Petition — Air East, Inc. v. National Transportation Safety Board

Supreme Court brief1975

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Supreme Court, U. S.

FILED

3 1975

MICHAEL ROBAK, JR.,CLERK

InN THE

Supreme Court of the United States

OCTOBER TERM, 1975

No. ~W5- 1 2

AIR EAST, INC., d/b/a ALLEGHENY COMMUTER,

AIR EAST, INC., CHARLES ALLAN McKINNEY,

JAMES AVERY TALLENT, JEFFREY H. WILKIN-

SON and THOMAS REDDECLIFF,

Petitioners,

vs.

NATIONAL TRANSPORTATION SAFETY BOARD

and ALEXANDER P. BUTTERFIELD, Administrator

of the Federal Aviation Administration,

Respondents.

ES TT LT TT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

EE TL TT

Wa rer E. RuTHERFORD

Attorney for Petitioners

One State Street Plaza

New York, N. Y. 10004

TABLE OF CONTENTS

ED aicnatdeckdanessiedukshccuneonuuce

SIE La RS ot Si Bn PN

ES a ne

Reasons for Granting the Writ ....................

The summary revocation of the aviation li-

censes herein without adequate statutory or regu-

latory guidelines and without a prior hearing was

The failure to grant the petitioners procedural

due process with resect to their appeals from the

summary revocations was contrary to constitu-

tional and regulatory precedent .................

The failure to make specific charges ........

The failure to dismiss stale charges .........

Failure to dismiss charges not alleged to be

in violation of any regulation or statute ....

The Administrator supplied the Board and the

Law Judge with prejudicial material outside of

NT de ced ne ee Sia

Inadequate findings of fact, conclusions and

ee NE I i oe er

. Failure to apply correct principles of law ....

. Failure to give adequate time to prepare an

appeal and grant oral ergument ............

. Refusal to pass upon the constitutionality and

application of various federal air regulations

Revocation was not an uathorized penalty ...

i a i ee Ga ee

ii TABLE OF CONTENTS

TaBLe oF Cases CITED PAGE

Administrator v. Babbitt, 1 N.T.S.B. 1305 (1971) .... 25

Administrator v. Bradway, 45 C.A.-B. 956 (1966).... 30

Administrator v. Buchanan, 45 C.A.B. 973 (1966) .... 25

Administrator -v. Cochran, 1 N.T.S.B. 136 (1967).... 34

Administrator v. Donoghue, 1 N.T.S.B. 1568 (1972) .. 24

Administrator v. Fabian, 31 C.A.B. 1106 (1960) .... 34

Administrator v. Lloyd, 1 N.T.S.B. 1826 (1972) .... 38

Administrator v. Musso, 30 C.A.B. 1610 (1960) .... 24

Administrator v. Roberts, 1 N.T.S.B. 1627 (1972) .... 38

Administrator v. Robertson, Docket No. 74-450,

decided June 24, 1975, 43 Law Week 4833 ...... 14

Aircrane, Inc. v. Butterfield, 369 F. Supp. 598 (E.D.

ey EN kedeeadtasaneundiestaceus 10, 11, 12, 13, 19

American Smelting & Refining Co. v. Federal Power

Commission, 494 F. 2d 925 (D.C. Cir. 1974) .... 28

Andrews v. Knowlton, 509 F. 2d 898 (2d Cir. 1975),

pet. for cert. filed March 26, 1975 (Docket No.

DED wielicceuhe-oepenessbubaase tas ataaael 25

Armstrong v. Manzo, 380 U. S. 545, 85 S. Ct. 1187, 14

Ss % . [. er rar rnee 22

Bell v. Burson, 402 U. S. 535, 91 S. Ct. 1586, 29 L. Ed.

EE wv knee vkdeuadesneeeiaWsuneseeasiex 7

sence v. Breier, 501 F. 2d 1185 (7th Cir. 1974) ...... 38, 39

Blackwell College of Business v. Attorncy General,

454 F’. 2d 928 (D.C. Cir. 1971) .............. 20, 23, 39

soddie v. Connecticut, 401 U. S. 571, 91 S. Ct. 780, 28

he MU IE GED occ cvccciceccaucccncacncevss 7

TABLE OF CONTENTS iil

PAGE

Brady v. Maryland, 373 U. S. 83, 83 S. Ct. 1194, 10

§ ff. errr rr rrr rT re ree 3]

Braniff Airways, Inc. v. Civil Aeronautics Board, 306

A & £: Sh rrr rrr re 28

Breeden v. Weinberger, 493 F. 2d 1002 (4th Cir. 1974) 33

Camero v. United States, 375 F. 2d 777 (Ct. Cl. 1967) = 27

Carey v. Civil Aeronautics Board, 275 F. 2d 518 (1st

EE 3 by dG bad Gn0es cheeusdelsubecnnneuss« 28

Commissioner v. Duberstein, 363 U. S. 278, 80 S. Ct.

Bey Oe Be Be Oe BN CRUE ccc cccescescncescs 29

Cross v. United States, 512 F. 2d 1212 (4th Cir. 1975) 39

Delaware, L. & W. R. Co. v. City of Hoboken, 10 N. J.

Ss Oks Se CD ve sccccectccucduceses 28

Denton v. Yazoo & Mississippi Valley Railroad Co.,

284 U.S. 305, 52 S. Ct. 141, 76 L. Ed. 310 (1932) 35

Environmental Defense Fund, Inc. v. Ruckelshaus,

439 F’. 2d 584 (D.C: Cir. 1971) ..........cceee- 16

Environmental Protection Agency v. Mink, 410 U. S.

73, 93 S. St. 827, 35 L. Ed. 2d 119 (1973) ...... 16

Federal Communications Commission v. WJR, 337

U.S. 265, 69 S. Ct. 1097, 93 L. Ed. 1353 (1949) .. 36

Fuentes v. Shevin, 407 U. S. 67, 92 S. Ct. 1983, 32

Ss 2 £. Paar ere errr 8, 13, 17

Giaccio v. Pennsylvania, 382 U. S. 399, 86 S. Ct. 518,

BP te Bs Ee CD oo k0 cee dscededweescuens 16

Giglio v. United States, 405 U. S. 150, 92 8. Ct. 763

ee i Ss Be ee CED's eve eecccecesvcvesves 32

Goldberg v. Kelly, 397 U. S. 254, 90 S. Ct. 1011, 25

i GED odin xe 60s.00000000600050005 13

iv TABLE OF CONTENTS

PAGE

Gonzalez v. Freeman, 334 F. 2d 570 (D.C. Cir.

BEGE) .ciceccccveneussseveudeuan saan 16, 17, 39

Goss v. Lopez, —— U. 8S. ——, 43 Law Week 4181

(pay Di, Geeee .0cestenccekeusceseeee 20

Grayned vy. City of Rockford, 408 U. S. 104, 92 S. Ct.

2204, 33 L. Ed. 3d SEB (1GTB) «oc ccccccdecsees 16, 25

Greater Boston TV v. F.C.C., 444 F. 2d 841 (D.C.

COP. TOGO) ocevvcwescaveseeeseaudenee 33

Holmes v. New York City Housing Authority, 398 F.

a6 SEB (38 Cas, BOER) ois ccscvesvcececesnueen 16

Hornsby v. Allen, 326 F. 2d 605 (5th Cir. 1964) .... 16

In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527

(TOG) cccoccvecececccessesensdee nie 23

In re Oliver, 333 U. S. 257, 68 S. Ct. 499, 92 L. Ed.

GES CEDGS) coe vccnecceesseesuuuenunneeeee 22

In re Ruffalo, 390 U. S. 544, 88 S. Ct. 1222, 20 L. Ed.

BG BET (EDGE) oc csccececneueeecssapeeeeee 22

Londoner v. Denver, 210 U. S. 373, 28 S. Ct. 708,

OB So. Gee. LRGB CROGS) «ic cccccecesausuuesee 37

Morgan v. United States, 304 U. S. 1, 58 S. Ct. 773,

SS Ke, BEG. LEDD (URGE) occ ccscccesescecueneel 22

Morrissey v. Brewer, 408 U. S. 471, 92 S. Ct. 2593,

ere Be Fh, rer 20

Nadiak y. Civil Aeronautics Board, 305 F. 2d 588 (5th

Cop. TRGB) oc ccosevecseccsuceness ee 27

Napue y. Illinois, 360 U. S. 264, 79S. Ct. 1173, 3 L. Ed.

26 BERT CRBS) .« vcccccccccecsesseeneeae 32

National Labor Relations Board v. Florida Citrus

Canners Cooperative, 311 F. 2d 541 (5th Cir.

BEB) cv ocvccesscccescesceenceuedsa ne 33

TABLE OF CONTENTS Vv

PAGE

N.L.R.B. v. Union Pacific Stages, 99 F. 2d 153 (9th

ceed chdeccneccuccesocevceeces 30

Pike v. Civil Aeronautics Board, 303 F. 2d 353 (8th

IN SEDI EOP OTT PTEETEEETETE 38, 39

Portable Electric Tools, Inc. v. National Labor Rela-

tions Board, 309 F. 2d 423 (7th Cir. 1962) ...... 33

Priority Air Dispatch, Inc. v. Brinegar, not off. re-

ported, 12 CCH Aviation Reporter 18,046 (D. D.C.

Nee Eee ee cee ene ndeecsevecoces 9,10

Priority Air Dispatch, Inc. v. National Transporta-

tion Safety Board, F. 2d —— (D.C. Cir.

June 19, 1975, Docket No. 73-2169, slip opinion

TERETE GEGEbebeeddecesercccecees 7, 10,19

Rothschild v. New York, 388 F. Supp. 1346 (S.D.N.Y.

kee cceesccessccree 33

Russell v. United States, 369 U.S. 749, 82 S. Ct. 1083,

EE occ sce ccenseveesccceces 22

Saginaw Broadcasting Co. v. Federal Communica-

tions Commission, 96 F, 2d 554 (D.C Cir. 1938) 28

Sarzen v Caughan, 489 F 2d 1076 (1st Cir 1973) .... 28

Schneiderman v. United States, 320 U. S. 118, 63 S.

