Petition for Writ of Certiorari — Burwell v. National Transportation Safety Board

1 paw aes cer ee

86-703

No.

IN THE “| MOSEPH F. SPANION

Vw

SUPREME COURT OF THE UNITED STATES |

OCTOBER TERM, 1986

BRON BURWELL, M.D.,

Petitioner,

vs.

NATIONAL TRANSPORTATION SAFETY BOARD,

and DONALD D. ENGEN, ADMINISTRATOR,

FEDERAL AVIATION ADMINISTRATION,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

ROBERT P. SMITH, ESQ.

601 Broadway, Suite 400

Denver, Colorado 80203

(303) 292-3880

Attorney for, Petitioner

Bron Burwell, M.D.

i

QUESTIONS PRESENTED

I. WHETHER, IN CIRCUMSTANCES IN WHICH

THE NATIONAL TRANSPORTATION SAFETY BOARD

DOES NOT FIND THE PILOT UNQUALIFIED TO FLY

NOR IN NEED OF PUNISHMENT OR REHABILITATION,

THE BOARD IS EMPOWERED UNDER SECTION 609

OF THE FEDERAL AVIATION ACT TO SUSPEND A

PILOT'S AIRMAN CERTIFICATE AS A SANCTION

SOLELY FOR ITS DETERRENT EFFECT ON OTHER

PILOTS.

II. WHETHER THE ORDER OF SUSPENSION

IMPOSED SOLELY FOR DETERRENT EFFECT IS

ARBITRARY, CAPRICIOUS AND AN ABUSE OF

DISCRETION IN CIRCUMSTANCES IN WHICH THE

AIRMAN IS FOUND TO BE FULLY REHABILITATED

AND THE VIOLATION IS FOUND TO BE

INADVERTENT AND THE RESULT OF HARMLESS

MISJUDGMENT.

ii

LIST OF PARTIES

The names of all parties to this

action are included in the caption.

iii

TABLE OF CONTENTS

PAGE

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Pr Cree. « 4 » » «© « « « « &&hi

Se ee ee ee ee ee V

Ce ee ee ee ae ee 2

a ee ee 3

Statutes and Regulations Involved. . 3

mememmens OF the Case .«. « « « 2 « « « 1l

Reasons for Granting the Writ .... 19

i ke ek ww ace ee 28

Appendices

A. Memorandum Judgment of

the United States Court

of Appeals for the District

Of Gosmeere Cirowit ..... .K*i

iv

TABLE OF CONTENTS continued

Appendices continued

B.

National Transportation

Safety Board Order

No. EA-2143 e 7 . s se se ° es

Initial Decision of

Administrative Law Judge

eee t” ee See

Administrator, FAA Order

Of Suspenegion . « + « «© « %

Petition for

Reconsideration

and Rehearing . . . « « « «

Order of the United

States Court of Appeals

for the District of

Columbia Circuit denying

RUNGREE US 6s KO ee ee

FAA letter tc Burwell dated

JONESY Zi, 2903 sa 0 +

Burwell letter of

February 2, 1983 to FAA. .

Coeti cients OC BOCViGae « <« «+ & = @

AESiGavit GF MASEINe «1 6 wt te

PAGE

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TABLE OF AUTHORITIES

PAGE

Garé vy. C.A.8., 2468 F.2a FEL

(7th Cir. 1957), cert. denied,

oo GG. BEG CiS5G) © 4 6 te lt lhl Ce

Pangburn v. C.A.B., 311 F.2d

349 (lst Cif. 1962) 7 se es - =. * s es — os 20

Wilson v. C.A.B., 244 F.2d 773

(D.C. Cir. 1957), cert. denied,

355 U.S. 870 (1952) o es * s e * se es e J 20

NTSB Order EA-2343, David S.

Komjathy, July 14, 1986 ........ 20

STATUTES AND REGULATIONS

§ OB BOG a: oe eS ROE ew eNO D

49.0.8 .C.: 31490: «45 ee XK a we oe OBE MS

49 U.S.C. 81486 [Section 609] . . 3, 7, 19

14 C.F. Re: 061.340). « w « & 405 285 385 19

44 CPR: Med ccc we we es BOY TSE a

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

BRON BURWELL, M.D.,

Petitioner,

vs.

NATIONAL TRANSPORTATION SAFETY BOARD,

and DONALD D. ENGEN, ADMINISTRATOR,

FEDERAL AVIATION ADMINISTRAT. ON,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

To the Honorable, the Chief Justice

and Associate Justices of the Supreme

Court of the United States:

Bron Burwell, M.D., petitioner

herein, respectfully requests that a writ

of certiorari issue to review the judgment

of the United States Court of Appeals for

the District of Columbia Circuit entered

in this case on June 10, 1986.

OPINIONS BELOW

The judgment of the United States

Court of Appeals for the District of Colum-

bia Circuit, affirming the order of the

National Transportation Safety Board was

filed as a memorandum of June 10, 1986

(Appendix A) and is not reported. The order

of the National Transportation Safety Board

imposing a suspension of petitioner's pilot

license was served on March 27, 1985 as

NTSB Order No. EA-2143 (Appendix B). The

initial decision of Administrative Law Judge

William E. Fowler finding that although

violations of sections 61.3(e) and 91.9 of

the Federal Aviation Regulations had ocur-

red, no suspension of petitioner's pilot

certificate should be imposed was issued

July 11, 1984 (Appendix C). The Admini-

strator's Order of Suspension was filed

March 20, 1984 (Appendix D).

JURISDICTION

The judgment of the United States

Court of Appeals for the District of Col-

umbia Circuit was filed on June 10, 1986.

A timely petition for reconsideration and

rehearing (Appendix E) was denied on Aug-

ust 8, 1986 (Appendix F). The jurisdic-

tion of this Court is invoked pursuant to

28 U.S.C. 81254(1), 28 U.S.C. 82101(c) and

49 U.S.C. 81486(f).

STATUTES AND REGULATIONS INVOLVED

The following statutes are involved:

5 U.S.C. 8706

8706. Scope of cette

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--

so ata sin

at faded

ep nS ee ee ree

Rig se Sa air io MITTIN GRD ee cal

(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 accor-

dance with law;

(C) in excess of statutory jurisdic-

tion, authority, or limitations, or short

of statutory right;

(E) unsupported by substantial evi-

dence in a case subject to sections 556

and 557 of this title or otherwise reviewed

on the record of an agency hearing provided

by statute; or

(F) unwarranted by the facts to the

extent that the facts are subject to trial

de novo by the reviewing court.

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 U.S.C. $1429

81429. Reinspection or reexamination;

amendment, suspension, or revocation of

certification

(a) Procedure; notification; hearing;

appeal to National Transportation Safety

Board; judicial review

The Secretary of Transportation may,

from time to time, . . . reexamine any

civil airman. If, as a result of any such

+ « « reexamination, or if, as a result of

any other investigation made by the Secre-

tary of Transportation, he determines that

safety in air commerce or air transpor-

tation and the public interest requires,

the Secretary of Transportation may issue

an order . . . suspending, or revoking, in

whole or in part, any . . . airman certif-

icate. .. . Prior to . . . suspending, or

revoking any of the foregoing certificates,

the Secretary of Transportation shall

advise the holder thereof as to any charges

Or other reasons relied upon by the Secre-

tary of Transportation for his proposed

action and, except in cases of emergency,

Shall provide the holder of such a certif-

icate an opportunity to answer any charges

and be heard as to why such certificate

should not be . . . suspended, or revoked.

Any person whose certificate is affected

by such an order of the Secretary of Trans-

portation under this section may appeal

the Secretary of Transportation's order to

the National Transportation Safety Board

and the National Transportation Safety

Board may, after notice and hearing, amend,

modify, or reverse the Secretary of Trans-

portation's order if it finds that safety

in air commerce or air transportation and

the public interest do not require affir-

mation of the Secretary of Transportation's

order. In the conduct of its hearings the

National Transportation Safety Board shall

not be bound by findings of fact of the

Secretary of Transportation. .. . The

person substantially affected by the

National Transportation Safety Board's

order may obtain judicial review of said

order under the provisions of section 1486

of this title, and the Secretary of Trans-

portation shall be made a party to such

proceedings.

49 U.S.C. 81486

81486. Judicial review

(a) Orders subject to review; petition

for review.

Any order, affirmative or negative,

issued by the Board or Secretary of Trans-

portation under this chapter .. . shall

be subject to review by the courts of

appeals of the United States or the United

States Court of Appeals for the District

of Columbia upon petition, filed within

Sixty days after the entry of such order,

by any person disclosing a substantial

interest in such order. After the expira-

tion 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 theretofore.

(d) Power of court

Upon transmittal of the petition to

the Board or Secretary of Transportation,

the court shall have exclusive jurisdic-

tion to affirm, modify, or set aside tne

Order complained of, in whole or in part,

and if need be, to order further procee-

dings by the Board or Secretary of Trans-

portation. ...

