Petition for Writ of Certiorari — Rochna v. Administrator

| Buarenis Court, US

rigkOD

SiL-341

| AUG 26 1991

QEFIGE OF THE CLERK |

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

STEPHEN J. ROCHNA,

PET” "IONER,

Ve

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 FIRST 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

its charter to authorize it to order susp-

ension and revocation of pilots' licenses

strictly 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 pub-

lish its interpretation in the Federal Reg-

ister or Code of Federal Regulations, or

promulgate the policy through public notice

and comment procedures?

2. Under the Bell Aerospace doctrine may

the FAA impose license penalties on a case

by case basis by adjudication before the

National Transportation Safety Board, rath-

er than create such a rule pursuant to APA

rulemaking procedures?

Page

QUESTIONS PRESENTED .....ccccccccccccces ok

AUTHORITIES CITED ...cccccccccccccccces iii

OPINIONS BELOW ...... eoccccccocccesoescees 1

JURISDICTION eeeneeee#ee#ee#e#ee#e eeee#ee#e#s? euneceseeeena

STATUTES INVOLVED .......... coccvceceocs evecs

STATEMENT OF THE CASE ....-.cccccccces 2224

REASONS FOR GRANTING THE WRIT .......22-- 8

Exceptional Importance ..............- 8

S. License-penalty policy violates

APA and bars the action

A. Failure to publish interpre-

tation of general applicability..... 14

B. Failure to promulgate through

APA public notice and comment

PFOCEGUTES .nccccccccccccccscccccces 18

II. Bell Aerospace doctrine not appli-

cable to creation of a "penalty" ...20

III. Decision below flawed, case should

be remanded with instructions ...... 23

CONCLUSION eeeenereeseserer#ese#shfeeeee#ene#seee#eesee#eses#ete#ee#*# 26

TABLE OF CONTENTS

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 ..... TeTTTTT,. «oe lt

ii

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

os = Ee! a Ee. > ) 9

Bellows, v. National Transp. Safety

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

Cale, WERs BE, TOSL) cccccccccece 1

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

mee (0.8.Ce. GF ClBims 1979) ..cccccss 19

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

ADO TS ae 12

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

eee cece veweecsers 12

Morton v. Ruiz, 415 U.S. 199 (1974) ..... 18

NLRB v. Bell Aerospace Co., 416 U.S. 267

TSRTS) obec ecveescoccocecs ebecoaepaneaaead

Northern California Power Agency v. Mor-

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

irmed 539 F.2d 243 (D.C. Cir. 1976) ..18

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

(11th Cir. 1984) *eee*ensee#eee#e#ee#e#e#s#ee#e#e#e#e#e### # 18

Pharmaceutical Mfrs. Assoc. v. Finch,

307 F.Supp. 858 (D. Del. 1970) ....... 19

iii

Rochna v. National Transp. Safety Bd.,

O29 7.36 13 CEBE GEEs TSGA) csvcccccccecd

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

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

SOP Tce: Fee I 9 6 6-0 wees cence csl2

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

(1892) 6 6 6 eek oe eb oe 68S 6 eeeaeweeee et ha

Statutes:

Administrative Procedure Act, 5 U.S.C.

§§ 551-559, 702-706 (1982):

§ 551(4) G80 OSCE ORCC SOECOEO COO COC EOE

§ 552(a)(1) ..... PKS eas Perr

a ee ee err Se

( OE occ es ee eT rrr re 13

Se a err er ae he 20

Federal Aviation Act of 1958, as amended,

49 U.S.C. app. §§ 1301-1552 (1982):

§ 1348 cccccccccccccccccccccccscceccccce 22

eo a ener ry 2,314.22

See GES -. Oo vieceseecuede ata a ied 13

Regulations:

Federal Aviation Regulations, 14 C.F.R.

Parts 1-199 (1988):

iv

Miscellaneous:

Compliance and Enforcement Progran,

FAA Order 2150.3 (1980) (Reprinted

Oct. 1983) eesoeeeeenstenstenereeneeeeeeeeeeee

Compliance and Enforcement, FAA Order

8030.7A, | 200 (1970) (Consol.

Reprint 1977) eoeeteeentee2eee@#eet#e#+e i 2 oe

55 Fed. Reg. 27548 (1990) ..........000.

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) ....

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

STEPHEN J. ROCHNA

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 FIRST CIRCUIT

vi

Petitioner Stephen J. Rochna respect-

fully prays that a writ of certiorari issue

to review the judgment and opinion of the

United States Court of Appeals for the

First Circuit, entered March 26, 1991, ~

order denying rehearing entered April 12,

1991.’

OPINIONS BELOW

The opinion of the First Circuit is

reported at 929 F.2d 13 (lst Cir. 1991),

and reprinted in the appendix.

The Opinion and Order of the National

Transportation Safety Board (NTSB), not

reported, is reprinted in the appendix; as

is the administrative law judge's (ALJ)

decision it affirmed.

JURISDICTION

The Federal Aviation Administration

+ Simultaneously filed with this is Bellows

v. Federal Aviation Administration, No. 90-1336,

slip op. (D.C. Cir., Mar. 29, 1991). Except for a

single additional (but different) issue injected by

the appeals court in each, the basic APA issues

raised by petitioners are identical.

SE

(FAA) initiated an enforcement action

against petitioner under 49 U.S.C. app. §

1429(a) by serving him with a Notice of

Proposed Certificate Action dated December

11, 1987, followed by an Order of Suspen-

sion dated March 14, 1988, which ordered a

90-day suspension of his Commercial Pilot

Certificate (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

28 and 29, 1988, by the ALJ, who affirmed

the suspension; the final Board order af-

firming some, but not all, of the charges,

and reducing the suspension to 30 days, was

entered August 24, 1990.

Mr. Rochna petitioned the Court of Ap-

peals for the First Circuit for review

under 49 U.S.C. § 1486. That court entered

judgment and opinion affirming the NTSB

order on March 26, 1991; an order denying

petition for rehearing was entered April

12, 1991. An Order extending time for fil-

ing petition for writ of certiorari to

August 25, 1991, was signed by Associate

Justice D.H. Souter and entered June 20,

1991,.

Jurisdiction of this Court to review the

judgment of the First Circuit is invoked

under 28 U.S.C. § 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),

352 (&) (2), 333, 356, FOE.

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 and administrative agencies

below. Sup.Ct.R. 10.1(a). We respectfully

urge it to grant certiorari and, as an

alternative to considering the strictly

legal issues raised itself, send the case

back to the Court of Appeals, directing it

to answer basic questions which should re-

solve the case there.

Mr. Rochna was charged by the FAA with

taking an Instrument Flight Rules (IFR)

flight carrying hazardous (radioactive)

materials in a single-engine airplane when

he lacked the following: (1) proper check-

rides for both aircraft and IFR flights;

(2) proper hazardous materials training;

(3) required ground training by the airtaxi

operator for whom he conducted the flight.

The FAA ordered his license suspended for

90 days as a penalty.

Although the lack of proper checkrides

was found by the ALJ to have been estab-

lished, this was so obviously not the case

that FAA-Washington which handled Mr. Roch-

na's appeal to the full Board recommended

those charges be dropped and the penalty

reduced to 30 days.” It should be noted

that Mr. Rochna disputed the claim he had

carried hazardous materials; he had been

instructed not to by the chief pilot, and

there was no direct evidence that he did.

He had also attended the required ground

school and official company records so

certified. He testified under oath that he

had, and his presence at there was testi-

fied to by the company president. In ef-

fect, he was impeached by information ob-

tained by the FAA in another matter invol-

ving the company, over which he had no

control--but rebutted by official records--

and by information obtained from him long

2 The issue was really whether checkrides for

another operator were transferrable. They were.

ee oe

before he was ever charged and when the

purpose and nature of what the agency was

after was obviously not clear. These mat-

ters, however, are not directly relevant to

the legal issues petitioner raises, the

most basic of which is:

The only penalty ever mandated by Con-

gress for airsafety violations is a civil

fine. The agency's claim of 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 a "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

against the citizen. The FAA denies neither

the above characterizations nor its failure

to publish.

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 First Circuit, although no such

contention was made by the FAA, made it

Clear that to an important extent its deci-

sion was based on the Bell Aerospace doc-

trine that, instead of by rulemaking, the

FAA could create the policy and impose

suspensions for violations by adjudication

on a case-by-case basis. This was a misap-

plication of that principle. For this rea-

i ii tinned aie.

son alone, the case should be returned to

the First Circuit.

