Petition for Writ of Certiorari — Christian v. Busey

Supreme Court brief1992

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{

Bupreme Court, U.S.

8! ” 838 FILED y

CASE #

SEP 4 129!

OFFIGE OF THE CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 19971

Gregory T. Christian, Petitioner

James B. Busey,

Federal Aviation Administration,

National Transportation Safety Board,

Respondents

Petition for Writ of Certiorari to the United

States Court of Appeals for the Fifth Circuit

Fetition for Writ of Certiorari

53.1. Christian

16199 Space Center Bivd.

Houston, TX 77062

(713) 480--6268

Petitioner Fro Se

aif

1. Did the lower’ court err in not responding

to motions made by the parties”

-. Drd the lower court err in cancelling oral

argument?

3. Did the lower court err in ruling that the

Petitioner pay to the Respondents the costs on

appeal ~*

4. Did the lower court err in not requiring

that the FAA initiate related proceedings upon

declaring an emergency”

Je Did the lower court err in not requiring

that the FAA notify a party of the grounds for

an action prior to taking that action”

&. Did the lower court err in not requiring

that the FAA take immediate action in response

to an emergency”?

7. Did the lower court err in its conclusion

that the certificate sanction imposed by the

FHA was if accord with established precedent”

3. Did the lower court err in acquiescing upon

the FAA’ s assertion that the Fetitioner’s

aircraft was operated 1n alr commerce”

9. Did the lower court err 1n acquiescing upan

the FAA’ s assertion of unauthorized

maintenance perrormed on an aircraft?

10. Did the lower court err in acquiescing

“m3

upon the FAA’s assertion of improper

documentation oft alrcraft maintenance”

fweetions Fresented fur Review

Table of Contents

Table of Authorities

Statement of Jurisdiction

Authorities

Aa. Federal Statutes

b. Federal Aviation Regulations

Statement ot the Case

Arguments

Appendi x

a. FAA Emergency Order of Revocation

b. NTSB Oral Initial Decision and Order

<. NTSB Opinion and Order EA~219%

d. Judgment of the United States Court

of Appeals for the Fifth Circuit

Certificate ot Service

Fage

1. Federal statutes

& 49 WSC 14846(+F) 4

b. 49 USC 1435(a) 14

c. 3 USC 706(2) (D) 13

d. 49 USC 1495 (a) 19

e. 49 WSC 1429(a) 19

#. S USC 7082) (A) 20

g. 49 USC 1420(a) (2) os

=. Federal ivi ation Regulations

a. FAR 423.3(a) 24

b. FAR 43 Appendix Alc) (9) =4

c. FAR 43 Appendix Alc) (10) 24

d. FAR 91.163 (b) =4

e. FAR 91.1723 (a) (1) (ii) oe

Review 1S sought of a judgment rendered

and entered on June 6, 1991 by the United

States Court of Appeals for the Fifth Circuit.

Jurisdiction of the Supreme Court to review

the case 16s conferred by 49 USC 1484‘ Ff).

49 USC 1486(a): Orders subject to review;

petition for review. Any order, attirmative or

negative, issued by the Board or Administrator

[Secretary of Transportation] under this Act,

except any order in respect of any foreign air

carrier subject to the approval of the

Fresident as provided in section 801 of this

Act [C49 USC Appx 1461] shall be subject to

review by the courts of appeals of the United

States or the United States Court ot Appeals

for the District of Columbie upon petition,

filed within sixty days after the entry of

such order, by any person disclosing a

substantial interest in such order. After tne

expiration of said sixty days a petition may

be filed only by leave of court upon a showing

of reasonable grounds for failure to file the

petition theretotore.

49 USC 1486(f): Review by Supreme Court. [he

rudgment and decree of the court attirming,

modifying, or setting aside any such order of

wa)

the Board or Administrator (Secretary of

Transportation] shall be subject only to

review by the Gupreme Court of the United

States upon certification or certiorari as

provided in section 1254 of title 23, Wnited

States Code.

S USC 706: Scope of review. To the extent

necessary to decision and when presented, the

reviewing court shall decide all relevant

questions of law, interpret constitutional and

statutory provisions, and determine the

meaning or applicability of the terms of an

agency action. The reviewing court shall-

(1) compel agency action unlawfully withheld

or unreasonably delayed; and

(2) hold unlawfull and set aside agency

action, findings, and conclusions found to be-

(A) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance

with laws

(f) contrary to constitutional right, power,

privilege, or immunitys

tleoaum excess of statutory jurisdiction,

authority, or limitations, or short of

statutory right;

(D) without observance of procedure required

iv laws

Fi unmsupcorted by substantial evidence in a

case subject to sections S56 and S57 of this

title or otherwise reviewed on the record or

an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent

that the tacts are subject to trial de novo Dy

Fhe 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 prejudicial

error.

49 USC 1485(a): Orders, notices, and service;

Effective date of orders; emergency orders.

Except as otherwise provided in this Act, all

orders, rules, and regulations cot the Board or

the Administrator (Secretary of

Transportation] shall take effect within such

reasonable time as the board or Administrator

[Secretary of Transportation] may prescribe,

anid shall continue in force until their

‘

further order, rule, or regulation, or for a

epecified period of time, as shall he

prescribed in the order, rule, or requlation:

Providad, That whenever the Sadminristrator

(Secretary of Transportation] 1s o+ the

opinion that an emergency requiring immediate

action exists in respect of satety in air

cammerce, the Administrator (Secretary of

Transportation] is authorized, either upon

complaint or his Gwn initiative without

complaint, at once, if he so orders, without

answer or other form ot pleadina by the

interested person or persons, and with or

without notice, hearing, or the making or

tiling of a report, to make such just and

reasonable orders, rules, or regulations, as

may be essential in the interest oft safety in

alr commerce to meet such emergency: Frovided

further, That the Administrator [Secretary of

Transportation] shall immediately initiate

proceedings relating to the matters embraced

ln any such order, rule, or regulation, and

shall, insotar aS practicable, give preterence

fo such proceedings over all others under this

ive

Act.

