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

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Supreme Court, U.S.

RQ7-1451 . FILED

No. FEB 25 od

JOSEPH F. SPANIOL, JR.

IN THE CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

JOSEPH A. ROACH,

Petitioner,

VS.

NATIONAL TRANSPORTATION SAFETY BOARD,

and J. LYNN HELMS, ADMINISTRATOR,

FEDERAL AVIATION ADMINISTRATION,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

L. B. ULLSTROM, ESQ. #666

Applewood Tech Center, Suite 211

2801 Youngfield Street

Golden, CO 80401

(303) 239-9829

Attorney for Petitioner

Joseph A. Roach

QUESTIONS PRESENTED

I. WHETHER THE CCURT OF APPEALS ERRED

IN SUSTAINING THE JURISDICTION OF THE FED-

ERAL AVIATION ADMINISTRATION TO REGULATE

INTRASTATE FLIGHTS IN THE ABSENCE OF

STATUTORILY AND CONSTITUTIONALLY REQUIRED

FINDINGS OF FACT THAT THE FLIGHT OCCURRED IN

INTERSTATE COMMERCE.

II. WHETHER THE FIFTH AMENDMENT RIGHT

AGAINST SELF-INCRIMINATION CAN BE INVOKED BY

A RESPONDENT PILOT IN AN ADMINISTRATIVE

HEARING TO SUSPEND OR REVOKE THE PILOT'S

CERTIFICATE TO OPERATE AIRCRAFT.

LIST OF PARTIES

The names of all parties to this action

are included in the caption.

TABLE OF CONTENTS

Questions Presented ......« e

List of Pertties «xss 6. 2-3 es

Table of Contents cha s =. «% aoe! SS

fable of Authorcities <« <-a % (25-6

Opinions Below < « « «ss = 4 =o"

Jurisdiction . *« « -« 2 ote oe

Rules, Regulations, Statutes and

Constitutional Provisions ....

Statement of the Case . . .« «ss *

Reasons for Granting the Writ ...

I. The Court of Appeals for

the Tenth Circuit has so far Gepart

ed from the accepted and usual cour

of judicial proceedings as to call

for an exercise of this Court's

power of supervision . s « « « « »

II. The Tenth Circuit has ren-

Gered a decision in conflict with

the decision of another federal

court of appeal@ ...+e«+«s. « s «

III. The appellate court has

decided an important question of

federal law which has not been,

but should be, settled by this

Court ¢ « & ee) “62 eee oe eee

Conclusion .«« *s * «206 0a

iii

PAGE

iii

TABLE OF CONTENTS continued

PAGE

Appendices

A. Opinion of the United States

Court of Appeals for the Tenth Circuit

in Roach v. National Transportation

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

1986) we oe © 6¢ € @ 0 es es ws tlw CAM]

B. NTSB Order No. EA-1886 .... Bel

C. Oral Initial Decision of

Administrative Law Judge Patrick

rr oS &© © 6 =» 6 « © «@ «© o@ © @ a sl) CO]

D. Order of the United States

Court of Appeals for the Tenth

Circuit denying rehearing ....... D-l

E. 14 C.F.R. 8 91.79(c):

891.79 Minimum Safe Altitudes;

general ES ee eee a en a es 8 |

PF. i284 C.F.R. 8 31(a): $91.31.

Civil aircraft operating limitations

and marking requirements ....... F-l

oe 28 Cif .R. § 91.125 (ec) z

$91.15 Parachutes and parachuting ... G-l

H. 14 C.F.R. 8 91.9: 891.9

Careless or reckless operation .... H-l

cei Oe GMetecte @ L3Cl,

Gefinition of "Air Commerce" a se I-l

es «2 U.5.C. § 1429,

Reinspection or reexamination;

amendment, suspension, or

revocation of certification ar oe ee ee ee

TABLE OF CONTENTS Continued

PAGE

Rg. S&S @.8.6.°9 3S: 46) 2

Administrative Procedure Act ... .- K-l

L. Constitution of the United

States, Article 1, Section 8,

Clause 3, Commerce Clause . <6. & a a L-1l

M. United States Constitution,

Fifth Amendment a ee ee ee ee ee” ee ee M-1

N. 49 U.S.C. 81301, definition

of “Interstate Air Commerce" ae ae ae N-1

Certificate of Service .....e.- Cert-l

Affidavit of Mailing ... +s «+<«+« -« Aff]

TABLE OF AUTHORITIES

CASES

Anglo-Canadian Shipping Co. Ltd.

v. Federal Maritime Comm'n, 310

F.2d 606 (9th Cir. Svea. « «6 «

Austin Road Co. v. Occupational

Safety, Etc., , 683 F.2a 905

[oan Saks AOUES « bo 4 eee

Burson,

332 (1971) oa

Florida v. United States,

282 U.S. 194 (1931) aa ae

225 F.2d 950 (D.C. Cir. 1955) .

Lefkowitz

$38 Usa 8

Cunningham,

os 22 3 ree

rey

Pike v. C.A.B.,

353 (8th Cir. 1962) .

Roach v. National Transportation

Safety Board, 804 F.2d 1147

(iveu- Cis. Zone) «so a Ses

Saginaw Broadcasting Co. v.

Federal Communications Com'n,

96 F.2d 554 (D.C. Cir. 1938)

cert. denied, 305 U.S. 613 (1938).

PAGE

i ae

TABLE OF AUTHORITIES continued

Page

Steere Tank Lines, Inc. v.

Interstate Commerce Commission,

714 F.2d 1300 (5th Cir. 1983) .. 16

RULES, REGULATIONS, STATUTES

AND CONSTITUTIONAL PROVISIONS:

14 C.F.R. 891.31(a),

P.AR. Di. site) «cs sc oven 4, 6, 8

14 C.F.R. 691.79(c),

P.AR. BOL.79(6) «© «ee eee 4, 6

14 C.F.R. 831l(a),

F.A.R. 831(a) . * 6 0 @ 4% = « 4

14 C.F.R. 891.15(c),

P.AR. BOAciS(e) «© «© eo wo 6 se 4, 6, 8

14 C.F.R. $91.9,

PAR. G9L.9 «© « ws sc eveuneses 4, 6, 8

5 u.8.C. $557 (c) oecseeneese 4, 12

5 U.S.C. 8701, et seq. oe eo eo g

5 U.S.C. 88702-706 ae ae a ee oe 3

28 U.S.C. 81254 (1) . . «. « 2 e 3

49 U.S.C. BASGL «ws 0 6 @ wee es Se Bee

49 U.8.C. Gl4Z9 «. we sc sn voses a, 7

49 U.S.C. B1L406 2 «6 2 6s 6 6 © 3, 8

Constitution of the United States,

Article 1, Section 8, Clause 3 . . 4, 17, 25

Constitution of the United States, 4, 19,

Amendment Vv .+<«#+e«+e«#+s#e20+¢8e0«e 406 446 2%

vii

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

JOSEPH A. ROACH,

VSe

NATIONAL TRANSPORTATION SAFETY BOARD,

ind J. LYNN HELMS, ADMINISTRATOR,

FEDERAL AVIATION ADMINISTRATION,

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEAI

FOR THE TENTH CIRCUIT

To the Honorable, the Chief Justice

ind Associate Justices of the Supreme Court

16 the United States:

Joseph A. Roach, petitioner herein,

spectfully resuests that a writ of cer-

tiorari issue to review the judgment of the

Oourt of Appeals for the Tenth

Circuit entered in this case on November 5,

OPINIONS BELOW

The opinion of the United States

Court of Appeals for the Tenth Circuit,

affirming the order of the National

Transportation Safety Board, was filed on

November 5, 1986 and is reported as Roach v.

National Transportation Safety Board, 804

F.2d 1147 (10th Cir. 1986). (Appendix A.)

NTSB Order EA-1886 was entered on March 14,

1983. (Appendix B.) The Initial Decision

of the Administrative Law Judge was entered

on March 23, 1982. (Appendix C.)

JURISDICTION

A timely petition for rehearing was

denied by The United States Court of Appeals

for the Tenth Circuit on January 8, 1988.

(Appendix D.)

The jurisdiction of this Court is

invoked pursuant to the Federal Aviation Act,

49 U.S.C. § 1486(f£) (conferring on this

Court jurisdiction to review the judgment by

writ of certiorari), the Administrative

Procedure Act, 5 U.S.C. §§ 702-706, and 28

RULES, REGULATIONS, STATUTES AND

CONSTITUTIONAL PROVISIONS INVOLVED

The following rules, regulations,

statutes and Constitutional provisions are

involved and are attached as Appendices E

through N.

1) 14 C.F.R. 8 91.79(c): 891.79 Minimum

Safe Altitudes; general. (Appendix E)

L@ C.P.R. 8 2italit S9ic dita). Civiz

aircraft operating limitations and mark-

ing requirements. (Appendix F)

14 C.F.R. 8 91.15(c): 891.15 Parachutes

and parachuting. (Appendix G)

4) 14 C.F.R. 8 91.9: 891.9 Careless or

reckless operation. (Appendix H)

5) 49 U.S.C. 8 1301, definition cf “Air

Commerce". (Appendix I)

6) 49 U.S.C. 8 1429, Reinspection or

reexamination; amendment, suspension,

or revocation of certification.

(Appendix J)

5 u.S.C. 8 557 (c), Administrative Pro-

cedure Act. (Appendix K)

8 ) Constitution of the United States, Arti-

cle 1, Section 8, Ciause 3, Commerce

Clause. (Appendix L)

9) United States Constitution, Fifth Amend-

ment. (Appendix M)

10) 49 U.S.C. -8) 130i... definition of

"Interstate Air Commerce” (Appendix N)

: STATEMENT OF THE CASE

On November 6, 1980, Joseph A. Roach,

President of Roach Aircraft, Inc., an air-

craft sales outlet at the Jefferson County

Airport, Colorado, and Ms. Sandervae C.

Hopkins, a sales representative employed by

Roach Aircraft, flew from Denver to La

Junta, Colorado in an Aerostar 601P aircraft.

This was a sales demonstration flight for

the purpose of exhibiting the Aerostar to a

prospective buyer. The Aerostar 601P is a

Six-passenger “high performance" twin-engine

aircraft equipped with dual controls such

that it can be flown from either the pilot

Or co-pilot seats. Ms. Hopkins, a highly

qualified pilot in her own right, with com-

mercial-flight instructor's ratings, sat in

the right, co-pilot's seat.

The aircraft was shown on the ground and

in the air to the potential purchaser. Upon

departure for the return flight to Denver,

the aircraft made three passes over the air-

port runway for the purpose of allowing the

buyer to observe the aircraft in flight.

There were no other aircraft within several

miles of the airport. At the end of the

third pass, away from the airport, the pilot

executed a 360 degree aileron roli and

departed on course for Denver.

Five months after the incident, an

investigation by the FAA culminated in

charges against the pilot of violating the

following Federal Aviation Regulations

(FAR's):

1) Section 91.79(c): "891.79 Mini-

mum Safe Altitudes; general. (Appendix

2) Section 91.3l(a): %891.31 Civil

aircraft operating limitations and mark-

ing requirements. (Appendix F)

3) Section 91.15(c): "891.15 Parachutes

and parachuting. (Appendix G)

4) Section 91.9: "891.9 Careless or

reckless operation. (Appendix B#)

A civil penalty of $500.00 was recommended

by the FAA investigative team, but Regional

Counsel declined to accept the recommendation

and instead, on April 14, 1981, issued a

letter propoSing a 120-day suspension of

- 6 -

Roach's pilot certificate.

As a result of an informal conference

between Roach's attorney and FAA counsel on

June 25, 1981, the FAA reduced the suspen-

Sion period from 120 days to 60 days and

issued a 60-day Order of Suspension pursuant

to 8609 (a) of the Federal Aviation Act of

1958, 49 U.S.C. $1429(a). (Appendix J).

The Order of Suspension was issued on July

24, 1981. Roach appealed the FAA order to

an Administrative Law Judge of the National

Transportation Board. A hearing before NTSB

Administrative Law Judge Patrick G. Geraghty

was held on March 23, 1982, in Denver,

Colorado.

In order to find a violation of FAR

91.15 (c), the FAA had to show that the

female commercial pilot, with flight

instructor ratings, who handled the flight

controls from the co-pilot seat was a

"passenger", not a “Crew member", and had to

show that there were no parachutes aboard

the aircraft. The FAA's case-in-chief

- J -

concluded with the testimony of Inspector

Riggins, and there was no evidence in the

record regarding parachutes, as needed to

prove the third element of 91.15(c). The

respondent pilot was called to testify over

objection by his counsel, and interrogated

by Administrator's counsel. In addition to

counsel, the judge, himself, interrogated

the pilot with reference to elements of

other charges not proven by the Administra-

tor.

The Administrative Law Judge upheld

three of the four charges, 891.3l(a),

891.15(c) and 891.9. The period of the

Order of Suspension was reduced from 60 days

to 30 days.

The respondent appealed the order of the

Administrative Law Judge to the five-man

National Transportation Safety Board. The

Board affirmed the ALJ's Initial Decision.

Roach then appealed to the Tenth Circuit

Court of Appeals pursuant to 49 U.S.C. 81486

and 5 U.S.C. 8 701, et seq. The Tenth

- 8 -

Circuit also affirmed.

In his Petition for Rehearing to the

Tenth Circuit, Roach argued that, according

to the court's opinion, the NTSB and the FAA

were without subject matter jurisdiction to

regulate this intrastate flight due to the

failure of the Administrative Law Judge to

make the required finding of fact that the

flight occurred in “air commerce". The

petition was denied without comment.

Roach filed a Motion and Certificate for

Stay of Issuance of Mandate Pending Appli-

cation to Supreme Court for Writ of Certi-

Orari on January 14, 1988. The Stay was

granted on January 27, 1988.

REASONS FOR GRANTING THE WRIT

I. The Court of Appeals for the Tenth Cir-

cuit has so far departed from the

accepted and usual course of judicial

proceedings as to call for an exercise

of this Court's power of supervision.

The Tenth Circuit stated in Roach:

o & = ere : -

Although imposition of sanctions under

8609 indirectly furthers the punitive

goals of retribution and deterrence,

suspension of an airman's certificate

must rest upon a finding that it is

required for safety in air commerce or

air transportation and the public inter-

est, as the NTSB found here.

804 F.2d at 1154 (emphasis supplied).

(Appendix A-21).