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

Register and Code of Federal Regulations a

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-

alae a

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.)

10

The official wrong that petitioner con-

plains of, for himself and the next 80,000

citizens subjected to FAA license penal-

ties, is that in no official United States

Government publication is there any lan-

guage that warns the citizen pilot he or

she may be subjected to such a penalty for

violating an airsafety rule. Like petition-

er, two to three thousand persons every

year have their licenses suspended or re-

voked, hundreds of professionals lose mon-

ths 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 it authority to impose such a

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

deprives pilots of any opportunity, as

"interested persons," to indicate the cri-

teria they believe should be used to deter-

mine when a license penalty should be used

11

in lieu of a money fine.

Counsel for petitioner and Bellows, 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-

3 Because of these, the First Circuit accused

counsel for petitioner of being "oblivious to the

obvious" and of "foolish persistency.” 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.

12

cedure Act. In considering the importance

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 only 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

* 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.

5 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.

13

never used APA notice and comment proced-

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, the

Administrator has determined that saf-

ety in air commerce of air transporta-

tion and the public interest require

the suspension of your Airman Certifi-

cate No. 26585798.

NOW, THEREFORE, IT IS ORDERED, pur-

suant to the authority vested in the

Administrator by Section 609(a) of the

Federal Aviation Act of 1958, as amen-

ded, that:

(1) Any pilot certificate now held

by you, including Airman Certificate

No. 26585798, be and hereby is suspen-

ded. (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. (a-70)

14

i a

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, 4 205.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, 4 200 (1970) (Consol. Reprint 1977).

As section 609 contains no language

15

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

its brief before the First Circuit, the FAA

specifically admitted this: "[T)he FAA

action in this case was predicated on its

interpretation of its authority under §609-

(a) . . ." Brief for the Respondents at 27,

Rochna v. National Transp. 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

16

ee

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-

ishe@. .. ." 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 applicabilicy

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.

17

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.

18

ss *

§§ 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?

19

’

Law and precedent require that the safe-

ty-violation case against Mr. Rochna 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. Bell Aerospace doctrine not appli-

cable to creation of a "penalty"

The First Circuit rested its decision,

at least in part, on the exception to APA

rulemaking requirements set forth in NLRB

v. Bell Aerospace, Co., 416 U.S. 267 (19-

74), also adopted by the Fifth Circuit in

Tearney v. National Transp. Safety Bd.,

supra. It said:

Even if we assume, favorably to petit-

ioner, that the agency policy at issue

is a rule or regulation and not simply

a statement made in the course of an

agency adjudication, see NLRB v. Bell

, 416 U.S. 267, 294 (19-

Aerospace Co,

74), it still need not be promulgated

or published. (929 F.2d at 15.]

Rochna, supra, slip op. at 6 (a-57). In

Tearney the court stated: "The FAA has

20

broad discretion to proceed via formal

rulemaking or on a case-by-case basis when

it addresses safety concerns." 868 F.2d at

1453."

The position of neither the First nor

Fifth Circuits is sustainable. In Bell

Aerospace, the NLRB in an adjudicatory

proceeding was interpreting whether or not

"buyers" were the sort of "employees" in-

tended by the labor laws who could organize

a collective bargaining unit, rather than a

part of management, who could not. Could

that Board decision stand as a "rule," or

did the NLRB have to invoke APA rulemaking

procedures? 267 U.S. at 291-92. The Court

held it did not.

First, the difference between Bell Aero-

space and the instant case is vast. The

NLRB was interpreting a basic term, "enm-

ployees," already in its charter, to in-

clude a further kind of worker. Here, the

FAA is not expanding a term like "penal-

21

ties" to include, in addition to a money

fine, suspension of pilots' licenses, but

creating an entire system of justice out of

vague language about "public interest." If

the agency can do that, then why have a

lengthy and detailed Congressional charter,

why not a one-page statute directing the

Administrator to do whatever he deems to be

in the public interest, and let it go at

that? Moreover, the Court in Bell Aerospace

clearly exempted penalties from the hold-

ing: "Nor are fines or damages involved

here." Id. at 296 (emphasis added).

Secondly, the FAA Administrator has no

authority to adjudicate any kind of certi-

ficate case, 49 U.S.C. § 1429(a), and the

NTSB cannot make rules because it is res-

tricted to reviewing FAA orders. Id.

Thirdly, only the Administrator is auth-

orized to make airsafety rules, and in so

doing is mandated to follow the APA. 49

U.S.C. § 1348(c) & (d).

22

This case presents an important oppor-

tunity for the Court to clarify the Bell

Aerospace doctrine lest it erode the APA

beyond recognition. Use of that doctrine

provides another reason why this case sho-

uld be remanded, as we have asked for Bel-

lows, the companion case.

III. Decision below flawed; case should

be remanded with instructions

Some of the flaws We urge the Court to

remand this case to the First Circuit, if

for no other reason than the serious mis-

takes to be seen in its opinion. Like Bel-

lows, the court below has addressed issues

never raised by petitioner. And for the

same reasons: the FAA wrote its brief ina

manner to imply petitioner had.

The First Circuit states in its opinion:

"This appeal arises on a single issue

-" Rochna, supra, slip op. at 1 (a-51). And

proceeds to misstate the APA issue because

it leaves out the fact that petitioner was

23

complaining about FAA failure to publish or

promulgate its interpretation of section

609 on which it based its authority to

impose license penalties.

Later, stating that the case arose on a

single issue, the court, after discussing

the APA and cases, noted: "This [the APA}

is the second issue raised by Rochna. The

first, that of statutory authority, has

long been determined . ah Id. at 6 (a-

58). Not only did the court confuse the

number of issues it was dealing with, and

the order in which they were presented, but

this statement is utterly without founda-

tion. In no way did petitioner question FAA

authority to impose license penalties. As

occurred in Bellows, the FAA wrote its

brief to imply he had--to raise a strawman.

The questions We urge the Court to

remand this case to the First Circuit, and

instruct it to answer these questions:

24

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

Counsel for Petitioner

August 1991

26

APPENDIZ

TABLE O¥ CONTENTS

Page

FAA Order of Suspension .........eeee. a-l

RED ERAECLGL BOCISLOR .cccccccccesovece a-8

WESS Gpinion and OrGer ccccccscccccers a-39

First Ciri:uit Judgment and Opinion ... a-49

Order Denying Rehearing ..........2e6- a-61

SA oe 2! eer eee a-62

PPR EAS Cy aueeceues canek a-63

GS SBS cccccccevcccccvccccece a-65

BS SSS ceooveseceveevsvcvevucseés a-68

S FOS cc ecqesieevesedvvrecese a-68

49 U.S.C. § 1429(a) (§ 609) .......... a-70

S 26748 (§ PEA) cocvevesecese a-74

Be Gives (GB T2c BO 2 ce ecwsces 600 ke eeuks a-75

([p- 1]

U.S. Department of Transportation

Federal Aviation Administration

New England Region

12 New England Executive Park

Burlington, Massachusetts 01803

Case No. 87NE610127

March 14, 1988

= VEST

To: Mr. Stephen J. Rochna

P.O. Box 162

North Hero, VT 05474

e) R_O USP N

On December 11, 1987, you were advised

by mail, and hand served on December 14,

1987, through a Notice of Proposed Cert-

ificate Action of the reasons why we pro-

posed to suspend your Airman Certificate

No. 26585798.

After consideration of all the evidence

presently a part of this proceeding, it has

been determined that you are in violation

of the Federal Aviation Regulations herein-

after specified by reason of the following:

1. You are the holder of Airman Certifi-

a-l

- cate No. 26585798 with Commercial Pilot

privileges.

2. On June 22, 1987, you acted as pilot-

in-command of civil aircraft N9268C, a

Piper Arrow PA28R-201T, on a Cash Air,

Inc., revenue flight from Lawrence, MA to

JFK Airport, NY.

3. Said flight was conducted under IFR.

4. On said flight you carried hazardous

material for E.I. Dupont DeNemours.

5. At the time of said flight you were not

employed as a pilot by Cash Air, Inc.

6. At the time of said flight you had not

received hazardous material training accor-

ding to the Cash Air Company Training Man-

ual.