Ct. 1988, 87 L.. Ed. 796 (1943) ........ccceeee, 30

Securities and Exchange Commission v. Chenery

Corp., 318 U. S. 80, 63 S. Ct. 454, 87 L. Ed. 626

eres eee tccacoresesececccce 29, 35

Service v. Dulles, 354 U.S. 363, 77 S. Ct. 1152, 11 L.

ee ccasawaseccceccccccce 21

Shreve v. Hot Shoppes, Inc., 184 F. Supp. 436 (D.D.C.

Tee eee ba scesseeeccccceccecccs 33

United States v. Banks, 16 Crim. L. Rep. 2090 (D.

I oon cc cecccceccecccccces 27

vi TABLE OF CONTENTS

United States v. Comyns, 248 U. S. 349, 39 S. Ct.

See Ge ee Be Se ED cen cecseseceunseesesas

United ‘states v. Harper, 335 F. Supp. 904 (D. Mass

1972), appeal vacated and dismissed as moot, 406

Wa: Se CGE 060-6 ius o2<eedeurewsaeteosuiees

United States v. Jannsen, 339 F. 2d 916 (7th Cir.

SE acduwaueksdonseecseokesanessneeeen

United States v. McCord, F. —— (D.C. Cir.

Dec. 12, 1974), slip opinion pp. 22-28, 43 Law

WE cdeb-04cb adsense anssassaeseenieeees

BOOED co cccccsesccneecceseseoencesessescseeses

United States v. Murray, 445 F. 2d 1171 (3d Cir.

BEES 600004d05sdd5edesdeesencens tae

United States v. Nixon, 42 Law Week 5237, 5241 (July

SOE «vs000600 ben eessccneeneseeneeaees

United States v. Ozark Air Lines, Inc., 374 F. Supp.

234 (E.D. Mo. 1974), aff’d 506 F. 2d 526 (8th

a, Be sactucusduveneueeuas 2 ieee ake een ee

United States v. Pennsylvania Industrial Chemical

Corp., 411 U.S. 655, 93 S. Ct. 1804, 36 L. Ed. 2d

Pee CUED 0.0socdcudesncusccuethesesatesseseel

United States v. Russo, Crim. No. 9373 (C.D Cal.

Dn: ¢edsecoesteéubduensscuaieeneue eee

United States ex rel. Accardi v. Shaughnessey, 347

U. S. 260, 74 S. Ct. 499, 98 L. Ed. 681 (1954) ....

Universal Camera Corp. v. N.LR.B., 340 U. S. 474,

71 S. Ct. 456, 35 L. Ed. 456 (1950) .............

Vitarelli v. Seaton, 359 U. S. 535, 79 S. Ct. 968, 3 L.

PAGE

Be, SS BU CUED oo vccccccnscececceseveteces 21, 22

TABLE OF CONTENTS

Waters v. Peterson, 495 F. 2d 91 (D.C. Cir. 1973) ....

WIBC v. Federal Communications Commission, 259

F. 2d 941 (D.C. Cir. 1958), cert. den. 358 U.S. 920,

79 S. Ct. 290, 3 L. Ed. 2d 239 (1958) ............

Wolff v. McDonnell, —— U. S. , 42 Law Week

5190, 5198 (June 26, 1974) ..............4.. sa

REGULATIONS

Federal Air Regulations:

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DEE tradensdcveedieesddcnucenncs

$13.19(b), as modified 38 Fed. Reg.

Sy MD 6.54 <condanauedannsss

RONNIE «io i cccnnccaveedsesvecse

DOE cbnee canesnéencadedscnnnenss

DOE ennedencebdscebacnaseedencias

DEE ekeéene beeneséeesséevncetine

DOE 2n00064s Gadheuseddokeaeuetes

Vill TABLE OF CONTENTS

PAGE

BE cteuvseokeussacnedesebacnemas 37

DOE cedddoddevddincdsacednenases 37

SL ¢:¢dipeettemiiwesniawas a 37

DEE sasinecunnesaxadsunasenesune 37

REE sbsdndducdacadakkdcsenadens 37

DUA 66000sddeneedonccesssucenes 37

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54 CPE. Past Bae, Bent Bg ocidvicccinccenes 24

SD nihseeedssdneds une nnseeees 37

REE dcescecwcekedue eennetewees 37

Part 145, Subparts A and B........ 24

REE widddedebecsatsediniewecnen 37

NTSB Regulations:

Se re ED pen urecceddscunsinddeaden 21

DORI. sxudceceeceteessueweeneseas 21

Dt tcenysennguanceseunesensans 23

DEED: ¢ ccccundusaccdnececed ene

SOEEEE cus navahsedsenedwnseceosens 28

SEE cncucncenendonkdawads 36

STATUTES

B WEA. SECO EO) | 6 oc cccscecccecsccesvcwes 30

DBs UE 6 bh cddicaneveewhnsweddtendaseess 30

SD We OED hcecchecvdccoccciisscceceves 18

SP ees SEED eo cdsccdcancccecetcccesdusdus 34

TABLE OF CONTENTS ix

PAGE

> Weis Ss Bs BE, EE adcnceccecescccececs 24

ee a OE ectewceunee . «od, 4, 8, 18, 38, 39

Ee 3, 4, 8, 15

ee ee eceecneeeeeanduneen 33

49 U.S.C.A. § 1655(¢c)(1) ......... eRe en pe aL 8

OTHER AUTHORITIES

Case Note, 40 J. Air Law & Com. 749 (1974) ........ 11

Davis, Administrative Law Text, page 52 (3d Ed.

Se ad eee ee ee ee 17

Davis, Administrative Law Text, § 8.02, page 197

I Da al eee 23

2 Davis, Administrative Law Treatise, Chapter 16

i PD cic l aoa ucnn eens anenwedaneas 28

FAA Manual “Terminal Air Traffic Control,’’ order

7110.8C published 1 January 1973 as amended—

a ae ee eneecesee ue’ 26

Freedman, Summary Action by Administrative Agen-

cies, 40 Univ. of Chicago L. Rev. 1 (1972) ..... 20

ee es A CED oo occdeesceaduuevescenewen 18

Iw THE

Supreme Court of the United States

OCTOBER TERM, 1975

Am Fast, Inc., d/b/a ALLEGHENY ComMmuTER, Air Fast,

Inc., CHartes ALLAN McKiyney, James Avery TALuent,

JEFFREY H. WiLkinson and THomas ReEppDEcLIFF,

Petitioners,

vs.

NATIONAL TRANSPORTATION SaFreTy Boarp and ALEXANDER

P. Butrerrietp, Administrator of the Federal Aviation

Administration,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

Petitioners Air East, Inc., d/b/a Allegheny Commuter,

Air Fast, Inc., Charles Allan McKinney, James Avery

Tallent, Jeffrey H. Wilkinson and Thomas Reddecliff re-

spectfully pray that a writ of certiorari issue to review

the judgment and opinion of the United States Court of

Appeals for the Third Circuit entered in this proceeding

on March 13, 1975.

Opinions Below

The opinion of the Court of Appeals, reported at 512 F.

2d 1227 (3d Cir. 1975), appears in Appendix B hereto. The

opinion of the National Transportation Safety Board,

reported as NTSB Order No. EA-581, appears in Ap-

pendix C hereto. The opinion of Administrative Law

Judge Fred L. Woodlock appears in Appendix D hereto.

Jurisdiction

The judgment of the Court of Appeals for the Third

Circuit was entered on March 13, 1975. A timely petition

for rehearing en banc was denied on April 7, 1975. This

petition for certiorari was filed within ninety days of the

latter date. This Court’s jurisdiction is invoked under

28 U.S.C. § 1254(1).

Questions Presented

1. Whether the summary revocation of petitioners’ avia-

tion licenses without adequate statutory or regulatory guide-

lines and without a prior hearing is a violation of due

process of law.

2. Whether the petitioners were denied due process on

the review of the summary revocations of their aviation

licenses

(a) by the failure to give adequate notice of the

charges alleged;

(b) by the failure to dismiss stale charges;

be in violation of any regulation or statute;

(d) by the Administrator’s supplying the Board and

the Law Judge with prejudicial material outside of

the record;

(e) by the failure of the Law Judge and Board to

make adequate findings of fact and conclusions of law

and to specify the reasons therefor;

(f) by the failure of the Law Judge, Board and

Court of Appeals to apply correct principles of law;

(g) by the failure of the Board to give the peti-

tioners adequate time to prepare their appeal and by

denying them oral argument;

(h) by the refusal of the Board and Court of Ap-

peals to pass upon the constitutionality and application

of various federal air regulations; and

(i) by applying the sanction of revocation when

the petitioners did not violate any federal aviation

regulation which provided for the penalty of revocation.

Statutes Involved

The statutory provisions involved are in Title 49, United

States Code §§ 1429, 1485(a), which are printed in Ap-

pendix A hereto.

Statement of the Case

Prior to March 7, 1974, Air East, Inc., conducted sched-

uled air taxi passenger operations serving the Pennsy!-

vania communities of Pittsburgh, Johnstown, Altoona and

Harrisburg, and scheduled air mail operations serving

Pittsburgh, Johnstown, Bradford, DuBois and Harrisburg.

In connection with its air taxi operations, Air East was

also an authorized aircraft repair station. The individual

petitioners herein were pilots employed by Air Kast in con-

nection with its flight operations, except for the petitioner

Reddecliff, who was chief mechanic for the repair station.

Air East, Ine, was the holder of an Air Taxi Commercial

Operator Certificate issued on August 21, 1969, and a Re-

pair Station Certificate issued on August 21, 1970. Peti-

tioners Charles Allan McKinney and Jeffrey H. Wilkinson

were holders of commercial pilot certificates, while peti-

tioner James Avery Tallent was the holder of an airline

transport pilot certificate. Petitioner Thomas Reddecliff

was the holder of a mechanic’s certificate with airframe and

powerplant ratings. All of the aforesaid certificates were

issued by the Federal Aviation Administration (hereinafter

referred to as the FAA).

On or about January 18, 1974, the Administrator under-

took a review of Air East’s operations and, after inter-

viewing various former employees and examining various

records over a seven-week period, apparently concluded

that Air Kast’s operations as well as the piloting of its man-

agement personnel constituted an emergency to air com-

merce. At no time were petitioners requested to partici-

pate in the FAA investigation, advised of the charges

against them, or asked for an explanation concerning the

charges alleged against them.

