Appendix — Nolan v. National Transportation Safety Board

|

D

OCT 27 4977

APPENDIX. iF

me HAEL RODAK, JR, C1 Ep

— ad

IN THE

SUPREME COURT OF THE UNITED STATES

‘ OCTOBER TERM, 1977

No.9'g=6 13

RICHARD CLEVELAND NOLAN,

Petitioner,

vs.

NATIONAL TRANSPORTATION SAFETY BOARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

APPENDIX

Initial Decision of Administrative

Opinion and Order of the National

Transportation Safety Board filed

3 ee ere eee

Order of National Transportation

Safety Board Denying Petition for

ee filed January 5,

Pe 6000604068 4600000 085 heeEe ee eees

Opinion of the Court of Appeals

TUPGe GOer Bee CNet enenasekeucas

Order of Court of Appeals Denying

Petition for Reconsideration filed

REED Gen TEC cacuseuctacsenens

cpr cami, i

15

17

3]

4]

UNITED STATES OF AMERICA

NATIONAL TRANSPORTATION SAFETY BOARD

WASHINGTON, D.C.

JOHN L. McLUCAS, ADMINISTRATOR

FEDERAL AVIATION ADMINISTRATION

Vs .

RICHARD L. NOLAN

Docket No. SE-3212

ORAL INITIAL DECISION

OF JERRELL R. DAVIS,

ADMINISTRATIVE LAW JUDGE

This proceeding was instituted before

the National Transportation Safety Board

pursuant to the provisions of Section 609

of the Federal Aviation Act of 1958, as

amended (49 USC 1429), and the Board Rules

of Practice in Air Safety Proceedings (49

CFR 821), by Richard C. Nolan, herein-

after referred to as Respondent, who

appealed from an Order of the Administra-

tor, Federal Aviation Administration, re-

voking his commercial pilot certificate.

The basis for revocation are set

forth in the complaint as follows:

(a) Violation of Section 91.24(b) of

the Federal Aviation Regulations (FAR), in

that Respondent operated an aircraft in

controlied airspace when such aircraft was

not equipped with automatic pressure al-

titude reporting equipment;

(b) Violation of Section 91.97(a)(1)

of the FAR, in that Respondent operated an

aircraft within a positive control area

when he did not operate under IFR at a

specific flight level assigned by ATC;

(c) Failure of Respondent to exer-

cise the degree of care, judgment and re-

sponsibility required of the holder of an

airman certificate; and

(d) Respondent's demonstration that

he lacks the qualifications required of a

uff.

holder of an airman certificate.

The alleged facts giving rise to

these charges are as follows:

(1) Respondent was on August 7, 1975,

and still is, the holder of Commercial

Pilot Certificate No. 355570.

(2) On August 7, 1975, Respondent

operated civil aircraft N2511U, a Cessna

337, as pilot-in-command on a passenger

carrying VFR flight in the vicinity of

Sterling, Colorado.

(3) Incident to said flight, Re-

spondent contacted Air Traffic Control

and reported his altitude to be 20,000

feet. At the time Respondent contacted

ATC, he had not received an IFR clearance

and was operating under visual flight

rules.

(4) At all times mentioned herein,

all altitudes in excess of 18,000 feet

MSL were within positive control air-

ie

Space.

(5) At all times mentioned herein,

Said aircraft was not equipped with a

transponder equipped with automatic

pressure altitude reporting capability.

(6) By reason of the foregoing facts

and Respondent's history of repeated

violations of the FAR, Respondent has den-

onstrated that he lacks the qualifications

required of the holder of a comnercial

pilot certificate.

Respondent, as stated in his filed

answer and amended at the hearing, has

admitted Paragraph (1) above. He has de-

nied the remaining paragraphs. He has al-

So denied that he violated the cited sec-

tions of the FAR and that he lacks qual-

ifications to hold an airman certificate.