7. At the time of said flight you had not

completed Part 135 initial ground training

under the Cash Air Company Training Manual.

8. At the time of said flight you had not

had an Airman Competency/Proficiency Check

(FAA Form 8410-3) for Part 135 operations

a-2

|

for Cash Air, Inc.

9. At the time of said flight you were not

qualified to act as pilot in command in

Part 135 operations for Cash Air, Inc.

{[p- 2] By reason of the foregoing circum-

stances you violated the following Federal

Aviation Regulations:

(a) Section 135.333 in that you per-

formed assigned duties and responsibilities

for the carriage of hazardous materials (as

defined in 49 CFR 171.8) when, within the

preceding 12 calendar months, you had not

completed initial training in an appro-

priate training program established by the

certificate holder.

(b) Section 135.343 in that you served

as a crewmember in a Part 135 operation

without having completed the appropriate

initial phase of the training program ap-

propriate to the type of operation in which

you served since the beginning of the 12th

calendar month before that service.

a-3

(c) Section 135.293(a) in that you

served as pilot when, since the beginning

of the 12th calendar month before that

service, you had not passed a written or

oral test given by the Administrator or an

authorized check pilot on your knowledge in

the required areas.

(ad) Section 135.293(b) in that you

served as a pilot in an aircraft when,

since the beginning of the 12th calendar

month before that service, you had not

passed a flight check in the type of air-

craft you flew.

(e) Section 135.299(a) in that you

served as pilot-in-command of an flight

when, since the beginning of the 12th cal-

endar month before that service, you had

not passed a competency check given by the

Administrator or an authorized check pilot

in the type of aircraft you flew.

(f) Section 135.297(a) in that you

served as a pilot-in-command of an aircraft

a-4

under IFR when, since the beginning of the

6th calendar month before that service, you

had not passed an instrument proficiency

check under Part 135 administered by the

Administrator or an authorized check pilot.

By reason of the foregoing, the Adminis-

trator has determined that safety in air

commerce of air transportation and the

public interest require the suspension of

your Airman Certificate No. 26585798.

NOW, THEREFORE, IT IS ORDERED, pursuant

to the authority vested in the Adminis-

trator by Section 609(a) of the Federal

Aviation Act of 1958, as amended, that:

(1) Any pilot certificate now held by

you, including Airman Certificate No. 2658-

5798, be and hereby is suspended.

(2) Said suspension be effective on

April 2, 1988, and shall continue in effect

until said certificate has been suspended

for a period of ninety (90) days.

[p- 3] (3) Said certificate be surrendered

4

by mail or delivery to the Regional Counsel

of the Federal Aviation Administration, New

England Region, Room 311, New England Exec-

utive Park, Burlington, Massachusetts 018-

03, on or before the effective date of this

Order.

(4) In the event you fail to surrender

your certificate on or before April 2,

1988, said suspension will become effective

as of that date and shall continue in ef-

fect for a period of ninety (90) days.

(5) You may surrender your certificate

prior to the specified date, in which event

the period of suspension shall commence

upon such surrender and continue in effect

until ninety (90) days subsequent to the

actual surrender thereof.

(6) Failure to surrender your certifi-

cate pursuant to the terms of this order

may subject you tc civil penalties up to

$1,000 per day.

LAWRENCE C. SULLIVAN

Regional Counse., ANE~-7

a-6

|

By: /8/

Amy L. Corbett

General Attorney, ANE-7

APPEAL

You may appeal this by filing an origin-

al and four copies of your Appeal within

twenty (20) days from the time of its ser-

vice upon you to the National Transporta-

tion Safety Board, Office of the Adminis-

trative Law Judges, 800 Independence Ave-

nue, S.W., Washington, D.C. 20594, (202-

382-6770). A copy of your Notice of Appeal

should be furnished to this office. Such

appeal will stay the effectiveness of this

Order. You are hereby advised that, if you

appeal, a copy of this Order will be for-

warded to the National Transportation Safe-

ty Board and in such event will be consi-

dered the Administrator's Complaint.

{[p- 1] ISSUED: October 31, 1988

UNITED STATES OF AMERICA

NATIONAL TRANSPORTATION SAFETY BOARD

OFFICE OF ADMINISTRATIVE LAW JUDGES

,

RARKRKKKRKRKRKRKRKRKRRKRKRKRRRKERKARKRRRRRARRRRRE

T. ALLAN MCARTOR, Administrator,

Federal Aviation Administration, *

*

Complainant, *

* Docket

Vv. * SE-9155

*

STEPHEN J. ROCHNA, *

*

Respondent. *

RekKRRKRKKKKRRKREKEKKKRARRRRKRAKKRKRKRKKRREE

Amy L. Corbett, Esquire, for Complainant.

Lawrence B. Smith, Esquire, for Respondent.

INITIAL DECISION AND ORDER

John E. Faulk. Administrative Law Judge:

This proceeding arises under the provi-

sions of Section 609 of the Federal Avia-

tion Act of 1958, as amended (49 U.S.C.

1429). It comes here on plea of Stephen J.

Rochna (Respondent) seeking review of the

Order of Suspension, which serves as the

complaint, of the Federal Aviation Adminis-

tration (FAA), suspending Respondent's

airman certificate for a period of ninety

(90) days.

In the complaint it is alleged that on

a-8

seeerneenninnr ninemsn

June 22, 1987, the Respondent acted as

pilot-in-command of a Part 135 cargo flight

transporting hazardous materials for Cash

Air, Inc., under IFR conditions from Law-

rence, Massachusetts to JFK Airport in New

York, during which time he was neither an

employee of, nor qualified to act as pilot-

in-command of a Part 135 flight for Cash

Air. Respondent's lack of qualification to

conduct the Part 135 flight stems fron,

{[p- 2] according to the complaint, his not

having received hazardous materials train-

ing, not completing initial ground training

and not having had an Airman Competency/-

Proficiency check from Cash Air. As a re-

sult of these allegations, it is asserted

that Respondent violated the following

provisions of the Federal Aviation Regula-

tions (FAR):

Section 135.333 in that he performed

assigned duties and responsibilities for

the carriage of hazardous materials (as

defined in 49 CFR 171.8) when, within the

preceding 12 calendar months, he had not

completed initial training in an appro-

priate training program established by the

certificate holder.

Section 135.343 in that he served as a

crewmember in a Part 135 operation without

having completed the appropriate initial

phase of the training program appropriate

to the type of operation in which he served

since the beginning of the 12th calendar

month before that service.

Section 135.293(a) in that he served as

pilot when, since the beginning of the 12th

calendar month before that service, he had

not passed a written or oral test given by

the Administrator or an authorized check

pilot on your knowledge in the required

areas.

Section 135.293(b) in that he served as

a pilot in an aircraft when, since the

a-10

beginning of the 12th calendar month before

that service, he had not passed a competen-

cy check given by the Administrator or an

authorized check pilot in that type of air-

craft.

Section 135.299(a) in that he served as

pilot-in-command of a flight when, since

the beginning of the 12th calendar month

before that service, he had not passed a

flight check in the type of aircraft you

flew.

Section 135.297 (a) in that he served as

a pilot-in-command of an aircraft under IFR

when, since the beginning of the 6th calen-

dar month before that service, he had not

passed an instrument proficiency check

under Part 135 administered by the Adminis-

trator or an authorized check pilot.

Hearing was held in Boston, Massachu-

setts on July 28 and 29, 1988. At its con-

Clusion, the parties presented oral argu-

ment*/ The arguments,

a-li

*/ Motion made by Respondent and denied at

the outset of the hearing and subsequently

reasserted during the course of the hearing

has been reconsidered and is denied.

[p- 3] along with all evidence of record

have been considered, although not neces-

sarily discussed or specifically referred

to hereafter.

