Newton R. Dickson v. National Transportation Safety Board and Federal Aviation Administration

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 21, 2011 Decided May 6, 2011
No. 10-1091
NEWTON R. DICKSON ,
PETITIONER
v.
NATIONAL TRANSPORTATION SAFETY BOARD AND FEDERAL
AVIATION ADMINISTRATION ,
RESPONDENTS
On Petition for Review of an Order
of the National Transportation Safety Board
Gregory S. Winton argued the cause and filed the briefs for
petitioner.
Susan Caron, Attorney, Federal Aviation Administration,
argued the cause for respondent. On the brief was Autumn
Killingham, Attorney.
Before: SENTELLE , Chief Judge, and HENDERSON and
GARLAND , Circuit Judges.
Opinion for the Court filed by Circuit Judge GARLAND .

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GARLAND , Circuit Judge: The Federal Aviation
Administration (FAA) denied Newton Dickson’s application for
a first-class airman medical certificate because he had a history
of “disturbance of consciousness without satisfactory medical
explanation” or “other seizure disorder, disturbance of
consciousness, or neurologic condition.” With respect to one of
the incidents that led the FAA to this conclusion -- an incident
aboard a passenger-carrying Boeing 757 -- the best that
Dickson’s own medical expert could say was that “the much
more likely story is [that] he was acting like a teenager.” Had
the National Transportation Safety Board (NTSB) believed that
expert, it might well have taken away the “teenager’s” jet keys
on that ground alone. Instead, it affirmed the FAA’s
determination that Dickson was not medically qualified to fly.
We do so as well.
I
On December 20, 2006, Dickson applied for a first-class
airman medical certificate pursuant to 49 U.S.C. § 44703. After
a period of evaluation, FAA Federal Air Surgeon Frederick
Tilton issued a denial letter in March 2008, amended in March
2009, concluding that Dickson did not meet the medical
standards set out in the relevant regulations because he had “a
history of disturbance of consciousness without satisfactory
medical explanation, and/or other seizure disorder, disturbance
of consciousness, or neurologic condition.” Tilton Letter (Mar.
19, 2009) (JA 28) (citing, inter alia, 14 C.F.R. § 67.109(a)(2),
(b)). “These findings,” Tilton said, made the grant of a medical
certificate “incompatible with aviation safety.” Id.
The FAA’s denial was based on two incidents that took
place in the spring of 2004. As of that time, Dickson had been
flying MD-80 aircraft for Continental Airlines and was training
to fly the Boeing 757. On April 8, during a layover in London,

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he collapsed at a restaurant. Emergency Medical Services
(EMS) paramedics who arrived at the scene wrote
“Convulsions/Fitting, Shivering” in their report, Emergency Call
Receipt (Apr. 8, 2004) (JA 43), and further stated, among other
things, that the “patient had just finished eating when he stood
up and collapsed to the floor and began fitting for approx. 4
minutes,” EMS Report (Apr. 8, 2004) (JA 45). Dickson was
transported to the University College London Hospital, a
hospital “world-renowned for its expertise in neurology.”
Petition of Dickson, NTSB Order No. EA-5517, at 4 n.3 (Apr.
9, 2010) (citing expert testimony). There, he was examined by
several doctors, including Dr. Clement Loy, who discharged him
the following day with the diagnosis: “generalized seizure.”
UCL Hosp. Discharge Record (Apr. 9, 2004) (JA 66).
One month later, Dickson was paired with Captain Frank
Metzner for a Boeing 757 training flight. On the second leg of
the passenger-carrying flight, from Cleveland to Las Vegas,
Captain Metzner “noticed enroute degradation in his
performance, and deterioration in his level of awareness and
application of autoflight functions.” NTSB Order at 7.
According to Metzner, Dickson “stared at the computer, seemed
to ignore the input procedures, and had significant problems
with automation that he had not experienced earlier.” Id. When
Dickson failed to achieve a reasonable glide angle for arrival,
Metzner took over the controls and assisted in the landing.
Upon arrival in Las Vegas, Metzner instructed Dickson to
prepare the aircraft for the final leg to Houston. Dickson,
however, “did not appear to be able to complete the tasks
without assistance.” Id. at 8. Instead:
He stared at the computer and did not enter the take-off
data for Houston. He was unable to perform some basic
automation procedures . . . . He was unable to load the