49 USC 1429(a): Reinspection or reexamination;

amendment, suspension, or revocation of

certification - Frocedures; notification;

hearing; appeal to National Transportation

Safety Board; judicial review. The

Administrator CSecretary of JIransportation]

May, from time, reinspect any civil aircraft,

aircraft engine, propeller, appliance, air

Navigation facility, or air agency, or may

reexamine any civil airman. If, as result of

any such reinspection or reexamination, or if,

aS a result of any other investigation made by

the Administrator (Secretary ot

Transportation], he determines that safety in

air commerce or air transportation and the

public interest requires, the Administrator

(Secretary of Transportation] may 1s5s5uUe an

order amending, modifying, suspending, or

revoking, 1n whole or in part, any type

certiticate, alr carrier operating

certi¢ticate, air navigation facility

certificate, ‘including airport operating

certificate’), or air agency certificate. Frior

Ce ee a Se

to amending. modifying, suspending, or

revoking any of the ftoregoing certificates,

the Administrstor CSecretary of

Transportations shall advise the Holder

thereat as to any charges or other reasons

relied upon by the Administrator (Secretary of

Transportation] for his proposed action and,

except in case of emergency, shall provide the

holder of such a certificate an opportunity to

answer any charges and be heard as to why such

certificate should not be amended, modified,

suspended, or revoked. Any person whose

certificate 16 affected by such an order of

the Administrator [Secretary of

Transportation] under this section may appeal

the Administrator’s [Secretary of

Transportation’s] order to the Board (National

Transportation Safety Board] and the Board

[Matiocnal Transportation Safety Board] may,

after notice and hearing, amend, modify, or

reverse the Administrator’s (Secretary of

Transportation’s]) order if it finds that

satety in alr commerce or air transportation

and the public interest do not require

affirmation of the Administrator’s (CSecretary

of Transportation’s] order. In the canduct of

1ts hearings the Board [National

Transportation Satety Board] shall not be

bound by findings of fact of the Administrator

‘Secretary of Transportatianil. The tiling of

an appeal with the Board [National

Transportation Safety Board] shall stay the

@atfectiveness of the Administrator's

[Secretary of Transportation’ s/ order unless

the Administrator (Secretary ot

Transportation] advises the Board [National

Transportation Satety Board] that an emergency

@x1ists and safety in alr commerce or air

Eransportation requires the immediate

effectiveness of his order, in which event the

order shall remain eftective and the Hoard

shall finally dispose of the appeal within

sixty days atter being so advised by the

Administrator [Secretary of Transportation].

The person substantially affected by the

Board's CNational Transportation satety

Board's) order may obtain judicial review oft

said order under the provisions of sectian

1006 C49 USC Appx 1486], and the Administrator

[Secretary of Transportation] ehali be made a

party to such oroceedings.

49 USC 1470(a) (2): Violations; [t shall te

unlawtull tor any person to serve in any

capacity as an alrman 1nN connection with any

Civil aircraft, aircraft engine, propeller or

appliance used or intended for use, in air

commerce without an airman certificate

authorizing him to serve in such a capacity,

or in violation of any term, condition, or

limitation thereof, or in violation of any

order, rule, or regulation issued under this

title C49 USC Appx. 1421 et seq.].

FAR 43.3(a): Persons authorized to perform

maintenance, preventive maintenance,

rebuilding, and alterations. Except as

provided in this section and 42.17, no person

may maintain, rebuild, alter, or pertarm

preventive maintenance On an aircratt,

airframe, aircraft engine, propeller,

appliance, or component part to which this

Part applies. Those items, the pertormance of

which 156 a major alteration, a major repair,

or preventive maintenance, are listed in

4“4prendis A.

FAR 423 Appendix A(c): Preventive maintenance.

Freventive maintenance 15 limited to the

following work, provided it does not involve

complex assembly operations:

(9) Refinishing decorative coating of

tuselage, balloon Daskets, wings, tail group

surfaces ‘excluding balanced control

surtaces), fairings, cowlings, landing gear,

cabin, or cockpit interior when removal or

disassembly of any primary structure or

operating system is not required.

(10) Applying preservative or protective

naterial to components when no disassembly of

any primary structure or operating system is

involved and where such coating 1s not

prohibited or 16 not contrary to good

practices.

FAR 91.1673(b): Maintenance, Preventive

Maintenance, and Alterations; General.

Ho person may perform maintenance, preventive

maintenance, or alterations on an aircraft

other than as prescribed in this subpart and

other applic sb)? regulations, including Fart

is oF this. charter.

FAR 91.172(a): Maintenance Records. f ‘cept

tor work performed in accordance with 971.171,

each registered owner or operator shall keep

the following records for the periods

specified in paragraph (b) of this section:

(1) Records ot the maintenance, preventive

Maintenance, and alteration, and records of

the 100-hour, annual, progressive. and other

required or approved inspections, as

appropriate, for each aircraft ‘including the

airframe) and each engine, propeller, rotor,

and appliance of an aircraft. The records must

include-

(11) The date of completion of the work

pertormed.