The appellate court's statement of the

law, that a “finding™ must be made, is

correct. However, as Roach pointed out in

his Petition- for Rehearing, in the case at

bar, the above-referencec finding of fact

was never made. Therefore, neither the FAA

nor the NTSB had jurisdiction to impose a

Sanction in this matter. The Tenth Circuit

denied Roach's Petition for Rehearing with-

out comment, thus sustaining the jurisdic-

tion of a federal agency without a scintilla

of support in the record. This action by

the appellate court so far departs from the

accepted and usual course of judicial pro-

ceedings as to call for the exercise of this

Court's power of supervision. This case

sustains the jurisdiction of a federal

<< e

agency to impose a sanction upon an indivi-

dual based on mere conclusions drawn by the

agency itself.

The NTSB, at page 6 of its Order EA-1886

(Appendix B-9) states: "We adopt the find-

ings of the law judge as our own." The

NTSB, at page 5 of its Order EA-1886,

(Appendix B-8) recites only that "upon con-

sideration of the briefs of the parties and

the entire record, the Board has determined

that safety in air commerce or air trans-

portation and the public interest require

affirmation of the Administrator's order

Air Commerce is defined at 49 U.S.C.

§1301, as follows:

Sec. 101 (49 U.S. Code 1301). As used

in this Act, unless the context other-

wise requires--

(4) “Air commerce" means interstate,

overseas, or foreign air commerce or the

transportation of mail by aircraft or

any operation or navigation of aircraft

within the limits of any Federal airway

Or any operation or navigation of air-

craft which directly affects, or which

may endanger safety in, interstate,

overseas, or foreign air commerce.

- ll -

Review of the trial transcript reveals

that the alleged violations occurred near a

rural airport at La Junta, Colorado, as the

aircraft was returning to Denver. Clearly,

this was an intra-state commerce flight, not

an interstate commerce flight. There was no

record of any proof by the FAA that the

alleged violations occurred within the lim-

its of a federal airway, and there were no

other aircraft involved, so there was not

shown any operation “which directly affects"

or “which may have endangered safety in

interstate air commerce".

The Administrative Procedure Act, 5

U.S.C. 8557(c), sets forth the requirements

regarding “findings" for all administrative

decisions as follows:

Before a recommended, initial, or tenta-

tive decision, or a decision on agency

review of the decision of subordinate

employees, the parties are entitled to a

reasonable opportunity to submit for the

consideration of the employees participa-

ting in the decisions --

(1) proposed findings and conclusions;

(2) exceptions to the decisions or

recommended decisions of subordinate

> a

employees or to tentative agency deci-

sions and

(3) supporting reasons for the excep-

tions or proposed findings or conclu-

sions. The record shall show the ruling

on each finding, conclusion, or excep-

tion presented. All decisions, includ-

ing initial, recommended, and tentative

decisions, are a part of the record and

shall include a statement of --

(A) findings and conclusions, and the

reasons or basis therefor, on all the

material issues of fact, law, or discre-

tion presented on the record; and

(B) the appropriate rule, order, sanc-

tion, relief, or denial thereof.

(Emphasis supplied).

These statutory requirements are manda-

tory. Anglo-Canadian Shipping Co. Ltd. v.

Federal Maritime Comm'n, 310 F.2d 606, 614

(9th Cir. 1962). "{TJhe absence of required

findings is fatal to the validity of an

administrative decision regardless of

whether there may be in the record evidence

to support proper findings." Id. at 617

(emphasis supplied). See also: Saginaw

Broadcasting Co. v. Federal Communications

Com"n, 96 F.246 554 (D.C. Cir. 3938), cert.

denied, 305 U.S. 613 (1938).

Review of the record shows no evidence

Or even argument on which to base the

- 13-

crucial jurisdictional finding. At no point

in his findings did the ALJ refer to “air

commerce". He could not, in fact, do so,

because there was no testimony, no showing

by the Administrator that the acts took

place within the context of these terms.

For the FAA to have federal jurisdiction,

the flight must occur within “air commerce”.

It is a factual determination, not “found"

by the ALJ. By the plain language of 49

U.S.C. 81301, if it is not within “air

commerce", it is not in the public interest

to suspend a federal pilot certificate.

In Florida v. United States, 282 U.S.

194 (1931), this Court reversed an order of

the Interstate Commerce Commission on the

ground that there were insufficient juris-

dictional findings of the affect on inter-

state commerce. A conclusionary finding of

"unjust discrimination against interstate

commerce" did not suffice to justify federal

jurisdiction over intrastate transportation

rates. Id. at 213. The Court said: “{TJhe

- 14 «

EEoOOOOOAOEOEe

justification of the exercise of the federal

power must clearly appear.” Id. at 212.

As the appellate court stated in Anglo-

Canadian Shipping Co., supra at 615: "The

requirement of specific, definite and basic

findings other than mere ultimate findings

or conclusions, is well settled." (Emphasis

supplied).

II. The Tenth Circuit has rendered a deci-

sion in conflict with the decision of

another federal court of appeals.

In sustaining federal jurisdiction pur-

suant to the commerce clause without the

prerequisite findings of fact, the Tenth

Circuit has rendered a decision in conflict

with the decisions of other circuits,

notably the Fifth and Ninth.

The ruling of the Tenth Circuit in Roach

Girectly conflicts with the holding of the

Fifth Circuit in Austin Road Co. v.

Occupational Safety, Etc., 683 F.2d 905 (5th

Cir. 1982), and Anglo-Canadian Shipping Co.

i =

- = _

Ltd. v. Federal Maritime Com'n, 310 F.2d 606

(9th Cir. 1962). See also: Steere Tank

Lines, Inc. v. Interstate Commerce

Commission, 714 F.2d 1300, 1314 (Sth Cir.

1983).

The Tenth Circuit, noting that the sus-

pension of a pilot's certificate “must rest

upon a finding that it is required for

safety in air commerce or air transportation

and the public interest", the Tenth Circuit

stated that the NTSB had made the required

finding. 804 F.2d at 1154 (Appendix A-21).

Yet this "finding" was never, in fact, made

by the Administrative Law Judge who held the

hearing.

The only language by the 5-man NTSB

Board that conceivably could be alluded to

as its “finding"™ is the comment which con-

Sisted of a mere “conclusionary" restatement

of the boiler-plate statutory language by

the agency, by the statement in the NTSB

order, "the Board has determined that safety

in air commerce or air transportation and

- ]6 -

the public interest require affirmation of

the Administrator's order, as amended by the

law judge ..." (See NTSB Order No.

EA-1866 page 5). (Appendix B-8).

However, the Board demonstrated that it

believed there was no interference with

interstate air commerce when it made the

comment, “on the basis of the fact that the

aileron roll was executed in a remote area

and that there appeared to be no danger to

persons Or property on the ground during

the maneuver." (See EA-1866, page 6).

Appendix B-17).

A similar situation to Roach, vis-a-vis

interstate commerce, arose in Austin Road

Co. v. Occupational Safety, Etc., 683 F.2d

905 (5th Cir. 1982), an action brought pur-

Suant to the Occupational Safety and Health

Act. Conceding that Congress had “intended

to exercise the full extent of the authority

granted by the commerce clause of the Con-

stitution", the court nonetheless insisted

that federal jurisdiction was conditioned on

o 19 «

a factual finding that the conduct of the

employer, Austin Road Company, a Texas cor-

poration, affected interstate commerce. 68

F.2d at 907. This is an essential element,

and upon challenge, the burden of proof of

demonstrating that the activities involved

affected interstate commerce rests with the

subject administrative agency. Id.

The Austin Road court denied enforcemen

of the Act and overturned the order of the

Occupational Safety and Health Review

Commission on the ground that jurisdiction

had not been first established. Id. at 908

Speculative conclusions drawn by the agency

were insufficient to establish federal jur-

isdiction. The court held:

In the present case, the findings regar:

Ging Austin Road's impact on its corpor:

ate parent and siblings are not support:

ed by the record; they are speculative

and conclusionary. The conclusion that

the Secretary met the jurisdictional

challenge is not based upon adequate

factual findings. And, although we are

not obliged to examine the evidence pre

sented before the ALR (see note 4,

supra), Our examination of the record

reveals that a finding of jurisdiction

Cannot be made. Perhaps Austin Road's

- 18 -

business does affect interstate com-

merce; but that essential fact is not

established in the record before us.

683 F.2d at 908. The court additionally

found it improper for it to take "judicial

notice" of jurisdiction, as it was invited

to do by OSHA. Id.

III. The appellate court has decided an

important question of federal law

which has not been, but should be,

settled by this Court.

At the administrative hearing, Roach was

called by counsel for the FAA as an adverse

witness and was compelled by the Administra-

tive Law Judge to testify against himself,

over the objection of his counsel. 804 F.2d

at 1152 (Appendix A-12-14). He was forced

to make self-incriminating statements, thus

providing evidence which the Administrator

did not otherwise have. Id.

The Tenth Circuit held that the fifth

amendment right against self-incrimination

was not available to Roach in an administra-

tive proceeding to suspend his pilot's

i a ow

certificate. 804 F.2d at 1155 (Appendix

A-25). This is an important question of

federal law which has not been, but should

be, settled by this Court.

More than thirty years ago, on August 4,

1954, the Civil Aeronautics Board (prede-

cessor to the NTSB) facedc the issue of

whether a suspension of an airline pilot's

certificate was "punitive" or ‘comedial®.

The CAB ruled that such suspension was

"punitive" in the Fifth Amendment constitu-

tional sense, justifying the dismissal of

the complaint to suspend the pilot's certif-

icate filed by the Civil Aeronautics Admin-

istrator. Lee v. Brubaker & Olsen, 19

C.A.B. 885 (1954). The CAB held:

The fifth amendment provides that no

person “shall be compelled in any crim-

inal case to be a witness against him-

self." While Board proceedings obvious-

ly are not criminal cases, the fifth

amendment protection has been held to

extend to penalties imposed in civil

actions by way of punishment for past

offenses even though the action for all

other purposes is regarded as civil.

Boyd v. United States, 116 U.S. 616

(1886); United States v. Regan, 232 U.S.

37 (1914). We consider that a suspen-

sion of an airman certificate solely for

« SO

the purpose of punishing the airman for

violations of the Civil Air Regulations

would constitute a penalty in the con-

stitutional sense, and that section |

1004(i) has immunized the respondents

against any suspension imposed purely as

punishment with respect to the viola-

tions here alleged. On the other hand,

it is clear that a suspension or other

sanction imposed for remedial purposes

is not barred by section 1004(i), since

the privilege against self-incrimination

does not extend to remedial sanctions

imposed- in proceedings which are civil

in nature. See e.g., Helvering v.

Mitchell, 303 U.S. 391 (1938).

No case precisely in point has been

brought to our attention, and support

exists for both the views of the pilots.

and the Administrator. Suspensions of

the type under discussion are remedial

in the sense that they are designed to

promote safety. Nonetheless, such sus-

pensions also are largely disciplinary

in character. We are inclined to the

view, and hold, that suspensions imposed

merely to prevent and deter violations,

and where requalification in one or more

respects is not involved, are punitive

in the constitutional sense, and are a

type of “penalty” from which immunity is

provided by section 1004(i).

Lee v. Brubaker, 19 C.A.B. at 887 (emphasis

supplied).

The Civil Aeronautics Administrator

appealed from the CAB Ruling, and the United

States Court of Appeals for the District of

= 2) «

Columbia Circuit held that the CAB decision

in Lee v. Brubaker was final, that the Civil

Aeronautics Administration had no standing

to appeal a CAB Ruling. Lee v. Civil Aero-

nautics Board, 225 F.2d 950 (D.C. Cir.

1955). Thus the majority of the court never

reached the merits of the "punitive" issue,

but it left the CAB's ruling in effect,

dismissing the complaints, in essence, sup-

porting the CAB's analysis of the matter.

However, Judge Prettyman concurred with

the Civil Aeronautics Board on the merits,

and concluded that suspension of a pilot's

certificate was "punitive" in the fifth

amendment constitutional sense. Judge

Prettyman upheld the validity of the fifth

amencment applying to these pilot certifi-

cate suspension cases as follows:

The question, then, is whether the pro-

ceeding is punitive or merely remedial.

In this connection we go to the Fifth

Amendment cases. Any reading of the

complaint shows the action prayed is

purely punitive. The complaint says

boldly that the men were careless and

therefore ought to be suspended. It

does not allege the pilots to be unqual-

ified. I think they were protected by

- 22 -

reason of their testimony taken in the

investigation.

225 F.2d at 953 (Prettyman, J., dissenting).

Judge Prettyman's opinion was cited with

approval in Pike v. C.A.B., 303 F.2d 353,

358 (8th Cir. 1962). The court in Pike re-

versed an order revoking the pilot's license.

In so doing, then Circuit Judge Blackmun

noted that the revocation provisions of the

statute contained "at least some penal

aspect." 303 F.2d at 357. He further

stated that if suspension or revocation

should lead subsequently to the imposition

of a civil penalty, the action would be

Clearly punitive. Id. at 358.

In the thirty-four years since it was

announced, the C.A.B. decision in Lee v.

Brubaker has been followed by the various

CAB and NTSB Admnistrative Law Judges and

the NTSB itself in that, until Roach, no

pilot has been forced, over objection, to

take the stand and testify against himself.

The FAA was challenged to produce such a

case and it has not done so. Lee v.

Brubaker has never been disavowed by the

NTSB. The Roach Administrative Law Judge (a

former FAA prosecutor) was apparently the

first Administrative Law Judge in 34 years

to reverse the long established rule in Lee

v. Brubaker, but now the NTSB followed suit,

without any change in the law or regulations

permitting it. The Tenth Circuit thus

reversed over thirty years of precedent.

A pilot's license gives rise to a prop-

erty interest protected by the fourteenth

amendment. Bell v. Burson, 402 U.S. 535

(1971). A license suspension, therefore, is

not only punitive in nature but forfeits a

property interest as well. Penalties suf-

ficient to give rise to fifth amendment

rights encompass more than direct economic

Sanctions and imprisonment. Lefkowitz v.

Cunningham, 431 U.S. 801 (1977).

The right against self-incrimination

should be liberally construed. Michigan v.

Tucker, 417 U.S. 433 (1974).

CONCLUSION

Petitioner Joseph A. Roach has set forth

special and very important reascns why the

matter herein should be heard by this Court.

At issue are the rights of individuals,

states and local authorities wherever the

federal government may decide to exercise

its jurisdiction pursuant to the commerce

clause of the United States Constitution.

At issue is the right of all Americans to be

free from self-incrimination when faced with

punitive action taken by the federal govern-

ment.

Specifically related to pilots, there

may be as many as 500 enforcement cases per

year. It is imperative to limit the juris-

diction of the Federal Aviation Administra-

tion to areas involving a defined federal

interest as well as to maintain the integri-

ty of the Administrative Procedure Act.