The appeal was assigned to me for

Oral hearing and initial decision. Hear-

ing was held today in Denver, Colorado,

abe

Section 821.32 of the Board's Rules of

Practice in Air Safety Proceedings pro-

vides that, in proceedings under Section

609 of the Act, the burden of proof shall

be upon the Administrator.

Three witnesses testified on behalf

of the Administrator, and they sponsored

four exhibits. The Respondent elected

not to testify in his own behalf. His

counsel did, however, offer one exhibit.

The testimony and documentary evidence

deemed pertinent may be summarized as

follows:

Harold D. Peterson was the ATC

Specialist on duty at the Denver Air Route

Traffic Control Center on August 7, 1975,

and testified concerning his radio trans-

missions with the Cessna 337, the aircraft

involved in this proceeding. The trans-

cript of the recorded conversations be-

tween Controller Peterson and the Cessna

lie

337 are reflected in Exhibit A-1. That

exhibit indicates that the Cessna 337 re-

ported his position as approximately 20

miles east of Sterling, at which time he

requested an IFR clearence on its present

position to North Platte at an altitude

of 20,000 feet. On three occasions, upon

being questioned by the Witness Peterson,

the voice transmission from the Cessna

337 indicated an altitude of 20,000 feet.

Later, the aircraft was again requested

to advise its altitude, at which time a

response of 20,500 feet was given. When

advised by the Denver Center that the air-

craft should not be above 17,500 VFR, the

response received was that the Cessna 337

was checking its turbo system and would

like to continue to check it at that al-

titude, at which point the aircraft was

instructed to descend to 17,500 and to re-

quest an IFR clearance to go above such

ofa

altitude. Witness Peterson stated that at

no time was there any altitude read out in-

formation of the Cessna 337 displayed on

his radarscope. There were no mechanical

computer problems with the radar equip-

ment. This witness further testified that

positive control area (PCA) starts at

18,000 feet and extends upward to 60,000

feet. He described PCA as a "sterilized

area", which is so characterized as a

Safety factor. While he was aware of the

target function of the aircraft's trans-

ponder, no altitude function was display-

ed on his radarscope and he concluded

that automatic pressure altitude report-

ing equipment was either not present,

turned off, or inoperable.

Allen B. Robbins, General Aviation

Operations Inspector for the FAA GATO in

Broomfield, Colorado, conducted an in-

vestigation of the August 7, 1975 incident

tHe

as a result of receiving an incident re-

port from the Denver Center (Exhibit A-4).

This witness also sponsored Exhibits A-2

and A-3. With respect to Exhibit R-1,

sponsored by Respondent's counsel, In-

spector Robbins stated that he was sub-

sequently advised by Derek Lucas that the

correct altitude of the Cessna 337 was

20,000 feet at the time an IFR ciearance

was requested from the Denver Center.

This witness further testified that an

altitude of 12,000 feet would not be

appropriate for checking a turbo system

and that 20,000 feet would be more

appropriate. He also expressed the view

that a commercial pilot should be able to

read an altimeter and to know and be fam-

iliar with PCA. Each aircraft, he stated,

is under positive control in PCA to assure

Safety; otherwise, safety is diminished

to a considerable extent. He considers

ole

the violation with which Respondent is

charged as “extremely serious”.

Derek Lucas was the last witness to

testify on behalf of the Administrator.

He is the holder of a commercial pilot

certificate with the usual ratings and

has accumulated some 2800 hours flight

time. He occupied the right seat of the

Cessna 337 on August 7. He stated that

the Cessna 337 was equipped with a trans-

ponder, but had no automatic pressure

altitude reporting capability. When the

aircraft took off from Weld County Air-

port, Greeley, Colorado, Mr. Lucas was at

the controls and continued at the con-

trols of the aircraft until it leveled

off at 11,500 feet, at which time the

Respondent assumed control of the air-

craft and Witness Lucas handled the radio

transmissions. He further testified that

a flight plan was filed and that Re-

sie

spondent was shown thereon as the pilot-

in-command. He stated that after Re-

spondent assumed control of the aircraft

at 11,500 feet, the Respondent continued

a steady climb to 20,000 feet. The al-

timeter had been set to the field el-

evation of the Weld County Airport and,

when the aircraft passed through an al-

titude of 18,000 feet and was still

climbing, Witness Lucas set the altimeter

at 29.92 standard barametric pressure.

