                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JAN 05 2011

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

MARIE ROSE FINAZZO,                              No. 09-70617

              Petitioner,                        FAA Nos.     SE-18095
                                                              SE-18095
  v.

ROBERT A. STURGELL, Acting                       MEMORANDUM*
Administrator of FAA; FEDERAL
AVIATION ADMINISTRATION,

              Respondents.


                     On Petition for Review of an Order of the
                         Federal Aviation Administration

                     Argued and Submitted November 4, 2010
                            San Francisco, California

Before: THOMAS and IKUTA, Circuit Judges, and SETTLE, District Judge.**

       Pilot Maria Finazzo petitions for review of orders issued by the National

Transportation Safety Board (“NTSB”) granting the appeal of the Federal Aviation

Administration (“FAA”), reversing the initial decision of the NTSB Administrative

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Benjamin Hale Settle, United States District Judge for
the Western District of Washington, sitting by designation.
Law Judge (“ALJ”), affirming the FAA’s order revoking Finazzo’s Airline

Transport Pilot Certificate, and denying reconsideration, entered on October 16,

2008 and January 2, 2009. We grant the petition.

      The NTSB’s reversal of the ALJ’s credibility determination is at odds with

the Board’s precedents and unsupported by substantial evidence. The Board must

defer to an ALJ’s credibility finding “unless there is a compelling reason or the

finding was clearly erroneous.” Andrzejewski v. FAA, 563 F.3d 796, 799 (9th Cir.

2009) (quoting Chirino v. NTSB, 849 F.2d 1525, 1529-30 (D.C. Cir. 1988)); see

also Roarty, NTSB Order No. EA-5261, 2006 WL 3472333 at *2 (Nov. 27, 2006)

(“[The Board] may not reverse the law judge simply because, on the appellate

record, [it] might come to a different conclusion.”). This deference reflects the

ALJ’s function in the adjudicative process: seeing and hearing witnesses, the ALJ

is best positioned to evaluate their credibility. Dillmon v. NTSB, 588 F.3d 1085,

1090 (D.C. Cir. 2009). Accordingly, the Board rejects testimony accepted by an

ALJ when it is “inherently incredible” or “inconsistent with the overwhelming

weight of the evidence.” Id.; Hodges, NTSB Order No. EA-5303, 2007 WL

2253336 at *5 (Aug. 1, 2007).

       Here, substantial evidence does not support the Board’s determination that

the record “directly and overwhelmingly contradicts” the ALJ’s credibility finding.

Finazzo, NTSB Order No. EA-5412 (Oct. 15, 2008). First, the Board had little
cause to fault Finazzo for not reporting that she was “diagnosed” with a “[m]ental

disorder,” as Question 18 requires. The record abundantly supports Finazzo’s

testimony that Doctor Seberg never shared his notes with her, and Doctor Ingram

testified that Finazzo did not have general anxiety disorder. Second, the Board’s

attempt to discredit Finazzo’s reasons for seeing Dr. Ingram rests on thin evidence.

Dr. Ingram agreed that Finazzo saw her for job counseling. Finazzo’s testimony is

not rendered “incongruent” by her anxious appearance in these meetings or

Ingram’s private speculation about potential future diagnoses. Finally, the Board’s

decision ignores additional record evidence buttressing Finazzo’s credibility. See

Van Dyke v. NTSB, 286 F.3d 594, 597 (D.C. Cir. 2002). For example, while the

FAA presented only hearsay testimony of Dr. Seberg’s notes, both of Finazzo’s

physicians, Doctors Ingram and Young, gave live testimony praising her credibility

and honesty.

      Because substantial evidence does not support the Board’s adverse

credibility finding, the NTSB acted arbitrarily and capriciously in finding that the

FAA met its burden of establishing that Finazzo intentionally falsified her medical

application. In particular, the Board should have deferred to Finazzo’s credible

explanations for her responses to Questions 18 and 19, which negate the Board’s

reasons for finding the knowledge element satisfied.
      The Board may have other sufficient reasons for finding in favor of the

FAA, but we cannot “supply a reasoned basis for the agency’s action that the

agency itself has not given.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm

Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983) (quoting SEC v. Chenery Corp., 332

U.S. 194, 196 (1947)).