(e) Conclusiveness of findings of fact;

objections

The findings of facts by che Board or

Secretary of Transportation if supported

by substantial evidence, shall be conclu-

Sive. No objection to an order of the

Board or Secretary of Transportation shall

be considered by the court unless such

objection shall have been urged before the

Board or Secretary of Transportation or,

if it was not so urged, unless there were

reasonable grounds for failure to do so.

(f) Review by Supreme Court

The judgment and decree of the court

affirming, modifying, or setting aside any

such order of the Board or Secretary of

Transportation shall be subject only to

review by the Supreme Court of the United

States upon certification or certiorari as

provided in section 1254 of Title 28.

The following regulations are involved:

14 C.F.R. 861.3(e)

(e) Instrument rating. No person may act

as pilot in command of a civil aircraft

under instrument flight rules, or in

weather conditions less than the minimums

prescribed for VFR flight unless--

(1) In the case of an airplane, he

holds an instrument rating or an airline

transport pilot certificate with an air-

plane category rating on it;

14 C.F.R. 891.9

891.9 Careless or reckless operation.

No person may operate an aircraft in a

careless or reckless manner so as to endan-

ger the life or property of another.

-10-

STATEMENT OF THE CASE

Bron Burwell, M.D., utilized her pri-

vate pilot's license and her own aircraft

to fly to numerous small hospitals in the

Appalachian Region to perform duty as an

emergency room doctor. On the evening of

December 31, 1982, she was alone, flying

from Tri-Cities Airport, Tennessee, to

Roanoke, Virginia. At the time, her pilot

ratings permitted such night flight but

required she remain in visual flight condi-

tions (VFR). A weather briefing obtained

just before departure, indicated that the

route and the destination were under cloud

cover but were VFR and forecast to remain

SO.

Enroute to Roanoke, she flew at the

altitude last assigned by air traffic

control and followed the lights of the

-ll-

towns and highways below. Suddenly and

unexpectedly, the aircraft entered clouds

which were not visible in the darkness.

Since she was not authorized to fly in

such instrument conditions and had lost

all visual outside references, she fol-

lowed the routine procedure of turning

back 180 degrees in order to return to

visual conditions.

However, the aircraft did not immedi-

ately reach clear air. With concern for

the nearby mountains now hidden by clouds,

Burwell decided to climb to an altitude

above the highest terrain. Once above the

clouds, she tried unsuccessfully to make

radio contact with any control facility, or

to find a break in the cloud cover large

enough for a visual descent. Finally com-

munication was established with the Rich-

mond air traffic control facility. With

-12-

their assistance, Burwell was cleared to

descend under radar surveillance through

the clouds to clear air beneath, and an

uneventful landing was accomplished at

Richmond.

By phone and letter, FAA Inspectors

questioned Burwell, stating it appeared

She did not familiarize herself with all

available weather information before

beginning the flight and expressing criti-

cism of her actions once she encountered

the clouds (Appendix G).

Responding to the FAA's request for a

Statement, Burwell readily admitted the

flight in the clouds and explained that

the unavailability of weather reporting

Stations between Tri-Cities and Roanoke

and the darkness led to her inadvertent

entry into the clouds. She defended her

-13-

decision to climb above the clouds, point-

ing out that when faced with concern for

the suddenly hidden mountains, she had

merely followed the standard emergency

procedure of climbing and immediately

seeking assistance. The letter was trea-

ted by the FAA as an admission to the

violation of FAR 61.3 (flight in weather

conditions less than the minimums pre-

scribed for VFR when not rated as an

instrument pilot), although the inadver-

tent aspect of the cloud encounter was

clearly set forth. At the trial on this

matter, the Burwell letter dated 2/2/83,

became Administrator's Exhibit AE-1l (Appen-

dix H).

Over a year after the flight, the

Administrator served an Order on March 20,

1984, imposing a 180-day suspension of

Burwell's pilot certificate for violation

-14-

of FAR 61.3 and FAR 91.9 (operation of an

aircraft in a careless or reckless manner

So aS to endanger the life or property of

another) (Appendix D). Burwell appealed

the order to the NTSB, and trial before

the chief administrative law judge was

held on July 1l, 1984.

During the period between the incident

‘

q

and the trial, Burwell had made extraordin-.

ary progress in her pilot skills, and had

undergone a thorough and intensive program

of rehabilitation. She had acquired a

newer aircraft fully equipped for instru-

ment flight, and had obtained her pilot

instrument rating on an accelerated basis.

She had purchased portable and home compu-

ter systems and had subscribed to a private!

weather service providing complete weather

information by telephone. Burwell complete

a mountain flying training course, partici-

-15-

pated in the FAA "Wings" program and atten-

ded three FAA seminars on pilot techniques.

She acquired 300 additional hours pilot

experience between the incident and the

trial.

The evidence disclosed that no other

aircraft had been endangered and that no

re-routing of any air traffic had been

required. The Administrator's expert wit-

ness, a pilot of 38 years and 11,000 hours

experience, although extremely critical of

novice pilot Burwell's decision to begin

the flight under the existing conditions,

failed to inform the court that the FAA

weather briefer had omitted important

advisory information, recommending VFR

flight not be attempted due to the likeli-

hood of low lying clouds obscuring the

mountain tops. The court was misinformed

by the FAA expert who testified that the

-16-

weather briefer had no responsibility to

provide such information, whereas in truth,

the FAA procedures manual established pre-

cisely such a duty. Neither Burwell nor

her then counsel were aware of this FAA

internal directive and did not challenge

the expert's veracity. The issue was

first raised in the Circuit Court.

The law judge, faced with the pilot's

admission and the opinion of the FAA expert

that the operation was careless, found that

Burwell had violated both FAR 61.3 and 91.9

as charged. However, the law judge refused

to impose any sanction. He described the

pilot as one who has done more to rehabili-

tate herself than any pilot he has ever had.

in any case before him. The judge expressel

his awareness of the FAA's program for air

safety but seriously questioned what would

be accomplished by an Order of Suspension.

He doubted that a sanction would produce a

deterrent effect on Burwell. Because of

the facts and circumstances, Burwell's

rehabilitation, attitude and outlook, and

her need to travel long distances several

times a week in her medical vocation, he

also expressed doubt that by failing to

impose a sanction in this case, an example

would be set encouraging other pilots to

expect to commit similar violations with

impunity (Appendix C).

An appeal to the NTSB was made by the

Administrator. Although no record evidence

was brought forth in support of the Admin-

istrator's assumption, the Board accepted

the argument that a suspension of the air-

man certificate was needed in order to

deter other pilots. The Board rejected

the decision of its chief law judge and

imposed a 30-day suspension of Burwell's

pilot certificate (Appendix B).

ABLE COPY (imeem

Under 49 U.S.C. 81486(a), Burwell

appealed the Board's order to the Court of |

Appeals for the District of Columbia Cir-

cuit. The court summarily affirmed the

Board's decision (Appendix A). A petition

for rehearing (Appendix E), in which the

jurisdiction issue was raised for the

first time was denied (Appendix F).

REASONS FOR GRANTING THE WRIT

Ze This Petition Does Not Involve Com-

plex Issues Of Statutory Authority.

It will assist the court to first know

what this is not.

This is not an argument that under Sec-

tion 609 of the Federal Aviation Act, the

Administrator must first find a lack of

competency or qualification before imposing

-19-

nceaeainiaaaaieaiiail

a disciplinary suspension. Wilson v. C.A.B.,

355 U.S. 870 (1952); Hard v. C.A.B., 248

F.2d 761 (7th Cir. 1957), cert. denied, 355

U.S. 960 (1958); and Pangburn v. C.A.B.,

311 F.2d 349 (lst Cir. 1962) are three well

known cases that have tried that argument

and failed. As recently as July 14, 1986,

the argument has been rejected, this time

in NTSB Order No. EA-2343, David S.

Komjathy, Respondent.

In like respect, this is not an argu-

ment that Section 901 of the Act (civil

penalty) must be employed in a case of FAR

violations without a concurrent finding of

lack of skill.

Finally, Petitioner does not ask for a

review of factual determinations.

-20-

ee The Circuit Court Has Approved The

Ultra Vires Imposition Of Absolute

Liability.

The circuit court, by accepting in

total the Board's explanation for the

Sanction has endorsed a policy that all

violations must incur a sanction, if not

to punish or rehabilitate the offender, to

Serve aS a deterrent to others. This is

tantamount to absolute liability and

exceeds the Administrator's authority.

Common sense alone will show the

injustice and unfairness of such a policy.

In petitoner's case, the following summary

makes this clear:

1) Petitioner was qualified to under-

take the flight. The decision to make the

flight was considered by the FAA as poor

judgment by Burwell, but not in itself a

violation.

-2l-

2) The underlying violation, the

entry into clouds, was unintentional and

inadvertent. This was never questioned by

the FAA.

3) The law judge was ‘unrestrained in

his praise for Burwell's rehabilitation

and self-improv_ment and found her case to

be one-of-a-kind, for which a sanction

would punish and because of the facts and

circumstances, would have questionable or

no deterrent effect on Burwell or others.