He testified that he made all of the voice

transmissions from the Cessna 337 as re-

flected in Exhibit A-1. He conceded that

he wrote the letter (Exhibit R-1) in-

dicating that the aircraft's altitude was

12,000 feet instead of 20,000 feet. He

Stated that such information was erronnous

and the purpose of the letter was a cover-

up for Respondent. He corroberated In-

spector Robbins' statement that he sub-

xe

sequently informed the Inspector that

the correct altitude was 20,000 feet at

the time an IFR clearance was requested

from the Denver Center. He also admitted

that he logged his time in his log book

as the pilot-in-command.

The credibility of Witness Lucas'

testimony is crucial to resolution of the

issues raised in this proceeding. Having

carefully observed his demeanor on the

stand here today in conjunction with the

other evidence of record, I accept his

testimony under oath as credible and re-

liable. The mere fact that he may have

distorted the facts in his letter of

September 20, 1975 (Exhibit R-1), does

not, in and of itself, convince me that

his testimony here today was not forth-

right and honest. The radio trans-

missions between the aircraft and Denver

Center support the testimony adduced by

atte

this witness on the stand here today.

In this respect, it should be noted that

the Respondent, in his letter of Septem-

ber 12, 1975, (Exhibit A-2), admits that

he was flying the Cessna 337 on August 7,

1975, and that he had "a young man with

me who was sitting on the right side and

he was doing the radio calling." It

seems incredible to me that Respondent,

being aware at that time of the charges

against him, would not have made it clear

in this letter that he was not the pilot-

in-command of the aircraft. This defense

of Respondent not being pilot-in-command

impresses me as an afterthought. In

short, it's my conclusion that the testi-

mony of the two witnesses preceeding

Witness Lucas and the documentary evidence

show clearly that the statement made in

Witness Lucas' letter of September 20,

1975, was nonfactual and was intended as

it.

a cover-up.

Turning to the question of sanction,

the Administrator proposed the ultimate

sanction based on the charges set forth

in the Complaint - - which I feel have

been established by a preponderance of

the reliable evidence --- viewed in light

of Respondent's history of prior vio-

lations. The record reflects that in 15

instances, Respondent has either paid a

civil fine for FAR infractions or has had

certificate action taken against him.

With respect to precedent, the Board has

generally upheld the revocation of air-

man certificates only in certain types of

cases such as those involving (a) flying

while intoxicated, (b) student pilots

carrying passengers, (c) falsification of

applications of records, (d)numerous and/

or flagrant or deliberate violations. The

Board has also affirmed revocations in

ie

cases where the established violations

considered in conjunction with a history

of prior violations were deemed to

Warrant that sanction. Administrator vs.

Smoligan, EA-423, and Administrator vs.

McCarthy, EA-456. Respondent's vio-

lation history, in my opinion, reflects

* cavalier attitude toward compliance

with the FAR and demonstrates a pattern

of flagrant disregard for the regulations,

I feel that the Administrator has shown

through a preponderance of substantial,

reliable and probative evidence that the

Respondent violated the cited sections of

the FAR, and that his history of prior

violations demonstrates that he lacks the

qualifications required of a holder of a

commercial pilot certificate.

Contentions of the parties as to

fact or law which are not specifically

discussed hereinabove have been given due

-14-

consideration and are found to be either

not materially significant or not just-

ified.

FINDINGS AND ORDER

Based on all evidence of record, I

find that (1) the Administrator has

established by a preponderance of the

evidence all of the allegations set forth

in the Complaint, and (2) safety in air

commerce or air transportation and the

public interest require affirmation of

the Administrator's Order of Revocation.

