                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                  F I L E D
                 IN THE UNITED STATES COURT OF APPEALS           September 11, 2003
                         FOR THE FIFTH CIRCUIT
                                                             Charles R. Fulbruge III
                                                                     Clerk

                             No. 03-60183
                          (Summary Calendar)



DAVID PAUL TOKOPH,

                                                             Petitioner,

                                  versus

MARION C. BLAKEY, ADMINISTRATOR,
FEDERAL AVIATION ADMINISTRATION, and
NATIONAL TRANSPORTATION SAFETY BOARD,

                                                            Respondents.


                 On Petition for Review of An Order of
               The National Transportation Safety Board
                               (EA-5018)



Before JOLLY, WIENER, and DENNIS, Circuit Judges.

PER CURIAM:*

      The petitioner, David P. Tokoph, is a pilot challenging the

suspension of his pilot’s certificate for operating a surplus

military jet in violation of Federal Aviation Regulation, 14 C.F.R.
§ 91.319(c) (“Section 91.319(c)”).     Tokoph petitions for review of

the   National   Transportation    Safety   Board’s   (“NTSB”)    decision

affirming the order of the Administrative Law Judge (“ALJ”) in

favor of the Federal Aviation Administration’s (“FAA”) charge and



      *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
suspension. Because NTSB’s decision is not arbitrary or capricious

and is supported by substantial evidence, we deny the petition for

review.

                            I.    FACTS & PROCEEDINGS

          Petitioner Tokoph operated a North American F-100F Super

Sabre    (the    “F-100”)    ——    a   surplus   military   aircraft    with   an

experimental-category special airworthiness certificate —— under

written operating limitations issued by the FAA.                While piloting

the F-100 on the day in question, Tokoph made a high-speed approach

to, and low-level pass over, a runway at the Lordsburg, New Mexico

airport.        During this approach, the plane was in the “clean”

configuration,      i.e.,    without     flaps   or   landing   gear   extended.

Tokoph’s airspeed was at least 300 knots.              For this maneuver, the

FAA charged Tokoph with violating § 91.319(c).1                  The aircraft-

specific operating limitations issued to Tokoph for the F-100 state

that the “aircraft may not be operated over densely populated areas

or congested airways, except when otherwise directed by Air Traffic

Control” and require that Tokoph “plan routing that will avoid

     1
        At the time of Tokoph’s flight, Section 91.319(c)
provided:

            Unless otherwise authorized by the Administrator in
            special operating limitations, no person may operate an
            aircraft that has an experimental certificate over a
            densely populated area or in a congested airway. The
            Administrator may issue special operating limitations
            for particular aircraft to permit takeoffs and landings
            to be conducted over a densely populated area or in a
            congested airway, in accordance with the terms and
            conditions specified in the authorization in the
            interest of safety in air commerce.

14 C.F.R. § 91.319(c)(2000)(emphasis added).

                                          2
densely populated areas and congested airways when operating VFR.”

Because the Lordsburg, New Mexico-area is densely populated, the

FAA ordered a 180-day suspension of Tokoph’s pilot certificate.

Tokoph    appealed   the   suspension,     and,   after      exhausting   the

administrative review and appeals process, found himself facing a

thirty-day suspension of his pilot’s certificate. He now petitions

us for review.

                             II.    ANALYSIS

A.   Standard of Review

     We accord substantial deference to the NTSB’s interpretation

of the statutes and regulations it administers.2             That deference,

to be sure, is not unlimited:       As with any federal administrative

agency, we will not defer to the NTSB’s interpretation if it is

“arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.”      5 U.S.C. § 706(2)(A).3       In other words, we

will not substitute our own judgment for that of the agency and

will affirm unless the agency fails to articulate a rational

relationship between the facts found and the choice made.4

B.   Tokoph’s Complaints

     Tokoph    complains   that    the   NTSB   erred   in    affirming   his

violation of § 91.319(c).     Tokoph advances three arguments in          his

petition for review.       First, he claims to have received oral


     2
       City of Abilene v. U.S. E.P.A., 325 F.3d 657, 664 (5th
Cir. 2003).
     3
         See also City of Abilene, 325 F.3d at 664.
     4
         See id.