Furthermore, the FAA has been able to prose-

cute cases to suspend or revoke pilots'

licenses without compelling pilots to

ae en

provide self-incriminating oral testimony

for well over thirty years. There is no

need for a change in this policy and no

reasons have been shown therefor.

WHEREFORE, the Petitioner respectfully

requests that his petition for writ of cer-

tiorari be granted.

DATED this 25th day of February, 1988.

Respectfully submitted,

AD Lith teon~-

Berwyn Ullstrom Colo. Reg #666

parte dei Tech Center, Suite 211

2801 Youngfield Street

Golden, CO 80401

(303) 239-9829

Attorney for Petitioner

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JOSEPH A. ROACH,

Petitioner,

No. 83-1549

THE NATIONAL ‘TRANSPORTATION

SAFETY BOARD, and J. LYNN

HELMS, ADMINISTRATOR, FEDERAL

AVIATION ADMINISTRATION,

meee eee ee

Respondents.

ON PETITION FOR REVIEW OF AN ORDER

OF THE NATIONAL TRANSPORTATION SAFETY BOARD

(Docket No. SE-5396)

L. B. Ullstrom, Denver, Colorado (Robert P.

Smith, Denver, Colorado was also on the

brief) for Petitioner-Appellant

Darlene M. Freeman, Chief, Enforcement

Proceedings Branch, Regulations &

Enforcement Division, Office of the Chief

Counsel, Federal Aviation Administration,

Washington, D.C., for Respondent-Appellee

Before HOLLOWAY, Chief Judge, and McWILLIAMS

and SEYMOUR, Circuit Judges

HOLLOWAY, Chief Judge

Petitioner Joseph A. foach timely peti-

E1ons, pursuant to 49 U.S.C. §1486(a), for

review of a final order: of the National

Transportation Safety Board (NTSB

uspending Mr. Roach's commercial pilot’:

ertit } rhe Lor three 1aAYS. We i! irm.

? SEG ner ] } } l f)! ;ident | ROA

\1 ragtt MpPANY, Mlrcrafrt i] tutlet

it Jeffrey: Nn dunt Airport in Colorado.

he record hows that ROAc} ha mortled

ind has een in the business yt >t lling

1lrcrafLt for Ve? 2U years. rior to the

incident in question, he had no record wit

the FAA of any flight violations.

In No ember 0, ] ISO ’ rf tr ne | nta,

“Ala? Tele lrnponrt I sh ; + vs ><

i P| P| \i t i , i \ i { Nn i 4 »a

demonstration fliaqht of a Piper Aerostar

Aircraft. * After the demonstration flight,

Roach, together with a Roach Aircraft Sales

Representative, Ms. Sandervae Hopkins, took

off for the return flight to Denver.

However, before returning to Denver, Roach

made three passes over the LaJunta Airport

runway at an altitude of approximately 500

feet so his customers could see the plane in

flight. At the end of the third pass, Roach

executed a 360 degree aileron roll and then

left for Denver. I Re. 191-93, 201,

The record shows that the Piper Aerostar

601P is a twin-engine, propeller-driven,

six-passenger aircraft. It has dual

controls so it can be flown from either the

pilot's or the co-pilot's seat.

‘ The evidence is conflictin to th

rt 2v ide g as to the

altitude at which Roach made his passes and

his roll, and the ALJ's findings are not

clear-cut.

One witness for the Administrator

testified, as the ALJ noted, that he

observed the passes conducted “at an alti-

tude that he estimates of approximately 10

to 20 feet," and that he saw the aircraft at

“approximately 400 to 500 feet AGL, above

ground level, at the time that the roll was

(footnote continued on next page)

A-3

The incident lead to an FAA investiga-

tion. Although the FAA investigators recom-

mended a civil tine of $500, the FAA's

Notice of Proposed Certificate Action

instead called for suspension of Roach's

Commercial Pilot Certificate for 120 days.

(footnote continued):

commenced." I R. 256. One of Roach's wit-

nesses testified that the passes occurred at

400 to 1,000 feet above ground level and

that the aileron roll occurred at about

1,500 to 2,000 feet above ground level. I

R. 192-93, 205. Ms. Hopkins testified that

she was aboard the aircraft and monitored

the altimeter while Roach executed the

passes and the roll, and that the passes

occured at between 4600 and 4800 feet MSL,

or “probably between 5 and 700 feet" above

ground level, while Roach started into the

roll at 5,000 feet MSL and completed it at

6,000 feet MSL. I R. 218-220. Roach him-

self estimated he made his passes at 600 to

1,000 feet above ground level and executed

the roll at about 2,000 to 2,500 feet above

ground level. : Re 32as 208s

The ALJ, in finding that Roach violated

F.A.R. 91.9 by operating the aircraft in a

manner which potentially endangered the

lives and property of others, stated that

"“[alssuming even that [the passes] were per-

formed at 500 feet or so, these were lower

than the traffic pattern altitude" and that

an incoming pilot “would have, to his

Surprise, found an aircraft operating down

the central line of the runway somewhere

between 400 to 700 feet, at least, below

pattern altitude.“ IR. 272.

A-4

—— eae

After an informal conference with Roach and

his attorney, the FAA ordered Roach's pilot

certificate suspended for 60 days. The

te 1f Suspension found that Roach had

im~lated Section 91.79(c) of the Federal

lation Regulations, which prohib ; Opera-

tion of an aircraft at less than 500 feet

iboV the surface and within 500 feet of

tructures on the surface; Section 91.3l(a),

which, at the time of Roach's flight, prohi-

per ition of a

with that aircraft's

imitations as prescribed

by the

91.15(c),

Section

pilot from intentionally executing

maneuver that exceeds a bank of 60

Fe.ALR. 91.31(a), which,

flight, stated

a civil

the operating limitations

aircraft

1uthority of the country of

CFR §91.31(a})}(1980), has since

at the

Roach's

perate

witn for

in relevant part to say that “no

operate a civil aircraft without

with" the applicable operating

14 CFR §91.31(a)(1986).

civil aircraft

which prohi

"without

operating

bits a

degrees

time of

"no person may

aircraft without compliance

that

as prescribed by the certificating

registry," 14

been

person

complying

amended

may

limitations.

- .

relative to the horizon unless all non-

crewmembers aboard the aircraft are wear

parachutes; and Section 91.9, which proh:

bits operation of an aircraft ina care Le

yy reckless manner so as ¢ endanger the

life or property of another. eae

Roach sought review of the order Of

suspension with the FAA'S reqional office

At the de novo hearing, the Al. coneluded

that the Administrator failed to prove th

Roach violated Federal Aviation Requlatio

91.79 because he did prove that Roach f]

within 500 feet of any buildina when he m

his three passes over the runway. I R

265-267. However, the ALJ upheld the

remaining charges. He concluded that sin

the operating manual for the Piper Aerost.

involved did not authorize acrobat

maneuvers such as the aileron roll Roach

executed, Roach operated a civil aircraft

without compliance with the operating limi

tations for that aircraft in Violation of

Federal Aviation Regulation (F.A.R.)

A /

~ = €)>

WwW

91.3l(a). I R. 269-271. The ALJ concluded

that Ms. Hopkins was a passenger and not "a

crewmember who is performing required

crewmember duties," so that when Roach exe-

cuted his aileron roll, he executed an

intentional maneuver that exceeds a bank of

60 degrees relative to the horizon while his

passenger, Ms. Hopkins, was not wearing a

parachute, in violation of F.A.R. 91.15(c).

I Re 267-69. Although the ALJ found that

the passes over the runway did not violate

Regulation 91.79(c), they and the aileron

roll were sufficiently careless to warrant

the conclusion that Roach violated F.A.R.

91.9 by operating _his aircraft in a manner

so as potentially to endanger the life or

property of another. I R. 271-73. Since

the ALJ concluded that one of the four

charges was without merit and in view of

Roach's long history in aviation, he reduced

the suspension of Roach's pilot certificate

from 60 days to 30 days. I R. 273-75.

Roach appealed the ALJ's order to the

A-7

NTSB which affirmed the ALJ's order. Helms

ve. Roach, Docket SE-5396. This petition for

review followed.

Roach arques on appeal that: (1) by

allowing the Administrator to call him as an

adverse witness the ALJ violated Roach's

Fifth Amendment right not to testify against

himself in a criminal proceedings; (2) the

ALJ applied novel interpretations of two of

the regulatons, depriving him of fair

warning and reasonable notice of the conduct

those provisions prohibit, in violation of

due process of law; (3) the ALJ erred in

admitting evidence on which ke bane his

conclusion that Roach was not in compliance

with flight limitations applicable to the

aircraft he was flying when he executed his

aileron roll; and (4) the ALJ demonstrated

personal bias and prejudice against Roach.

II.

Roach argues first that the ALJ violated

his Fifth Amendment privilege against self-

A-8

incrimination when he compelled Roach to

testify as an adverse witness.

The Fifth Amendment's self incrimination

clause protects two distinct rights: first,

a defendant's right not to take the witness

stand at his own criminal trial and, second,

the privilege of any witness, in any formal

or informal governmental proceeding, not to

answer questions when the answers might

incriminate him. See, e-g-, United States

v. Housing Foundation of America, 176 F.2d

665, 666 (3d Cir. 1949); United States ve

Gay, 567 F.2d 916, 918 (9th Cir.), certe

denied, 435 U.S. 999 (1978). To assert

Roach's claim that the ALJ violated his

Fifth Amendment privilege by compelling him

to testify, we must first determine preci-

sely which rights under the Fifth

Amendment's self incrimination clause Roach

may rely upon.

The criminal defendant's “absolute right

A-9

not to take the stand,“ United States v.

Seifert, 648 F.2d 557, 560 (9th Cir. 1980),

is the right of an accused at his own crimi-

nal trial “not only to avoid giving -incrimi-

nating responses to inquiries put to him but

to be free from the inquiries themselves."

McCormick on Evidence, §130, at 315 (3d Ed.

1984). To rely on this right, a defendant

need only not offer to testify. United

States ex rel. Santana v. Fenton, 570

F.Supp. 752, 759 (D.N.J. 1981), rev'd on

other grounds, 685 F.2d 71 (3d Cir. 1982),

cert. denied, 459 U.S. 1115 (1983).

With respect to the second protection,

the witness' privilege against self incrimi-

nation “not only protects the individual

against being involuntarily called as a wit-

ness against himself in a criminal prosecu-

tion but also privileges him not to answer

official questions put to him in any other

proceeding, civil or criminal, formal or

informal, where the answers might incrimi-

nate him in future criminal proceedings."

A-10

Lefkowitz v. Turley, 414 U.S. 70, 77 (1973).

However, this “is a privilege to decline to

respond to inquiries, not a prohibition

against inquiries designed to elicit respon-

ses incriminating in nature.“ McCormick on

Evidence, supra, $i36, at 334,

To rely on this facet of the Amendment's

protection, a witness must normally take the

stand, be sworn to testify, and assert the

privilege in response to each allegedly

incriminating question as it is asked.

United States v. Malnik, 489 F.2d 682, 685

(Sth Cir.), cert. denied, 419 U.S. 326

(1974). See also United States v. Riewe,

676 F.2d 418, 420 n.1 (10th Cir. 1982)

("Although no blanket... . fifth amendment

privilege[{] against testifying .. . [is]

recognized .. . the taxpayer may assert

[that] right[] in response to specific.

questions asked .. .")# McCormick on

Evidence, supra, §136, at 334-35. Unless a

witness thus objects, the Government may

ordinarily assume its compulsory process

A-11

does not elicit testimony the witness con-

siders incriminating. Garner v. United

States, 424 U.S. 648, 655 (1976). A witnes

can prevail in his assertion of the privi-

lege only when he has “reasonable cause to

apprehend danger from a direct answer."

United States v. Hoffman, 341 U.S. 479,

486-87 (1951), see also Marchetti v. United

States, 390 U.S. 39, 53 (1968) (hazard of

self incrimination must be “substantial and

‘real', and not merely trifling or

imaginary"); United States v. Jones, 703

F.2d 473, 476 (10th Cir. 1983). Unless the

danger of self incrimination is readily

apparent the burden of showing such danger

exists rests with the claimant of the privi-

lege. Ueckert v. Commissioner of Internal

Revenue, 721 F.2d 248, 250 (8th Cir. 1983)

The court, not the witness, must determine

whether he is entitled to prevail on the

privilege. Hoffman, 341 U.S. at 486-87.

When the Administrator called Reach as

an adverse witness, Roach's counsel objectec

A-12

on the ground the hearing was

"quasicriminal."* The ALJ stated that the

case was civil so that Miranda warnings

: The objection made and the ruling on it

were as follows:

MR. LAYLIN: I'd like to call Mr. Joe

Roach as an adverse witness.

MR. ULLSTROM: We'd object to that, Your

Honor. This is a quasi-criminal case.

JUDGE GERAGHTY: No, it's not, it's a

civil case. Mr. Roach?

He may call him as an adverse Witness.

This is not a criminal case; this is a

civil proceeding.

MR. ULLSTROM: Then just for the record,

let me make my objection, it relates to

the affirmative defense. The federal

courts have ruled that this is a quasi-

criminal case.

JUDGE GERAGHTY: What case are you

citing?

MR. ULLSTROM: I don't have reference to

one now, but I know it's been done. As

a consequence, there's no way that the

Administrator can call the defendant as

an adverse witness, and we object to it.

So I've made the record for that pur-

pose, Your Honor.

JUDGE GERAGHTY: Mr. Roach?

The Board has consistently held that

these are civil proceedings. Criminal

warnings, such as Miranda rights and

such, do not apply, so it is a civil

proceeding.

I Re. 174-75.

and other protections normally afforded cr

minal defendants would not apply. I R. 175.

Therefore, he allowed the Administrator to

call Roach as an adverse witness. Under

examination by the attorney for the

Administrator, Roach admitted he executed

the aileron roll which formed the basis fo

the allegations against him, I R. 176-77,

and that he and Ms. Hopkins were not wearir

parachutes during the flight. I R. 183.

In response to the ALJ's questions, Roach

admitted that the Aerostar's operating

manual did not authorize acrobatic

maneuvers. I Rs 183-84. However, neithe:

Roach nor his counsel invoked the privilege

against self incrimination as to these spe-

cific questions except insofar as the ini-

tial objection that the proceeding was

“quasi-criminal" might have done so.

We do not view the objection made as

asserting a witness' privilege against

self-incrimination. His counsel's objec-

tion to his being called as a witness only

asserted the defendant's right not to take

the stand in a criminal trial, on which

Roach may rely only if we conclude the pro-

tections normally afforded a defendant in a

>riminal proceeding apply in this adminstra-

, ; ; 6 ‘~ :

tive hearing. Our inquiry narrows to this

question, to which we now turn.

