Brief for the Respondent in Opposition — Cameron v. Civil Aeronautics Board

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INDEX

Opinions below

Jurisdiction

Questions presented

Statute and regulations involved

Statement

Argument

Conclusion

Appendix A__.- .

Appendix B

Appendix C. os

CITATIONS

Cases:

American Power and Light Co. v. Securities and Exchange

Commission, 141 F. (2d) 606

Caldwell v. Parker, 252 U.S. 376 : :

Dunbar- Airman Certificate, Civil Aeronauties Board Docket

No. 8S. R. 32, January 16, 1940, 1 C. A. A. R. 525

In re Fair, 100 Fed. 149

Ex Parte Schlaffer, 154 Fed, 921

Franklin v. United States, 216 U.S. 559 is

Mallory Coal Co. v. National Bituminous Coal Commission,

99 BF. (2d) 399

Marshall Field & Co. v. National Labor Relations Board,

318 U. S. 253

Miklas, Joseph M., Civil Aeronautics Board Docket No.

S. R. 809 an ee

National Labor Relations Board v. Link-Belt Co., 311 U.S.

584 Peace as

Neall v. United States, 118 Fed. 699

Rochester Telephone Corp. v. United States, 307 U.S. 125

Rybolt, Robert, Civil Aeronauties Board Docket No.

S. R. 344___- .

State v. Sparks, 27 Tex. 627

Stewart v. Commonwealth, 185 Ky. 34

Swayne and Hoyt v. United States, 300 U.S. 297 :

Todd v. Securities and Exchange Commission, 137 F. (2d)

475.

(1)

598497—44-——1

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II

Cases—Continued.

Transamerican Freight Lines, Inc. v. United States, 51 F.

Supp. 405- Rath Soe ate :

United States \ Vv. . Cuchiel, 25 Fed. Cas. No. 14744

United States v. Hirsch, 254 Fed. 109______---

Statute:

Civil Aeronauties Act of 1938 (ec. 601, 52 Stat. 980, 49

U.S. C. §401 et sey.):

WOR: MBLateeccucbee ccwset aun ew anes ti eee teas ,

hci gk, Re Pee peare aaaROROS t ae Cy ee pope. 9,7

Miscellaneous:

‘Army Air Forces Reg. 60-16, September 9, 1942. .-_____

Army Regulation No. 95-15_-_--...-.------------------

14 C. F. R. (Cum. Supp. 1943):

Oeics hee sa wa Se caw ae ane Sha a nous

Civil Air Regulations (14 C. F. R, 1941 Supp.):

Sec. 60.3502............... Pees kel SE ee et on

ON EE A ee Ga ane eke 2 Cn eel ne aca geee a 3

Civil Air Regulations (14 C. F. R.):

Oe) ON Sena eae wee eee ep Ea athe EME a

Final Report of the Attorney General’s Committee on Ad-

ministrative Procedure (1941), 175___----------------

“National Labor Relations Board,’’ The Attorney Gencral’s

Committee on Administrative Procedure (1940), Mono-

BORE ING, 10, OD CEO ie oo an ben ohn cto wan cem he annse

Reorganization Plans III and IV (5 U.S. C. §§ 133t-u) __-

Winthrop’s Military Law and Precedents, 2d Ed. en

ROO) CN caus ca ceek ante tes Snnksdhssbaueunewn ene

se LP), IG ee iat KE ORME ESE REY AOS RNS ALA CARP LS GEM DS

4, 19

15, 20

Inthe Supreme Court of the United States

OcroBerR TeRM, 1944

No. 142

LeLtanp H. CAMERON, PETITIONER

v.

Civit AERONAUTICS BoarpD

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS FOR THE SEVENTH

CIRCUIT

BRIEF FOR THE CIVIL AERONAUTICS BOARD

IN OPPOSITION

OPINIONS BELOW

The opinion of the circuit court of appeals

(R. 34-39) is reported in 140 F. (2d) 482. The

orders of the Board may be found at R. 1-3.

JURISDICTION

The judgment of the circuit court of appeals

(R. 40) was entered on February 4, 1944. A _peti-

tion for rehearing was denied on March 14, 1944

(R. 40). The petition for a writ of certiorari

was filed on June 8, 1944. The jurisdiction of

this Court is invoked under Section 240 (a) of

(1)

GA eI AB Va Mili BEL Ai EIN HED ANCES AR GERBER MD nt IRV B08 AABN OG NA ee ERE ALE. OAEATA NAM ny I, Baa get A AR Breen 5

the Judicial Code, as amended by the Act of

February 13, 1925, and under Section 1006 (f) of

the Civil Aeronautics Act.

