          Case: 15-15648   Date Filed: 10/20/2016   Page: 1 of 8


                                                       [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 15-15648
                       Non-Argument Calendar
                     ________________________

                           Agency No. FAA



MICHEL A. PADILLA,
                                                                    Petitioner,

                                 versus

ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION,

                                                                   Respondent.

                     ________________________

                           No. 15-15649
                       Non-Argument Calendar
                     ________________________

                           Agency No. FAA



BRIAN A. WEISBLAT,

                                                                     Petitioner,

                                 versus
                 Case: 15-15648       Date Filed: 10/20/2016   Page: 2 of 8




FEDERAL AVIATION ADMINISTRATION,

                                                                              Respondent.

                                ________________________

                         Petitions for Review of a Decision of the
                             Federal Aviation Administration
                               ________________________

                                      (October 20, ,2016)

Before WILLIAM PRYOR, MARTIN, and FAY, Circuit Judges.

PER CURIAM:

      Petitioners Michel A. Padilla and Brian A. Weisblat appeal the Federal

Aviation Administration’s (FAA) decision to terminate their appointment as

Training Center Evaluators. 1 They argue that their termination letters did not state

the reasons for termination with sufficient specificity, as required under the FAA’s

internal procedural rules. After careful consideration, we deny their petitions for

review.

                                                I.

      The FAA Administrator issues “airman certificates” to qualified individuals,

which are akin to driver’s licenses for pilots. 49 U.S.C. § 44703(a). The

Administrator “may delegate to a qualified private person” the authority to perform

“the examination, testing, and inspection necessary to issue a certificate,” as well

      1
          These cases were consolidated after briefing.
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as the authority to “issu[e] the certificate” itself. Id. § 44702(d)(1). Individuals to

whom the Administrator has delegated these certification duties are known as

“designees.” FAA Order 8000.95 CHG 1, Vol. 1, at 3 (June 17, 2015). Training

Center Evaluator (Evaluator) is one type of designee. Id. Vol. 1, at 4. An

Evaluator can conduct “flight tests necessary for issuing pilot certificates and

ratings” and can “issue temporary pilot certificates and ratings.” 14 C.F.R.

§ 183.23; see also id. § 142.3; FAA Order 8000.95 CHG 1, Vol. 7, at 1. The

Administrator “may rescind a delegation . . . at any time for any reason the

Administrator considers appropriate.” 49 U.S.C. § 44702(d)(2).

      FAA Order 8900.1 contains the procedures that the FAA must follow when

terminating a designee for cause. The Order states that “the termination of a

designation will be provided to the designee in writing, and the reasons cited will

be as specific as possible.” FAA Order 8900.1 CHG 35, Vol. 13 ¶ 41 (March 19,

2015). The Order also provides a template for a termination letter. Id. Vol. 13 ¶

41 fig. 4. The designee may appeal the termination to an FAA appeal panel. Id.

Vol. 13 ¶ 41.

      Padilla and Weisblat both had Evaluator designations. On September 18,

2015, Padilla and Weisblat each received a letter notifying them that their

designations were terminated for cause, effective immediately. The only

explanation for the termination provided in the letters was:

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       Your designation is being terminated for not performing your duties
       and responsibilities under your designation. Specifically, it was
       determined that you certificated an airman who did not meet the
       eligibility requirements of 14 C.F.R. § 61.153(b).2

Section 61.153(b) requires that recipients of an airline transport pilot certificate

“[b]e able to read, speak, write, and understand the English language.” 14 C.F.R.

§ 61.153(b). The termination letters contained no factual information as to when

or how Padilla and Weisblat violated the English proficiency requirement, much

less the names of the airmen certified in violation of this requirement.

       Padilla and Weisblat timely filed administrative appeals. Both argued that

the termination letters failed to cite the grounds for termination with adequate

specificity and that this lack of specificity made it difficult to formulate an appeal.

On October 22, 2015, Padilla and Weisblat received letters from the FAA

affirming its decision to terminate their designations. These later letters identified

the individual airmen that Padilla and Weisblat had certified who did not meet the

English proficiency requirement.


                                                II.




       2
          The language quoted here is from Padilla’s termination letter. The letter Weisblat
received is identical except that Weisblat’s letter said “you certificated airmen who did not meet
the eligibility requirements” whereas Padilla’s termination letter said “you certified an airman.”
The FAA found that Padilla had improperly certified one pilot and Weisblat had improperly
certified three.
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      Padilla and Weisblat argue that the FAA violated its own procedural rules by

terminating their designations without setting forth the reasons for termination with

sufficient specificity. Padilla and Weisblat concede that we do not have

jurisdiction to review the merits of the FAA’s decision to terminate a designation.

See Steenholdt v. F.A.A., 314 F.3d 633, 634 (D.C. Cir. 2003) (“Because the

decision is ‘committed to agency discretion by law,’ 5 U.S.C. § 701(a)(2) (1996),

we have no jurisdiction to review the substance of the FAA’s decision.”). But they

challenge the FAA’s decision on procedural rather than substantive grounds.

      The Supreme Court has long entertained claims challenging an agency’s

employment decision on the ground that the agency failed to adhere to its internal

procedural regulations. See, e.g., Vitarelli v. Seaton, 359 U.S. 535, 540, 79 S. Ct.

