Petition for Writ of Certiorari — Bellows v. Administrator, Federal Aviation Administration

Supreme Court brief1991

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

VENNETH A. BELLOWS

PETITIONER,

Vv.

ADMINISTRATOR, FEDERAL AVIATION

ADMINISTRATION, and NATIONAL

TRANSPORTATION SAFETY BOARD,

RESPONDENTS.

PETITION FOR A WRIT OF CERTIORARI TO

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

LAWRENCE B. SMITH

3938 E. GRANT RD., #191

TUCSON, ARIZONA 85712

602/326-0283

COUNSEL FOR PETITIONER

AUGUST, 1991

QUESTIONS PRESENTED

1. Is it a violation of the Adminis-

trative Procedure Act (APA) for the Federal

Aviation Administration (FAA) to interpret

vague language about "public interest" in

its charter to authorize it to order susp-

ension of pilots' licenses as a penalty for

violation of air-safety rules, when the

statutory section relied upon says nothing

of penalties or rules violations, yet fail

either to publish its interpretation in the

Federal Register or Code of Federal Regu-

lations, or promulgate the policy through

public notice and comment procedures?

2. Does the fact the pilot was subjected

to the license-penalty policy years earlier

constitute the "actual notice," as defined

in the APA, that would bar using the FAA's

failure to publish it as a defense to the

later action, even though that failure was

a clear violation of the APA?

7 22 &# &@ &

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...--eeeeeeecccececess i

AUTHORITIES CITED ....-eeeeeeceees Trere t

OPINIONS BELOW ..... cece eee ee cece eccces 1

JURISDICTION eoeeeee*weeseseeer#ee#seseessees#seeeees#setee coed

STATUTES INVOLVED na bbe beeen ten“ cena ee

STATEMENT OF THE CASE ...-.-.cccccccceces eed

REASONS FOR GRANTING THE WRIT ......--.-- 6

Exceptional Importance ............. 6

x. License-penalty policy violates

APA and bars the action

A. Failure to -

tation of gen: eel2

B. Failure to promulgat? ec... 2.2

APA public notice and commer:t

procedures ........-. eeeesectece ancenae

II. Previous safety violation cose not

"actual notice" as define:i in +A ..18

III. Decision below flawed, case should

be remanded with instructions ...... 19

CONCLUSION eoeeeteeeteeseeseee7sese3eseeenestseee#eee#ee#e#eseee 23

APPENDIX--FAA Suspension Order; ALJ

Decision; Opinion and Order of National

Transportation Safety Bd.; Court of Appeals

Judgment and Opinion; statutes, rules, and

other authorities ..............a-l1 to a-54

AUTHORITIES CITED

Cases:

Air Transport Ass'n of America v.

Dept. of Transp., 900 F.2d 369-

(D.C. Cir.); cert. granted, 111

S.Ct. 669, 112 L.Ed.2d 662);

remanded, to consider question of

mootness, 111 S.Ct. 944, 112

ar BOOS CEOUAD cocovcccesceceocts ha

Bellows, v. National Transp. Safety

Bd., No. 90-1336, slip op. (D.C.

Car. Mar. 29, 1991) TRETEPELETS Sr se 2:

Am. Standard, Inc.. v. U.S., 602 F.2d

aee (0.8.Ce. CF Claims 1979) .ccccccoes 17

Go Air, Inc. v. National Transp.

Safety Bd., slip op. (D.C. Cir.,

Mar. 7, 1988), cert. denied,

109 S.Ct. 223, 102 L.Ed.2d 214

I Eee a RSP pe mee 10

Komjathy v. NTSB, 832 F.2d 1294 (D.C.

Cir.), Cert. denied, 486 U.S. 1057,

108 S.Ct. 2825, 100 L.Ed.2d 926

CRED cece ceeeccocecccceesocccecececes 10

Morton v. Ruiz, 415 U.S. 199 (1974) ..... 15

Northern California Power Agency v. Mor-

ton, 396 F.Supp. 1187 (D.D.C.), aff-

irmed 539 F.2d 243 (D.C. Cir. 1976) ..15

Pastrana v. United States, 746 F.2d 1447

(lith Cir. 1984) ..... Pee eh ET LSE 16

Pharmaceutical Mfrs. Assoc. v. Finch,

307 F.Supp. 858 (D. Del. 1970) ....... 17

Rochna v. National Transp. Safety Bd.,

929 F.2d 13 (lst Cir. 1991) .......-..-1

iii

Rochna v. National Transp. Safety Bd.,

No. 90-1919, slip op. (lst Cir.,

Mar. 26, 1991) cccccccccccccccecccccece 14

Tearney v. NTSB, 868 F.2d 1451, (5th

Cir.), cert. denied, 110 S.Ct. 333,

107 L.Ed.2d 322 (1989) ..ccccccccceeee lO

United States v. Eaton, 144 U.S. 677

(1892) errr se ee ee Ue REE TCT TACT |

Statutes:

Administrative Procedure Act, 5 U.S.C.

§§ 551-559, 702-706 (1982):

et: ere eee e Aehieda awe ee we eos 16

Boo ae eee SS

eer ae er re © ee

Bg Gee rare mist Lesh wuuee erie ete 11

ee ba an saan ces ia a Ran hee eee One

Federal Aviation Act of 1958, as amended,

49 U.S.C. app. §§ 1301-1552 (1982):

S SEP Cee: CE ORR) scsctswwennseecd, §e:+ae

Pee SEE: ba csc cucen rer ee rege 11

Regulations:

Federal Aviation Regulations, 14 C.F.R.

Parts 1-199 (1988):

Miscellaneous:

Compliance and Enforcement Progran,

FAA Order 2150.3 (1980) (Reprinted

Oct. 1983) ......

Compliance and Enforcement, FAA Order

8030.7A, | 200 (1970) (Consol.

PORUERE SOT) cn ct de ded bhsC ete eé eacese 13

55 Fed. Reg. 27548 (1990) ere eT eT eT Te eT

Smith, FAA PUNITIVE CERTIFICATE SANC-

TIONS: THE EMPEROR WEARS NO CLOTHES;

OR, HOW DO YOU PUNISH A PROPELLER?,

14 Transp. L.J. 59-100 (1985) ........10

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

KENNETH A. BELLOWS

PETITIONER,

Vv.

ADMINISTRATOR, FEDERAL AVIATION

ADMINISTRATION, and NATIONAL

TRANSPORTATION SAFETY BOARD,

RESPONDENTS.

PETITION FOR A WRIT OF CERTIORARI TO

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Petitioner Kenneth A. Bellows respect-

fully prays that a writ of certiorari issue

to review the judgment and opinion of the

United States Court of Appeals for the

District of Columbia Circuit, entered in

this proceeding March 29, 1991, order deny-

ing Rehearing entered May 29, 1991°

OPINIONS BELOW

The opinion of the District of Columbia

Circuit is not reported; it is reprinted in

the appendix.

The Opinion and Order of the National

Transportation Safety Board (NTSB), not

reported, is reprinted in the appendix;

also the administrative law judge's (ALJ)

decision it affirmed.

JURISDICTION

The Federal Aviation Administration

+ Simultaneously filed with this case is

Rochna v. National Transp. Safety Bd., 929 F.2d 13

(lst Cir. 1991). 1991). Except for a single addi-

tional (but different) issue injected by the ap-

peals court in each, the basic APA issues raised by

petitioners are identical.

(FAA) initiated an enforcement action agai-

nst petitioner under 49 U.S.C. app. § 1429-

(a) by serving him with a Notice of Prop-

osed Certificate Action dated November 19,

1986, followed by an Order of Suspension

dated May i2, 1987, which ordered a 45-day

suspension of his Commercial Pilot Certifi-

cate (license) as punishment for alleged

safety violations. Pursuant to section

1429(a), he appealed to the NTSB for a

hearing de novo, which was held July 11,

1988 by the ALJ, who affirmed the suspen-

sion; the Board order, also affirming, was

entered July 22, 1988.

Mr. Bellows petitioned the Court of Ap-

peals for the District of Columbia Circuit

for review under 49 U.S.C. § 1486. On March

29, 1991, the court entered judgment and

per curiam opinion affirming the NTSB;

order denying petition for rehearing was

entered May 29, 1991.

Jurisdiction of this Court to review the

judgment of the District of Columbia Cir-

cuit is invoked under 28 U.S.C. 4 1254(1).