STATEMENT OF THE CASE

On May 10, 1990, the FAA initiated an

investigation of the Fetitioner’s operation of

the Fetitioner’s aircratt. On Suly 5. the FHA

1ssued an emergency order revoking the

Fetitioner’s airman certificate and stating

the Fetitioner’s guilt concerning operation of

an alrcraft not 1n an alirworthy condition,

performing unauthorized maintenance, failure

to adequately document maintenance, and

failure to have various checks and inspections

pertormed (Case No. 9OSWOU9006S).

The Fetitioner contacted the NTSE and

filed an appeal. The Fetitioner admitted not

having had various checks pertormed of his

health, skill, and the airworthiness of his

aircraft, and contested the remaining

azsertions. A hearing was held before the NTSB

aon July 71, after which the administrative law

judge 15sued an order affirming the FAA order

im its entirety. The Petitioner then filed a

Second appeal with the NTSB, which

subsequently dismissed the FAA’s assertion

that the Fetitioner operated his aircraft when

it was not in an airworthy condition but which

otherwise attirmed the remaining assertions

and the emer yency,y order ot revocation (NTSB

Urder No. FA~-%19%).

Fursuant to 49 USC 14846‘a), the

Fetiticoner then tiled an appeal with the U.S.

Lourt of Appeals for the Sth Circuit (Docket

No. 90-4623), which subsequently affirmed the

ruling of the NTSB without hearing or opinion.

ARGUMENTS FOR ALLOWANCE OF WRIT

ie The most signiticant reason tor the Court

to review thit caste 1 because it 15 1n the

public interest that pilots have the

perception that should they have to deal with

the FAA or the court system they will be

treated tairly and in a manner consistent with

the standards of due process guaranteed by

law. The importance of such a perception lies

in the influence it has upon the decision

Making process in which a pilot’s decision to

avall himself of FAA assistance during a

potential emergency will inevitably be weighed

to some extent against the risk ot litigation

or loss of livelihood.

— The Court of Appeals appears to have

departed substantially from the accepted and

usual course of judicial proceedings by virtue

ot the tollowing:

1) The court has not to the date of this

writing responded to two motions, one made by

fhe Fetitioner and one made by the FAA. These

HOLLONS concerned amendment of the.

Fetitioner’s and the Respondent’s briefs.

a eis

-) After notifying the Petitioner of the

date of oral argument and then advancing that

Jake upon motion by the Fetitironer ©» the court

Juient

wollld not be held.

“) In ruling that the Fetitioner pay tno

the kFespondents the costs on appeal, the court

would in essence have the Fetitioner pay the

FAA and the NTSB for prosecuting him, despite

the tact that the Court of Appeals was the

only mechanism by which the case could have

been independently reviewed outside of rhe

Department of Transportation.

Se The Court of Appeals has departed from

the accepted and usual course of judicial

proceedings in that it failed to abide by the

requirement of S USC 706(2)(D)., which

specifies that the reviewing court shall "hold

Unlawtull and set aside AQENcCy action,

2 without

Findings. and conclusions found to

cObservance of procedure required by law.

Hiternately, the Court of Appeals 4S Gecided

important questions of law which nave not

Ween, Out should be, settled by the sip r ame

Oe ar so D a - =

s = a a u’ on) aa. _ a. 7

> earl ot 7 ” aa * i . + —

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Patns 9 es 4 » ye

Court. The Fetitioner observes the tollowing

In support thereort:

tL) The F

eae did not anitiate related

Oroaceedings upon declaring an emergency, wut

rather left responsibility ta the FPetitioner

to initiate and pursue the matter with the

NTSB. This assertion 1s uncontested by the

FAR. 49 LISC 1485(ad,. which the FAA cited as

authority tor its action, states that "the

Administrator shall immediately initiate

proceedings relating to the matters embraced

InN any such emergency order", and the FRA'S

failure to do so implies that in their opinion

events which required declaration of an

emergency samenow did not warrant the hoiding

of a hearing afterward.

©) The FAA did not notify the Fetitioner

of the charges against him prior to revoking

his alrman certificate. This assertion 15

uncontested by the FAA. 49 USC 1429(ad, which

the FAA cited as authority for its action,

states that "“Frior to amending, modifying,

suspending, or revoking any of the +oregoing

certificates, the Administrator =hall advise

the holder thereof as to any charges or other

reasons relied tipon by the Administrator tor

his proposed action”.

>) The FAA did not take immediate actioz,

in response to an emergency. This assertion is

uncontested by the FAA. 49 USC 1485 (a)

specifies that the Administrator may only

declare an emergency if he is "oF the opinion

that an emergency requiring immediate action

@x1sts". The Fetitioner points out that the

Matter was pending for some two months before

the FAA declared an emergency, ample time in

which to hold a hearing in which the

Fetitioner would be aftorded an opportunity to

defend himself betore his guilt was decided

upon,

4. The Appeals Court failed to abide by the

requirement of S USC 706(2) (A), which requires

that the reviewing court shall “Held unlawful l

and set aside agency action, findings. and

conclusions found to be arbitrary, Capricious,

an abuse of discretion, or otherwise not in

accordance with law". Alternately, the Court

OF Appeals has decided important questions of

-9

law which have not been, but should be,

settled by the Supreme Court.

