Petition — Peat v. National Transportation Safety Board

In the Supreme Court

OF THE

United States

Oocrosrr Term, 1978

No 78-652

Davo B, Prat, Petitioner,

Vv.

Nationa Transportation Saretry Boarp,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

to the United States Circuit Court of Appeals r

for the District of Columbia

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Wri B. Wust, Jr.

1274 Filbert Street

San Francisco, California 94100

Telephone: (415) 673-8134

Attorney for Petitioner.

BOWNE-PERNAU WALSH © 1045 GANGOME GT, © &.F.,CA O4111 © (418) 061-7007

— <a

In the Supreme Court

OF THE

United States

Octoser Term, 1978

No.

Davin B. Prat, Petitioner,

v.

NationaL TRansportation Sarery Boarp,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

to the United States Circuit Court of Appeals

for the District of Columbia

The petitioner, David B. Peat, respectfully prays that

a writ of certiorari issue to review the order of the United

States Court of Appeals for the District of Columbia Cir-

cuit entered in this proceeding on May 22, 1978.

OPINIONS BELOW

The Per Curiam order of the Court of Appeals summarily

affirming the opinion and order of the National Transpor-

tation Safety Board on review, and the opinion and sanction

order of said Board appear in the Appendix.

2

STATUTORY PROVISIONS INVOLVED

1. FIFTH Amendment to the U.S. Constitution:

No person shall be... deprived of life, liberty, or prop-

erty, without due process of law....

2. Federal Air Regulation 91.9; 14 C.F.R. 91.9:

No person may operate an aircraft in a careless or reck-

less manner so as to endanger the life or property of

another.

JURISDICTION

The order of the Court of Appeals was entered on May 22,

1978 and leave to file this petition on and until October 18,

1978 was duly granted by Mr. Justice Brennan. The Court’s

jurisdiction is invoked under 49 U.S.C. § 1486(f) per 28

U.S.C. § 1254.

QUESTIONS PRESENTED

1. Whether a general duty clause promulgated by a

Federal agency meets Due Process requirements where it is

so broadly applied and construed to include conduct not

reasonably within the plain meaning of its language; spe-

cifically, can the nature of the communications between an

airline captain and an air controller, constitute careless or

reckless operation of an aircraft?

2. Whether the statutory substantial evidence standard

of judicial review is met where the record is devoid of evi-

dence that the nature of radio communications constitute

operation of an aircraft within the general duty clause of

F.A.R. 91.9 prohibiting careless or reckless operation of an

aircraft.

3

STATEMENT OF THE CASE

The Petitioner was the airline Captain of a commercial

B-727 jet descending on a clearance into the Chicago area

for an approach to the O’Hare airport when the Air Traffic

Controller issued a clearance for the aircraft to slow down.

That clearance was rejected by the Captain, and what then

ensued was a conversation between the Captain and the air

controller during which time the Captain rejected and

questioned the propriety of several other clearances which

would have taken him out of sequence for the direct flow of

traffic into O’Hare. Upon receiving a mutually satisfactory

clearance, the flight continued and terminated uneventfully.

Then the FAA Administrator duly began proceedings and

suspended the Captain’s airman certificate for two months,

upon the charge of a violation F.A.R. 91.9 which reads:

No person may operate an aircraft in a careless or

reckless manner so as to endanger the life or property

of another.

The result was a determination by the National Transporta-

tion Safety Board affirming the suspension, but holding that

it was not the Captain’s rejection of the clearance to reduce

speed but rather the nature of the communications there-

after which gave rise to the violation of F.A.R. 91.9. The

Board went on further to explain that by engaging the air

controller in a steady conversation for three minutes, the

Captain monopolized the radio frequency and thereby pre-

cluded the controller from devoting adequate attention to

other aircraft, thereby endangering “the life or property of

another.”

On appeal pro se, the Captain argued, by brief, that the

Board’s determination violated his right to FIFTH Amend-

4

ment due process because the conduct prohibited by F.A.R.

91.9 does not include the nature of radio communications.

The Circuit Court denied the Captain’s motion for oral

argument and granted the Board’s motion for summary

affirmance of its order.

