Keith Allan MINES, Petitioner, v. NATIONAL TRANSPORTATION SAFETY BOARD, et al., Respondents, 862 F.2d 617

McQUADE, District Judge. This matter is before the court on a petition for review of an order of the respondent National Transportation Safety Board [“NTSB”] that affirmed an order of the Federal Aviation Administration [“FAA”] revoking petitioner Keith Allan Mines’ Airline Transport Pilot Certificate for a violation of Federal Aviation Regulations [“FAR”], 14 C.F.R. § 61.15(a).

On October 18,1983, Mines pled guilty in United States District Court for the Southern District of Texas to a charge of conspiracy to possess, with intent to distribute, a quantity of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The judge in that case, believing that Mines would benefit by treatment under the Youth Corrections Act [“YCA”], 18 U.S.C. §§ 5005-5026 (repealed October 12, 1984), suspended Mines’ sentence pursuant to § 5010(

a) of the YCA and placed him on probation with supervision for five years. While on probation, Mines was required to perform 300 hours of community service in a program developed by the U.S. Probation Department. On August 26, 1986, the same court unconditionally discharged Mines from probation and issued a Certificate of Vacation of Conviction pursuant to § 5021(

b) of the YCA. Prior to the setting aside of Mines’ conviction, however, the FAA revoked Mines’ Airline Transport Pilot Certificate on March 8, 1985. Mines filed a notice of appeal with the NTSB. The FAA argued that because of Mines’ conviction in 1983, he was in violation of FAR § 61.15(a), which provides for the revocation of any pilot certificate for conviction on a drug charge. See supra note 1. On May 22, 1985, the NTSB Administrative Law Judge [hereinafter “AU”] granted the FAA’s motion for

summary judgment. The AU’s order was reversed and remanded by the NTSB, however, for determination of whether the operation of an aircraft was involved in the conspiracy for which Mines had been convicted. On August 27, 1986, the day after Mines’ conviction was set aside, a second hearing was held before an AU, who found that there was sufficient evidence to establish that an aircraft had been involved in the conspiracy.

On July 81, 1987, the NTSB affirmed the AU’s findings and upheld the FAA’s revocation of Mines’ pilot certificate on the ground that the YCA did not “exclude convictions by youth offenders from consideration by a federal agency in determining such a person’s qualification to hold a federal license or certificate.” NTSB Opinion and Order at 5. On this petition for review, Mines argues that once his conviction was set aside pursuant to the YCA, the NTSB was not permitted to consider it as the predicate conviction in its finding of a violation of FAR § 61.15(a).

Mines argues that to permit the NTSB to use a conviction that has been set aside pursuant to the YCA as grounds for revoking a pilot certificate would confound the intent of Congress to provide the YCA as an alternate means of sentencing and rehabilitating youthful offenders. Mines also argues that there was insufficient evidence to support the AU’s finding that his aircraft was involved in the 1983 conspiracy conviction.

To support the decision to revoke Mines’ pilot certificate, the NTSB argues that Congress did not intend that the setting aside of a conviction under the YCA would render that conviction void for all purposes. Rather, the NTSB contends, there are instances where a significant public interest should override the rehabilitative purposes of the YCA. Moreover, the NTSB asserts that the YCA is a sentencing statute, and not an expungement statute. For the reasons stated below, we reverse the NTSB’s order revoking Mines’ pilot certificate. First, we reject the NTSB’s argument that the YCA is not an expungement statute.

We held in United States v. Fryer, 545 F.2d 11 (6th Cir.1976), that a conviction set aside under the YCA could not constitute a “conviction” for purposes of 18 U.S.C.App. § 1202(a) (illegal possession of firearms) and 18 U.S.C. § 922(a)(6) (making a false statement to a federally licensed seller of firearms in connection with the purchase of a firearm). We stated that the YCA, “by legislative design an expungement statute,” is intended “to give the offender a second chance free from any record of conviction.” 545 F.2d at 13.

Upon a careful analysis of the legislative history of the YCA, the District of Columbia Circuit came to the same conclusion in Doe v.

Webster, 606 F.2d 1226 (D.C.Cir.1979), stating: [The drafters] primary concern was that rehabilitated youth offenders be spared the far more common and pervasive social stigma and loss of economic opportunity that in this society accompany the “ex-con” label_ [T]hey intended to give youthful ex-offenders a fresh start, free from the stain of a criminal conviction, and an opportunity to clean their slates to afford them a second chance, in terms of both jobs and standing in the community. Id. at 1234-35.

We are not persuaded by the respondent’s suggestion that Fryer should be reconsidered in light of the Supreme Court’s decision in Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983). In Dickerson, the Court held that fire-arms disabilities imposed by the Gun Control Act of 1968, 18 U.S.C. §§ 921-928, applied to a person whose conviction was subsequently expunged under state law.

The Gun Control Act provides that it is unlawful for any person “who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year” to transport or receive firearms or ammunition in interstate commerce. Id. § 922(g), (h). The Court refused to construe the words of the statute (“any person ... who has been convicted”) as providing for an exception for a person whose conviction has been expunged under state law. The statute construed by the Court in Dickerson was not the Youth Corrections Act, but rather, the Gun Control Act of 1968.