4) The Administrator, without taking

exception to any of the above, appealed,

and argued in his appeal brief that even

though a suspension would have no disci-

plinary or punitive impact on Burwell, a

Suspension was necesSary as a deterrent to

other pilots.

5) The Board, while citing the ration-

ale of their law judge for not imposing a

-22-

Sanction, nevertheless agreed with the

Administrator that precedent and the deter-

rent factor required a "minimal" 30-day

Suspension. Public interest and safety in

air commerce were referenced with no expla-

nation how grounding this medical doctor

would serve the public other than as some

deterrent on other pilots (Appendix B).

6) The Circuit Court, while fully

cognizant of all the mitigating factors,

summarily dismissed Burwell's argument

that the decision of the Board was arbi-

trary and capricious and unsupported by

Substantial evidence on the record. And

while at no time at any stage of the pro-

ceeding had there been any suggestion of

crime or wrongdoing, the Circuit Court saw

fit to make reference to “criminal prose-

cutions" when the court virtually censured

petitioner for her argument that deter-

-23-

rence does not always follow sanction

(Appendix A).

7) Nowhere in the federal aviation

regulations is there a requirement that

every violation will be met with a sanc-

tion. The Circuit Court has affirmed

Board action imposing absolute liability.

III. Petitioner Is Not Alone.

There are over 500,000 active certifi-

cated pilots in the United States. Every

one of them is subject to the same unrea-

soning treatment accorded Burwell. Gran-

ting certiorari will by no means assure

fairness and reason will follow in other

pilot enforcement actions, but it will

demonstrate that the Supreme Court expects

the lower courts to give consideration to

the right of each pilot to receive such

fundamentals of justice.

-24-

IV. An Exercise Of The Court's

Supervisory Powers Is Called For.

In the earlier cases of sanctions

which have been challenged by pilots, the

appellate court's reluctance to disturb

the NTSB order has been centered about

Section 609 (49 U.S.C. 8$1429(a)) and its

footing on “air safety". In Burwell, the

Board referred to public interest and

safety in air commerce in justification of

its order. Clearly, air safety is every-

one's goal.

This does not mean, however, that

review of administrative decisions must

forego all considerations of reason and

justice.

Pilot Burwell, as is common of other

pilots in this type of situation, was

unprepared for the adversary role the FAA

-25-

enforcement branch immediately assumed

upon learning of the incident. There was

no warning, no alerting that full and

frank discussion of the facts would lead

to an order suspending her airman certifi-

cate for six months for an inadvertent

violation in which no harm or damage

resulted. The initial letter to Burwell

invited a statement which would be "given

consideration” (Appendix G). The reply

letter from Burwell is typical of the

response from a pilot accustomed to trus-

ting dependence upon the FAA (Appendix H).

Up until that time the FAA had served as a

friendly supporter, supervising the train-

ing, ensuring the safety and reliability

of the aircraft she operated, encouraging

her to seek higher levels of piloting

skill and added pilot certificate ratings.

There was no reason to suspect that sud-

-26-

denly this "friend" would become a fierce

adversary, determined to punish whether in

Burwell's interest or not.

Nevertheless, this is the administra-

tive system as established by statute.

But, the statutes also provide a check

and balance in the form of judicial review.

An abuse of discretion, such as has taken

place in Burwell, can be set aside. How-

ever, it would appear from the disparaging

tone of the Circuit Court's memorandum,

that the court has virtually taken Burwell

to task for making the challenge. The

court rejected her objections finding all

to be "meritless". Under the facts of

this case, this is shocking and is a total

departure from any careful and accurate

consideration of the circumstances.

This court has the last opportunity to

correct this injustice.

-27-

V. Conclusion.

This is an exceptional situation.

A simple review of the circumstances

will show the absence of reason and jus-

tice in the Circuit Court's ruling. While

Burwell represents but one pilot, her right

to fair treatment compels the same consid-

eration as though 1,000 pilots" petitions

lay before the court. Possibly there would

be a great number but for the prohibitive

cost of seeking judicial review.

Whether one or 1,000 the fact remains

that the imposition of a sanction is both

an abuse of the Administrator's discretion

under the Act, and a failure of the Court's

responsibility to set aside such unlawful

exercise of power.

WHEREFORE, Petitioner respectfully

requests that her petition for writ of

-28-

certiorari be granted.

DATED this 8th day of October, 1986.

Robert P. Smith

601 Broadway, Suite 400

Denver, Colorado 80203

Telephone: 303/292-3880

Attorney for Petitioner

-29-

NOT TO BE PUBLISHED-SEE LOCAL RULE 8(f)

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 85-1310 Filed June 10, 1986

BRON BURWELL, M.D.,

Petitioner,

Vv.

NATIONAL TRANSPORTATION

SAFETY BOARD and DONALD

D. ENGEN, Administrator,

Federal Aviation Admin-

istration,

Respondents.

Petition for Review of An Order of the

National Transportation Safety Board

Before WALD, Circuit Judge, and WRIGHT

and McGOWAN, Senior Circuit Judges.

JUDGMENT

This cause came on to be heard ona

petition for review of an order of the

National Transporation Safety Board and

was briefed and argued by counsel. The

court has fully considered the issues

presented; they occasion no need for a

published opinion. See D.C. Cir.R. 13(c).

A-1

For the reasons stated in the accom-

panying memorandum,

It is ORDERED AND ADJUDGED by this

court that the order of the National

Transportation Safety Board sought to be

reviewed herein is hereby affirmed.

It is FURTHER ORDERED by this court,

Sua_ sponte, that the Clerk shall withhold

issuance of the mandate herein until seven

days after disposition of any timely peti-

tion for rehearing. See D.C. Cir.R. 14,

as amended on November 30, 1981 and June

15, 1982. This instruction to the Clerk

is without prejudice to the right of any

party at any time to move for expedited

issuance of the mandate for good cause

‘Shown.

Per Curiam

For the Court

George A. Fisher

Clerk

A

No. 85-1310 - Burwell v. NTSB

MEMORANDUM

In this case petitioner Bron Burwell,

a private pilot, challenges a decision of

the National Transportation Safety Board

(NTSB) suspending her pilot's license for

30 days as a penalty for her violations of

Federal Aviation Administration (FAA) reg-

ulations. She argues that the Board acted

arbitrarily and without evidentiary support

in rejecting the decision of the Admini-

Strative Law Judge and in imposing a pen-

alty. Because we find her objections to

the Board's actions to be meritless, we

affirm.

Petitioner is a doctor who practices

medicine at various rural hospitals. She

uses her pilot's license to fly between

the hospitals where she works. At the time

of the incident involved in this case she

had had her pilot's license for less than

six months and was certified to fly under

the FAA “visual flight rules" (VFR). Such

a certification means that the pilot may

only fly in clear weather and may not fly

in clouds. See generally 14 C.F.R. 88

/

91.105-91.109 (1985).

On December 31, 1982 Burwell took off

from the Tri-City Regional Airport in

Tennessee, intending to fly to Roanoke,

Virginia. She had checked with various

flight service stations before leaving to

determine whether the weather would accom-

modate her plans. The forecast informed

her that there were clouds above Roanoke.

Believing that she would be able to fly

below the clouds to Roanoke, however, she

left the Tri-City Airport and headed

toward Virginia.

As she crossed into Virginia, and

climbed over the mountains located there,

She flew into a cloud bank. Recognizing

that she was not qualified to fly under

such conditions, she made a 180-degree

turn in an attempt to fly out of the

clouds. When the attempt was unsuccess-

ful, she climbed to 5,500 feet, above the

clouds, and radioed for help. With the

assistance of the Richmond air traffic

controllers, she ultimately landed safely

in Richmond.

On March 20, 1983, after an investiga-

tion of the incident, the FAA suspended

petitioner's pilot's license on the ground

that she had violated FAA regulations, 14

C.F.R. $8 61.3(e), 91.9 (1985), by flying

in “instrument conditions" with only a VFR

rating. Joint Appendix (JA) at 1 (Order

of Suspension). Petitioner appealed that

Order and was provided a hearing before an

Administrative Law Judge. The ALJ found

that petitioner had violated the regula-

tions cited by the FAA. He noted, however,

that petitioner had during the interim

period obtained her “instrument rating,”

purchased a new, advanced airplane, pur-

chased advance weather forecasting equip-

ment, attended a mountain flight course,

accumulated hours of additional flight

time, and attended several FAA seminars.

Further, he noted that she had been par-

ticularly helpful and forthcoming in res-

ponse to the investigation of the incident

and had no prior record of violations. The

ALJ thus concluded that although petitione

had violated the FAA regulations, no pen-

alty should be imposed.

The Administrator of the PAA appealed

that decision to the NTSB. The Board

affirmed the ALJ's finding of a violation,

but imposed a 30-day license suspension.

In the Board's view, this “minimal” sanc-

tion was necessary to deter others from

violating the PAA rules in dbetition. JA

at 174.

Petitioner challenges the Board's

decision on several grounds. She first

argues that the Board's decision to impose

a 30-day license suspension was arbitrary

and capricious and unsupported by substan-

tial evidence on the record. The thrust

of her argument is that there is no record

evidence in this case supporting the Board's

assumption that imposition of a penalty will

deter others from violating the FAA rules.