On March 7, 1974, John J. Keyser, Assistant Chief Coun-

sel of the FAA, purportedly acting «1 behalf of the Ad-

ministrator of the FAA, issued emergency orders of rev-

ocation which immediately revoked all of the certificates

above mentioned (R. I 1-27*). The alleged statutory au-

thority cited for such orders was Sections 609 and 1005(a)

of the Federal Aviation Act of 1958, as amended, 49

U.S.C.A. §§ 1429 and 1485(a) (reproduced in Appendix

A). The petitioners appealed said orders to the National

Transportation Safety Board (hereinafter referred to as

the NTSB or the Board) on or about March 11, 1974, and

the Administrator filed his complaints (exact duplicates

of the emergency orders, R. I 37-42) on March 14, 1974.

The cases were consolidated and assigned to NTSB Law

Judge Fred L. Woodlock. A pre-trial conference was held

* As used herein, “R. I 1-27” refers to the Record (R.) in the

Court of Appeals, the volume thereof (I), and the pages therein

(1-27) where the documentation is located. The Clerk of the Court

of Appeals has been requested to transmit a certified copy of the

record to this Court pursuant to Supreme Court Rule 21(1).

on March 20, 1974, at which time various orders relating to

discovery were entered, including an order directing the

Administrator to serve bills of particulars as to each

charge because of lack of specificity in the complaints (R.

IL 356-361). Trial began on March 21, 1974.

On Friday, March 22, 1974, the Administrator gave to

the Chairman of the NTSB, ex parte and outside the offi-

cial records, certain defamatory material relating to the

petitioners herein and impliedly criticizing certain dis-

covery rulings made by the Law Judge that were adverse

to the Administrator. A copy of this material was also

given to the Law Judge and to petitioners’ counsel at the

close of the day’s proceedings on March 22, 1974. On Mon-

day, March 25, 1974, the petitioners moved to dismiss the

charges based upon this improper and unethical approach

by the Administrator to the Law Judge and the Board

(R. I 248-258). The Law Judge denied said motion (R. VII

357-368).

On April 1, 1974, the Administrator requested and re-

ceived the right to take an interlocutory appeal to the

Board with respect to the Law Judge’s ruling that the

Administrator was limited in his evidence to those charges

specified in the bills of particulars.

On April 5, 1974, petitioners moved to disqualify the

entire NTSB from further participation herein (R. I 259-

266), and on April 8, 1974, NTSB Chairman John H. Reed

disqualified himself. The other Board members denied

petitioners’ motion for disqualification in Order KA-568

(R. II 376-382). On the same date, the Board denied the

Administrator’s interlocutory appeal and held that the

Administrator was limited at the hearing to the introduc-

tion of evidence within the confines of the various bills of

particulars (R. II 383-385). In spite of this ruling, the

Law Judge continued to allow the Administrator’s attorney

to make proffers of other evidence for the record relating

to acts not specifically charged.

The Administrator presented his evidence from March

22, 1974, to April 18, 1974. At the termination of the

Administrator’s case, the Law Judge dismissed Charges

11 and 18 of the Air East d/b/a Allegheny Commuter

complaint (R. I 1-7) and Charge 4(g) of the Charles Allan

McKinney complaint (R. [I 8-12).

The petitioners proceeded with their case under protest

(R. XV 2429.39). The trial ended on Apri! 24, 1974, and

the Law Judge issued his oral initial decision on April

26, 1974 (Appendix D). The Law Judge found against

the petitioners on all charges except Charges 9 and 20 of

the Air East d/b/a Allegheny Commuter complaint (R. I

1-7); Charge 4(g) of the Tallent complaint (R. I 13-17);

Charge 3(f) of the Wilkinson complaint (R. I 18-21); and

Charge 5 of the Air East Repair Station complaint (R. I

25-27). The Law Judge affirmed the Administrator’s order

of revocation in each case.

Petitioners appealed from said initial decision on April

28, 1974 (R. I 308). The Administrator also filed a Notice

of Appeal on April 29, 1974 (R. 1 310). On April 30, 1974,

the petitioners moved ‘to dismiss the Administrator’s ap-

peals on the ground that they had not been timely filed

(R. I 313).

In accordance with Board rules, the petitioners filed their

brief on appeal by mail on May 3, 1974, and on May 6,

1974 requested oral argument before the Board (R. I 324).

On May 10, 1974, the Board adopted its opinion an ’ Order

E.A-581 (issued on May 13, 1974) which denied petitioners’

appeal, affirmed the initial decision of the Law Judge with

one modification, and affirmed the Administrator’s emer-

gency orders revoking the petitioners’ certificates. The one

modification made by the Board was 'to dismiss Charge 4(h)

of the Tallent complaint (Appendix C, fn. 116).

Petitioners’ request for oral argument before the Board

was denied by said order, and the issues raised by the

Administrator’s appeal and petitioners’ motion to dismiss

said appeal were not reached.

The petitioners then filed timely appeals to the United

States Court of Appeals, which affirmed the orders of rev-

ocation on March 13, 1975.

’,

. Reasons for Granting the Writ

The summary revocation of aviation licenses without

prior hearing on the alleged grounds of ‘‘air safety” pre-

sents an important issue of federal law on which there

are no statutory or regulatory guidelines, and the proce-

dures followed in the review of such action are so lacking

in due process that immediate clarification is needed by

the Supreme Court to resolve conflicts between the Cir-

cuits and among ‘the District Courts.

1. The summary revocation of the aviation licenses

herein without adequate statutory or regulatory guidelines

and without a prior hearing was a violation of due process.

The aviation certificates involved herein are licenses that

are within that class of rights which are protected froi

arbitrary governmental action. Bell v. Burson, 402 U.S.

535, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971); Priority Air

Dispatch, Inc. v. National Transportation Safety Board,

F. 2d -—— (D.C. Cir. June 19, 1975, Docket No. 73-2169,

slip opinion pp. 775-784). The due process clause of the

United States Constitution requires a prior hearing before

the revocation of such rights, ‘‘except for extraordinary

situations where some valid governmental interest is at

stake which justifies postponing the hearing until after

the event.’’ Boddie v. Connecticut, 401 U.S. 371, 378-379,

91 S. Ct. 780, 28 L. Ed. 113 (1971). However, as to such

exceptions, this Court has stated:

“. . . These situations, however, must be truly

unusual. Only in a few limited situations has this

Court allowed outright seizure without opportunity for

a prior hearing. First, in each case, the seizure has

been directly necessary to secure an important govern-

mental or general public interest. Second, there has

been a special need for very prompt action. Third,

the State has kept strict control over its monopoly of

legitimate force: the persons initiating the seizure

has been a government official responsible for deter-

mining, under the standards of a narrowly drawn

statute, that it was necessary and justified in the par-

ticular instance.” Fuentes v. Shevin, 407 U. S. 67,

90-91, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972).

Section 609 of the Federal Aviation Act of 1958, as

amended (49 U.S.C.A. §§ 1655(e)(1) and 1429), does au-

thorize the Administrator to revoke any certificate issued

by him upon a determination “that safety in air commerce

or air transportation and the public interest requires’’

such action (Appendix A). If an appeal is taken from

such action to the Board, the revocation is stayed unless

the Administrator ‘‘advises the Board that an emergency

exists and safety in air commerce or air transportation

requires the immediate effectiveness of his order.’’ 49

U.S.C.A. 9§ 1429, 1485(a) (Appendix A).

The Administrator’s procedural regulations relating to

certificate action are contained in 14 C.F.R. Part 13. None

of these regulations provides for participation by inter-

ested parties in the agency decision-making process. Once

the FAA reaches a decision it advises the party of its

proposed certificate action and the party then has certain

options, the best of which is a request for an informal con-

ference where safety violations are concerned. 14 C.F.R.

§ 13.19. However, if the FAA considers the situation an

‘“omergency,” there are no regulations or procedures per-

mitting the certificate holder to present his side of the

story before the Administrator or his designee revokes the

certificate.

Besides the instant proceeding, summary action by the

Administrator in the name of “air safety’’ has been before

the courts three times in recent years, and in two cases the

authority to revoke prior to a hearing was held to be an

unconstitutional denial of due process and in the other case

the Court side-stepped the issue by finding that there had

been an opportunity, albeit informal, to present the certifi-

cate holder’s position before the Administrator acted.

In United States v. Harper, 335 F. Supp. 904 (D. Mass.

1972), the Administrator sought a mandatory injunction

requiring the defendant Harper to surrender his airman

and medical certificates on the ground that there had been

an emergency revocation of the same by the Administrator.

The defendant challenged the Administrator’s emergency

order of revocation on the ground that he had not been

given an opportunity to answer any charges and be heard

as to why his certificates should not be revoked. Judge

Wyzanski dismissed the Government’s complaint, holding:

“Insofar as 49 U.S.C. § 1429 purports to authorize

a permanent revocation of a certificate without giv-

ing the holder an opportunity to be heard, that statu-

tory section deprives the holder of due process of law

guaranteed by the Fifth Amendment. The right of

a person to be heard before he is deprived of his prop-

erty by governmental action is the most elementary,

fundamental, and comprehensive of the rights guar-

anteed by the due process clause of the Fifth Amend-

ment. [Cases cited.] Such a guarantee may be valid!y

limited only under the most compelling circumstances

and then generally only for the briefest of periods.

Here no such compelling circumstances exist.” 335 F.

Supp. at 906-907.

An appeal to this Court was vacated and the case remanded

with directions to dismiss as moot. 406 U.S. 940 (1972).

In Priority Air Dispatch, Inc. vy. Brinegar, not off. re-

ported, 12 CCH Aviation Reporter 18,046 (D. D.C. 1973),

the plaintiff obtained a preliminary injunction when the

Administrator revoked on an emergency basis plaintiff’s

FAA exemption for the carriage of hazardous materials

because of alleged violations of the federal aviation regu-

lations. In granting the preliminary injunction, the Court

held:

‘* . . it appears that plaintiff is entitled to notice

of charges and an adversary hearing prior to termina-

tion or revocation of its exemption. . .”’

When the NTSB subsequently held that it lacked juris-

diction to review the Administrator’s emergency revoca-

tion of P.A.D.’s exemption, the Court of Appeals reversed

the Board and ordered it to proceed to a hearing on the

revocation of both the exemption and the plaintiff’s air

taxi certificate. Priority Air Dispatch, Inc. v. National

Transportation Safety Board, —— F. 2d (D.C. Cir.