STATUTES INVOLVED

Statutes and regulations directly rele-

vant to the issues (pertinent text in ap-

pendix) are:

Administrative Procedure Act, 5 U.S.C.

§§ 551-559, 702-706 (1982): §§ 551(4),

552(a) (1), 553, 558, 706.

Federal Aviation Act of 1958, as amend-

ed, 49 U.S.C. app. §§ 1301-1552 (1982): §§

1429(a) & 1471(a)(1).

Federal Aviation Regulations, 14 C.F.R.

Parts 1-199 (1986): § 13.19.

STATEMENT OF THE CASE

This case is essentially a call for the

Court to exercise its powers of supervision

over the court below. Sup.Ct.R. 10.1(a). We

urge it to grant certiorari and send the .

case back to the Court of Appeals, direct-

ing it to answer certain basic questions

which, we are certain, should resolve the

case there.

Mr. Bellows, who operates an airtaxi

service in Sitka, Alaska, was charged by

the FAA with flying through clouds while

carrying passengers on a Visual Flight

Rules (VFR) flight. (No issue is raised

concerning the rules alleged to have been

violated.) The FAA ordered his license

suspended for 45 days as a penalty. The

only penalty ever mandated by Congress for

airsafety violations is a civil fine.

The agency's claim cof authority for

license penalties, however, arises from a

strained interpretation of language in the

Federal Aviation Act of 1958 that connects

suspension and revocation of various agency

certificates with the words "public inter-

est." The agency contends it may suspend or

revoke anytime it deems it to be in the

public interest and, ergo, punishing pilots

for safety violations, obviously, is in the

public interest.

On its face, this claim is ° "statement

of general policy," and “an interpretation

of general applicability formulated and

adopted by the agency." The Administrative

Procedure Act (APA) requires both to be

published in the Federal Register. Failure

so to do is a bar to "adverse" action agai-

nst the citizen. The FAA denies neither the

characterizations nor its failure to pub-

lish.

The license-penalty policy has the sub-

stantial impact that requires it to be

adopted through APA public notice and com-

ment procedures, failure of which voids it.

The FAA denies neither that it is "subst-

antive," nor its failure to so adopt.

The District of Columbia Circuit inject-

ed the issue of “actual notice" of the

policy, which precludes using the failure-

to-publish defense, because Mr. Bellows

years before was the subject of a similar

action. This was a misapplication of that

exception.

REASONS FOR GRANTING THE WRIT

Exceptional importance In its 33 years

the Federal Aviation Administration has

suspended or revoked about 80,000 persons--

pilots, mechanics and operators. Yet, as

remarkable as it may seem, the agency has

promulgated no rule, through public notice

and comment, or otherwise, that pilot or

mechanic can read in the Code of Federal

Regulations which would warn him that one

of the penalties for the violation of any

safety rule is suspension or revocation of

his FAA license. The agency has not even

published in the Federal Register a policy

statement to this effect. It never denies

these stark facts, nor do appeals courts

ever confront them. This is why this case

presents a need for this Court to exercise

its appellate supervisory powers.

In weighing the importance of petition-

er's case, we ask the Court to compare the

basic APA issue he raises to the APA issue

in a case for which it recently granted

certiorari: Air Transport Ass'n of America

v. Dept. of Transp., 900 F.2d 369 (D.C.

Cir.); cert. granted, 111 S.Ct. 669, 112

L.Ed.2d 662); remanded, to consider ques-

tion of mootness, 111 S.Ct. 944, 112

L.Ed.2d 1033 (1991). The issues raised

here, we submit, are vastly more important

than those raised in Air Transport. There,

under a Congressional mandate to create an

in-house administrative hearing program for

Civil penalty cases not exceeding $50,000

(a kind of traffic or justice-of-the-peace

court), the FAA published in the Federal

voluminous and complex set of rules to

implement it. The agency, however, deliber-

ately failed to use APA public notice and

comment procedures. The Air Transport As-

sociation, which represents major air car-

riers, along with others, challenged their

validity and was upheld. (The FAA then re-

published them using public notice and

comment procedures. See 55 Fed.Reg. 27548

(1990)). The agency argued the rules were

exempt from notice and comment requirements

because under 5 U.S.C. § 553(b) (A) they

were "rules of agency organization, proced-

ure, or practice."

The perceived "harm" the government

complained of was that agencies might in

borderline cases have to bear the,;unneces-

sary burden of publishing a notice of their

intention to adopt such rules, and allow

public comment before so doing, or be un-

certain whether they should. (Given the

letter and spirit of the APA, it is anoma-

lous that the government would contend that

the public has no business participating in

the creation of a scheme of due process

procedures designed to implement an entire

system of administrative justice.)

The official wrong that petitioner com-

plains of, for himself and the next 80,000

citizens subjected to FAA license penal-

ties, is that in no official government

publication is there any language that

warns the citizen pilot he or she may be

subjected to such a penalty for violating

an airsafety rule. Like petitioner, two to

three thousand persons every year have

their licenses suspended or revoked, hund-

reds of professionals lose months of wages,

often their right to earn a living.

A key element of this wrong is that it

allows the agency to proceed without ever

having to make an official statement of

whence comes its authority to impose such a

penalty. See 5 U.S.C. § 553(b)(2). It also

deprives pilots of any opportunity as "in-

terested persons" to indicate the criteria

they think should be used to determine when

a license penalty should be used in lieu of

a money fine.

Counsel for petitioner and Rochna, the

companion case, has several times asked the

Court to consider this extraordinary prob-

lem: e.g., see Komjathy v. National Transp.

Safety Bd., 832 F.2d 1294 (D.C. Cir.),

cert. denied, 486 U.S. 1057, 108 S.Ct.

2825, 100 L.Ed.2d 926 (1988); Tearney v.

National Transp. Safety Bd., 868 F.2d 1451

(Sth Cir.), cert. denied, 110 S.Ct. 333,

107 L.Ed.2d 322 (1989); Go Air, Inc. v.

National Transp. Safety Bd., slip op. (D.C.

Cir., Mar. 7, 1988), cert. denied, 109

S.Ct. 223, 102 L.Ed.2d 214 (1988) .”

All petitioner seeks is to require the

FAA to comply with the Administrative Pro-

cedure Act. In considering the importance

2 Because of these, the First Circuit in

Rochna accused counsel for petitioner of being

*oblivious to the obvious" and of "foolish persis-

tency." Rochna, supra, 929 F.2d at 16. Counsel

might otherwise be chagrined by such chastisement

but for the fact he is author of the only extant

indepth history of FAA enforcement. See Smith, FAA

PUNITIVE CERTIFICATE SANCTIONS: THE EMPEROR WEARS

NO CLOTHES; OR, HOW DO YOU PUNISH A PROPELLER?, 14

Transp. L.J. 59-100 (1985). Evidently the court did

not read it.

of this issue, we ask the Court, as back-

ground, to look at these facts:

1) Neither through Congressional hear-

ings, nor APA rulemaking procedures, in the

sixty-five years since the Federal Govern-

ment started regulating aviation, has the

public ever participated in the creation of

license penalties.°

2) the onay times Congress has consi-

dered airsafety violation penalties (1926,

1938, 1958 and 1987) it has mandated that

violators "shall be" subject to civil pen-

alties.*

3) Until forced to by the Air Transport

case, the FAA in three-plus decades had

never used APA notice and comment proced-

3 Creation of a "penalty" by any body other

than Congress is unconstitutional, but we do not

raise that issue here. See United States v. Eaton,

144 U.S. 677 (1892), and 5 U.S.C. § 558.

* See 49 U.S.C. § 1471(a)(1): "Any person who

violates ... any rule, regulation, or order .

shall be subject to a civil penalty .. ." [{Empha-

sis added] The FAA never explains this imperative.

ures to promulgate any enforcement rule.

I. License-penalty policy violates APA

and bars the action.

A. Failure to publish interpretation

of general applicability.

After reciting the alleged facts of the

incident and regulations violated, the FAA

Order provides:

By reason of the foregoing [violat-

ions], the Administrator has deter-

mined that safety in air commerce or

air transportation and the public int-

erest require the suspension of your

Commercial Pilot Certificate.