She argues that because she has taken steps

to improve her piloting abilities, imposi-

tion of a penalty will have the exact oppo-

Site effect of deterring others from taking

Similar steps.

As an initial matter, it is far from

clear that the agency has to develop a

record in each adjudication as to the

effect that a penalty would have on others.

Simply put, the basic assumption underlying

all enforcement actions--and indeed all

criminal prosecutions--is that imposition

of a penalty will serve not only to punish

and rehabilitate the wrongdoer, but also

to deter others from committing similar

violations. No evidence needs to be sub-

mitted to buttress this assumption. More-

Over, it would appear that the Board did

consider the steps taken by petitioner in

evaluating whether to impose a suspension

in this case. The Board clearly could

have imposed a much larger penalty but, in

consideration of the mitigating factors,

chose merely to impose a light 30-day sus-

pension.

Nor are we persuaded by petitioner's

attempts to distinguish Administrator v.

Sidicane, 3 NTSB 2447 (1980). In that

case an inexperienced pilot, licensed for

VFR-only flight, similarly flew into a

bank of clouds and had to be be guided to

the ground with the assistance of radar.

Moreover, the pilot involved in that case

upgraded his license after the incident,

not only receiving an instruments rating,

but receiving an instructor level rating.

Nontheless, the Board imposed a 30-day

license suspension.

Although Sidicane was less forthcoming

when he was in the air than was Burwell

and appears to have been a less credible

witness on the stand, the facts of his

violation are nontheless quite similar to

the case at bar. We agree with the Board

that Sidicane is helpful in evaluating the

appropriateness of the sanction imposed in

this case.

Next, petitioner argues that the Board'

decision to penalize her is arbitrary and

capricious because she could have avoided

the penalty by reporting the violation

under the Aviation Safety Reporting Pro-

gram (ASRP). See 44 Fed.Reg. 18128 (March

26, 1979). Under the provisions of that

program, a pilot who violates the FAA rules

may report the violation to the National

Aeronautics and Space Administration (NASA)

NASA then deletes identifying information

from the report and passes it on to the

FAA. The pilot is immunized from any

Sanction. The purpose of the program is

to encourage reporting of violations of

FAA rules that would not otherwise be

known to the agency.

In our view the Board did not err in

refusing to consider the effect of the

ASRP. Petitioner's interpretation of the

plan appears to be both inconsistent with

the agency's interpretation and contrary

to common sense. According to the FAA,

see 44 Fed. Reg. at 18129, the program was

not intended to allow reporters to escape

enforcement action for violations known to

the FAA. See id. (“when a violation of

the Federal Aviation Regulations comes to

the attention of the FAA from a source

other than a report filed with NASA under

the Aviation Safety Reporting Program,

appropriate action will be taken based on

facts and information which are obtained

from sources other than a report filed

with NASA."). Moreover, such a scheme

would hardly serve the purposes of the

program--to encourage disclosure of viola-

tions unknown to the FAA. Indeed, it

would defeat the enforceability of any of

the FAA rules by allowing violators to so

easily escape punishment. Moreover, peti-

tioner does not deny that she did not file

any report under the plan. Thus, even if

the plan were applicable to this case,

petitioner simply failed to invoke the

protections of the plan.

Finally, petitioner argues that the

Board erred in finding that she had vio-

lated the FAA rules. Because petitioner

failed to file a cross-appeal from the

ALJ's finding of a violation of the FAA

rules and did not present a challenge to

the violation to the Board, however, we

find that this argument is not properly

before us. The Act provides that "{nJo

Objection to an order of the Board * * *

Shall be considered by the court unless

such objection shall have been urged

before the Board * * * or, if it was not

so urged, unless there were reasonable

grounds for failure to do so." 49 U.S.C.

App. 8 1486(e) (1982). Thus, it is wholly

inappropriate for her to raise this chal-

lenge for the first time in this court.*

Because we conclude that none of peti-

tioner's arguments have merit, we affirm

the Board's decision imposing a 30-day

Suspension of her license.

* We do not reach the issue whether tne

Board erred in relying upon certain mis-

statements by one of the agency experts

because we conclude that the Board's fin-

dings of a violation is not properly

before the court. Similarly, we decline

to reach the issue whether the FAA con-

troller should have known, when he or she

assigned an altitude to petitioner, that

she would be unable to maintain VFR con-

ditions.

SERVED: March 27, 1985 |

NTSB Order No. EA-2143

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 26th day of February, 1985.

Donald D. Engen, Adminstrator, )

FEDERAL AVIATION ADMINISTRATION, )

\

)

Complainant, ) Docket

vs. ) SE-6235

)

BRON BURWELL, M.D., )

)

Respondent. )

OPINION AND ORDER

The Administrator has appealed from

the initial decision of Administrative Law

William E. Fowler, sewed oraliy at the

conclusion of the hearing held in: this

proceeding on July 11, 1984. 1/ The law

judge found that respondent, on December

31, 1982, acted as pilot-in-command of a

1/7 An excerpt from the hearing transcript

containing the initial decision is attached

Cessna 172, N-4682D, on a flight from Tri-

City, Tennessee to Richmond, Virginia under

visual flight rules (VFR); that during the

course of this flight, respondent operated

the aircraft in weather conditions less than

the minimum prescribed for VFR flight; and

that respondent, who did not then posssess

an instrument rating, violated sections

tions 61.3(e)2/ and 91.9 3/ of the Federal

2/ Section 61.3(e) reads, in pertinent,

as follows:

861.3 Requirement for certificates,

rating, and authorizations.

* * * * *

(e) instrument rating. No person may

act as pilot in command of a civil air-

craft under instrument flight rules, or in

weather conditions less than the minimums

prescribed for VFR flight unless-

(1) In the case of an airplane, he

holds an instrument rating or <n airline

transport pilot certificate wit an air-

plane category rating on it.

3/ Section 91.9 reads as follows:

891.9 Careless or reckless operation.

No person may operate an aircraft ina

careless or reckless manner so as to

endanger the life or property of another.

B=2

Aviation Regulations (FAR). The law judge

found further that, in view of the partic-— |

ular facts and circumstances surrounding

this case, 4/ no suspension of respon-

dent's private pilot certificates should

be imposed. 5/

The Administrator, in his appeal brief,|

argues that the law judge erred in holding |

that a sanction should not be imposed des- |

pite his finding that respondent violated

sections 61.3 and 91.9, and that, while

several mitigating factors justify a reduc

tion in the length of the suspension, a |

30-day suspension is warranted.

Respondent has filed a reply brief \

opposing the appeal and urging that the

law judge's decision be affirmed since,

4/ The law judge's rationale for not

imposing a sanction is discussed below.

5/ The Administrator's order provided for

a 180-day suspension.

B=<3

under the circumstances, no useful purpose

would be served by the imposition of a

Suspension.

Upon consideration of the briefs of the

parties, and the entire record, the Board

has determined that safety in air commerce

Or air transportation and the public inter-

est require affirmation of the Administra-

tor's order, as modified to provide for a

30-day suspension of respondent's airman

certificate.

Although the regulatory violations

themselves are not at issue on appeal, a

brief summary of the incident is appropri-

ate at least to the extent that the circum-

stances surrounding the flight bear on the

issue of sanction. On the day in question,

respondent ultimately was traveling to

Richmond, but on departure from Tri City

planned to fly only to Roanoke where she

planned to board a commercial flight to

Richmond. She was following the lights on

Interstate 81, through a valley, when she

suddenly entered clouds. She did a 180

degree turn and subsequently climbed to an

altitude above the clouds. She testified

that she did not want to return to Tri City

because of the mountainous terrain, that

she could not contact Roanoke, and that the

first frequency she picked up was Richmond,

where she eventually landed after being

vectored down through the cloud layer.

An FAA operations inspector testified

that, based on the weather information

available at the time of the flight, res-

pondent should not have taken off because,

as a non-instrument rated private pilot,

she should have realized she would not be

able to maintain VFR through the mountains

between Tri City and Roanoke;6/ that when

encountering clouds, respondent should

have climbed immediately; and that she

should have returned to Tri City, where

she knew the weather was good, rather than

continuing east toward deteriorating

weather.

The law judge, while finding in effect

that the violations were established, con-

cluded thai a sanction was not necessary

because respondent “is completely and

thoroughly rehabilitated as a pilot" (Tr.

138). The law judge was impressed by the

following: (1) respondent recognized that

6/ The inspector pointed out that, based

on the ceiling forecast for Roanoke and

the elevation of the surrounding terrain,

the clouds would be within 700 to 800 feet

of the ground through the pass, which is

below VFR minimums. In addition, the area

forecasts for Virginia called for mountain

or higher terrain to be obscured. The

inspector stated that “it would be partic-

ularly hazardous to even attempt to go

through there at night" (Tr. 37).

