                                                                           F IL E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                                      PUBLISH
                                                                           August 8, 2006
                    U N IT E D ST A T E S C O U R T O F A PP E A L S
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
                                 T E N T H C IR C U IT



 R OBER T W. N EWT O N ,

              Petitioner ,

       v.                                                   No. 05-9548

 FED ERAL A V IA TIO N
 A D MIN ISTR ATIO N ,

              Respondent .



                 PE T IT IO N FO R R EV IE W O F A N O R D ER O F
                T H E N A TIO N A L T R A N SPO R T A T IO N B O A R D
                                (N T SB N O . N A -51 )


D. Scott Crook, (R. Christopher Preston, on the brief), Smith Hartvigsen, PLLC,
Salt Lake City, Utah, for Petitioner .

Susan S. Caron, Attorney (Peter J. Lynch, Assistant Chief Counsel, on the brief),
Enforcement Division, AGC-300, Federal Aviation Administration, W ashington,
DC, for Respondent .


Before K E L L Y , SE Y M O U R , and H A R T Z , Circuit Judges.


H A R T Z, Circuit Judge.


      This case arises under the Federal Aviation Act, 49 U.S.C. § 40101 et seq.

(as amended). Robert Newton petitions for our review of an order of the National
Transportation Safety Board (NTSB) determining that it lacked jurisdiction to

review the decision of the Utah Air National Guard (ANG) to withdraw

permanently M r. Newton’s air-traffic-control-specialist (ATCS) certificate. W e

have jurisdiction under 49 U.S.C. §§ 1153, 44709(f), 46110(a), to review the

NTSB’s order. W e affirm.

I.    BACKGROUND

      M r. Newton became an air traffic controller 1 in 1968, when the Federal

Aviation Administration (FAA) issued his first A TCS certificate. This certificate

authorizes the bearer to perform specified air-traffic-control duties at a designated

facility. He worked for the FAA at civilian air-traffic-control facilities in Idaho

and Utah until 1981. In 1985 he became certified to work as a controller at Hill

Air Force Base, and obtained a part-time position with the 299th Range Control

Squadron of the Utah ANG. In 1988 he was employed full-time as a civilian air


      1
          Air traffic controller is defined by statute as

      a civilian employee of the Department of Transportation or the
      Department of Defense who, in an air traffic control facility or flight
      service station facility—
             (A) is actively engaged—
                    (i) in the separation and control of air traffic; or
                    (ii) in providing preflight, inflight, or airport advisory
                    service to aircraft operators; or
             (B) is the immediate supervisor of any employee described in
             subparagraph (A ) . . . .

5 U.S.C. § 2109(1).

                                          -2-
traffic controller w orking for the Department of Defense at Hill. In 1993 his

ATCS certificate was reissued, apparently only because there was no room for

additional certifications and ratings on his old one.

      On December 7, 2003, the Utah ANG suspended M r. Newton’s ATCS

certificate and restricted him from performing air-traffic-control duties because

“[i]t has been determined that [he is] a hazard to aviation safety for repeated

failure in performing the duties of an Air Traffic Control Supervisor.” R. at 6.

His ATCS certificate was permanently withdrawn by the ANG on February 24,

2004, and he was therefore “not authorized to perform any function related to

ATC in the Air National Guard or USA F.” Id. at 1. M r. Newton appealed the

withdraw al of the A TCS certificate to the N TSB under 49 U.S.C. § 1133(1),

which permits the NTSB to review on appeal “the denial, amendment,

modification, suspension, or revocation of a certificate issued by the Secretary of

Transportation under section 44703, 44709, or 44710 of [Title 49].” The timing

and other procedural requirements for an appeal to the NTSB are governed by

49 C.F.R. §§ 821.30, 821.53.

      On June 14, 2004, an NTSB Administrative Law Judge (ALJ) issued an

“Order Not Accepting Appeal and Terminating Proceeding for Lack of

Jurisdiction.” R. at 700. The ALJ observed that the NTSB’s statutory jurisdiction

to review certificate actions encompasses only orders of the FAA respecting



                                          -3-
certificates issued under 49 U.S.C. chapter 447. The ALJ decided that the ATCS

certificate was not such a certificate. He rejected M r. Newton’s arguments that

(1) his ATCS certificate was an “airman certificate” under 49 U.S.C. §§ 44702(a),

44703, and (2) even if it was not an airman certificate, it was nonetheless a

certificate issued under chapter 447. M r. Newton appealed the ALJ’s decision to

the Board. Rejecting M r. N ewton’s arguments relying on FAA Order 7220.1A, a

handbook entitled, “Certification and Rating Procedures,” the NTSB affirmed the

jurisdictional conclusions of the ALJ and denied the appeal.