NOW, THEREFORE, IT IS ORDERED, pur-

suant to the authority vested in the

Administrator by Section 609 of the

Federal Aviation Act of 1958, as amen-

ded, that:

(1) Any pilot certificate now held

by you, including Commercial Pilot

Certificate No. 1688595, be and hereby

is suspended. [Emphasis added}

Section 609(a), 49 U.S.C. app. 1429(a),

however, says nothing of violations, rules

or penalties; it speaks only of qualifica-

tions matters, reinspection of aircraft,

reexamination of airmen.

FAA use of its claimed 609 powers invol-

ves a dichotomy: suspension for lack of

qualifications; punishment for safety vio-

lations. Its enforcement manual:

(3) Suspension action is warranted

in situations where a certificate hol-

der resists reexamination or reinspec-

tion under Section 609 of the Federal

Aviation Act, or the reexamination or

reinspection is not satisfactorily ac-

complished within a reasonable length

of time (see Chapter 8).

(4) Suspension may be used for pun-

itive purposes where the nature of the

violation warrants it...

Compliance and Enforcement Program, FAA

Order 2150.3, § 205.b., at page 15 (1980)

(Reprinted Oct. 1983). An earlier manual: ©

Although the reexamination of cert-

ificated airmen and reinspection of

certified aircraft .. . do not invol-

ve enforcement in the strict sense of

"punishment of offenses," they are

considered in this handbook because

the objective and the procedures are

identical with those applicable to

enforcement matters.

Compliance and Enforcement, FAA Order 80-

30.7A, | 200 (1970) (Consol. Reprint 1977).

As section 609 contains no language

relevant to violations and penalties, the

claim the Administrator may use license

penalties, on its face, is "an interpreta-

tion of general applicability formulated

and adopted by the agency," as well, of

course, a "statement of general policy."

See 5 U.S.C. § 552(a)(1)(D). In fact, in

Rochna, the FAA specifically admitted this:

"(Tjhe FAA action in this case was predi-

cated on its interpretation of its author-

ity under §609(a) . . ." Brief for the

Respondents at 27, Rochna v. National Tran-

sp. Safety Bd., No. 90-1919, slip op. (lst

Cir., Mar. 26, 1991) (emphasis added).

The APA requires that "Each agency...

publish in the Federal Register for the

guidance of the public -- .. . statements

of general policy or interpretations of

general applicability formulated and adopt-

ed by the agency." 5 U.S.C. § 552(a)(1)(D).

And "Except to the extent that a person has

actual and timely notice of the terms ther-

eof, a person may not in any manner be

required to resort to, or be adversely af-

fected by, a matter required to be publish-

ed in the Federal Register and not so publ-

ished. .. ." Id.

In posing this issue, petitioner assumes,

arguendo, the agency has lawful authority

to adopt the policy.

Petitioner has established the two cond-

itions needed to require dismissal of his

case: (1) the policy used against him is an

interpretation of general applicabiiity

formulated and adopted by the FAA; (2) by

default, the FAA admits it has never been

published. The only official place in which

reference to the license-penalty policy may

be found is an agency handbook. The Court

has squarely held that placing such a poli-

cy in an agency manual does not comply with

the APA; for it to be enforceable, public-

ation requirements of the APA must be met.

Morton v. Ruiz, 415 U.S. 199 (1974); see

also, Northern California Power Agency v.

Morton, 396 F.Supp. 1187, 1191 (D.D.C.

1975), affirmed 539 F.2d 243 (D.C. Cir.

1976) ("The statute clearly provides that

no administrative action taken pursuant to

unpublished procedures can be allowed to

stand against a person adversely affected

thereby.").

B. Failure to promulgate through

APA public notice and comment

procedures

It is undisputed the FAA has no regula-

tion that tells pilots their licenses may

be suspended as a penalty for a safety

violation. See 14 C.F.R. § 13.19. A pilot's

license is a property right. Pastrana v.

United States, 746 F.2d 1447 (11th Cir.

1984). Beyond argument, the license-penalty

policy is a "rule" within the APA defini-

tion, 5 U.S.C. § 551(4), and a "substantive

rule of general applicability" which must

be “adopted as authorized by law." See id.

§§ 552(a)(1)(D) and 553(d). Section 553,

was meant to provide an opportunity for

public participation by "interested per-

sons" in the rule making process when that

process results in the promulgation of

rules or regulations of substantial impact.

Pharmaceutical Mfrs. Assoc. v. Finch, 307

F.Supp. 858 (D. Del. 1970).

"The purpose of requiring a statement of

the basis and purpose is to enable courts,

which have the duty to exercise review, to

be aware of the legal and factual framework

underlying the agency's action." Am. Stan-

dard, Inc. v. U.S., 602 F.2d 256, 269

(U.S.Ct. of Claims 1979). How can the pub-

lic and the courts know what the legal

basis is for a penalty that deprives citi-

zens of the right to earn a living unless

the FAA promulgates the policy through pub-

lic notice and comment? On what basis does

the FAA substitute that penalty, in its

sole discretion, for a money fine?

Law and precedent require that the safe-

ty-violation case against Mr. Bellows be

dismissed on two counts: failure to publish

the section 609 interpretation; failure to

promulgate the license-penalty policy thr-

ough notice and comment. See 5 U.S.C. §

706.

II. Previous safety violation case not

“actual notice" as defined in APA

Because petitioner years earlier was

subjected to a license penalty, the appeals

court ruled the event

"constitutes actual notice of the NTSB

[sic] rule. Consequently, even if sec-

tion 552(a)(1)(D) were to require pub-

lication of the rule, petitioner could

not challenge his suspension on that

ground: once an individual has actual

notice of an agency rule, he cannot

complain that that rule was not pub-

lished properly. See id.

Bellows, v. National Transp. Safety Bd.,

No. 90-1336, slip op. at 3 (D.C. Cir., Mar.

29, 1991). This holding is without merit,

it strains the APA "actual notice" rule

beyond reason. The FAA did not raise this

issue; that silence speaks volumes. The

District of Columbia Circuit neither pro-

vides analysis nor case precedent. How conm-

pare a penalty with one who sees a No Tres-

passing sign on military reservation fence,

climbs it, then claims the sign invalid

because the directive for it was not pub-

lished? See United States v. Mowat, 582

F.2d 1194 (9th Cir. 1978). (What happened

to Mr. Bellows right, as an "interested

person," 5 U.S.C. § 553(c), to participate

in making the very rule used to deprive him

of his livelihood for 45 days?

III. Decision below flawed; case should

be remanded with instructions

We urge the Court to remand this case to

the District of Columbia Circuit because of

the serious errors to be seen in its opin-

ion. Two omissions are key to the court's

reaching the wrong result: (1) it never

recognized a punitive suspension for what

it is, a penalty, which has to change the

character of any argument about the APA;

(2) it never recognized, or acknowledged

the dichotomy inherent in section 609--one

use for suspensions and revocations, viola-

tion penalties, the other, for lack of

qualifications, a dichotomy spelled out in

the FAA's own enforcement manuals, supra.

How can Mr. Bellows be said to have

received justice when the appeals court re-

peatedly and mistakenly refers in its opin-

ion to the NTSB as the rulemaking agency?

This is unprecedented; no court has ever,

to our knowledge, done this. The FAA makes

the rules, the Board's only function is to

review certain of its orders. 49 U.S.C. §

1429(a).

The court addressed a non-issue (as

occurred in Rochna, and for the same rea-

sons). It asserts that petitioner chal-

lenged 14 C.F.R. § 13.19, on APA grounds.

Bellows v. National Transp. Safety Bd.,

supra, slip op. at 2 (a-30). This is utter-

ly without foundation. The mistake occurs

because the FAA wrote its brief as if to

imply that Mr. Bellows had done so, when he

had not.° That rule has no relevance to any

issue raised by petitioner.

The appeals court misstates the APA

issue petitioner did raise. It claims he

charged the NTSB (FAA) with "neglecting to

publish its policy of suspending .. . for

safety violations." Id. As seen, this is

not the complaint, it is the failure to

publish its interpretation of section 609

to allow the agency to order license penal-

ties.

The questions We urge the Court to

remand this case to the District of Colum-

bia Circuit, and instruct it to answer

these questions:

6 In a footnote the court states: "Section

13.19 allows the NTSB [sic] to suspend or revoke a

certificate when ‘public interest and safety in air

commerce requires it.’" Bellows v. National Tranp.