QUESTIONS PRESENTED

1. Whether the Civil Aeronautics Board may

temporarily suspend the civilian flying certificate

of an Army pilot flying an Army plane who, with-

out specific authorization or directions from his

superior officers, violated the Board’s Civil Air

Regulations which are substantively identical with

cognate provisions of the Army Air Forces Flying

Regulations.

2. Whether the Board’s finding that petitioner

had violated the Civil Air Regulations was sup-

ported by substantial evidence.

3. Whether petitioner, who waived his right toa

hearing before the Civil Aeronautics Board and

did not seek a hearing or reconsideration of the

Board’s order after its entry, may raise, on judi-

cial review of that order, questions not presented

to the Board.

STATUTE AND REGULATIONS INVOLVED

The relevant statutory and regulatory provi-

sions are set forth in the Appendices, pp. 19-27,

infra.

STATEMENT

Petitioner seeks review of a judgment of the

circuit court of appeals (R. 34-39) which affirmed

an order of the Civil Aeronautics Board restrict-

e

3

ing for a period of 30 days the use of petitioner's

air-line transport pilot certificate (R. 1-3).

On February 23, 1943, the Civil Aeronautics

Administration filed a complaint with the Civil

Aeronauties Board, charging that petitioner, the

“holder of [ar] airline transport pilot certifi-

vate’, had on January 20, 1943, violated Sections

60.700 and 60.3503 of the Civil Air Regulations

(Appendix B, pp. 23-24, ‘vfra) (1) by piloting **an

Army B-25 aircraft * * * acrobatically over

and/or within 1,000 feet horizontally of the

Indianapolis, Indiana, Municipal Airport, in

that he performed a dive followed by a steep

climbing turn over buildings located on said air-

port’? and (2) in executing the maneuver, by de-

scending ‘to an altitude of lower than 500 feet

above the ground”? (R. 32-33).’ This complaint

was based upon reports charging such violations,

filed with the Civil Aeronautics Administrator by

a trained inspector and the Chief Airport Traffic

Controller of the Indianapolis Airport, both of

whom were representatives of the Civil Aeronau-

tics Administration (R. 27-30). Petitioner was

served with a copy of the complaint and at the

same time was notified that he was ‘‘entitled to

have a hearing concerning the charges contained”

therein (R. 31).

‘The complaint also alleged other violations (R. 32-33)

which were subsequently withdrawn (R. 3).

? The Civ'l Aeronautics Act of 1938 ferbids any person to

serve in any capacity as an airman in connection “with any

pita 1 RDN Fee DOWNED S HE A tA RIB EE AE PPA AER Wh OE BIOL Ci BOLD LID I CLES MEAS Gg MD LALLY TAGE LEE LAMAR IRE

A hearing was scheduled before a representative

of the Board at Indianapolis on April 24, 1948

(R. 16). On March 30, 1943, the Board received

a letter from Colonel Yeager, Air Corps Director

of Wright Field, Dayton, Ohio, in which he stated

that petitioner was engaged in experimental work

civil aircraft used in air commerce” without an appropriate

certificate “authorizing him to serve” in such capacity (sec.

610 (a) (2)) and empowers the Administrator “to issue air-

man certificates specifving the capacity in which the holders

thereof are authorized to serve as airmen in connection with

aircraft” (sec. 602 (a)). The Board, “after investigation,

and upc notice and hearing,” may “alter, amend, modify,

or suspend, in whole or in part, any type certificate” if “the

interest of the public so requires” or “revoke, in whole or in

part, any such certificate for any cause which, at the time of

revocation, would justify the Administrator * * * in

refusing to issue to the holder of such certificate a like cer-

tificate” (sec. 609). Provision is also made (/b/d.) for a

limited temporary suspension of a certificate in cases of

emergency “without regard to any requirement as to notice

and hearing.” See Appendix A, pp. 19-21, infra.