REASONS RELIED ON FOR ISSUANCE

OF THE WRIT

1. The general duty clause versus Due Process is an im-

portant Federal question which should be settled by

the Court.

The major reason why the Court should issue the writ

lies in the relationship between the so-called general duty

clause (the most popular vehicle of enforcement of Federal

agency rules) and the requirements of Due Process. Here,

the question looms, where the petitioner Captain has com-

plained all along, that the conduct prohibited by the plain

language of the catchall provision of F.A.R. 91.9 cannot

reasonably include the nature of his radio communications.

On the other hand, the FAA Administrator, the administra-

tive law judge, the NTSB and the Circuit Court have as-

sumed that the Captain’s radio communications are so

included. Only the Court can set the matter straight and

draw the Due Process limit upon the general duty clause

in this case.

The conflict between Due Process and the general duty

clause is a modern day legal phenomenon which requires the

Court’s attention not just to correct the injustice here, but

it is important, because without the restraint of judicial

guidelines from the Court, overzealous administrators can

stretch the general duty clause, as in this case, to virtually

5

eliminate the establishment and notice of standards required

by Due Process. And, given the large and growing number

of Federal administrators vested with with the police power

to economically sanction citizens,’ maintenance of the neces-

sary Constitutional balance between Due Process and the

general duly clause requires immediate attention from the

Court.

In his treatise on Administrative law, Professor Davis

predicted the eventual modern lines of battle between the

Courts and the administrators when he said:

The key is very simple: Courts may require adminis-

trators to articulate the standards that guide their dis-

cretion. The development of that idea may seem a

hundred years from now to be one of the most import-

ant turns American law has ever taken, because it is a

major way of improving the quality of justice by con-

trolling discretionary power. Davis, Administrative

Law of the Seventies (1976) at p. 26.

Judge Burger made a parallel observation in Gonzalez v.

Freeman, 334 F.2d 570 (CA DC 1964) noting that considera-

tions of basic fairness require notice of established stand-

ards by an agency.

The battle is manifested in the conflict between Due

Process and the general duty clause here as well as other

agencies. See generally, Note: The General Duty Clause of

[OSHA], 86 H.L.R. 988 (1973) and J70 Corp. of New Eng-

land v. OSHRC, 540 F.2d 543 (1st Cir. 1976).

In order to satisfy the principle of established and articu-

lated standards by administrators, the Court should take

1E.g. F.C.C., O.S. & H.A., F.E.A., E.P.A., E.E.O.C., S.E.C., LC.C.

and F.P.C,

6

this opportunity to review the broad scope of the general

duty clause as it rubs against and overshadows the require-

ments of Due Process.

Correlated to this conflict with Due Process is the role of

the concept of judicial deference to administrative exper-

tise where a violation of a general duty clause is alleged.

All too often, as in this case, a reviewing court may, in

deference to the agency, fail to adequately scrutinize the

alleged conduct as being that type of conduct prohibited

by the general duty. Conversely, an agency may use judi-

cial deference to prosecute violations under a general duty

clause for conduct outside of its scope and thereby avoid

the sometime tedious and difficult but constitutionally re-

quired task of promulgating specific standards. The Court

should deal with the main question in this respect too.

2. There is no evidence to sustain the order of the Circuit

Court which conflicts with decisions of the Court.

The Cireuit Court of Appeal has the duty to review the

NTSB determination on a standard of substantial evi-

dence. 49 U.S.C. $1486. Here, the record is devoid of any

evidence which tends to prove the Board's determination

that the nature of radio communications is “operation of

an aircraft” within the meaning of F.A.R. 91.9. Indeed,

the issue has been assumed even where the petitioner has

raised his right to Due Process. This is in conflict with the

principles laid down by the Court in Universal Camera

Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed.

456 (1951), and a host of derivative opinions.

7

The Court should review this case not only to correct

doubtful decision beiow, but to re-enforce and re-empha-

size the due process mandate of the statement etched in

stone over the Courthouse—Equal Justice Under Law.

October 12, 1978.

Respectfully submitted,

Wuurum E. West, Jr.

Attorney for Petitioner.