II.   ST A N D A R D O F R E V IE W

      W e review the N TSB’s factual findings to determine w hether they are

supported by “substantial evidence.” 49 U.S.C. §§ 1153(b)(3), 44709(f). In other

respects the scope of our review is governed by 5 U.S.C. § 706 of the

Administrative Procedures Act (APA). See 5 U.S.C. § 701; Jifry v. Fed. Aviation

Admin., 370 F.3d 1174, 1180-81 (D.C. Cir. 2004) (applying APA review to pilots’

challenge to the revocation of their airman certificates); cf. Boca Airport, Inc. v.

Fed. Aviation Admin., 389 F.3d 185, 189 (D .C. Cir. 2004) (applying APA to

extent that 49 U.S.C. § 46110 does not govern standard of review). Under the

APA we “may overturn nonfactual aspects of the . . . decision only if they are

‘arbitrary, capricious, an abuse of discretion or otherwise not in accordance with

law.’” Boca Airport, Inc., 389 F.3d at 189 (quoting 5 U.S.C. § 706(2)(A)). In



                                         -4-
particular, we have held that we review issues of law , such as matters of statutory

interpretation, de novo. See Bennett v. Nat’l Transp. Safety Bd., 66 F.3d 1130,

1136 (10th Cir. 1995); see also 5 U.S.C. § 706; Kratt v. Garvey, 342 F.3d 475,

480 (6th Cir. 2003) (de novo review of issues of law on appeal from NTSB).

      Under the line of cases following Chevron U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984), we ordinarily

defer to an agency’s interpretation of an ambiguous statute that it im plements.

See M cGraw v. Barnhart, 450 F.3d 493, 500 (10th Cir. 2006); see also Donnelly

v. Fed. Aviation Admin., 411 F.3d 267, 271 (D.C. Cir. 2005) (applying Chevron to

an FAA statutory interpretation). There are three agency pronouncements

relevant to this case: (1) the NTSB’s adjudication of M r. Newton’s appeal; (2)

FA A regulations governing airman certificates; and (3) the FAA handbook, FAA

Order 7220.1A, which establishes A TCS certificates and contrasts them with

airman certificates.

      Different types of agency pronouncements are entitled to different degrees

of deference. In United States v. M ead, 533 U.S. 218, 226-27 (2001), the

Supreme Court held:

      [A]dministrative implementation of a particular statutory provision
      qualifies for Chevron deference when it appears that Congress
      delegated authority to the agency generally to make rules carrying the
      force of law, and that the agency interpretation claiming deference
      was promulgated in the exercise of that authority. Delegation of such
      authority may be shown in a variety of ways, as by an agency's power

                                         -5-
      to engage in adjudication or notice-and-comment rulemaking, or by
      some other indication of a comparable congressional intent.

Under this holding the N TSB’s adjudication would appear to qualify for Chevron

deference, although the extent to which such deference should be accorded an

agency’s interpretation of its own jurisdictional statute has been a matter of

dispute. Compare, e.g., M cBryde v. Comm. to Review Circuit Council Conduct &

Disability Orders of the Judicial Conf. of the U.S., 264 F.3d 52, 62 (D.C. Cir.

2001) (applying Chevron deference to agency’s interpretation); Fleischmann v.

D ir., O ffice of Workers’ C om p. Programs, 137 F.3d 131, 136 & n.2 (2d Cir. 1998)

(same); with, e.g., N. Ill. Steel Supply Co. v. Sec. of Labor, 294 F.3d 844, 846-47

(7th Cir. 2002) (Chevron deference is not applicable to an agency’s jurisdictional

determination); Bolton v. M erit Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir.

1998) (same). See generally Cass R. Sunstein, Chevron Step Zero, 92 Va. L. Rev.

187, 234-36 (2006). As for the FAA’s regulations, they are clearly entitled to

Chevron deference. See Toomer v. City Cab, 443 F.3d 1191, 1196 (10th Cir.