June 19, 1975, Docket No. 73-2169, slip opinion pp. 775-

784). In his coneurring and dissenting opinion, Judge

Danaher stated:

‘T am entirely satisfied that Priority was and is

entitled, after notice of specific charges, to an evi-

dentiary hearing before its operating authority shall

be cancelled.’’ (Slip opinion p. 784)

It would thus appear clear that the Court of Appeals for

the District of Columbia has at least implicitly approved

the decision by the District Court that an adjudicatory

hearing based upon specific charges must be afforded to

the operator before his exemption or certificate is revoked

even when the Administrator proceeds to act on an emer-

gency declaration based upon alleged air safety violations.

In Aircrane, Inc. v. Butterfield, 369 F. Supp. 598 (E.D.

Pa. 1974), a three-judge federal District Court was called

upon to decide the constitutionality of that portion of the

Federal Aviation Act which allowed for the summary

seizure of an aircraft for an alleged violation of a safety

regulation.’ In a careful analysis of all the recent Su-

preme Court decisions relating to the need for a prior

hearing before termination of rights, the Court coneluded

that the ultimate issue was ‘‘a balancing of the govern-

ment’s interest in summary action against the property

owner’s interest in adjudicating his rights prior to gov-

ernment action.’’ 369 F. Supp. at 604. In undertaking

its consideration of the various interests involved, the

Court initially disposed of the Government’s waving of

the ‘‘air safety’’ flag by observing:

‘‘As a starting point, we believe that the dangers

inherent in summary governmental action impel the

courts to scrutinize closely governmental interests

which supposedly justify such procedures. We do

not believe that the sections which are challenged as

unconstitutional should be upheld simply by referring

to the overriding purpose of the Federal Aviation

Act ... The legitimate objectives of a statutory

scheme as extensive as the FAA Act do not necessarily

immunize from attack each and every section and

regulation promulgated under it.” 369 F. Smpp. at

605.

The Court then proceeded to analyze the Government’s

interest in summary action and concluded that the federal

air regulation upon which the alleged violation was based

was related to air safety and that the FAA’s actions were

therefore prompted by a legitimate governmental concern

for public safety.

As opposed to the Government’s interest, the Court

could find very little countervailing reasons why summary

action would adversely affect the owner’s interest. First,

the Court found that the seizure of the aircraft would not

significantly impair Aircrane’s ability to ultimately vin-

2 Case Note, 40 J. Air Law & Com. 749 (1974).

dicate its rights because the aircraft, while an extremely

valuable asset, would be returned to the owner upon the

posting of a small bond, and therefore the owner was not

unduly burdened in mounting a meaningful legal attack

on the agency’s action by the lack of its operating assets.

Secondly, the Court found that prior to seizure the owner

of the aircraft had the opportunity to advise the FAA in

detail of its position with respect to the alleged violations.

This pre-seizure discussion was held to satisfy the acknowl-

edged principle that:

«|. One of the re. sons due process ordinarily

requires that adverse parties receive a full oppor-

tunity to present their respective positions is that ‘fair-

ness can rarely be obtained by secret, one-sided de-

termination of facts decisive of rights.... No better

instrument has been devised for arriving at truth

than to give a person in jeopardy of serious loss

notice of the case against him and opportunity to

meet it.’’’ 369 F. Supp. at 607.

Finally, the Court concluded that the limited inconvenience

to the owner of the aircraft, i.e., the posting of a $1,000

bond, weighed in favor of upholding the statutory scheme.

Although the Court balanced the competing interests in

favor of summary action by the Government, it was

clearly disturbed by several factors:

‘‘Against these reasons for upholding ‘the seizure

provisions, we balance two considerations which, under

the language of Fuentes, do cut somewhat in Owners’

favor. First, there does not appear to be present

here the type of emergency such as was posed by con-

tamvinated food in North American Storage, supra, and

second, there is some question whether the seizure

here took place under a sufficiently narrowly drawn

statute to insure that summary action takes place

only when ‘necessary and justified.” 369 F. Supp.

at 608.

In its final analysis, the Court upheld the constitution-

ality of the summary seizure on a very narrow point:

‘*We have based our decision to uphold this statutory

scheme on the conclusion that the salient facts of the

case justify viewing it as an exception to Fuentes, in

which notice and hearing may be dispensed with. We

note in passing, however, that even if the Fuentes

principles applied, we are of the view that the ex-

tended exchange of communications between Owners

and the FAA before the seizure might well have

constituted sufficient notice and hearing to satisfy

due process under the cireumstances.’’ 369 F. Supp.

at 608-609.

Petitioners would distinguish Aircrane from their case

on two very important points: First, unlike Aircrane, the

petitioners herein were not given notice of the charges

against them or offered an opportunity to rebut them

prior to emergency revocation. Secondly, once revoked,

the petitioners lost their means of livelihood and lacked

the financial resources to present a meaningful defense

during the Board proceedings. Cf. Goldberg v. Kelly, 397

U. S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970).

In analyzing the present situation under the three

criteria set forth in Fuentes (supra, pp. 7-8), petitioners

concede the first criterion of Fuentes, i.e., that an impor-

tant government or general public interested is involved in

air safety.? Petitioners submit, however, that criteria two

and three are lacking herein, i.e., the special need for very

prompt action and the decision to revoke being necessary

and justified and made by the responsible government offi-

cial ander the standards of a narrowly drawn statute.

2 Petitioners contend, however, that, as in Aircrane, the Court

must examine each regulation to determine whether it is applicable

and involves a matter of air safety that would warrant the sum-

mary action taken by the Government. The Court of Appeals did

not undertake such a review (see pp. 37-38 infra).

One must immediately question where the ‘‘emergency”

was in the present situation which justified the need for

“very prompt action.” The Administrator’s investigation

took seven weeks, and during this time Air East operated

with a perfect safety record. Indeed, Air East in its three-

year history had conducted some 36,000 flights with only

one accident, the cac3e of which was not shown to be in

amy way related to the charges in the complaints (R. VI

245-7). Furthermore, the individual petitioners and the

repair station had never been convicted of any prior safety

violations. Where, then, was the “truly unusual’’ situation

which justified revocation prior to hearing?

The decision by the Court of Appeals justifies the leis-

urely pace of the FAA’s seven-week investigation by con-

cluding that serious consideration was being given to the

charges. This was certainly based upon good faith con-

jecture by the Court since there was no evidence in the

record as to the reason for the prolonged investigation; but

even if such a delay was based upon the FAA’s ‘‘serious

efforts . . . to establish the validity of the charges,” it is

difficult to conform such assiduousness with the general and

unspecific charges eventually filed by the FAA in the rev-

ocation orders (see Appendix C, pp. A20-A43).

Furthermore, the Court of Appeals’ decision overlooked

the fact that in 1973 petitioner Air East was the subject

of two normally scheduled FAA field investigations which

resulted in favorable reports. Thus, in the one-year period

prior to revocation, Air East received three extensive in-

vestigations by the FAA—two conducted by experts as-

signed to the FAA’s System Worthiness Analysis Program

(SWAP),* which found no significant deviations from pre-

2 As to the value that the FAA places on its SWAP investiga-

tions, see Administrator v. Robertson, Docket No. 74-450, decided

June 24, 1975, 43 Law Week 4833.

scribed rules and regulations (R. VII 602-621),* and a third

investigation conducted by FAA lawyers, in a ‘‘somewhat

covert” manner as acknowledged by the Third Circuit, who

apparently concluded that the “public interest’? required

the revocation of all the certificates held by the petitioners,

although these same lawyer/investigator/aviation experts

were incapable of identifying in their revocation orders

any date, time or place of a specific violation.

While it is true that Air East had its first and only acci-

dent on January 6, 1974, this accident was not shown to

be related to or caused by any of the violations alleged in

the complaint (R. XIII 2704).° It is therefore clear that,

based on Air East’s exemplary safety record, its prior in-

spections by FAA SWAP teams, and its acknowle ed

willingness to discuss problems with FAA inspectors, there

was no emergency to justify summary revocation of the

petitioners’ certificates.

It is equally clear that the emergency revocations herein

were not made under the standards of a narrowly drawn

statute. Initially petitioners point out that the statute

authorizes the Administrator to dispense with notice and

hearing when he “is of the opinion that an emergency

requiring immediate action exists in respect of safety in

air commerce.’’ 49 U.S.C.A. § 1485(a) (Appendix A). Inso-

far as the decision to revoke without a hearing can rest upon

‘In addition, the Chief of the FAA’s Pittsburgh General Avia-

tion District Office (GADO) testified that Air East’s management

always displayed compliance disposition and was willing to sit

down and work out problems with GADO inspectors (R. VIII 801).

5 When Pan American World Airways had three disastrous

crashes in the South Pacific within one year (Tahiti, July 23,

1973; Pago Pago, January 30, 1974; and Bali, April 22, 1974),

the FAA did not revoke its operating certificate. Nor when

DC-10 cargo doors came off in midair due to faulty design did

the FAA ground the aircraft or revoke McDonnell Douglas pro-

duction certificate. Obviously, safety decisions are made on an

ad hoc basis, and consistently in favor of the “big guy.”

“the opinion’’ of the Administrator as to such a vague

term as ‘‘safety,’’ petitioners contend that the “standards

of a narrowly drawn statute” are nonexistent and the

grant of such power is unconstitutional as violative of due

process.® Giaccio v. Pennsylvania, 382 U.S. 399, 86 S. Ct.

518, 15 L. Ed. 2d 447 (1966); see Grayned v. City of Rock-

ford, 408 U. S. 104, 108-109, 92 S. Ct. 2294, 33 L. Ed. 2d

222 (1972).

The Court of Appeals agreed that the statute was broad,

but concluded that such a vast discretionary grant of

authority was necessary in order to carry out the pur-

poses of the statute. But even if this grant of authority

can be constitutionally justified (which pe*tioners do not

concede), the failure of the Administrator to prescribe

specific rules and regulations advising the aviation com-

munity and the public as to when and how it will be exer-

cised cannot be constitutionally justified. Environmental

Defense Fund, Inc. v. Ruckelshaus, 489 F. 2d 584, 597-598

(D.C. Cir. 1971); Holmes v. New York City Housing Aw

thority, 398 F. 2d 262, 265 (2d Cir. 1968) ; Hornsby v. Allen,

326 F. 2d 605, 610 (5th Cir. 1964).

Indeed, as Mr. Chief Justice Burger once held:

‘e

. Such debarment cannot be left to adminis-

trative improvisation on a case-by-case basis. The

governmental power must be exercised in accordance

with accepted basic legal norms. Considerations of

basic fairness require administrative regulations es-

tablishing standards for debarment and procedures

which will include notice of specific charges, oppor-

tunity to present evidence and to cross-examine ad-

verse witnesses, all culminating in administrative

findings and conclusions based upon ‘the record so

®* This Court has had occasion to criticize as being vague such

statutory terms as “in the public interest.” Environmental Pro-

tection Agency v. Mink, 410 U. S. 73, 79, 93 S. Ct. 827, 35 L. Ed.