      We GRANT the petition for review, VACATE the Board’s orders, and

REMAND for further proceedings.
                                                                                 FILED
Finazzo v. Sturgell, No. 09-70617                                                 JAN 05 2011
IKUTA, Circuit Judge, dissenting;                                             MOLLY C. DWYER, CLERK
                                                                               U.S. COURT OF APPEALS

      Under the National Transportation Safety Board’s precedents, the Board

may overturn an ALJ’s credibility finding if it is “made in an arbitrary or

capricious manner or [is] clearly erroneous,” Administrator v. Babbitt, NTSB

Order No. EA-5496, at 12 (Dec. 30, 2009), such as when it is “inconsistent with

the overwhelming weight of the evidence,” Administrator v. Taylor, NTSB Order

No. EA-4509, at 7 (Dec. 23, 1996). In reviewing the Board’s decision, we may not

substitute our judgment for that of the agency, Motor Vehicle Mfrs. Ass’n of U.S.,

Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983), and may set aside

the Board’s determination only if it is “arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law,” Andrzejewski v. FAA, 563 F.3d 796, 799

(9th Cir. 2009) (quoting Administrative Procedure Act, 5 U.S.C. § 706(2)(A)).

      Given our deferential standard of review, the Board could have reasonably

determined that the overwhelming weight of the evidence established that Finazzo

intentionally made a false representation of material fact with knowledge of its

falsity for one or more of the items on her applications for a medical certificate, in

violation of both 14 C.F.R. §§ 67.403 and 61.153.

      In response to Item 17(a), “do you currently use any medication
(prescription or nonprescription),” Finazzo did not report her ongoing use of

Ambien (a sleeping pill) or Ativan (an anti-anxiety drug). Finazzo knew that she

was taking those drugs, but testified that in her view, and based on advice that she

had received, she thought that she did not need to report her use of them. The

ALJ’s determination that Finazzo’s response was not literally false because at the

moment she filled out the form she was not using either medication is wrong as a

matter of law, Richards v. Evans, NTSB Order No. EA-3679, at 3–4 (Oct. 1, 1992),

and therefore the Board was not arbitrary or capricious in rejecting the ALJ’s

conclusion, Andrzejewski, 563 F.3d at 799.

      In response to Item 19, which required Finazzo to disclose visits to health

professionals within the last three years of the medical application, she did not

report her visits to Dr. Seberg or Dr. Ingram. Finazzo testified that she knew that

she had to report her visits to Dr. Seberg, but “just forgot” to report her first visit,

and believed that she had previously reported other visits and “[did not] need to

keep reporting [her] general practitioner.” Despite these claims, Finazzo reported

visits to Dr. Seberg for a sprained ankle and a cold. Finazzo also stated that she

did not think she had to report her visits to Dr. Ingram, a psychiatrist that she was

seeing for stress and who prescribed medication to her, because those visits were

for “job counsel.” Dr. Ingram testified at the hearing that Finazzo’s visits were

                                            2
about work-related stress.

      Finazzo’s answers to Items 17a and 19 were literally false. The record

establishes that Finazzo knew that they were false, although she made excuses for

her false answers based on her own interpretation of the FAA requirements. It is

well-settled that narrow interpretations of the scope of a question do not excuse the

failure to disclose required information. United States v. Culliton, 328 F.3d 1074,

1079–80 (9th Cir. 2003). Moreover, her non-answers were material. Although we

have held that any false statement is material if it could influence the FAA, see

Janka v. NTSB, 925 F.2d 1147, 1150 (9th Cir. 1991), in this case, Finazzo’s

answers are material under any standard: the FAA rightly needs to know if pilots,

entrusted with the lives of their passengers, are taking mind-altering drugs and are

seeing doctors for treatment of mental or physical disabilities.

      The overwhelming weight of the evidence establishes that Finazzo falsified

her application. Moreover, Finazzo’s pattern of evasive explanations and excuses

based on faulty memory and narrow interpretations well supports a conclusion that

Finazzo was not credible. Accordingly, the Board’s rejection of the ALJ’s

credibility determination was not arbitrary or capricious, nor an abuse of

discretion. Therefore, I respectfully dissent.




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