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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for the Respondent in Opposition
- **Published:** January 1, 1944
- **Citation:** 323 U.S. 716

## Text

RAS AOR. Beng "FANT

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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

Page

wwe

“Ito

Nw =
Zwoen

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,

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA34806415_2153%3A3. Public record. Not legal advice.