “the language of the Hobbs Act offers
no such unequivocal bar,” its administrative exhaustion requirement
is nonjurisdictional.); Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C.
Cir. 2003) (The Freedom of Information Act’s administrative
“exhaustion requirement is not jurisdictional because the [statute]
does not unequivocally make it so.”).
                                 13
set aside any part of the order and may order the Board to
conduct further proceedings.”). That omission says much
because the “proximity * * * highlights the absence of clear
jurisdictional terms in” Section 1153(c). Gonzalez, 132 S. Ct.
at 651. “‘[W]here Congress includes particular language in
one section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts
intentionally[.]’” Id. at 649 (quoting Russello v. United
States, 464 U.S. 16, 23 (1983)).

     Second, the statutory structure confirms that the
Administrator’s “significant adverse impact” determination is
decidedly nonjurisdictional. The critical statutory language
speaks entirely in terms of what an agency official—the
Administrator—must “decide[]” before filing a petition for
review, not what a court must find to exercise decisional
authority over that petition. 49 U.S.C. §§ 1153(c), 44709(f).
Nothing in the statute requires the Administrator to make that
determination in any particular form or to submit it to the
court.7

     In the absence of a long legislative or judicial history of
jurisdictional treatment, see Bowles v. Russell, 551 U.S. 205,
209–211 (2007), a statutory requirement like the
Administrator’s duty to find a “significant adverse impact,”
just “requires a party to take some action before filing” an
appeal, Reed Elsevier, 559 U.S. at 166, and “says nothing
about whether a federal court has subject-matter jurisdiction
to adjudicate claims,” id. at 164. Here, as in Gonzalez, there
7
  This case thus stands in sharp contrast to In re Sealed Case, 131
F.3d 208, 215 (D.C. Cir. 1997), in which the statute explicitly
required a prosecutor to “certif[y] to the appropriate district court”
that the Attorney General had found a “substantial Federal interest”
in the crime’s prosecution to “warrant the exercise of Federal
jurisdiction,” 18 U.S.C. § 5032.
                              14
is no tradition whatsoever of according the Administrator’s
determination jurisdictional consequence. See Gonzalez, 132
S. Ct. at 649. Indeed, the nature of the “significant adverse
impact” determination closely parallels the “substantial
showing” of a constitutional claim requirement in Gonzalez,
which was held to be nonjurisdictional. Id. at 649–650. Both
are statutory mechanisms for sifting out insubstantial appeals,
not limitations on judicial power.

     Third, the very nature of the inquiry defies jurisdictional
treatment. The statutory text expressly leaves it to the
“Administrator”—not a court—to “decide[]” what impact a
Board order will have on “carrying out this chapter related to
an aviation matter.” 49 U.S.C. § 1153(c). That type of
operational assessment falls squarely within the
Administrator’s area of expertise. Nothing in the relevant
statutory provisions offers any meaningful guideposts for
judicial    second-guessing      of    that    quintessentially
administrative judgment.

     In short, neither the statutory text nor structure provides
the type of “‘sweeping and direct’” congressional command
needed to attach jurisdictional consequence to the
Administrator’s “significant adverse impact” determination.
Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1248 (D.C.
Cir. 2004) (quoting Weinberger v. Salfi, 422 U.S. 749, 757
(1975)). As Congress did not treat the requirement as
jurisdictional, neither will we. And since the issue does not
concern our jurisdiction, we will not accept amicus’s
invitation to review (or decide if we can review) the merits of
the Secretary’s “significant adverse impact” determination as
neither party pressed that argument. See Narragansett Indian
Tribe, 158 F.3d at 1338.
                              15
                              III

                           Analysis

    This court will uphold a decision of the National
Transportation Safety Board unless it is “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with
law,” 5 U.S.C. § 706(2)(A), or “unsupported by substantial
evidence,” 5 U.S.C. § 706(2)(E). Taylor v. Huerta, 723 F.3d
210, 213 (D.C. Cir. 2013).