Were we to hold that a witness could

raise his privilege not to answer incrimi-

nating questions merely by objecting to

being called to the stand without having to

assert the privilege as to each question

objected to, we would deny the presiding

judge the specifics needed to determine the

Drivilege's applicability to each question,

as well as a record on which appellate

courts could review that determination.

This record presents an example of the evils

such a rule would create. Although Roach

suggests his conduct is prosecutable under

Colorado law, Appellant's Brief at 14-15, he

presented no facts as to whether such prose-

cution is likely or even possible on the

basis of the statements he made at the

hearing. Compare United States v. Carroll,

567 F.2d 955, 957 (10th Cir. 1977) (“Because

of the failure of appellant to specify how

he would be injured by any specific

question, the trial court had nothing on

which to make a determination of any consti-

tutional right or privilege").

6 We note that the NTSB stated in its

opinion:

(footnote continued on next page)

A-15

To determine whether Roach was entitled

to assert a defendant's Fifth Amendment

right not to take the stand at this admi-

nistrative hearing, we must decide whether

the suspension “was intended as punishment.

United States v. One Assortment of 89

Firearms, 465 U.S. 354, 362 (1984). If so,

the suspension hearing was “essentially cri

minal in character," and the normal guaran-

tees of a criminal trial, including the pri

vilege against self incrimination, apply to

the hearing. Id. “(T]he question of whethe

a particular statutorily defined penalty is

(Footnote continued):

(T]he Board has consistently held.that

its administrative proceedings are civi

in nature and that rights afforded cri-

minal defendants are not available and

cannot be invoked. While we therefore

find no reversible error in this

instance, the Board will carefully scru

tinize any departure from the normal an

better practice of the Administrator

presenting his case without calling the

respondent as a witness.

Slip op. at 6.

A-

civil or criminal is a matter of statutory

construction." United States v. Ward, 448

U.S. 242, 248, reh. denied, 448 U.S. 916

"Our inquiry in this regard has

traditionally proceeded on two

levels. First, we have set out to

determine whether Congress, in

establishing the penalizing mecha-

nism, indicated either expressly or

impliedly a preference for one

lable or the other. [citation. ]

Second, where Congress has indi-

cated an intention to establish a

civil penalty, we have inquired

further whether the statutory

scheme was so punitive either in

purpose or effect as to negate that

intention." Id. at 248.

We conclude that Congress did not intend

revocation or suspension of an airman's cer-

tificate to be a criminal penalty. Although

§609 of the Act, 49 U.S.C. §1429, which

authorizes the Administrator to revoke or

Suspend a certificate, can give rise to a

Civil penalty, 49 U.S.C. §147l(a)(1), the

Act discusses criminal penalties in a

separate section which expressly excludes

from the sweep of the criminal penalties

A-17

violations of safety regulations such as

§609. 49 U.S.C. §1472(a). In other con-

texts, courts have found such separation of

a penalty from criminal provisions of an act

to be a strong indication that Congress

intended the penalty to be civil. United

States v. $2500 in United States Currency,

689 F.2d 10, 13 (2d Cir. 1982) cert. denied

sub nom, Aponte v. United States, 465 U.S.

1099, reh. denied, 466 U.S. 994 (1984);

United States v. F/V Reputse, 688 F.2d 1283,

1284 (9th Cir. 1982). Furthermore, the cri-

minal penalties, $500 to $2,000 and impri-

sonment for up to five years, 49 U.S.C.

§1472(a), are much stiffer than the civil

penalties of revocation or suspension, 49

U.S.C. 41429(a), and civil fines up to

$1,900. 49 U.S.C. Y¥1471(a)(1).

Moreover, “only the clearest proof",

Ward, 448 U.S. at 249, quoting Fleming v.

Nestor, 363 U.S. 603, 617, reh. denied 364

U.S. 854 (1960), that the purpose and effect

of the suspension was punitive “will suffice

A-18

to override congress' manifest preference

for a civil sanction." United States v. One

Assortment of 89 Firearms, 465 U.S. at 365.

In Kennedy v. Mendoza-Martinez, 372 U.S. 144

(1963), the Court “set forth a list of con-

siderations that has proven helpful in the

ast in making such determinations." United

p ynitced

States v. One Assortment of 89 Firearms, 465

U.S. at 365. The “tests traditionally

applied to determine whether an Act of

Congress is penal or regulatory in

character” include:

"Whether the sanction involves

an affirmative disability or

restraint, whether it has been

historically regarded as

punishment, whether it comes

into play only on a finding of

scienter, whether its opera-

tion will promote the tradi-

tional aims of punishment --

retribution and deterrence,

whether the behavior to which

it applies is already a crime,

whether an alternative purpose

to which it may rationally be

connected is assignable for

it, and whether it appears

excessive in relation to the

alternative purpose assigned .

. »« " Mendoza-Martinez, 372

U.S. at 168-69.

A-19

This list of considerations is “neither

exhaustive nor dispositive," United States

v.- One Assortment of 89 Firearms, 465 U.S.

at 365 fel, quoting United States v. Ward,

Supra, 448 U.S. at 249, and the -factors

"may often point in differing directions."

Firearms, 465 U.S. at 365 n.7, quoting

Mendoza-Martinez, 372 U.S. at 169.

We do not discern the "clear proof"

necessary to override Congress'

apparent

intent that the sanction applied to Roach

was regulatory rather than punitive.

Revocation of a pilot certificate is not ar

affirmative disability or restraint, but

merely revocation of an privilege con-

ditioned on compliance with the safety regu

lations of the FAA. Revocation of a privi-

lege voluntarily granted "is charac-

teristically free of the punitive criminal

element." Helvering v. Mitchell, 303 U.S.

391, 399 (1938). Unlike the criminal provi

sions in §1472 which require proof of a

knowing and willful violation, §609, 49

U.S.C. §1471, requires “no finding of

intent" for imposition of civil sanctions.

Federal Aviation Administration v. Landy,

705 F.2d 624, 632 (2d Cire}, cert. denied,

464 U.S. 895 (1983).

Although imposition of sanctions under

S609 indirectly furthers the punitive goals

of retribution and deterrence, suspension of

an airman's certificate must rest upon a

Finding that it is required for safety in

air commerce or air transportation and the

public interest, as the NTSB found here.

The deterrent and retributive effect of the

suspension of Roach's privilege is similar

to the impact of other civil sanctions so

that this factor is not decisive. ah

Advance Machine Company ve. Consumer Product

Safety Commission, S510 F.Supp. 360, 366 n./7

(D.Minn.) rev'd on other grounds and

remanded, 666 F.2d 1166 (8th Cir. 1981)

("Here, the only one of the seven

Mendoza-Martinez factors which aids plain-

tiffs, the fourth (the civil penalty ‘will

promote the traditional aims of punishment

retribution and deterrence'), is present

with most civil penalties"). Nor do we

find compelling the fact that some States

have made reckless operation of an aircraf

a crime. See People v. Agnew, 113 P.2d 42

(Colo. 1941). Finally, we cannot say that

the suspension the ALJ imposed on Roach wa

excessive or not rationally related to the

public safety objective the Act intends it

to further. Indeed, the Board pointed out

that the 30 day suspension is quite mild i

relation to penalties the NTSB has upheld

for similar violations in other cases. Sl

op. at 9.

Thus the suspension did not have a

clearly penal purpose or effect and Roach

did not need to be afforded the protection

given a defendant in a criminal trial at h

hearing. See Sabinske v. Civil Aeronautic

Board, 346 F.2d 142, 144 (Sth Cir. 1965)

(holding that since C.A.B. proceeding is

A-22

civil and not criminal, the Government may

prove its case by a preponderance of the

evidence rather than beyond a reasonable

doubt).

' We are aware of Judge Prettyman's

dissent in Lee v. C.A.B.-, 225 €.24 950, 953

(D.C. Cir. 1955), which reached the issue

(not reached by the majority) whether a

suspension of a pilot's License was punitive

and agreed that it was, and of a number of

administrative decisions in which the Civil

Aeronautics Board has held that suspension

of an airman's certificate is penal, at

least in some instances. See, e.g-, Lewis

He Brubaker and Charles E. Olsen, i139 C.A.B.

885, 886-87 (1954) (“While Board proceedings

obviously are not criminal cases ..-. a

suspension of an airman certificate solely"

to punish an airman “would constitute a

penalty in the constitutional sense, and. .

. [former section 1004(i) of the Civil

Aeronautics Act} has immunized the respon-

dents against any suspension imposed purely

as punishment . . ."); Herbert Re Galloway,

1 NTSB 2104, 2105 (1972) (“[SJection 91.5 of

the FAR does not establish a sufficiently

specific standard upon which to base a puni-

tive sanction against respondent in this

case"). Accord Pike v. C.A.B.-, 303 F.2d

353, 357 (8th Cir. 1962) (Revocations of

respondent's airman's certificates for

engaging in flight instruction without an

instructor's certificate “on this record

have at least some penal aspect" because

imposition of a civil penalty would likely

follow suspension and “certainly is

punitive," so that “a stronger statutory or

regulation basis than we are presently able

(footnote continued on next page)

A-23

(footnote continued):

to discover" is necessary to uphold the ce:

tificate revocation). However, in light o

more recent cases analyzed above, we are m

persuaded that the sanction imposed on Roa

here is penal in the criminal sense.

Our conclusion finds support in those

cases where courts have found that license

suspension or revocation proceedings are nc

criminal for purposes of determining the

admissibility of previously immunized, com-

pelled testimony. See, e.g-, In re Daley,

549 F.2d 469, 476-77 (7th Cir.), cert.

denied sub nom. Daley v. Attorney

Registration and Disciplinary Commission of

the Supreme Court of Illinois, 434 U.S. 829

(1977) (“{T)]he Fifth Amendment Privilege

against self-incrimination does not

proscribe the introduction in state bar

disciplinary proceedings of testimony com-

pelled under a grant of immunity);

Napolitano v. Ward, 457 F.2d 279, 284 (7th

Cir.) cert. denied, 409 U.S. 1037 (1972) re

denied 410 U.S. 947 (1973) (same; pro-

ceedings for removal of a judge); Burley

U.S. Drug Enforcement Agency, 443 F.Supp.

619, 622-23 (M.D. Tenn. 1977) (same; pro-

ceedings before the Tennessee Board of

Pharmacy); Childs v. McCord, 420 F.Supp.

428, 434 (D. Md. 1976), aff'd. and opinion

adopted, sub nom. Childs v. Schlitz, 556

F.2d 1178 (4th Cir. 1977) (same; engineer's

professional misconduct hearings).

We also point out that the general wit-

ness immunity statutes applicable in admi-

nistrative hearings, 18 U.S.C. §§6002,

6004(a)(b), have no role in this case.

These statutes afford a witness immunity as

broad but no broader than the Fifth

Amendment privilege, United States v.

Applebaum, 445 U.S. 115, 123 (1980), and, b

their terms, apply only to witnesses, not ti

criminal defendants who assert their right

not to take the stand in their own criminal

(footnote continued on next page

A-24

The same considerations which compel the

conclusion that Roach's suspension hearing

was not criminal also lead us to conclude

the suspension hearing was not

"“quasi-criminal" within the meaning of Boyd

v. United States, 116 U.S. 616 (1886), and

therefore not “sufficient to implicate the

Fifth Amendment's protection against com-

pulsory self incrimination." United States

v. Ward, 448 U.S. at 251.

In sum, the adminstrative proceeding

violated none of Roach's Fifth Amendment

rights.

(footnote continued):

trials and testify on those charges for

which the Government is prosecuting them.

Furthermore, the statutes are not self exe-

cuting, so that the administrator would have

had to ask for immunity in order for

Mr. Roach to have obtained it. United

States v. Seavers, 472 F.2d 607, 610 (6th

Cir. 1973); United States v. Silkman, 543

F.2d 1218, 1220 (8th Cir. 1976), cert.

denied, 431 U.S. 919 (1977). Here, the

Administrator neither sought nor obtained

immunity for Mr. Roach so that the statues

would not have applied in any event.

In Boyd, the Court stated:

(footnote continued on next page)

A-25

Ii!

Roach claims that the ALJ's interpreta:

tion of F.A.R.s 91.15(c) and 91.9, 14 C.F.!

§91.15(c) & 91.9 (1980), are unprecedented

and that such novel interpretations of the

(footnote continued):

"{P]roceedings instituted for

the purpose of declaring the

forfeiture of a man's property

by reason of offenses com-

mitted by him, though they may

be civil in form, are in their

nature criminal.“ 116 U.S. at

634.

However, the Court has narrowed the

sweep of this statement. See, e.g., Unied

States v. Regan, 232 U.S. 37, 50 (1914)

(Boyd limited to Fifth Amendment guarantee

against compelled self-incrimination, whict

"is of broader scope than are guaranties ir

Article III and the Sixth Amendment

governing trials in criminal prosecuticns) ;

United States v. United States Coin &

Currency, 401 U.S. 715, 721-22 (1971) (Fift

Amendment self incrimination clause applies

to forfeiture proceedings because “they are

intended to impose a penalty only upon thos

who are significantly involved in a crimina

enterprise").

In view of the “overwhelming evidence

that Congress intended to create a penalty

civil in all respects and quite weak evi-

dence of any countervailing punitive purpos

or effect .. .", the traditionally non-

(footnote continued on next page

A-26

= D

Oe ee TR SN Pa STC Sere Pres 7 ee RN ee Sa Te % ph Fs eee

us c i eet nO Sree ec AON T OLS eRe

regulations violate his due process rights

because he had no warning that the regula-

tions might prohibit his conduct. We agree

that Roach was “entitled to be informed with

reasonable certainty and explicitness of the

standards by which his i icense may be

revoked." Sorenson v. National

Transportation Safety Board, 684 F.2d 683,

686 (10th Cir. 1982). See also Doe v. Civil

Aeronautics Board, 356 F.2d 699, 701 (10th

Cir. 1966). Nevertheless, since the ALJ's

findings follow long-standing NTSB interpre-

tations, we find this contention unper-

Suasive.

(footnote continued):

criminal nature of the suspension penalty,

the relationship between the suspension and

the promotion of air safety, the non-

applicablity of the criminal portion of the

Federal Aviation Act of 1958 to violations

of the safety regulations such as that at

issue here, and the lack of any evident

danger that Roach will prejudice himself “in

respect to later criminal proceedings," even

under Boyd, the Fifth Amendment's proscrip-

tion against compelling a criminal defendant

to take the stand does not apply to Roach's

administrative hearing. Ward, 448 U.S. at

254.