2006) (regulations promulgated by an agency in exercising congressionally

granted rulemaking authority are entitled to deference under Chevron). The FA A

handbook, in contrast, was not issued as a regulation. Nevertheless, insofar as the

handbook is interpreting the provisions of the Federal Aviation Act governing air

traffic controllers, it is entitled to deference to the extent that it is persuasive, see

M cGraw, 450 F.3d at 501; Friends of Richards-Gebaur Airport v. Fed. Aviation

                                           -6-
Admin., 251 F.3d 1178, 1195 (8th Cir. 2001); and it is entitled to great deference

insofar as it is interpreting the agency’s own regulations, see Auer v. Robbins, 519

U.S. 452, 461 (1997); Archuleta v. Wal-M art Stores, Inc. (In re Wal-M art Stores,

Inc.), 395 F.3d 1177, 1184-85 (10th Cir. 2005). See Humanoids Group v. Rogan,

375 F.3d 301, 306 (4th Cir. 2004) (“[A]gency interpretations that lack the force of

law (such as those embodied in opinion letters and policy statements) do not

warrant Chevron-style deference when they interpret ambiguous statutes but do

receive deference under Auer when interpreting ambiguous regulations.” (internal

quotation marks omitted)). Should we encounter an inconsistency between the

interpretation of the NTSB and that of the FAA, we would likely give greater

deference to the FAA as the primary agency overseeing the certification

provisions of the Federal Aviation Act. See Olson v. Fed. M ine Safety & H ealth

Review Com m ., 381 F.3d 1007, 1011 (10th Cir. 2004) (addressing possibility of

conflict between interpretations by (1) Federal M ine Safety and Health Review

Commission and (2) M ine Safety and Health Administration). In the following

discussion we have no quarrel with any relevant pronouncements of the NTSB or

the FAA. To the extent that we should accord deference to such pronouncements,

our conclusions are only strengthened.

III.   A N A L Y SIS




                                         -7-
      The NTSB’s jurisdiction in this case is determined by 49 U.S.C. § 1133,

which states in relevant part:

      The National Transportation Safety Board shall review on appeal—
           (1) the denial, amendment, modification, suspension, or
           revocation of a certificate issued by the Secretary of
           Transportation under section 44703, 44709, or 44710 of this
           title . . . .

Section 44703 governs the FAA’s issuance of “airman” certificates and

specifically provides for an NTSB appeal by “[a]n individual whose application

for the issuance or renewal of an airman certificate has been denied” by the FAA.

Id. § 44703(c). Section 44709 governs orders by the FAA Administrator

“amending, modifying, suspending, or revoking . . . any part of a certificate

issued under this chapter,” id. § 44709(b)(1), and provides that “[a] person

adversely affected by an order of the Administrator under this section may appeal

the order to the National Transportation Safety Board,” id. § 44709(d)(1).

Section 44710 relates to the revocation of airman certificates for substance-abuse

violations.

      A first reading of § 1133(1) may suggest that the NTSB’s authority extends

only to actions with respect to “a certificate issued by the Secretary of

Transportation under section 44703, 44709, or 44710"; but since no certificates

are issued under the latter two sections, it is clear that “under section 44703,

44709, or 44710" does not modify the term certificate issued by the Secretary of



                                         -8-
Transportation, which immediately precedes the prepositional phrase. Rather, the

phrase must modify “denial, amendment, modification, suspension or revocation.”

In other words, § 1133(1) provides the NTSB with appellate authority over the

Administrator’s actions taken under §§ 44703, 44709, or 44710 with respect to

certificates issued by the Secretary of Transportation. M r. Newton contends that

the revocation of his ATCS certificate was a revocation by the Administrator

under § 44709.

      The question before us, then, is whether the revocation of the ATCS

certificate w as (1) an order by the Administrator (2) “revoking . . . a certificate

issued under [chapter 447 of Title 49].” 49 U.S.C. § 44709(b). On appeal M r.

N ew ton raises the same arguments he presented to the NTSB. His first two

arguments relate to the nature of the ATCS certificate. First, he argues that “the

revocation of M r. Newton’s ATCS certificate was a revocation of an airman

certificate issued under 49 U.S.C. § 44703.” Aplt Br. at 13. In the alternative, he

argues that even if his certificate is not an airman certificate, it is nonetheless a

“certificate issued under [chapter 447].” 49 U.S.C. § 44709(b)(1). His third

argument relates to the identity of the entity that took the adverse action against

him. He contends that the ANG ’s suspension and withdrawal of his ATCS

certificate was in essence a revocation by the FAA Administrator (so the action

comes within the scope of § 44709), because the ANG was acting as the



                                           -9-
Administrator’s agent. But we need not address this point, because we reject

M r. Newton’s other two arguments. W e discuss those two arguments in turn.

