Trenton Palmer v. Federal Aviation Administration, Administrator and National Transportation Safety Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 11, 2024 Decided June 4, 2024
No. 23-1239
TRENTON PALMER,
PETITIONER
v.
FEDERAL AVIATION ADMINISTRATION, ADMINISTRATOR AND
NATIONAL TRANSPORTATION SAFETY BOARD,
RESPONDENTS
On Petition for Review of an Order
of the National Transportation Safety Board
Robert D. Schulte argued the cause and filed the briefs for
petitioner.
Kathleen A. Yodice, Justine Harrison, and Raymond C.
Speciale were on the brief for amici curiae Aircraft Owners and
Pilots Association, et al. in support of petitioner.
Joy Park, Senior Attorney, Federal Aviation
Administration, argued the cause and filed the brief for
respondents.
Before: HENDERSON and WILKINS, Circuit Judges, and
EDWARDS, Senior Circuit Judge.

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Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: On
November 24, 2019, appellant Trenton Palmer (Palmer) flew
his plane at an altitude of less than 100 feet above ground level
and within 500 feet of people, a house and other structures. The
Federal Aviation Administration (FAA) investigated and
charged Palmer with violating a regulation establishing
minimum safe altitudes. After a full evidentiary hearing, an
administrative law judge (ALJ) found that Palmer had violated
the regulation. The National Transportation Safety Board
(NTSB or the Board) affirmed.
Palmer petitions for review of the Board’s decision,
arguing that (1) the ALJ committed multiple prejudicial errors,
(2) the complaint against him should have been dismissed and
(3) we should overrule an earlier decision of our Court. As
detailed infra, we deny Palmer’s petition.
I. BACKGROUND
Palmer is an experienced private pilot and aircraft owner.
On November 24, 2019, he flew his plane in a sparsely
populated area near Reno, Nevada. Palmer conducted a “low
inspection pass” during which he flew “within 500 feet of
persons, vessels, vehicles, and structures, and at an altitude of
100 feet or less than 100 feet above ground level.” J.A. 514
(footnotes omitted). Palmer’s low flight was witnessed by
three residents in the neighborhood: Gabriel Pena, Julia Pena
(with her one-year-old son) and Russell Stanley.
The FAA investigated Palmer’s low flight and found that
he violated 14 C.F.R. § 91.119(a) and (c). Section 91.119
establishes minimum safe altitudes and provides that:

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Except when necessary for takeoff or landing,
no person may operate an aircraft below the
following altitudes:
(a) Anywhere. An altitude allowing, if a power
unit fails, an emergency landing without undue
hazard to persons or property on the surface.
[...]
(c) Over other than congested areas. An altitude
of 500 feet above the surface, except over open
water or sparsely populated areas. In those
cases, the aircraft may not be operated closer
than 500 feet to any person, vessel, vehicle, or
structure.
14 C.F.R. § 91.119. The FAA also found that Palmer violated
14 C.F.R. § 91.13(a), a residual charge that prohibits operating
an aircraft “in a careless or reckless manner so as to endanger
the life or property of another.” Pursuant to statutory authority,
the FAA Administrator suspended Palmer’s pilot certificate for
120 days by issuing an order in the form of a complaint filed
with the NTSB. See 49 U.S.C. § 44709(b)(1)(A). Palmer
appealed the FAA order and the parties engaged in discovery
and other pretrial litigation, after which the matter came before
the ALJ for an evidentiary hearing in March and April 2022.
At the outset of the hearing, Palmer moved to dismiss the
FAA’s complaint on the ground that the complaint failed to
give fair notice of the charges. The ALJ denied the motion to
dismiss after briefing.
In the proceedings, Palmer conceded that he flew within
500 feet of vessels, vehicles or structures and less than 100 feet
above ground level. Palmer argued in his defense that he flew
at a low altitude in order to assess the feasibility of a landing