THE EVIDENCE

Mr. Stephen Ferraro was subpoenaed by

the Complainant to testify. Ferraro was

employed by Cash Air from April to June

1987 as a Part 135 pilot primarily trans-

porting cargo. On June 22, 1987, Ferraro

made a flight for Cash Air involving the

transportation of radioactive materials as

shown on the bill of lading (R-2). As pil-

ot-in-command of the flight, Ferraro was

required to sign the bill of lading in

order to, inter alia, make him aware that

he was transporting hazardous materials. He

signed pages 2 and 3 of the bill of lading

but not page 1.

a-12

ee

The shipper was New England Nuclear

Products (NEN) . The shipment arrived about

6 P.M. whereupon loading began of Ferraro's

aircraft. It was known before the shipment

arrived that an additional aircraft would

be required to transport the cargo. The

Respondent was there and was assigned to

fly an Arrow parked in close proximity to

Ferraro's aircraft. Ferraro got into his

aircraft as the loading proceeded and Res-

poident stood on the ground by the aircraft

door and assisted in loading the Navajo;

handing the boxes to another employee in-

side the cabin of the Navajo. Ferraro could

see the Respondent standing on the ground

performing the loading by looking back to

his left from the cockpit. Ferraro's air-

craft was loaded with cartons marked radio-

active (A-1) as indicated on the bill of

lading (R-1, pp 2 and 3). The excess cargo

was to be loaded in the Arrow which respon-

dent was to fly. As soon as the Navajo was

a-13

loaded, Ferraro departed. As a result,

Ferraro did not see Respondent loading his

aircraft nor did he see the Respondent

takeoff. However, Ferraro did hear Respon-

dent on the radio frequency about

[p. 4] twenty minutes later and did see

Respondent at JFK shortly after he had

landed. Ferraro had no doubt that Respon-

dent did in fact make the flight as the

Arrow had been positioned close to his

aircraft while being loaded; Respondent was

there for that purpose; he heard Respondent

on the frequency while Ferraro and Respon-

dent were both airborne and saw Respondent

at JFK shortly after Respondent had landed.

Ferraro was not a voluntary witness,

having been subpoenaed by the Complainant.

While Ferraro's flight was made from Law-

rence to JFK under IFR conditions, Ferraro

was restricted to single pilot VFR opera-

tions only. Also, Ferraro was given very

a-14

beeen

little ground training by Cash Air. Ferraro

has never been sanctioned by the FAA for

the above violations of the FAR.

Mr. Earl C. Mallard is employed by the

FAA as the Hazardous Materials Coordinator

of the New England Region. His duties in-

Clude ensuring compliance with the hazar-

dous materials regulations, as well as

monitoring the training of those who handle

hazardous materials in the New England

Region. Hazardous materials training is

broken down into two segments. One has to

do with identifying hazardous material

labels by class as well as reporting proce-

dures. A more in-depth training segment

deals with the understanding of the various

regulations, preparation of documents,

loading and transporting procedures.

During the course of the investigation

of this incident, Mallard contacted the

manager of physical distribution for NEN,

the shipper of the products involved. It

a-15

was learned by Mallard that NEN had a list

of all of Cash Air's aircraft as to their

type and size and that NEN made a deter-

mination that two of Cash air's aircraft

were required for its cargo move-

{(p- 5] ment of June 22, 1987, from Lawrence

to JFK and identified to Cash Air the spec-

ific aircraft required. NEN was billed and

paid Cash Air for the use of the Navajo and

Arrow. Upon delivery of the cargo to the

carrier, the pilot is required to sign the

bill of lading. Here, the Respondent signed

page 1 of the bill of lading (R-2) and the

pilot of the Navajo, Ferraro, signed pages

2 and 3 of the bill of lading (R-2). About

half of the cargo on pages 2 and 3 of the

bill of lading were non-hazardous materials

while those signed for by Respondent were

almost all hazardous materials classified

as Yellow II and III. All of the hazardous

materials cartons (A-1) were identical; all

a-16

a” a

having a radioactive label. A primary rea-

son for the pilot's signature on the bill

of lading is to make him aware that he is

transporting hazardous materials.

Mr. Dennis M. Ouimette is employed by

the FAA as an Aviation Safety Inspector and

has extensive aviation experience; having

many hours of flight and hold several rat-

ings. Also, he has extensive experience in

the conduct of a Part 135 operation having

been so employed for a long period of time

prior to his current employment with the

FAA. On June 17, 1987, this witness testi-

fied that he made a routine inspection of

Cash Air. He asked for and was provided

flight and duty record of company pilots,

including their training folders. Subse-

quently, on June 24 the witness became the

principle [sic] operating inspector for the

Company and two days later, on June 26,

1987, a full scale investigation by an FAA

team was initiated as a result of a fatal

a-17

accident involving another aircraft of Cash

Air. This was a more in-depth inspection.

During the course of this inspection, as

well as the previous one of June 17, 1987,

Cash Air never produced any records per~-

taining to the Respondent although a re-

quest had been made for all pilot records.

As to the pilot training program of the

Company, the FAA had required the Company

[p- 6] to advise the FAA when ground train-

ing was to occur so that the training could

be observed. Twenty-two (22) hours of such

training was required (A-5). Between April

10 and May 12, 1987, four letters were

received from the Chief Pilot of the Com-

pany (A-6 through A-9) reflecting the gro-

und training given and a list of the pilots

receiving said training. Respondent's name

was not included. Ouimette further testi-

fied that he had no evidence from the Com-

pany that. Respondent had been employed or

a~-18

had received any ground training. Nor was

there any evidence that Cash Air gave the

required notice of the training to the FAA.

Continuing his investigation of this

incident, the witness contacted the Respon-

dent in Chicago on July 7, 1987, by tele-

phone. During the course of the telephone

conversation, Respondent advised Ouimette

that he had become employed by the Company

on July 6, 1987, at which time he received

a checkride. He stated that he never had

operated an aircraft for the Company as

pilot-in-command prior to this date. Also,

Ouimette testified that Respondent stated

he had sixteen (16) hours of pilot ground

training but had not received any hazardous

materials training. Respondent thought none

was needed since the Chief Pilot had advi-

sed him that he would not be piloting air-

craft carrying such materials. The witness

further testified that after advising Res-

pondent that the FAA was aware that Respon-

dent had made the flight of June 22, 1987,

Respondent then stated that he did make the

flight but that he was not paid for this

flight and that he had no idea what the

cargo was, or whether it was a Part 91 or

135 flight. Respondent also stated, accord-

ing to the witness, that he had flown ina

separate aircraft in conjunction with Fer-

raro. The purpose of his [Respondent's]

flight was to handle the overflow cargo as

the shipment would not fit into one air-

craft. Ouimette made a record of his tele-

phone conversation (A-10).

[p- 7] As a result of the investigation

into the fatal crash of June 24, 1987, the

witness testified that since some of Cash

Air's pilots lived in outlying areas, a

questionaire was sent to these pilots,

including Respondent. In a written response

to the questionaire (A-11) dated July l,

1987, the Respondent indicated he had rece-

a-20

tinier eal

ived from the Chief Pilot of the Company

ten (10) hours of ground training; had

checked the question as to hazardous mater-

ials training as "N/A" and the same resp-

onse was made to recurrent hazardous mater-

ials training; "N/A" was also the response

to whether Respondent had had an initial

flight check under Part 135; and Respondent

indicated he began his employment with Cash

Air on July 5, 1987. Ouimette further test-

ified that his investigation revealed none

of the Cash Air pilots had received full

hazardous materials training.

Ouimette also testified that each Part

135 pilot must have a flight proficiency

check given by the company employing the

pilot. The record of such flight is record-

ed on FAA Form 8410-3. Respondent did not

have a current 8410-3 for Cash Air. How-

ever, Respondent had been issued two separ-

ate 8410-3's for another Part 135 carrier,

New England Flyers. One form was dated

a-21

September 27, 1986, (R-7) and the other,

March 23, 1987, (R-8). Except for the ex-

piration of the six months IFR proficiency

requirement as shown in R-7; had the June

22, 1987, flight been made for New England

Flyers, Respondent would have met the re-

quirements of Section 135.293(a) and (b);

135.299(a) and 135.297(a). However, Oui-

mette further testified that inasmuch as

Respondent had not received the appropriate

initial training from Cash Air he was not

qualified to make the Part 135 flight of

June 22, 1987. Moreover, testified the

witness, while a 8410-3 would be valid for

one carrier, the same 8410-3 would not be

valid for

{[p- 8] another carrier. There is an FAA

policy which states that before an 8410-3

can be accepted by the new carrier, docu-

mentation must flow between the new carrier

and the FAA requesting approval by the new

a-22

carrier and being granted such by the FAA.