Safety Bd., supra, slip op. at 3 n.*. It is axion-

atic that rules do not confer authority, only the

agency’s basic charter can do that, otherwise an

agency could lift itself up by its own bootstraps.

They are an expression of what an agency claims it

is authorized to do by that charter.

1) Is the suspension by the FAA of a

pilot's certificate for the violation of a

safety regulation, when his qualifications

are not at issue, a "penalty," as that term

is commonly used?

2) Is such a penalty used by the FAA as

an alternative penalty to that of a civil-

money fine?

3) Is the FAA's claim of authority for

punitive certificate suspensions based on

an interpretation of the public interest

language contained in section 609 of the

Federal Aviation Act of 1958?

4) If so, and the interpretation has

never been published in the Federal Regist-

er, on what basis would that not be a viol-

ation of 5 U.S.C. § 552(a)(1)?

5) Is the license-penalty policy "subst-

antive" as the term is defined in the Ad-

ministrative Procedure Act and, if so, and

it has never been adopted through public

notice and comment, on what basis would

that not be a violation of 5 U.S.C. § 553?

6) In what official United States Gov-

ernment publication may a member of the

public find a statement that a pilot is

subject to losing his license for the viol-

ation of a safety rule?

CONCLUSION

For these various reasons, this petition

for certiorari should be granted.

Respectfully submitted,

Lawrence B. Smith

Attorney for Petitioner

August 1991

APPENDIX

TABLE OF CONTENTS

FAA Order of Suspension ..... ere ere

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NTSB Opinion and Order ....cccccccecces

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(Pp- 1]

U.S. Department of Transportation

Federal Aviation Administration

Alaskan Region

701 C Street, Box 14

Anchorage, Alaska 99513

Case No. 86AL620038

May 12, 1987

D - R RECEL REQUESTED

Mr. Kenneth A. Bellows

P.O. Box 204

Sitka, Alaska 99835

ORDER OF SUSPENSION

You were advised by mail through a Not-

ice of Proposed Certificate Action dated

November 19, 1986, of the circumstances and

reasons why we proposed to suspend your

Commercial Pilot Certificate No. 1688595.

After considering all the evidence pres-

ently a part of this proceeding, including

the information presented by you during a

telephonic informal conference held on May

5, 1987, the Administrator of the Federal

Aviation Administration, acting by and

through his Regional Counsel, has deter-

a-1

mined that:

1. You are now, and at all time herein-

after mentioned were, the holder of Commer-

cial Pilot Certificate No. 1988595.

2. On or about July 5, 1986, you, as

pilot-in-command, operated civil aircraft

N64398, a DeHavilland Model DHC-2, on a VFR

passenger-carrying flight being operated by

BellAir, Inc., for compensation or hire,

subject to the requirements of Part 135 of

the Federal Aviation Regulations, originat-

ing at Sitka, Alaska, with destinations of

Port Alexander, Alaska, and Port Armstrong,

Alaska.

3. Following your departure from Sitka,

you operated N64398 into and through a

cloud cover in your route of flight destin-

ations on top of the cloud cover.

[p- 2] 4. By operating N64398 in the manner

and under the circumstances set forth abo-

ve, you operated an aircraft in a careless

manner so as to endanger the life or prop-

erty of another.

5. By Order of Suspension dated Septem-

ber 4, 1980, issued by the Administrator of

the Federal Aviation Administration, and

subsequently affirmed by the National Tran-

sportation Safety Board and the U.S. Court

of Appeals for the Ninth Circuit, your

Commercial Pilot Certificate was suspended

for a period of ten (10) days for viola-

tions of Sections 91.9 and 91.79(c) of the

Federal Aviation Regulations.

Based on the foregoing, you violated the

following Federal Aviation Regulations:

(a) Section 91.105(a), in that you

operated an aircraft under VFR when the

flight visibility was less, or at a dis-

tance from the clouds that was less, than

that prescribed for basic VFR weather cond-

itions.

(b) Section 91.9, in that you operated

an aircraft in a careless manner so as to

endanger the life or property of another.

By reason of the foregoing, the Adminis-

trator has determined that safety in air

commerce or air transportation and the

public interest require the suspension of

your Commercial Pilot Certificate.

NOW, THEREFORE, IT IS ORDERED, pursuant

to the authority vested in the Adminis-

trator by Section 609 of the Federal Avia-

tion Act of 1958, as amended, that:

(1) Any pilot certificate now held by

you, including Commercial Pilot Certificate

No. 1688595, be and hereby is suspended.

(2) Said suspension shall become effec-

tive twenty (20) days after the date of

service of this Order, or on the date of

actual surrender of your certificate, if

earlier, and shall continue in effect until

the certificate has been suspended for a

period of forty-five (45) days.

(3) Said certificate be surrendered by

mail in the enclosed self-addressed, post-

age-paid envelope, or delivery to the Reg-

ional Counsel of the Federal Aviation Ad-

ministration, 701 C Street, Box 14, Anchor-

age, Alaska 99513-0087, on or before the

effective date of this Order.

(4) If you fail to surrender your cert-

ificate on or before the effective date of

this Order, said suspension shall continue

in effect until forty-five (45) days subse-

quent to the actual date of surrender ther-

eof to the Federal Aviation Administration.

(5) No application for a new pilot

certificate shall be accepted from you, nor

shall any certificate be issued to you,

during the period of suspension imposed by

this Order.

DONALD H. BOBERICK

Regional Counsel

By: /sS/

Leland S. Edwards, Jr.

Associate Regional Counsel

a-5

APPEAL

You may appeal this Order within twenty

(20) days from the time of its service upon

you to the National Transportation Safety

Board, Office of Administrative Law Judges,

800 Independence Avenue, SW., Washington,

D.C. 20594. Please refer to your individual

case number on all correspondence. You are

required to furnish a copy of your Notice

of Appeal to this office. In the event of

an appeal of this Order, Part 821 of the

National Transportation Safety Board Proce-

edings will be applicable to and govern the

proceedings, and a copy of this Order will

be filed with the Board and constitute the

Administrator's Complaint. Such appeal will

stay the effectiveness of this Order.

(p- 1] SERVED: July 22, 1988

UNITED STATES OF AMERICA

NATIONAL TRANSPORTATION SAFETY BOARD

OFFICE OF ADMINISTRATIVE LAW JUDGES

(303) 361-0615

RkKKKKKKKKKKKRKKKKKKRKKKKKKKKKRK KKK

T. ALLAN MCARTOR, Administrator,

Federal Aviation Administration, *

Complainant, *

* Docket

Vv. * SE-8333

KENNETH A. BELLOWS, *

Respondent. *

RaeKRKKKKKKKKKKKKKKKKKKRKKKKKKKKRK KKK

For Complainant: Delinda L. Wall, Esq.

For Respondent: John L. Geitz

Before: Patrick G. Geraghty

Administrative Law Judge

DECISION AND ORDER

Pursuant to Notice, this matter was

called for trial on July 11, 1988, in Sit-

ka, Alaska, on the Appeal of Kenneth A.

Bellows, hereafter Respondent, for review

of Complainant's Order which sought to

suspend Respondent's Commercial Pilot Cert-

ificate for a period of forty-five (45)

a-7

days.

Because of administrative difficulties,

the Court Reporter failed to appear. The

Parties agreed, however, to proceed despite

the absence of a reporter and formal rec-

ord, relying on this Judge's summary of the

evidence and his written notes of the pro-

ceeding. At the conclusion of the session

an Oral decision

{p- 2] and Order was stated, affirming the

Complaint. This written Decision and Order,

as agreed to by the Parties, is a restate-

ment of the Oral Decision made for purpose

of record.

AGREEMENTS

By Pleading it was agreed that the alle-

gations stated in Paragraphs 1, 2 and 5 of

the Complaint are not in dispute. Those

facts are, accordingly, taken as estab-

lished for purposes of deciding this pro-

ceeding.

DISCUSSION

Complainant called three (3) witnesses

in support of his Complaint, the first of

whom was Matthew Kirchhoff. This witness is

not a pilot, but in the course of his emp-

loyment has flown 200 to 300 hours in light

aircraft. On the date in question he and

his family, his wife and two (2) small

children, were passengers in the aircraft

operated by Respondent.