IT IS ORDERED, That the Administra-

tor's Order of Revocation be, and it is

hereby, affirmed.

IT IS FURTHER ORDERED, That, unless

the Board on its own initiative decides

to review this decision or Respondent

files a timely Notice of Appeal, this

Order shall become effective July 6,

1976, and Respondent shall on that date

ste

phys.cally surrender his certificate to SERVED: October 20, 1976

an appropriate representative of the FAA NTSB Order No. EA-910

pursuant to Section 61.19(f) of the FAR.

. UNITED STATES OF AMERICA

Dated at Denver, Colorado, this 16th NATIONAL TRANSPORTATION SAFETY BOARD

WASHINGTON, D.C.

day of June, 1976.

Adopted by the

JERRELL R. DAVIS NATIONAL TRANSPORTATION SAFETY BOARD

Administrative Law Judge at its office in Washington, D. C.

on the 13th day of October 1976.

a

JOHN L. McLUCAS, Administrator,

Federal Aviation Administration,

Complainant,

Docket

vs. SE-3212

RICHARDL CLEVELAND NOLAN,

a i i ee Se See ee ee

7»

@

wn

oo

Oo

Ss

oe.

m

=

ct

OPINION AND ORDER

Respondent has appealed from the

initial decision of Administrative Law

Judge Jerrel R. Davis, issued orally at the

conclusion of the hearing held in this

roceeding on June 16, 1976.1/ The law

p

I7 An excerpt from the hearing transcript

Containing the initial decision is

attached.

site

ot3a

as pilot-in-command civil aircraft

N2511V, a Cessna 7337B, on a passenger

carrying visual flight rules (VFR) flight

in the vicinity of Sterling, Colorado;

that during said flight respondent re-

ported the aircraft to be at an altitude

Of 20,000 feet, which is within positive

control airspace;</ and that respondent

was in violation of the following pro-

visions of the Federal Aviation Reg-

ulations (FAR):

Section 91.24(b),3/ in that he op-

erated an aircraft within a positive

2/ Altitudes in excess of 18,000 feet

m.S.1. are within positive control air-

space.

3/ § 91.24(b), in pertinent part, reads

as follows:

wr § 91.24 ATC transponder equipment.

* * a * *

(b) Controlled airspace: a1] air-

craft. Except for persons operating

helicopters in terminal control areas at

or below 1,000 feet AGL under the terms

of a letter of agreement, and except for

persons operating gliders above 12,500

feet m.s.1. but below the floor of the

positive control area, no person may

-18-

(footnote 3/ continued)

operate an aircraft in controlied air-

space, after the applicable dates pre-

scribed in paragraphs (b)(1) through (b)

(4) of this section, unless that aircraft

is equipped with an operable coded radar

beacon transponder having a mode 3/A

4096 code capability, replying to mode

3/A interrogation with the code specified

by ATC, and is equipped with automatic

pressure altitude reporting equipment

having a mode C capability that auto-

matically replies to mode C interroga-

tions by transmitting pressure altitude

information in 100-foot increments.

This requirement applies--

(1) After January 1, 1975, in Group

I Terminal Control Areas governed by

§ 91.90(a);

(2) After July 1, 1974, in Group II

Terminal Control Areas governed by §91.90

b);

iat (3) After July 1, 1975, in Group III

Terminal Control Areas governed by § 91.90

(c), except as provided therein; and

(4) After July 1, 1974, in all con-

trolled airspace of the 48 contiguous

States and the District of Columbia,

above 12,500 feet m.s.1., excluding the

airspace at and below 2,500 feet a.g.1.