Under Reorganization Plans III and IV (5 U.S. C. $$

133t-u), issued under the authority of the Reorganization

Act of 1939, the function of administering safety regulations

under the Civil Aeronautics Act has been divided between

the Administrator of Civil Aeronautics and a five-member

Civil Aeronautics Board. The Administrator is charged

with the issuance of airman, aircraft, and air carrier certifi-

cates, the emergency suspension of certificates, the enforce-

ment of safety rules and regulations, the investigation of

violations of such rules and regulations, and the compromis-

ing of civil penalties for violations of the safety rules and

regulations. The Board prescribes safety standards, rules,

and regulations, and suspends and revokés certificates after

hearing. See Final Report of the Attorney General’s Com-

mittee on Administrative Procedure (1941), 175, 303-305.

eR eR SS EL ere

ie

ty

necessitating “deviation from standard flying pro-

cedure”? and that petitioner’s alleged violations

‘were due to an unavoidable misunderstanding”’

(R. 21). The Board thereupon requested Colonel

Yeager’s presence at the hearing (R. 20). The

hearing was convened on April 24 but was con-

tinued to May 14, 1943, at the request of peti-

tioner’s attorney because of the-attorney’s sudden

illness (R. 16). Before this hearing could be

held, petitioner, on May 13, 1943, personally

waived his right to a hearing (R. 17). However,

on May 14, 1948, petitioner’s attorney requested

that the waiver be set aside and the matter set

down for hearing (R. 18-19). The Board

promptly ordered a new hearing for June 4, 1943

(R. 14, 15), but petitioner again waived in writing

his right to a hearing and requested that his case

be presented to the Board in the usual manner

followed when no formal hearing is held (R. 4-5,

9-10).°. The Board then notified Colonel Yeager

that the hearing had been cancelled (R. 14), and

at petitioner’s request delayed its consideration

of this matter to permit petitioner to submit addi-

tional evidence (R. 4-5). Petitioner then filed

with the Board a denial of the charges (R. 9-13)

® Section 97.16 of the Board’s Rules of Practice Governing

Suspension and Revocation Proceedings provides: “Where

hearing has been waived by respondent, the Board shall make

its decision on the basis of whatever data is submitted to it

by the complainant and the respondent.” 14.C. F. R. (Cum.

Supp. 1943) 97.16.

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6

and various letters in support of his denial (R.

3-4, 13, 24). On October 29, 1943, the Board

found, after ‘‘due consideration of all the

evidence of record’’, that petitioner had com-

mitted two violations of the Civil Air Regulations

charged in the complaint filed by the Civil Aero-

nautics Administration and accordingly ordered,

in the ‘‘public interest’’ (see sec. 609), that peti-

tioner’s air-line transport pilot license be ‘‘re-

stricted for a period of 30 days’’, during which

time petitioner ‘‘shall be permitted to pilot air-

craft only while engaged in experimental work

directly under the orders and control of the War

Department’’ (R. 1, 3).

Petitioner then sought review of this order in

the court below, contending (1) that he was im-

mune from civil disciplinary action by the Board

since the alleged violations of the Board’s rules

were committed while he was flying for the Army,

under Army control and pursuant to Army

requirements and instructions, and (2) that the

findings of the Board were not supported by sub-

stantial evidence. The court below rejected these

contentions, finding that the record before the

Board supported the Administrator’s charges;

that although petitioner ‘‘was acting under Army

orders and was flying an Army plane,”’ his orders

‘fon this flight’’ were ‘‘to fly according to contact

flight rules in accordance with Civil Air Regula-

tions’’; that there ‘‘is no conflict between the

7

Civil Air Regulations and the Army orders or

Army flight instructions’; and that “‘nowhere in

the evidence submitted by petitioner is it stated

or shown that any such act [charged as a viola-

tion] was demanded by Army instructions’’ (R.

38). The court subsequently denied a petition

for a rehearing (R. 40).

ARGUMENT

Petitioner contends here, as he did below, that

the Board’s order of temporary suspension is

invalid (1) because petitioner’s alleged violations

of the Civil Air Traffic Rules—the grounds for

the suspension order—were authorized and re-

quired by Army orders relating to the flight upon

which he was engaged (Pet. 10-15), and (2) be-

cause the finding of violation was not based upon

substantial evidence (Pet. 15-25). We submit

that the court below properly rejected these con-

tentions and affirmed the Board’s orders.