1) The «everity of the sanction imposed

by the FAR in this case departs substantially

from established standards and precedent. Uf

. the 198 violations listed in the FAA

Campliance and Enforcement Handbook of 1988,

the only violation for which a sanction of

emergency revocation 1s recommended is

operation of an aircraft while under the

influence of drugs or alcohol. The FAA argued

in its brief (p.24-25) that its emergency

order of revocation “had nothing to do with

whether the Fetitioner cooperated with the FAA

after the violations were discovered, with the

Petitioner’s actual physical health, with his

technical ability to fly an aircraft, or with

the aircraft’s airworthiness", but was rather

based upon the perception that the Petitioner

had “such contempt for regulatory authority as

to compel the conclusion that the Fetitioner

lacks the qualifications required of a

certificate holder”. Ferceived contempt tor

regulatory authority is thus elevated in

re |

importance to the level of alcohol and

narcotic abuse in tlight, and was in tact used

a5 grounds tor b,o4assing established and

customary thandaeds: st due precees. Indeed,

the sanction imposed by the FA in this cace

does not remotely compare with precedent

established in the imposition of sanctions in

other cases noted by the Fetitioner and cited

by the FAA.

2) The FAA maintains that the Petitioner

YiGlated 49 USC 1470(a) (2) because the

Petitioner pertormed Maintenance on an

aircraft used in air commerce, an assertion

which the Fetitioner tas denied on arounds

that the aircraft was not used in air

= 2

cannerce., The FRA assert the Petitioner

perated the aircraft in air commerce solely

‘ecause the Fetitioner operated the sircraft

io 4 Manner which nay Nave Created tive

voreant tal for andangering safety in

iilershate, overseas, or foreian air

mneree.,” “ior to the Petitions (opealing

the cow sf, stam, the RespuiJes:! tientd

bitained that the Petitianer’s a1: ath was

~—

perated in air commerce because if was flawn

within a fede-<i airway ‘NTSB Order No. EA-

ST ore tout Sy 4 was subsequentiv shown toa

true, the Respondents ha.& since opred

for the currently preferred definition.

Howe.er, the Fetitioner was never charged with

operating the aircraft in ac

reless or

reckless manner, and the pilot logbook entries

used by the FAA in support of its contention

were never clearly established to be

indicative of acts pertormed in violation of

FARs, performed in a dangerous manner,

bearing even vaguely upon any aircraft engaged

in air commerce. Additionally, the

Respondent’s current definition of air

commerce 15 in fact fundamentally illogical.

One might for instance speculate whether an

aircraft endangering another aircraft which 15

endangering an aircraft used 1n air commerce

1s 1teelf erigaged in air commerce. One might

turther ask why a pilot does not need

commercial licence to operate an aircraft 1n

41° commerce. Applying the FAA’s preterred

fefinition of commerce a step further

|eads

the erroneous conclusion that a car 15 engaged

in commerce simply because it 15 driven on the

same roads witli trucks that are used in

interstate commerce. The reéelity is that any

time an alrcraft 15 in the air it may pose a

threat to another alircratt, and the premise

that this fact alone 158 grounds for

maintaining the aircraft to be engaged in air

commerce contlicts with the wording and the

legislative imtent of the FA Act, which

logically draws a distinction between air

commerce and private flying.

2) The FAA maintains that the Fetitioner

was in viglation otf FAR 43.7 ¢a) and

91.1452(b) solely because he painted his

aircraft and the attached control surtaces,

acts which the FAA contends were not permitted

by FAR 42% Appendix (A) (Cc) (9). There is

appareritiy no legal precedent tor thi

assertion, but in point of fact FAF 423 deals

exclusively with what a pilot 1s allowed to do

Fo his alreratt, and says nothing at all about

what he 15 specifically not allowed to do. In

light of this, the Fetitioner cited FAR 47 App

(A) tc) (10) aS permitting his actions, an

assertion never contradicted by the FA.

Further, commen @esperrence would aiandicate that

the Owner oF ah alrmcrart is tree fo paint it

in 1ts entirety, and the Fetitioner in fact

knows several individuals who have done so

openly without any action being taken by the

FAA. Indeed, over the past thirty years

thousands of nonlicensed individuals have not

only painted but have 1A fact Built entire

aircraft which they subsequently licensed with

the FAA.

4) The FAA maintains that the Fetitioner

was 1m violation of FAR 91.172¢a) (1) 411)

sQlely By virtue ot Having made a single entry

im the aircraft logbook of numerous

Maintenance items which were per+ormed while

the aircraft was down for painting, rather

than making a separate dated entry ot each

maintenance »tem on the day it was performed.

There 15 apparently no legal precedent for

Fhis assertion, and it is in fact nak entirely

clear trom the wording of the regulation

whether the required record of the "date of

completion of the work performed" refers to

the date wot completion Of andividual r1tems or

the date of completion of work done to an

aircratt aver the course of a down period.

However, upon examining the Fetitioner’s

aircratt logbook for the past £0 years, the

Fetitioener can tind no instance where any of

numerous Licensed mechanics made two entries

separated by a matter of days, a fact which

indicates that either the FAA is not tollawing

precedent in this case or the Fetitioner’s

aircrath has always had every maintenance item

completed on the final day of every

Maintenance period, something which 15 in fact

rarely the case.

FAA EMERGENCY ORDER OF REVOCATION

July 6, 1990

332 No. POSGWO9IU0K5

The Administrator of the FAH nas received a

report of investigation showing the tollowing:

1. ou are the holder of Airman Certificate

#265 596554 with private pilot privileges.

<. You are the registered owner of Civil

Aircraft N6ZTOTL, a Gulfstream AA-14A.

2. YOu were issued only two airman medical

certificates, both third class: one dated

January 18, 1984, and another dated May 11,

1990.