2d 119 (1973).

made.” Gonzalez v. Freeman, 334 F. 2d 570, 578

(D.C. Cir. 1964).

And as Professor Davis has advocated in his treatise:

‘¢. . The Courts should develop a requirement that

as far as practicable administrators must structure

their discretionary power through appropriate safe-

guards and must confine and guide their discretionary

power through standards, principles, and rules. The

requirement should extend also to undelegated power,

including especially the extremely important power of

selective enforcement.’’ Administrative Law Tect,

page 52 (3d Ed. 1972).

Thus, whether one considers the statutory grant as too

vague or the failure of the Administrator to establish

standards and guidelines for the utilization of this statu-

tory power, the conclusion is ‘the same in either case: 1.e.,

the lack of adequate standards, either statutory or regu-

latory, renders the emergency revocation prior to a hearing

violative of due process.

The final criterion set forth in Fuentes, supra, is that

summary revocation prior to hearing can only be justified

if ‘the person initiating the seizure has been a government

official responsible for determining, under the standards of

a narrowly drawn statute, that it was necessary and

justified in the particular instance.” 407 U.S. at 91.

The initial orders of revocation were issued over the

signature of John J. Keyser, an Assistant Chief Counsel

for the FAA (R. I 6, 11, 16, 21, 23, 26). After the peti-

tioners appealed, Mr. Patrick G. Geraghty, Chief, Special

Projects & Appellate Branch of the FAA, simply filed

duplicate copies of the complaints and certified that an

emergency existed (R. I 38, 41)."

7 The chain of command within the FAA runs down from the

Administrator to the Deputy Administrator to the Chief Counsel

(footnote continued on following page)

There is no doubt that the Administrator is authorized

to delegate many of his statutory duties (49 U.S.C.A.

§ 1344(d)), and in fact the Assistant Chief Counsel was

authorized by regulation to issue the initial orders of rev-

ocation. 14 C.F.R. §13.19(b), as modified 38 Fed. Reg.

26,444 (1973). However, subdivision (d) of regulation

§ 13.19 specifically states that if the certificate holder files

an appeal to the Board “the Administrator’s order is

stayed unless he advises the Board that an emergency

exists . . .” (emphasis added). The “he” in the cited

regulation clearly refers to the Administrator, and there

is no other regulation which delegates the declaration of

emergency certification to any subordinate. It was there-

fore improper for the Chief of the Special Projects & Ap-

pellate Branch of the FAA to certfiy the emergency to the

Board and such conduct constituted the exercise of emer-

gency power by an unauthorized government official.*

Faced with the foregoing constitutional difficulties, it

appears that the Court of Appeals attempted to justify the

due process deficiencies by remarking:

“The petitioners were aware that an investigation

was underway because they had been deposed and the

company’s records had been subpoenaed. To some

extent, therefore, they had been given an opportunity

to present explanatory material before the revocations

occurred. There is no necessity, therefore, to con-

(footnote continued from preceding page)

to the Deputy Chief Counsel to Assistant Chief Counsel, which

Mr. Keyser is one of many. Mr. Geraghty was one of numerous

branch chiefs working for Mr. Keyser.

8 Petitioners further contend that it was error for the Board to

refuse to review the declaration of emergency certification (R. Il

491). 49 U.S.C.A. 1429 contains no limit on the Board’s power of

review over the Administrator’s actions, and, in fact, affirmatively

the Administrator. This self-imposed rule of abstention by the

Board further denies the petitioners procedural due process.

sider under what circumstances an invitation to submit

exculpatory material might be necessary before sum-

mary action by the Administrator.’’ (Appendix B)

Clairvoyance has never been a substitute for the notice

requirements of due process.’ Indeed, in order to illustrate

the type of notice given to the petitioners herein, the entire

deposition of Mr. Reddecliff is printed in Appendix E.

The subpoena served upon Air East was equally uninfor-

mative since it simply called for the production of all per-

sonal, operational and maintenance records. When the

President of Air East responded to the subpoena, the notice

received was as follows:

“By Mr. Geracuty: Let the record show that we

are convened at the Johnstown Cambria County Air-

port at 13:45 hours, 30, January, 1974, for the purpose

of taking return of subpoenas issued to Mr. McKinney

as President of Air East, Inc., which were issued pur-

suant to an order of investigation issued by the Ad-

ministrator of the Federal Aviation Administration

under authority delegated to him under the Federal

Aviation Act of 1958, as amended. Such investigation

being into the operating practices and procedures of

Air East, Inc.”

The deposition then went on to ask Mr. B. F. McKinney to

identify the Air East records he was producing pursuant

to subpoena.

The Court will note that the “notice” referred only to

an investigation of Air East, and not the individual peti-

tioners.

*In Aircrane v. Butterfield, 369 F. Supp. 598 (E.D. Pa. 1974),

and Priority Air Dispatch, Inc. v. National Transportation Safety

Board, F. 24 —— (D.C. Cir. June 19, 1975, Docket No. 73-

2169), the operator was given an opportunity to present its views

in writing before revocation. Petitioners were not afforded this

right, and the failure thereof again illustrates the arbitrary and

ad hoc procedures followed by the Administrator.

At no time prior to revocation were any of the petitioners

told what charges were being considered or given an op-

portunity to explain any of the alleged offenses uncovered

by the FAA investigators.” Cf. Blackwell College of Bust-

ness vy. Attorney General, 454 F. 2d 928 (D.C. Cir. 1971).

School children, parolees and prison inmates have more

constitutional rights. Goss v. Lopez, U.S. , 43

Law Week 4181 (January 22, 1975); Morrissey v. Brewer,

408 U. S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972); Wolff

v. McDonnell, —— U. S. ——, 42 Law Week 5190, 5198

(June 26, 1974).

Petitioners would therefore submit that the summary

revocation of their aviation licenses was a violation of due

process of law and since no statutory or regulatory gmide-

lines exist for the application of this summary power, the

unconstitutional procedures occurring to petitioners are

bound to recur. Review by this Court is a necessity.

2. The failure to grant the petitioners procedural due

process with respect to their appeals from the summary

revocations was contrary to constitutional and regulatory

precedent.

The appeals herein were reviewed in such a desultory

fashion by the Law Judge, Board and Court of Appeals

that one can only conclude that procedural due process of

law does not exist with respect to alleged air safety viola-

tions.

mary Action by Administrative Agencies, 40 Univ. of Chicago

L. Rev. 1 (1972): wri

“Requiring an administrative agency to inform an indi-

dual that it is contemplating summary action against him, to

describe the general nature of its information and the tenor of

its reasoning, and to permit him a brief opportunity to discuss

the matter with the agency’s staff and advance arguments why

summary action should not be taken could be most helpful in

reducing the risk of error.’’ (at 49)

A. The failure to make specific charges.

An examination of the complaints herein (App. C A20-

A43) reveals that the Administrator revoked petitioners’

certificates for allegedly violating federal air regulations,

etc., ‘‘on numerous occasions.’’ No dates, times, aircraft

numbers, component parts, or other factual material are

specified so that petitioners could identify the event.

Sections 421.4(d) and 421.23 of the Board’s regulations

require factual pleading (14 C.F.R.). Although the Law

Judge ordered the Administrator to file bills of particulars

giving factual details, these bills were equally defective and

the petitioners moved to dismiss the complaints for lack of

specific y-

In a classic statement which illustrates the prevailing ap-

proach at the Board to air safety enforcement proceedings,

the Law Judge refused to grant the motion, stating:

“T am bothered by it and I could, of course, strike

the pleading and grant the respondents’ [petitioners

herein] motion. However, I am not going to do so, even

though I think there is merit to the motion, because I

think if we get into these technical matters, and I don’t

mean ‘to discount the importance of technical matters,

we will never get to trial on this thing.” (R. VI 37)

The petitioners were therefore required to proceed to trial

even though their motion had ‘‘merit.’’ The due process

requirement for notice of specific charges had become a

mere ‘“technicality.”

It appears abundantly clear that the complaints herein

fail to comply with Board rules relating to factual pleading.

It is equally clear that the failure of a government agency

to adhere to its own rules and regulations constitutes a de-

nial of due process of law. United States ex rel. Accardi v.

Shaughnessy, 347 U. S. 260, 266-268, 74 S. Ct. 499, 98 L. Ed.

681 (1954); Service v. Dulles, 354 U. S. 363, 388-389, 77

S. Ct. 1152, 11 L. Ed. 2d 1403 (1957); Vitarelii v. Seaton,

359 U. S. 535, 79 S. Ct. 968, 3 L. Ed. 2d 1012 (1959) ; United

States vy. Nixon, 42 Law Week 5237, 5241 (July 24, 1974).

Of course, the lack of specificity and the failure to give

adequate notice so that petitioners could properly prepare

their defense were not only regulatory deficiencies, but also

constitutional infirmities. As this Court stated in Morgan

v. United States, 304 U. S. 1, 58 S. Ct. 773, 82 L. Ed, 1129

(1938) :

“The right to a hearing embraces not only the right

to present evidence but also a reasonable opportunity

to know the claims of the opposing party and to meet

them.’’ (Emphasis added.) 304 U.S. at 18.

Accord, In re Ruffalo, 390 U. S. 544, 88 S. Ct. 1222, 20 L. Ed.

9d 117 (1967); Jn re Oliver, 333 U. S. 257, 273, 68 S. Ct.

499, 92 L. Ed. 682 (1948); Armstrong v. Manzo, 380 U. 5.

545, 550, 85 S. Ct. 1187, 14 L. Fd. 2d 62 (1965).

The Board and the Court of Appeals attempted to jus-

tify the lack of specific allegations by stating that the

complaints were amplified by the bills of particulars,”

and the delivery of some twenty-one depositions to peti-

tioners’ counsel on the afternoon of the day prior to com-

mencement of trial made petitioners “aware of the heart

of the Administrator’s case in advance of the hearing.”