1. At the outset, there is serious doubt whether

petitioner is entitled to raise these objections

here or in the court below, since they were at no

time placed before the Board. Section 1006 (e)

of the Civil Aeronautics Act provides in part

that—

No objection to an order of the Board shall

be considered by the court unless such

objection shall have been urged before the

Board or, if it was not so urged, unless

596497—44——-2

a

8

there were reasonable grounds for failure

to do so.

The purpose of such a provision is of course to

afford to the administrative ageney ‘‘an oppor-

tunity to consider on the merits questions to be

urged upon review of its order’? (Marshall Field

cd Co. v. National Labor Relations Board, 318

U.S. 253, 256), and thus ‘‘an opportunity to cor-

rect its errors, when attention is properly called

thereto.”’ Mallory Coal Co. v. National Bitu-

minous Coal Commission, 99 F. (2d) 399, 407

(App. D. C.); see also American Power and

Light Co. v. Securities and Exchange Commis-

sion, 141 F. (2d) 606 (C. C. A. 1); Todd v. Se-

curities and Exchange Commission, 137 F. (2d)

475 (C. C. A. 6). Such an opportunity was never

extended to the Board in this case.

Petitioner was served with a copy of the com-

plaint which the Civil Aeronautics Administrator

had filed with the Board and was informed that he

was ‘‘entitled to have a hearing concerning the

charges contained in the complaint, at which [he]

may be represented by counsel, cross-examine wit-

nesses called by the Administrator, and present

evidence in [his] behalf’? (R. 31). However, pe-

titioner waived his right to a hearing and at no

time requested access to the basis for the charges,

viz., the two reports of petitioner’s offending con-

duct on his January 20, 1943, flight, which were at

all times available and open to inspection by peti-

tioner or his attorney. After the Board had en-

Siar

9

tered its order on October 29, 1943, suspending

petitioner’s license for 30 days commencing No-

vember 9, 1943,‘ petitioner did not move the Board

for reconsideration of its order or for a hearing,

as is frequently the practice where a hearing has

been waived.’

Consequently, petitioner at no time presented

to the Board his contentions, made in the court

helow for the first time and renewed in his petition

here, that the Board’s findings of violations of the

Civil Air Traffic Regulations lacked substantial

evidence (Pet. 15-25)° and that the Army flying

regulations which bound petitioner during the

flight in question required the violation of the

Civil Air Traffic Regulations (Pet. 10-15)." To let

* The 30-day period of restriction was to run ten days from

the date of the order (R. 3) and was thus to begin on No-

vember 9, 1948 (R.1).

®° Section 285.8 of the Board’s Rules of Practice provides

in part: “Any party may petition for rehearing, reargument,

or reconsideration of any final order by the Board in a pro-

ceeding, or for further hearing before decision by the Board.”

14 C. F. R. (Cum. Supp., 1943), See. 285.8. While these

rules relate to “economic proceedings” (rate orders and the

like). the Board always entertains a motion for reconsidera-

tion of its order, and if a hearing has been waived, would

often grant a hearing on request. See, e. g., Robert Rybolt,

Civil Aeronautics Board Docket No. S. R. 344; Joseph M.

Miklas, Civil Aeronautics Board Docket No, S. R. 809.

‘This contention is rested on the allegations that of the

two investigators upon whose report the findings are based,

one was not an eyewitness and the other had made unfounded

statements (Pet. 15-25).

7On June 18, 1943, petitioner's attorney, by letter, raised

before the Board the question as to whether petitioner's

TUES AU AAR IL OBI SA A Mle SBE 6 Ls PER ANALG LAN BRIN GRAS OBE An LENE A ANE ARNE DSc mE

10

petitioner attack the Board’s order in the courts

on grounds which, if submitted administratively

and found to be meritorious, might have induced

the Board either to supply the alleged deficiency

in evidence or to modify its order, would make

available a ‘‘tactic’’ with which ‘‘to ambush”? an

administrative agency. Transamerican Freight

Lines, Inc. v. United States, 51 F. Supp. 405, 412,

fn. 10 (D. Del.). Such a failure to utilize avail-

able administrative remedies stands as a barrier

to the consideration of the new issues by an ap-

pellate court. Mallory Coal Co. vy. National Bi-

tuminous Coal Commission, 99 F, (2d) 399, 407

(App. D. C.).