                                     3
authorization from an FAA Inspector permitting him to operate the

F-100 in the way that he did.   Second, the operating limitations

issued to prior owners of the F-100 contained an exception for

takeoffs and landings from the restriction governing flights over

densely populated areas.   Tokoph argues that it is unfair to deny

him equally broad operating authority.   Tokoph’s third argument is

that the flight in question was permitted by the language of §

91.319(c) as   a necessary component of the landing or pre-landing

phase of flight.   After carefully reviewing the facts and legal

arguments in the record on appeal and the parties’ briefs, we are

convinced that his petition must be denied.

     Given the airspeed and configuration of the F-100 during

Tokoph’s approach over the Lordsburg runway, the NTSB determined

that no landing could have been made.         There is substantial

evidence in the record to support this pivotal conclusion, which,

as we shall explain, requires us to reject Tokoph’s first two

claims.5

     Tokoph’s first claim relies on the fact that the FAA Principal

Maintenance Inspector (the “Inspector”) who issued the aircraft-

specific operating limitations for Tokoph’s F-100 advised Tokoph

orally that he could make reconnoitering approaches over densely

populated areas.   The Inspector also told Tokoph that he needed

nothing in writing to reflect this exception. Tokoph contends that

this oral statement by the Inspector either constitutes binding FAA


     5
       See Texas Oil & Gas Ass’n v. U.S. E.P.A., 161 F.3d 923,
934 (5th Cir. 1998).

                                 4
authorization or should estop the FAA from charging a violation of

§ 91.319(c).       The NTSB concluded, however, that the Inspector’s

guidance was limited to the context of landings and takeoffs and

that, by his own concession, Tokoph was not landing the F-100 at

Lordsburg that day.      Again, because there is substantial evidence

to support this determination,6 we will not reverse the NTSB’s

conclusion that any purported FAA authorization to fly over a

densely populated area when landing could not apply to Tokoph’s

conduct.    The NTSB articulated a rational relationship between the

facts found and its decision.7

     Likewise, Tokoph cannot prevail on his second claim, that his

approach fell within the takeoffs-and-landings exception contained

in the operating limitations governing prior owners of the F-100.

Even assuming arguendo that prior owners’ operating limitations

could be extended to Tokoph, however, the exception could not apply

to his conduct.      This is because the NTSB determined that Tokoph

was not actually landing the F-100.     Again, the deference we must

accord the NTSB’s factual determinations requires us to uphold its

decision.

     Tokoph’s third argument, that the language of § 91.319(c)

itself permits his maneuver, also fails. First, it is unclear from

Tokoph’s appellate brief exactly what language in § 91.319(c) he




     6
         See id.
     7
         See City of Abilene, 325 F.3d at 664.

                                    5
contends authorized his reconnaissance pre-landing approach.8 More

importantly, when, as here, a court reviews an agency’s application

and interpretation of its own regulations, the standard of review

is even more deferential.9 Under this standard, we cannot conclude

that Tokoph’s approach is exempted from the prohibitions of §

91.319(c).

                         III.   CONCLUSION

     Because substantial evidence supports the NTSB’s findings, and

it cannot be deemed to have acted in an arbitrary or capricious

manner, we cannot disturb its disposition of this matter.           For the

foregoing reasons, Tokoph’s pleas must be rejected.

PETITION DENIED.
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     8
       Tokoph argues that the flight in question “was part of the
landing or pre-landing phase of flight, was ‘necessary,’ and is
accordingly exempted from the low flight prohibition of 91.319(c)
by the language of 91.319 itself, as well as being expressly
authorized by the [FAA]’s representative.” Yet, he fails to
identify any language that supports this argument.
     9
       Texas Coalition of Cities for Utility Issues v. F.C.C.,
324 F.3d 802, 811 (5th Cir. 2003).

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