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Flight Management Computer, repeatedly pushing the
auto-initiation prompt, even after Captain Metzner told
him where to find the correct prompt. Petitioner
continued to hit the auto initiation key, repeating the
phrase, ‘got to load fuel.’
Id. When “Metzner called for the before-start checklist,
[Dickson] reached for the wrong hydraulic pump . . . . After
push off, when petitioner reached for the overhead panel to
begin the after-start checklist procedure, ‘his arm was shaking
in a spastic shaking motion.’” Id. 8-9. Dickson again reached
for the wrong switch and, according to Metzner, “was lethargic
and unable to load several sets of data before take-off.” Id. at 9.
Metzner decided to fly the last leg himself. During the
flight, the “petitioner was disengaged and uninvolved; he stared
straight ahead with his hands in his lap.” Id. During arrival, he
was unable to perform basic tasks. After the engines shut down,
Captain Gary Small, an Assistant Chief Pilot for Continental
Airlines, entered the cockpit and was present for Dickson’s
debriefing. According to Small, there was about Dickson “‘just
a very removed, detached sense that everything was slow
motion, everything was disconnected.’” Id. at 10. Small
decided to stop Dickson’s training because he had
“demonstrated very unusual, bizarre behavior.” Id.
In response to the flight training incident, Dr. Michael Berry
was assigned to evaluate Dickson’s medical fitness. Following
interviews of Dickson and Metzner, consultation with a
neurologist, review of the London hospital records, and his own
physical examination and laboratory tests, Dr. Berry concluded
that Dickson had suffered a loss of consciousness secondary to
seizure, and that he was not qualified for flying duties. Fitness
for Duty Med. Eval. (Aug. 9, 2004) (JA 76-79). Based on this
evaluation, as well as the other information in Dickson’s

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medical file, Federal Air Surgeon Tilton denied Dickson’s
subsequent application for a first-class airman medical
certificate. Tilton Ltr. (JA 28).
Claiming that the first episode was the result of a trip, fall
and concussion, and that the second was the result of
inexperience, fatigue and personality conflict, Dickson appealed
the denial of his application to the NTSB. See 49 U.S.C.
§ 44703(d). At the conclusion of a three-day hearing, an
Administrative Law Judge (ALJ) affirmed the FAA’s denial.
Dickson then appealed to the Board, which affirmed the ALJ’s
order on April 9, 2010. Dickson now seeks judicial review
pursuant to 49 U.S.C. § 1153.
II
This court must uphold an NTSB decision unless it is
“arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A); see Chritton v.
NTSB, 888 F.2d 854, 856 (D.C. Cir. 1989). The Board’s
“[f]indings of fact . . . , if supported by substantial evidence, are
conclusive.” 49 U.S.C. § 1153(b)(3). Substantial evidence “is
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Chritton, 888 F.2d at 856
(internal quotation marks omitted); see AJP Constr., Inc. v.
Sec’y of Labor, 357 F.3d 70, 73 (D.C. Cir. 2004). “Thus, a
conclusion may be supported by substantial evidence even
though a plausible alternative interpretation of the evidence
would support a contrary view.” Chritton, 888 F.2d at 856. In
determining whether substantial evidence supports the NTSB’s
decision, we must accept “reasonable credibility determinations”
made by the ALJ and approved by the Board. Throckmorton v.
NTSB, 963 F.2d 441, 444 (D.C. 1992).