Ouimette acknowledged that a pilot would

not be aware of such a policy and thus

cannot be held accountable (T-222); even

though such was well known and recognized

in the industry as a standard practice. The

witness also acknowledged that this policy

is not stated in the Operations Inspectors

Handbook for Part 135 operations, No. 8430

ID. Also, with respect to said handbook

(8430 ID) Ouimette acknowledged that a sub-

paragraph "f" Free-Lance Pilots, (R-6)

permits the use of 8410-3 by another car-

rier under certain conditions listed there-

in and makes no mention of the FAA policy

of additional documentation.

Mr. Ronald Crete was called to testify

on behalf of the Respondent. At the time of

the incident, June 22, 1987, Crete was

owner and President of Cash Air which began

operations as a Part 135 carrier in May of

1986, and ceased operations in July of

a-23

1987, as a result of an emergency order of

revocation. Crete testified that he had, in

conjunction with his Chief Pilot, prepared

a hazardous materials training program for

his Company which was contained in Cash

Air's operations manual. The operations

manual submitted to the FAA was approved

except for that portion dealing with hazar-

dous materials. Nonetheless Cash Air pilots

received such training. Recognition train-

ing is required by an FAR and need not be

part of the manual. Crete testified he

would only accept hazardous materials for

transporting if they had a transportation

index of fifty (50) or less. Regarding the

flight of June 22, 1987, Crete asserted he

became aware of

{[p- 9] the flight about an hour before it

occurred, having received a telephone call

from his dispatcher. Crete stated that he

was asked by the dispatcher if the Respon-

a-24

dent could be used to fly the Arrow as the

second section. Crete approved even though

his operations specifications permitted

only the use of multi-engine aircraft (A-

15). He assumed the dispatcher would be

flying the Navajo and was not advised that

-Ferraro would be doing so. Also, Crete

stated he was unaware of the nature of the

cargo. Crete testified he approved of the

Respondent flying the Arrow as he had the

appropriate FAA certificates; had the ne-

cessary 8410-3 forms from a previous car-

rier (R-7 and R-8); and had received ground

training from Cash Air in May 1987, (R-13).

Crete also testified he had reviewed FAA

Inspectors Handbook, 8430 ID and found

Respondent qualified thereunder (R-9 thro-

ugh R-12). On June 22, 1987, Respondent was

not employed by Cash Air but was considered

to be a free-lance pilot and as such, had

no obligation to take this flight. Although

Respondent had been interviewed in either

a-25

April or May; had taken his ground school

training with Cash Air and had flown with

Cash Air pilots in the right seat to obser-

ve Company operations, he was not employed

until July 6, 1987.

Crete also testified that he was aware

that the FAA required notice of his train-

ing sessions and they had been so advised

by telephone and by letter. However, no one

from the FAA showed for the April and May

sessions. Crete stated he did not have

copies of the letters sent to the FAA as

they are with his former Chief Pilot who is

now in Alabama. The former Chief Pilot had

written the letters and made the phone

calls to the FAA. Also, Crete testified

that the FAA did not ask for Respondent's

records.

The Respondent holds a Commercial Pilot

certificate with instrument and multi-en-

gine privileges. He testified that prior to

his employment with

a-26

|

{[p- 10] Cash Air, he was employed by a Part

135 cargo operator. Also he worked part-

time towing banners. At New England Flyers,

the Respondent testified he had received

hazardous materials handling training.

Sometime in March of 1987, Respondent in-

terviewed with the owner of Cash Air, Mr.

Crete concerning employment. He was asked

by Cash Air to take ground training begin-

ning in May 1987, totaling about twenty-

eight (28) hours (R-13). According to Res-

pondent's testimony, the Chief Pilot Mr. |

Roberts, advised him that he had completed

the required ground training for Cash Air.

It was Respondent's understanding that this

training, coupled with the 8410-3's he held

from New England Flyers, made him qualified

for single engine Part 135 operations for

Cash Air (R-8).

Respondent testified he had been con-

fused about the questions asked by the FAA

in its questionaire (A-11) which he had

answered on July 1, 1987. In answering the

questionaire, Respondent had indicated he

began his training with Cash Air on July 5,

1987, while R-13 indicates he had completed

twenty-eight (28) hours in May of 1987.

Respondent's rationale for this inconsis-

tency was that he began flight training in

the right seat. And, the discrepancy be-

tween the ten (10) hours of training shown

on the FAA questionaire dated July 1, 1987,

and the twenty-eight (28) hours shown on R-

13, is explained as a misunderstanding on

the part of the Respondent. His training

was about ten (10) hours a day and he resp-

onded to the question about initial train-

ing as the first day of training, not the

total amount of training. As to the dissin-

ilarity between the amount of hours stated

over the telephone to Ouimette (sixteen

hours) and that shown on R-13, Respondent

testified he had been awakened by Ouimet-

a-28

te's call after being asleep only a few

hours and after a long day of duty and he

does not remember much about the conversa-

tion.

{[p- 11] Respondent further testified that

he did make the flight of June 22, 1987, as

alleged in paragraphs 2 and 3 of the con-

plaint. He was still employed by New Engl-

and Flyers at the time. Respondent testi-

fied he was called by Cash Air to fly as a

backup pilot for a shipment from Lawrence

to JFK. He arrived at the Cash Air facility

between 6:00 and 7:00 P.M. The Navajo was

to be flown by Ferraro and Respondent was

to fly the Arrow. The description of the

unloading of the shipment from the truck

intc the Navajo is generally consistent

with the testimony of Ferraro. However,

Respondent further testified that when the

Navajo was loaded to a point, he began

carrying cartons over to the Arrow which

a-29

was parked behind the Navajo and slightly

to its left. (R-16) The Arrow would carry

about a fourth to a third of the bulk that

could be handled by the Navajo. Respondent

testified that he personally loaded the

Arrow, making several trips from the truck

to the Arrow carrying a number of cartons

about one cubic foot in size. Approximately

half of the cartons were not labeled or

marked as hazardous materials. Inasmuch as

the Chief Filct had told him he had not

received hazarcous materials training at

Cash Air, he would not be handling such

materials. Thus, he testified he only pick-

ed out the cartons that were not labeled as

hazardous materials and loaded only those

into the Arrow. Respondent's recollection

was equivocal as to why he signed page 1 of

the bill of lading (R-2), which reflected

that he had signed for cartons labeled as

hazardous materials (A-2).

DISCUSSIONS AND CONCLUSIONS

a-30

There is no question that the Respondent

did on June 22, 1987, act as pilot-in-con-

mand of a singled engine aircraft on a Part

135 flight for Cash Air from Lawrence to

JFK under IFR conditions. The evidence so

reveals

[p- 12] and the Respondent so concedes.

At issue is whether Respondent was quali-

fied to do so under the FAR. To begin with,

there is no question that Cash Air's Opera-

tions Specification did not permit Part 135

operations in single engine aircraft (A-

15). Thus, Respondent could not have law-

fully performed said flight in the Arrow.

But turning to the specifics of the com-

plaint, it is alleged, inter alia, that

Respondent in making the flight in ques-

tions violated 135.293(a) and (b); 135.-

297(a) and 135.299(a) for the reasons stat-

ed in the complaint (supra, page 2). How-

ever, Respondent contends that he met the

a-31

requirements of these FAR in that he had

passed a written or oral test given by an

authorized check pilot. And, the evidence

does disclose that Respondent had been

issued FAA Forms 8410-3 reflecting such

qualification but for a carrier other that

Cash Air. It is Respondent's and his sup-

porting witness' contention that such is

valid for Respondent's June 22 flight for

Cash Air. To the contrary, the Complain-

ant's witness contends there is an FAA

policy toe the effect that before the 8410-3

can be accepted it must be approved by the

FAA. While this policy may be well under-

stood by the industry in general, Ouimette

stated that an individual pilot could not

be held accountable for such. Notwithstand-

ing the inspector's concession, the speci-

fic regulations are worded in such a fash-

ion as to limit the applicability of the

8410-3 to the operations of the carrier for

whom it was issued. For example, quoting in

a-32

pertinent part from Section 135.293(a), the

following language is found:

No certificate holder may use a

pilot, nor may any person serve as a

pilot, unless, since the beginning of

the 12th calendar month before that

service, that pilot has passed a writ-

ten or oral test given by the Admin-

istrator or an authorized check pilot

on that pilot's knowledge in the fol-

lowing areas... (Emphasis added).