F.A.R. 91.15(c) states that:

"Unless each occupant of the

aircraft 1S wearing an

approved parachute, no pilot

of a civil aircraft, carrying

any person (other than a

crewmember) may execute any

intentional maneuver that

exceeds --

(1) A bank of 60° rela-

tive to the horizon... .

14 C.F.R. §91.15(c)(1986).

F.A.R. 1.1 defines a crew member as "a

person assigned to perform duty in an

aircraft during flight time. 14 C.F.R. §1.

(1986). Roach claims that the ALJ created

novel definition of “crew member" by

interpreting the term to include only per-

sons aboard an aircraft whose presence is

required to operate the aircraft so he cou!

conclude that Ms. Hopkins was not a crew

member for purposes of the exemption to

F.A.~R 91.15(c). Roach claims that had he

interpreted the regulation properly, the

judge would have concluded that Ms. Hopkins

waS a crewmember and that Roach therefore

did not violate F.A.R. 91.15(c) when he exe

A-28

cuted his aileron roll with her aboard.

Roach says the regulation does not give him

fair warning that his conduct violated the

regulations. We disagree.

Ms. Hopkins testified that she accom-

panied Roach on this trip aboard the

Aerostar as a sales representative. I R.

230. Although she was an experienced pilot,

she had only one hour of flight time aboard

this type of aircraft and was not "checked

out" on it. I R. 224. Her only assistance

on the flight consisted of "[j]Just observing

instruments, basically monitoring" and

"“follow[ing] through" on Roach's aileron

roll, with "one hand on the wheel."

However, she did nothing more. I R. 223.

She did not log the flight in her pilot's

logbook because, she said, "I didn't fly

that.” IR. 226.

The ALJ concluded that Ms. Hopkins was a

passenger, not a crew member, even though

i she assisted Roach during the flight. He

j A-29

reasoned that a pilot should not be able to

circumvent F.A.R. 91.15 merely by assigning

duties to people on board the aircraft.

Furthermore, the aircraft was certificated

for operation by one pilot. Since

Ms. Hopkins was on board the aircraft in “a

status other than a crew member who is per-

forming required crewmember duties,“ Roach

violated the regulation when he executed his

roll while no parachute was aboard the

aircraft. I R. 268-269. The NTSB affirmed

the judge's finding, pointing out that “[i]n

most operations conducted under FAR part

91... there is only one crewmember in an

airplane certificated for one pilot." Slip

op. at 8.

Although the ALJ and the NTSB inferred

from the fact that the aircraft was cer-

tificated for operation by one pilot that

Ms. Hopkins was not a crew member, this is

mot the same as reinterpreting the regula-

tion to limit the term crew member to those

people aboard an aircraft whose presence is

A-30

ey ee

nek he

required to operate the aircraft, as Roach

claims. The ALJ rested his finding on

Ms. Hopkins' own testimony, which

established the limited nature of her

assistance and held that her limited

assistance in the flight did not elevate her

to the status of crewmember. This is a

reasonable application of F.A.R. 91.15(c) to

these facts.

Nor does the regulation, as applied,

violate due process. The FAA has long taken

the position that a person's mere assistance

in a flight does not make that person a crew

member. In 1964, the FAA felt it necessary

to amend the regulation to create an exemp-

tion for student pilots, because, under

earlier interpretations of F.A.R. 91.15,

student pilots were not considered crew mem-

bers even though they assisted extensively

in the flight. See 14 C.F.R. §91.15(d),

promulgated in 29 Fed. Reg. 9823 (July 22,

1964). Although this regulation does not

directly apply, it should have placed Roach

A-31

on notice that mere assistance during the

flight would not elevate Ms. Hopkins’ status

from passenger to crew member. In addition,

the testimony indicates that Ms. Hopkins

understood that the limited nature of her

participation did not make her a crew

member, particularly in view of the fact she

only had one hour of flight time aboard an

Aerostar. This leads to the reasonable

inference that Roach had a similar

understanding.

We think Roach knew or should have known

that F.A.R. 91.15(c) would prohibit him from

performing an aileron roll with Ms. Hopkins

aboard unless parachutes were aboard.

Therefore, he had fair warning of the

~ breadth of the regulation, and its applica-

tion here did not violate his due process

rights.

Citing Ferguson v. National

Transportation Safety Board, 678 F.2d 821

A-32

(9th Cir. 1982), Roach claims that to sup-

port a finding that he operated his aircraft

“in a careless or reckless manner so as to

endanger the life or property of another,"

14 C.F.R. 91.9 (1980), the NTSB must find

an actual danger to life and property.

Since the ALJ made no such finding, Roach

says the judge's application of F.A.R. 91.9

to him involves a novel interpretation of

that regulation, violating his due process

rights.

The Ferguson opinion upheld an NTSB

application of its definition of

"recklessness." The Court held that, “to

find that the NTSB abused its discretion,

the court would need to decide that the fin-

dings of fact do not lead to the conclusion

that [respondent's] conduct demonstrated:

(1) a gross disregard of safety; and (2) a

danger to life and property." 678 F.2d at

829. Since the facts met that standard, the

court concluded that the NTSB had not abused

its discretion. Id. at 830.

A=-33

aircraft

tude even

1500

feet below the required alti-

though the weather was clear and

he sighted no

Haines

other aircraft in the area in

v. Dept. of Transportation, 449 F. 2d

C. Cire 1971). Pointing out

1.535(f£) “is designed to pro-

i) uniformity in commercial

induce ce mpliance with traffi

) t a1d?:

no other Llircraft was

ed in the vicinity «- « -«

jes no justification for

the pilot's maneuver; rather

it invites only speculation

that no danger was presented.

Nhat is more important i

that, in the judgment of the

rd, potential danger was

irily presented, and

sufficient to support

finding that the regulation

riolated. [citations]

f f actual danger is

ry, for the requl

re r - ag = =

t} prohibits any carele

k le practice in whi

inger 1 inherent. That

} ; r Wa innerent in ct!

ilot' juct -- that da

wht have developed in th

> Jit ry y . ‘of é € ~ +

; 7 r tor ‘ y th B ar ; %

termlut | 7 ‘the 3 ’ -

r ‘ " a it y r ?

3 + . 7 + ] \76.

(Emphasis added,

omitted).

We likewise

interpretation

record

were an

regulations

amply

oO f

defer to

F.A.R.

Supports th

entirely proper

laim that th

F.A.R. 1.3

substantial ev

manual the Adm

lly prohibit

imit

rely di

r yulatié

a ely {

rating mar

1inistrator

his aircr:

—s

inding ¢t

hout

ation for

not auth

es not

horized

pages 1

not on

nd the

A- 3 6

the

91.9

e findings,

footnote

Board's

her Ce

application of

inistr

13 De :

nat RO at

t hat

Orize

—

compliance

acrobatic

The

which

the

rind) 1G] cn

nor Ip

? oa r rime

ator offer

I erated

with the

1ircraft 10¢

maneuvers

them fa

if . tior

ver; that th

“ed DY t hye

fac . ol ipply

"4 te 3f Lm ny

to establish that his

administrator

aircraft subject

the same restriction

substantial to support

1€ficiently

violated the regulation.

finding

1im that the

Statement that

not authorized" is

yr the conclusion

yperating limita-

he executed his

11, FAR 91.31(@a)

sivil aircraft

the operating limi-

he aircraft by tte

ie country of

l.31(a)(1980). The

iper Aerostar

perate it in

requirements. The

judge found that the operating manual whic

Piper prepared for the Aerostar stated tha

acrobatic maneuvers are “not authorized" a

that Roach's aileron roll was an acrobatic

maneuver. He therefore concluded that the

roll constituted operation of the aircraft

“without compliance" with FAA's operating

limitations for the Aerostar within the

meaning of F.A.R. 93.13(a). I Re. 269-270.

The NTSB affirmed these findings. I R. 374

Roach contends that the terminology “nc

authorized" in the operating manual does nec

mean the same thing as “prohibited," a term

the manual used in proscribing flight into

icy conditions. Since “not authorized" is

weaker than “prohibited," Roach argues that

it implies that, although Piper did not cer

tify the Aerostar for acrobatic maneuvers,

neither did it prohibit them so that the

evidence fails to establish the existence o

an operating limitation with regard to acro

batics.

A-

The question is whether substantial evi-

dence supports the ALJ's finding that the

Aerostar had an operating limitation with

regard to acrobatic maneuvers so that F.A.R.

91.31l(a) prohibited them. In affirming the

judge's finding, the NSTB pointed out that

. er

although the manual's statement that acroba-

tics are “not authorized" established an

operating limitation, the regulation, not

the manual, prohibited acrobatics in the

LESS TALI eae

Aerostar.” This language in the manual is

9 The NTSB dealt with Mr. Roach's conten-

tion as follows:

Respondent's second contention in

regard to operations specifications is

that the FAA-approved operating limita-

tions state that, while acrobatic

maneuvers in the aircraft are

‘unauthorizeu , this does not mean that

they are '‘prohibited'. It is not the

operating limitations that ‘prohibit’

acrobatic maneuvers, but, rather, the

regulation itself (FAR Section 91.31(a))

that prohibits operation of an aircraft

except in compliance with its operating

limitations. In our view, the evidence

establishes that the Piper Aerostar

Model 601P is limited to flight in the

normal category and that its operating

limitations include a limitation that,

in light of FAR Section 91.3l(a), prohi-

bits acrobatic flight. Slip Op. at 8.

A-39

lia iceman

substantial evidence that the existence of

the limitation and supports the finding.

Roach also challenges the sufficient of

the evidence by attacking Administrator's

exhibit A-3, pages from an Aerostar

operator's manual used to establish the

existence of an operating limitation on

acrobatics. Exhibit A-3 stated that the

operating manual from which the pages came

applied to aircraft with serial numbers “A/E

0715 and subsequent." I R. 282. Since

Roach's aircraft had another, earlier

airframe number, Roach objected to admissior

of Exhibit A-3 on the ground it did not

apply to his aircraft. I R. 154.

The attorney for the Administrator asked

Allen Neal, an aviation safety inspector

operations officer, to identify the exhibit

and state whether its limitations applied to

all Aerostars. I R. 154-55. When Neal

testified that he called the factory to

A-40

! obtain this information, Roach's counsel

objected on hearsay grounds, I R. 155, and

the ALJ stated hearsay is admissible in

administrative hearings. I R. 156. The

witness then testified he spoke with two

Piper Aircraft Company employees, who told

him no Aerostar had even been certified for

acrobatics. I R. 156-57. The attorney for

the Administrator once again offered exhibit

A-3, and Roach's counsel objected that the

foundation supporting admission of the exhi-

bit was insufficient because the exhibit on

its face related to "Air Frame 0715 and

subsequent," and “[t]here is no statement

this relates to the particular airplane" in

this case. I R. 158-59. The judge

Sustained the objection, saying he would

reserve ruling on admission of exhibit A-3

if the attorney for the Administrator could

present further evidence. I R. 159-60.

The attorney for the administrator then

called Aviation Safety Inspector Riggins to

testify that he had made a long distance

A-41

call to the Piper factory in Florida.

Riggins said two Piper employees had told

him over the phone that the operating limi-

tations set out in Exhibit A-3 with regard

to acrobatics were identical to those con-

tained in the operating manual for Roach's

Aerostar. The ALJ admitted this hearsay

over the objection of Roach's counsel and

admitted Exhibit A-3. I R. 166-169, 172.

Later the ALJ questioned Roach, who substan

tially admitted that the operator's manual

for his Aerostar contained wording similar

to that in Exhibit A-3. On the basis of

Riggins' testimony and Roach's admission,

+0 Roach disagrees with the Administrator'

contention that Roach admitted that the

operating manual for his aircraft contained

language regarding acrobatic maneuvers simi

lar to that contained in the Administrator'

exhibit. The record on this point is as

follows:

JUDGE GERAGHTY: I have a couple of

questions. Mr. Roach, are you familiar

with the operator's manual for the par-

ticular Piper Aerostar you were flying

that day?

THE WITNESS: Yes, pretty well.

(footnote continued on next page

A-42

AE RC SE 8 A GP IS Dice AIO.

the ALJ concluded that the operating limita-

tion applicable to Roach's aircraft

regarding acrobatics was identical to that

contained in Exhibit A-3. I R. 269-270.

On appeal, the NTSB thought it reaso-

nable to infer that the limitation contained

in exhibit A-3 applied to Roach's Aerostar

since "it would be unusual for some series

of a model aircraft, particularly a twin

(footnote continued):

JUDGE GERAGHTY: Are you familiar with

the operating limitations section of the

manual on that- aircraft?

THE WITNESS: Pretty well.

JUDGE GERAGHTY: Is there any wording

with respect to the performance of acro-

batics in that particular aircraft con-

tained in the operator's manual,

limitations section?

THE WITNESS: Well, no more than what we

heard here today, I guess.

JUDGE GERAGHTY: Same thing, acrobatics

maneuvers not authorized, or generally

words to that effect?

THE WITNESS: Yes, something to that

effect, yes, sir."

I R. 183-184.

engine airplane, to be authorized for acro-

batic maneuvers while other series of the

same model are not so authorized.“ Slip op.

at 7. Although the Board concluded the

hearsay testimony about the phone call was

“not entitled to substantial weight," the

Board concluded that, in light of Roach's

failure to rebut it, the testimony, along

with inferences drawn from Exhibit A-3

itself, was sufficient evidence to establish

that Roach's aircraft was not authorized for

, ll

acrobatic maneuvers. Id.

tt The NTSB stated that the evidence was

“sufficient to establish a rebuttable

presumption" that Mr. Roach's aircraft was

not authorized for acrobatic maneuvers

“and . . -« FAA counsel effectively shifted

the burden to Mr. Roach “of establishing"

that his Aerostar “was not so restricted."

The Board concluded he did not meet his bur-

den because he produced no evidence that the

limitation did not apply to his aircraft.

Slip op. at 7. Roach claims on appeal that

the Board impermissibly shifted the burden

of proof to him to establish he did not

violate Federal Aviation Regulation

91.3l(a).

The Board's choice of words to

describe Mr. Roach's burden was unfortunate

because, by talking of a rebuttable presump-

(footnote continued on next page)

A-44

Roach contends that the ALJ's finding of

an operating limitation with respect to

acrobatics and therefore the finding that

Roach iikekes F.A.R. 91.31(a) rests solely

on the hearsay testimony of Riggins and that

this does not constitute substantial evi-

(footnote continued):

tion which shifted to Roach the burden of

establishing he did not violate the regula-

tion, the Board created the impression that

the burden of proof had shifted to Mr.