968, 973 (1959); Service v. Dulles, 354 U.S. 363, 388, 77 S. Ct. 1152, 1165

(1957). “[W]hen an agency establishes rules to govern its proceedings, these rules

must be scrupulously observed.” George Kabeller, Inc. v. Busey, 999 F.2d 1417,

1420 (11th Cir. 1993) (citing Vitarelli, 359 U.S. 535, 79 S. Ct. 968). This is true

“even when [the agency’s] regulations provide more protection than the

Constitution or relevant civil service laws.” Doe v. U.S. Dep’t of Justice, 753 F.2d

1092, 1098 (D.C. Cir. 1985). Therefore, we do have jurisdiction to review whether

the FAA followed its own procedural rules in terminating Padilla’s and Weisblat’s

designations. See Lopez v. Fed. Aviation Admin., 318 F.3d 242, 248 (D.C. Cir.

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2003). When reviewing an agency’s employment decision for compliance with its

procedural rules, the petitioner must show that the agency “fell substantially short”

of the applicable procedural requirement. 3 Vitarelli, 359 U.S. at 545, 79 S. Ct. at

975.


                                                III.

       Padilla and Weisblat claim the FAA failed to abide by its own requirement

that a letter terminating a person’s designation “be as specific as possible” in citing

the reasons for termination. FAA Order 8900.1 CHG 35, Vol. 13 ¶ 41. The

termination letters they received cited the violation of a specific regulatory

provision but included no facts. This, they argue, was not “as specific as possible.”

       In order to determine whether these letters complied with the FAA’s

specificity requirement, we must first determine what constitutes sufficient

specificity under the requirement. The phrase “as specific as possible” is


       3
          The parties suggest that the petitioners must show the substantial violation of an agency
rule and that the petitioners were prejudiced by this violation. Because we find that there was no
substantial violation of the FAA’s specificity requirement, we do not reach the issue of whether
the alleged violation resulted in prejudice. In any event, given the type of agency rule at issue, a
showing of prejudice would not be required. It is well established that if an internal agency rule
is “intended primarily to confer important procedural benefits upon individuals in the face of
otherwise unfettered discretion,” as is the case here, then the petitioner need not show prejudice.
Am. Farm Lines v. Black Ball Freight Serv., 397 U.S. 532, 538, 90 S. Ct. 1288, 1292 (1970)
(citing Vitarelli, 359 U.S. 535, 79 S. Ct. 968). All the petitioner must show is that the agency
“fell substantially short of the requirements of the applicable departmental regulations.”
Vitarelli, 359 U.S. at 545, 79 S. Ct. at 975; see also Port of Jacksonville Mar. Ad Hoc Comm.,
Inc. v. U.S. Coast Guard, 788 F.2d 705, 709 n.5 (11th Cir. 1986) (“The [agency’s] guideline
clearly was intended to confer a procedural benefit and therefore, under the American Farm
Lines framework, no inquiry into substantial prejudice was necessary.”).
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inherently open-ended. Without further guidance, these words “might well leave

questions in the minds of local managers concerning the level of detail with which

they are expected to set forth the reasons for a termination decision.” Sheble v.

Huerta, 755 F.3d 954, 958 (D.C. Cir. 2014). To alleviate the indeterminacy of the

rule itself, FAA Order 8900.1 provides sample termination letters, including one

for for-cause terminations. The sample letter serves as a template. It “illustrates

for local managers how to implement the procedural requirements.” Id. at 957.

The template letter says:

      Your designation is being terminated [for not performing your duties
      under your designation] OR [because you no longer meet the
      eligibility requirements for the designation]. [Cite the reference to the
      regulation(s)/policy that was violated/noncompliant.]

FAA Order 8900.1 CHG 35, Vol. 13 ¶ 41 fig. 4.

      The letters sent to Padilla and Weisblat were, in all substantive respects, a

verbatim copy of this template letter. The D.C. Circuit has held that if a

termination letter follows the template contained in FAA Order 8900.1 then the

letter necessarily complies with the specificity requirement. See Sheble, 755 F.3d

at 958. This makes sense. The template letter exhibits the FAA’s understanding of

what it means for the reasons for termination to be cited “as specific[ally] as

possible.” See id. The very purpose of the template is to give local managers an

example of a letter that would satisfy the procedural requirements of FAA Order

8900.1. Letters that adhere to the prescribed template, such as those sent to Padilla
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and Weisblat, cannot be said to “f[a]ll substantially short” of the specificity

requirement. Vitarelli, 359 U.S. at 545, 79 S. Ct. at 975; see also Sheble, 755 F.3d

at 958.

      We recognize that a standard for deciding whether a letter is specific enough

that pegs compliance to a minimalist template is in tension with a plain reading of

the words “as specific as possible.” There will no doubt be times when the FAA

possesses, and is at liberty to disclose, more information than the template requires.

Nevertheless, the rule we apply today—in which adherence to the template letter

demonstrates substantial compliance with the specificity requirement—provides

the FAA and its designees with a test that is clear and easy to apply. Other

standards for determining what is “as specific as possible” lack administrability.

None of this stops the FAA from voluntarily electing to state the reasons for

termination in greater detail than the template contemplates. See Sheble, 755 F.3d

at 958. But where a termination letter provides at least as much information as the

template calls for, as is the case here, the FAA has substantially complied with the

specificity requirement of FAA Order 8900.1.

      Padilla’s and Weisblat’s petitions are DENIED.




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