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site, making his flight “necessary for takeoff or landing” and
therefore exempted by the prefatory language of Section
91.119. The intended landing site was a dirt runway in the
backyard of Jared Likes, a friend of Palmer. Palmer did not
land in Likes’ backyard because he “found the landing site was
not suitable for what [he] had expected and [] moved on.” J.A.
396 (Palmer’s testimony).
The evidentiary hearing included lay witness testimony
from Palmer, Likes, the Penas and Stanley. Roy Speeg, an
inspector and specialist with the FAA, testified and was
qualified as an expert in general aviation, flight operations,
general area of low flight operations and regulatory
requirements under the FAA, but not short field takeoff or
landing for the type of plane flown by Palmer. The FAA
attempted to enter into evidence a video of Palmer’s low flight
captured by the Penas’ outdoor security camera but the original
video file was unavailable due to FAA error and the FAA
proffered an iPhone recording of the original, that is, a video of
the video made by Pena. The ALJ excluded the recorded video
under the best evidence rule and excluded all testimony that
relied on the video. Palmer sought dismissal of the case due to
the destruction of the original video and the FAA’s handling of
evidence; the ALJ denied the motion because, although the
FAA showed “negligence and carelessness” and “sloppiness on
[sic] this investigation,” there was “no proof that anything
inappropriate occurred” and the video evidence was not
necessary given other evidence in the record. J.A. 119-21.
The ALJ provided an Oral Initial Decision at the close of
the hearing and found that Palmer violated Sections 91.119(a),
(c), and 91.13(a). He found that Palmer did not prove the
affirmative defense that the flight was necessary for takeoff or
landing; Palmer had safer and more appropriate alternatives to
evaluate the landing site than the low pass he conducted; and

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the runway was not suitable for a landing under normal
conditions so the exception to Section 91.119 did not apply
under Board precedent. The ALJ mitigated Palmer’s
suspension from 120 days to 60 days.
Palmer appealed the ALJ’s decision to the Board and the
FAA cross-appealed the ALJ’s mitigation of Palmer’s
suspension. On de novo review, the Board affirmed the ALJ’s
order and made the following findings: (1) the ALJ did not err
in denying Palmer’s motion to dismiss because the complaint
satisfied notice pleading principles and Palmer was on notice
that the prefatory language of Section 91.119 was at issue; (2)
the ALJ did not err in finding Palmer’s intended landing site
was inappropriate because the finding was supported by record
evidence and Board precedent; (3) the ALJ did not err in not
dismissing the proceedings based on the video evidence
destruction because he properly followed Board precedent; (4)
Palmer’s additional arguments were meritless, as the ALJ acted
within his scope of authority and did not abuse his discretion.
Throughout its opinion, the Board noted that Palmer failed to
demonstrate how the ALJ’s alleged errors caused him
prejudice, a showing which is required for the Board to
overturn an ALJ’s evidentiary ruling. See, e.g., Adm’r v.
Kolodziejczyk, NTSB Order No. EA-5909, 2021 WL 5240239,
at *19 (Oct. 4, 2021). As to the choice of sanction, the Board
explained that under D.C. Circuit precedent, the ALJ can
overturn the Administrator’s sanction only if it is “unwarranted
in law or without justification in fact.” J.A. 560 (quoting Pham
v. Nat’l Transp. Safety Bd., 33 F.4th 576, 583 (D.C. Cir. 2022)).
The Board reversed the ALJ’s mitigation of the
Administrator’s sanction because the Administrator’s selected
sanction was supported by a reasonable explanation and there
were no mitigating circumstances. This petition for review
followed.

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II. ANALYSIS
We uphold a decision from the NTSB unless it is
“arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law,” 5 U.S.C. § 706(2)(A), or
“unsupported by substantial evidence,” 5 U.S.C. § 706(2)(E).
Huerta v. Ducote, 792 F.3d 144, 153 (D.C. Cir. 2015).
Palmer raises a host of challenges to the ALJ’s decision
and to the NTSB’s review of his case. We first address his
arguments directed at the ALJ’s decisionmaking at the
hearing—namely, the interpretation of the regulation at issue,
the assessment of Palmer’s defense and the reliance on expert
testimony. We then turn to Palmer’s position that the
complaint against him should have been dismissed because the
FAA provided insufficient notice in the complaint and
mishandled key evidence. We finally turn to Palmer’s
challenge to Pham v. National Transportation Safety Board, 33
F.4th 576 (D.C. Cir. 2022).
A.
Palmer does not challenge the ALJ’s finding that he flew
at an altitude that did not allow a safe emergency landing and
admitted at the hearing that he flew within 500 feet of a person,
vessel, vehicle or structure, establishing prima facie violations
of Section 91.119(a) and (c). Instead, his arguments on appeal
as to the Section 91.119 violations turn on whether he proved
his defense that the low flight was necessary for takeoff or
landing.
First, Palmer argues that the ALJ misinterpreted and
misapplied Section 91.119 by finding that his low flight was
not necessary for landing. He relies on the prefatory language
of Section 91.119, which exempts from liability low flights that