(Appendix Follows)

APPENDIX

A-l

_ Appendix

United States Court of Appeals

For the District of Columbia Circuit

September Term, 1977

No. 77-1835

D. B. Peat, 7

Petitioner,

Vv.

National Transportation Safety Board,

Respondent. /

[Filed May 22, 1978]

ORDER

BEFORE: Wright, Chief Judge; McGowan, Circuit Judge

On consideration of respondent’s motion for summary

affirmance, and of petitioner's motion for oral argument,

it is

ORDERED by the Court that petitioner’s motion for oral

argument is denied, and, it is

FURTHER ORDERED by the Court that the order of

the National Transportation Safety Board under review

herein be, and the same hereby is, affirmed.

The Clerk is directed to transmit a certified copy of this

order to the National Transportation Safety Board as

promptly as the business of his office permits.

Per Curtam

A-2

SERVED: January 27, 1977

NTSB Order No, EA-954

United States of America

National Transportation Safety Board

Washington, D.C.

Adopted by the National Transportation Safety Board

at its office in Washington, D.C.

on the 24th day of January 1977.

Docket SE-3247

Johu L. McLucas, Administrator, Federal |

Aviation Administration,

Complainant,

v.

D. B. Peat,

Respondent.

OPINION AND ORDER

Both respondent and the Administrator have appealed

from the initial decision of Administrative Law Judge

William E. Fowler, Jr., issued orally at the conclusion of

the hearing held in this proceeding on September 16 and

17, 1976." The law judge found therein that, on January 12,

1975, respondent operated, as pilot-in-command, United

Air Lines (UAL) Flight 689, B-727-100, N7083U, on a

regularly scheduled passenger-carrying flight from Fort

Wayne, Indiana, to Chicago O’Hare International Airport,

Illinois; that respondent was requested by air traffic con-

‘An excerpt from the hearing transcript containing the initial

decision is attached.

A-3

trol (ATC) to reduce speed from 200 knots to 180 knots,

a request with which respondent did not comply; that

thereafter, as an alternative to reducing speed, respondent

was cleared to proceed to the Chicago Heights VOR to a

holding pattern, a clearance which respondent refused; and

that respondent thereafter entered into a protracted dis-

cussion over the radio concerning the authority of ATC,

which discussion, along with respondent’s refusal to co-

operate with ATC, diverted the controller unnecessarily

from other duties. The law judge further found that, by

virtue of the foregoing, respondent operated the aircraft

in a careless manner so as to endanger the life and prop-

erty of others, in violation of section 91.9 of the Federal

Aviation Regulations? (FAR). The law judge thereupon .

modified the Administrator’s order to reduce the period of

suspension of respondent’s airline transport pilot certifi-

cate from 60 days to 20 days.

In support of his appeal, respondent has filed a brief

wherein he argues that neither the facts of this case nor

Board precedent support the finding of a violation of sec-

tion 91.9; but rather that respondent is being penalized

for the manner in which he exercised his right to not ac-

cept a clearance or to request an alternate clearance.

The Administrator has appealed from the reduction in

sanction, urging that the 60-day suspension be reinstated

in view of (a) the law judge’s failure to set forth clear

and compelling reasons for the reduction, (b) Board prece-

*Section 91.9 reads as follows:

Ҥ91.9 Careless or reckless operation.

No person may operate an aircraft in a careless or reckless

manner so as to endanger the life or property of another.”

A-4

dent establishing the appropriateness of a 60-day suspen-

sion, and (¢) the potential for disaster caused by the in-

tentional acts of respondent.

Each of the parties has also filed a reply brief opposing

the appe! of the other party.

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 suspend-

ing respondent’s certificate for 60 days. Except as modi-

fied herein with respect to sanction, we adopt as our own

the findings of the law judge.

The record reflects that UAL Flight 689, as part of the

process of entering the sequential flow of traffic into the

Chicago area from the southeast, had been cleared to

descend to 10,000 feet and assigned a heading of 500°. As

the line of traffic was vectored toward the localizer, the

aircraft were being slowed to 180 knots in order to achieve

the proper spacing and sequencing for the approach. At

a point when the Flight 689 was descending through an

altitude of approximately 11,000 feet at an approximate

speed of 355 knots, the following conversation ensued be-

tween the flight (UA 689) and the controller working

the sector southeast of Chicago (B53R) :°

0215:15 B53R: United six eight nine reduce now to a

(GMT) hundred eighty knots, left to a heading

of two six zero.