Prior to departing Sitka on the date of

the flight he had observed the weather in

the vicinity of Sitka Airport to be a solid

overcast at about 1000 feet above ground

level (AGL). On departure this witness was

seated in the rearmost seat. His wife and

two children were in the center seats and a

fourth passenger was in the right front

seat.

a-9

{p- 3] According to Mr. Kirchoff, after

takeoff, the aircraft climbed steadily for

about five (5) minutes and deliberately

entered the overcast, which was stated as

extending solidly to the west and east. The

aircraft, on his testimony, continued in

the clouds for about two (2) minutes. The

witness stated that he could see out the

side window next to him and observed that

visibility was obscured by thick clouds. He

stated that he could also see out the other

windows of the aircraft -- though he could

best observe out the side windows -- and

that to his view the aircraft was totally

in the clouds. The witness testified that,

after being in the clouds for the period

stated, the aircraft came out on top and

proceeded over the top of the undercast to

its destination. He stated, while not posi-

tive of the aircraft position, that, by

observing mountain peaks that showed above

a-10

the undercast and from direction of take-

off, he could place the approximate flight

path, which he drew on Exhibit C-1, a sec-

tional chart of the area.

Mrs. Patricia Kirchoff was seated on the

center seat bench, with her two (2) child-

ren, one on either side. She stated that

she could lean over her child and see clea-

rly out either of the two (2) side windows

and that she also could see out through the

front windshield. She also observed the

weather prior to takeoff, stating that it

appeared as a solid overcast without any

breaks.

{[p- 4] After takeoff she was pointing out

things to her children through the side

windows when she realized that the aircraft

had entered the cloud cover. She stated

that she became concerned to the point of

tapping Respondent's shoulder and asking

a-1l

why the aircraft was flying in the clouds.

According to her, Respondent simply replied

not to worry as they would be out (of the

clouds) ina few seconds. The witness stat-

ed that she then purposely looked out both

side windows and down and confirmed that

the aircraft was totally inside the cloud

formation, with visibility limited to about

the wing tips.

Robert Kolvig is employed by the Federal

Aviation Administration (FAA) as an Opera-

tions Inspector. His testimony was offered

to support Exhibit C-2 which is a written

statement submitted to the FAA by the pass-

enger who occupied the right front seat,

i.e., J.A. Smattan.

Mr. Smattan's statement is corroborated

by the testimony of Mr. & Mrs. Kirchhoff

and thus I consider the statement as reli-

able and probative. The statement indicates

that Mr. Smattan, from his position in the

a-12

right front seat, also observed Respondent

to operate the aircraft "through the clou-

ds" and that the cloud cover "was thick

with only the mountain tops showing."

Respondent did not testify on his own

behalf and called just one (1) witness, Mr.

Ronald Resman.

{[p- 5] Mr. Resman is employed by Alaska

Airlines as a pilot holding a Captain's

position. He has many flight hours in the

type of aircraft being operated by Respon-

dent at the time of this incident, i.e., a

DeHavilland DHC-2 "Beaver." He stated that

in this type aircraft, because of body

attitude in flight, passengers seated in

the rear can only see out through the upper

portion of the front window and that this

factor could result in the passengers thin-

king the aircraft was in clouds, if a cloud

was ahead of the aircraft. He conceded,

a-13

however, that rear passengers would have no

difficulty seeing out the aircraft's side

windows.

Respondent also offered Exhibit R-1,

copies of the Surface Weather Observations

made at Sitka Airport on the date in ques-

tion. The Exhibit was received in evidence

and is part of the record.

Respondent is charged with operating in

violation of Sections 91.105(a) and 91.9

Federal Aviation Regulations (FARs).1/

Section 91.105(a) specifies prescribed

visibility and distance from clouds for

aircraft being operated under Visual Flight

Rules. (VFR). The testimony of Mr. Kirch-

hoff and the

1/ See Attachment -- Photocopy Excerpt

from 14 CFR 91.105.

{[p- 6] flight path as drawn on Exhibit C-1,

establishes that the flight took place in

uncontrolled airspace. Accordingly, the

a-14

flight visibility and distance from cloud

requirements to be met were: at 1200 feet

or less AGL, 1 statute mile and clear of

clouds; more than 1200 feet AGL but less

than 10,000 MSL (mean sea level), 1 statute

mile, 1000 feet above, 500 feet under and

2000 feet horizontally from clouds.

The weight of the probative and reliable

evidence clearly shows that Respondent

deliberately operated his aircraft into and

penetrated a solid cloud overcast. The

testimony of Mr. & Mrs. Kirchhoff is not

directly challenged by anything offered by

Respondent. Further, their version of the

events is also borne out by the written

statement of the third adult passenger, Mr.

Smattan. Mr. Resman's testimony in no way

can be said to dispute the observations

made by Mr. & Mrs. Kirchoff out of the

aircraft's side windows, and of course, is

inapplicable to the observations made by

a-15

Mr. Smatten from the right front passenger

seat. The Exhibit R-1 gives surface weather

observations made at Sitka Airport and show

the existence of overcast conditions which

is generally supportive of the testimony of

Complainant's witness. Reports of breaks in

the overcast are not specific as to loca-

tion and cannot be reasonably related to

the point five (5) or more minutes into the

flight away from Sitka Airport. I

{p- 7] conclude and find, therefore, that

Respondent did deliberately operate his

aircraft into the then existing overcast,

thereby, operating in less than the pre-

scribed visibility and at less then the

distance from clouds specified in Section

91.105(a), regardless of whether the opera-

tion into the overcast occurred below or

above 1200 feet AGL.

Section 91.9 prohibits careless opera-

tion which endangers life or property of

a-16

others. Board precedent establishes that

potential endangerment from flight opera-

tion is sufficient to sustain a finding of

violation of this Section. Obviously the

operation performed by Respondent was at

least potentially hazardous as other air-

craft could have been operating in the

overcast or immediately above it. I find,

therefore, that the evidence establishes

Respondent operated in regulatory violation

of Section 91.9 FAR. And I so hold.

Respondent concedes to his prior FAR

violation record and it is to be taken into

account in assessing the penalty imposed

herein. Respondent has offered nothing that

would warrant reduction of the suspension

sought by Complainant. I find, therefore,

that safety in air transportation, air

commerce and the public interest requires

affirmation of the Order of Suspen-

sion/Complaint, particularly where one

a-17

considers that the operation was being

conducted under Part 135 FAR and thus

{[p- 8] requires a high degree of care and

judgment on the part of Respondent. He

failed to exhibit such in the conduct of

this flight.

| ORDER

IT IS THEREFORE ORDERED THAT:

(1) The Complaint/Order of Suspension be,

and it hereby is, affirmed as issued.

(2) Respondent's Pilot Certificate be,

and it hereby is,, suspended for a period

of forty-five (45) days, effective ten (10)

days from the date of this Order.

(3) Respondent must physically surrender

the Certificate either by personal delivery

or by mailing, postage prepaid, to the

Complainant or his authorized agent. If the

Certificate is surrendered on or before the

effective date of this Order, the suspen-

sion will commence as of that date; how-

ever, if not surrendered on or before the

effective date, the period of suspension

shall continue in force and effect until

the Certificate has been physically surren-

dered to and has been in the possession cf

the Complainant/Administrator for the per-

iod ordered herein.

Entered the 11th day of July 1988, at Sit-

ka, Alaska.

/8/

a-18

Patrick G. Geraghty

Judge

Attachment [Not reproduced, see 14 CFR §

91.105 (1986) }

a-19

(p- 1] SERVED: May 30, 1990

NTSB Order No. EA-3133

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 27th day of April, 1990

JAMES B. BUSEY, Administrator,

Federal Aviation Administration,

Complainant,

Docket

Vv. SE-8333

KENNETH A. BELLOWS,

Respondent.

—— — SS —T——>><={_—*—ax[$*{_—={[—$ {$q—ICIC >_S]"==[=_=_====—~=jJ

OPINION AND ORDER

The respondent has appealed from the

initial decision of Administrative Law

Judge Patrick G. Geraghty issued on July

22, 1988, following an evidentiary hearing

held on July 11. i/ By that decision the

law judge affirmed an order of the Adminis-

trator suspending respondent's

i/ A copy of the law judge's decision is

attached.

a-20

{p- 2] commercial pilot certificate for 45

days for his alleged violations of section

91.105(a) and 91.9 of the Federal Aviation

Regulations ("FAR," 14 CFR Part 91). 2/ For

the reasons that follow respondent's appeal

will be denied.