But what the Board and the Court of Appeals ignored

was the fact that the depositions were delivered the after-

——

11 A defective indictment cannot be cured even by a good bill

of particulars. Russell v. United States, 369 U. 8. 749, 769-770,

82 S. Ct. 1083, 8 L. Ed. 2d 240 (1962); United States v. Comyns,

248 U. S. 349, 353, 39 S. Ct. 98, 63 L. Ed. 287 (1919). Further-

more, none of the “details” set forth in the bills (R. I 76-243)

were proven at trial as evidenced by the Law Judge’s complete

failure to be specific. The bills as filed were deceptions.

‘2 The depositions (save for two) were not a part of the record

and therefore could not have been reviewed for content. Even the

Law Judge questioned whether these depositions were subject to

uniform interpretation (R. VI 59). (See Appendix E.)

noon before trial commenced, and the bills of particulars

were delivered the first day of trial and on subsequent |

days during trial. As this Court stated in Jn re Gault,

387 U. S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967):

“Notice, to comply with due process requirements,

must be given sufficiently in advance of scheduled

court proceedings so that reasonable opportunity to

prepare will be afforded, and it must ‘set forth the

alleged misconduct with particularity.’” (Emphasis

added.) 387 U.S. at 33.

“Timely notice of allegations and charges is an elemental

aspect of due process.” Sarzen v. Gaughan, 489 F. 2d 1076,

1084 (1st Cir. 1973). Accord, Blackwell College of Busi-

ness v. Attorney General, 454 F. 2d 928 (D.C. Cir. 1971);

rm ty Administrative Law Text § 8.02, page 197 (3d Ed.

The inherent unfairness of the instant procedure whereby

the Administrator revoked petitioners’ certificates on gen-

eral allegations; waited until the first day of trial to give

any specifics, which the Law Judge agreed were not very

enlightening, and then forced the petitioners to proceed

to trial while the Administrator prepared his case as he

went along, was so alien to the concept of due process,

fairness and justice that this Court should strongly con-

demn such procedures.

B. The failure to dismiss stale charges.

Section 421.25 (14 C.F.R.) of the Board’s regulations

provides for the dismissal of offenses occurring more than

six months prior to the Administrator’s orders of revoca-

tion. However, if the complai..i alleges “lack of qualifica-

tion,” the Law Judge is to examine the allegations, and

if they present an issue as to “lack of qualification,’’ he

may allow trial on these charges no matter how old they

may be.

Obviously, in proceeding under this section, the Law

Judge has to first know the date of the offense so that he

can determine whether the statute of limitations has run;

but no dates were specified in the complaints. Secondly,

the Law Judge has to decide whether the offense charged

presents an issue of “lack of qualification.” But what is

“lack of qualification”? The term is not defined by the

regulations, and is apparently subject to an ad hoc defini-

tion by each Law Judge who is faced with the issue. Cf.

Administrator v. Musso, 30 C.A.B. 1610 (1960).

Since the Federal Aviation Act vests authority with the

Administrator to set qualifications for the issuance of air-

man, air carrier and other aviation certificates (49 U.S.C.A.

§4 1422, 1424 and 1427), one would logically assume that

lack of qualification refers to the certificate qualifications

issued by the Administrator." The petitioners, however,

possessed all of the qualifications required by the regula-

tions to obtain and hold their respective certifications. None

of the complaints recites any failure to adhere to the quali-

fication requirements of the regulations. How, then, do the

petitioners lack qualification?

The FAA and the NTSB apparently work under the

unstated theory that, if the Administrator alleges that you

committed some unstated number of violations of some un-

stated regulations, you lack qualification. But ef. Admin-

istrator v. Donoghue, 1 N.T.S.B. 1568, 1569 fn. 7 (1972).

Obviously, such an ad hoc interpretation of ‘‘lack of quali-

fication’’, which deprives a certificate holder of the benefit

of the statute of limitations, is constitutionally improper.

13 The qualifications required for a mechanic’s certificate are

set forth in 14 C.F.R. Part 65, Subpart D; for a commercial

pilot’s certificate in 14 C.F.R. Part 61, Subpart D; for an air-

line transport pilot’s certificate in 14 C.F.R. Part 61, Subpart E;

for a repair station certificate in 14 C.F.R. Part 145, Subparts

A and B, and for an air taxi certificate in 14 C.F.R. Part 135,

Subpart A.

See Grayned v. City of Rockford, 408 U. S. 104, 108-109,

92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972).

As the Board advised the Administrator, as far back as

1966:

. if the Administrator desires to impose sanc-

tions on airmen on the basis of a general duty to exer-

cise ‘the degree of care and responsibility required of

a certificate holder,’ the regulations could be amended

to this effect.’’ Administrator v. Buchanan, 45 C.A.B.

973, 974 (1966).

The regulations were never so amended, and unfortunately,

in this case the Board ignored its own precedents, and the

Court of Appeals ignored the entire issue.

C. Failure to dismiss charges not alleged to be in

violation of any regulation or statute.

Charge 19 of the Air East complaint (R. 15) charges Air

East with intimidation of its pilots, but does not allege any

regulatory or statutory provision which allegedly pertains

to the offense. The Board has consistently held, except for

this case, that no punitive action could be taken against a

certificate holder unless there was a violation of a specific

regulation. Administrator v. Buchanan, 45 C.A.B. 973

(1966); Administrator v. Babbitt, 1 N.T.S.B. 1305, 1307

(1971).

Furthermore, there were a number of charges alleged in

the complaints accusing the petitioners of violating instru-

ment approach procedures ‘‘approved’’ in Part 97 of the

federal air regulations (R. I 2, pars. 5 and 6; R. I 9, pars.

4(a) and (b); R. I 14, pars. 4(a) and (b); R. I 18, pars.

3(a) and (b)). Of course, instrument approach procedures

are not published in Part 97 or in the Federal Register and

therefore they cannot be regulatory. Andrews v. Knowl-

ton, 509 F. 2d 898, 905 (2d Cir. 1975), pet. for cert. filed

March 26, 1975 (Docket No. 74-1217). But, in any event,

Part 97 (14 C.F.R.) deals only with ‘‘prescribed’’ proce-

dures and not ‘‘approved’’ procedures. That this is more

than a mere semantic difference is disclosed by FAA man-

ual ‘‘Terminal Air Traffic Control,’’ order 7110.8C pub-

lished 1 January 1973 as amended. Note 4 to Section 1020

thereof provides:

“A ‘prescribed’ instrument approach procedure is one

published in FAR Part 97 and available for public

use. An ‘approved’ instrument approach procedure

is one issued to one or more operators for their use.

It is not published in FAR Part 97, but is furnished

to specific operators and the ATC facilities involved.

‘Approved’ instrument approaches are not restricted

to use only by the operator’s to whom issued; ATC

is not responsible for determining if an operator/pilot

requesting such approach has obtained necessary ap-

proval for its use.”’

Under the FAA’s own definitions, an “approved’’ pro-

cedure is not regulatory, and therefore under the above-

cited Board precedent it could not constitute a regulatory

violation for which a sanction could be imposed. Here

again, the Board ignored its own precedent, and the Court

of Appeals ignored the entire issue.

D. The Administrator supplied the Board and the

Law Judge with prejudicial material outside of

the record.

At the close of the hearing on March 22, 1974, the at-

torney for the Administrator presented to the Law Judge

a copy of a letter sent that day from the Administrator to

NTSB Chairman John H. Reed. This letter contained cer-

tain prejudicial and defamatory remarks concerning the

petitioners and also an implied criticism of the Law Judge’s

actions with respect to certain rulings he made as to the

production of witness statements (R. I 248-258). The

receipt of this letter eventually caused Chairman Reed to

disqualify himself from further proceedings herein (R. II

381-2). Petitioners’ motion to dismiss the complaints

herein because of the Administrator’s actions was denied

by the Law Judge (R. VII 357-370).

Since not one witness testified at the hearing as to any

of the acts (economic coercion) mentioned in the material

submitted by the Administrator, the presentation of this

material in the manner indicated was improper, unethical

and a blatant attempt to prejudice the rights of the peti-

tioners herein. Indeed, the Law Judge did convict Air

East on Charges 19 which related to alleged coercive acts.

Unfortunately, the Court of Appeals condoned this event

with a footnote to the effect that it did not think that the

material submitted was prejudicial. Cf. Nadiak v. Civil

Aeronautics Board, 305 F. 2d 588, 594 (Sth Cir. 1962).

Of course, the Chairman of the NTSB thought it so im-

proper (R. I 265-266) that he disqualified himself, and the

Law Judge questioned the propriety of submitting such

material to him (R. VII 366-368).

It is well acknowledged that Government misconduct is

a proper basis upon which to dismiss indictments. United

States v. Russo, Crim. No. 9373 (C.D. Cal. 1973); United

States v. Banks, 16 Crim. L. Rep. 2090 (D. S.D. October

9, 1974) ; ef. United States v. McCord, —— F. 2d (D.C.

Cir. Dec. 12, 1974), slip opinion pp. 22-28, 43 Law Week

2257 ; Camero v. United States, 375 F. 2d 777 (Ct. Cl. 1967).

The only way that the effect of such prejudicial behavior

and misconduct could have been removed from the proceed-

ings herein was to dismiss the complaints and it was error

not to have done so.

E. Inadequate findings of fact, conclusions and the

reasons therefor.

Section 421.32(b) of the Board’s regulations set forth

certain requirements that shall be contained in the Law

Judge’s initial decision. These requirements are:

“The initial decision shall include a statement of

findings and conclusions, as well as the reasons or

bases therefor, upon all material issues oi fact (in-

cluding credibility of witnesses, where such finding is

material), law, or discretion, presented on the record,

and the appropriate sanction or denial thereof.” 14

C.F.R. § 421.32(b).

Unfortunately, the findings herein do not meet the re-

quirements of 4 421.32(b). In fact, there are no findings as

such—only a rambling summary of the testimony (Ap-

pendix D).

