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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1990
- **Citation:** 498 U.S. 996

## Text

Supreme Court, U.S.
&® FILED
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* JOSEPH F. SPANIOK, UR.
CLERK

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IN THE
Supreme Court of the United States
OCTOBER TERM, 1990

John C. Pritchard,
Petitioner,
v.
National Transportation Safety Board,

Respondent.

PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOHN C. PRITCHARD
8601 Falmouth #406
Playa del Rey, CA 90293
(213) 305-2837

Petitioner Pro Se

sje

QUESTIONS PRESENTED

1. Whether the National Transportation Safety
Board abused its discretion and violated the
principles established in Accardi v. Shaughnessy,
347 U.S. 260 (1953), by setting the date of entry of its
orders in a manner contrary to the Board's own
Rules of Practice.

2. Whether the court of appeals improperly
dismissed petitioner's Petition for Review, as
untimely filed, when that petition was filed within
the sixty (60) day statutory time limit set within the
Federal Aviation Act (49 U.S.C. Section 1486(a)) as
further defined by the Rules of Practice of the
National Transportation Safety Board (49 C.F.R.
Section 821.64).

TABLE OF CONTENTS

Page
Questions Presented i
Table of Contents ii
Table of Authorities Vv
OPINIONS BELOW 1
JURISDICTION 1
STATUTES INVOLVED 2
STATEMENT OF THE CASE 2
REASONS FOR GRANTING THE WRIT 6

I The National Transportation Safety
Board impermissibly departed from
the provisions of Board Rules in
setting the date of entry of its order. 7

II The court of appeals wrongly
dismissed Pritchard's Petition
for Review, as untimely, when that
petition was filed within the time
limit established by statute and
regulation. 9

CONCLUSION - w 14
APPENDICES 15

il

TABLE OF CONTENTS (cont.)
Page
APPENDIX A 16

Order of the Court of Appeals
for the Ninth Circuit, filed on June 5,
1990, dismissing petitioner's Petition
for Review as untimely.

APPENDIX B 17

Order of the Court of Appeals
for-the Ninth Circuit, filed on June 27,
1990, denying petitioner's Motion for
Reconsideration.

APPENDIX C 18

Order of the National Trans-
portation Safety Board (EA-3024),
adopted on November 1, 1990, affir-
ming the suspension of petitioner
Pritchard's pilot certificate.

APPENDIX D 23

FAA Order of Suspension,
dated September 16, 1987, suspending
petitioner Pritchard's Airline
Transport Pilot Certificate.

APPENDIX E 26
Petitioner Pritchard's Petition
for Review to the Court of Appeals for

the Ninth Circuit, dated January 19,
1990.

ili

APPENDIX F
Affidavit of Kevin W. Daisey,
petitioner Pritchard's representative
before the National Transportation
Safety Board, describing the date,
method, and manner of service of the
Board's final Opinion and Order.
APPENDIX G
Notice of Representation
supplied by Kevin W. Daisey to the
NTSB, indicating Daisey's repre-
sentation of petitioner Pritchard in
all matters before the Board. Also
indicates Pritchard's address for the
purposes of documentary service.
APPENDIX H
Federal Aviation Act
49 U.S.C. Section 1486(a)
NTSB Rules of Practice
49 C.F.R. Section 821.64
49 C.F.R. Section 821.7(f)
49 C.F.R. Section 821.8(a)
49 C.F.R. Section 821.8(d)

49 C.F.R. Section 821.8(e)

iv

Page

TABLE OF AUTHORITIES

CASES

Accardi v. Shaughnessy,
347 U.S. 260 (1953)

McLouth Steel Products v. Thomas,
838 F.2d. 1317 (D.C. Cir. 1988)

McNabb v. United States,
318 US. 322 (1943)

National Air Transport Association v.
McArtor, 866 F.2d. 483 (D.C. Cir. 1989)

Service v. Dulles, 354 U.S. 363 (1957)

United States v. Heffner,
420 F.2d. 809 (Fourth Cir. 1970)

Vitarelli v. Seaton, 359 U.S. 535 (1959)
Yellin v. United States,
374 U.S. 109 (1963)
STATUTES
28 U.S.C. Section 1254(1)
49 U.S.C. Section 1429%a)
49 U.S.C. Section 1486(a)

Page

passim

12

9, 11

passim

passim

passim

TABLE OF AUTHORITIES (cont.)

Page
RULES AND REGULATIONS

Supreme Court Rule 17.1 2

Fed. R. of Civ. Proc., Rule 36 10

49 C.F.R. Part 821 3

49 C.F.R. Section 821.6 4

49 C.F.R. Section 821.7(f) passim
49 C.F.R. Section 821.8 passim
49 C.F.R. Section 821.32 4

49 C.F.R. Section 821.48(a) 4

49 C.F.R. Section 821.64 passim

vi

PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT

Petitioner John C. Pritchard hereby requests
that the Court issue a writ of certiorari to review the
order of the United States Court of Appeals for the
Ninth Circuit, issued on June 5, 1990, wherein the
court of appeals dismissed Pritchard's Petition for

Review of an Order of the National Transportation
Safety Board.