-19-

control airspace when it was not equipped

with automatic pressure altitude report-

ing equipment; and Section 91.97(a)(1),4/

in that he operated an aircraft within a

positive control area but not under IFR

at a specific flight level assigned by

air traffic control. The law judge con-

cluded that, upon consideration of the

foregoing violations in conjunction with

respondent's history of prior violations,

safety and the public interest require

affirmation of the Administrator's order

revoking respondent's commercial pilot

certificate.

47 Section 91.97, in pertinent part, reads

as follows:

"§ 91.97 Positive control areas and

route segments.

(a) Except as provided in paragraph

(b) of this section, no person may op-

erate an aircraft within a positive con-

trol area, or positive route segment des-

ignated in Part 71 of this chapter, un-

less that aircraft is--

(1) Operated under IFR at a specific

flight level assigned by ATC;"

-20-

In support of his appeal, re-

spondent (through counsel) has filed an

appeal brief wherein he argues that the

preponderance of evidence does not

support the law gudge's findings (a) that

respondent was pilot-in-command of N2511V

at the time of the alleged violations,

(b) that respondent contacted air traffic

control and reported his altitude to be

20,000 feet, and ({c) that al? altitudes

in excess of 18,000 feet were within

positive control airspace. Respondent

also maintains that the law judge erred

in finding credible the testimony of one

of the Administrator's witnesses (the

other occupant of the plane) and in

concluding that respondent's certificate

should be revoked.

The Administrator, in turn, has

filed a reply brief opposing respondent's

appeal and urging that the initial de-

ofta

cision be affirmed.

Upon consideration of the briefs of

the parties, and the entire record, the

Board has determined that safety in air

commerce or air transportation and the

public interest require affirmation of

the Administrator's order of revocation.

We adopt as our own the findings of the

law judge.

The principal witness, appearing on

behalf of the Administrator, was the per-

S$On occupying the right seat of N2511V

on the flight in question.2/ This wit-

ness testified that respondent was listed

on the VFR flight plan, and in fact acted,

as pilot-in-command; that the respondent

climbed the plane to an altitude of

20,000 feet, whereupon, at respondent's

request, the witness called ATC and asked

5/ He was traveling on the flight for the

purpose of picking up an aircraft at the

destination and ferrying it back to the

originating point.

-22-

for an IFR clearance, reporting the

flight's altitude (accurately) to be

20,000 feet, and that the aircraft trans-

ponder did not have automatic pressure

altitude reporting capabilities.

As respondent stresses in his appeal

brief, the aforesaid witness made state-

ments which were inconsistent with, or

contradictory of, portions of his testi-

mony .2/ The law judge, recognizing that

the credibility of this witness was

“crucial to the resolution of the issues

in this proceeding"

6/ This witness wrote a letter to the FAA

during the investigation of the incident

wherein he stated that his radio report to

ATC that the aircraft was at 20,000 re-

sulted from a misreading of the altimeter

due to parallax, whereas the actual al-

titude of the plane at that time was 12,

000 feet. He explained at the hearing that

he prepared this letter (Exhibit R-1) at

the behest of respondent, who thereby

hoped to avert an enforcement action. At

another point in his testimony, this

witness stated that he logged his time on

the flight as pilot-in-command.

site

(Tr.151-152), discussed his testimony,

including the various inconsistences and

contradictions, in considerable detail.

The law judge concluded that "having

carefully observed his demeanor on the

Stand today in conjunction with the other

evidence of record, I accept his testi-

mony under oath as credible and reliable"

(Tr.152). The Board has no reason to dis-

turb that finding, resting as it does on

a credibility assessment which is ex-

clusively within the province of the trier

of fact.

We also note that the testimony of

the above witness, apart from being found

credible by the law judge, is supported

by other evidence of record on key points.