     To the extent the agency has interpreted its own “stale
complaint” regulation, that interpretation is ‘“to be accorded
deference * * * unless it is clearly contrary to the plain and
sensible meaning of the regulation.’” Taylor, 723 F.3d at 213
(quoting Cooper v. NTSB, 660 F.3d 476, 481 (D.C. Cir.
2011)); see Perez v. Mortgage Bankers Ass’n, 135 S. Ct.
1199, 1208 n.4 (2015) (discussing deference under Auer v.
Robbins, 519 U.S. 452 (1997)). The Board’s position will be
deemed “arbitrary and capricious if it departs from agency
precedent without explanation.”          Dillmon v. National
Transportation Safety Board, 588 F.3d 1085, 1090 (D.C. Cir.
2009) (internal quotation omitted). Accordingly, if the Board
wishes this court to defer to a change in application of its own
rules, it must “acknowledge and provide an adequate
explanation for its departure from established precedent.” Id.
at 1089–1090.

                The “Stale Complaint” Rule

     The Board held that the Administrator’s complaint could
not escape the clutches of the stale complaint rule because it
did not “specifically plead facts” that “unequivocally
indicate[d] a lack of qualification.” Ducote, 2013 WL
3227362, at *11 (latter emphasis added). The Administrator’s
                               16
complaint, the Board continued, failed to “legitimately
demonstrate[], not merely allege[],” that a lack of
qualification existed. Id. That ruling placed upon the
Administrator a heightened pleading standard that departed so
severely from regulatory text and precedent, and was
accompanied by only the most superficial Board analysis, that
it must be vacated as arbitrary and capricious.

     To begin with, the Board’s holding is unhinged from the
regulation’s plain text. The stale complaint rule is written as a
threshold inquiry that is enforced at the outset of an
administrative proceeding through a motion to dismiss the
complaint. 49 C.F.R. § 821.33. As such, the regulation
dictates what the Administrator must “allege[]” and what the
“allegations” must “state[].” Id. Nothing in the rule requires
the Administrator to “demonstrate,” anything at that
preliminary pleading stage. To the contrary, the rule is
explicit that the stale complaint analysis will “assume[]” the
truth of “allegations,” not require their “unequivocal[]”
establishment. Id.

     In addition, subsection (a) of the rule underscores that the
lack-of-qualification test turns on the facial allegations of the
complaint. To invoke the separate “good cause” or “public
interest” exceptions to the stale complaint rule, subsection (a)
requires the Administrator to “show” their applicability
through a supplemental filing that goes beyond the allegations
of the complaint itself. 49 C.F.R. § 821.33(a). The lack-of-
qualification exception, by contrast, does not require the
Administrator to “show” anything; the complaint must simply
“allege” the lack of qualification. Accordingly, the Board’s
holding here that Section 821.33(b)’s far less rigorous text
requires a far more rigorous demonstration than subsection (a)
turns the regulatory language and structure inside out.
                              17
     Such atextual interpretations, unaccompanied by any
reasoned agency analysis, deserve no judicial deference. See
Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156,
2166 (2012) (“Deference is undoubtedly inappropriate, for
example, when the agency’s interpretation is ‘plainly
erroneous or inconsistent with the regulation,’” or when
“there is reason to suspect that the agency’s interpretation
‘does not reflect the agency’s fair and considered judgment on
the matter in question.’”); Drake v. FAA, 291 F.3d 59, 68
(D.C. Cir. 2002) (To give deference, “the language of the
regulation in question must be ambiguous,” the agency must
have given the issue “fair and considered judgment on the
matter,” and “the agency’s reading of its regulation must be
fairly supported by the text of the regulation itself[.]”).

     Instead, it is incumbent on this court to “ultimately
decide[] whether a given regulation means what the [Board]
says,” Perez, 135 S. Ct. at 1208 n.4. And we can discern no
structural or textual basis for the heightened-pleading
standard imposed here on a complaint that facially and
plausibly alleges all of the key elements of an offense that
bears directly on a pilot’s qualification to hold a license.