As Mr. Justice Brennan pointed out on a prior occasion,

where findings are no more than a summary of the evidence,

they are inadequate (Delaware, L. d W. R. Co. v. City of

Hoboken, 10 N. J. 418, 427, 91 A. 2d 739, 743 (1952)), and

the matter should have been remanded for specific findings,

or the Board should have issued new findings pursuant to

§ 421.36 (14 C.F.R.). Carey v. Civil Aeronautics Board,

275 F. 2d 518 (1st Cir. 1960) ; Braniff Airways, Inc. vy. Civil

Aeronautics Board, 306 F. 2d 739 (D.C. Cir. 1962);

Saginaw Broadcasting Co. v. Federal Communications

Commission, 96 F. 2d 554 (D.C. Cir. 1938); American

Smelting & Refining Co. v. Federal Power Commission, 494

F. 2d 925, 944-945 (D.C. Cir. 1974) ; 2 Davis, Administrative

Law Treatise, Chapter 16 (1958, 1970 Supp.).

The Court of Appeals again gave this deficiency foot-

note treatment by remarking that it thought the Law

Judge’s decision to be “comprehensive and unusually well-

detailed” (Appendix B). However, an examination of

the findings herein has to leave one wondering if the term

“finding of fact” has taken on a new meaning. For ex-

ample, with respect to the complaint against petitioner

Wilkinson, the Law Judge’s findings with respect to

Charge 3(h) were: The charge is supported by the evi-

dence and it is so found”; and with respect to Charge 3(i) ;

“The evidence supports this charge and it is so found.”

How can these be findings of fact?

By pointing out the specific findings above, petitioners

do not imply that they agree that the other findings are

correct. Indeed, they contest all the findings as being

inadequate because the “findings” only state what various

people testified to, no specific acts or events are detailed,

and are conclusory as opposed to factual.

In addition, the Law Judge made findings based upon

non-existent testimony. For example, the Law Judge

found that petitioner Tallent violated Charge 4(e) (Ap-

pendix D, p. A117) based upon the testimony of the wit-

nesses Montague and Sayther, but neither one testified

against Tallent on this subject. Likewise, petitioner

McKinney was found to have violated Charge 4(a) based

upon the testimony of Montague (Appendix D, p. A119),

but an examination of the record reveals that Montague

never testified against McKinney on this charge. Like-

wise, the Law Judge convicted petitioner Wilkinson of

Charge 3(a) based upon the testimony of the witnesses

Howell and Dunn (Appendix D, pp. A124-A125), yet the rec-

ord reveals that these witnesses gave no testimony against

Wilkinson on this charge. Petitioner’s citation of similar

defects in the evidence relating to Charge 8 of the Air East

complaint were characterized by the Board as an attempt

to “undermine” the testimony and evidence {Appendix C,

p. A63).

Furthermore, findings that someone made an “illegal

approach” or an “unauthorized approach” or utilized an

“unauthorized procedure” are meaningless and do not

adequately advise the reviewing court of the grounds for

the administrative action. Securities and Exchange Com-

mission v. Chenery Corp., 318 U. S. 80, 94, 63 S. Ct. 454,

87 L. Ed. 626 (1943); Commissioner v. Duberstein, 363

U. S. 278, 292-293, 80 S. Ct. 1190, 4 L. Ed. 2d 1218

(1960) ; ef. Schneiderman vy. United States, 320 U. S. 118,

129-131, 63 S. Ct. 1333, 87 L. Ed. 796 (1943); 5 U.S.C.A.

§557(c)(3)(a). This is a classic case which demands

remand for adequate findings and the reasons therefor.

F. Failure to apply correct principles of law.

Although the findings herein are totally inadequate to

advise the reviewing court if the agency applied the cor-

rect principles of law, several salient errors are disclosed

which warrant reversal.

For example, the administrative agency failed to apply

the proper standard in reviewing the testimony of the

government witnesses. An examination of the Law

Judge’s opinion reveals that he cited and relied upon only

that testimony by government witnesses which was ad-

verse to petitioners. There is no mention of the instances

where government witnesses contradicted each other or

gave favorable testimony to the petitioners. That testi-

mony was ignored by the Law Judge and the Board. Cf.

Administrator v. Bradway, 45 C.A.B. 956, 968-969 (1966).

This was error because the record as a whole must be

considered—i.e., both the good and the bad, Universal

Camera Corp. v. N.L.R.B.. 340 U. 8S. 474, 488 71 S. Ct.

456, 95 L. Ed. 456 (1950); 5 U.S.C.A. § 706; and when

an administrative agency accepts carte blanche all of the

adverse testimony of the government witnesses, ignores

testimony favorable to petitioners given by said witnesses,

and totally rejects all of petitioners’ evidence, a reviewing

court should not casually accept this as a simple choice of

credibility. N.L.R.B. v. Union Pacific Stages, 99 F. 2d

153, 158 (9th Cir. 1938).

Furthermore, the administrative agency herein applied

the wrong standard for reviewing the testimony by the gov-

ernment witnesses. The Law Judge refused to give any

consideration to the fact that all of the Government’s wit-

nesses were testifying pursuant to a promise by the FAA

that their cooperation would be taken into consideration

with respect to their own violations.** With respect to this

point, the Law Judge stated:

‘*Much also was made of the fact that during the

course of the various depositions which were obtained

from witneses by the Administrator, each witness was

told that he would not get immunity by testifying but

his cooperation would be taken into consideration by

the Administrator in determining any sanction im-

posed on him or any enforcement action taken against

him, and that therefore each witness came in and ex-

posed himself as having committed these various vio-

lations on the strength that he would be released from

any obligation in connection with them.

It is an interesting theory but not a very realistic

one. It implies that the Federal Aviation Administra-

tion conspired with these various witnesses and en-

couraged them to falsify their testimony so that

charges could be made against Air East and the other

respondents.

That is the only extension of such a defense I can

reach and I find the argument without any merit

whatsoever.” (R. II 398)

While the Law Judge’s innocence of the real world (ap-

parently shared in by the Board) is refreshing, it is directly

** At no time during the trial did the Administrator’s attorney

ever voluntarily disclose any information relating to the promises

made to government witnesses for their cooperation. In United

States v. Mitchell, 372 F. Supp. 1239, 1257 (S.D.N.Y. 1973), it

was held that all “favors or deals” between the Government and

its witnesses had to be disclosed upon the witness being called to

testify. The lack of candor displayed by the Administrator herein

is also reflected by his attorney’s representation to the Court that

no exculpatory material existed, when in fact there was such evi-

dence (R. XII 2116-25). Cf. Brady v. Maryland, 373 U. S. 83,

S. Ct. 1194, 10 L. Ed. 2d 215 (1993).

contrary to all rules by which such testimony should be

evaluated. Thus, in Giglio v. United States, 405 U. S.

150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972), this Court

held that it was reversible error for the jury not to be

made aware of and to consider in its deliberations on

credibility the fact that a promise of leniency had been

made to a key witness in return for his testimony. See

Napue v. Illinois, 360 U. S. 264, 79 S. Ct. 1173, 3 L. Ed.

2d 1217 (1959); United States v. Murray, 445 F. 2d 1171,

1176 (3d Cir. 1971).

The Third Circuit recognized the validity of petitioners’

point but surmised “we have no doubt that this factor was

properly evaluated [by the Law Judge] before the deci-

sion was announced” (Appendix B, p. Al6). How the Third

Circuit could make this pronouncement in light of the

above-cited quotation by the Law Judge at the time he

announced his decision is inexplicable.**

Finally, with respect to credibility, both the Law Judge

and the Third Circuit pointed out that ‘testimony of Air

East’s weather observer was totally unworthy of belief.

In some magical fashion the brush that tarred this witness’

testimony also tarred all testimony favorable to peti-

tioners. What the Law Judge, the Board and the Third

Cireuit all overlooked or ignored was the fact that the

weather observer was called by the Government as its wit-

ness. Since the Government called the weather observer

to testify, the Administrator vouched for his credibility

(United States v. Jannsen, 339 F. 2d 916, 919 (7th Cir.

1964) ), and since the witness was never declared to be hos-

tile (R. VI 276-8), it was improper for the Government to

15 Likewise inexplicable is the statement by the Court of Ap-

peals that “the only evidence presented in favor of the petitioners

was their own testimony.” This is false and can only reflect the

fact that the Court of Appeals did not read the record. See, for

example, R. VIII 969, 1026, 1048, 1065; IX 1322, 1328, 1335;

X 1702.

impeach him. Rothschild v. New York, 388 F. Supp. 1346,

1349 (S.D.N.Y. 1975); Shreve v. Hot Shoppes, Inc., 184

F. Supp. 436, 439 (D.D.C. 1960). Petitioners never called

this witness to testify on their behalf.

It is obvious from the foregoing that erroneous stand-

ards were used throughout the proceedings below to judge

credibility, and such an error is a denial of due process

which requires reversal. As the Court of Appeals held in

Breeden v. Weinberger, 493 F. 2d 1002 (4th Cir. 1974):

“. . . administrative findings based on oral testi-

mony are not sacrosanct, and if it appears that credi-

bility determinations are based on improper or irra-

tional criteria they cannot be sustained.” (493 F. 2d

at 1010.

Accord, National Labor Relations Board v. Florida Citrus

Canners Cooperative, 311 F. 2d 541 (5th Cir. 1963);

Portable Electric Tools, Inc. vy. National Labor Relations

Board, 309 F. 2d 423 (7th Cir. 1962).

The Court of Appeals also misapplied the applicable

legal principles involved with respect to the review of ad-

ministrative agency decisions. Cf. Greater Boston TV v.

F.C.C., 444 F. 2d 841, 850-853 (D.C. Cir. 1970). Although

recognizing the substantial evidence test (49 U.S.C.A.

§ 1486(e)), the Court of Appeals stated:

‘“‘Tf only a single witness had provided this type of

evidence, there might be difficulty in determining

whether it was sufficiently probative to sustain the

burden of proof. However, the cumulative effect of

the testimony of many witnesses who appeared and

their complementary corroboration made it possible

for the fact finder to decide the contested issues.’’

(Appendix B)

Reduced to basics—the Court of Appeals was acknowledg-

ing that the evidence was ‘‘junk’’ testimony, but because

there was a great deal of junk, substantial evidence existed.

Petitioners would submit that it is the ‘‘quality’’ of the

evidence and not the ‘‘quantity’’ that must be considered

in determining whether substantial evidence existed.