0215 :25 UA689: Two sixty one eighty on the heading

(pause) speed.

‘Exhibit A-1, pages 7 to 10.

UA689;

0215;:30 BS38R:

0)

t©

0216 :00 U A689:

0216 :05 B53R:

0216 :10 UA 689:

0216 :25 U A689:

0216 :35 B53R:

15:40 UA689:

0215 :45 B53R:

A-f

(another voice) United six eighty nine

ah two hundreds our minimum right now,

United six eighty nine ah you'll either

have to do a hundred and eighty sir or

I’ll have to clear you to Chicago Heights

(CGT) There’s aircraft five in front of

you—they will be five behind you at a

hundred eighty knots for the localizer.

I said our minimums two hundred.

Roger turn ah left (unreadable word)

and proceed direct Chicago Heights hold

southeast of Chicago Heights on Victor

seven, make right turns ten D-M-E legs

and I'll have an approach clearance for

you shortly.

Ah cleared direct-to-Chicago Heights for

six eighty nine and say the rest.

I'll have it for you shortly sir—do you

have ah any ah special problems.

United six eighty nine, say the rest ah

of the clearance we got direct Chicago

Heights only.

Okay direet Chicago Heights hold south-

east of Chicago Heights on Victor seven,

make right turns ten D-M-E legs and I’ll

have an a expected approach clearance

time of zero two three six.

I won’t accept that ah United ah six

eighty nine.

United six eighty nine ah okay sir ah

turn left now ah one eight zero, operate

at two hundred knots.

0216 :40 UA689:

0216 :50 B53R:

UA689:

0217 :00 B53R:

0217 :00 UA689:

0217 :15 B53R:

0217 :30 UA689:

0217 :40 B53R:

A-6

Yes sir that is because I can’t fit you in

that ah is that in sequency with the traf-

fic?

Yes sir that is because I can’t fit you in

cause you won’t comply with the speed.

Oh United six eighty nine ah I wanna

know what F-A-R gives you that prerog-

ative.

You are not going to ah do what sir?

I just wanted you to tell me what ah sec-

tion of of the ah seventy one ten hand-

book or the F-A-R you can do that ah

you can take me out of sequence because

if I ah ah choose not to cooperate below

two hundred knots but because I ah be-

cause of configuration.

Well sir ah I’ll get it out in a minute, I

don’t have it open at the present time ah

what I am trying to do is run the most

expeditious, safe flow of traffic feasible,

and you are not complying, and so that’s

the reason I have to pull you out of se-

quence.

Okay I'll accept a vector but ah I want

either that or I wanta ah to continue in

sequence (unreadable) vector means in

the sequence with the rest of the traffic.

Okay United six five nine when you get

on the ground give me a call. Turn left

to a heading of two five zero. I will vec-

tor you, I will give you special handling

and we’ll talk this out when you get on

the ground.

A-7

0217 :50 UA689: Negative! United Six eight nine give me

a clearance in sequence or else tell me

what ah ah paragraph that gives you

that prerogative.

0217 :55 B53R: United six five nine left to a heading of

two five zero car you do that.

? : Ah your (unreadable) this is (pause) six

eight-nine is askin for the information.

0218:05 B53R: United six eighty nine my apology turn

left to a heading now of two four zero

can you comply?

0218:15 UA689: Left! To two four zero (pause) that’s

affirmative United six eighty nine left to

two four zero.

At 0219:15 (a minute after the end of the above conver-

sation), the controller, upon recognizing that UAL 689 was

turning back into the inbound flow of traffic, requested the

flight to “bring it back to the right to a heading toward

Chicago Heights.” The flight complied and thereafter (at

0224:15), the controller directed UAL 689 to intercept the

localizer and fly inbound.‘

The B53R controlled testified that he instructed UAL

689 to reduce its speed to 180 knots since there were a

number of other aircraft in front of that flight operating at

that speed and that if UAL 689 did not also reduce to 180

knots it would overtake the other planes and the 5 mile

minimum separation would not be maintained. Respondent

testified that his principal reason for refusing the request

was the increased fuel flow necessary to operate 180 knots

‘The only other communications between UAL 689 and the B53R

controller concerned the telephone number of the Aurora Center,

which respondent requested so that he could discuss the matter

with the center after landing.