OPINIONS BELOW

The Opinion and Order of the National
Transportation Safety Board in the underlying case
is reported in a ‘Slip Opinion’ as EA-3u24 (App. C).
The Order of the United States Court of Appeals for
the Ninth Circuit, dismissing Petitioner Pritchard's
Petition for Review, is unreported (App. A). The
Order of the United States Court of Appeals for the
Ninth Circuit, denying Petitioner's Motion to
Reconsider, is unreported (App. B). The appeals
court docket number is 90-70041.

JURISDICTION

The order of the court of appeals dismissing
Petitioner Pritchard's Petition for Review was
entered on June 5, 1990. (App A). The order of the
court of appeals denying reconsideration was
entered on June 27, 1990. (App. B). The jurisdiction
of this Court is invoked pursuant to 28 U.S.C.

Section 1254(1) as provided within the Federal
Aviation Act (49 U.S.C. Section 1486(f).

STATUTES INVOLVED

This petition concerns the proper
interpretation of Section 1006(a) of the Federal
Aviation Act of 1958 (49 U.S.C. Section 1486(a)) in
light of the Rules of Practice of the National
Transportation Safety Board, wherein, the Board
has defined and established a policy for setting the
date of entry of its orders (49 C.F.R. Sections 821.64,
821.7(f), 821.8(a), 821.8(d), and 821.8(e)). The
applicable statute and regulations are fully set forth
and presented in the appendix (App. H).

STATEMENT OF THE CASE

This petition raises issues of widespread impor-
tance in the area of administrative law and con-
cerns fundamental ‘due process’ rights established
by statute and within the provisions of federal
agency rules. The petitioner asks that the Court
exercise its power of supervision due to the wide
departure of the appeals court from the accepted
course of judicial proceedings and from the
applicable decisions of the Court (S.Ct. Rule 17.1).

The petition here arises as the result of the
dismissal, as untimely filed, of Petitioner
Pritchard's Petition for Review to the court of
appeals wherein he sought review of an order of the
National Transportation Safety Board. That order
affirmed the suspension of Pritchard's Airline
Transport Pilot certificate. The Petition for Review
was filed within the sixty (60) day statutory limit,
from date of entry of the Board's order, as set forth

within the Federal Aviation Act and as further
defined within the Board's own Rules of Practice.
However, in establishing the date of entry of its
order for the purposes of seeking dismissal of
Pritchard's Petition for Review, the Board
arbitrarily set the date of entry of its order in a
manner other than by the procedure specified
within the Board's Rules of Practice (49 C.F.R. Part
821). And thus, the Board and the court of appeals
violated the doctrine established by the Court in
Accardi v. Shaughnessy, 347 U.S. 260 (1953).

Section 1006(a) of the Federal Aviation Act (49
U.S.C. Section 1486(a)) (App. H) provides that orders
of the National Transportation Safety Board shall be
subject to review by the courts of appeal upon
petition filed within sixty (60) days of date of entry of
the Board's order. And Section 821.64 of the Rules of
Practice of the National Transportation Safety
Board (49 C.F.R. Section 821.64) (App. H) states that,
for the purposes of such a petition for review, the
date of entry of the Board Order is the date on
which the ORDER IS SERVED. Board rules
further specify the requirements of proper service
in Section 821.8 (49 C.F.R. Section 821.8) (App. H)
where the rules state (Section 821.8(a)) that Board
orders shall be served upon all parties by certified
mail to the person specified to receive such service
(Section 821.8(d)) at the address of that person as
otherwise designated (Section 821.8(e)).

In the underlying case, on September 16, 1987
the Administrator of the Federal Aviation
Administration issued an Order of Suspension
(App. D) which suspended the Airline Transport
Pilot certificate of Petitioner John C. Pritchard. As
is allowed within the provisions of Section 609 of the
Federal Aviation Act (49 U.S.C. Section 1429(a)),
Pritchard appealed the FAA Administrator's

suspension order to the National Transportation
Safety Board.

In a March 11, 1988 filing with the National
Transportation Safety Board (App. G), provided in
accordance with Board rules 821.6 and 821.7(f) (49
C.F.R. Sections 821.6 and 821.7(f)), Kevin W. Daisey
provided notice of his designation as the
representative of John C. Pritchard in all matters
pending before the Board. Daisey's notice further
informed the Board of Daisey's designation to
receive all service on behalf of Pritchard (Section
821.8) in accordance with Board rule 821.7(f)(49
C.F.R. Section 821.7(f)) (App. H).

On April 28, 1988, a hearing was held before an
administrative law judge of the National
Transportation Safety Board. There, the law judge
issued an Oral Initial Decision and Order affirming
the FAA Administrator's Order of Suspension. In
her order the law judge found that, irrespective of
the fact that Board rules (49 C.F.R. Section 821.32)
place the ‘burden of proof upon the FAA Admini-
strator, once an incident is established "we have to
find that there is negligence or carelessness
involved" unless convincing evidence to the
contrary is brought forth by the accused. And after
an appeal to the full National Transportation Safety
Board, perfected on June 9, 1988 by the filing of an
appeal brief in accordance with Board rule 821.48(a)
(49 C.F.R. Section 821.48(a)), in an order adopted on
November 1, 1989 the full National Transportation
Safety Board affirmed the law judge's Oral Initial
Decision and Order with its own Opinion and Order
(EA-3024) (App. C).