Roach, when, in fact, it had not. The

Administrator has the initial burden under

NSTB practice to present a prima facie case

showing that respondent violated a regula-

tion. Then, the burden of production shifts

to the respondent, who must present evidence

to rebut the Administrator's prima facie

case. However, the burden of proof always

remains with the Administrator. Helms v.

Kato, Docket No. SE-5323, Slip op. at 5 & 5

n.7 (NTSB Nov. 26 1982); Administrator v.

Pangburn, 35 C.A.B. 907, 910 aff'd., sub

nom. Pangburn v. Civil Aeronautics Board,

311 F.2d 349 (lst Cir. 1962); Administrator

v. Specht, 25 C.A.B. 859, 863 (1957), -

aff'd., sub nom., Sprecht v. Civil

Aeronautics Board, 254 F.2d 905 (8th Cir.

1958).

Nevertheless, Mr. Roach did not suffer

any prejudice requiring reversal because the

ALJ and the NTSB both understood that the

Administrator had the ultimate burden of

proof, and the judge required the

Administrator to meet that burden. The

NTSB, in using the language it did, merely

sought to describe Roach's burden of produc-

tion, a burden he did not meet in this case.

A-45

dence of an operating limitation relating t

acrobatic flight for his Aerostar. In

Richardson v. Perales, 402 U.S. 389 (1971),

the Court held that hearsay evidence in the

form of a report by an examining physician

in a Social Security case may constitute

Substantial evidence in an administrative

proceeding, if it has sufficient indicia of

reliability and probative value, when the

claimant does not exercise his right to sub

poena the physician and provide himself wit

the opportunity to cross-examine the physi-

Clan. Id. at 402. Here the NTSB

concluded that the hearsay evidence was not

entitled to “substantial weight," Slip op.

at 7, recognizing that Riqgins' testimony,

Standing alone, might not be sufficient to

Support the ALJ' conclusion that Roach's

Aerostar manual contained the operating

Our circuit has found a conflict among

the circuits on the question of whether

“uncorroborated hearsay can constitute

substantial evidence in administrative

proceedings." Sorsensen v. National

Transportation Safety Board, 684 F.2d 683,

686 (10th Cir. 1982).

A-46

limitation concerning acrobatics. However,

Rell

<tr nae aii acnageeacelll

Roach's own admission about the operating

limitation corroborated Riggins' testimony.

Thus none of Roach's objections to the

substantiality of the evidence supporting

the ALJ's findings are persuasive.

Finally, Roach contends that the ALJ

_ demonstrated bias sufficient to render the

hearing unfair when he assisted counsel for

the administrator by explaining how to con-

duct his examination of a witness, I R.

145-147, when he examined Roach and other

witnesses from the bench, I R. 183-184,

229-232, and when he cut off Roach's testi-

mony about Ms. Hopkins' activities aboard

the aircraft. rR. 180,

Due process entitled an individual in an

administrative proceeding to a fair hearing

before an impartial tribunal. Roberts v.

Morton, 549 F.2d 158, 164 (10th Cir. 1976),

cert. denied sub nom. Roberts v. Andrus, 434

A-47

licen

U-S. 834 (1977). A biased hearing officer

who conducts the hearing unfairly deprives

litigant of this impartiality. However, “a

Substantial Showing of personal bias is

required to disqualify a hearing officer or

to obtain a a ruling that the hearing is

unfair." Roberts Ve Morton, 549 F.2d at

164. See also, Corstvet Vv. Boger, 757 F.2q

223, 229 (10th Cir. 1985).

Roach fails to make the requisite

Showing of personal blas. The record

reveals that the ALJ conducted the hearing

fairly and made his findings impartially.

An ALJ has an Obligation to conduct the

hearing in an Orderly manner and to elicit

the truth. He has the right to interrogate

witnesses for that purpose. See Knapp v.

Kinsey, 232 F.2d 458, 466 (6th Cir.), reh.

denied, 235 F.2q 129 (6th Cir.), cert.

denied, 352 U.s. 892 (1956). The judge's

interrogation of Roach and other witnesses

WaS proper. What Roach Characterized as

assistance to the attorney for the

A-48

rator

was mere] y

the

Federal Rules of

: mplicated

in the jud

i a |

; Val-Te.

| 3

> ] r rr

'% ,

i ] °

;

A-~49Q

oe ae

situ

> +

ALJ's att empt

Evidence

ition. We find

Nndu t .

there Wa

] rr Te. —_

r >

SERVED: March 14, 1983

NTSB Order No. EA-1886

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 7th day of March, 1983

J. LYNN HELMS,

Administrator, Federal Aviation

Administration,

Complainant,

Docket

V. SE-5396

JOSEPH A. ROACH,

Respondent

eee ee ee ee eee

OPINION AND ORDER

Respondent has appealed from the initial

decision! of Administrative Law Judge

Patrick Geraghty, issued orally at the ter-

mination of an evidentiary hearing held

March 23, 1982. The law judge found

l A copy of the initial decision is

attached.

established, by a preponderance of the evi-

dence adduced, that respondent performed an

acrobatic maneuver in an airplane (Aerostar

Model 601P) not certificated for acrobatic

maneuvers, with a passenger aboard when

there were no parachutes on board the

aircraft. The law judge found established

violations of Sections 91.15(c), 91.31l(a)

and 91.9 of the Federal Aviation Regulations

(FAR), but found that the Administrator's

alleqations regarding a violation of FAR

Section 91.79(c) were not established.

The Administrator's order of suspension

illeged as follows:

1. You are now, and at all times men-

tioned herein were, the holder of

‘ommercial Pilot Certificate 331204;

a’

2. On or about November 6, 1980 you

rcted as pilot in command of civil

1ircraft N8062J, a Piper Aerostar

Model 601P, the property of another,

yn a VFR passenger carrying flight in

B-2

the vicinity of the LaJunta Municipéz

Airport, LaJunta, Colorado;

Incident to that flight you operatec

N8062J on three high speed passes

over the ramp, runways, and terminal

buildings at less than 300 feet abov

the ground;

Incident to that flight and followin

the last high speed pass, you exe-

cuted a 360° aileron roll at an alti

tude of 400 to 500 feet above the

ground;

The operating limitations for the

Piper Aerostar prohibit all acrobati

maneuvers;

Incident to the operation described

in paragraph 4, neither you nor your

passenger were wearing a parachute;

and

Your operation of N8062J in the

manner and under the circumstances

described above was careless and

reckless, so as to endanger the lives

and property of others.

By reason of the foregoing circumstan-

ces, you violated the following Federal

beg Aviation Regulations:

ae Section 91.79(c), in that you

g operated an aircraft at less than 500

feet above the surface and within 500

feet of structures on the surface;

5. Section 91.3l(a), in that you

operated a civil aircraft without

compliance with the operating limita-

Cc tions for that aircraft prescribed by

the certificating authority of the

country of registry;

Section 91.15(c), in that when each

occupant of the aircraft was not

wearing an approved parachute, you as

pilot executed an intentional

maneuver that exceeded a bank of 60

degrees relative to the horizon; and

d. Section 91.9, in that you operated a

aircraft in a careless or reckless

manner so as to endanger the life or

property of another.

The text of the cited requlations, and

of the other FARs relevant to this pro-

ceeding, is found in the Appendix.

The law judge reduced the sanction of a

60-day suspension imposed by the

Administrator to one of 30 days, based, in

large part, on the fact that only three of

the four alleged violations were found

proved and that the finding of careless _

operation (Section 91.9) was residual to th

two substantive violations. Although the

law judge pointed out that respondent's

violation --free record cannot be used in

mitigation of sanction since the Board has

regularly so held, he did point out that

respondent has had a long career in

aviation.

Respondent, represented by counsel

throughout these proceedings, has filed an

appeal brief. He contends that:

1. His rights under the Fifth Amendment,

Section 313 of the Federal Aviation

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

§1354), and the Qualified Immunity

Statute (18 U.S.C. §6004) have been

violated; he has been deprived of the

right to a jury trial; and has been

injured by FAA counsel's arbitrary

election to impose a suspension;

2. Respondent should not have been

required to testify against himself;

3. The law judge's findings that viola-

tions of FAR Sections 91.31(a) and

91.15 occurred are not supported by

the evidence;

4. The law judge showed bias by

assisting FAA counsel in eliciting

testimony;

No evidence was introduced to suppor

a finding of endangerment requisite

to a violation of FAR Section 91.9.

The Administrator has filed a reply.

His answers to respondent's contentions are

that:

The respondent's arguments regarding

imposition of a certificate suspen-

sion in preference to a civil penalt

are specious since the Board has

repeatedly held that the FAA has sol

discretion to decide whether to pur-

sue a Civil penalty or a certificate

suspension;

Respondent was not deprived of a

right not to testify against himself

Since the Board has repeatedly held

that the protective rights afforded

defendants in criminal proceedings d

not apply in administrative

proceedings;

3. The Administrator's evidence

regarding certification of the

Aerostar was more than sufficient to

sustain his allegation that FAR

Section 91.3l(a) had been violated;

4. The use of the word “unauthorized"

instead of the word "prohibited" in

the Aerostar flight manual cannot

excuse the violation of FAR Section

91.3l(a); and

5. There were ample grounds for a

finding of a violation of FAR Section

91.9 in the violations of the other

two sections found proved.

He requests that the initial decision be

affirmed.

Upon consideratior 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 interest

require affirmation of the Administrator's

B-8

order, as amended by the law judge, who

found that the cited violation of FAR

Section 91.79(c) was not established and

modified the sanction to provide for a

30-day suspension. We adopt the findings o

the law judge as our own.

With respect to respondent's procedural

arguments, we first point out that the

Board's statutory authority, as found in

Section 609 of the Federal Aviation Act of

1958 (49 U.S.C. §1429) and Section 304(a)(9

of the Independent Safety Board Act of 1972

(49 U.S.C. §1903), extends only to reviewin

On appeal the certificate actions taken by

the Administrator. The Board has no

authority to review the Administrator's

Civil penalty actions, nor do we entertain

appeals from petitioners who believe that

the Administrator has improperly exercised

his authority in selecting the form of sanc

tion to be imposed. Moreover, the Board

does not review any actions akan by the

“Administrator by way of acceptance or refu-

B-9

sal of any compromise offer made at the con-

ference that precedes the taking of cer-

tificate action.

Secondly, respondent contends that he

was compelled to testify against himself

regarding the absence of parachutes. He

arques that certificate actions are punitive

in nature and, as such, are quasi-criminal,

entitling persons against whom such actions

are taken to claim immunity rights available

to criminal defendants. On the matter of

the qualified immunity provisions that is

found in Title 18 Section 6004,° and of the

Fifth Amendment itself, the Board has con-

sistently held that its administrative pro-

ceedings are civil in nature and that rights

afforded criminal defendants are not

2 until 1970, Section 1004(i) of the

Federal Aviation Act (49 U.S.C. §1484) con-

tained a qualified immunity provision. That

provision was repealed by the Organized

Crime Control Act (84 Stat. 922), and was

superseded by the immunity provision pro-

vided in Title 18 (18 U.S.C.A. §6004), a

section of the Criminal Code that provides

immunity under certain circumstances

explained therein.

B-10

available and cannot be invoked. While we

therefore find no reversible error in this

instance, the Board will carefully scruti-

nize any departure from the normal and

better practice of the Administrator pre-

senting his case without calling the respor

dent as a witness.

On the matter of the law judge's conduc

of the case, respondent contends that he

assumed the role of FAA counsel and that he

resolved ambiguities in favor of the FAA.

The Board has pointed out on numerous occa-

Sions that, in any administrative pro-

ceeding, the law judge is charged with the

responsibility for the development of a ful

and fair record upon which a reasoned deter

mination can be made. Although the law

judge's participation herein may have

appeared to respondent to have been somewha

overzealous, we do not believe that he aide

the FAA's prosecution of the case in any wa

that affected its outcome or that constitu-

tes reversible error.

B-1]

Turning now to respondent's arguments

regarding the substantive violations found

proved, the Board finds evidence in the

record sufficient to establish that the

airplane operated by respondent, the Piper

Aerostar Model 601P, is certificated in the

normal category and that acrobatic maneuvers

in that airplane are not authorized by its

operations specifications. Respondent

objects to the use of Exhibit A-3, a copy of

the FAA-approved operation limitations for

the Aerostar Model 601P, contending that the

operating limitations are specifically

limited, by their heading, to "Series A/F

0715 and subsequent," and that he can

establish that the aircraft respondent

operated in a Series A/F 0545. As a general

matter, it would be unusual for some series

of a model aircraft, particularly a twin

engine airplane, to be authorized for acro-

batic maneuvers while other series of the

Same model are not so authorized. Thus, in

our view, Exhibit A-3, along with hearsay

B-12

testimony presented by the FAA inspector

based on a telephone call to Piper aircraft

(although not entitled to substantial

weight), 1S evidence sufficient to establish

a rebuttable presumption that respondent's

Aerostar Model 601P is type certificated in

the normal category, with no authorization

for acrobatic maneuvers, and that FAA coun-

sel effectively shifted the burden to

respondent of establishing that. the Aerostar

operated by respondent was not similarly

restricted. We further find that respondent

failed to present any evidence that would

establish type certification authorizing

acrobatic maneuvers.

Respondent's second contention in reqarad

to operations specifications is that the

FAA-approved operating limitations state

that, while acrobatic maneuvers in the

alrcrafct are “unauthorized", this does not

mean that they are "prohibited." It is not

the operating limitations that “prohibit"

acrobatic maneuvers, but, rather, the regu-

B-i3

lation itself (FAR Section 91.3l(a)) that

prohibits operation of an aircraft except in

compliance with its operating limitations.

In our view, the evidence stablishes that

the Piper Aerostar Model 601P is limited to

flight in the normal category and that its

operating limitations include a limitation

that, in the light of FAR Section 91.3l(a),

prohibits acrobatic flight.

The Board rejects respondent's argument

that FAA counsel's failure to demonstrate

why acrobatic flight in an airplane not

threat to

se)

authorized for such flight 1:

aviation safety was error. By law, the

operating limitations that are established

when the airplane is type certificated

define the boundaries of safe operation.

Accordingly, operation beyond such limita-

tions constitutes careless operation within

the purview of FAR Section 91.9 without a

showing of the specific hazard such opera-

tion might pose.