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are “necessary for takeoff or landing,” and argues that low
passes to inspect off-airport landing sites are generally
necessary. He points to expert witness Speeg’s testimony that
low passes are prudent for off-airport landing and the FAA’s
guidance document Off Airport Operations Guide, which
advises pilots to conduct a low-level pass to check landing site
conditions.
Palmer mischaracterizes the ALJ’s holding and fails to
identify any legal error. As the Board explained, the ALJ did
not broadly hold that low flights are never necessary for off-
airport landings but rather found based on the evidence that
Palmer did not prove his defense that this particular low flight
was necessary for landing. The Board reviewed the decision
and concluded that the ALJ reasonably found that the low
inspection pass was not necessary under these circumstances
because Palmer had safer alternatives to inspect the landing
site. We agree.
Palmer’s argument relies on Speeg’s general testimony
and FAA guidance instructing that low flights are prudent in
some conditions; he does not identify anything in the record
undermining the ALJ’s and the Board’s conclusion that those
conditions did not exist in his case. In fact, the evidence on
which Palmer relies undermines his position. The FAA Off
Airport Operations Guide (which in any event is not binding
and does not control the Board’s analysis) advises pilots to
make at least three passes to assess a landing site at varying
altitudes: first a high level pass to observe possible
obstructions, then an intermediate pass to evaluate the site in
greater detail and, finally, a low pass to check for dips and
bumps on the ground. It is undisputed that Palmer made only
one pass at a low level and thus did not follow the guidance.
Palmer’s low flight was not necessary, authorized or prudent;
the flight therefore violated Section 91.119.

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Next, Palmer argues that the ALJ erred by finding that his
intended landing site was not suitable because the issue was
withdrawn. At the hearing, Palmer’s counsel asked about the
suitability of the landing site and the FAA Administrator
objected on relevancy grounds. The Administrator explained
her view that the “appropriateness of the landing site is not an
issue in this case” because Palmer testified that he had no
intention of landing. J.A. 241. Palmer’s counsel offered to
withdraw the question based on the Administrator’s position.
But the ALJ thought the suitability issue was relevant because
Palmer had testified that he made a low pass to determine
whether the landing site was suitable and decided not to land
only after evaluating the airfield. The ALJ allowed the
question and answer and ultimately concluded that the landing
site was not suitable under the circumstances. Palmer claims
that the ALJ’s consideration of the landing site suitability
inappropriately reintroduced a factual question not at issue,
amounting to an abuse of discretion and violation of his due
process rights.
Palmer’s argument lacks merit. As the NTSB found, the
ALJ acted within his discretion and consistent with Board
precedent in considering the suitability of the landing site. See,
e.g., Adm’r v. Cobb, 3 N.T.S.B. 98, 100, 1977 WL 22241, at
*3, aff’d, 572 F.2d 202 (9th Cir. 1977). Palmer does not
address this precedent and makes no effort to demonstrate how
the NTSB erred in its final order. Moreover, the Board has long
held that evidentiary rulings may be overturned “only after a
party can show such a ruling prejudiced him or her.”
Kolodziejczyk, NTSB Order No. EA-5909, 2021 WL 5240239,
at *19. Palmer does not explain how the ALJ, by allowing a
question from his own counsel, caused him prejudice.
Common sense suggests that the question—asked to establish
Palmer’s defense that the low flight was conducted for
landing—could only help his case, not prejudice it.