In a December 13, 1989 telephone inquiry to the
office of the Board's chief counsel concerning the
status of the pending case, representative Daisey

learned that the National Transportation Safety
Board had adopted Order EA-3024 with respect to
the appeal to the Board by the petitioner here, John
C. Pritchard (App. F). Daisey also learned that the
Board had mistakenly failed to serve its order upon
him as was provided for and required by Board
rules. And Daisey requested to be provided with a
copy of the Board's order for the purposes of
evaluating further appeal or court review. At
Daisey's request the Board staff provided Daisey
with a copy of the Board order by regular, not
certified, mail. And Daisey received that order on or
about December 19, 1989. No other service by the
Board had been properly attempted on Petitioner
Pritchard or representative Daisey (App. F).

On January 19, 1990, after necessary research
and inquiry, and in accordance with the provisions
of the Federal Aviation Act (49 U.S.C. Section 1486),
Petitioner Pritchard served his Petition for Review
on the Board and mailed it to the Court of Appeals
for the Ninth Circuit. The petition was filed by the
court on January 24, 1990. Pritchard's Petition for
Review was filed on the forty-third (43rd) day after
service of the Board's order was first attempted on
Pritchard by the December 13, 1989 mailing to
representative Kevin Daisey. And thus, under
Board rule 821.64, entry of the Board's order
occurred on December 13, 1989.

In a May 10, 1990 Motion to the court of
appeals, the National Transportation Safety Board,
represented by counsel for the FAA Administrator,
sought dismissal of Pritchard's Petition for Review
on the grounds that Pritchard's petition was un-
timely. The Board claimed that Pritchard's petition
was not filed until the sixty-first (61st) day after
entry of the Board's order where service had been
indicated by a typewritten date notation at the top of

the order rather than the date on which the Board
had actually served its order on Pritchard in
accordance with Board rules (49 C.F.R. Sections
821.7(f) and 821.8). The Board noted the service date
as November 24, 1989, irrespective of the fact that the
Board's records indicated that Daisey had not been
served on Pritchard's behalf at that time. And other
than the typewritten notation which was provided
prior to the printing of the Board's Order, there was
no record or claim of service before December 13,
1989. And at no time was there any record of mail
service by certified mail to representative Daisey as
is required by Board rules (49 C.F.R. Section
821.8(a)).

On June 5, 1990 the court of appeals granted the
Board's Motion to Dismiss (App. A) citing Petitioner
Pritchard's failure to demonstrate reasonable
grounds to extend the 60 day statutory period. And
on June 27, 1990 the court of appeals denied (App.
B) Petitioner Pritchard's Motion to Reconsider the
dismissal wherein Pritchard cited the statutory and
regulatory provisions which confirmed the timeli-
ness of his Petition for Review.

REASONS FOR GRANTING THE WRIT

The court of appeals departed from a very
basic rule of administrative law in dismissing
Pritchard's Petition for Review. Where, in Accardi
v. Shaughnessy (347 U.S. 260 (1954)) this Court set a
standard whereby a federal agency may not depart
from the rules and policy which it has established,
the court of appeals allowed just such a departure
from agency regulations in setting the date of entry
of the Board's order in the underlying case.

I. THE NATIONAL TRANSPORTATION
SAFETY BOARD IMPERMISSIBLY
DEPARTED FROM THE PROVISIONS
OF BOARD RULES IN SETTING THE
DATE OF ENTRY OF ITS ORDER.

Orders of the National Transportation Safety
Board, and of the Administrator of the Federal
Aviation Administration, are subject to review by
the United States Court of Appeals. And the
provisions of the Federal Aviation Act (49 U.S.C.
Section 1486(a)) set a statutory time limit for the
filing of a petition for review with the appeals court.
The Act provides that a petition for appeals court
review must be filed within sixty (60) days of the
date of entry of the order in question.

The Rules of Practice of the National
Transportation Safety Board (49 C.F.R. Section
821.64) specify that "[t]he date of entry the Board
Order is the date on which the order is served".
And thus, "[rJegulations with the force and effect of
law supplement the bare bones of [the Federal Avia-
ion Act]" (Accardi v. Shaughnessy, 347 U.S. 260)
Entry of a Board order does not occur until service is
accomplished.

The Board's Rules of Practice do not stop with
a simple definition of the date of entry, and Board
rules specifically go on to require that service of
Board orders is to be made by certified mail (49
C.F.R. Section 821.8(a)) to the person designated to
receive service (49 C.F.R. Section 821.8(a)) at the
address of the designated person as was specified
and provided to the Board in accordance with the
provisions of Board rule 821.7(f) (49 C.F.R. 821.7(f)).
Accordingly, when date of entry "...is based upon a
defined procedure, even though generous beyond
the requirements that bind such agency, that

procedure must be scrupulously observed" (Vitarelli
v. Seaton, 359 U.S. 535 at 547 (1959), concurrence of
Justice Frankfurter citing; Service v. Dulles, 354
U.S. 363 (1957)).

In this case, Petitioner Pritchard did not receive
service of the Board's final order until after the
mailing of that order on or about December 13, 1989
(App. F) when it was mailed to his representative,
Kevin Daisey. Only then is there any evidence to
show that the order was sent to the address which
Daisey specified in the notice he provided the Board
in accordance with the Board's rules (49 C.F.R.
Section 821.7(f)). And although the Board may
argue that service was made prior to that point, as
arbitrarily indicated in a typed notation at the top of
the Board's printed Order (EA-3024), by the Board's
own rules the typed notation meant nothing when
no actual mailing to Petitioner Pritchard took place
and no record of mailing by certified mail exists
which would verify fulfillment of the Board's rules
of practice (49 C.F.R. Section 821.8(a)). Certified
mail would have no other purpose than to provide a
record of proper service of the Board's order, and
thus protect the procedural rights of parties to
Board proceedings.