B-6

she exercised poor judgment in connection

with the flight; (2) she has obtained an

instrument rating, taken a mountain flying

course, completed the wings program, and

attended several FAA seminars; and (3) she

has purchased a computer which she utilizes

for weather briefings. Finally, the law

judge cited as an additional mitigating

factor respondent's use of an aircraft in

the frequent travel required by her medi-

cal practice.

After carefully examining the circum-

Stances of this case, we are not persuaded

that the factors cited by the law judge

totally obviate the need of a sanction.

The precedent most directly in point is

Administrator v. Sidicane, NTSB Order

EA-1402, Marc h28, 1980. The respondent

there, like the instant one, was a private

pilot, without an instrument rating, who

encountered adverse weather on a VFR flight

and who eventually was vectored down through

a cloud layer to a landing. Subsequent to

the incident, respondent Sidicane obtained

a commercial pilot certificate with single

and multi-engine land, instrument, flight

instructor and instrument flight instruc-

tor ratings. Also, by the time of the

hearing, he had begun to earn his living

as a flight instructor. The Board, noting

the changed circumstances, particularly in

regard to the ratings held and the economic

impact of the sanction, reduced the 90-day

Suspension (ordered by the law judge) to a

30-day suspension.

In view of the above precedent, and

the substantial similarity between the two

cases, the Board concludes that a 30-day

suspension likewise would be appropriate

herein. Although the factors considered

by the law judge are entitled to weight in

Mitigation, it is our view that a minimal

Sanction 7/ nevertheless is in the public

interest and in the interest of safety in

air commerce in order to deter pilots from

attempting flights into conditions which

exceed their capabilities, thereby

creating hazardous situations and the

potential for accidents. 8/

7/ As the Board noted in Sidicane, sanc-

tions in this type of case generally range

upward from a 30 day suspension.

8/ The fact that a sanction might have

been waived if respondent had filed a

report with the Aviation Safety Reporting

Program has no relevance to this pro-

ceeding.

ACCORDINGLY, IT IS ORDERED THAT:

1. The Administrator's appeal is

granted;

2. The Administrator's order, as

modified to provide for a 30-day suspen-

sion, is affirmed; and

3. The 30-day suspension of respon-

dent's airman certificate shall commence

30 days after service of this order.9/

BURNETT, Chairman, GOLDMAN, Vice Chairman

and BURSLEY, Member of the Board concurred

in the above opinion and order.

9/ For purposes of this order, respondent

must physically surrender her certificate

to an appropriate representative of the

FAA, pursuant to Section 61.19(f), FAR.

ENTERED: July 1l, 1984

NATIONAL TRANSPORTATION SAFETY BOARD

OFFICE OF ADMINISTRATIVE LAW JUDGES

In the matter of:

)

)

Donald D. Engen, Adminstrator, )

FEDERAL AVIATION ADMINISTRATION, )

)

Complainant, ) Case No.

vs. ) SE-6235

BRON BURWELL, M.D.,

Respondent.

The Courthouse

2501 Huntington Avenue

Third Floor

Newport News, Virginia

Wednesday, July ll, 1984

Pursuant to notice, the above-entitled

matter came on for hearing at 9:04 o'clock

a.m.

BEFORE: WILLIAM E. FOWLER, JR.

Administrative Law Judge

APPEARANCES:

On behalf of the Complainant:

MARGARET GILLIGAN, ESQUIRE

Office of the Regional Counsel

Federal Aviation Administration

Fitzgerald Federal Building

JFK International Airport

Jamaica, New York 11430

On behalf of the-Respondent:

PHILIP L. AVIS, ESQUIRE

240 24th Street

Newport News, Virginia 23607

ORAL DECISION )

Following notice to the parties, this

matter came on for trial on July 11, 1984

in Newport News, Virginia.

The Respondent was present at all

times, and was represented by Philip Avis,

Esquire, of Newport News, Virginia.

The Complainant was represented by one

of his Staff Counsel, Ms. Margaret Gilligan,

of the Regional Counsel Office, Eastern

Region, of the Federal Aviation Administra-

tion.

The parties have been afforded full

opportunity to offer evidence, call, and

examine, and cross-examine witnesses. In

addition, the paties were afforded the

opportunity to make argument in support of.

their respective positions.

The Administrator has charged Respon-

dent Burwell with two violations: - first,

by acting as pilot in command of an air-

craft in weather conditions less than the

minimums prescribed for VFR flight when

the Respondent did not hold an instrument.

rating or an air transport pilot's cer-

tificate while she was flying in minimums

that were less than those prescribed for af

VFR flight, in violation of section 61.3/(e}}

of the FAA Regulations.

The other section the Administrator

has charged Respondent Burwell with viola-

ting is section 91.9, by operating an air-

craft in a careless or reckless manner, so

as to endanger the life or property of

another.

Now, I have reviewed the testimony in

this case, as well as the documentary

exhibits, and I would have to find, hold,

and conclude that the violations as

charged by the FAA have been proven by the

evidence adduced during the course of this

proceeding.

Although the FAA only had the testi-

mony Of one witness, Inspector Roy Downs,

he certainly, as the record would indi-

cate, has 38 years experience as a pilot

and inspector in the realm of aviation,

and certainly would qualify as an expert

in this regard. te whe his considered

Opinion that the Respondent exercised poor

judgment, at least twice, where this flight

on December 31, 1982, from Tri-City, Tennes-

see to Richmond, Virginia, is concerned.

As I said at the outset, there's no

difficulty here where the record is con-

C-4

cerned in establishing the violation.

But I think we do have to put every-

thing into proper perspective. Now, by

the Respondent taking off on this flight,

she put herself in the predicament which

is a -- quite a dire predicament for any

noninstrument rated piiot -- to wit, to

find herself in clouds, unable to immedi-

ately get out of the clouds during che

course of this flight, and, at the same

time, to know that she is, at that very

moment, in a highly mountainous area. To

Say that this would put a noninstrument

rated pilot in a degree of turmoil men-

tally, would be the understatement.

It is quite obvious by the documentary

exhibits, by the testimony of the Respon-

dent herself, and in addition, by the

testimony of the Administrator's sole wit-

ness, Inspector Downs, that generally

Speaking, once finding herself in that

predicament, the Respondent handled her-

self very well, and with the possible

exception of making a 180 degree turn

first before she climbed -- with that one

possible exception -- the Respondent exer-

cised very good judgment, as Inspector

Downs had stated, in climbing, trying all

the local area airports, to reach them by

radio contact, which she was unable to do

successfullyl, until she finally got to

the Richmond airport. When she did get

through to the Richmond airport, they, as

the record indicates, successfully vec-

tored her into the Richmond area and into

a safe area.

I have heard a number of these cases

of VFR rated pilots finding themselves in

clouds, and of course, by doing this, they

do constitute a hazard. They constitute af

hazard to themselves, to their own lives,

to their aircraft, and they also consti-

tute a hazard to other aircraft that may

possibly be in the area. We have no evi-

dence or testimony here in this proceeding

today of any other aircraft being jeopar-

dized or even being in the area, so I

don't know whether there was or there

wasn't. But fortunately, there was no

incident, no untoward incident, as a

result of the Respondent's predicament,

and even more fortunately, there was no

accident here, as Inspector Downs testi-

fied to. He's known of other incidents

like this that ended up in an aircrash,

and even the fatality of the pilot or

pilots involved. Fortunately, we do not

have that present here.

But what we do have present are a

number of additional factors which give me

C-7

some concern.

I am as mindful, in the sense of the

FAA's mission and duty, where air safety

is concerned. It is of paramount concern

to me. But I think this case is somewhat

different, in that -- and I do not Say

this because of the Respondent's avocation

as a Medical doctor, which in itself, is

somewhat different than the usual pilot-

Respondent that we have -- but that is not

a determining factor at all. But the con-

comitant offshoots of that, in the living

that she earns, and the way that she earns

it, and the usage of her aircraft for the

furtherance of her living, I don't think

can be totally obviated or ignored in this

proceeding. And particularly so in view

of the fact that the Respondent has done

more to rehabilitate herself than any

pilot that I have had in any case before

me, in the many years that I have been

hearing these cas¢~.

It is not unusual for a private pilot

to subsequently obtain an instrument rating

after he or she has been involved in an

incident of this type. But at least to my

knowledge, I have never encountered a pilot

who has undergone such a thorough and inte

Sive program of exceptional rehabilitation

as Respondent Burwell has, here. She has

not only obtained her instrument rating;

she has engaged in and attended seminars

for improved pilot briefings where weather

conditions are concerned; she has gone

into that assiduously, employing and util-

izing all of the latest innovations and

techniques where briefing is concerned;

She has taken courses on the very latest

flying techniques; she has attended innum-

erable FAA seminars.