2. Petitioner assails the Board’s order on the

ground that he ‘twas acting under army orders”’

and therefore ‘‘not subject to discipline by the

Civil Aeronautics Board’? (Pet. 10). There is,

however, no question here of a conflict between

military and civil regulations, for there is nothing

in the record to indicate that petitioner was

directed or required by military rules or orders

to fly in such a manner as to violate the Air

Traffic Rules of the Civil Aeronautics Board. On

“civilian license * * * or his conduct asa civilian airline

pilot” could “be jeopardized or put in question when he is fly-

ing an Army B-25 bomber under the direction and control

and pursuant to the orders of the Army” (R. 7). However,

petitioner at no time contended before the Board, as he now

contends in this Court, that the “army instructions and prac-

tices”, as regards the flight in question, “necessitated devia-

tion from the standard procedure” (Pet. 15) and from “civil

standards” (Pet. 11).

11

the contrary, as the court below correctly held,

‘‘on this flight’’ petitioner’s ‘‘Army orders were

to fly according to contact flight rules in accord-

ance with Civil Air Regulations,’’ and there is

‘‘no conflict’? between these regulations and the

Army orders and flight instructions (R. 38).

Section 60.3503 of the Civil Air Traffic Rules,

which petitioner was found to have violated, pro-

vides that ‘exclusive of taking off from or land-

ing upon an airport or other landing area air-

craft shall not be flown below the * * * mini-

mum safe altitude of flight [of] 500 feet above

the ground * * * or within 500 feet from

any * * * obstruction to flight.’” See Appen-

dix B, pp. 23-24, infra. These restrictions do not

apply to ‘public aircraft previously authorized

by the appropriate governmental agency, to make

specific flights below such minimums in the pub-

lic interest’? (see. 60.3503). There is not only

absent any contention or indication here that

such authorization was given, but the record

shows the contrary, since petitioner had made

the flight in question pursuant to directions from

the Army authorities to proceed to his destina-

tion, the Indianapolis airport, “at CFR (Alti-

tude)” (R. 8-9). The abbreviation “CFR”

denotes the ‘Contact Flight Rules’’ of the Civil

‘This appears from the Departure and Arrival Report, a

record of the clearance and arrival of the flight in question.

The report is seemingly erroneously dated January 20, 1942

(R. 8-9). The actual date of the flight in question was

January 20, 1943 (R. 2, 3-4, 5, 10, 13, 21, 29, 35).

ae ae eee. ag

wa

12

Aeronautics Board and of the Army Air Forces,’

and these regulations are substantially the same

in regard to the minimum required altitude, for

the Army Air Forces regulations in effect at that

time (par. 16, Army Air Forces Reg. 60-16, Sep-

tember 9, 1942) likewise prohibit flights below

500 feet except during take-off and landing, or

‘within 500 feet of any obstruction to flight’? (see

Appendix B, pp. 26-27, infra.” The same. sit-

uation exists in respect of Section 60.700 of the

Civil Air Traffie Rules which petitioner was also

found to have violated by performing acrobatics

“‘within 1,000 feet’? of the Indianapolis airport

(R. 2). That regulation prohibits acrobatic fly-

ing within 1,000 feet of ‘“fany airport or landing

area,’ and the corresponding Army Air Forces reg-

ulations (par. 10), as the Acting Air Judge Advo-

‘ate points out (Appendix C, p. 28, infra), are

even more ‘‘stringent in that they flatly prohibit

acrobatics within 10 miles of an airport or air-

way”’ (see Appendix B, pp. 25-26, infra). In the

* See Section 60.4 of the Air Traffic Rules of the Civil

Aeronautics Board (14 C.F. R. 60.4). and Army Air Forces

Regulation No, 60-16, September 9, 1942 (Appendix B, pp.

24, 26, infra.)

© The Army Air Forces Regulations permit “any maneu-

ver” to be “conducted at such altitude * * * as is neces-

sary for its proper execution * * * when such maneuver

is required to accomplish an ordered tactical flight, engineer-

ing or training mission” (par. 16b; see Appendix B, pp. 26—

27, infra). There is no contention or showing that peti-

tioner was conducting a maneuver within the scope of this

provision.

13

opinion of the Acting Air Judge Advocate of

Headquarters, Army Air Forces, there is ‘no

conflict whatever”? between the Army Air Forces

flying regulations and the Air Tratfie Rules of

the Civil Aeronauties Authority pertinent to this

case (see Appendix C, p. 28, fra).