While Sections 135.297(a) and 135.299(a),

deal with other requirements, all

{[p- 13] have the same limiting language,

"that service”. Thus, the requirement in

all three aforementioned regulations is

that "...before that service..." can be

initiated by the new carrier or the pilot,

the demands of these sections must be made

[sic]. No doubt, this is the basis for the

Administrator's policy which Ouimette re-

ferred to. Inasmuch as the Respondent made

the June 22 flight without having met the

requirements for Cash Air, it is found that

Respondent violated Section 135.293(a) and

a-33

(b); 135.297(a) and 1235.299(a) of the FAR

as charged in the Complaint.

Turning to the allegation that Respon-

dent violated Section 135.343 of the FAR,

the evidence is in conflict. Respondent and

his supporting witness, Crete, testified

that Respondent had completed his initial

training program as required by Section

135.343. In support thereof R-13 was re-

ceived which purports to be Respondent's

training record. This exhibit indicates

that Respondent received the subject train-

ing on May 9, 10 and 11 of 1987, totaling

twenty-eight (28) hours. Crete testified

that he saw Respondent at these sessions

and that his formed Chief Pilot had advised

him that Respondent had completed the trai-

ning. Respondent also testified to the same

effect. However, in a Cash Air internal

memorandum dated May 12, 1987, from the

formed Chief Pilot to Crete (A-8), Respon-

dent's name is not listed as one of the

a-34

a

pilots having successfully completed the

required training. Also damaging to Respon-

dent is his statement made to Inspector

Ouimette on July 17, 1987, that he had only

sixteen (16) hours of initial training.

While the Respondent and Crete attempted to

explain away the inconsistencies, the expl-

anations are found to be

{[p- 14] incredulous and therefore, all

credibility findings are made against the

Respondent and his supporting witness. As a

result, Respondent is found to have vio-

lated Section 135.343 of the FAR.

Finally, Respondent is charged with a

violation of Section 135.333 of the FAR.

There is no creditable evidence in the

record to show that Respondent was given

hazardous materials training by Cash Air.

Moreover, it is Respondent's testimony that

he was told by Cash Air's Chief Pilot that

he had not had such training and therefore

a-35

would not be transporting hazardous mater-

ials; and because he did not have the re-

quired training, he loaded only cartons

into the Arrow that did not have labels

indication they were hazardous materials.

it is clear f.om Respondent's own testimony

(T-434) that he did not have the training

required by Section 135.333. But, Respon-

dent's defense is that even thought he did

not have the training, none was required

because he transported only non-hazardous

materials. This testimony is refuted by

Respondent's signature on page 1 of the

bill of lading which reflects that almost

all of the cartons he accepted for trans-

portation were labeled as hazardous mater-

ials (R-2, page 1). Respondent's explana-

tion as to why his signature appeared on

page 1 of the bill of lading is found to be

vague and obscure, therefore not credible.

As a result, it is found that Respondent

did transport hazardous materials on June

a-36

22, 1987, without having the required trai-

ning in violation of Section 135.333 of the

FAR.

SANCTION

The ninety (90) day suspension sought by

the Administrator for the violations found

to have occurred is consistent with Board

precedent and will be imposed as provide

for in the Order herein.

{p- 15] IT IS THEREFORE, ADJUDGED AND OR-

DERED THAT:

1. The Administrator's Order of Suspen-

sion be, and the same is hereby affirmed as

issued.

2. That the Respondent's Commercial

Pilot Certificate with attached ratings and

limitations be, and the same is hereby

suspended effective ten (10) days from this

date for a period of ninety (90) days.

3. The Respondent shall surrender his

certificate either by personal delivery to

an authorized representative of the Admini-

strator or by placing the certificate in

the United States mail, postage prepaid,

and properly addressed to an authorized

representative of the Administrator.

4. If the Respondent surrenders his

certificate on or before the effective date

of this Order, the period of suspension

shall commence to run as of the actual date

of surrender. However, if the Respondent

does not surrender his certificate to the

Administrator within the time provided, the

period of suspension shall continue in

force and effect until the certificate has

been physical)y surrendered to the Adminis-

trator and has been in the possession of

the Administrator for the period specified

herein.

Entered this 3lst day of October, 1988,

at Melbourne, Florida.

/s/

JOHN E. FAULK

Administrative Law Judge

a-38

IDSs tc cahaes ee pin Re i iit ise eRe

a ELL

(p- 1] SERVED: August 24, 1990

NTSB Order No. EA-3184

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 3rd day of August, 1990

JAMES B. BUSEY, Administrator,

Federal Aviation Administration,

Complainant,

Docket

Vv. SE-9155

STEPHEN J. ROCHNA,

Respondent.

OPINION AND ORDER

Respondent has appealed from a written

initial decision that Administrative Law

Judge John E. Fauik issued on October 31,

1988.1/ An evidentiary hearing was held in

this matter on July 28 and 29, 1988. The

law judge affirmed an order of the Adminis-

trator suspending respondent's airman cert-

ificate for 90 days, finding that the evi-

dence of record established the violations

alleged. On February 28, 1989, while this

appeal was pending, the Administrator with-

drew three of the six allegations of regu-

latory violations that the law judge affir-

med.

1/ A copy of the written decision is at-

tached.

{[p. 2] After the withdrawal, the Administr-

ator's order, which served as the complaint

herein read in pertinent part as follows:

1. You are the holder of Airman Certif-

icate No. 26585798 with Commercial Pilot

privileges.

2. On June 22, 1987, you acted as pil-

ot-in-command of civil aircraft N9268C, a

Piper Arrow PA28R-201T, on a Cash Air,

Inc., revenue flight from Lawrence, MA to

JFK Airport, NY.

3. Said flight was conducted under IFR.

4. On said flight you carried hazardous

material for E.I. Dupont DeNemours.

5. At the time of said flight you were

not employed as a pilot by Cash Air, Inc.

6. At the time of said flight you had

not received hazardous material training

according to the Cash Air Company Training

Manual.

7. At the time of said flight you had

not completed part 135 initial ground trai-

ning under the Cash Air Company Trainirg

Manual.

By reason of the foregoing circumst-

ances, you violated the following Federal

Aviation Regulations [FAR]:

(a) Section 135.333 in that you per-

formed assigned duties and responsibilities

for the carriage of hazardous materials (as

defined in 49 CFR 171.8) when, within the

preceding 12 calendar months, you had not

completed initial training in an appro-

priate training program established by the

certificate holder.

(b) Section 135.343 in that you served

as a crewmember in a Part 135 operation

without having completed the appropriate

initial phase of the training program ap-

propriate to the type of operation in which

you served since the beginning of the 12th

calendar month before that service.

(c) Section 135.293(a) in that you

served as pilot when, since the beginning

of the 12th calendar month before that

service, you had not passed a written or

oral test given by the Administrator or an

authorized check pilot on your knowledge in

the required areas.

[p- 3] Respondent, by counsel, has filed a

brief in support of his appeal, contending

that: 1) the law judge erred when he found

the. respondent carried hazardous mater-

ials, and the evidence of record fails to

so establish, by the requisite preponder-

ance; 2) the evidence of record does not

support the law judge's finding that resp-

ondent had received no ground training from

the air carrier (Cash Air); and 3) there is

no regulatory requirement that a pilot who

operates under an air carrier's Part 135

operating certificate shall be an employee

of that company. Respondent also raises a

number of challenges that should be direct-

ed to the Courts, such as, whether the

cited FAR sections were legally promul-

gated.2/ These are matters that the Board

cannot entertain. See Go Leasing, Inc. v.

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

Transport Assn. v. Sec'y, DOT, 900 F.2d 369

(D.C.Cir. 1990). Last, respondent questions

the severity of the sanction.3/

The Administrator has filed a brief in

reply. He requests that the Board impose a

30-day suspension of respondent's airman

certificate for the violations that were

not withdrawn. In response to the issues

raised by respondent, the Administrator,

among other things, contends that a prepon-

derance of the evidence of record supports

the law judge's

2/ The Board provides a forum for challeng-

ing the validity of any order of the Admin-

istrator amending, modifying, suspending,

or revoking a certificate issued under

Title 6 of the Federal Aviation Act. The

Board is not empowered to review the Admin-

istrator's authority to issue such an or-

der.

3/ Respondent's views on sanction are pred-

icated on the 90 day suspension sustained

by the law judge.