I suppose what I am saying here, to

boil it all down, to get to the real crux

of the issue here, is that while she com-

mitted the two violations, as the Admini-

Strator has charged -- there is no quest-

tion about that, and I will so find, hold,

and conclude -- but in view of the fact

that she has engaged in such an in-depth

program of rehabilitation as a pilot, and

has improved and bettered herself, and I

am not unmindful of the FAA's constantly

vigilant program for air safety, and to

improve safety in our skies, I have a

serious question in my mind as to what

would be accomplished by the Respondent in

this case serving out an Order of Suspen-

Sion. I think she has shown clearly -- in

fact, she has admitted on the stand -- that

she is extremely mindful and cognizant of

her violations, the mistakes that she made,

the poor judgment that she exercised, and

in response to a question that I put to

her while she was testifying, “If in hind-

Sight she was put in the same position

again that she was in on December 31, 1982,

after receiving the briefing that she had

received in the Tri-Cities area prior to

her flight --" you may recall the Respon-

dent said she would not have taken off;

she would not take this flight again as a

private pilot.

I'm saying that t» say, that I think

the Respondent is completely and thoroughly

rehabilitated as a pilot, and not only in

the sense of the matter of judgment, but

as I stated earlier, she has improved her-

self, and this is in addition to her havine

obtained the instrument rating, which she

has attained just seven months ago.

The National Transportation Safety

Board may disagree with me. I'm sure the

FAA will. But I do not see what a period

of suspension -- the value it would have,

as a deterrent where this particular Res-

pondent is concerned.

I think this Respondent is as mindful

of air safety as any that I've ever had

appear before me in a proceeding of this

type. As to the FAA's mission to maintain

our safety, it has, as an example where

other pilots are concerned, that they may

be able to, because of this case, get off

with a reduced sanction or no sanction --

I don't think that will necessarily follow,

because I think the particular and peculiar

facts and circumstances are most unusual

in this case, not only because of the Res-

pondent's rehabilitation, but because of

her attitude and her outlook, and also her

work and her vocation, which necessitate

her traveling long distances constantly,

Or at least several times during the course

of the week, in following the pursuit of

her livelihood.

I am persuaded in my own mind that,

while she is guilty of the violations

charged, a Sanction imposed here would be

certainly of no value to the Respondent.

In fact it would be of a great nonvalue

and disservice to the Respondent, and I

would think that, taking into account the

totality of the circumstances, as a very

unusual case, and possibly the only one of

its kind that I have ever heard, that the

FAA might possibly bear this in mind in

view of the ultimate result of this case

-- which is, ladies and gentlemen, that I

amgoOing to find the Respondent has made

the two violations as charged by the

Federal Aviation Administration, but I am

not going to impose any sanction.

Based upon my review of the evidence,

coupled with the documentary exhibits, I

will make the following findings of fact

and conclusions of law.

1) The Respondent, Bron Burwell,

admits and it is found that she is the

holder of private pilot's certificate

number 41492086 without an instrument

rating;

2) That it is found on or about

December 31, 1982, the Respondent acted as

pilot in command of a Cessna 172N-4682D,

on a flight from Tri-City, Tennessee to

Richmond, Virginia under visual flight

rules.

3) It is found that during the course

of the above-described flight, Respondent

C-14

Burwell operated the aircraft in weather

conditions less than the minimum prescribed

for the flight under visual flight rules.

4) It is found that by reason of the

foregoing, Respondent Burwell violated the

following sections of federal aviation

regulations: Section 61.3(E), that by

acting as pilot in command of a civil air-

craft in weather conditions less than the

minimums prescribed for VFR, when the Res-

pondent did not hold an instrument rating

Or airline transport pilot's certificate

with an airplane category rating; and Sec-

tion 91.9, that by operating an aircraft

in a careless manner so as to endanger the

life or property of another, to wit, that

of her own.

5) It is found -- this Judge finds

that safety in air commerce and air trans-

portation and the public interest does

require the affirmation of the Administra-

tor's Order of Suspension of March 20,

1984, in view of the Respondent's viola-

tions of Sections 61.3(E) and Section 91.9

of the Federal Aviation Regulations. How-

ever, in view of all the particular and

peculiar facts and circumstances surround-

ing this case, and the Respondent herself,

it is my judgment that no period of suspen-

Sion be imposed against the Respondent's

private pilot certificate.

ORDER:

IT IS ORDERED that the Administrator's

Order of Suspension dated March 20, 1984

be in the same and hereby is affirmed, how-

ever, without any sanction being imposed

against the Respondent's private pilot

certificate because of the aforesaid rea-

sons stated earlier during the course of

this decision.

This order is issued by WILLIAM E.

FOWLER, JR., United States Administrative

Law Judge.

APPEAL

Either party to this proceeding may

appeal the Judge's initial oral decision.

The appellant shall file its Notice of

Appeal within ten days of the Judge's oral

initial decision, and must, within 40 days

of the decision, file a brief in which he

is to set forth his objections to the

Judge's oral initial decision.

The Notice of Appeal and the brief

Shall be filed with the National Transpor-

tation Safety Board Docket Section, 800

Independence Avenue S.W., Washington, D.C.

20594.

March 20, 1984

CERTIFIED MAIL RETURN RECEIPT REQUESTED

Bron Burwell, M.D.

1570 Brandon Avenue

Petersburg, VA 23803

Re: Docket No. 82EA160039

ORDER OF SUSPENSION

On May 10, 1983, you were advised by mail

through a Notice of Proposed Certificate

Action of the reasons why we proposed to

Suspend your Private Pilot Certificate.

After a consideration of all the evidence

presently a part of this proceeding, inclu-

ding the representations made in our tele-

phone informal conference on March 8, 1984,

it has been determined that you violated

the Federal Aviation Regulations herein-

after specified by reason of the following:

1. You are the holder of Private Pilot

Certificate No. 414920286 without an instru-

ment rating.

2. On or about December 31, 1982, you

acted as pilot-in-command of a Cessna 172

N-46820 on a flight from Tri-City, Tennessee

to Richmond, Virginia under visual flight

rules.

3. During the course of the above des-

cribed flight, you operated the aircraft

in weather conditions less than the minimun

prescribed for flight under visual flight

rules.

By reason of the foregoing, you violated

the following sections of the Federal

Aviation Regulations:

1. Section 61.3(e) by acting as pilot-

in-command of a civil aircraft in weather

conditions less than the minimums prescribed

for VFR when you did not hold an instrument

rating or an Airline Transport Pilot Certif-

icate with an airplane category rating.

2. Section 91.9 by operating an air-

craft in a careless or reckless manner so

as to endanger the life or property of

another.

By reason of your violations of the Federal

Aviation Regulations, the Administrator has

determined that safety in air commerce and

the public interest require the suspension

of your Private Pilot Certificate for a

period of 180 days.

NOW, THEREFORE, IT IS ORDERED, pursuant to

Section 609 of the Federal Aviation Act of

1958, as amended, that your Private Pilot

Certificate No. 414920286 be suspended as

of April 9, 1984, and that said certificate

be surrendered to the undersigned by that

date. In the event you fail to so surren-

der said certificate to the undersigned

Regional Counsel, said suspension shall

commence on April 9, 1984, and continue in

force until 180 days subsequent to the

actual surrender.

THOMAS C. HALLORAN

Regional Counsel, AEA-7 :

Margaret Gilligan :

Attorney

APPEAL

You may appeal from this Order within

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

vice upon you to the National Transporta-

tion Safety Board, 800 Independence Avenue,—

S.W., Rm. 822, Washington, D.C. 20594. A

copy of your Notice of Appeal must be fur-

nished this office. Such appeal will stay —

the effectiveness of this Order.

cc: Philip I,. Avis, Esq.

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 85-1310

BRON BURWELL, M.D.,

Petitioner,

Ve

NATIONAL TRANSPORTATION SAFETY BOARD,

and DONALD D. ENGEN, Administrator,

FEDERAL AVIATION ADMINISTRATION,

7

Respondents.

PETITION FOR RECONSIDERATION AND REHEARING

COMES NOW Bron Burwell, M.D., by her

counsel, and petitions the court for

reconsideration of the Memorandum Order

entered June 10, 1986, and for rehearing.

As grounds, Petitioner shows the court

that the sanction imposed by the Board and

affirmed by the court is not within the

subject matter jurisdiction authorized by

law.

w

|

ce

I. Preliminary Authority

The issue of subject matter jurisdic-

tion can be raised at any point in the

proceeding and may even be addressed sua

Sponte by the court. Mitchel v. Maurer,

55 S.Ct. 162, 293 U.S. 237 (1934); Louis-

ville & Nashville R.R. v. Mottley, 29 S.Ct.

ville v. Brown-Crummer Inv. Co., 48 S.Ct.

454, 277 U.S. 54 (1928); Fed. R. Civ. P.

12(h) (3).

II. Issue

The trial judge while recognizing that

the violations by Burwell could support a

Sanction, found that under the circumstan-

ces of the case, a sanction was inappro-

priate. The evidence showed and the judge

found that the violations were inadvertent,

that Burwell did not lack competency, and

that any attitudinal problems which could

benefit by a sanction had been self-

corrected. Thus, safety in air commerce,

vis-a-vis Burwell, is not implicated.

The Board, ignoring the findings of

its chief law judge, and citing nothing

but the Administrator's argument that a

suspension is warranted, ignored the

limits on its power and authority under

the Federal Aviation Act, Section 609, and

proceeded ultra vires, to impose a sanc-

tion for its effect on others.