     The unprecedented reach of the Board’s demand for
factual specificity is underscored by the already-detailed
content of the Administrator’s complaint. The complaint, in
fact, is anything but “generally pleaded.” Specifically,
paragraph 9 of the complaint alleges that on June 10th, 2010,
Ducote operated the following flights: “Bahamas  Palm
Beach  Jackson Evers  Picayune.” Paragraph 10 then
alleges that Ducote made an entry in the logbook he provided
to the FAA stating that, on June 10th, he instead flew
“Picayune  Jackson Evers  Picayune.” Paragraph 11
brings home the intentionality of the conduct by alleging that
the latter entry was “fraudulent or intentionally false in that
                               18
the actual dates and route of the flights in question were
different from those presented in your logbook.” Paragraphs
12–15 then alleged a motivation for Ducote’s intentional
alteration of the records—that he lacked the appropriate type-
rating to operate the Bahamas flight, a passenger-endangering
violation of FAA Regulations.

     Indeed, the Board’s precedent has long recognized that,
as a virtually categorical matter, similar allegations of
intentionally falsified records “inherently present an issue of
lack of qualification.” Administrator v. Farrington, NTSB
Order No. EA-4171, 1994 WL 239001, at *2 (1994); see also
Brassington, 2005 WL 2477524, at *6 (“It is undisputed that
an airman who falsifies required documents lacks
qualifications to hold an airman certificate.”); Gusek, 1999
WL 64489, at *2; Bellis, 1997 WL 101432, at *2
(“[F]alsifying a logbook” is “an offense which the Board has
repeatedly held implicates a lack of qualification warranting
revocation[.]”); Administrator v. Lonergan, NTSB Order No.
EA-4477, 1996 WL 494079, at *2 (1996).

     The Board’s rule makes sense.              The intentional
falsification of required records that are used to protect public
safety, by its very nature, suggests such a serious lack of
honesty and judgment and such a profound contamination of
the regulatory processes for protecting public safety as to
inherently call into question the individual’s qualifications.
See Bellis, 1997 WL 101432, at *2                (conduct calls
qualification into question if a violation “was so deficient that
it raises a significant question as to whether the airman
continues to possess the care, judgment, responsibility,
knowledge or technical ability required by his certificate”).

   The Board and Ducote rely on Administrator v.
Armstrong, NTSB Order No. EA-5660, 2013 WL 3227358
                              19
(2013), to no avail. Armstrong is the last in a line of cases
explaining that the Administrator may not use clever pleading
strategies to avoid the stale complaint rule. See, e.g., Bellis,
1997 WL 101432; Administrator v. Hawes, NTSB Order No.
EA-3830, 1993 WL 97496 (1993). When a complaint
presents allegations of a rule violation that does not
customarily warrant revocation—such as the faulty
inspections in Hawes and Bellis—the Administrator cannot
escape the stale complaint rule merely by tacking on a
conclusory assertion that the allegations “present an issue of
lack of qualification,” as occurred in Bellis, 1997 WL 101432,
at *1, or by an unexplained order of revocation for a violation
that traditionally warrants a lesser sanction, as occurred in
Hawes, 1993 WL 97496, at *2.

     In Armstrong, the Administrator sought to revoke a
pilot’s certificate under 14 C.F.R. § 61.15(d), which allows
the Administrator to seek suspension or revocation of a
certificate when the pilot has had two “motor vehicle
action[s]” within the same 3 year period. See Armstrong,
2013 WL 3227358, at *1. The complaint in Armstrong made
vague reference to three incidents in which the pilot’s driver’s
license had been suspended, all occurring within three years
of each other. Id. at *4 n.12. The complaint did not explain
why those violations warranted revocation rather than the
alternative sanction of suspension. See id. Instead, it vaguely
and conclusively alleged that “the Administrator finds you
lack the qualifications necessary to hold a[] [pilot’s]
certificate or any other airman certificate.” Id.

     In those circumstances where neither law nor tradition
treated the violation as warranting revocation, the
Administrator could not avoid the stale complaint rule without
“provid[ing] sufficient specificity as to the seriousness of the
alleged violation” to elevate it to a qualification concern in
                              20
that case. Armstrong, 2013 WL 3227358, at *3. The concern
in Armstrong, as in Bellis and Hawes, was that wholesale
deference to the Administrator’s choice of sanction would
lead to standardized pleading strategies that would totally
undermine the stale complaint rule.           See id. (giving
“wholesale leniency to the Administrator” might lead to the
Administrator “tack[ing] on a more serious [violation] even
though [he] knows that [he] could not fulfill [his] burden of
proof * * *, all in order to avoid the six-month deadline in the
stale complaint rule.”).