The Board sought and gained dismissal of
Petitioner Pritchard's petition for review of the
Board's order based upon its arbitrary typed
notation regarding service. The Board noted that
the filing of Pritchard's Petition for Review in the
appeals court did not occur until, what the Board
calculated to be, the "sixty first" day after the
Board's entry of its order. However, to reach this
conclusion, the Board entirely ignored its
regulations and procedures for setting the date of
entry of its orders. And where, by the Board's rules,
entry of its order (EA-3024) was accomplished on or

after December 13, 1989, in setting of the date of
entry of the order for the purposes of seeking
dismissal of Pritchard's Petition for Review, the
Board used the capricious typed notation specifying
service on November 24, 1989 rather than the actual
date that the order was served to representative
Daisey in accordance with other Board rules and
policy.

In United States v. Heffner, 420 F.2d. 809 (1970),
the Court of Appeals for the Fourth Circuit cited the
Court's Accardi Doctrine (supra) in reversing a tax
fraud case. The Fourth Circuit noted that in both
Accardi (supra) and Yellin v. United States (374 U.S.
109 (1963)) the Court "vacated government actions
and remanded for new determinations consistent
with the established procedures even though the
Court doubted that these procedures would lead to a
different result" (Heffner, supra at 813). In the pre-
sent case, however, the result would be different.
Pritchard would be afforded the opportunity for
review of the Board's order by the court of appeals,
an opportunity he has to this point been denied.
And Pritchard "should at least have the chance
given him by the regulations” (Yellin v. United
States, supra at 121,. Thus, the Court's Accardi
Doctrine should govern. And the Board should be
required to follow the regulations which it has
established.

IL THE COURT OF APPEALS WRONGLY
DISMISSED PRITCHARD'S PETITION
FOR REVIEW, AS UNTIMELY, WHEN
THAT PETITION WAS FILED WITHIN
THE TIME LIMIT ESTABLISHED BY
STATUTE AND REGULATION.

The Federal Rules of Appellate Procedure
governing the date of entry of judgments of the

appeals court are substantially different from the
rules governing the date of entry of orders by the
National Transportation Safety Board. While the
Rules of Appellate Procedure (F.R.A.P. Rule 36)
direct that judgments of the appeals court are
entered at the point in time that a notation of a
judgment is made in the docket, the Board's Rules
of Practice (49 C.F.R. Section 821.64) state that "[t]he
date of entry of the Board Order is the date on which
the order is served" (App. H). However, in this case,
the appeals court erroneously accepted a simple
typed notation on the record rather than any proof

or claim that service was made in accordance with
Board rules.

As discussed above, Board rules specify that the
date of entry of a Board order is the date of service by
the Board (49 C.F.R. Section 821.64). The date of
service is the date of mailing (49 C.F.R. Section
821.8(h)) of the Board's order by certified mail to all
parties (49 C.F.R. Section 821.8(a)). And Board rules
go on to require that where a person has been
designated to receive service in accordance with 49
C.F.R. Section 821.7(f), as in this case (App. G),
service of Board orders must be made to that person
(49 C.F.R. Section 821.8(d)) at the address of that
person as designated (49 C.F.R. 821.8(e)). Thus,
when service upon Petitioner Pritchard did not
occur until on or after December 13, 1989 (App. F),
entry of the Board's order did not occur until at least
that time. However, even then, the Board's order
was not properly served by certified mail when the
Board's rules required it. And thus, by the Board's
own rules (49 C.F.R. Section 821.8(a)), service and
entry of the Board's order has yet to be properly
completed.

In a recent review of Section 1006 (49 U.S.C.
Section 1486(a)) the Court of Appeals for the District

10

of Columbia observed that "[a]lthough statutory
time limitations on judicial review of agency action
are jurisdictional, selfevidently the calendar does
not run until the agency has decided a question in a
manner which reasonably puts aggrieved parties
on notice" (National Air Transport Association uv.
McArtor, 866 F.2d. 483 at 485 (D.C. Cir. 1989)). Given
the argument that the meaning and intent of the
applicable statute and rules were fulfilled by the
Board's December 13, 1989 mailing, the Federal
Aviation Act (49 U.S.C. Section 1486(a)) provides
that the Board's order shall be subject to review
upon a petition filed within sixty (60) days from the
date of entry of the Board's order. Thus, under the
provisions of the Board's Rules of Practice (49 C.F.R.
Section 821.64), Pritchard's Petition for Review was
due to be filed by February 12, 1990. And the record
shows that Pritchard's petition was timely in that it
was filed in the court of appeals on January 24, 1990
(App. E), within the time limit set by the Federal
Aviation Act and as defined by the Board's Rules of
Practice.

Here, the statute and regulations are not in
conflict. "Regulations with the force and effect of
law supplement the bare bones of [the Federal
Aviation Act]" (Accardi v. Shaughnessy, 347 U.S.
260 at 265 (1954)). Where the Board, by its
regulation, provided a method to set the date of entry
of its orders, the Board "must scrupulously observe
rules, regulations, or procedures which it has
established" (United States v. Heffner, 420 F.2d. 809
at 811 (Fourth Cir. 1970)). Petitioner Pritchard "is at
least entitled to have the [Board] follow its rules and
give him consideration according to the standards it
has adopted in [its Rules of Practice]" (Yellin v.
United States, supra at 121).