Nothing in the record supports petitioner's con-

tention that the violations of the air-traffic rules

occurred in obedicice to military orders or in-

structions. The letter from Colonel Yeager, of

Wright Field, stating that petitioner’s ‘flights

were of an experimental nature necessitating devi-

ation from the standard procedure’? (R. 21; Pet.

10), and the letter from Lieutenant Perper, stat-

ing that the flight ‘demanded flying of an unusual

nature’? (R. 13; Pet. 10), were properly charac-

terized by the court below as ‘‘pure generaliza-

tions’ since there was ‘nothing to show that Cam-

eron [the petitioner] was authorized or ordered

to depart from standard practice in this instance”’

(R. 38). Indeed, so far from requiring deviation

from standard flying procedures, the Departure

and Arrival Report of the flight, which petitioner

signed, specifically states that the ‘pilot is fa-

miliar with local flight rules and regulations and

those of the Civil Aeronautics Administration”

(R. 9)."" The Acting Air Judge Advocate of the

" Petitioner claimed below that he was unable “to com-

plete two-way radio communication with the Indianapolis

tower” and accordingly “proceeded, in accordance with

standard army practice, of flying close to the control tower

14

Army Air Forces advises us that a dive or “‘buzz-

ing within 50 feet of a control tower would find

no excuse either in the fact that the flight was a

test mission or in the fact that radio contact with

the tower relative to a normal approach was de-

layed’’ (see Appendix C, p. 29, infra), but the

civil infractions involved would not be excused

even if they involved no violation of military

law.” The lower court correctly ruled that peti-

tioner’s violations of the civil air rules were

not required by military orders or regulations.

The suspension order of the Civil Aeronautics

Board places no restrictions upon the continued

flying by petitioner for the military.” In the

absence of any conflict between military orders

and civil obligations, it is well established that

a member of the military receives no immunity

from his civil obligations or from the jurisdiction

of civil authority over his offenses against civil

laws. Franklin v. United States, 216 U. 8S. 559;

Caldwell v. Parker, 252 U. 8. 376; Neall v. United

so as to attract the attention of the control tower operator”

(R. 10; Pet. 11). However, this does not mean petitioner

was required by Army order to fly in this manner.

12 An acquittal before a court martial cannot be pleaded

as a defense for the commission of the same act in a court of

civil jurisdiction. United States v. Cashiel, 25 Fed. Cas.

No. 14744, p. 318 (D. Md.); Zn re Fair, 100 Fed, 149, 151

(C. C. D. Neb.).

% The Board’s suspension order specifically permits peti-

tioner to continue flying “under the orders and control of

the War Department” (R. 1). Cf. Ha Parte Schlaffer, 154

Fed. 921 (S. D. Fla.).

7

15

States, 118 Fed. 699 (C. C. A. 9); United States

v. Hirsch, 254 Fed. 109 (E. D. N. Y.); Stewart v.

Commonwealth, 185 Ky, 34, 213 8. W. 185; State

v. Sparks, 27 Tex. 627, 682; Winthrop’s Military

Law and Precedents, 8d Ed. (Reprint, 1920)

77-878."

3. While recognizing (Pet. 22) that the Board

“like other expert agencies dealing with special-

ized fields * * * has the function of apprais-

ing conflicting and circumstantial evidence, and

the weight and credibility of testimony’? (Na-

tional Labor Relations Board vy. Link-Belt Co.,

311 U. 8S. 584, 597), petitioner contends that the

court below erred in holding that there was sub-

stantial evidence to support the Board’s finding

(Pet. 15-25). The record clearly reveals a sub-

4 That the acts found by the Board to constitute violations

of its flying regulations were committed while petitioner was

not exercising his rights as a holder of his air-line transport

pilot’s certificate does not affect the Board’s power to sus-

pend the certificate. Section 609 of the Act (Appendix A,

p. 20, infra) empowers the Board, “after investigation, and

upon notice and hearing” to suspend a pilot’s certificate if

“the interest of the public so requires” or “for any cause

which, at the time of revocation, would justify the Admin-

istrator * * * in refusing to issue to the holder of such

certificate a like certificate.” The Board has refused to is-

sue pilot certificates to reckless automobile drivers. See, e. g.,

Dunbar-Airman Certificate, Civil Aeronautics Board Docket

No. SR-82, January 16, 1940, 1 C. A. A. R. 525. The broad

discretionary powers vested in the Board by Section 609

clearly authorize taking into account, in a disciplinary action,

any acts of the accused having a reasonable bearing upon

his ability to exercise competently his flying privileges with-

out undue danger to others.