     But here the Administrator’s complaint did not vaguely
or conclusorily refer to Ducote’s offense. The complaint
identified an offense that the Board had long held bore
directly on qualification, and it alleged with precision the
false content of the record at issue, what a true record would
have documented, and the factual basis for Ducote’s
motivation to intentionally falsify the records. The Board’s
exacting demand for specific and unequivocal demonstrations
went beyond the bounds of Armstrong and turned the stale
complaint exception into an evidentiary demand that is
ungrounded in precedent. Furthermore, what more factual
specificity the Board wanted and why is entirely unexplained.

     To be clear, the question in this case is not whether the
Board could demand a heightened pleading or evidentiary
showing from the Administrator to avoid the stale-complaint
bar. All we decide is that the Board may not impose such a
heightened showing in this case given the regulation’s plain
text, past Board precedent, and the detailed content of the
underlying complaint. We accordingly vacate as arbitrary and
capricious the Board’s dismissal of Count 4 of the
                                 21
Administrator’s     complaint,        and   remand   for   further
proceedings.8

           The Board’s Credibility Determination

     In dismissing the allegation that Ducote intentionally
falsified his flight log entries for June 10, 2010, the Board
relied on an adverse credibility determination that it thought
the ALJ had made. Because the record is clear that no such
credibility judgment was made, we also vacate the dismissal
of that count in the complaint.

     The false factual content of the record that Ducote
submitted to the FAA was never in dispute. Ducote admitted
that he flew from the Bahamas on June 10, 2010, that he
properly recorded that Bahamas flight in his online logbook,
and yet in preparing the flight record for the FAA, he omitted
the unlawful Bahamas/Palm Beach flight entirely and
substituted in what would have been a lawful domestic flight.
The only issue before the ALJ and the Board was whether
Ducote intentionally omitted the Bahamas flight from the
flight record he gave to the FAA. In dismissing that count of
the complaint, the Board did not make its own assessment of
the evidence, but instead it deferred to the ALJ’s “credibility
determination” that Ducote did not intend to falsify the
written log.



8
  The Administrator did not raise, and thus we do not address, the
separate question of whether the stale complaint rule, which turns
on “allegations” in a complaint and addresses whether the ALJ
should “proceed to adjudicate” the claims, 49 C.F.R. § 821.33, can
be applied to dismiss claims on the merits after a full evidentiary
hearing, as the ALJ did here, see Schlagenhauf v. FAA, 1993 WL
128571, at *3 (4th Cir. 1993).
                                22
     The problem for the Board is that the ALJ made no such
credibility finding. Quite the opposite, the ALJ expressly left
that question open, stating that “maybe [Ducote] intentionally
falsified the document.” J.A. 398. Or maybe it was a
mistake. Id. There thus was no credibility finding for the
Board to adopt on the key factual question underlying that
count in the complaint.9 For that reason, the Board’s
dismissal of Count 3 of the complaint is unsupported by
substantial evidence. See Pasternack v. NTSB, 596 F.3d 836,
838–839 (D.C. Cir. 2010); Van Dyke v. NTSB, 286 F.3d 594,
597–598 (D.C. Cir. 2002).

                                IV

                           Conclusion

     The Board’s interpretation and application of its stale
complaint rule to dismiss Count 4 of the Administrator’s
complaint marks an unexplained departure from prior
precedent that is unsustainable under the plain text of the
Board’s regulation. In addition, the Board relied on a finding
never made by the ALJ to dismiss Count 3, rendering its
reasoning entirely bankrupt. We vacate those portions of the
Board’s decision, and remand to the Board for further
proceedings. Accordingly, the Administrator’s petition for
review is granted.

                                                       So ordered.