A-8

(as compared with 200 knots) and that the change in con-

figuration necessary to operate at the lower speed was a

secondary factor.°

In our judgment, the speed reduction requested by the

controller was eminently reasonable under the circum-

stances in that it was designed to assure the proper spacing

and sequencing of inbound aircraft as they were being vec-

tored in a line toward the approach. It is noteworthy that

UAL 689 was the only flight among a substantial number

which refused to comply with the 180 knot speed limitation.*®

The refusal of UAL 689 to reduce to that speed, on the other

hand, was not reasonable. Although there was a conflict be-

tween the parties regarding the amount of fuel saved by

operating at 200 knots,’ it is apparent to this Board that

any factor of fuel economy is clearly outweighed by the

factor of assuring a safe and orderly flow of traffic.

Respondent’s refusal to reduce to 180 knots, however, is

not at the heart of the violation charged herein.* Rather, it

is the nature of the communications that took place there-

‘The aircraft can be operated in a clean configuration at 200

knots, but in order to operate at 180 knots, 2° of flaps must be

lowered.

*Another flight (UAL 357), which was trailing UAL 689, was

allowed to remain at 200 knots for a period of time but only because

that flight, unlike UAL 689, had some distance to go before it closed

to the minimal separation from the flight immediately in front of it.

’The Administrator's e witness testified that the savings

would be in the order of pounds of fuel per hour, whereas the

first officer on UAL 689 estimated a figure of 3,000 pounds per hour.

Since the flight was only about 10 minutes from the glide slope

when the — reduction was requested, the total savings in fuel

would have between 50 and 500 pounds.

*As the Administrator concedes, and as the controller’s handbook

provides (See Exhibit A-3), a flight in the position of UAL 689

at the time the speed reduction request was made has the preroga-

tive of refusing a reduction in s to 180 knots.

A-9

after which give rise to the violation of section 91.9. For a

period of 3 minutes (0215:15 to 0218:15), respondent en-

gaged the B53R controller in a steady conversation which

had the effect of monopolizing the frequency and thus pre-

cluding the controller from giving an appropriate degree

of attention to the other aircraft under his control. During

that conversation, respondent adamantly refused to accept

any clearance or instruction which would take UAL 689 out

of its sequence in the inbound line of traffic and persistently

demanded that the controller cite the provision in the con-

troller’s handbook which authorized the controller to act

as he did.® This type of conversation, which was initiated

and forced upon the controller by respondent, is obviously

one which should not be conducted on the center frequency,

but rather one that should have awaited a point in time after

the landing when neither of the participants was busily

engaged in other, more important duties.”

Respondent maintains that, notwithstanding his manner

of refusing clearances or requesting alternative clearances,

a violation of section 91.9 was not established inasmuch as

endangerment, even in the potential sense, has not been

shown. As respondent points out, UAL 689 at no time came

within the minimal separation from another aircraft of 5

miles laterally or 1,000 feet vertically. Furthermore, it does

not appear from the record that the controller’s preoccupa-

tion with handling UAL 689 resulted in any significant

*Respondent apparently refused to understand, or to accept, the

controller's premise, which was reasonable in our view, that main-

tenance of a speed of 200 knots was incompatible with respondent's

insistence to remain in sequence.

The controller suggested at one point that “I will give you

special handling and we'll talk this out on the ground”, to which

respondent replied “Negative!” Exhibit A-1, pp. 9-10.

A-10

safety problems with respect to his control of other air-

craft. Nevertheless, as the Board has consistently held, the

absence of actual endangerment does not preclude a finding

of a section 91.9 violation. The concept of the nature of the

endangerment necessary to support a violation of section

91.9 has been fully explored by the U.S. Court of Appeals

for the District of Columbia Circuit, which held as fol-

lows :

“What is more important is that, in the judgment of

the Board, potential danger was unnecessarily pre-

sented, and this is sufficient to support a finding that

the regulation was violated. E.g., Administrator v. Jar-

rendt, 35 -.A.B. 1877 (1960); Lee Rogers, 31 C.A.B.