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As to the ALJ’s ultimate finding that the landing site was
not suitable, Palmer contends that the holding is unsupported
by the record because both Palmer and Likes testified that
Palmer could have landed his aircraft on the intended site. But
the ALJ’s ruling and the Board’s affirmance on de novo review
are supported by substantial evidence, including Palmer’s own
testimony that he ultimately determined the landing site was
not suitable.
Palmer also challenges the ALJ’s reliance on expert
witness Speeg’s testimony. Palmer contends that Speeg was
institutionally biased because he derives his income from the
FAA and cannot testify for any party other than the FAA
pursuant to 49 C.F.R. § 9.7.1 He also argues that the ALJ
inappropriately relied on Speeg’s testimony as to legal
conclusions and subject matters in which he was not qualified
as an expert.
We find no error in the ALJ’s reliance on Speeg’s
testimony and the Board’s subsequent affirmance. Palmer’s
claim that Speeg was institutionally biased and could not
lawfully testify is nonsensical, as the Board noted in its order.
Palmer’s conclusory reliance on Section 9.7 does nothing to
support his claim because the regulation permits a federal
employee to testify as an expert witness on behalf of the United
States. 49 C.F.R. § 9.7(b). Speeg “testified for the
Administrator as an expert,” J.A. 515, and thus complied with
the regulation. And Palmer’s accusations that the ALJ
improperly relied on aspects of Speeg’s testimony are wholly
unsupported by the record. Palmer misleadingly quotes the
ALJ by relying on portions of the hearing transcript in which
the ALJ simply summarized Speeg’s testimony and fails to
identify any instance of the ALJ’s crediting Speeg’s legal
1 Palmer’s brief cites to 49 U.S.C. § 9.7, which does not exist.
We assume he intended to cite to the Code of Federal Regulations.

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conclusions or testimony on subject matters in which he was
not qualified as an expert. The Board concluded that the ALJ’s
consideration of Speeg’s expert testimony did not prejudice
Palmer and so cannot constitute error, a finding that Palmer
ignores.
B.
Additionally, Palmer argues that the FAA’s complaint
should have been dismissed for two reasons. We reject both
arguments.
First, Palmer argues that both the ALJ and NTSB erred by
not dismissing the FAA’s complaint because it was deficient
under the Federal Rules of Civil Procedure, which are followed
in air safety proceedings “to the extent practicable.” 49 C.F.R.
§ 821.5. Relying on the standard articulated in Ashcroft v.
Iqbal, 556 U.S. 662 (2009), Palmer contends that the factual
allegations in the complaint failed to sufficiently inform him of
his alleged misconduct because it did not allege that the low
flight was not necessary for takeoff and landing. In his view,
the prefatory language of Section 91.119 creates an additional
element of the regulatory violation and the Administrator thus
failed to state a claim by failing to allege facts supporting that
element.
The FAA’s complaint contains a “short and plain
statement of the claim showing that the pleader is entitled to
relief” as required by Federal Rule of Civil Procedure 8(a)(2).
It provides the full text of the specific regulatory violations at
issue and alleges that Palmer conducted a flight below the
permissible altitudes, detailing the date, location and aircraft
involved in the flight. The complaint easily satisfies federal
pleading standards because it alleges sufficient facts to “allow[]

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the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678.
The complaint did not need to plead facts showing that the
low flight was unnecessary for takeoff or landing because long-
established precedent instructs that the prefatory language of a
statute or regulation is an affirmative defense rather than an
element of the violation. Section 91.119 provides that certain
acts are unlawful except in specific authorized scenarios. As
the Supreme Court has explained, “the default rule for
interpreting provisions with this structure is that ‘an exception
made by a proviso or other distinct clause’ designates an
affirmative defense that the Government has no duty to
‘negative.’” Ruan v. United States, 597 U.S. 450, 473 (2022)
(Alito, J., concurring) (quoting Dixon v. United States, 548
U.S. 1, 13 (2006)). Palmer does not explain why this default
rule should not apply to Section 91.119. The necessity-for-
landing exception is an affirmative defense and Palmer
demonstrably understood that it was his burden to prove it at
the hearing because he raised necessity as a defense. We reject
Palmer’s claim of inadequate notice as legally unsupported and
facially implausible.
Second, Palmer argues that the complaint should have
been dismissed due to the FAA’s mishandling of the security
camera video evidence. At the hearing, the ALJ found that the
FAA investigators were “negligent and careless, and at worst
reckless” because the original video captured by the Penas’
outdoor security camera was not properly preserved. J.A. 119.
Palmer requested that the case be dismissed due to those
findings; the ALJ denied his request and instead excluded the
video, all testimony regarding its content and all expert
testimony that relied in whole or in part on viewing the video.
Palmer nevertheless contends that the ALJ erred because there
are references to the video in the transcript and he was not able