      A.     A irm an C ertificates

      Under chapter 447 of Title 49, the FAA Administrator “may issue airman

certificates, type certificates, production certificates, airworthiness certificates,

air carrier operating certificates, airport operating certificates, air agency

certificates, and air navigation facility certificates.” 49 U.S.C. § 44702(a). The

Administrator “shall issue an airman certificate to an individual when the

Administrator finds, after investigation, that the individual is qualified for, and

physically able to perform the duties related to, the position to be authorized by

the certificate.” Id. § 44703(a). Once such a certificate has been issued, the

Administrator may issue an order “amending, modifying, suspending or revoking”

it. Id. § 44709(b)(1). Such an order is appealable to the NTSB. Id.

§ 44709(d)(1); 49 C.F.R. §§ 821.1-64; see King v. Nat’l Transp. Safety Bd., 362

F.3d 439, 441-42 (8th Cir. 2004) (noting the procedure, including review in a

federal appellate court, for appealing an FAA certificate action).

      M r. Newton contends that his A TCS certificate is an airman certificate

issued under §§ 44702(a) and 44703. Airman is defined by statute as:

      an individual—
      (A) in command, or as pilot, mechanic, or member of the crew, who
      navigates aircraft when under way;



                                          -10-
       (B) except to the extent the Administrator of the Federal Aviation
       Administration may provide otherwise for individuals employed
       outside the United States, who is directly in charge of inspecting,
       maintaining, overhauling, or repairing aircraft, aircraft engines,
       propellers, or appliances; or
       (C) who serves as an aircraft dispatcher or air traffic control-tower
       operator.

49 U.S.C. § 40102(a)(8) (emphasis added). Although acknowledging that

“thousands of air traffic controllers are employed by the FAA in facilities other

than air traffic control towers,” Aplt Br. at 14, M r. Newton claims that his ATCS

certificate is for an “air traffic control-tower operator.” W e disagree.

       W e think it elementary that a certification as an “air traffic control-tower

operator” must be an authorization to operate an air traffic control tower, or at

least to work at one. Yet M r. Newton does not argue that he has worked at one or

that his ATCS certificate authorized him to work at one. Therefore, we do not see

how his A TCS certificate could be considered an airman certificate for an air

traffic control-tow er operator. M oreover, if we had doubts on that score we

would accord some level of deference to the FAA Administrator’s view of the

matter, see McGraw, 450 F.3d at 500-01 (agency’s informal interpretation of

statute can be persuasive); Archuleta, 395 F.3d at 1184 (agency’s interpretation of

ambiguities in its own regulations is entitled to great weight); and it is clear that

the Administrator considers and treats ATCS certificates as distinct from airman

certificates.



                                         -11-
      The term air traffic control-tower operator is not defined by statute, but the

FAA has issued implementing regulations for airman certificates within this

category. See 14 C.F.R. §§ 65.31-65.50. These regulations discuss the issuance

of certificates for air traffic control-tower operators (CTO certificates) and

mandate that “[n]o person may act as an air traffic control tower operator at an air

traffic control tower in connection with civil aircraft unless he . . . [h]olds an air

traffic control tower operator certificate issued to him under this subpart.” Id.

§ 65.31(a). The regulation does not mention ATCS certificates.

      The program for issuance of ATCS certificates is administered under FA A

Order 7220.1A, a handbook entitled, “Certification and Rating Procedures,”

published on August 18, 1976. The first paragraph of the handbook describes its

scope: “This handbook specifies uniform procedures for the certification and

rating of all air traffic controllers operating in the national airspace system.

These procedures apply to all FA A, DOD civilian and military, and civilian

nonfederal personnel engaged in air traffic control activities.” R. at 267 ¶ 1(a)

(FAA Order 7220.1A).