16

stantial basis for the administrative finding. The

report of Luther E. Dillon, Chief Airport Traffic

Controller of the Indianapolis Airport, states that

petitioner’s plane ‘‘entered the Indianapolis Con-

tral Zone * * * and made a low approach

from west to east barely missing the [control]

tower’’ (R. 30). The report of Henry M. Hamil-

ton, a civil aeronautics inspector who ‘person-

ally observed’? (R. 29) the maneuvers of peti-

tioner, states that petitioner dived his aircraft

‘‘across airport, ninety degrees to incoming traffic,

at a very low altitude, pulling aircraft up to a

very steep climb, approximately 50 feet from con-

trol tower’; that no ‘“‘prior approval’? was re-

quested by petitioner, “‘and no approval [was]

granted by control tower operator”’; and that such

‘‘eonduect in flight’? is ‘‘dangerous and very un-

necessary’? (R. 28-29).

Petitioner attacks the Dillon report on the

ground that it is ‘‘not of a witness’’ (Pet. 16).

While it is not designated as the report of an

eyewitness, the court below properly observed that

‘it ig in the form customarily used by one who

is an eyewitness”’, whose duty as “‘a qualified chief

airport traffic controller’ is “‘to make accurate

observations of maneuvering airplanes’? (R. 35).

Petitioner seeks to discredit Hamilton’s credibil-

ity on the ground that the Administrator with-

drew other charges against petitioner contained

in the Hamilton report after determining, upon

investigation, that there was not sufficient evi-

ECR SO PPLE IES NEN ORB RII II AO ERS MEN RII TM ext ee BY

17

dence to support such charges (Pet. 16-17, 19-

20). But such administrative action serves to

reinforce the accuracy of the remaining charges,

which the Administrator did not withdraw but

after investigation found to be sustained. In any

event, petitioner’s attack upon these reports does

not go to the propriety of their admissibility be-

fore the Board but is directed solely to their

weight and credibility.” Since it is the function

of the Board to appraise conflicting testimony and

to appraise its weight and credibility, the court

below properly refused to substitute its judgment

for that of the Board. National Labor Relations

Board v. Link-Belt Company, 311 U. 8S. 584;

Rochester Telephone Corp. v. United States, 307

U. S. 125, 146; Swayne and Hoyt v. United

States, 300 U. S. 297, 304.%

1° The evidence submitted by petitioner before the Board,

viz., letters from Lieutenant Perper and Squadron Leader

Falk (R. 3-4, 13), does not contradict the specific charges of

violation made by the Administrator but, as the court below

observed, consisted merely of statements “framed in general

terms indicating that Cameron [the petitioner] is a careful

flier” (R. 36).

Petitioner urges that the “rule as to finality in the weight

and credibility of testimony is not as controlling here as in a

case where witnesses were heard” (Pet. 24). This argu-

ment would mean that a person subject to discipline by an

administrative tribunal would be in a better position by

waiving a hearing than if a hearing were held. The effect

of any such doctrine need not be elaborated. At any rate,

this Court has applied the rule of administrative finality to

determinations of administrative agencies such as the Na-

tional Labor Relations Board (e. g., Vational Labor Rela-

tions Board v. Link-Belt Co., 311 U. S. 584), a body that

18

CONCLUSION

The decision below is correct, and the case pre-

sents no question calling for further review.

The suspension order of the Board does not burden

or interfere with any military functions, whether

of petitioner or anyone else. There is no conflict

of decisions. It is therefore respectfully sub-

mitted that the petition for a writ of certiorari

should be denied.

CHARLES Fany,

Solicitor General.

Francis M. Sura,

Assistant Attorney General.

Davin L. Krercrr,

Special Assistant to the Attorney General.

JEROME H. Simonps,

Watrer J. Cummines, J ee

Attorneys.

GrorcE C. Nrat,

General Counsel,

MERRILL ARMOUR,

Attorney,

Civil Aeronautics Board.

JULY 1944,

rarely hears witnesses or oral argument, its findings and

decisions being based on reports of trial examiners who actu-

ally hear the case. See “National Labor Relations Board,”

the Attorney General’s Committee on Administrative Pro-

cedure (1940), Monograph No. 18, pp. 34-72,