{p- 4] findings that respondent violated

sections 135.333, 135.343, and 135.293-

(a) .4/

Upon consideration of the briefs, and of

the entire record in this proceeding, the

Board determines that safety in air com-

merce or air transportation and the public

interest require that the charges not with-

drawn by the Administrator be affirmed and

that a 30-day suspension be imposed. We

adopt the law judge's findings and con-

clusions in regard to those three allega-

tions of regulatory violations.

Respondent raises two allegations of

error that pertain to credibility determin-

ations that the law judge made. The law

judge determined, after hearing the testi-

mony and reviewing the documentary evid-

ence, that respondent did carry hazardous

(radicactive) materials when he flew for

Cash Air on June 22, 1987. The Boards finds

testimony in the record and other documen-

tary evidence sufficient to support that

determination. To the extent that the det-

ermination was based on credibility, the

law judge gave weight to the fact that

respondent's signature appeared on the bill

of lading indicating his acceptance of

part of the shipment that was carried for

New England Nuclear (NEN) containing radio-

active materials. Respondent's brief pro-

vides no persuasive reason for disturbing

the law judge's evaluation of the evidence.

Similarly, the law judge made a credibi-

a-45

lity determination that respondent had not

complete Cash Air's initial training pro-

gran,

4/ The regulations found to have been vio-

lated are set forth in full in the Appendix

to the opinion.

{p- 5] rejecting respondent's testimony and

other evidence purporting to show that he

had completed a total of 28 hours of such

training. The law judge found inconsisten-

cies in the explanation provided and he

ruled that "all credibility findings are

made against respondent and his supporting

witness." (I.D. at 14). Again, we find no

evidence in the record that would cause the

Board to overturn the law judge's resolu-

tion.5/

In sum, the Board finds that there is

evidence in the record sufficient to sup-

port the law judge's findings that respon-

dent carried hazardous materials on the

flight he conducted Juve 22, 1987, when he

had not had training in the carriage of

hazardous materials (section 135.333), that

respondent operated that flight when he had

~not completed either the air carrier's ini-

tial training program (section 135.243) or

the testing required by FAR Section 135.-

293(a). We think, further, that the 30 day

suspension recommended by the Administrator

is appropriate and should be imposed.

5/ Respondent's argument that the record

supports a finding that he received some

ground training is unavailing. Section

135.343 requires that any person serving as

a crewmember shall have completed initial

training. Attendance at some initial train-

ing sessions does not fulfill that require-

ment. In any event, the law judge rejected

the testimony and exhibit that were offered

to prove that respondent had received some

training and respondent has not shown error

in these assessments.

{p- 6] ACCORDINGLY, IT IS ORDERED THAT:

1. Respondent's appeal is denied;

2. The Administrator's order, as amended

to delete the three regulatory violations

identified hereinbefore, and as amended to

impose a 30-day suspension of respondent's

airman pilot certificate, is affirmed;

3. The initial decision to the extent

that it finds established the regulatory

violations not subsequently withdrawn by

the Administrator, is affirmed (as modified

in respect to sanction); and

4. The 30-day suspension of respondent's

airman pilot certificate shall begin 30

days after service of this order.6/

KOLSTAD, Chairman, COUGHLIN, Vice Chair-

man, LAUBER and BURNETT, Members of the

Board, concurred in the above opinion and

order.

6/ For the purposes of this order, respon-

dent must physically surrender his certifi-

cate to an appropriate representative of

the FAA pursuant to FAR Section 61.19(f).

[Appendix not included; contains only FARs

which may be found in the Code of Federal

Regulations: 14 CFR §§ 135.333, 135.343,

135.293 (1986).]

a-48

{p- 1] UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 90-1919

STEPHEN J. ROCHNA

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/FAA

Before

Breyer, Chief Judge,

Bownes, Senior Circuit Judge

and Selya, Circuit Judge

Lawrence B. Smith for petitioner.

Joseph A. Conte, Federal Aviation Adminis-

tration, for respondents.

March 26, 1991

([p- 1] BOWNES, Senior Circuit Judge. This

appeal arises on a single issue: whether

the Federal Aviation Administration's ("FA-

A's") disinclination to promulgate through

public notice and comment or publish in the

Code of Federal Regulations ("CFR") a rule

authorizing the suspension of an airman

certificate is a violation of the Adminis-

trative Procedure Act ("APA"), 5 U.S.C. §§

552(a)(1) and 553. We reject the appeal.

I. BACKGROUND

On March 14, 1988, the FAA Administrator

suspended Stephen J. Rochna's airman certi-

ficate for ninety days under the provisions

of Section 609 of the Federal Aviation Act

of 1958, as amended in 49 U.S.C. § 1429

(1982).’ The Administrator alleged that on

June 22, 1987, Rochna acted as pilot-in-

command of a cargo flight transporting

hazardous

1. 49 U.S.C. § 1429(a) reads in relevant

part: If [{sic) .. . he determines that

safety in air commerce or air transporta-

tion and the public interest requires, the

Secretary of Transportation may issue an

order amending, modifying, suspending, or

revoking, in whole or in part, any type

certificate, production certificate, air-

worthiness certificate, airman certificate

- +. + » Prior to amending, modifying, susp-

ending, or revoking any of the foregoing

certificates, the Secretary of Transporta-

a-50

tion shall advise the holder thereof as to

any charges or other reasons relied upon by

the Secretary of Transportation 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 certi-

ficates should not be amended, modified,

suspended, or revoked.

{p- 3] materials for Cash Air, Inc. under

IFR (Instrument Flight Rules) weather cond-

itions. At the time of the flight from

Lawrence, Massachusetts to JFK Airport in

New York, Rochna was not yet an employee of

Cash Air, nor was he qualified to act as

pilot-in-command of its Part 135’ flight.

He was charged with not having received

hazardous materials training, not complet-

ing initial ground training and not having

had an Airman Competency/Proficiency check

by Cash Air. These charges resulted in six

alleged violations of the Federal Aviation

Regulations ("FARs")’*’ and an order of susp-

ension for ninety days.

After a National Transportation Safety

Board ("NTSB") hearing in Boston on July 28

and 29, 1988, the Administrative Law Judge

("ALJ") found against Rochna on issues of

credibility and upheld his ninety-day cert-

ificate suspension for ail six FAR viola-

tions. Further, he concluded that the susp-

ension

2. “Part 135" as found in 14 CFR § 135

(1990) [sic] covers aviation regulations

for air taxi operators and commercial oper-

ators. Regulations from 14 CFR §§ 135.291

to 135.303 refer to crewmember testing

reauirements while regulations §§ 135.321

to 135.353 refer to airman training.

3. Rochna was originally charged with and

found guilty of violations of the following

six sections of the FAR: § 135.333 (car-

riage of hazardous material without appro-

priate training); § 135.343 (Part 135 crew-

member without initial training); § 135.-

293(a) (pilot without passing written/oral

test in past twelve months); § 135.293(b)

(pilot without passing competency check in

past twelve months); § 135.299(a) (pilot-

in-command without passing flight check in

particular aircraft); § 135.297(a) (pilot-

in-command without passing instrument prof-

iciency check under Part 135).

{[p- 4] “sought by the Administrator [FAA]

for the violations found to have occurred

is consistent with Board [NTSB] precedent

session

- + -" Administrator v. Rochna, NTSB Order,

Docket No. SE-9155 (Oct. 31, 1988).

On February 28, 1989, the FAA Adminis-

trator withdrew allegations of three of

Rochna's six FAR violations: those under §§

135.293(b), 135.297(a) and 135.299(a). Upon

appeal, the NTSB upheld the judge's credi-

bility determination on the three remaining

violations. It then changed Rochna's susp-

ension from ninety to thirty days. Adminis-

trator v. Rochna, NTSB Order EA-3184, Dock-

et No. SE-9155 (August 24, 1990). Rochna

now appeals this thirty-day certificate

suspension on the basis of purported FAA

failure to promulgate or publish rules for

such action. The NTSB concluded that it

should not address this issue.