The order of the Board, imposed solely

“in order to deter [other] pilots", is

beyond the jurisdiction of applicable law.

This court has now erroneously sustained

the Board's position.

III. Argument

The Administrator looks to the Civil

Aeronautics Act of 1938, 8609, 49 U.S.C.

81429, for authority for the sanction to

be imposed. If the sanction is unwarran-

ted in law, the agency's choice can be

overturned. Butz v. Glover Livestock

Commission Co., 4ll U.S. 182, 185-86, 93

S.Ct. 1455 (1973). If the sanction is not

authorized by law, the absence of juris-

diction renders the proceedings legally

void. Re Bonner, 151 U.S. 242, 14 S.Ct.

323 (1894).

The court cites two possible grounds

for sustaining the Board. First, the rem-

edial effect on Burwell. This was not

implicated by the clear finding of the law

judge and was not brought forward by the

Board. Second, and erroneously, the court

Supports the Board's suggestion that pun-

ishment of Burwell will have a deterrent

effect on others, and hence is in the pub-

lic interest. Section 609 does not allow

the second, unless the first is deter-

mined.

Nowhere in Section 609 is there

authority, under the circumstances, to

punish Burwell by imposition of a sanction

and thus there is a total absence of sub-

ject matter jurisdiction.

The issue of the Board's power under

Section 609 was first considered by this

court in Wilson v. C.A.B., 244 F.2d 773,

cert denied, 355 U.S. 870 (D.C. Cir. 1957).

However, Petitioner Wilson merely challen-

ged the procedure employed, by arguing

that.re-examination was a condition prec-

edent to an action wnder Section 609.

This court, without citation to authority,

rejected that argument and stated that

suspension could be ordered for discipli-

nary purposes, without the necessity for

re-examination. Wilson goes no further.

E-5

The issue was next addressed in Specht

v. C.A.B., 254 F.2d 905 (8th Cir. 1958).

However, in Specht it is clear that the

remedial power of the Board was being

directed at the mental attitude of Specht.

The court stated:

We agree with the Board the

technical proficiency is not

the only requirement upon which

the issuance or retention of an

airline transport pilot rating

is conditioned. A successful

applicant for or holder of such

certificate should possess a

demonstrated degree of judgment,

unaffected by his temperament

or disposition, which will

enable him to consistently per-

form his technical skills ina

manner conducive to the safety

of his passenger, aircraft and

crew. Implicit in the issuance

of an airline transport pilot

rating and certificate is the

Administrator's finding that

the holder thereof possesses

the degree of judgment required

of a pilot in command.

However, the failure to exercise

due care and the unjustified

violations of safety regulations,

whether in anger or truculence

Or not, by an otherwise quali-

fied applicant should certainly

form a substantial evidentiary

basis for a finding that the

applicant was not qualified to

hold such certificate.

We hold the Board acted well

within its statutory authority i

in revoking petitioner's license

upon its finding based on sub-

Stantial evidence “* * * that

respondent lacks the qualifica-

tions required of the holder of

an airline transport pilot cer-

tificate in the respects indi-

cated above, and that such lack

of qualifications constitutes

cause which would presently

justify the Administrator in

refusing to issue to respondent

a like certificate, and that

the order of revocation set

forth below is required in the

interest of the public in the

proper discharge of the Board's

statutory duty to assure the

highest degree of safety in air

transportation."

254 F.2d 916,17.

It should be noted that all that was

Suspended by the Board was Specht's Air-

line Transport Pilot Certificate. Reten-

tion of his Commercial Pilot Certificate

permitted him to continue to fly as co-

pilot and earn his living. Specht goes no

further than. supporting a suspension when

the remedial effect is directed at the

pilot respondent.

Burwell clearly does not fall into

this category.

Similarly, in Pangburn v. C.A.B., 311

F.2d 349 (lst Cir. 1962), the issue of the

scope of authority under Section 609 was

raised. Again, as in Wilson and Specht

upon which Pangburn relies, the authority

of the Board to suspend a license was

directed at the effect it would have

directly on the pilot/petitioner.

Once again, such is not the case with

Burwell.

In all these cases, including Hard v.

C.A.B., 248 F.2d 761, cert denied, 355

U.S. 960 (7th Cir. 1957), also cited in

Pangburn, the Board and the court were

dealing with airline captains charged with

the safety of their passengers. Pilots,

who by their decision-making, as opposed

to their technical competence, placed

those passengers in jeopardy.

In each of these cases, the effect

that the suspension would have on other

pilots was merely ancillary. Suspensions

were imposed and upheld for the remedial

effect on the pilot/petitioner. None of

these cases support the imposition of a

Suspension on a pilot who does not need

remediation but solely for the effect it

will have on others.

E-9

IV. Conclusion

At every stage of these proceedings,

Bron Burwell has been found technically

qualified and totally rehabilitated in her

own right.

The only basis the Board or the court

have found for imposing any penalty on

Burwell is the remedial effect it will

have on others.

Section 609 does not confer such

authority on the Administrator, the Board,

or the court, and there are no decisions

that allow the Administrator to arrogate

unto itself such power.

The sanction upheld by the court is

without subject matter jurisdiction.

DATED this 24th day of July, 1986.

Respectfully submitted,

Robert P. Smith

601 Broadway, Suite 400

Denver, Colorado 80203

Telephone: 303/292-3880

Attorney for Petitioner

E-10

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

No. 85-1310 September Term 1985

Filed August 8, 1986

Bron Burwell, M.D.

Vv.

National Transportation Safety Board

BEFORE: Wald, Chief Judge; Wright

and McGowan, Senior Circuit Judges

ORDER

Upon consideration of petitioner's

petition for reconsideration and

rehearing, filed July 25, 1986, it

is

ORDERED, by the Court, that the

petition is denied.

Per Curiam

BY THE COURT:

GEORGE A. FISHER, CLERK

By: Robert A. Bonner

Chief Deputy Clerk

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

GENERAL AVIATION DISTRICT OFFICE

BYRD INTERNATIONAL AIRPORT

SANDSTON, VIRGINIA 23150-2594

January 27, 1983

In Reply

Refer To: AEA-GADO-16:LDB

FILE NUMBER: 82EA160039

CERTIFIED MAIL - RETURN RECEIPT

REQUESTED

Bronwen L. Burwell

1570 Brandon Avenue

Petersburg, Va. 23805

Dear Ms. Burwell:

Personnel of this office are inves-

tigating an incident occurring on

December 31, 1982 which involved the

operation of a Cessna 172 aircraft,

N-4682D, on top of an overcast in

the Richmond, Virginia area. Rich-

mond Approach Control vectored the

aircraft down through the overcast

to a point where VFR conditions

prevailed and a safe landing was

accomplished.

You have been identified as pilot-

in-command of N-4682D on this flight.

During a recent phone conversation

with Inspector Bohnke, you stated

you departed the Tri-City Tennessee

Airport on a VFR flight with an in-

tended destination of Roanoke, Vir-

ginia. Priw. to reaching Roanoke,

you said the weather deteriorated

and you climbed through the clouds

to on top and proceeded to Roanoke

and then on to Richmond. Weather

information at the time of your

briefing at Tri-City Airport indi-

cates the weather in the Roanoke

area was 2,500 feet broken to over-

cast, with an area forecast showing

the mountains obscured in Virginia.

Tri-City weather was 25,000 thin,

scattered and 15 miles at the time

of your briefing.

From the above information, it

appears that you did not familiar-

ize yourself with all available

weather information before begin-

ning the flight. Then after flying

into deteriorating weather condi-

tions, you elected to climb through

the clouds and continue the flight

towards Richmond instead of return-

ing to VFR conditions in the Tri-

City area. Operation of this nature

is contrary to the Federal Aviation

Regulations.

This letter is to inform you that

this matter is under investigation

by the Federal Aviation Administra-

tion. We would appreciate receiv-

ing any evidence or statements you

might care to make regarding this

matter within 10 days of receipt of

this letter. Any discussion or

written statements furnished by you

will be given consideration in our

investigation. If we do not hear

from you within the specified time,

Our report will be processed with-

out the benefit of your statement.

Yours truly,

G. R. Riley for

JOHN B. NEWELL

Manager, General Aviation District

Office

BRON BURWELL, M.D.

JOHN GUILLERMIN, M.D.

1570 Brandon Avenue

Petersburg, Virginia 23803

February 2, 1983

Mr. John Newell

Mr. Leo Bohnke

General Aviation District Office

Byrd International Airport

Sandston, VA 23150

Re: AEA-GADO-1r:LDB

Dear Mr. Newell and Mr. Bohnke;

In response to your letter of January

27, 1983, let me clarify what I said to

Mr. Bohnke during our brief phone conver-

Sation previously. From your letter, I

understand your two concerns about my flight

from Knoxville to Richmond Dec. 31, during

which I inadvertently flew into clouds

during the night, are: 1. that I possibly

failed to obtain adequate preflight brief-

ing 2. that once in the clouds and unable

to establish radio communication with either

Roanoke or Tri-Cities, that I exercised poor

judgment in proceeding southeast bound of

the Roanoke TRSA, rather than returning

southwest bound back over the mountains to

T.i-Cities.