4. fou operated Civil Aircraft NSZOZL on more

than sixty flights in air commerce after the

evpiration of the medical certiticate issued

on January 18, 1984 and before May 11, 1990,

S- You acted as pilot in command of Civil

Sircraft N&ZOTL on more than sixty #lights in

sir commerce from December 28, 1997 to May 10, -

1990 without having accomplished within the

preceding 24 calendar months of each tlight a

flight review administered by an appropriately

rated instructor in an aircraft for which you

held an appropriate rating.

S&S. You hotd no airman mechanic certificate

1ssued by the FGA.

7. During the period trom July 1988, to Sure

ae 19689 you painted Civil Aircraft NS6207)

including aircraft control surfaces,

tiberglassed the horizontal stabilizer and

bondoed over wing and tail dents.

GS. Atter painting the aircraft control

surfaces as described in paragraph 7, you

returned the aircraft to service withcut

insuring that checks and adjustments of the

mass balance weight of the control surfaces

were performed.

7. After completing the maintenance as

described in paragraph 7, you returned the

aAircratt to service without approval by a-

person authorized to make such approval.

Iv. You operated Civil Aircraft N&Z07ZL from

January 1, 1988 to May 10, 1990 on more than

stufy #lights without the aircraft having an

nmoual inspection and without it having been

i pproaved tor return to service.

‘1. You tailed to keep records of the date of

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completion of maintenance performed on C1Vv11

Aircraft No TOSL.

lo. You did not | eep required records of the

current ctatus ct sirworthiness directives 772

W6-902, 72-97-19, 75-09-07 and 85-21-02.

By reason of the foregoing tacts and

circumstances, you violated the following

statute and Federal Aviation Regulations:

a. Section 47.3a), in that you performed

maintenance on Civil Gircratt N6éZTOZL that you

were not miner sen to pertorm.

b. Section 47.5(a), in that you returned to

service Civil Gircraft N6ZOSL atter performing

maintenance without making the maintenance

record entry required by Section 42.9 or

Section 473.11.

Cc. Section 61.56(b) (1), in that you acted as

pilot in command of Civil Aircratt N&ZO7ZL from

December 78, 1987 to May 11, 1990 on numerous

flights without having accomplished within the

preceding <4 calendar months of these flights,

a flight review given to you by an

appropriately rated instructor in an aircraft

tor which you are rated.

d. Section $1.2(c), in that you acted as pilot

in command of Livil Aircraft NS6707L on

numerous fiignts from Deceater 20, 1937 to May

11, 1990 without a current appropriate medical

certificate 1n your possession.

e. Section 91.1523(b), 1n that between July of

1988 and June of 1989 you performed

maintenance on Civil Aircraft N6&205L other

than as prescribed in FAR Fart 991i and FAR Fart

4°.

fF. Section 91.167a)d (1), im that you operated

Civil Aircratt N6203L on numerous flights

atter it had undergone maintenance when the

aircratt had not been approved for return to

service by a person authorized to do so.

g- Section 91.169(a) (1), in that you operated

Civil Aircratt N6Z0O3L from January 1, 1988 to

May 19, 1990 on numerous flights without the

aircraft having an annual inspection and

without the aircraft having been approved for

return to service by a person authorized to do

sO.

he. Section 91.1734a) (1) 411), in that you

tailed to keep a record of the date of

completion of maintenance pertormed on Civil

Aircraft NS ZOSL.

le Section 971.29(a), 1M that you operated

Civil Aircratt N6ZOTL when 1t wat net in ar

airworthy condition.

je Section 91.172(a) (2) (v), in that you did

not keep required records of the current

status of airworthiness directives applicable

to Civil Aircraft N6sSOSL, 72-06-02, 72-07-10,

75-09-07, and 85-21-02, including for each the

method of compliance, the airworthiness

directive number, revision date, and where

requiring recurrent action, the time and date

when the next action was required.

bk. Section 610¢(a) (2), of the Federal Aviation

Act of 1958 in that you served in the capacity

ot a certificated mechanic in connection with

maintenance on Civil Aircraft N6&tO5L used in

alr commerce without an airman certificate

authorizing you to serve in that capacity.

Ry reason of the foregoing, the Administrator

has determined that you lack the degree of

Care, judgment, and responsibility required of

the holder of an Airman Filot Certificate and

that safety in alr commerce and the public

interest require the revocation of your Alrman

Pilot Certificate with Private Filot

privileges lierein.

Further, the Administrator has determined that

an emergency exists and that satety 1n air

commerce and the public interest require the

immediate effectiveness of this Order.

NOW, THEREFORE, IT 1S ORDERED, pursuant to the

authority vested in the Administrator by

Sections 409 and bOOS(a) of the Federal

Aviation Act of 1958, as amended, that:

1. Any airman Certiticate, including Airman

Certificate No. #265296554, now held by you,

be and the same are hereby revored.

2. Said revocation shall become ettective

Lamediately.

3. Said Airman Certificate shall be

surrendered, by mail or delivery, to the

undersigned at the Office of Assistant Chief

Counsel, FAA, SW Region, Ft. Worth, TX 75193-

OOO7 oar any FAA Safety Inspector.

4. No application for a new Airman Certiticate

shall be accepted from you, nor shall any

KHirman Certificate be issued to you. tor a

period of three hundred sixty five (765) davs

fram the date vinnt Surrender your

Sincerely,

HAYSSYV. HETTINGER

Assistant Chief Counsel

Southwest Region

cAartiticates

ORAL INITIAL DECISION AND ORDER OF THE.