Whether the Youth Corrections Act is a sentencing statute or an expungement statute was simply not before the Court. More to the point, the question of when the rehabilitative purpose of the YCA should yield to other regulatory schemes was not presented nor answered in Dickerson. Therefore, we conclude that the

interpretation given the YCA in Fryer, that the effect of the YCA is to expunge a conviction from the defendant’s record, controls the outcome of this case. The NTSB contends that despite the rehabilitative purposes of the YCA and the effect of expungement under the Act, the public’s interest in aviation safety demands that Mines’ conviction be taken into account in considering his qualifications to be an air pilot. The premise of FAR § 61.15(

a) is that a person who has violated a drug statute demonstrates an unwillingness to abide by the regulations required for safety in air transportation. Respondent’s Brief at 16. The animating principle of the Youth Corrections Act, however, is that a person who has violated the law and who qualifies for treatment under the Act is, notwithstanding a conviction, to be considered fully rehabilitated.

That is to say, whatever negative inferences are normally drawn as to a person who has been convicted of a crime,, those inferences are not to be drawn as to a person whom the sentencing judge has determined would benefit from being given a second chance and a clean slate pursuant to the YCA. See Dorszynski v. United States, 418 U.S. 424, 431-35, 94 S.Ct. 3042, 3046-49, 41 L.Ed.2d 855 (1974); United States v. Arrington, 618 F.2d 1119, 1124 (5th Cir.1980), cert. denied, 449 U.S. 1086, 101 S.Ct. 876, 66 L.Ed.2d 812 (1981); Doe v. Webster, 606 F.2d 1226, 1234-41 (D.C.Cir.1979); United States v.

Doe, 556 F.2d 391, 392 (6th Cir.1977). Therefore, the assumption of the FAR at issue in Mines’ case (that his prior conviction marks him as one who has demonstrated an unwillingness to conform to the law, and hence, a threat to aviation safety), is overcome by virtue of that conviction having been set aside pursuant to the YCA. See United States v. Pagan, 721 F.2d 24, 30 (2d Cir.1983) (because setting aside a conviction implies that the offender has been rehabilitated, admission of defendant’s prior conviction, which had been set aside under YCA, for impeachment purposes was ground for ordering a new trial).

In a similar case, the Ninth Circuit held that the FAA’s regulations disqualifying all prior alcoholics from receiving a medical certificate and a pilot certificate were invalid under the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment, and Rehabilitation Act of 1980, 42 U.S.C. § 290dd-l(b), which provides that no person may be denied a federal license solely on the ground of prior alcohol abuse. Jensen v. Administrator of Federal Aviation Administration, 641 F.2d 797 (9th Cir.1981), vacated, 680 F.2d 593 (9th Cir.1982).

We recognize the grave danger that drugs pose to our society, particularly in terms of safety in transportation, but there is no provision in the YCA that limits the setting aside of a conviction on drug charges when aviation safety or other important policies are at issue. The dissent characterizes this case as a choice between aviation safety and rehabilitation of youthful offenders. There is, however, nothing in the YCA that allows us to choose whether to give effect to its terms.

We conclude that a conviction set aside under the Youth Corrections Act may not constitute a “conviction” for purposes of Federal Aviation Regulations § 61.15(a). Accordingly, the order of the National Transportation Safety Board is REVERSED. . 14 C.F.R. § 61.15 Offenses involving alcohol or drugs. (

a) A conviction for the violation of any Federal or state statute relating to the growing, processing, manufacture, sale, disposition, possession, transportation, or importation of narcotic drugs, marijuana, or depressant or stimulant drugs or substances is grounds for— ...

(2) Suspension or revocation of any certificate or rating issued under this part. . Mines was 24 years old when the judge determined that Mines qualified as a "youthful offender.” The YCA is applicable to qualified offenders between the ages of 22 and 26. Although we may dispute the judgment that someone 24 years old should be considered a "youthful offender,” that is a judgment for Congress, not this court, to make. . 18 U.S.C. § 5021(b) (repealed October 12, 1984).

Where a youthful offender has been placed on probation by the court, the court may thereafter, in its discretion, unconditionally discharge such youthful offender from probation prior to the expiration of the maximum period of probation thereto fixed by the court, which discharge shall automatically set aside the conviction, and the court shall issue to the youthful offender a certificate to that effect. The issue of whether the district judge in Texas properly continued to treat Mines under the YCA after its repeal was not raised in the administrative hearings or on this appeal.

We assume that the district judge acted properly. In construing this legislation, it would be improper for us to take into account the fact that the legislation has been repealed. .The word "expungement” is not used consistently by the courts. In United States v. Fryer, 545 F.2d 11 (6th Cir.1976), we used “expungement” to refer to an official act that eliminates a conviction from the defendant’s record. In United States v. Doe, 556 F.2d 391 (6th Cir.1977), we used the same word in a narrower sense to refer to the obliteration of the physical records themselves.

In Doe, we held that the YCA is not an expungement statute in the narrow sense of providing for the actual destruction of the record of conviction. Here we are using the word in the sense it was used in Fryer. See United States v. Bush, 438 F.Supp. 839, 840 n. 1 (E.D.Pa.1977) (distinction between "expungement” (elimination of conviction from the defendant’s record) and "expunction” (destruction of the physical records)).