Opinion

F. B. Lee, Administrator of Civil Aeronautics v. Civil Aeronautics Board, Lewis H. Brubaker and Charles E. Olsen, Intervenors

  • 225 F.2d 950
Court
Court of Appeals for the D.C. Circuit
Filed
Jun 1, 1955
Status
Published
Author
Prettyman
On the bench
Edgerton, Prettyman, Fahy
Cited by
15 cases
Authority
More cited than 24.6%

The opinion

PRETTYMAN, Circuit Judge

(dissenting) .

As I read Reorganization Plans III 1 and IV 2 of 1940, the Administrator of Civil Aeronautics became an official responsible to the Secretary of Commerce and wholly independent of the Civil Aeronautics Board. The Board must exercise its adjudicatory functions independently of the Secretary. 3 The legislative history of the Plans emphasizes the clarity of the texts. In safety enforcement actions, if the Administrator seeks a suspension or a revocation of a safety certificate, he files a complaint with the Board. The complaint is in his own name. The regulations provide:

“Who may initiate proceedings —(a) Administrator or applicant for airman certificate. A proceeding for suspension or revocation of a certificate may be initiated by the Administrator' of Civil Aeronautics as Complainant by filing a complaint with the Board.” 4

The matter proceeds exactly as if it were initiated by some other complainant. The Board acts on the matter as a quasi-judicial body, upon the issues and the evidence presented to it by the parties. Thus the Administrator is in the proceeding as a party, in his own name and his own separate Official capacity. He is not like the enforcement staff in the usual administrative agency proceeding, or even like the General Counsel to the National Labor Relations Board, who brings complaints on behalf of the Board. 5 The Administrator .thus has an individual responsibility to carry, as is clearly indicated by the Reorganization Plans. It is a responsibility in the public interest. It is not too different from the official responsibility of the Postmaster General in respect to ail mail pay proceedings before the Board. We held him to be a party in interest in such proceedings and allowed him to seek review, 6 and the Supreme Court affirmed. 7

It seems to me clear that the duly authorized complainant in an adjudicatory proceeding before a quasi-judicial board has a “substantial interest” 8 in the matter. If he has enough interest to be the official complainant in an adjudicatory proceeding, he has enough interest to seek review of the decision in that same proceeding: It follows that, in my opinion, the Administrator has a standing to petition for judicial review in the proceeding at bar. I would not dismiss.

On the merits of the controversy I would affirm.

Two airplane pilots were involved in an accident. The Civil Aeronautics. Board investigated and called upon the pilots to testify. They claimed the privilege of the self-incrimination clause of the Fifth Amendment and of the' Act. 9 The hearing officer directed them to testify; they complied. A complaint seeking suspension of their certificates was filed. The Board held it could not suspend, because the statute forbids it, the' men having been compelled to testify*' against themselves.

*953 The suspension of these pilots would be a forfeiture of a privilege, even if not of a right. The immunity statute 10 extends to forfeitures as well as to penalties. The question, then, is whether the proceeding is punitive or merely remedial. In this connection we go to the Fifth Amendment cases. Any reading of the complaint shows the action prayed is purely punitive. The complaint says baldly that the men were careless and therefore ought to be suspended. It does not allege the pilots to be unqualified. I think they were protected by reason of their testimony taken in the investigation.

In substance the result I reach is the same as that reached by the court. The court dismisses the petition and so leaves the Board’s order intact. I would take jurisdiction and affirm the order.

. 54 Stat. 1231 .

. 54 Stat. 1234 .

. Sec. 7(c) of Plan IV.

. 14 C.E.R. § 301.1. (Rev.1952).

. 61 Stat. 139 (1947), 29 U.S.C.A. § 153 (d).

. Summerfield v. Civil Aeronautics Board, 1953, 92 U.S.App.D.C. 248 , 207 F.2d 200 .

. Western Air Lines v. Civil Aeronautics Board, 1954, 347 U.S. 67 , 74 S.Ct. 347 , 98 L.Ed. 508 .

. 52 Stat. 1024 (1938), as amended, 49 U.S.C.A. § 646 .

. Sec. 1004 (i), 52 Stat. 1021 (1938), as. amended, 49 U.S.C.A. § 644 (i).

. Ibid.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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