NATIONAL TRANSPORTATION SAFETY BOARD

Locket No. SE-11227

JULY 21, 1996

JAMES B. BUSEY, ADMINISTRATOR,

FEDERAL AVIATION ADMINISTRATION,

Complainant

GREGORY T. CHRISTIAN,

- a ~ ~" Rl ~ ~~ ~" -_— ~~

Respondent )

JUDGE COFFMAN: For the record, this has

been a case coming before the NTSB titled

James B. Busey, Administrator versus Gregory

T. Christian, Respondent. Case Number SE-

11225, coming on tor hearing under the

emergency provisions on an emergency case on

the sist day of July, 1990, beginning this

morning 1n Houston, Texas.

Present at all times for the

Hdministrator, Mr. Donnell, assistant chief

counsel from the FAA’s Southwest Region. Mr.

Lhiristian nas been present at ali times during

the courtroom representing himself after being

j =4

advised of his right to counsel, choosing to

proceed and represent himself.

I don’t intend to go into every single

witness’ teetimnony. I don’t usually do that. [

don’t think if 15 necessary. The records

spears tor itself. We have exhibits

introduced, some eight exhibits on behalf of

the Administrator and seven on behalf of the

Respondent. o

We had three witnesses testify on behal#¢

of the Administrator. Mr. Christian took the

stand on his own behalf. Ample closing and

opening argument was allowed and argument on

each point. So I think the record speats for

itselt.

However, let me point out a couple of

Ehings, and we are here to discuss an

emergency revocation of an airman’s

certificate with private pilot privileges. And

going into that, under the FAA Act we must

look at the totality of the circumstances.

We must look at the care, judgment, and

responsibility required of the holder of this

airman’s certificate. Nothing is to be

io a

———"_-

i ae

Tints Ste ; ‘

—

construed during my comments to INnsinuate that

I do not think Mr. Christian is an intelligent

person.

Mr. whristian may be an aerospace

engineer, and he may be extremely book smart.

But I think he lacks Judgment that should be

required, and [ think this is evident in many,

many examples of his conduct of this matter.

[f you accepted Mr. Caristian’s argument

that knowledge of a subject 15 enougn, then

someone could pick up a medical boot and study

and go do brain surgery, and if the person

lived and the operation was a Success, then

that person could be a neurosurgeon. That just

makes absolutely no sense whatsoever.

Mr. Christian -- once he got his private

pilot’s certificate in October of ee, it

seems that he decided to put in on the shel fF

and buy an airplane and from that point on

fatally ignore every regulation almost in the

“ederal Air Regulations and sqme major ones.

He has had no medical examination and

admitted since January 16, °84. It is not the

point that he 1S Physically fit. He Has had no

fs!

medical certification since January 1994,

He has had no biannual flight review. The

requirements tor a BFR were very specific.

They were put inte the reagulatiane tar

everyone's sake ta. safety -- for pilots to go

out and tly with an instructor. And I don’t

think every two years is too much of a burden

for someone to go out and fly with an

instructor and say, hey; you are doing a good

job.

Dr on the other hand, you can’t do tnat

maneuver correctly. You are endangering

yourself and the lives of your passengers.

There 1S no annual inspection done on

this airpiane. There, again, Mr. Christian may

be the smartest aerospace engineer that ever

worked here in Houston, but he 15 not a

licensed A&%F mechanic. And the regulations

specifically say -- and on the log book it

Says every major alteration or repair must be

Signed by a certified A& mechanic with

inspection authorization.

The regulations are there tor a reason,

and I think ta any intelligent person such as

Mr. Christian the requirements and the need

for those regulations are obvious. The

airplane was ner tlown with an annual ~-- not

+lown with a currant annual.

And a current annual would have

discovered that there were seven air

worthiness directives that were not complied

with. Now, these air worthiness directives are

not published by the manufacturer, nor are

they endorsed by the FAA for a mere --

whimsical reasons.

They are put out there -- they are called

air worthiness directives. That 15 a pretty

substantial title. They must be complied with

for the air worthiness of the aircraft, and

none of them were complied with. A current

annual would have caught this.

Mr. Christian says he was becoming

concerned and uncomfortable with this not

being done and especially at night. However, I

naticed that in one of the entries of his

lag book -- his pilot log book, he stated that

Ne practiced a dead stick landing at night.

[ think from 6,500 feet or something like

A :

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ee Mi nutes

._ 4

ia 7 7

aca jae

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Ww see

can —-

‘ a i

or; _ : :

MR. CHRISTIAN: That WAS a couple of years

ago.

JUDGE COFFMAN: Just be Quite, Mr,

Christian. [£ am not talking to YOu MOw, Sir.

Ik 15 net your time to talk. It is my time to

talk.

SQ there is an entry and trom whatever

altitude it was that he attempted a dead stict

Landing at night, and he came up a little

short.

MR. CHRISTIAN: Well, with the Engine on.

JUDGE COFFMAN: Mr. LAristian, I am not

991ng to tell you again, Sir. Just be quiet.

MR. CHRISTIAN: I am sorry.

JUDGE COFFMAN: So 1¢ you look at these

for big items -- no medical, no annual on the

aircraft, mo biannual flight review, and the

ADs nat complied with -- along with -— [I have

Never seen a list in the aircraft log book of

entries of Maintenance that was done by a

nNonlicensed pilot.

[ don’t think the Phrase -- you don't

need to look in the federal air regulations to

determine what preventative maintenance 1S.

you have any experience with automobiles or

anything mechanical, I think the term

sr oventative maintenance speaks for itselt.

That is basically checking the water,

checking the fluid levels, checking the air

the tires, and things like that. That 15

preventative maintenance. Anything else 15

maintenance and requires inspection and

requires the work be done by a licensed 7

and by inspection authorization.