      M r. Newton contends that this handbook supports his view that ATCS

certificates are airman certificates for control-tower operators. In our view,

however, it does the opposite. The handbook repeatedly states that an ATCS

certificate is distinct from a CTO certificate. The second paragraph of the



                                          -12-
handbook explicitly differentiates between CTO certificates and ATCS

certificates. It states: “This handbook provides for the issuance of control tower

operator (CTO) certificates to all air traffic controllers who serve as control tower

operators. A ll other persons serving as air traffic controllers will be issued air

traffic control specialist (ATCS) certificates.” Id. at 267 ¶ 1(b). Further

emphasizing the distinction between CTO and ATCS certificates, the

“Introduction” paragraph of the handbook states:

      Under the Federal Aviation Act of 1958 (FA Act), an air traffic
      control tower operator is included within the definition of “Airman.”
      Section 610 of the Act makes it unlawful for any person to serve as
      an airman in connection with any civil aircraft in air commerce
      without an appropriate airman certificate. The Act authorizes the
      issuance of airmen certificates, specifying the capacity in which the
      holders are authorized to serve. Persons operating in control towers
      are required by Part 65 of the Federal Aviation Regulations (FAR) to
      possess a Control Tower Operator (CTO) certificate and an
      appropriate facility rating, or be qualified for the operating position
      at which they act and under the supervision of a holder of a facility
      rating for that control tower. Other persons whose responsibilities
      and duties involve the operational handling of instrument flight rule
      (IFR) traffic shall possess a valid FAA Air Traffic Control Specialist
      certificate with the appropriate facility rating. This handbook
      provides procedures for the administration of the air traffic controller
      certification program.

Id. at 272 ¶ 1 (emphasis added).

      M r. Newton creatively asserts that this Introduction “conclusively

establishes that the FAA believes that ATCS certificates are airman certificates.”

Aplt Br. at 16. Despite the paragraph’s stating that “[p]ersons operating in



                                          -13-
control towers” must have CTO certificates and “[o]ther persons” must have

ATCS certificates, he argues:

       The introductory paragraph of the FAA Order specifically cites the
       statute which prohibits air traffic control tower operators from
       acting in that capacity without an airman certificate and authorizes
       the FAA to issue airman certificates. It then identifies one such
       certificate for “[p]ersons operating in control towers.” It
       subsequently identified another certificate for all other “persons
       whose responsibilities and duties involve the operational handling of
       [IFR] traffic.” This language indicates that the FAA believed it was
       acting pursuant to its § 44703 authority to issue airman certificates
       when it created the air traffic control specialist certificates and that
       such certificates are airman certificates. Accordingly, it is more
       than fair to say that FA A Order 7220.1A substantively defined the
       term “air traffic control tower operator” to include two classes of air
       traffic controllers: (1) air traffic controllers providing air traffic
       control in control towers and (2) air traffic controllers providing air
       traffic control from any other air traffic control facility.

Id. at 16-17 (footnote omitted).

       W e are unable to make the mental leap in M r. Newton’s final sentence. H e

is suggesting that the FAA reads the word “tower” out of the term “air traffic

control tower operator” so that the term includes “air traffic controllers providing

air traffic control from any . . . air traffic control facility” other than a control

tower. One would hope that if the FAA were intending such a distortion of the

English language, it would be explicit about it. W e simply cannot read the

paragraph quoted from the handbook as suggesting in any way that the FAA view s

ATCS certificates as being authorized under the statutory provision for airman

certificates.

                                           -14-
      The definitions in the handbook confirm this observation. ATCS certificate

is defined as “a certificate issued by appropriate FAA or military authority

authorizing the holder to act as an air traffic control specialist in accordance with

the provisions of this handbook. This certificate cannot be used in lieu of Airman

Certificate (AC Form 8060-1 [apparently the form for an airman certificate]) by

control tower operators.” R. at 273 ¶ 3(d) (emphasis added). In other words, an

ATCS certificate is not an airman certificate. On the other hand, CTO certificate

is defined as “[a] certificate issued by the FAA authorizing the holder to act as an

AIRM AN in connection with Part 65 of the Federal Aviation Regulations.” Id. at

273 ¶ 3(h); see also id. at 267 ¶ 5(a) (“[This order] [p]rovides for issuance of

CTO certificate and rating to control tower operators and the ATCS certificate

and rating to all others engaged in air traffic control activities whether military or

FAA. In some cases this will require that a specialist hold both certificates.”).

This contrast between the two definitions makes clear that the CTO certificate,

and not the ATCS certificate, is an airman certificate.