The Administrator's order of suspension,

which served as the complaint herein, alle-

ged among other things, the following con-

duct by respondent:

"2. On or about July 5, 1986, you, as

pilot-in-command, operated civil air-

craft N64398, a DeHavilland Model DHC-

2, on a VFR passenger-carrying flight

being operated by BellAir, Inc., for

compensation or hire, subject to the

requirements of Part 135 of the Feder~-

al Aviation Regulations, originating

at Sitka, Alaska, with destinations of

Port Alexander, Alaska, and Port Arnm-

strong, Alaska.

a-21

3. Following your departure from Sit-

ka, you operated N64398 into and thro-

ugh a cloud cover in your route of

flight and thereafter continued en

route toward your destinations on top

of the cloud cover."

2/ A copy of section 91.105(a) is attached

to the initial decision.

Section 91.9 provides as follows:

"§91.9 Careless or reckless operation.

No person may operate an aircraft ina

careless or reckless manner so as to endan-

ger the life or property of another."

(p- 3] The Administrator's case, for the

most part, was presented through the live

testimony of two of the passengers on the

flight and the written statement of another

passenger, all of whom gave testimony di-

rectly supporting the charge that respon-

dent had flown through a cloud layer. Res-

pondent did not testify in his own behalf

and the testimony of the one non-passenger

witness he did call, while conceding full

side window visibility, did little more

a-22

"2 | ,

than establish that rear seat passengers in

a DHC-2 Model aircraft have limited visibi-

lity through the front window.

Most of Respondent's argument on appeal

derive from the circumstance that no ver-

batim transcript of the hearing was made

because no reporter showed up to transcribe

the proceeding. Respondent contends that

absent a transcript he can not effectively

pursue his right of appeal to the Board

from the law judge's decision. We agree

that the lack of a transcript severely

restricts the scope of objections that

might otherwise have been available. How-

ever, as discussed below, the issue here is

not whether having no transcript adversely

affects a party's right to appeal, but,

rather, whether a party should be permitted

to renounce an agreement to go forward with

a hearing he knew at the outset would not

be recorded. As to that issue, our answer

is no.

a-23

{[p. 4] The record does not disclose why no

court reporter was available at the time

and place set for respondent's hearing. The

law judge's decision unequivocally states,

nevertheless, that the "Parties agree... to

proceed despite the absence of a reporter

and formal record, relying on this judge's

summary of the evidence and his written

notes of the proceeding." 3/ Although res-

pondent does not argue that the law judge

has misstated the parties' agreement in

this connection, he contends, by counsel,

for a variety of reasons that the agreement

should be deemed invalid or void. 4/ We

find no merit in any of them. 5/

3/ While a law judge has no authority to

hold a hearing without permitting a formal

record to be made, we see no reason why a

law judge should not be free tc accede to a

consensual request of the parties to that

end. At the same time, we think it well

within a law judge's authority to deny such

a request.

4/ We do not read the law judge's state-

ment of the parties' agreement to have

a-24

required him to provide them with a copy of

his notes of the testimony. Rather, he

appears to have intended to indicate that

the parties had agreed to rely on the law

judge's summary of the evidence which would

itself be based on his written notes. In

any event, it does not appear that respon-

dent ever requested a copy of those notes,

and the remote possibility that the law

judges' summary may not reflect all of the

evidence in his notes has no bearing, in

our judgment, on the validity of the agree-

ment the parties reached with each other.

5/ Absent some significant dispute concer-

ning the law judge's account of the issue,

we would find his statement in the initial

decision of the parties' agreement concer-

ning the matter to be adequate compliance

with the requirement of our regulations

that waivers be in writing or by stipula-

tion entered into the record. See 49 CFR

§821.13. By statute, the initial decision

is "part of the record...." See 5 U.S.C.

§557(c).

[p- 5] In our judgment, it should be self-

evident to a party, including one not re-

presented by legal counsel, 6/ that fore-

going a transcript of an adjudicatory hear-

ing would narrow the scope of objections

that could be effectively pressed, if avai-

lable at all, in the event of an appeal. 7/

Nevertheless, we do not think that the

a-25

possibility that respondent may not have

been fully aware of the consequences for

his right to appeal an adverse decision to

the Board undermines the validity of his

agreement to dispense with a transcript. We

think it neither necessary nor appropriate,

in the context of the certificate actions

we are authorized to review, to undertake

to determine whether, or to require a show-

ing establishing, that the decision of a

respondent to give up some right or benefit

rested on an adequate understanding of all

the likely ramifications. Rather, we beli-

eve it consistent with the nature of our

administrative adjudications to presume

that a respondent, including one who de-

cides not to secure professional legal

assistance, is both competent to make judg-

ments affecting the course of his appeal

and prepared to accept the consequences

6/ Respondent appears to have been repre-

sented by counsel at the time of his hear-

ing but his attorney did not attend the

a-26

hearing. Rather, an aviation consultant

attended the hearing as respondent's repre-

sentative.

7/ The failure to provide record citations

for alleged errors based on the evidence of

record may be treated by the Board as a

waiver of any objection based thereon. See

49 CFR section 821.48(c).

{[p- 6] of choices that may subsequently

turn out to have been ill-advised or unin-

formed. 8/ This case presents no occasion

to alter our views in this regard.

Respondent's remaining contentions in-

volve matters that either will not be con-

sidered because they cannot be resolved in

the absence of a transcript the parties

agreed to wave or legal arguments thorough-

ly refuted in the Administrator's reply

brief. They warrant no comment here.

ACCORDINGLY, IT IS ORDERED THAT:

i. The respondent's appeal is denied,

2 The Administrator's order of suspen-

sion and the law judge's "Decision and

Order" are affirmed, and

a-27

3. The 45 day suspension of respondent's

airman certificate shall commence 30 days

after service of this opinion and order. 9/

KOLSTAD, Chairman, COUGHLIN, Acting Vice

Chairman, LAUBER and BURNETT, Members of

the Board, concurred in the above opinion

and order.

8/ We think, for example, that while many

pro se respondents are successful in defen-

ding against certificate actions, a respon-

dent who represents himself more likely

than not compromises his chances of presen-

ting as effective a defense as might other-

wise be advanced if he were not pro se.

Notwithstanding that view, given the admin-

istrative, non-criminal nature of these

proceedings, a respondent may represent

himself without satisfying us that the

decision not to obtain counsel was a know-

ing informed one.

9/For purpose of this opinion and order,

the respondent must physically surrender

his certificate to an appropriate represen-

tative of the Administrator, pursuant to

FAR section 61.19(f).

a-28

(p- 1]

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1990

(Filed: March 29, 1991]

No. 90-1336

Kenneth A. Bellows,

Petitioner

Vv.

National Transportation Safety Board

and James B. Busey, Administrator,

Federal Aviation Administration,

Respondents

PETITION FOR REVIEW OF AN ORDER OF THE

NATIONAL TRANSPORTATION SAFETY BOARD

BEFORE: Silberman, Buckley and Henderson

Circuit Judges

JUDGMENT

This case was considered on the record

from the National Transportation Safety

Board and on the briefs filed by the par-

ties. The court has determined that the

issues presented occasion no need for a

published opinion. See D.C. Cir. Rule 14-

(c). For the reasons set forth in the ac-

companying memorandum, it is

ORDERED and ADJUDGED by the court that

petitioner's petition for review be and

hereby is denied.

a-29

The Clerk is directed to withhold is-

suance of the mandate herein until seven

days after disposition of any timely peti-

tion for rehearing. See D.C. Cir. R. 15(b)-

(2).

Per Curiam

For the Court

/3s/

Constance L. Dupre

Clerk

(P- 2] MEMORANDUM

Petitioner Bellows raises three argu-

ments before this court: (i) that the Nat-

ional Transportation Safety Board (NTSB)

failed to comply with section 553 of the

Administrative Procedure Act (APA), 5 U.S-

-C. § 553, by neglecting to promulgate 14

C.F.R. § 13.19, which authorizes the NTSB

to suspend pilots' licenses for safety

violations, through notice and comment

rulemaking; (ii) that the NTSB failed to

comply with section 552(a)(1)(D) of the

APA, 5 U.S.C. § 552(a)(1)(D), by neglecting

to publish its policy of suspending or

a-30

revoking pilots' licenses for safety viola-

tions; and (iii) that petitioner's due

process rights were violated because the

proceedings before the administrative law

judge (ALJ) were not formally recorded.