Instead, in its Motion to Dismiss, the Board

11

asked the court of appeals to sanction a different
method for setting the date of entry of its order, a
manner similar to that specified for the entry of
judgments by the court of appeals. And the court of
appeals impermissibly issued its own order
dismissing Pritchard's petition based upon the
arbitrary date of entry which the Board set by its
simple typed notation rather than that set by
regulation and Board policy. "An executive agency
must be rigorously held to the standards by which it
professes its action to be judged" (Vitarelli v.
Seaton, 359 U.S. 535 at 546, concurrence of Justice
Frankfurter (1959)).

The Board's failure to serve its order upon
Pritchard's representative barred the tolling of time
until service was properly made on or after
December 13, 1989 (McLouth Steel Products v.
Thomas, 838 F.2d. 1317 at 1323 (D.C. Cir. 1988)) since,
by the Board's rules, the date of entry of its order
was the date of service. And the date and method of
service were clearly set forth to be accomplished in
a manner which was also provided for by the
Board's Rules of Practice. Service was not
accomplished under the Board's rules before
December 13, 1989, if even then. And regardless of
the fact that the Board imposed upon itself
procedures and standards which were more
rigorous than the statute, so long as the regulations
remained unchanged, the Board could not proceed
without regard to them (Service v. Dulles, 354 U.S.
363 at 388 (1957)).

The petition here has arisen through a
disturbing set of circumstances wherein Pritchard
petitioned the court of appeals to review an Order of
the National Transportation Safety Board due to the
wholly arbitrary and capricious fashion in which
the Board affirmed the suspension of Pritchard's

12

Airline Transport Pilot certificate. In the under-
lying case Pritchard was denied ‘due process’
under the law, and the suspension order was
affirmed using an entirely capricious standard.
Then, when the Board sought dismissal of
Pritchard's Petition for Review, the Board again
ignored Captain Pritchard's 'due process’ rights
when it arbitrarily set the date of entry of its order
contrary to the provisions of Board regulations.
"Certainly the rights created by the [Board's] rules
cannot be that illusory" (Yellin, supra at 123).
Subsequently, the court of appeals improperly
applied its own standards for the setting of the date
of entry of the Board's order when the Board's own
rules already addressed the issue. It was a matter
within the purview of the Board's regulation. And
since there has been no record of certified mailing
produced by the Board which, had service been
accomplished in accordance with Board rules (49
C.F.R. 821.8(a)), should have been available, "...it
follows that under the Accardi Doctrine petitioner's
dismissal cannot stand" (Service v. Dulles, supra at
388).

In Vitarelli v. Seaton (supra at 540) the Court
warned agencies that "...scrupulous observance of
departmental procedural safeguards is clearly of
particular importance". And in regard to the
setting of the date of entry of the Board's order, the
improper manner in which the date was set, and
the subsequent dismissal of Pritchard's Petition for
review by the court of appeals, this Court has taken
a broader view in noting that "[t]he history of liberty
has largely been the history of observance of
procedural safeguards" (McNabb v. United States,
318 U.S. 322 at 347 (1943)). Here, the National
Transportation Safety Board has circumvented the
procedural safeguards established within its own
regulations. And the court of appeals has violated

13

the standards which the Court provided for
guidance in Accardi v. Shaughnessy (supra).

CONCLUSION

Pritchard's Petition for a writ of certiorari
should be granted. The order of the court of appeals
dismissing Pritchard's Petition for Review should
be vacated. And the case should be remanded to the
court of appeals for further proceedings in light of
the Court's direction in Accardi v. Shaughnessy.

Respectfully submitted,
August 16, 1990

JOHN C. PRITCHARD
8601 Falmouth #406
Playa del Rey, CA 90293
(213) 305-2837

PETITIONER PRO SE

APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOHN C. PRITCHARD, ) FILED
) June 5, 1990
Petitioner,
vs. No. 90-70041

NATIONAL TRANSPORTATION

SAFETY BOARD, Order

Respondent.

we ue ews ae (Sale

Before: CANBY, WIGGINS, and TROTT, Circuit
Judges.

The panel finds that the petitioner has failed
to demonstrate that reasonable grounds exist to
extend the 60-day statutory period for filing a
petition for review. Accordingly, the motion to
dismiss this petition for lack of jurisdiction is
granted. All other pending motions are denied as
moot.

MoCal 6/1/90
2

15

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
JOHN C. PRITCHARD, ) FILED
) June 27, 1990
Petitioner, )
)
vs. ) No. 90-70041
)
NATIONAL TRANSPORTATION _ )
SAFETY BOARD, ) Order
)
Respondent. )
)

Before: CANBY, WIGGINS, and TROTT, Circuit
Judges.

Petitioner's motion for reconsideration is
denied.

MoCal 6/25/90
2

16

APPENDIX. C
SERVED: November 24, 1989

NTSB Order No. EA-3024

UNITED STATES OF AMERICA

NATIONAL TRANSPORTATION
SAFETY BOARD

WASHINGTON, D.C.