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Dickson’s sole contention is that the NTSB’s affirmance of
the denial of his medical certificate was not supported by
substantial evidence. We note that in agency proceedings under
49 U.S.C. § 44703, “the burden of proof is on petitioner to
establish his medical qualifications by a preponderance of
reliable, probative, and substantial evidence.” Petition of Peet,
NTSB Order No. EA-4854, 2000 WL 1239201, at *3 (Aug. 24,
2000); see 49 C.F.R. § 821.25; Petitioner’s Br. 43. Thus, to
succeed in this court, Dickson has a particularly difficult burden:
he must show that substantial evidence does not support the
Board’s determination that Dickson failed to establish his
medical qualifications by a preponderance of the evidence.
In support of its denial of Dickson’s application, the FAA
submitted the London EMS and hospital records, the testimony
of Captains Metzner and Small (as described in Part I above),
Dickson’s medical records, and the medical testimony of three
experts. In support of his appeal, Dickson offered his own
testimony, that of his London dinner companion, Sophie Myhill,
and that of his own medical expert. There is no doubt that, if
credited, the FAA’s submissions provided substantial evidence
for the denial of Dickson’s application. And because Dickson
has not shown that it was unreasonable for the NTSB to credit
the FAA’s evidence over his own, his challenge fails.
With respect to the facts of the London incident, Dickson’s
testimony was that he merely tripped, fell and hit his head; both
he and Myhill testified that he did not have a “fit.” But even
Dickson concedes that neither’s testimony was dispositive:
Myhill “was not physically present” when he fell, and Dickson
himself was “unable to provide a clear and unbiased recollection
of the facts and circumstances leading up to and immediately
following the fall.” Petitioner’s Reply Br. 15. Instead of relying
on Dickson and Myhill, the ALJ credited the EMS and hospital
records, which reported what witnesses to the event (including

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Myhill) told medical personnel at the time: that Dickson had
suffered “Convulsions/Fitting, Shivering,” Emergency Call
Receipt (Apr. 8, 2004) (JA 43); that he “had just finished eating
when he stood up and collapsed to the floor and began fitting for
approx. 4 minutes,” EMS Report (Apr. 8, 2004) (JA 45); and
that he “became less coherent following dinner,” “fell over,” and
was “foaming @ mouth,” Dr. Brian Kennedy, UCL Hosp.,
Clinical Notes (Apr. 8, 2004) (JA 70). Moreover, the NTSB
noted, the ALJ “made an implicit credibility determination
[against] the hearing testimony of Ms. Myhill, which
contradicted other evidence attributed to her” in the medical
records. NTSB Order at 20.
Dickson objects that the decision to credit the London
medical records was improper because they contain reports of
witness observations that constitute “unreliable hearsay.”
Petitioner’s Reply Br. 9. As Dickson concedes, however, the
NTSB’s Rules of Practice provide that “‘[h]earsay evidence
(including hearsay within hearsay, where there are acceptable
circumstantial indicia of trustworthiness) shall be admissible.’”
Petitioner’s Reply Br. 7 (quoting 49 C.F.R. § 821.38). The ALJ
found the records trustworthy on the ground that medical
personnel are trained to take statements and interview witnesses,
and hence that such statements are likely to be credible. ALJ
Oral Decision at 695 (Aug. 6, 2009) (JA 171). That conclusion
is not unreasonable. See generally F ED . R. EVID . 803(4)
(providing that “statements for purposes of medical diagnosis or
treatment” are “not excluded by the hearsay rule”).
With respect to the facts of the training flight incident,
although Dickson admitted that he was slow to respond to
Captain Metzner’s commands, he attributed it to inexperience
and fatigue. Dickson Aff. 1-2 (Aug. 31, 2004) (JA 73-74). He
also admitted his withdrawn behavior, but attributed that to a
personality conflict with Captain Metzner. Dickson Aff. 1-2