The only other substantive violation

found proved by the law judge involves the

fact that parachutes were not on board the

aircraft. As we have noted, FAR Section

91.15(c) makes an express exception to the

parachute requirement for an operation that

does not carry “any person (other than

crewmember).“ As defined in FAR Part 1, a

crewmember means “a person assigned to per-

form duty in an aircraft during flight

time." In most operations conducted under

FAR Part 91, excluding flight instruction

and operations conducted under Subpart D,

there is only one crewmember in an airplane

certificated for one pilot. Despite the

fact that Ms. ak ian: a pilot with a multi-

engine rating, was employed by respondent as

an aircraft sales representative, and

testified that she manipulated the controls

during the acrobatic maneuver that was con-

ducted and that she assisted the respondent

in other ways during the flight, i.e., in

the reading of instruments, we cannot

B-i5

conclude that she was a “crewmember" within

the meaning of the regulation. >

As a result, we find established, as did

the law judge, violations of FAR Sections

91.3l(a), 91.15(c), and 91.9. We believe

that the 30-day suspension set by the law

judge is a lenient sanction in the light of

the rather stringent sanctions that the

Board has affirmed in somewhat similar

circusstances.* We note, however, that the

Administrator did not appeal the reduction

in sanction. Moreover, we @distinguish the

circumstances in this case from those

. Although we therefore find that respon-

dent violated Section 91.15(c), we give that

particular violation little weight in

assessing sanction, which rests more

directly on the more serious violation of

Section 91.3l(a).

4 See, for example,

Administrator v. Woods, Order EA-1563

(1981).

Administrator v. Downs, Order EA-979

(1977).

Administrator v. Walsh, 2 NTSB 1772

(1975).

Administrator v. VanDusen, 2 NTSB 2479

(1976).

B-16

involving other pilots who have been given

more severe sanctions on the basis of the

fact that the aileron roll was executed in a

remote area and that there appeared to be no

danger to persons or property on the ground

during the maneuver.

ACCORDINGLY, IT IS ORDERED THAT:

1. Respondent's appeal is denied;

2. The Administrator's order, as

modified by the law judge with

respect to FAR sections violated and

sanction, 1s affirmed; and

3. The 30-day suspension of respondent's

commercial pilot certificate shall

begin 30 days after service of this

Srdexi*

For the purposes of this order, the

respondent must physically surrender his

certificate to an appropriate representative

of the Federal Aviation Administration pur-

suant to FAR Section 61.19(f).

BURNETT, Chairman, GOLDMAN, Vice Chairman,

McADAMS, BURSLEY and ENGEN, Members of the

Board, concurred in the above opinion and

order.

APPENDIX

The following regulations are involved

in this proceeding:

i Section 91.79(c) reads as follows:

"§91.79 Minimum Safe Altitudes; general.

An altitude of 500 feet above the surface

except over open water or sparsely populated

areas. In that case, the aircraft may not

be operated closer than 500 feet to any per-

son, vessel, vehicle, or structure.

2s Section 91.3l(a) reads as follows:

"§91.31 Civil aircraft operating limita-

tions and marking requirements.

(a) Except as provided in paragraph

B-18

(da) of this section, no person may operate a

civil aircraft without compliance with the

operating limitations for that aircraft

prescribed by the certificating authority of

the country of registry."

3. Section 91.15(c) reads as follows:

"§91.15 Parachutes and parachuting.

* * * * * *

aircraft is wearing an approved parachute,

no pilot of a civil aircraft, carrying any

person (other than a crewmember) may execute

any intentional maneuver that exceeds --

(1) <A bank of 60° relative to the hori-

a. Section 91.9 reads as follows:

"§91.9 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."

S. Also relevant is the definition of

the term “crewmember" that is found in FAR

Part i.

"§1.1 General definition

* * * * * *

“Crewmember" means a person assigned

to perform duty in an aircraft during flight

time.

UNITED STATES OF AMERICA

NATIONAL TRANSPORTATION SAFETY BOARD

ee |

J. LYNN HELMS, Administrator,

Federal Aviation Administration,

Complainant,

DOCKET NO.

SE-5396

JOSEPH A. ROACH,

Respondent.

re er ee ee ee ee ee ee

BEFORE: PATRICK G. GERAGHTY, Administrative

Law Judge

FOR COMPLAINANT: Peter R. Laylin, Esquire

FOR RESPONDENT: L. B. Ullstrom, Esquire

Robert P. Smith, Esquire

PLACE: Denver, Colorado

DATE: Tuesday, March 23, 1982

ORAL INITIAL DECISION AND ORDER

This has been a proceeding held before

the Nationai Transportation Safety Board

pursuant to the provisions of the Federal

Aviation Act of 1958 and the Board's Rules

of Practice in air safety proceedings on the

appeal of Joseph A. Roach, hereinafter

referred to as Respondent, from an order of

suspension which seeks to suspend his com-

C-1

mercial pilot certificate, No. 33]204, for a

period of 60 days.

The order of suspension, as is provided

by the Board's Rules, serves herein as the

complaint and was filed on behalf of the

Administrator of the Federal Aviation

Administration, herein the Complainant,

through his regional counsel of the

Northwest Mountain Region.

The matter has been held before this

Administrative Law Judge and, as is

authorized by the Board's Rules, I have

elected to issue an oral decision in the

proceeding.

Following due notice to the parties,

this matter came on for trial on March 23,

1982, in Denver, Colorado. The Respondent

was present at all time and was represented

by his attorneys, L. B. Ullstrom, Esquire,

and Robert B. Smith, Esquire of Denver,

Colorado. The Complainant was represented

by one of his staff counsel, Peter R. Laylin,

Esquire, of the Regional Counsel's office.

C-2

Parties were afforded full opportunity

to offer evidence, to call, examine and

cross-examine witnesses. In addition, the

parties were afforded the opportunity to

make Oral argument in support of their

respective positions.

ADMISSIONS AND STIPULATIONS

By pleading and by agreement, it was

agreed that there was no dispute as to the

“following:

l. That the Respondent is now and was

at all times pertinent herein the holder of

Commercial Pilot Certificate No. 331204.

2. That the distance between the struc-

- ture or building containing the Flight

Service Station and Venture Aviation at La

Junta Municipal Airport is a distance of

approximately 1,000 feet from the center of

Runway 8-26 at La Junta Airport.

The matters contained in those

agreements or stipulations are taken as

having been established for the decision.

DISCUSSION

C=-3

As noted, the Complainant seeks a

suspension of the Respondent's commercial

pilot certificate for a period of 60 days.

This suspension is sought upon the allega-

tions that the Respondent, in his operation

of an aircraft at the La Junta Municipal

Airport on November 6, 1980, when he was

performing as pilot in command, did operate

in regulatory violation of several sections

of the Federal Aviation Regulations. The

specific Federal Aviation Regulations and

the pertinent provisions thereof will be

referred to subsequent in this decision as

appropriate.

Looking at the pleadings and the evi-

dence as it was adduced today, it is clear

that there is essentially no factual dispute

that the Respondent was, on November 6,

1980, acting as pilot in commane of a Piper

Aerostar identified as N8062J with a

passenger on board, or at least an indivi-

Gual on board, in flights conducted in the

vicinity of La Junta Airport.

c-4

It is also not disputed that at least

three passes were made by the Respondent,

essentially along or over Runway 8-26 at La

Junta Airport on the date in question. And

further, that at the completion of the thire

pass that the Respondent performed an

aileron roll and then departed the area.

In reviewing the evidence, I will

discuss that evidence which I think bears

specific mention. I have considered,

however, the demeanor of the witnesses, all

of the oral testimony, the affidavit, and

the exhibits. That evidence which I do not

specifically mention has been viewed by me

as either being in conformity with the evi-

dence that I do mention or as not materially

affecting the outcome of my decision.

The Complainant's case was made or

offered through the testimony of several

witnesses. Three of them are essentially

percipient witnesses. The first of these

was Mr. Leo Roeskae, who was the chief of

the Flight Service Station at La Junta and

C->5

has been in that position for about two and

a half years.

The testimony from this individual as to

the issues which I feel are still in dispute

pertains to his testimony relating to an

alleged pass conducted by the Respondent at

low altitude over the structure which con-

tains the Flight Service Station and Venture

Aviation at La Junta Airport.

Mr. Roeskae indicates that he was

Standing by the window of his office in the

Flight Service Station on the date in

question and that he heard a loud noise of

an aircraft fairly low, looked out the win-

cow and observed the Piper Aerostar at an

altitude of about 200 feet as it passed away

from him; that is, he observed the empennage

or tail section of the aircraft as it pro-

ceeded at an angle over the building anc

across the runway.

He states that thereafter he observed

passes conducted by the aircraft along

Runway 8-26 at an altitude that he estimates

C-6

of approximately 10 to 20 feet.

The witness also indicates that he

observed the aileron roll performed by the

Aerostar, estimating that the aircraft was

at approximately 400 to 500 feet AGL, above

ground level, at the time that the roll was

commenced.

The distance from the airport as indi-

cated by this witness at the time of the

roll was approximately one-fourth of a mile

from the departure end of 26.

With respect to his relationship with

Mr. and Mrs. Young, who were at the time in

question the owners of Venture Aviation, he

indicates it was strictly a business rela-

tionship, that he never socialized with

either one of those two individuals.

Mrs. Young I've already identified. She

testified that she was in her office in the

building at La Junta at the date in

question. She did not observe the aircraft.

She states that she heard a loud noise from

an aircraft that seemed to be lower than

Cry

usual. She was behind the counter on the

south side of her office and was unable to

see the aircraft.

She does state that she did see the

aircraft when it made the low pass down the

runway. She did not-give an actual esti-

mate, merely stating that she was able to

observe it out the window.

The witness also indicated that she did

not see the aircraft perform any sort of

roll maneuver, merely that that was called

out to her by one of their then employees,

Mr. Ricken.

She was questionec with respect to her

or her husband's feelings with respect to

the Respondent. She indicates that it might

have been some personality out between her

husband and Dr. Rayburn, that they were not

the best of friends; also, with respect to

the Respondent, indicating that she didn't

feel there was anything untoward between

them merely because he was coming down to

sell an aircraft at their place of business

C=§

on La Junta Municipal Airport.

Mr. Ricken was employed as a part-time

flight instructor at the time of the allege

incidents. He testifies that he observed

the aircraft being flown by the Respondent

heading directly down the runway to the

west, estimating the altitude at that time

of the aircraft at approximately 200 to 300

feet AGL.

He also indicates that he observed the

aircraft to enter a climb and then do a rol

prior to the departure to the north or

toward Denver.

This individual, Mr. Ricken, was also

recalled during the Respondent's part of th

case and I'll refer to his testimony here

for purposes of continuity. On questioning

by counsel for Responcent, Mr. Ricken indi-

—eated that he, while being in the Venture

Aviation office, did not hear any loud nois

such as described by Mrs. Young, nor did he

see any pass conducted over the building, a

described either by Mrs. Young or by Mr.

C-9

Roeskae.

I might point out that Mr. Ricken indi-

cates that he had returned to the office

area after having done some flight instruc-

tion and it's not established that he was

not, in fact, present at the time that he

idicates and, of course, that is at least

substantiated by Mrs. Young.

Mr. Neal is an aviation safety inspector

with the FAA. He is not a percipient wit-

ness. His testimony, such as I was able to

divine it from the sound and fury of the

testimony and objections, essentially in its

intelligible part, establishes, at least on

his testimony, that having spoken to the

factory that he determined from conver-

sations with individuals at that factory

that the Aerostar had never been certified

for performance of aerobatics.

Mr. Riggins is also an aviation safety

inspector employed by the Federal Aviation

Administration. Both he and Mr. Neal were

present at an interview or conversation when

C-10

the Respondent apparently came in tc the FA.

office to discuss matters as a consequence

of a letter of investigation which had been

served upon him by agents for the

Complainant.

Mr. Riggins indicates that the

Respondent, in conversation when inquired as

to whether or not he had performed a roll ir

the vicinity of La Junta, had indicated in

the affirmative that, in fact, he had done

that maneuver. And, of course, his testi-

mony here today concedes that.

The remainder cf Mr. Riggins testimony

deals with the operation limitations of

Aerostar aircraft. Without detailing all of

the serial numbers and such, Mr. Riggins

does indicate that he identified the serial

number of the aircraft from Oklahoma City

registry, had a conversation with Piper

Corporation regarding the serial numbers

with two individuals there, a Mr. Evans and

a Mr. Leeds, and determined, in essence,

that the wording and the operation limita-

Cole

tion, Exhibit A-3, is identical wording for

all Aerostars; that is, acrobatic maneuvers

are not authorized and that this pertains to

all Aerostars such as the one that the

Respondent was operating; that is, that the

limitation as worded in the manual would be

applicable to the aircraft in question,

although the exhibit itself does not bear

the same air frame numbers or serial numbers

on the exhibit.

Respondent was called as an adverse wit-

ness. He indicates that he was, in fact,

operating the aircraft as pilot in command,

had gone to La Junta to assist in the

demonstration of the aircraft which was,

hopefully, to be sold by one of his

~employees, Ms. Sandy Hopkins.

He indicates in his testimony that three

passes were made over the runway and also

that an aileron roll was done at the end of

the passes prior to the departure from the

area.

The witness indicates that he does not

C-i2

remember exactly the altitude over the

ground on the passes down the runway, but

estimates it was between 600 and 1,000 feet,

some variance in the altitude during the

passes. Altitude at the roll he estimated

at between 2,000 and 2500 feet AGL, done at

a distance of about three miles or more from

the airport.

He testifies, as is conceded by Mr.

Riggins, that he has had no prior viola-

tions, Or at least as established in the

uncontradicted: evidence. He indicates that

his livelihood depends on his certificate.

He, in fact, apparently is the owner of

Roach Aviation which is located at Jeffco

Airport and employs about 25 employees.

To the area in dispute, he testifies,

both when called by the Complainant and also

again in his own case-in-chief, that he

never flew over the Flight Service Station

at a altitude of below 500 feet. He indica-

tes that he may have passed over it entering

the area, possibly, at an altitude of about

C-i3

1500 feet; however, there is a specfic

denial of any activity at low altitude

passing over the building housing Venture or

the Flight Service Station.

The Respondent further indicated that no

parachutes were carriec in the aircraft on

this particular flight. He also concedes

that the wording in the Exhibit A-3 is

essentially the same as the wording in the

flight manual which he had for the par-

ticular Aerostar; that is, although he could

not quote the language verbatim, he did not

dispute that the language such as “no aero-

batic manuevers allowed" was essentially the

language contained in both the exhibit and

the manual which he had for his particular

aircraft.

In the Respondent's case, several wit-

nesses were called. Many of these were per-

cipient witnesses. The first of those was

Mr. Robert Jones. He is not a pilot;

however, he has owned aircraft and has been

a passenger in small aircraft for about 400

C-14

hours. He was there for purposes of the

demonstration, since he was considering the

purchase of the Aerostar along with Dr.

Rayburn.