JAMES B. BUSEY, Administrator,
Federal Aviation Administration,

Complainant,
DOCKET
Vv.
SE-8665
JOHN C. PRITCHARD,

Respondent.

a, a ae ae ae ae ae ae ee ee eee

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OPINION AND ORDER

Respondent has appealed from the oral initial
decision and order issued by Administrative Law
Judge Joyce Capps on April 28, 1988 at the

17

Sa

conclusion of an evidentiary hearing. _1/ The law
judge found carelessness in respondent's operation
of an L-IOII commercial aircraft after landing at
Kansas City International Airport on January 19,
1986. While taxiing the aircraft to the gate,
respondent allowed the right main landing gear to
leave the taxiway, enter the mud and strike a
taxiway light. Applying the facts presented at the
hearing which were "not contested at all,” the law
judge found that respondent was careless in: 1) his
choice of taxiway egress;_2/ and 2) not making the
turn "as safely as it could have been."

Respondent has filed a "brief" (75 pages plus 5
pages of errata) wrich challenges the law judge's
ruling on two preliminary motions and also raises
these two arguments: 1) the first officer shared
responsibility for the incident by failing to “keep
watch" on his side of the aircraft during the turn; 2)
the airport operator and/or ground control failed to
warn respondent that the taxiway he selected did

1/ An excerpt from the hearing transcript
containing the initial decision is attached.

2/ Respondent landed on runway 27 and exited on
C-7 high speed taxiway. Ground control instructed
respondent to "taxi to ramp;" the most direct route
to his destination; however, was taxiway D-6, which
was temporarily closed. Respondent elected to take
taxiway B and turned on Taxiway B-10, a turn of 135
degrees. B-10, designed for traffic landing on
runway 09, also did not have a centerline.

18

not meet FAA Airport Design Standards for his
category aircraft. _3/

We find no reversible error in the law judge's
rulings on respondent's preliminary motions to
change venue or bifurcate hearing. Respondent
had filed his motions because he and most of his
witnesses were "based” in (or closer to) Los Angeles
than Kansas City, the proposed venue. However, in
response, the Administrator noted, inter alia, the
following: all of his (the Administrator's) witnesses
lived in Kansas City; respondent actually resided in
Texas, not California; respondent failed to identify
where his witnesses actually resided, (as opposed.to
where they were "based"); respondent waited 5
months after receiving notice of the Admini-
strator's preference for Kansas City before
registering his opposition. Section 821.37(a) of the
Board's Rules mandates that, "due regard shall be
given to the convenience of the parties with respect
to the place of the hearing." 49 C.F.R. Section 821.
That venue in Kansas City may have resulted in
greater financial burden to respondent, does not
necessarily mean that respondent was not given his
"due regard.” From the argument offered by the
Administrator in opposition to the motion, notably
the absence of specific residences for respondent's
witnesses, it is clear that the law judge had a
reasonable basis on which to rule.

3/ FAA Advisory Circular 150/5 300-12 sets cut
minimum dimensions for taxiway width, edg<
safety margin, fillet configuration, shoulder
width and safety area width. Respondent
contends that the fillet should have been 75 feet
and was actually 25 feet, and that the 15-foot
edge margin was not maintained for his
category aircraft; the FAA concedes the latter.

19

Respondent's appeal of the law judge's decision
not to grant summary judgment also fails. Several
issues of material fact were in dispute at the time of
the hearing, including respondent's central
argument concerning the taxiway design. We do
not see how the law judge could have decided the
case without first resolving these questions of fact.

Respondent next seeks to exculpate himself by
raising the shared responsibility of his first officer
for the incident. We are not convinced. Because of
the design of the L-1011 (taxi controls accessible only
in the left seat, better visibility in the right seat),
respondent maintains that he had to rely on the
first officer to "keep watch” on the right-side of the
aircraft. To accomplish the 135 degree turn
attempted by respondent, this contention may in fact
be true. However, respondent presented scant
evidence on his actual direction to the first officer.
Respondent testified only that the first officer's duty
was "a general” one and that he was briefed on
respondent's intentions. 4/ Furthermore, it is
unclear from the testimony of respondent's expert
just how much better the first officer's view really
was. [See Tr. at 158-60.] We distinguish
respondent's "reliance" on his first officer in this
case from that in Coleman and Thomas, two cases
where we have held that a captain can rely upon
the first officer's oral characterization of a radio

4/ Law Judge Capps: "What dia you say to the
first officer? You said you discussed it. Tell me
about the discussion.

Respondent:...We briefed the fact that 1 was
going to enter...utilizing Bravo 10.... Now, to the
exact verbance that was used and to what extent
that transpired, ...I can't say exactly what
happened.: But that was a general.” [Tr. 127]

20

transmission. Administrator v. Coleman, 1 NTSB

289 (1968) and Administrator v. Thomas, 3 NTSB 349
(1977). Not only as pilot-in-command but as the pilot

operating the aircraft, it was respondent's duty to
require clearing assistance from his crew, ground
control or ground guides. The responsibility for the
consequences of respondent's failure to do so rests
solely with him.

We do not find established, however, the alleged
"imprudence” of respondent in passing up 90
degree turns for one requiring a 135 degree turn.
That there were other more accommodating
egresses available, or that B-10 was designed for
other traffic, do not alone mean that respondent's
decision was unsafe or even "imprudent." Rather, it
was respondent's lack of care in accomplishing the
turn which mandates affirmation of the
Administrator's order. It is on this basis that we
reject respondent's central argument concerning
deviations from FAA taxiway dimension criteria.
Testimony from respondent's expert witness makes
plain that respondent could have.easily ascertained
the alleged deficiency in the taxiway dimensions
and thereby apprehend just how difficult the turn
would be. Moreover, the obtuseness of the angle (135
degrees) and the absence of taxiway centerlines
were readily apparent; both of these, too, should
have alerted respondent of the need to exercise
additional care in making the turn.