In addition to the previously mentioned erroneous prin-

ciples of law, the Law Judge and the Board also found

violations of certain regulations despite petitioners’ claims

that the procedures utilized had been approved by FAA

officials. The Law Judge took the position that ‘‘. . . it

is fairly well established that the government cannot be

estopped to deny the authority of any employee to alter its

practices” (Appendix D, p. A102). This is clearly not the

law. United States v. Pennsylvania Industrial Chemical

Corp., 411 U.S. 655, 673-4, 93 S. Ct. 1804, 36 L. Ed. 2d 567

(1973); Administrator v. Fabian, 31 C.A.B. 1106 (1960).

Review herein should clearly have considered the principle

that no violation could be found where the procedure was

specifically approved by FAA officials, especially when the

Act vests authority in the Administrator (or his designee)

to grant exemptions from any rule or regulations. 49

U.S.C.A. §1348(e). The Court of Appeals ignored the

issue.

Another erroneous principle applied below related to the

alleged falsification of record. The Board had previously

taken the position that any falsification would have to be

of a material fact in order to constitute a regulatory viola-

tion. Administrator v. Cochran, 1 N.T.S.B. 136, 138 fn. 4

(1967). But one may search all of the opinions below for

any finding that the alleged falsifications herein were of

material facts. The opinions below are devoid of any such

statement.

Many of the charges herein” related to the issue of

whether or not Air East’s management knew that one of

16 See Charges 12, 13, 14 and 15 of the Air East complaint

(R. I 3-4).

its employees was apparently forwarding some false check-

ride forms to the Pittsburgh GADO. However, any activi-

ties of the employee as an FAA-designated check pilot were

carried out in his role as an FAA inspector and not as an

Air East employee (R. V 133-4; VIII 717-8). In fact, Mr.

Fahey, Chief of the GADO office in Pittsburgh, acknowl-

edged that when such checks are given the check pilot is

carrying on an FAA function rather than a company func-

tion and that ‘‘He’s working for us’’ (R. VIII 718).

In light of this testimony, petitioner Air East submits

that when its employee was performing his FAA-desig-

nated duties he was a ‘‘borrowed servant’’ working for the

United States Government. In Denton v. Yazoo & Mis-

sissippi Valley Railroad Co., 248 U. S. 305, 52 S. Ct. 141,

76 L. “4. 310 (1932), this Court heid that a railroad em-

ployee who was performing duties for the Post Office De-

partment was a borrowed servant and the railroad was not

responsible for his acts. As the Court stated the rule:

‘When one person puts his servant at the disposal

and under the control of another for the performance

of a particular service for the latter, the servant, in

respect of his acts in that service, is to be dealt with as

the servant of the latter and not of the former.’’ 284

U.S. at 308.

Since no legal relationship existed between Air East and

its employee when he was in a borrowed-servant status,

Air East would not be responsible for his acts. The Board

and the Third Circuit ignored this legal principle.

Based upon the foregoing, it is clear that incorrect legal

standards were applied and correct legal principles were

ignored by the Board and by the Court of Appeals. Find-

ings based upon an erroneous application of the law cannot

stand. Securities and Exchange Commission v. Chenery

Corp., 318 U. S. 80, 94, 63 S. Ct. 454, 87 L. Ed. 626 (1943).

G. Failure to give adequate time to prepare an appeal

and grant oral argument.

The Board’s rules require an appeal to be taken within

two days of the Law Judge’s initial decision and a brief

to be filed on appeal within five days thereafter. 14 C.F.R.

§ 421.41(a)(b). How is it physically possible with a tran-

script of some 4,000 pages and 150 exhibits containing sev-

eral thousand pages to prepare an appellate brief in five or

seven days? Again, this is a failure to provide a reasonable

opportunity to be heard and constitutes a denial of due

process of law.

Furthermore, the petitioners’ request for oral argument

before the Board on their appeal was denied on the basis

‘‘that the issues in this proceeding have been exhaustively

litigated and, in our view, no useful purpose would be

served by further argument’’. While petitioners recognize

that there is no absolute right to oral argument, whether

the failure to provide for it constitutes a denial of due

process will depend upon the particular cireumstances of

each individual case. Federal Communications Commission

v. WIR, 337 U. S. 265, 275-277, 69 S. Ct. 1097, 93 L. Ed.

1353 (1949).

Due process required oral argument in the instant case

because it is clear that the Board never had the opportunity

to properly review the points raised by petitioners on their

appeal herein. Petitioners mailed their brief from New

York on Friday, May 3, 1974. The brief was not received

by the Board until Monday, May 6, 1974. Yet, by May 10,

1974, the Board would have the reviewing court believe that

it had fully reviewed petitioners’ brief and the legal au-

thorities cited therein; reviewed 4,000 pages of testimony

and hundreds of exhibits to determine if the findings were

supported by a preponderance of the reliable, probative and

substantial evidence and prepared and/or reviewed the con-

tents of its 57-page opinion and order.

Any federal appellate court knows that such a process is

physically impossible; yet, this is the type of justice that

suffices in the NTSB, where apparently the philosophy

reigns supreme that so long as “air safety” is involved any

abuse of individual rights will be tolerated. The time has

come to call a halt to such abuses.

The official minutes of the NTSB reveal that the Board

met on May 10, 1974, for a total of 55 minutes and that its

discussions related to three separate items on the agenda.

The only legal representative present was NTSB attorney

Stuhldreher, who could hardly be expected to present

petitioners’ position since he apparently had already

drafted the Board’s adverse decision (R. II 457). Clearly,

the only way that the Board could have become aware of

petitioners’ position herein was to grant oral argument,

and the failure to do so constituted a denial of due process.

Londoner v. Denver, 210 U. S. 373, 386, 28 S. Ct. 708, 52

L. Ed. 1103 (1908); WIBC vy. Federal Communications

Commission, 259 F. 2d 941 (D.C. Cir. 1958), cert. den. 358

U.S. 920, 79 S. Ct. 290, 3 L. Ed. 2d 239 (1958).

H. Refusal to pass upon the constitutionality and ap-

plication of various federal air regulations.

Although the petitioners raised issues pertaining to the

constitutionality and the application of various federal air

regulations,” the Board refused to review this issue and the

Court of Appeals ignored it.

The Board has consistently held in safety enforcement

proceedings that it lacks jurisdiction to entertain attacks

on the validity or reasonableness of regulations promul-

gated by the FAA Administrator. Appendix C, fn. 108;

_ ™' The federal air regulations challenged as being unconstitu-

tionally vague were 14 C.F.R. §§ 91.9, 91.29, 91.31 and Part 97

while those alleged to be inapplicable to the facts herein were 14

C.F.R. §§ 43.5, 43.9, 43.13, 43.15, 91.116, 91.117, 91.165, 135.43,

135.111 and 145.61.

Administrator v. Roberts, 1 N.T.S.B. 1627, 1628 (1972);

Administrator v. Lloyd, 1 N.T.S.B. 1826, 1828 (1972). If

the NTSB will not pass upon the constitutionality of the

Administrator’s regulations, then obviously the only re-

course the petitioners have is the courts. But here the

Court ef Appeals ignored the entire issue.

While admittedly these regulations are technical in

nature, only the courts remain to give any legal interpreta-

tion thereto and protect the rights of those who are

prosecuted. Pike v. Civil Aeronautics Board, 303 F. 2d

353 (Sth Cir. 1962); United States v. Ozark Air Lines, Inc.,

374 F. Supp. 234 (E.D. Mo. 1974), aff'd 506 F. 2d 526 (8th

Cir. 1975). As the Court of Appeals for the Seventh Cir-

cuit ruled in Bence v. Breier, 501 F. 2d 1185 (7th Cir. 1974):

“| | we do not think it just to simply defer to a

mere governmental assertion of impracticality respect-

ing rules challenged for vagueness. Due process de-

mands that each challenged rule be examined in its

context to determine whether in fact further specificity

would be feasible or practicable.” 501 F. 2d at 1189

fn. 2.

The constitutionality and application of the challenged

regulations should be judicially reviewed.

I. Revocation was not an authorized penalty.

Petitioners submit that their certificates could not be

revoked because they had not violated any federal air

regulation that provides for a penalty of revocation. The

Court of Appeals affirmed the revocations on the theory

that they ‘“‘were within the scope of authority granted to

the Board. . .”

We note initially that the Board is not given the power

to revoke, but only to affirm, amend, modify or reverse

the Administrator’s initial decision to revoke. 49 USC. A.

§ 1429. It is petitioners’ contention that the initial decision

by the Administrator was improper since it was contrary

to his published regulations.

There is no doubt that the statute gives the Admin-

istrator the power to revoke. 49 U.S.C.A. 41429. How-

ever, the Administrator has published regulations that he

will revoke if federa! air regulations (14 C.F.R.) §§ 61.6,

61.20(b), 61.48, 65.18, 65.20 and 67.20 are violated. No

other federal air regulations set forth revocation as a

possible penalty.

Since the Administrator has given public notice as to

the penalty of revocation for only certain specified viola-

tions, and the petitioners did not violate any of these

regulations, it is clearly improper to permit an ad hoc

revocation in this case. As the Fourth Circuit recently

held en banc in Cross v. United States, 512 F. 2d 1212 (4th

Cir. 1975):

“Due process on the issue of sanction requires that

the punishment follow rationally from the facts, be

authorized by the statute and regulations, and aim

toward fulfillment of the Act’s purposes.” (Emphasis

added.) 512 F.2d at 1217-1218.

And as Mr. Chief Justice Burger found in another context:

‘In short, we construe, the pertinent statutory scheme

as authorizing debarment but as not authorizing de-

barment without either regulations establishing stand-

ards and a procedure which are both fair and uniform

or basically fair treatment of appellants.” Gonzalez

v. Freeman, 334 F. 2d 570, 580 (D.C. Cir. 1964).

Cf. Pike v. Cwil Aeronautics Board, 303 F. 2d 353 (8th

Cir. 1962); Waters v. Peterson, 495 F. 2d 91, 100-101

(D.C. Cir. 1973); Bence v. Breier, 501 F. 2d 1185 (7th

Cir. 1974). Considering the totality of unfairness and

lack of due process present throughout the entire p:o-

ceedings herein, it was improper to revoke the petitioners’

certificates. Blackwell College of Business v. Attorney

General, 454 F. 2d 928 (D.C. Cir. 1971).

CONCLUSION

For the reasons stated, a writ of certiorari should

issue to review the judgment and opinion of the Court

of Appeals for the Third Circuit.

Respectfully submitted,

Water E. RuTHERFORD

Attorney for Petitioners

One State Street Plaza

New York, N. Y. 10004

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.