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to refute witness statements without the missing video
evidence.
As the Board explained when it rejected this argument, its
precedent instructs that “in the absence of malfeasance,
dismissal of the case or an adverse inference are not appropriate
to remedy missing evidence, particularly where other evidence
exists.” J.A. 558; see, e.g., Adm’r v. Abiraman, NTSB Order
No. EA-4978, 2002 WL 1301399, at *2 (June 4, 2002); Adm’r
v. Stricklen, NTSB Order No. EA-3814, 1993 WL 76816, at *8
(Mar. 1, 1993). Palmer has not shown any malfeasance on the
FAA’s part and other evidence supports the ALJ’s findings—
namely, Palmer’s concession that he flew at an altitude less
than 100 feet. Moreover, Palmer cannot show any prejudice or
other harm to his defense based on the mishandled video
evidence. The ALJ properly excluded the video and
disregarded all testimony relying on it. Palmer cites to portions
of the transcript where witnesses discussed or referenced the
video but all such testimony occurred before the ALJ excluded
the video. And there is nothing in the record to suggest that the
video would have aided in proving his affirmative defense.
C.
Finally, Palmer argues that the Board erred when it
deferred to the FAA’s choice of sanctions. He points to 49
U.S.C. § 44709(d), which states that the Board “may amend,
modify, or reverse the order when the Board finds . . . that
safety in air commerce or air transportation and the public
interest do not require affirmation of the order,” id.
§ 44709(d)(1)(A), or “may modify a suspension or revocation
of a certificate to imposition of a civil penalty,” id.
§ 44709(d)(2). Palmer argues that this statute shows the
Congress did not intend the NTSB to defer to the FAA’s choice
of sanction, contrary to our holding in Pham v. National

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Transportation Safety Board, 33 F.4th 576 (D.C. Cir. 2022).
Palmer urges us to reconsider Pham in light of the text of
Section 44709(d) and other Circuit precedent addressing other
enforcement regimes and, if we find a sanction is warranted,
vacate the NTSB’s sanction and remand for a determination
without deference to the FAA. He is joined in making this
argument by amici curiae Aircraft Owners and Pilots
Association, Alaska Airmen’s Association and Experimental
Aircraft Association.
The Pham opinion is of course binding on us under the
law-of-the-circuit doctrine. See, e.g., LaShawn A. v. Barry, 87
F.3d 1389, 1395 (D.C. Cir. 1996) (“One three-judge panel . . .
does not have the authority to overrule another three-judge
panel of the court.”). Palmer and amici nevertheless suggest
that we take up the Pham holding en banc, even though we have
already denied en banc review of the opinion. Pham v. Nat’l
Transp. Safety Bd., 2022 WL 1813982 (D.C. Cir. May 27,
2022).
Palmer and amici have not identified any legal error in the
Pham opinion that would warrant en banc review. The Pham
opinion was decided in reliance on Supreme Court precedent
and the specific statutes establishing a split enforcement regime
under which the FAA has regulatory and enforcement authority
and the Board has adjudicatory authority akin to a court. Pham,
33 F.4th at 582-84; see Martin v. Occupational Safety & Health
Rev. Comm’n, 499 U.S. 144, 154 (1991); Am. Power & Light
Co. v. SEC, 329 U.S. 90, 112-13 (1946). Where the statutory
scheme creates a different relationship between the
enforcement and adjudicatory authorities, we have recognized
that the analysis differs. For example, the Federal Mine Safety
and Health Review Commission, an adjudicatory body, does
not defer to the Labor Secretary’s choice of sanction because
the Secretary makes only a “proposed” penalty assessment

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under the relevant statute; the Commission has final regulatory
authority to assess all penalties. 30 U.S.C. § 815; 29 C.F.R.
§ 2700.30; Am. Coal Co. v. Fed. Mine Safety & Health Rev.
Comm’n, 933 F.3d 723, 725 (D.C. Cir. 2019) (per curiam).
American Coal and Pham do not conflict, as Palmer and amici
suggest, because the agency structures at issue differ
significantly.
For the foregoing reasons, we deny Palmer’s petition for
review.
So ordered.

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