Respondent's witness acknowledged there
was no reason why the turn could not have been
made safely. The ATC ground controller also
testified that he had observed another L-IOII safely
make the turn at night. The weather was clear and
the taxiway surface was apparently dry. We can
find in the record no evidence that would either tend
to exculpate respondent or vitiate the inference of

21

carelessness made by the Administrator.
Therefore, we affirm the law judge's initial decision
and order.

ACCORDINGLY, IT IS ORDERED THAT:
1. Respondent's appeal is denied;

2. The initial decision and the order of suspension
are affirmed.

KOLSTAD, Acting Chairman, BURNETT,
LAUBER, NALL and DICKINSON, Members of
the Board, concurred in the above opinion and
order.

ry:

APPENDIX D

U.S. Department of Transportation
Federal Aviation Administration

Central Region
Iowa, Kansas, Missouri, Nebraska

601 E. 12th Street
Kansas City, Missouri 64104

In Reply Refer To: ACE-7
86CE630012

Area Code: 816 374-5446
CERTIFIED
September 16, 1987

TO: John C. Pritchard
842 South Highway 46
New Braunfels, TX 78130
"

ORDER OF SUSPENSION

It appears to the Administrator of the Federal
Aviation Administration, acting by and through his

Regional Counsel, on the basis of all information
available, that:

1) At all times hereinafter mentioned, you were,
and presently are, the holder of Airline Transport
Pilot Certificate Number 1983580.

23

2) On January 19, 1986, you acted as pilot-in-
command of Civil Aircraft N702TT, a Lockheed
1011-385-1, desingated as Total Air Flight 116, on a
flight from Lamber Field, St. Louis, Missouri, to
Kansas City International Airport (MCI), Kansas
City, Missouri.

3) After landing on Runway 27, at MCI, N702TT
was cleared to taxi to the ramp. While taxiing
Flight 116, you allowed the aircraft's right main
gear to leave the taxiway, enter the mud, and struck
a taxiway light.

4) By reason of the foregoing facts and
circumstances, you operated an aircraft in a
careless manner, so as to endanger the life and
property of others, in violation of Section 91.9 of the
Federal Aviation Regulations.

By reason of your violation of the Federal
Aviation Regulations, the Administrator has
determined that safety in air commerce and the
public interest require the suspension of your
airline transport pilot certificate.

NOW, THEREFORE, IT IS ORDERED,
pursuant to Section 609 of the Federal Aviation Act
of 1958, as amended, that your Airline Transport
Pilot Certificate Number 1983580 be suspended
effective October 11, 1987, and said suspension to
continue in force for a period of thirty (30) days
thereafter. In the event you fail to surrender your
certificate to this office on or before October 11, 1987,
said suspension shall continue in effect until thirty
(30) days subsequent to your actual surrender
thereof.

24

KENNETH E. GEIER
Regional Counsel

By:
BARBARA BOYLE

Attorney

CC:

Frederick E. Zimring, Esq.

25

a)

APPENDIX E

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOHN C. PRITCHARD, ) FILED
) January
Petitioner, ) 24, 1990
)
vs. ) No. 90-70041
)
NATIONAL TRANSPORTATION _)
SAFETY BOARD, ) PETITION
) FOR REVIEW
Respondent. )

)

In accordance with the provisions of the
Federal Aviation Act of 1958 (49 U.S.C. Section 1486),
John C. Pritchard hereby petitions the Court for
review of the final Order of the National Transpor-
tation Safety Board (EA-3024) ordering a twenty (20)
day suspension of Petitioner's Airline Transport
Pilot Certificate, entered by the Board on November
24, 1989 in accordance with the Board's Rules.

January 19, 1990

JOHN C. PRITCHARD
Petitioner.

8601 Falmouth #406
Playa del Rey, CA 90293

26

APPENDIX F

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOHN C. PRITCHARD,
Petitioner,
vs. No. 90-70041

NATIONAL TRANSPORTATION

SAFETY BOARD, Declaration

Respondent.

ee

DECLARATION OF KEVIN W. DAISEY

I, Kevin W. Daisey, do hereby declare and
certify under the penalty of perjury that the follow-
ing is true:

1. In the matter of Administrator v. Pritchard
(EA-3024, 1989), I served as representative to
Captain John C Pritchard during the entire course
of the hearing and appeals process before the
National Transportation Safety Board. Such
representation was accomplished in line with the
provisions of Board Rule 821.6(a) (49 C.F.R. Section
821.6(a)).

27

2. The address of record for service of
documents upon Captain Pritchard was provided to
the Board in Respondent's Notice of a Change in
Representation, dated March 11. 1988. That address
was my Post Office Box in Honolulu, which I
provided in accordance with the provisions of Board
Rules (49 C.F.R. 821.7(f)) (SEE: Notice as attached).