The first of these claims raises an

issue that this court has squarely addres-

sed and dismissed. In Komjathy v. NTSB, 832

F.2d 1294, 1296-97 (D.C. Cir. 1987), cert.

denied, 486 U.S. 1057 (1988), we held that

14 C.F.R. § 13.19 was not required to be

promulgated according to notice and comment

rulemaking. Also we noted that even were

such rulemaking required, the NTSB had

complied with that requirement in 1962. Id.

at 1297 n.1 (citing Go Leasing, Inc. v.

NTSB, 800 F.2d 1514, 1522 (9th Cir. 1986).

In light of Komjathy, we conclude that

petitioner's claim that the NTSB rule does

not comply with section 553 of the APA must

be dismissed.

a-31

The second claim raised by petitioner,

like the first, raises no significant is-

sue. Section 552(a)(1)(D) of the APA requi-

res

{[p- 3] publication of "substantive rules of

general applicability .. . and statements

of general policy or interpretations of

general applicability." Bellows argues that

14 C.F.R. § 13.19 does not give adequate

notice of the NTSB's authority to revoke or

suspend certificates for violating safety

rules.* Consequently Bellows would have us

conclude that section 552(a)(1)(D) of the

APA requires publication of the NTSB's

specific policy regarding suspension and

revocation of certificates. We reject this

expansive interpretation of section 552.

Because the NTSB's suspension and revoca-

tion policy "is not a statement of general

policy but, rather, is an expression of a

a-32

aii ie tl

specific application of the policy announ-

ced" in section 13.19, separate publication

is not necessary. Tearney v. NTSB, 868 F.2d

1451, 1454 (5th Cir.), cert. denied, 110

S.Ct. 333 (1989). Also we note that petit-

ioner's license had been suspended by the

NTSB once before and that earlier suspen-

sion constitutes actual notice of the NTSB

rule. Consequently, even if section 552(a)-

(1) (D) were to require publication of the

rule, petitioner could not challenge his

suspension on that ground: once an indivi-

dual has actual notice of an agency rule,

he cannot complain that that rule was not

published properly. See id.

Finally, petitioner's last claim must

fail because he waived his right to have

the proceedings before the ALJ officially

recorded. There is no evidence whatsoever

that would indicate that

*Section 13.19 allows the NTSB to sus-

a-33

pend or revoke a certificate when "public

interest and safety in air commerce requi-

res it."

{[p- 4] petitioner's waiver was not knowing

or intelligent. Instead petitioner merely

argues that no layman could have understood

the implications of a waiver and therefore

it would be unfair to find a waiver. Be-

cause petitioner participated in a previous

certificate suspension action, which he

litigated all the way to the appellate

level, we conclude that he was familiar

with Board proceedings and that his waiver

was knowing.

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1990

[Filed: May 29, 1991]

No. 90-1336

KENNETH A. BELLOWS

Petitioner,

Vv.

a-34

NATIONAL TRANSPORTATION SAFETY BOARD

AND JAMES B. BUSEY, ADMINISTRATOR, FEDERAL

AVIATION ADMINISTRATION,

Respondents.

BEFORE:

Silberman, Buckley and Henderson

Circuit Judges

ORDER

Upon consideration of petitioner's petition

for rehearing, filed May 8, 1991, it is

ORDERED, by the Court, that the petition

is denied.

Per Curiam

FOR THE COURT:

CONSTANCE L. DUPRE, CLERK

/3s/

BY: Robert A. Bonner

Deputy Clerk

5 U.8.C. § 551(4) (1982)

For the purpose of this subchapter --

(1) "agency" means each authority of the

Government of the United States, whether or

not it is within or subject to review by

another agency, but does not include --

zxeekeek

(4) "rule" means the whole or a part of

a-35

an agency statement of general or parti-

cular applicability and future effect desi-

gned to implement, interpret, or prescribe

law or policy or describing the organiza-

tion, procedure, or practice requirements

of an agency and includes the approval or

prescription for the future of rates, wag-

es, corporate or financial structures or

reorganizations thereof, prices, faciliti-

es, appliances, services or allowances

therefor or of valuations, costs, or ac-

counting, or practices bearing on any of

the foregoing.

5 U.8.C. § 552(a) (1) (1982)

Public information; agency rules, opinions,

orders, records, and proceedings

(a) Each agency shall make available to

the public information as follows:

(1) Each agency shall separately state

and currently publish in the Federal Regis-

——ter_for the guidance of the public --

a-36

(A) descriptions of its central and

field organization and the established

places at which, the employees (and in the

case of a uniformed service, the members)

from whom, and the methods whereby, the

public may obtain information, make submit-

tals or requests, or obtain decisions;

(B) statements of the general course and

method by which its functions are channeled

and determined, including the nature and

requirements of all formal and informal

procedures available;

forms available or the places at which

forms may be obtained, and instructions as

to the scope and contents of all papers,

reports, or examinations;

(D) substantive rules of general ap-

plicability adopted as authorized by law,

and statements of general policy or inter-

pretations of general applicability formu-

a-37

lated and adopted by the agency; and

(E) each amendment, revision, or repeal

of the foregoing.

Except to the extent that a person has

actual and timely notice of the terms there

of, a person may not in any manner be re-

quired to resort to, or be adversely af-

fected by, a matter required to be publi-

shed in the Federal Register and not so

published. For the purpose of this paragr-

aph, matter reasonably available to the

Class of persons affected thereby is deemed

published in the Federal Register when

incorporated by reference therein with the

approval of the Director of the Federal

5 U.8.C. § 553 (1982)

Rule making

(a) This section applies, according to

the provisions thereof, except to the ex-

a-38

tent that there is involved --

(1) a military or foreign affairs func-

tion of the United States; or

(2) a matter relating to agency mana-

gement or personnel or to public property,

loans, grants, benefits, or contracts.

(b) General notice of proposed rule

making shall be published in the Federal

are named and either personally served or

otherwise have actual notice thereof in

accordance with law. The notice shall

include --

(1) a statement of the time, place, and

nature of public rule making proceedings;

(2) reference to the legal authority

under which the rule is proposed; and

(3) either the terms or substance of the

proposed rule or a description of the sub-

jects and issues involved.

Except when notice or hearing is re-

a-39

quired by statute, this subsection does not

apply --

(A) to interpretative rules, general

statements of policy, or rules of agency

organizatio’ , procedure, or practice; or

(B) when the agency for good cause finds

(and incorporates the finding and a brief

statement of reasons therefor in the rules

issued) that notice and public procedure

thereon are impracticable, unnecessary, or

contrary to the public interest.

tion, the agency shall give interested

persons an opportunity to participate in

the rule making through submission of writ-

ten data, views, or arguments with or with-

out opportunity for oral presentation.

After consideration of the relevant matter

presented, the agency shall incorporate in

the rules adopted a concise general state-

ment of their basis and purpose. When

a-40

rules are required by statute to be made on

the record after opportunity for an agency

hearing, sections 556 and 557 of this title

apply instead of this subsection.

(d) The required publication or service

of a substantive rule shall be made not

less than 30 days before its effective

date, except --

(1) a substantive rule which grants or

recognizes an exemption or relieves a rest-

riction;

(2) interpretative rules and statements

of policy; or

(3) as otherwise provided by the agency

for good cause found and published with the

rule.

(e) Each agency shall give an interested

person the right to petition for the is-

suance, amendment, or repeal of a rule.

5 U.8.C. § 558 (1982)

Imposition cf sanctions; determination of

a-41

applications for licenses; suspension,

revocation, and expiration of licenses

(a) This section applies, according to

the provisions thereof, to the exercise of

a power or authority.