For example, with respect to the pilot-in-

command issue, the Administrator intro--

duced into the record a letter sent to the

FAA during the incident investigation in

-24-

which respondent stated that "there was

a young man with me who was sitting on

the right side and he was doing the radio

calling" ,_/ which statement seems to be-

lie respondent's contention that the

right seat occupant was acting as the

pilot-in-command. In addition, the re-

peated transmissions from N2511V report-

ing their altitude as 20,000 feet®/ which

undercuts respondent's claim that the re-

port that the plane was at 20,000 feet

was a mistake and that the plane was

actually at 12,000 feet. Finally, the

absence of an altitude reporting cap-

ability on the transponder of N2511V is

7/ Exhibit A-2.

8/ There were approximately 8 such trans-

missions, as reflected by the certified

transcription(Exhibit A-1). The fact that

these radio reports were made by the right

seat occupant, rather than by respondent

(as charged in the complaint), is not

fatal to the Administrator's case since

respondent, as pilot-in-command, was

responsible for the plane being at an

altitude of 20,000 feet.

-25-

Supported by the controller's testimony

that he did not observe any altitude in-

formation associated with the target of

respondent's plane as depicted on the

controller's radar scope.

In view of the foregoing, the Board

concludes that the Administrator has

established, by a prepondernance of the

reliable, probative, and substantial

evidence of record, that respondent was

pilot-in-command of an aircraft which was

operated at an altitude of 20,000 feet

(therefore within positive control air-

Space) but which was not under an IFR

flight plan and was not equipped with

automatic pressure altitude reporting

equipment. It therefore follows that

respondent was in violation of sections

91.24(b) and 91.97(a)(1) of the FAR.

_ =

As the Administ: ator acknowledges,

the violations established herein, albeit

serious in nature,2/ by no means warrant

the ultimate sanction of revocation.

Rather, revocation was based on those

violations considered in conjunction with

respondent's history of prior violations.

This history (Exhibit A-3) indicates that,

during the period between 1952 and 1973,

there were 22 instances in which respond-

ent was alleged to have committed viola-

tions of the FAR. Although 7 of these

were closed without action, one resulted

in the issuance of a reprimand, 8 others

resulted in the payment of civil penalties

ranging from $25 to $375, and the remain-

97 The purpose of a positive control] area

is to establish blocks of airspace in

which all aircraft are under IFR flight

plans and.under positive control by ATC.

Aircraft operating under VFR and not un-

der positive control thus create a po-

tential hazard when they intrude into

such airspace.

ofiPe

ing 6 resulted in suspensions of re-

spondent's airman certificate. With re-

Spect to the latter category, respondent's

certificate was suspended for 60 days in

1961, for 90 days in 1962, and for 6

months in 1973. The 6-month suspension

was based on 4 separate incidents which

involved violations of basic ATC rules,

such as flying improper patterns in air-

port traffic areas thereby causing a

collision hazard, forcing another plane

to take evasive action, landing without

maintaining two-way radio communications

with the control tower, landing IFR

conditions without an appropriate clear-

ance, and taking off without takeoff

clearance from ATC.

The regulatory violations establish-

ed herein, considered in light of re-

spondent's history as described above,

indicate the continuance of a pattern of

-28-

conduct characterized by a disregard of

basic air traffic control rules and safe

operating practices. The immediate vio-

lations also show that respondent has not

been deterred from committing these types

of violations by the numerous civil pen-

alties and certificate suspensions he has

heretofore received. Under these cir-

cumstances, and in view of precedent ,+2/

it is our conclusion that respondent has

demonstrated that he lacks the qualif-

ications to hold his airman certificate,

which is therefore subject to revocation.

ACCORDINGLY, IT IS ORDERED THAT:

1. Respondent's appeal be and it

hereby is denied;

2. The Administrator's order and

the initial decision be and they hereby

10/ See, eg.g., Administrator v. McCarthy,

Order EA-456 April 25, 1973; Administrator

v. Smoligan, Order EA-423, January !/7,

1973.