1135 (1960). Proof of actual danger is unnecessary, for

the regulation prohibits any careless or reckless prac-

tice in which danger is inherent.” That danger was

inherent in the pilot’s conduct—that danger might have

developed in the ordinary course of events—is a matter

for the Board’s determination in the reasonable exer-

cise of its expert judgment. United States v. Great

Northern Ry. Co., 337 F.2d 243, 247 (8th Cir. 1964) ;

Nadiak v. C.A.B., 305 F.2d 588, 593 (5th Cir. 1962).

We see no reason to disturb the Board’s finding in this

respect. Nor will we disturb the Board’s determina-

tion of the degree of danger necessary to establish a

violation of regulation. We think that determination

was reasonable and consistent with the wording of the

regulation. See Udall v. Tallman, 380 U.S. 1, 16-17

(1965).

The wording of the regulation does not support a require-

ment of actual danger. Instead it prohibits the ‘[operation of]

an aircraft in a careless . .. manner so as to endanger the life

or property.’ 14 C.F.R. § 121.535(f) (1971) (emphasis added ).”

"Haines v. D.O.T., 449 F.2d 1073 (C.A.D.C. 1971).

A-11

The policy of the regulation would be subverted if its

enforcement turned on a post facto view of the degree

of danger presented. The regulation is intended to pre-

vent inherently dangerous practices, and it is no de-

fense that by happenstance and in retrospect no actual

danger appears. See Administrator v. Jarrendt, 32

C.A.B. 1377, 1396 (1960).

In our judgment, the potential danger caused by respond-

ent’s unwarranted and protracted discussion with the con-

troller clearly falls within the concept of endangerment

described by the court in the above-quoted decision. By

distracting the controller for 3 minutes, during a period

when the controller was sequencing a number of aircraft

into the approach position, respondent produced an in-

herently dangerous and totally unnecessary situation in

which a carefully constructed and tightly sequenced flow

of traffic was left largely unattended.” The fact that re-

spondent’s inherently dangerous practice, in happenstance

and in retrospect, was not converted to actual endauger-

ment is not controlling. Consequently, it is the Board’s

conclusion that a violation of section 91.9 has been estab-

lished by a preponderance of the evidence.*

12$0me of the potential ramifications of such a situation were

a) a delay in transferring control of other aircraft to O'Hare

Approach Control, b) a delay in turning other aircraft to align them

with the localizer and prevent them from continuing into an area

through other aircraft were departing from O'Hare, and c) an

inability to provide additional services, such as traffic advisories, to

aircraft under the B53R controller’s control.

18The cases cited by respondent, in which the Board found no

violation of section 91.9, are all distinguishable. In Administrator v.

Holderman, Order EA-489, July 26, 1973, the Board found that the

respondent’s inadvertent raising of the landing gear, when the plane

was moving at a speed of 15 to 20 m.p.h., caused no actual or

potential hazard or endangerment. In Administrator v. Eger, Order

EA-580, May 8, 1974, the Board found that respondent’s landing on

A-12

Turning to the question of sanction, the law judge recog-

nized that this case was highly unusual and serious, and

that respondent’s actions could have produced a disaster in

view of saturated and sequential traffic pattern. The law

judge nevertheless reduced the period of suspension from

60 to 20 days, based on a number of factors, including a)

respondent’s prior exemplary record, b) the fact that his

actions were not deliberate, willful or reckless but rather

inadvertent, c) respondent’s concern for fuel consumption

and his belief that, under the circumstances, he could not

legally reduce the aircraft speed below 200 knots, and d) the

law judge’s expectation that respondent has profited from

his experience and would not react in a similar manner in

the future should the same circumstances arise.

After considering the factors cited by the luw judge, and

weighing the entire record and the circumstances surround-

ing the incident, the Board is not persuaded that a reduc-

tion in the sanction ordered by the Administrator is appro-

priate in this case. The factors cited in mitigation by the

law judge may be clear but they are not compelling,” since

the wrong parallel runway, which had been closed but on which

there were no obstructions of any kind, produced an element of

danger which was too remote to come within the intendment of

section 91.9. In the instant case, on the other hand, it is our conclu-

sion that there was potential endangerment caused by respondent's

action which was not so remote as to fall without section 91.9 and

which was reasonably foreseeable. Finally, in Administrator v.

