UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JAMES M. FEJES, Jr., No. 22-70129

Petitioner, FAA No. SE-30550 v. FEDERAL AVIATION OPINION ADMINISTRATION,

Respondent.

On Petition for Review of an Order of the National Transportation Safety Board

Argued and Submitted October 19, 2023 San Francisco, California

Filed April 22, 2024

Before: Michael Daly Hawkins, Ryan D. Nelson, and Daniel P. Collins, Circuit Judges.

Opinion by Judge R. Nelson 2 FEJES V. FAA

SUMMARY *

Federal Aviation Administration

The panel denied James Fejes’s petition for review of the National Transportation Safety Board’s order affirming the Federal Aviation Administration (“FAA”)’s revocation of his pilot certificate under 49 U.S.C. § 44710(b)(2). Fejes held a pilot certificate issued by the FAA under 49 U.S.C. § 44703, and at least three times piloted an aircraft to transport and distribute marijuana to retail stores within Alaska. Fejes argued that his conduct fell outside of § 44710(b)(2)’s reach. The panel rejected Fejes’s argument that the FAA lacked jurisdiction to revoke his pilot certificate because Congress cannot authorize an administrative agency to regulate purely intrastate commerce like marijuana delivery within Alaska. Airspace is a channel of commerce squarely within congressional authority. Therefore, Congress can regulate Fejes’s conduct, which involved use of a navigable airspace, as a channel of interstate commerce. Aircraft are also instrumentalities of interstate commerce. The panel also rejected Fejes’s argument that his conduct was exempt under FAA regulation 14 C.F.R. § 91.19. The FAA did not rely on 14 C.F.R. § 91.19 to revoke Fejes’s pilot certificate, and the FAA need not comply with an exception to a regulatory prohibition when it did not allege any regulatory violation occurred. * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. FEJES V. FAA 3

Finally, the panel rejected Fejes’s argument that the FAA misinterpreted § 44710(b)(2). First, the panel held that § 44710(b)(2) was mandatory, as evident from the plain text, and the FAA did not exceed its statutory power by revoking Fejes’s pilot certificate. Second, a criminal conviction is unnecessary for a certificate revocation under § 44710(b)(2). Section 44710(b)(2) does not require a finding that Fejes knew that his conduct was “punishable” under law, but only that he knowingly engaged in activity that was punishable under 21 U.S.C. § 841. Fejes admitted that he knowingly piloted an aircraft to distribute marijuana within Alaska. State law legalizing marijuana distribution did not negate federal law criminalizing the same action. Accordingly, the panel concluded that the FAA’s revocation of Fejes’s pilot certificate was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

COUNSEL Lance C. Wells (argued), Law Offices of Lance C. Wells P.C., Anchorage, Alaska; Darryl L. Jones, Law Office of Darryl L. Jones, Palmer, Alaska; for Petitioner. Daniel Aguilar (argued), United States Department of Justice, Civil Division, Appellate Staff, Washington, D.C.; Casey E. Gardner, Senior Attorney, Aviation Litigation Division, Office of the Chief Counsel, Federal Aviation Administration, Washington, D.C.; for Respondent. 4 FEJES V. FAA

OPINION R. NELSON, Circuit Judge:

James Fejes transported marijuana—which is legal under Alaska law but a controlled substance under federal law—by aircraft within Alaska. After an investigation, the Federal A