-29-

are affirmed; and

3. The revocation of respondent's

commercial pilot certificate shal]

commence 30 days after service of this

order. tl/

TODD, Chairman, BAILEY, Vice Chair-

man, McADAMS, HOGUE, and HALEY, Members

of the Board, concurred in the above

opinion and order.

li/ For the purposes cf this order, re-

spondent must physically surrender his

certificate to an appropriate represent-

ative of the Federal Aviation Admin-

istration pursuant to section 61.19(f) of

the FAR.

«SS.

NOT FOR ROUTINE PUBLICATION

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

No. 76-2144

RICHARD CLEVELAND NOLAN,)

)On Petition for

Petitioner, )Review of an

bee of the

National Trans-

)portation Safety

NATIONAL TRANSPORTATION )Board

SAFETY BOARD,

vs.

Respondent. )

Submitted on the briefs.

J. Scott Hamilton for Petitioner.

Barbara Allen Babcock, Assistant Attorney

General, and Morton Hollander and Allen

H. Sachsel, Attorneys, Civil Division,

Appellate Section, Department of Justice,

for Respondent.

Before HILL, SETH and DOYLE, Circuit

Judges.

DOYLE, Circuit Judge.

We here review a decision of the

< -

National Transportation Safety Board,

which decision revoked the pilot's

license of the appellant Richard Cleveland

Nolan. The Board's order which was dated

October 20, 1976, revoked all certif-

icates held by Nolan and was based on

violations of 14 C.F.R. 91.24(b) and

91.97(a)(1). The Board also considered

a total of 15 previous violations, six of

which the Board found were serious enough

to have warranted suspension of certif-

icate. The Board's order affirmed the

decision of the Federal Aviation Admin-

istration and the original decision of

the Administrative Law Judge of the Board.

The review is pursuant to 49 U.S.C.

$ 1486.

The Board summed up its decision by

saying that the violations shown and

considered in the light of the petitioner

history indicated a pattern of conduct

o32-

characterized by disregard of basic air

traffic practices. The Board further

determined that the petitioner had not

been deterred from committing these vio-

lations by the numerous civil penalties

and suspensions that he had received.

Based on that, the Board concluded that

the respondent had demonstrated a lack of

qualifications necessary to hold his air-

man's certification.

The issues are:

1. Whether the Board's findings of

fact were supported by substantial

evidence,

2. Whether the Board's conclusions

were proper in terms of being in accord-

ance with precedent and policy and

whether they reflected a proper exercise

of discretion.

The violation which brought on rev-

ocation of all certificates occurred

=~ =

August 7, 1975, while Nolan was pilot-

ing a passenger-carrying Cessna 1337B

which was then departing from Weld

County Airport near Greeley, Colorado.

The purpose of the flight was to test

the plane and to deliver it to Fremont,

Nebraska. Near Sterling, Colorado,

Nolan's co-pilot contacted air traffic

controi at Denver and reported his al-

titude as 20,000 feet. A request was

made for clearance to North Platte,

Nebraska.

Air space above 18,000 feet is sub-

ject to the absolute control of air

traffic controllers and the so-called

instrument flight rules apply. Clearance

must therefore be obtained from air

traffic controllers to enter a specific

altitude. Also, they must have certain

equipment which enables the air traffic

controller to determine on a screen the

oBfn

altitude of a particular aircraft.

As a result of this incident, Nolan

was charged with operating the aircraft

in restricted air space without a trans-

ponder with automatic pressure reporting

capabilities and also with entering the

restricted air space without the required

permission. It is true that Derek Lucas,

who was the co-pilot, was the one who

contacted the air traffic controller and

who reported the altitude. This fact is

of little legal significance in view of

the fact that Nolan was in command of the

aircraft and directed the operation of

the radio. Therefore, although Nolan

did not contact the controller himself,

he was responsible for the contéct.

The important thing is that his al-

titude was beyond the limit and the

evidence unquestionably supports this.

It is also said that there was insufficient

_*

evidence to show that Nolan was oper-

ating the aircraft in positive control

air space, and evidence of this was

necessary in order to show violation of

14 C.F.R. 8 91.24(b), which requires

that aircraft operating in such air space

be equipped with automatic pressure

altitude reporting equipment.