(b) A sanction may not be imposed or a

substantive rule or order issued except

within jurisdiction delegated to the agency

and as authorized by law.

x*keeke

5 U.8.C. § 706 (1982)

Scope of review

To the extent necessary to decision and

when presented, the reviewing court shall

decide all relevant questions of law, in-

terpret constitutional and statutory provi-

sions, and determine the meaning or ap-

plicability of the terms of an agency ac-

tion. The reviewing court shall --

(1) compel agency action unlawfully

withheld or unreasonably delayed; and

a-42

(2) hold unlawful and set aside agency

action, findings, and conclusions found to

be --

(A) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance

with law;

(B) contrary to constitutional right,

power, privilege, or immunity;

authority, or limitations, or short of

statutory right;

(D) without observance of procedure

required by law;

(E) unsupported by substantial evidence

in a case subject to sections 556 and 557

of this title or otherwise reviewed on the

record of an agency hearing provided by

statute; or |

(F) unwarranted by the facts to the

extent that the facts are subject to trial

de novo by the reviewing court.

a-43

In making the foregoing determinations, the

court shall review the whole record or

those parts of it cited by a party, and due

account shall be taken of the rule of prej-

udicial error.

49 0.8.C. app. § 1429(a) (1982)

Reinspection or reexamination; amendment,

suspension, or revocation of certification

(a) procedure; notification; hearing; ap-

peal to National Transportation Safety

Board; judicial review

The Secretary of Transportation

[Administrator] may, from time to time,

reinspect any civil aircraft, aircraft

engine, propeller, appliance, air naviga-

tion facility, or air agency, or may reexa-

mine any civil airman. If, as a result of

any such reinspection or reexamination, or

if, as a result of any other investigation

made by the Secretary of Transportation

(Administrator], he determines that safety

in air commerce or air transportation and

a~44

the public interest requires, the Secretary

of Transportation [Administrator] may issue

an order amending, modifying, suspending,

or revoking, in whole or in part, any type

certificate, production certificate, air-

worthiness certificate, airman certificate,

air carrier operating certificate, air

navigation facility certificate (including

airport operating certificate’, or air

agency certificate. Prior to amending,

modifying, suspending, or revoking any of

the foregoing certificates, the Secretary

of Transportation (Administrator] shall

advise the holder thereof as to any charges

or other reasons relied upon by the Secret-

ary of Transportation [Administrator] for

his proposed action and, except in cases of

emergency, shall provide the holder of such

a certificate an opportunity to answer any

charges and be heard as to why such cer-

tificate should not be amended, modified,

a-45

suspended, or revoked. Any person whose

certificate is affected by such an order of

the Secretary of Transportation [A-

administrator] under this section may appeal

the Secretary of Transportation's [A-

administrator's] order to the National Tran-

sportation Safety Board and the National

Transportation Safety Board may, after

notice and hearing, amend, modify, or reve-

rse the Secretary of Transportation's [A-

administrator's] order if it finds that

safety in air commerce or air transporta-

tion and the public interest do not require

affirmation of the Secretary of Transporta-

tion's [Administrator's] order. In the

conduct of its hearings the National Trans-

portation Safety Board shall not be bound

by findings of fact of the Secretary of

Transportation (Administrator). The filing

of an appeal with the National Transporta-

tion Safety Board shall stay the effective-

a-46

ness of the Secretary of Transportation's

[Administrator's] order unless the Secreta-

ry of Transportation [Administrator] ad-

vises the National Transportation Safety

Board that an emergency exists and safety

in air commerce or air transportation re-

quires the immediate effectiveness of his

order, in which event the order shall ren-

ain effective and the National Transpor-

tation Safety Board shall finally dispose

of the appeal within sixty days after being

so advised by the Secretary of Transporta-

tion (Administrator]. The person substan-

tially affected by the National Transporta-

tion Safety Board's order may obtain judi-

cial review of said order under the provis-

ions of section 1486 of this Appendix, and

the Secretary of Transportation [(A-

dministrator] shall be made a party to such

proceedings.

a-47

49 U.S.C. app. § 1471 (1982)

Civil penalties; notice and hearing; com-

promise; liens

(a) (1) Any person who violates (A) any

provision of subchapter III, IV, V, VI,

VII, or XII of this chapter * * * or any

rule, regulation, or order issued there-

under, * * * shall be subject to a civil

penalty of not to exceed $1,000 for each

such violation, * * * If such violation is

a continuing one, each day of such viola-

tion shall constitute a separate offense.

x *

(2) Any civil penalty may be compromised

by the Secretary of Transportation

[Administrator] in the case of violations

of subchapters III, V, VI, or XII of this

chapter, or any rule, regulation, or order

issued thereunder, * * *

14 C.F.R. § 13.19 (1986)

Certificate action.

a-48

(a) Under section 609 of the Federal

Aviation Act of 1958 (49 U.S.C. 1429), the

Administrator may reinspect any civil airc-

raft, aircraft engine, propeller, ap-

pliance, air navigation facility, or air

agency, and may re-examine any civil air-

man. Under section 501(e) of the FA Act,

any Certificate of Aircraft Registration

may be suspended or revoked by the Ad-

ministrator for any cause that renders the

aircraft ineligible for registration.

(b) If, as a result of such a reinspec-

tion, re-examination, or other investiga-

tion made by the Administrator under sec-

tion 609 of the FA Act, the Administrator

determines that the public interest and

safety in air commerce requires it, the

Administrator may issue an order amending,

suspending, or revoking, all or part of any

type certificate, production certificate,

airworthiness certificate, airman certifi-

a-49

cate, air carrier operating certificate,

air navigation facility certificate, or air

agency certificate. This authority may be

exercised for remedial purposes in cases

involving the Hazardous Materials Transpor-

tation Act (49 U.S.C. 1801 et seq.) or

regulations issued under that Act. This

authority is also exercised by the Chief

Counsel, the Assistant Chief Counsel for

Regulations and Enforcement, and the Regio-

nal Counsel concerned. If the Ad-

ministrator finds that any aircraft regist-

ered under Part 47 of this chapter is in-

eligible for registration or if the holder

of a Certificate of Aircraft Registration

has refused or failed to submit AC Form

8050-73, as required by § 47.51 of this

chapter, the Administrator issues an order

suspending or revoking that certificate.

This authority as to aircraft found in-

eligible for registration is also exercised

a-50

by the Aeronautical Center Counsel.

raph (b) of this section, the Chief Coun-

sel, the Assistant Chief Counsel for Regul-

ations and Enforcement, the Regional Coun-

sel concerned, or the Aeronautical Center

Counsel (as to matters under Title V of the

FA Act) advises the certificate holder of

the charges or other reasons upon which the

Administrator bases the proposed action

and, except in an emergency, allows the

holder to answer any charges and to be

heard as to why the certificate should not

be amended, suspended, or revoked. The

holder may, by checking the appropriate box

on the form that is sent to the holder with

the notice of proposed certificate action,

elect to --

(1) Admit the charges and surrender his

or her certificate;

(2) Answer the charges in writing;

a-51

(3) Request that an order be issued in

accordance with the notice of proposed

certificate action so that the certificate

holder may appeal to the National Transpor-

tation Safety Board, if the charges con-

cerning a matter under Title VI of the FA

Act;

(4) Request an opportunity to be heard

in an informal conference with the FAA

counsel; or

(5) Request a hearing in accordance with

Subpart D of this part if the charges con-

cern a matter under Title V of the FA Act.

Except as provided in § 13.35(b), unless

the certificate holder returns the form

and, where required, an answer or motion,

with a postmark of not later than 15 days

after the date of receipt of the notice,

the order of the Administrator is issued as

proposed. If the certificate holder has

requested an informal conference with the

a--52

FAA counsel and the charges concern a mat-

ter under Title V of the FA Act, the holder

may after that conference also request a

formal hearing in writing with a postmark

of not later than 10 days after the close

of the conference. After considering any

information submitted by the certificate

holder, the Chief Counsel, the Assistant -

Chief Counsel for Regulations and Enforce-

ment, the Regional Counsel concerned, or

the Aeronautical Center Counsel (as to

matters under Title V of the FA Act) issues

the order of the Administrator, except that

if the holder has made a valid request for

a formal hearing on a matter under Title V

of the FA Act initially or after an infor-

mal conference, Subpart D of this part

governs further proceedings.

(dad) Any person whose certificate is

affected by an order issued under this

section may appeal to the National Trans-

a-53

portation Safety Board. If the certificate

holder files an appeal with the Board, the

Administrator's order is stayed unless the

Administrator advises the Board that an

emergency exists and safety in air commerce

requires that the order become effective

immediately. If the Board is so advised,

the order remains effective and the Board

shall finally dispose of the appeal within

60 days after the date of the advice. This

paragraph does not apply to any person

whose Certificate of Aircraft Registration

is affected by an order issued under this

section. _

a-54

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.