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(June 7, 2005) (JA 61-62); see Petitioner’s Br. 25. The ALJ,
however, “made an explicit credibility determination in favor of
Captain Metzner and against petitioner.” NTSB Order at 18.
That is a determination that we “cannot reexamine,” as there is
no ground for finding it “unreasonable,” Throckmorton, 963
F.2d at 444. 1
Finally, with respect to the medical explanation for
Dickson’s behavior, Dickson’s expert -- board-certified
neurologist Dr. Brian Loftus -- opined that Dickson did not have
a seizure in London, but instead merely suffered a mild
concussion caused by a trip and fall at the restaurant. Loftus
Expert Report at 2 (JA 38); ALJ Hr’g Tr. at 585 (Aug. 6, 2009)
(JA 451). He also opined that Dickson did not suffer a seizure
on the training flight, concluding that “the more likely story is,
you know, he was acting like a teenager.” ALJ Hr’g Tr. at 188
(Aug. 4, 2009) (JA 227). When asked to explain what this
meant, Loftus elaborated as follows:
“I don’t know if you have a teenager. . . . There are
times you try to talk to them and they just don’t answer
you. You say their name a second time, and they still
don’t answer you. And then you kind of get in their
face and then they answer you, shout at you, storm off
to their room. They don’t talk to you for a while. My
1 The ALJ’s determination was based in part on his comparative
assessment of Metzner’s and Dickson’s testimony, and in part on his
finding that Dickson plainly did not tell the truth about a letter he had
sent to Metzner. Although Dickson “vehemently denied” authorship
of the letter, the ALJ found that Dickson was “the only one [who]
would have known the information” it contained, and that “the
signature on th[e] letter is exactly the same” as several other Dickson
signatures in the record. ALJ Oral Decision at 698 (JA 174).

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son and I get along now that he’s 19, but we went
through that phase. Obviously in a cockpit he can’t
storm off. So there’s times he’s just ignoring the guy.
That’s sort of what [Dickson] describes. I think that’s
probably true.
Id.
Dr. Loftus’ opinion was contrary to that of the FAA’s three
medical experts. Board-certified neurologist Dr. John Hastings
opined that Dickson had experienced a generalized seizure in
London and a series of complex partial seizures during the
training flights. ALJ Hr’g Tr. at 481, 493-94 (Aug. 5, 2009) (JA
382, 394-95). Board-certified neurologist Dr. Willard Hauser
opined that Dickson had a generalized seizure in London and a
prolonged partial seizure during the flights. ALJ Hr’g Tr. at
404, 418, 422-23 (Aug. 5, 2009) (JA 320, 332, 335-36). And
Dr. James DeVoll, Board-certified in aerospace medicine and
the manager of the Medical Appeals Branch of the FAA’s Office
of Aerospace Medicine, concluded that Dickson offered “no
satisfactory medical explanation for any disturbance of
consciousness.” NTSB Order at 18.
As Dickson concedes, “[t]here is clearly a difference of
medical opinion as to whether [he] experienced a seizure or a
concussion at the restaurant on April 8, 2004,” with the FAA’s
experts opining as to the former and Dickson’s expert opining
as to the latter. Petitioner’s Br. 53. Likewise, there is clearly a
difference in opinion as to whether he experienced a seizure or
merely acted like a teenager on the Boeing 757 training flight.
But a difference of opinion is not enough to show that the NTSB
lacked substantial evidence for its decision. As we noted at the
outset, “a conclusion may be supported by substantial evidence
even though a plausible alternative interpretation of the evidence
would support a contrary view.” Chritton, 888 F.2d at 856.

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Moreover, the NTSB had a perfectly reasonable basis for
choosing the opinion of the FAA’s experts over that of Dr.
Loftus. As Loftus explained, his opinion regarding the London
incident was “based upon the eye witness accounts of the event
which stated that he tripped, struck his head, and there was no
apparent epileptic activity.” Loftus Ltr. (JA 53). But the only
witness who said Dickson tripped and struck his head was
Dickson himself; and the only witnesses who said there was no
apparent epileptic activity were Dickson and Myhill. Similarly,
Dr. Loftus’ opinion regarding the training flight was
substantially based on “Dickson’s explanation of the events.”
Id. Because the NTSB reasonably rejected the version of the
facts upon which Dr. Loftus relied for his opinion, it reasonably
rejected that opinion as well. Indeed, noting that Captain
Metzner’s version of what happened during the training flight
was more credible than Dickson’s, the ALJ declared himself
“not particularly impressed by Dr. Loftus’ characterization of
[Dickson] acting like a teenager.” ALJ Oral Dec. at 698 (JA
174). We have no basis for second-guessing that judgment.
III
For the forgoing reasons, the petition for review is
Denied.

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