9
  The Board’s reliance on a never-made credibility finding in this
case is particularly troubling because the only ALJ actually to
decide Ducote’s credibility with respect to discrepancies in how he
recorded critical flight information found Ducote to be “utterly and
completely not credible.” Administrator v. Penton, 2011 WL
7664397, at *6 (2011) (discrediting Ducote's testimony in case
brought against his Bahamas flight co-pilot).
       KAREN LECRAFT HENDERSON , Circuit Judge, concurring
in part and concurring in the judgment: Although I agree with
my colleagues’ resolution of the merits, I do not join their
jurisdictional analysis, see Op. 10–14. No one—petitioner,
respondent or amicus—briefed the question whether the
“significant adverse impact” requirement is jurisdictional.
And nothing requires us to decide that question because,
whether or not it is jurisdictional, the requirement was met
here. See, e.g., McClain v. Lufkin Indus., Inc., 519 F.3d 264,
275 n.1 (5th Cir. 2008) (“Because exhaustion was satisfied,
we need not here decide whether exhaustion is . . .
jurisdictional”); SKF USA, Inc. v. U.S. Customs & Border
Prot., 556 F.3d 1337, 1348 (Fed. Cir. 2009) (“We assume, but
do not decide, that the statute of limitations . . . is
jurisdictional” because “[the] complaint was timely in any
event”). The Administrator certified that the Board’s order
would have a “significant adverse impact,” Pet’r’s Br. A1,
and, as the Administrator argues in his brief, his
determination is “committed to agency discretion by law.” 5
U.S.C. § 701(a)(2). Because I do not think we should decide
an unbriefed question of law (jurisdictional vel non) to avoid
deciding a briefed one (committed to agency discretion), see
Nat’l Juvenile Law Ctr., Inc. v. Regnery, 738 F.2d 455, 467
(D.C. Cir. 1984) (“We are reluctant to render a decision on
. . . important jurisdictional questions without the benefit of
briefing and oral argument.”), I do not join my colleagues’
resolution of the “significant adverse impact” issue. Instead, I
would resolve the question as follows.

     Before he can obtain “judicial review” of a Board order,
the Administrator must “decide[]” that the order will have a
“significant adverse impact” on his ability to carry out his
duties. 49 U.S.C. §§ 1153(c); 44709(f). Amicus contends
that, although the Administrator made such a determination
here, his certifying memorandum was “vague and general and
a mere legal conclusion.” Amicus Br. 22–23.
                               2
     But the Court should not review the substance of the
Administrator’s certification because the “significant adverse
impact” requirement has all of the hallmarks of a decision
“committed to agency discretion by law.”              5 U.S.C.
§ 701(a)(2).     First, the statutes put the onus on the
Administrator, not the courts, to “decide[]” that a Board order
will have a significant adverse impact. The statutes therefore
“exude[] deference to the [agency], and appear[] to foreclose
the application of any meaningful judicial standard of
review.” Webster v. Doe, 486 U.S. 592, 600 (1988); see also
Claybrook v. Slater, 111 F.3d 904, 909 (D.C. Cir. 1997);
Drake v. FAA, 291 F.3d 59, 72 (D.C. Cir. 2002). Second, it is
impossible for a court to meaningfully second-guess whether
a Board order is “significant.” Significance is simply too
amorphous to provide a meaningful judicial metric. See
Webster, 486 U.S. at 600 (“advisable in the interests of the
United States” unreviewable); Dep’t of Navy v. Egan, 484
U.S. 518, 528–29 (1988) (“clearly consistent with the
interests of the national security” unreviewable). Finally, the
certification decision is, by nature, closely akin to
prosecutorial discretion. See In re Sealed Case, 131 F.3d 208,
214 (D.C. Cir. 1997) (“The decision to certify that a particular
case involves a ‘substantial federal interest’ implicates the
core [of] prosecutorial discretion . . . .”). Such decisions are
“presumptively unreviewable,” id., because they turn on
factors like “the Government’s enforcement priorities” that
“are not readily susceptible to the kind of analysis the courts
are competent to undertake,” Wayte v. United States, 470 U.S.
598, 607 (1985).

     In short, we should not review the correctness of the
Administrator’s “significant adverse impact” determination.
Instead, we should ask only whether the Administrator made
such a determination. See In re Sealed Case, 131 F.3d at 215.
                             3
He did so here. See Pet’r’s Br. A1. I would resolve the issue
this way.
