472 F. App'x 2
D.C. Cir.2012Background
- Porco seeks review of the NTSB’s July 15, 2011 decision revoking her airman and medical certificates.
- The Board reversed an ALJ’s finding that Porco violated 14 C.F.R. § 67.403(a)(1) and revoked certificates, on remand for clarification.
- The ALJ on remand concluded Porco’s failure to disclose a 2010 DUI arrest on the medical-certificate application was caused by erroneous legal advice, not intentional falsity.
- The Board found the ALJ’s credibility determination arbitrary and capricious and reversed the finding, revoking Porco’s certificates.
- The Board conducted its own factual determination, concluding Porco’s reliance on counsel was implausible and the record supported rejecting her explanations.
- Porco forfeited objections to the Board’s remand process; the Board’s procedural actions were not shown to be prejudicial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board’s credibility ruling was arbitrary and capricious. | Porco argues the ALJ’s credibility findings should stand. | Board contends the ALJ erred in crediting Porco’s uncorroborated testimony. | Yes; Board’s credibility determination was not arbitrary or capricious. |
| Whether the Board had authority to remand on an expedited schedule. | Porco challenges remand procedure. | Board acted within its discretion; no prejudice shown. | No reversible error; no prejudice established. |
| Whether the Board’s own factual findings are supported by substantial evidence. | Porco relies on the ALJ’s credibility and record inconsistencies. | Record supports Board’s adverse credibility and factual conclusions. | Yes; Board’s factual determinations are supported by substantial evidence. |
| Whether the Board properly applied the standard of review for ALJ credibility determinations. | Standard should defer to ALJ credibility unless arbitrary. | Board clarified discretionary role and applied proper standard. | Yes; standard properly applied. |
Key Cases Cited
- Dillmon v. NTSB, 588 F.3d 1085 (D.C. Cir. 2009) (deferential review of credibility with substantial evidence standard)
- Cooper v. NTSB, 660 F.3d 476 (D.C. Cir. 2011) (review of predicate credibility and reporting awareness)
- Air Canada v. Dep’t of Transp., 148 F.3d 1142 (D.C. Cir. 1998) (procedural and substantive review standards in agency orders)
- First American Discount Corp. v. Commodity Futures Trading Comm’n, 222 F.3d 1008 (D.C. Cir. 2000) (prejudice and procedural challenge standards on petition for review)
- Chirino v. NTSB, 849 F.2d 1525 (D.C. Cir. 1988) (historical formulations of deferential review in credibility determinations)