      M oreover, the form of an ATCS certificate does not conform to the

statutory requirements for an airman certificate. The statute prescribes:

      An airman certificate shall—
      (A) be numbered and recorded by the Administrator of the Federal
      Aviation Administration;
      (B) contain the name, address, and description of the individual to
      whom the certificate is issued;



                                         -15-
      (C) contain terms the Administrator decides are necessary to ensure
      safety in air commerce, including terms on the duration of the
      certificate, periodic or special examinations, and tests of physical
      fitness;
      (D) specify the capacity in which the holder of the certificate may
      serve as an airman with respect to an aircraft; and
      (E) designate the class the certificate covers.

49 U.S.C. § 44703(b)(1). But the form for the ATCS certificate (which

M r. Newton’s certificate follows) states only: “This certifies that [insert name]

has been found to be properly qualified to perform the duties of air traffic control

specialist within areas specified in the suitably endorsed Rating Record on the

reverse side hereof.” R. at 308. The Rating Record on the reverse side of an

ATCS certificate includes space for several “A rea” and “Rating” qualifications to

be inserted by a “Certifying Official.” (M r. Newton’s, for example, lists that he

was qualified to work at Hill Air Force Base’s “Clover” “ARTCC” facility.

(“A RTCC” is the acronym for Air Route Traffic Control Center.)) An ATCS

certificate is not individually numbered, nor is it recorded by the FAA as required

by § 44703(b)(1)(A). Similarly, the FAA regulations governing CTO certificates

require a written test, see 14 C.F.R. § 65.35, but no such test is imposed for an

ATCS certificate.

      Although M r. Newton asserts that such deficiencies in the form and

recording of his certificate “do[] not alter the statutory basis for issuing the

certificates,” Aplt Reply Br. at 12, these are not mere technicalities. The ATCS



                                         -16-
certificate is not the substantial equivalent of an airman certificate. W e think it

undeniable that A TC S certificates are neither intended nor understood by the FA A

to be airman certificates.

      B.     O ther C ertificates Issued U nder C hapter 447

      49 U.S.C. § 44709(b) states:

      Actions of the Administrator.— The Administrator may issue an order
      amending, modifying, suspending, or revoking—
            (1) any part of a certificate issued under this chapter if—
                   (A) the Administrator decides after conducting a
                   reinspection, reexamination, or other investigation that
                   safety in air commerce or air transportation and the
                   public interest require that action; or
                   (B) the holder of the certificate has violated an aircraft
                   noise or sonic boom standard or regulation prescribed
                   under section 44715(a) of this title . . . .

(emphasis added). M r. Newton’s second argument for NTSB jurisdiction is that

even if his certificate is not an airman certificate issued under § 44703, it was

nonetheless issued under chapter 447 of Title 49, making its revocation a

revocation under § 44709(b)(1), and therefore reviewable by the NTSB under

§§ 44709(d) and 1133(1). W e affirm the NTSB’s determination that

M r. New ton’s ATCS certificate is not a “certificate issued under this chapter”

within the meaning of that language in § 44709(b)(1), although our reasoning is

somewhat different from the Board’s.

      M r. Newton’s argument rests on two contentions. First, he contends that

the list of specific types of aviation-related certificates, including airman

                                          -17-
certificates, enumerated in § 44702 is not exclusive and that the FAA has residual

authority under chapter 447 to issue other types of certificates, including ATCS

certificates, as the Administrator sees fit. Second, he contends that any such

nonenumerated certificates issued by the FAA would fall within § 44709's grant

of NTSB jurisdiction to review orders revoking “certificates issued under this

chapter.”

      His first contention may be correct. Section 44701(a)(5) grants the

Administrator the authority to “promote safe flight of civil aircraft in air

comm erce by prescribing . . . regulations and minimum standards for other

practices, methods, and procedure the Administrator finds necessary for safety in

air commerce and national security.” This language may well be sufficiently

broad to encompass authority for the creation of the ATCS-certificate program.

W e need not resolve that point, however, because Congress expressly and

authoritatively stated its intent that the only certificates addressed by

§ 44709(b)(1) are those that are statutorily enumerated.