We disagree with the argument of

petitioner that the Board's finding that

the plane was in excess of 18,000 feet

does not establish that the exception in

favor of aircraft operating in air space

altitude within 2,500 feet above ground

level does not apply. Thus, he says in

effect that it was necessary to show what

the ground level was. In order to come

within the exception, the elevation would

have had to have been at least 15,500

feet. We take judicial notice of the

fact that no such altitude exists in the

-36-

Sterling, Colorado area.

Nolan also challenged the finding

of the Board that the airplane was not

equipped with a transponder having an

automatic pressure altitude reporting

capability. The argument of Nolan is

that Lucas, the co-pilot who testified

that the transponder on the aircraft did

not have an automatic reporting cap-

ability is discredited by the uncertainty

of Lucas on cross-examination as to the

capability of the transponder. However,

we are of the opinion that this does not

void the finding of the Administrative

Law Judge, who was required to assess the

reliability of Lucas' testimony and did

so. This was within his province. See

Universal Camera Corp. v. N.L.R.B., 340

U.S. 474 (1951). There is no reason

shown for disregarding this testimony.

Finally, it is complained that the

oSPe

Board was not justified in holding that

as a result of his basic violations

coupled with the present one, the evidence

showed a lack of qualification to hold a

commercial pilot certificate. Nolan

points to his extensive flying experience

during 41 years and 40,000 hours, during

all of which time he did not have an

accident. He also complains about the

other violations which were taken into

account. But these were numerous and

serious. For example, on two occasions

in November 1967, Nolan was shown to have

allowed his aircraft to operate in un-

airworthy condition. In March 1971, he

entered a traffic pattern below the

pattern altitude, cut in front of an air-

craft in the pattern for a landing, over-

took an aircraft which was landing and

landed in front of it, coming within 15

feet of causing a collision. There were

«06-

several similar incidents. Nolan main-

tains that these were largely petty and

in come instances no charges were brought

against him. “39

We have examined the numerous vio-

lations shown and in our judgment it was

proper for the Board to take them into

account as showing a pattern of conduct

which displayed a lack of qualifications

to hold a commercial pilot's certificate.

The Board has ample discretion under

49 U.S.C. § 1429 to promote air safety

in the public interest. This was pointed

out in French v. C.A.B., 378 F.2d 468,

472 (10th Cir. 1967), where it was also

held that it was not error to consider

prior violations in determining a suit-

able sanction. Not only was the instant

violation serious, the prior ones result-

ing in three previous certificate sus-

pensions, eight civil penalties and one

-39-

reprimand also were serious. In this set

of circumstances revocation did not con-

Stitute an abuse of discretion. Further-

more, it was in accordance with the

Sanctions which the Board has imposed in

Similar cases. See, e.g., Administrator

v. McCarthy, No. SE-1972 at 7-8 (May 8,

1973); Administrator v. Smoligan, No.

SE-1534, at 5-6 (Jan. 29, 1973); Admin-

istrator v. Santos, No. SE-1341 at 5

(July 22, 1971).

Being of the opinion that the

Board's action was in accordance with the

law and was within the discretion vested

in it, we uphold its decision revoking

the license. It is so ordered.

-40-

JULY TERM - August 30, 1977

Before The Honorable Delmas C. Hill,

Senior Circuit Judge,

The Honorable Oliver Seth and

The Honorable William E. Doyle, Circuit

Judges

RICHARD CLEVELAND NOLAN,

Petitioner,

vs. No. 76-2144

NATIONAL TRANSPORTATION

)

SAFETY BOARD,

)

Respondent.

This matter comes on for consider-

ation of petitioner's petition for re-

hearing in the captioned cause.

Upon consideration whereof, the

petition for rehearing is denied.

HOWARD K. PHILLIPS

Clerk

-4)]-