I don’t think the phrase 15 hard to

understand without even looking in the

regulations. But if you do look in the

aaeaieanas it explains what preventative

maintenance 15.

So I think Mr. Christian shows a total

absolute disregard for the rules and

regulations as put forth in the federal air

regulations, and he seems to think that the

fact that he went out on May 11 and got his

physical -- that it makes 1t okay.

It notice also that his STC for the

aviation fuel is dated June <9 of “90, some

I ¢

month and a half or so after the ramp

inspection of May 10. And, again. the air

worthiness directives were only complied with

atter he got caught and only complied with to

ferry the aircraft from one airport to the

other. —

So I think that if you look at the

totality of the circumstances, it shows an

absolute blatant disregard for almost every

rule and regulation that the FAA has

published, especially in those four areas that

are just absolutely astonishing that Mr.

Christian has simply thumbed his nose at --

the ADs, the annual, the no medical, and the

no biannual.

S50 I am going to make the following

findings of fact, and these will be specific

findings of fact.

Number one, that Mr. Christian is the

holder of Airman Certificate #2465796554 with

private pilot privileges.

Finding of fact number two, that he 1s

the registered owner of civil aircraft

November S707 Lima.

/ Finding number three -- and Mr. Christian

admitted this -- that he was 1ssued only two

airman medical certiticates, both third class;

sne gated Januer 19, 1984, and another He

dated May 11, 1790,

Finding of fact number four, that he

operated aircraft November 6707 Lima on more

than 60 flights in air commerce after the

expiration of the medical certificate issued

on January 18, 1984 and betore May 11. 1990.

Finding number five, that he acted as

pilot in command of aircraft November 4707

Lima on more than 450 flights in air commerce

from December 28, °37, to May 10, °90 without

having accomplished within the preceding 24

calendar months of each flight a flight review

administered by an appropriately rated

instructor in an aircraft for which he held an

appropriate rating. =

And finding number six, that he holds no

airman mechanic’s certificate issued by the

Kee.

Finding mumber seven, that during the

period of July *88 to June of °S9 that he

is Ll elLUlULG

et rad

painted aircraft November 62707 Lima, including

the aircraft control surfaces; he worked on

and ftiberglassed the horizontal stabilizer and

horded over the Wing and t211 dents.

Finding number elght, that after painting

the aircraft control surfaces aS described in

the previous paragraph seven, he returned the

aircraft to service without insuring that the

checks and adjustments of the balance weight

af the control surfaces were performed.

Finding number nine, that after

completing the maintenance as described, te

returned the aircraft to service without

approval by a person authorized tO make such

approval.

And, finding number ten -- and Mr.

Christian admitted this -- that he operated

the aircraft November 62072 Lima from January

1, "88, to May 10, "90, ON more than 60

flights without the aircraft having an annual

inspection and without it having been approved

ror return to service.

Finding number 11, Mr. Christian failed

'O keep the records of the date oft completion

of maintenance performed on the aircraft.

Mr. Christian admitted tinding mumber 12

that he did not |eep required records of the

Current status o+ the air worthiness

directives 7206-92, 7207-10, 7509-07 and 8521-

The following conclusions of law are

announced that by reason of the toregoing

facts and circumstances and supported

substantially by the record Mr. Christian

vidOlated the following sections of the Federal

Air Regulations, Section 43.5(a), Section

4%.2(a), Section 61.56(6) (1), Section 61,236),

section 91.157(a) (1), Section 91.169 (a) (1),

Section 91.173(a) (1) (ii), Section 971.293 and

he admitted, and are VviGlate Section

91.172(a) (2) and Section 410(a) (2) of the

Federal Aviation Act of 1958. p

It will be the order of this court and

the opinion of this court by reason of the

foregoing Mr. Christian lacks the degree of

care, judgement, and responsibility required

aot the holder of an airman Pilot certiticate

with private pilot privileges.

a en

The court determines that an emergency

does exist and that Satety in air commerce and

the public interest eeiiee the immediate

effectiveness of this °rder.,

it is, therefore, ordered that ow.

Christian’s airman Certificate and any held by

him are hereby revoked. This revocation is

eftective immediately.

JIMMY N. COFFMAN

Administrative Law Judge

SB Order No. FA-7197

september 13, 199%

JAMES &. BUSEY, ADMINISTRATOR, ~ )

FEDERAL AVIATION ADMINISTRATION,

Camplainant

i !

GREGORY T. CHRISTIAN, |

Respondent )

Respondent has appealed trom the oral

initial decision Administrative Law Judge

Jimmy N. Coffman 1ssued in this Proceeding on

July 31, 1990, at the conclusion of an

evidentiary hearing (1). By that decision the

law judge affirmed an_order by the

Administrator revoking, on an emergency basis,

respondent's private Pllot certificate for his

NUMErOus viglations of the Federal Aviation

Regulations ("FAR," 14 CFR Farts 43, 61, and

91} and one Yliolation of the Federal Aviation

(1) An excerpt from the transcript Containing

the initial decision 1S attached.

Act of 1958 (the “Act"), Although we conclude,

4S discussed below, that one ot vive charges

Against resocncdent should not have been

SuUStTaAlNed, we ate mot Per stiiadjed that

respondent has established that the revocation

arder should be modified to Provide tor a

SUSpPeNnsion of his airman certificate (a).

The July 6, 1990 Emergency Order o#¢

Revocation, which served as the complaint in

this action, alleges, among other things,

that:

C Items 1-12 of the FAA Emergency- Order of

Revocation ]

This alleged conduct, according to the

complaint, had resulted IN violations of FOR

sections 42. 5a), 45.5(a), 61.56ib) (1),

61.3(c), 91.163(b), 91.167 (a) (1),

91.169(a) (1), 91.173(a) (1) (113 and (a) (2) (v),

P1.29(a) and Section 6510(a) (2) of the Act (7).