      Title 49 was restructured in 1994. The predecessor to § 44709(b)(1) and

(d) (and other provisions of present law) stated:

      [T]he Secretary of Transportation may issue an order amending,
      modifying, suspending, or revoking, in whole or in part, any type
      certificate, production certificate, airworthiness certificate, airman
      certificate, air carrier operating certificate, air navigation facility
      certificate (including airport operating certificate), or air agency
      certificate. . . . Any person whose certificate is affected by such an

                                         -18-
      order of the Secretary of Transportation under this section may
      appeal the Secretary of Transportation’s order to the National
      Transportation Safety Board . . . .

49 U.S.C. § 1429(a) (1993). 2 Clearly, under the predecessor to §§ 44709(b)(1)

the only certificates that the A dministrator could “amend[], modify[], suspend[],

or revok[e],” were type certificates, production certificates, airworthiness

certificates, airman certificates, air carrier operating certificates, air navigation

facility certificates, airport operating certificates, and air agency certificates (each

of which was authorized by a specific statutory provision).

      W hen the first part of § 1429(a) was recodified as § 44709(b)(1), however,

the enumerated list of certificate types w as replaced by the current language:

“certificates issued under this chapter.” See Pub. L. 103-272, 108 Stat. 745, 1190

(1994). One might read this change in the language to mean that the

Administrator could now enter orders respecting any FA A-authorized certificate,

not just those enumerated in § 44702(a). But that reading is foreclosed by the

statutory purpose stated in the title to the revision: “An Act to revise, codify, and

enact without substantive change certain general and permanent law s, related to


      2
            Also, former § 1903(a)(9) (1993), the predecessor to § 1133(1), provided
NTSB jurisdiction to “review on appeal . . . the suspension, amendment,
modification, revocation, or denial of any operating certificate or license issued
by the Secretary of Transportation under sections 1422, 1429, or 1431[(e)] of this
title . . . .” (Section 1422 related to the issuance of airman certificates and §
1431(e) covered certificate actions related to noise pollution (now codified at §
44709(b)(1)(B)).)

                                          -19-
transportation, . . . and to make other technical improvements in the Code.” Id. at

745 (emphasis added). Although ordinarily the title is merely an aid to

construction, which must yield to unambiguous statutory language, see State of

Oklahoma v. United States Civil Service Com m’n., 153 F.2d 280, 283 (10th Cir.

1946), we should not close our eyes to the likelihood that a M ember of Congress

reading the title of the 1994 statute would likely find it unnecessary to read

further, realizing that the statute is not changing the law. Indeed, “[u]nder

established canons of statutory construction, it will not be inferred that Congress,

in revising and consolidating the laws, intended to change their effect unless such

intention is clearly expressed.” Fenley v. United States, 490 U.S. 545, 554 (1989)

(internal quotation marks omitted). “This is true, even though in the course of

revision or consolidation the language of the original sections has been changed.

Ordinarily, the new language will be attributed to a desire to condense and

simplify the text and to improve phraseology.” Ruth v. Eagle-Picher Co., 225

F.2d 572, 575 (10th Cir. 1955). Confirming this presumption, the H ouse Report

states: “In subsection (b)(1) [of § 44709], before subclause (A), the words

‘certificate issued under this chapter’ are substituted for ‘type certificate,

production certificate, airworthiness certificate, airman certificate, air carrier

operating certificate, air navigation facility certificate (including airport operating




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certificate), or air agency certificate’ to eliminate unnecessary words.” H.R. Rep.

103-180, at 348 (1993), reprinted in 1994 U.S.C.C.A.N. 818, 1165.

       Thus, the language “certificates issued under this chapter” in § 44709(b)

refers only to certificates specifically mentioned in chapter 447. In the course of

exercising its responsibilities under that chapter the FAA may issue other

documents. But whether it titles these documents “certificates,” “licenses,”

“credentials,” or whatever, does not affect the NTSB’s jurisdiction under

49 U.S.C. § 1133(1). (W hat if the FAA gave a valued employee a “certificate of

appreciation”?) W e agree with the NTSB’s conclusion that M r. Newton’s ATCS

certificate is not a “certificate issued under [chapter 447],” within the meaning of

§ 44709. Therefore, we have the same view as the NTSB on the question of its

jurisdiction over this matter.




IV .   C O N C L U SIO N

       Because M r. Newton’s ATCS certificate is not an airman certificate and

does not otherwise constitute a certificate issued under chapter 447, we AFFIRM

the NTSB’s conclusion that it lacks jurisdiction to review the ANG’s action.




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