II. APPLICABLE STATUTES AND CASE LAW

Under the Federal Aviation Act, the FAA

Administrator holds responsibility for

flight safety in civil air commerce. 49

U.S.C. § 1421(a). Congress has authorized

a-53

various enforcement modes including FAA §

609 emergency certificate suspension action

under 49 U.S.C. § 1429(a)22 [sic] and FAA §

901 civil penalties under 49 U.S.C. § 1471

(a)." See Go Leasing,

4. Rochna's wide-ranging brief invokes

comparisons between certificate suspension

and civil penalties. The latter require

money fines which are irrelevant here,

appellant has no

{[p- 5] Inc. v. National Transp. Safety Bd.,

800 F.2d 1514, 1517-18 (9th Cir. 1986).

Pangburn v. Civil Aeronautics Bd., 311

F.2d 349 (lst Cir. 1962), one of the semi-

nal aviation certificate suspension cases,

upheld the right of the FAA under its § 609

powers "to impose a suspension as ‘'sanct-

ion' against specific conduct or because of

its 'deterrence' value -- either to the

subject offender or to others similarly

Situated." Id. at 354. Current cases like-

wise hold that there is a “clear statutory

basis for the FAA's policy of suspending

airman certificates as a sanction for viol-

ation of FARs." Hill v. national Transp.

Safety Bd., 886 F.2d 1275, 1281 (10th Cir.

1989).

This regulatory policy has endured ess-

entially unchanged since the Civil Aeronau-

tics Act of 1938 through its legislative

reenactment as the Federal Aviation Act in

1958 to the present. See Pangburn, supra,

at 354 (citing Hard v. Civil Aeronautics

Bad., 248 F.2d 761 (7th Cir. 1957) (uphold-

ing suspension as deterrent), cert. denied,

355 U.S. 870 (1957).

standing to argue civil penalties because

none have been imposed. Likewise, petition-

er's reliance upon Air Transport Ass'n of

America v. Department of Transp., 900 F.2d

369 (D.C. Cir. 1990), is misplaced. Air

Transport is inapposite to the instant case

because the former involves civil penalties

for air safety violations. The Court vaca-

ted the judgment in Air Transport and re-

manded to consider the question of moot-

ne@és. De ent o sp. v. Air Transp.

Ass'n, 59 U.S.L.W. 3561 (U.S. Feb. 19,

1991) (No. 90-605).

[p- 6] A recent certificate suspension

case, Komjathy v. National Transp. Safety

Bd., 832 F.2d 1294 (D.C. Cir. 1987), pro-

vides an illustrative parallel to the rule-

making issue in Rochna's case. In Komjathy,

the plaintiff's challenge to an unpromul-

gated regulation implementing 49 U.S.C. §

1429(a) was deemed to be "utterly without

basis." The court concluded that the regul-

ation did "no more than repeat, virtually

verbatim, the statutory grant of authority

in 49 App. U.S.C. § 1429(a) for the order-

ing of such suspensions." Id. at 1296-97.

Like Rochna, Komjathy was neither surprised

nor injured by his certificate suspension.

The virtual "reprinting of the statutory

language," in the regulation could not

"have affected Komjathy's rights and inter-

ests." Ia.

Even if we assume, favorably to pet. &

ioner, that the agency policy at issue is a

rule or regulation and not simply a state-

ment made in the course of an agency adjud-

ication, see NLRB v. Bell Aerospace Co.,

416 U.S. 267, 294 (1974), it still need not

be promulgated or published. It depends

upon the statute, 49 U.S.C. § 1429(a), for

its substantive meaning and is not in it-

self substantive. Hence, it is not subject

to the rule-making procedures outlined in 5

U.S.C. § 553(b) (3) (A). See Southern C

Vv isers' Assn' v. Federal Avia-

tion Admin., 881 F.2d 672, 677 (9th Cir.

1989). This is the second issue raised by

Rochna. The first, that of statutory autho-

rity, has long been predetermined by the

premier First

fp. 7) Circuit certificate suspension case

upholding such an agency action nearly

thirty years ago -- Pangburn v. Civil Aero-

nautics Bd., 311 F.2d 349 (lst Cir. 1962).

the second issue, the need to apply the

rule-making procedures of the APA, 5 U.S.C.

§§ 552(a)(1) and 553, in airman certificate

suspension cases has, since Pangburn, con-

sistently been answered in the negative

across the circuits. See, e.g., Southern

Calif. Aerial Advertisers' Ass'n, 881 F.2d

at 677; Tearney v. National Transp. Safety

Bd. 868 F.2d 1451, 1454 (5th Cir. 1989);

Capuano v. National Transp. Safety Bd., 843

F.2d 56, 58 (1st Cir. 1988); Komijathy, 832

F.2d at 1296-97; Roach v. National Transp.

Safety Bd., 804 F.2d 1147, 1155 (10th Cir.

1986); Go Leasing, 800 F.2d at 1522, 1526;

Cobb v. national Transp. Safety Bd., 572

?F.2d 202, 204 (9th Cir. 1977).

In Capuano, supra, we rejected a chal-

lenge to the failure to publish in the

Federal Register an enforcement manual

informing FAA employees that "[{s]uspension

may be used for punitive purposes when the

nature of the violation warrant... ."

Id. at 57. Aligning with the other courts

that had considered the issue, we held that

publication in the Federal Register under 5

a-58

U.S.C. § 552(a)(1) was not required. Id. at

58. Although the challenge here is cast in

somewhat different terms, both the ration-

ale and the holding of Capuano control this

case.

Rochna cannot credibly complain of lack

of due process.

{[p- 8] He was charged with six specific

violations of the FARs. The statute author-

izes suspension of an airman certificate if

the Secretary determines that "safety in

air commerce or air transportation and the

public interest [so] requires ... ." 49

U.S.C. § 1429(a). Prior to such suspension,

the statute provides for notice of the

charges, an opportunity to answer them and

a hearing. id. Rochna was afforded all of

these procedural safeguards. We fail to see

how publishing a rule restating the statute

would affect Rochna, pilots in general or

the public.

a-59

We must also note that in Tearney, Kom-

jathy, and Go Leasing, the various petitio-

ners were represented by the selfsame at-

torney who represents the petitioner in

this case. Persistence can be a virtue,

but, to paraphrase Emerson, a foolish per-

sistency is the hobgoblin of little minds.

We agree with the FAA that Rochna's attor-

ney remains “oblivious to the obvious."

Rejecting an appeal which can never fly, we

affirm the decision of the NTSB.

— ey

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 90-1919

STEPHEN J. ROCHNA

Petitioner,

Vv.

NATIONAL TRANSPORTATION SAFETY BOARD

AND JAMES B. BUSEY, ADMINISTRATOR, FEDERAL

AVIATION ADMINISTRATION,

Resr ndents.

BEFORE

Breyer, Chief Judge,

Bownes, Senior Circuit Judge

and Selya, Circuit Judge

ORDER OF COURT

Entered: April 12, 1991

Upon consideration of petitioner's petition

for rehearing,

It is ordered that said petition be denied.

By the Court:

[Sf are

Francis P. Scigliano

Clerk

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5 U.8.C. § 552(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 --

x*«kekek

(4) “rule” means the whole or a part of

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) 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;

(C) rules of procedure, descriptions of

forms available or the places at which

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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-

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

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Register.

( 5 U.8.C. § 553 (1982)

Rule making

(a) This section applies, according to

the provisions thereof, except to the ex-

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

Register, unless persons subject thereto

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

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suance, amendment, or repeal of a rule.

5 U.8.C. § 558 (1982)

Imposition of sanctions; determination of

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.

xke*«eek

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-

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*.

tion. The reviewing court shall --

(1) compel agency action unlawfully

withheld or unreasonably delayed; and

(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;

(C) in excess of statutory jurisdiction,

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

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extent that the facts are subject to trial

de novo by the reviewing court.

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 U.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

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{[Administrator], he determines that safety

in air commerce or air transportation and

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-

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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-

quired by statute, this subsection does not

apply --

(A) to interpretative rules, general

statements of policy, or rules of agency

organization, 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.

(c) After notice required by this sec-

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.

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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

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-

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tificate should not be amended, modified,

suspended, or revoked. Any person whose

certificate is affected by such an order of

the Secretary of Transportation [A-

dministrator] 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-

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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.

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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, * * *

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14 C.F.R. § 13.19 (1986)

Certificate action.

(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,

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airworthiness certificate, airman certifi-

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

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by the Aeronautical Center Counsel.

(c) Before issuing an order under parag-

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;

(3) Request that an order be issued in

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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

FAA counsel and the charges concern a mat~-

ter under Title V of the FA Act, the holder

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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.

(d) Any person whose certificate is

affected by an order issued under this

section may appeal to the National Trans-

portation Safety Board. If the certificate

holder files an appeal with the Board, the

Administrator's order is stayed unless the

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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.