(2) The Administrator has filed a reply brief

QPpOs51Nng the appeal.

(") The Administrator’s judgment as to how

Fach of these provisians was violated is set

forth in his order as follows:

C Items a-k of the FAA Emergency Order of

Revocation J]

The commission of the alleged violations, in

turn, formed that basis for the

Administrator’ = determination, upheld by the

Law judge, that tne respondent lacks the

degree of care, judgment and responsibility

required of a certificate holder.

The law judge found that all of the

alleged violations ,some of which respondent

had admitted, had been proved. On appeal,

respondent challenges the factual finding that

he tlew his aircraft when it was mot in an

airworthy condition and the legal conclusion

that the flights he made in his aircraft were

in “air commerce” (4). Taking the latter point

first, we find no merit in respondent’s view

that his flights were not 1n alr commerce

because they were not made for compensation or

sire. While it is true that “interstate air

commerce" contemplates commercial carriage of

persons or property , see 14 CFR 1.1, the term

(4) Respondent also objects to the

Administrator’s resort to his emergency

authority in this matter, an issue the Board

1S not empowered to review.

“air commerce" is broader and embraces not

just commercial operations but also, inter

alia, “any operation or navigation of aircraft

within the timits of any Federal Girway...."

Id (3S). With regard to respondent’s challenge

to the evidence concerning the airworthiness

of his aircraft, we think he has a valid

objection (4).

The airworthiness of respondent’s

alrcraft was clearly drawn 1n 1ss5ue by the

abundant evidence in the record as to the lack

Of proper maintenance record keeping, the

failure to obtain required periodic

maintenance inspections or to have required

maintenance performed by a certificate

mechanic, and the non-compliance with numerous

airworthiness directives. However, apart from

ne me me ee ee ee ee

(5) See also Section 101 of the Act, 49 USC

1301, for identical statutory language.

(6) Although we have treated the document as

an appeal brief, respondent has styled his

appeal pleading a petition for

reconsideration, apparently in order to urge

the post-hearing admission of the entire

aircraft as an exhibit in support his position

that the charg of operating an unalrworthy

aircraft should be dropped. Our disposition of

that charge moots the request to have the

plane admitted into evidence.

noting several items that could have an impact

an the craft’s airworthiness, such as the tact

that "“bondo" had been used to fill some

apparently minor airtrame dents and that rust

on some landing gear assembly nuts had been

sand blasted off, and asserting that various

work performed on the plane should have been

done only by certified mechanics, the

Administrator’s expert witnesses did not

testify that in their opinion the aircraft had

not been in an alrworthy condition during

operations within the period covered by the

complaint (7). Without dispositive proof on

that precise question, the section 91.29(a)

charge cannot be sustained, no matter how

difficult respondent’s disregard of various

Maintenance requirements made ascertainment of

the aircraft’s actual state of repair.

Notwithstanding the dismissal of the

sectian 91.29(a) charge, we agree with the law

(7) In fact, although the complaint points out

that "checks and adjustments of mass balance

weight of the control surfaces" was not

performed atter the aircraft was painted,

apparently no determination was made as to

whether any adjustments after the painting

Were necessary.

judge that the sanction of revocation should

be affirmed. Respondent’s violations reveal a

pervasive willingness to ignore the known

requirements of regulations he believes are

unwarranted or unnecessary (83). Such contempt

for regulatory authority clearly compels the

conclusion that respondent lacts the

Qualifications required of a certificate

holder.

ACCORDINGLY, IT IS ORDERED THAT:

hs The respondent’s appeal is denied, and

Ze The emergency order of revocation and the

initial decision are reversed to the extent

they find a violation of section 971.29(a), and

they are affirmed in all other respects.

KOLSTAD, Chairman, COUGHLIN, Vice Chairman,

LAUBER, SURNETT and HART, Members of the

Board, concurred in the above opinion and

order.

(Gd) For example, respondent appears to have

telt no obligation either to obtain a medical

certiticate so long as he thought himself

physically fit or to enlist the services of a

certiticated mechanic to do maintenance he

thought himself competent to perform.

pom rae

No. 90-4826

June 6, 1991

Gregory T. Christian, Fetitioner

James B. Busey, Federal Aviation )

)

Administration, NTSE, }

)

Respondents

Retore GARZA, HIGGINBOTHAM, and DAVIS, Circuit

Judges.

FER CURIAM:

AFFIRMED. See Local Rule 47.64.

Bid So py >"

on this eleventh dav of October, 1°91, forty

(40) copres of the attached Fetition for Writ

o+ Certiorari, corrected as per the Clerk's

directive of seventeen September, 1991, have

been mailed to the Clerk of the Court for the

United States Supreme Court, One First Ave.

NE, Washington, D.C. 20543. three (2) copies

have been mailed return receipt requested to

Joyce L. Redos, Office of the Chief Counsel,

AGC-250, Federal Aviatian Administration, SOO

Independence Ave. SW, Washington, D.C. 20591,

three (2) copies have mailed return receipt

requested to ne Office of Administrative Law

Judges, National Transportation Safety Board,

Suite SOS, 1951 Kidwell Dr., Vienna, Virginia

T2182, and three (3) copies have been mailed

return receipt requested to the Solicitor

General, Department of Justice, Washington,

D.C. 20530.

A 6.7. Christian

Fetitioner

tod “ans?

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.