Concerning my preflight briefing, I

believe it was adequate and probably exces-

Sive. I believe the Knoxville FSS log of

briefing calls will show either four or

five calls for aircraft 4682D, beginning

late night Dec. 30 a few hours after I had

arrived in Knoxville. Because I worked

throughout the Christmas holidays, I plan-

ned a 12 hour late Christmas visit to my

parents in Knoxville the evening of Dec.

30 and morning of Dec. 3lst. My first

briefing for the return flight TYS to RIC

was Dec. 30 evening. The forecast was

that Virginia east of Roanoke would be IFR,

the day of the 3lst. I therefore made a

commercial reservation of Piedmont flight

288 from TRI to RIC departing TRI 4:10 pm

local arriving RIC 7:14. I planned to

leave the airplane tied down in TRI and

return for it in VFR weather. The reason

for not flying Knoxville to Richmond is

that there are no commercial flights

direct between the 2 cities, and one has

to layover in either Atlanta or Charlotte.

I made several calis to Knoxville FSS the

morning of Dec. 31 to confirm that the

flight from TYS to TRI would be under VFR

conditions. I still have the notes from

some of those briefings on the flight log

forms I use:

TYS 2,500 SCT

TRI 25,000 SCT;

forecasting 25,000 SCT

ROA 2,500 SCT, 3,500 OVC vis 10;

forecasting 2,500 SCT through O12

RIC 800 OVC/variable/drizzle

I reconfirmed the briefing from Knox-

ville FSS by calling Newport News FSS long

distance from Knoxville at 1:54 p.m. local.

When I am flying cross country out of state,

after calling the local FSS, I always call

Newport News FSS long distance. I have

enclosed a xeroxed copy of my "C&P" bill

for the 4 minute briefing I received for

the TYS-TRI flight at 1:54, which was just

prior to leaving my parents" home for

McGhee Tyson Airport. I have been told

that this practice is a waste of money,

but I recognize the names and voices of the

Newport News FSS men, and know by this

means that the briefing is really adequate.

On that briefing, I recall asking specifi-

cally if there were any PIREPS for the

western part of Virginia (there weren't)

and asking specifically about the area

weather, and being told that the eastern

part of the state was IFR and that North

Carolina was also.

I made a final Knoxville FSS call after

preflighting, and filed TYS-TRI. The notes

H-4

I have from that briefing are: TRI 4,000

SCT, 25,000 SCT. I was on the ground at

the TRI-FBO at 4:20 local, having missed

my Piedmont flight. I called the FSS at

TRI and received an updated briefing for

ROA, which my notes show as 2,500 SCT vis

10 temp 40, forecasting 2,500 SCT. I then

called and made a reservation for Piedmont's

flight 287 departing ROA at 7:10 local,

arriving RIC 7:43. I had now revised my

plans to leave the airplane tied down in

Roanoke.

In summary, I believe I made thorough

weather planning. I believe the reason

that I got into clouds was a combination

of the unavailability of weather infor-

mation between the reporting points of TRI

and ROA, and/or being unable to see the

forecast scattered clouds until I was

flying in them--due to night flight.

Regarding the second point in your

letter as to why I did not return to VFR

conditions by flying back to Tri-Cities,

as I told Mr. Bohnke over the phone, the

first thing I did do upon encountering

clouds was to make a 180 degree standard

rate turn. My heading at that time was

060, and I was at 3,200 with TRI altimeter

setting. This was my assigned altitude

from departure control at TRI and I had

continued to maintain it. I was flying

VFR following the lights of Interstate 8l

North, cross checking my position using

the Glade Springs and Pulaski VORs. I was

not tracking towards a VOR, but following

the interstate through the valley between

the mountain ridges when I got into clouds.

I believe I was just over Christianburg,

Virginia at that time. When making a 180

degree turn and maintaining a heading of

240 did not get me out of the clouds, my

immediate concern was not crashing into a

mountain. I remembered the 3 C's: when

in trouble, climb, confess, and comply. I

climbed to 5,500, which got me above the

clouds, and circled while trying to con-

tact Roanoke. I tried all the Roanoke

frequencies, including the tower, and then

all the TRI frequencies, without result,

although my radios were working normally.

I then tried calling VPI unicom and also

received no answer. I next tried tracking

to VPI on 257 (which at the time I got

into the clouds was on my left wing tip on

the ADF) and was the nearest airport.

Although I could occasionally see lights

and breaks through the clouds, I could not

find a safe area to descend through the

clouds and was never able to see the VPI

beacon. I then decided the best decision

was to fly south of the ROA TRSA, so as to

Stay out of the way of the mountain ridges

south of Roanoke and out of the way of

other aircraft, and to continue to try to

reach Roanoke for heip. This is what I

did, maintaining 5,500 altitude, cross-

checking my position using the Roanoke and

BlueRidge VORs, and continuing to try to

establish radio contact with Roanoke. I

was southeast of Roanoke trying every

tenable frequency in my ADF, when I picked

up Richmond ATIS, reporting 1600 overcast

3 miles visibility. At that point I had

reached the conclusion that Roanoke might

be having radio trouble. I therefore gave

up on Roanoke and decided I was going

someplace I could get some help. I

remained south of the Lynchburg CZ and RIC

TRSA on the heading of 090. The rest of

the story you know.

In summary, after my initial 180 degree

turn back towards TRI failed, I didn't again

even consider that option because I was

afraid of flying back into mountainous

terrain. My flight briefing had indicated

that ROA was VFR and forecast to remain so.

At the time, those were the best decisions

I could make. On your tape of my landing

in Richmond, there was a communication

from a pilot flying from Richmond to

Roanoke who offered to allow me to follow

him to Roanoke. That pilot introduced

himself to me at Byrd a week later, and

mentioned that Roanoke had indeed been VFR

when he landed the night of Dec. 3]. In

retrospect, had I tracked into Roanoke,

rather than trying to stay south of the

mountains and TRSA until establishing

radio contact: with Roanoke, I mignt have

been able to reach Roanoke Approach and

descend into VFR conditions there.

H-9

I hope this long letter has clarified

the points that Mr. Bohnke and I did not

discuss in detail. I still have my flight

plans and charts from that trip, should

you need them. I remain very grateful for

the help that the Richmond controllers

gave me that night and am heeding the

advice that the Richmond controllers gave

me on the ground--to get an instrument

rating. To summarize the lessons I learned

from this one cross country flight would

consume as much paper as this letter.

I am sorry for the inconvenience I

caused Mr. uendticks and the Richmond

controllers, and most appreciative of

their help. I realize that in flying

safety is paramount. I know that flight

into IFR conditions-~-although inadvertent

--was illegal, and hope that, given the

details of this flight, you will realize

that I did my best to put safety first,

keep a clear head, and fly the airplane.

I thank you very much for your time

and effort, and am grateful for your con-

Siderativ.n in this matter.

Sincerely,

Bron Burwell, M.D.

BB/mc

cc: Mr. Riley

Mr. Hendricks

Enclosures: 2

CERTIFICATE OF SERVICE

I, Robert P. Smith, attorney for petitioner

herein, and a member of the Bar of the Supreme

Court of the United States, hereby certify

that on the 8th day of October, 1986, I served

copies of this Petition for Writ of Certiorari

to the United States Court of Appeals for the

District of Columbia Circuit, by mailing

copies in a duly addressed envelope, with

first class postage prepaid, to the following

attorneys of record:

John M. Stuhldreher, General Counsel

Office of General Counsel

National Transportation Safety Board

800 Independence Avenue, S.W.

Washington, D.C. 20594

Vicki Leemon, Esq.

Federal Aviation Administration

Room 918C, AGC-250

800 Independence Avenue, S$.W.

Washington, D.C. 20591

Solicitor General

Department of Justice

Washington, D.C. 20530

All parties required to be served have been

served.

Robert P. Smith

601 Broadway, Suite 400

Denver, Colorado 80203

(303) 292-3880

Attorney for Petitioner

CERT-1

AFFIDAVIT OF MAILING

I, Robert P. Smith, attorney for petitioner

herein, and a member of the Bar of the Supreme

Court of the United States, hereby certify

that on the 8th day of October, 1986, I depos-

ited in the United States Post Office located

at 1823 Stout Street, Denver, Colorado, with

first class postage prepaid, and properly

addressed to the Clerk of the Supreme Court

of the United States, within the time allowed

for filing, this Petition for Writ of Certior-

ari to the United States Court of Appeals for

the District of Columbia Circuit.

pled, Zhar

Robert P. Smith

601 Broadway, Suite 400

Denver, Colorado 80203

(303) 292-3880

Attorney for Petitioner

STATE OF COLORADO )

> 88.

CITY AND COUNTY OF DENVER )

SUBSCRIBED AND SWORN to before me at

Denver, Colorado, this 8“ day of October,

otary Public

State of Colorado

My commission expires:

S-2G-GF

AFF-1