3. The proper address for the service of any
document to Captain Pritchard was:

KEVIN W. DAISEY
P.O. Box 31115
Honolulu, HI 96820

4, As indicated by reliable telephone records
and notes related to the incident, on the morning of
December 13, 1989 I received a telephone call from
Robert C. Konop. Konop informed me that he had
just learned from NTSB staff personnel that an
Order had been issued with relation to the appeal of
John C. Pritchard to the National Transportation
Safety Board. Konop gained this information in a
telephone call which he had made to the office of the
NTSB Chief Counsel.

5. I had received no information prior to
12/13/89 that any Order had been issued with
relation to Pritchard's appeal to the Board. And I
had not received any written notice of entry of such
order related to Captain Pritchard.

6. After completion of my _ telephone
conversation with Konop, I immediately placed a
telephone call to members of the NTSB staff in
Washington D.C.. I was then informed that the
Board had issued an Order in Captain Pritchard's
case, and the Board staff person to whom I spoke

28

was kind enough to advise me that Pritchard's
appeal had been denied.

7. After informing the Board staff person that I
was the official representative of Captain Pritchard,
as specified by Board Rules, and that I had not
received either a copy of the Board's Order, or notice
of its issuance, the Board staff person was very
apologetic and offered to immediately provide me
with a copy of the Board's Order (EA-3024) by mail.

8. I later received a copy of the Board's Order
(EA-3024) at the official service address on or about
12/19/89. And I have every reason to believe that it
was mailed to me by members of the NTSB staff on,
or shortly after, December 13, 1989.

9. I received only one (1) copy of the Board's
Order, and that Order, or notice, was not served
upon me until December 13, 1989.

The foregoing is true and correct to the best of
my knowledge and recollection.

June 9, 1990
By: KEVIN W. DAISEY

29

ae

APPENDIX G

UNITED STATES OF AMERICA
NATIONAL TRANSPORTATION SAFETY
BOARD

WASHINGTON D.C.

Administrator, Federal Aviation

)
Administration, )
)
Complainant, )
) DOCKET No.
vs. )
) SE-8665
John C. Pritchard, )
)
Respondent. ) Representation
) Notice

RESPONDENT'S NOTICE OF A CHANGE
IN REPRESENTATION

In accordance with the Rules of Practice in
Air Safety Proceedings (49 C.F.R. 821.6), the
Respondent does hereby give notice of a change in
representation. For the purposes of the proceedings
which are now pending, the Respondent has named
KEVIN W. DAISEY as his agent and represen-

30

tative. All service and documents in this case
should be served upon the following addressee:

KEVIN W. DAISEY
P.O. Box 31115
Honolulu, HI 96820
Respectfully submitted.
March 11, 1988

KEVIN W. DAISEY
Respondent's Representative

By: ROBERT C.KONOP
Agent

31

APPENDIX H
STATUTES AND REGULATIONS

FEDERAL AVIATION ACT -
Section 1006(a) (49 U.S.C. Section 1486(a)):

"Any order, affirmative or negative, issued by
the Board or Secretary of Transportation under this
Act, except any order in respect of any foreign air
carrier subject to the approval of the President as
provided in section 801 of this Act, 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 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
theretofore.”

NTSB RULES OF PRACTICE -
49 C.F.R. Section 821.64:

"Judicial review of a final order of the Board
may be sought as provided in section 1006 of the Act
(49 U.S.C. 1486) and section 304(d) of the
Independent Safety Board Act of 1974 (49 U.S.C.
1903(d)) by filing of a petition for review within 60
days of the date of entry of the Board Order. THE
DATE OF ENTRY OF THE BOARD ORDER IS
THE DATE ON WHICH THE ORDER IS
SERVED." (emphasis added)

32

49 C.F.R. Section 821.7(f):

"DESIGNATION OF PERSON TO RECEIVE
SERVICE. The intial document filed shall state on
the first page the name and post office address of
the person or persons who may be served with
documents in the proceedings.”

49 C.F.R. Section 821.8(a):

"SERVICE BY THE BOARD. The Board
WILL SERVE ORDERS, notices of hearing, and
written initial decisions upon all parties to the
proceeding BY CERTIFIED MAIL. Other
documents will be served by certified mail or by
regular mail (including U.S. Government franked
e..velope)."

49 C.F.R. Section 821.8(d):

"WHO MAY BE SERVED. Service upon a
party or person may be made upon a person
designated in accordance with Section 831.7(f) to
receive service. If no such person is designated,
service may be made upon the party himself, if he is
an individual, or upon an officer of a corporation or
association, a member of a partnership, or an agent

of an air carrier designated under section 1005(b) of
the Act.”

49 C.F.R. Section 821.8(e):
"WHERE SERVICE MAY BE MADE.
Service by regular or certified mail shall be made at

the address of the person designated in accordance
with Section 821.7(f)to receive service, or, if no such

aa

person is designated, at the usual residence or
principal place of business of the party, or, if not
known, at the address last furnished by him to the
Federal Aviation Administration, except that an
agent designated by an air carrier under Section
1005(b) of the Act shall be served only at his office or
usual place of residence. Service by mail on the
Administrator shall be made at the office of his
designee to receive service, or if none, at the Federal
Aviation Administration, Office of the Chief
Counsel, Washington, D.C. 20591. Personal service
may be made on any of the persons described in
paragraph (d) of this section wherever they may be
found, except that an agent designated by an air
carrier under section 1005(b) of the Act may be
served only at his office or usual place of residence."

34

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0978%3A1. Public record. Not legal advice.