Degan, 1 N.T.S.B. 1907, the Board found that respondent's refusal

to go around, while warranting a censure, was not violative of

sections 91.75 or 91.9. In that case, however, the controller immedi-

ately cleared the aircraft to land, and there was no protracted

discussion such as that herein.

“The Board has held that “in those cases where all of the viola-

tions are affirmed, we believe it is incumbent on the law judge to

offer clear and compelling reasons for reducing the sanction.”

Administrator v. Musquiz, Order EA-711, June 23, 1975, p. 10 of

Opinion. The fact that the law judge found careless (rather than

A-13

they are either irrelevant, misapplied, or without founda-

tion. The Board has repeatedly emphasized that a “prior

exemplary record” should be considered the norm, rather

than the exception, and thereby does not justify a reduction

in sanction.” The law judge’s statement that respondent’s

actions were inadvertent rather than deliberate is difficult

to reconcile with the record, Although respondent no doubt

did not intend that the principal and most significant result

of his actions would be to divert the controller’s attention

from his duties, the fact remains that the initiation and

persistence with the protracted discussion was a deliberate

rather than inadvertent act on the part of respondent. With

respect to respondent’s reasons for refusing the speed re-

duction to 180 knots, the Board, as discussed hereinabove,

does not believe fuel economy was a valid justification for

such refusal since it was outweighed by the importance of

maintaining a safe and orderly flow of inbound traffic, More-

over, and contrary to a statement of the law judge, respond-

ent never expressed the belief that he could not legally

operate under 200 knots, Finally, the Board does not be-

lieve that the expectation that a respondent has learned his

lesson constitutes a valid reason for reducing sanction,”

In regard to precedent, the Board has had occasion, in

two recent proceedings, to review orders of the Admin-

reckless) operation does not mean all of the charged violations were

not established inasmuch as the complaint was worded in the

disjunctive (“careless or reckless” ).

See, e.g., Administrator v, Smith, Order EA-709, June 9, 1975,

We would note, in any event, that despite a prolonged inter-

rogation during which the law judge attempted to extract some

sign of contrition from respondent, the latter held to his position

that he would basically react in the same manner, other than to

change his wording slightly, should such a situation arise in the

future,

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istrator suspending for 60 days the airline transport pilot

certificate of an air carrier captain for violations which, like

those in the instant case, were deliberate in nature and in-

volved basic operational practices or air traffic rules." The

Board, in those cases, reduced the sanctions to suspensions

of 45 and 30 days on the basis of ATC involvement—i.e.,

improper actions or omissions on the part of the controller

in carrying out his prescribed duties. In the instant case,

however, we can discern no conduct on the part of the con-

troller, and no circumstance of record, which would justify

a reduction in sanction. Consequently, and in view of the

nature of the violation and the inherent hazards resulting

therefrom, it is our conclusion that a 60-day suspension is

warranted.

ACCORDINGLY, IT IS ORDERED THAT:

1. Respondent’s appeal be and it hereby is denied;

2. The Administrator’s appeal be and it hereby is af-

firmed;

3. The Administrator’s order be and it hereby is af-

firmed; and

4. The 60-day suspension of respondent’s airline trans-

port pilot certificate shall commence 30 days after service

of this order,”

1*Administrator v. Gould, Order EA-917, October 28, 1976;

Administrator v. Dunkel, Order EA-880, July 19, 1976. In Gould, the

respondent descended below the assigned altitude while in a

terminal control area, whereas in Dunkel the respondent took off at

a time when he knew that the prevailing visibility was below the

takeoff minimum.

“For the p s of this order, respondent must physically sur-

render his certificate to an appropriate representative of the Federal

Aviation Administration, pursuant to section 91.19(f) FAR.

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TODD, Chairman, BAILEY, Vice Chairman, MecADAMS,

HOGUE, and HALEY, Members of the Board, concurred

in the above opinion and order.