Mr. Jones testified that he observed the

departure after the demonstration flight.

He states that the passes conducted by the

Respondent over the runway were at altitudes

no less than 400 to no greater than 1,000

feet AGL and that he Gid not observe any

operation to be conducted over the structure

containing the Flight Service Station.

With respect to the roll, he did indi-

cate he observed an aircraft roll about two

miles to the west of the airport at an alti-

tude of between 1500 to 2,000 feet AGL.

Mr. Robert Sherrill is now co-owner of

Venture Aviation. He was on the demonstra-

tion flight and present at the time that the

Aerostar departed from La Junta.

He testifies that he was in an aircraft

at the time in question, a Cessna, and was

observing the departure from his position in

C-iS

the air a distance of about three to five

miles away at approximately 1,000 feet AGL.

He states that the passes conducted by

the Respondent looked to him to have been

conducted at approximately 400 to 500 feet

over the runway. With respect to the roll,

he also observed that from a cistance of

about five miles and indicates that in his

estimate the altitude for the roll was bet-

ween 1500 and 1700 feet AGL.

With respect to any lack of amicable

feelings between the parties, he indicates

he never heard Mr. Young say anything par-

ticular to Mr. Roach to indicate feelings,

but that his general impression was that

both Mr. Young and Mrs. Young probably were

adverse to others coming into the local area

to sell aircraft.

Ms. Sandy Hopkins I've already iden-

tified. She's a saleswoman with Roach

Aircraft; she's a pilot. She indicates,

however, that she had only one hour in the

Aerostar, apparently at the time in

C-16

question, and that her total time is

somewhere about two to three hours.

She was along on the trip to La Junta

Since she was the contact person for Roach

who was attempting to sell the aircraft to

the individuals in La Junta. She was on the

ground during the demonstration, since the

demonstration flight was apparently con-

Gucted under the aegis of the Respondent.

Ms. Hopkins indicates that in her

impression that Mrs. Young was cool towards

both her and the presence of Respondent at

La Junta for purposes of selling this

aircraft to local individuals.

Ms. Hopkins indicates that, having

reboarded the aircraft for the departure

from La Junta, that at no time was the

aircraft operated in passes over any

buildings on the airport, and in particular

never over the Flight Service Station.

She indicates, further, that she was

observing the altimeter of the aircraft,

along with airspeed indicator and possibly

C-17

manifold pressure gauges, and states that in

her recollection the aircraft was being

operated between 500 to 700 feet AGL on its

passes over the runway, which she concedes

apparently was for the purposes of

demonstrating the looks of the aircraft

while in flight to the individuals who were

the prospective purchasers.

With respect to the aileron roll, she,

on her testimony, indicates that the roll

was performed by Respondent, she giving the

entry and exit altitudes as being beteen

762 to approximately 1800 feet AGL at the

completion of the maneuver.

With respect to her time in the

Aerostar, I've already indicated that;

apparently it was one hour at the date in

question. She concedes that the aircraft,

since she is familiar with it as a salesper-

son, can be operated by a single pilot. It

is certificated for operation by a single

pilot. Further, that on the date in

question she did not log as pilot or student

C-18

pilot or in any way, apparently, any flight

time with respect to the operations of the

Aerostar.

The Respondent offered an affidavit from

Dr. C. Rayburn. Dr. Rayburn was at the air-

port on the day in question and his sworn

affidavit, which the fact that it is an

affidavit under oath adds somewhat to its

weight, would indicate that Dr. Rayburn, if

present, would testify that he observed

three passes down the center line of the La

Junta Airport and at no time was the

aircraft over the ramp or over the buildings

present on the ramp at that particular air-

port.

He indicates that he did observe a 360

degree roll following the final pass from

the east to west direction as the aircraft

was preparing to depart the airport area.

He estimates the altitude of the aircraft at

that time to be approximately 2,000 feet AGL

That's my view of the pertinent evidence

as Offered in this proceeding. The pro-

C-19

ceeding is conducted under Section 609 of

the Feceral Aviation Act, and in accordance

with the Act and the Board's rules effec-

tuating proceecings, the burden of proof

rests with the Complainant on all issues

raisec by the complaint.

With respect to the issues here, as I

indicated early on there is no dispute that

the Respondent conducted three passes over

the runway 8-26 at La Junta on the date in

question and followed those with the perfor-

mance of an aileron roll prior to his depar-

ture.

It is also not contradicted by the evi-

dence that Ms. Hopkins was on board the

aircraft at the time the aileron roll was

performed. Further, from the testimony

which Respondent gave himself, it is clearly

estabished that the Respondent at the time

in question was acting as pilot in command

of the particular aircraft.

Section 91.79(c) prohibits operation of

an aircraft over other than a congested area

C-20

at altitudes of less than 500 feet above th

surface and within 500 feet of structures,

vehicles, or persons that may be on the

surface; that is, clearly the regulation

does not prohibit merely flight at less thar

500 feet but it must also be in conjunction

with a lateral distance of 500 feet from

structures on the surface.

Here, the stipulation is that the struc-

ture containing Venture Aviation and the

Flight Service Station is at least 1,000

feet from the Runway 8-26. Therefore, the

passes down the runway with respect to this

particular regulation, regardless whether

they were at 10 to 20 feet or at 400 to 500

feet or 600 to 700 feet, are not within the

scope of this resgulation.

The aircraft being over the center line

of the runway or directly over the runway or

slightly to one side would, on the stipula-

tion, put the aircraft at least 1,000 feet

from the structure. There is no other evi-

dence with respect to any other structures

ay |

Or any other persons, other than those men-

tioned as standing right on the steps of

Venture Aviation, so they would be clearly,

if not 1,000 then 975 feet. In any event,

there's no evidence with respect to any

other persons or structures which would

bring the operations over the runway within

the regulatory scope of 91.79.

The sole operation which would, if pro-

ven, fall within this regulation is the

alleged operation over the Flight Service

Station and Venture Aviation. That is the

entire structure, since they're both in the

same building.

The evidence is disputed on this point.

The Complainant urges that the Respondent

operated directly over this structure at an

altitude as testified to by Mr. Roeskae of

about 200 feet. Ms. Young did not give an

altitude, she merely stated that it appeared

lower than usual or sounded like it was

lower than usual.

On the other hand, the Respondent cate-

C-22

gorically denies the operation, his

passenger denies the operation, the indivi

duals on the ramp, as they appear or by

affidavit, deny such an operation. Mr.

Ricken states that he did not hear any

operation such as indicated by Ms. Young.

I must concede that there appears to b

a disarray in the evidence as proffered on

this point by the Complainant. Taking tha

disarray into account, and I must decide

this case on the evidence adduced during t

proceeding and the demeanor of the witness

as they appear to me, bearing all those

things in mind, I simply must conclude tha

the evidence does not rise, in my view, to

sufficient quality of probative, credible

and substantial evidence so as to indicate

the Complainant has carried his burden of

proof with respect to this particular alle

gation.

I, therefore, specifically find that,

upon consideration of the evidence in its

entirety and the requirement that the

C-23

Administrator establish the contention by a

preponderance of the probative evidence to

carry his burden of proof, that he has

failed to do so and that he has not clearly

established to a sufficient degree of credi-

bility that the operation was conducted by

Respondent over the structure.

As I pointed out, the operations over

the runway or the aileron roll do not come

within the scope of 91.79. I, therefore,

find that the Administrator, on con-

Sideration of all the evidence, has failed to

carry the burden with respect to 91.79(c) of

the Regulations.

91.15(c) states, as 1S pertinent, that

"no pilot of a civil aircraft may operate

that aircraft unless each occupant of the -

aircraft is wearing an approved parachute;

that is, no pilot of a civil aircraft

carrying any person, other than a crew

member, may execute any intentional maneuver

that exceeds a bank of 60 degrees relative

to the horizon.

For purposes of this regulation, it

makes no difference where the alleged aerc

batic maneuver is performed. This is not

the same as in 91.7] which prohibits, esse

tially, aerobatic maneuvers at altitudes a

in federal airways. This is a requirement

for carrying a parachute.

On the testimony here, Ms. Hopkins was

in my view, a aaa’ on this aircratt.

She did not log any flight time as either

student pilot or as second in command on

this aircraft. She clearly was not the

pilot in command.

The aircraft, on the uncontradicted ev

dence here, is certificated for operation

a single pilot. I do not feel that the

meaning and intent of this regulation is

averted simply by saying that I assigned

duties to the person who happens to be

riding in the right seat of looking at a

gauge or tuning a radio or following throu

On maneuvers.

That would mean an individual with abs

“22

igh

lutely no time in the aircraft, even one who

is seven years old or six years old, if told

to push the ident button, which I would

assume he could do at that age, would then

not be within the scope of this regulation.

I think the purpose of the regulation,

being one to promulgate safety, that its

clear intent is to require that when an

individual is on board the aircraft in a

status other than a crew member who is per-

forming required crew member duties, that

parachutes must be afforded both to the

pilot and to the individual in compliance

with this regulation.

On the evidence here, it is conceded

that there were no parachutes on board the

aircraft. It is conceded that an aileron

roll was performed on the climbout after the

last pass. This is clearly a maneuver which

exceeds a bank of 60 degrees relative to

horizon.

I, therefore, find that within the

meaning and intent and reasonable interpre-

C-26

tation of the regulation that a violation

has been established by a preponderance of

the credible and reliable evidence of

Section 91.15(c), and I so hold.

Section 91.31l(a) prohibits operation of

civil aircraft without compliance with the

Operating limitations for that aircraft

described by the certificating authority of

the country of registry.

The evidence here indicates that the

aircraft was registered within the United

States. It is also clear, therefore, that

the Federal Aviation Administration; as

being the agency charged by the Congress

wtih dealing with certification of aircraft,

is the certificating authority.

The testimony of Mr. Neal and

Mr. Riggins is admittedly hearsay. Hearsay

is admissible subject to the weight to be

attached to it. The operating limitation of

A-3, as offered and supported by the testi-

mony of Mr. Riggins, is the identical opera-

tion limitation for the particular Aerostar

C27

in question.

The Respondent himself conceded that the

wording in A-3 is, if not verbatim, since he

couldn't recall it verbatim, essentially the

same as that discussed in A-3. Mr. Riggins

indicates that the language is the same. It

would appear that a reasonable inference is

drawn from the Respondent's concession and

the testimony of Mr. Riggins that, in fact,

an operating limitation is contained in the

appropriate manual particular to this

aircraft to the same effect; that is, that

aerobatic maneuvers are not authorized.

An aileron roll is an aerobatic maneuver.

The operating manual is a manual produced by

the builder of the aircraft. It must comply

with the requirements of the Federal

Aviation Administration and the regulations

pertaining to certification and performance

capabilities of the aircraft as contained in

the various parts of the Federal Aviation

Regulations.

Therefore, I feel that the limitation

C-28

ccntained in the manual is applicable, and

so specifically find, to this particular

Aerostar.

With respect to the allegation,

Paragraph 5 of the complaint, it states, a

I quote, “prohibit all aerobatic maneuvers

Of course, the language in the manual says

"unauthorized" rather than "prohibited."

feel we are splitting hairs if we are

talking about prohibited or unauthorized.

It may have been better to use the same

language all the way through. I can see

that possibly with respect to icing one

might want to use stronger language; I don

know.

But be that as it may, I think that if

there is any discrepancy between the

language as cited in the complaint and tha

in the regulation as “not authorized," tha

is essentially a harmless error. I think

the clear intent is conveyed that the

Complainant is alleging that the Responden

operated the aircraft contrary to the

C-29

i 2

operating limitations by performing an aero-

batic maneuver; therefore, he is not

Surprised as to the basis of the regulatory

charge.

I feel, therefore, that upon a prepon-

derance of the reliable and credible evi-

dence, that the Respondent performed a

maneuver which he was not authorized to do,

that it was contrary to the operating limi-

tations for that aircraft. It was not

authorized. Therefore, I find that the

Respondent, by performing his aileron roll,

did operate the aircraft in regulatory

violation of 91.3l(c) of the Federal

Aviation Regulations.

91.9 states that operation of an

aircraft in a careless or reckless manner so

as to endanger the life or property of

another is prohibited. It has been upheld by

the Board and by court, upon review of Board

opinions, that it is sufficient to establish

a regulatory violation here to establish

potential endangerment from a particular

C-30

operation; that is, one must not establish

particular endangerment nor particular

endanqerment to a specific individual or

particular property.

The low passes had no bearing upon

Section 91.79(c); however, I do feel that

the evidence here is that the Respondent

never warned anybody over Unicom nor advised

the Flight Service Station that passes were

going to be performed over this sole active

runway, 8-26.

Assuming even that these were performed

at 500 feet or so, these were lower than

traffic pattern altitude. The Respondent

was performing repeated passes through this

area. An aircraft approaching would not

have been aware of that, unless he saw the

aircraft. And if he happened to be in a

blind spot either for his aircraft or the

Respondent's, he would have, to his

Surprise, found an aircraft operating down

the central line of the runway somewhere bet-

ween 400 to 700 feet, at least below pattern

C-31

altitude.

Also, we have the aileron roll without

parachutes being on board. I feel that upon

the evidence here and also the operation of

the aircraft contrary to the operating limi-

tation, that is the aircraft has not

jemonstrated that it is capable of per-

forming aerobatic maneuvers, iS not cer-

tificated for the performance of aerobatic

maneuvers, that the operation was a careless

operation in that it at least potentially

endangered the life or property of another;

that is, possibly the life of Ms. Hopkins if

something untoward had occurred; the pro-

perty, the aircraft itself, or if something

had happened to the aircraft on one of the

passes, possibly people or structures if the

1ircraft had gone out of control.

I, therefore, find that, upon the law

and the evidence, that a violation of 91.9

of the Regulations has been established, and

I so find.

With respect to sanction, there has been

C-32

a failure of proof with at least one of the

charges. It is to be assumed that the sanc-

tion sought by the Administrator is based

4 upon the consideration of all of the regula-

tory violations being established.

Taking that into account and the fact

that generally the Board views 91.9 as being

a lesser included offense; that is, one

which is inferentially established by viola-

tion of the primary regulatory violations,

and further, that with respect to perfor-

mance of aerobatic maneuvers in vicinities

of airports or when an individual is aboard

the aircraft with no parachute, such as in

the case of Administrator v. “VanDusen", 2

NTSB 2479 (1976), regulatory suspensions

ranging from 30 days up through 180 days

have been given, I feel that that

Administrator's order of suspension must be

modified.

With respect to the consequences of the

action upon the Respondent, it is clear from

prior actions brought by the Administrator

C-33

and decided by the Board that the Board, in

considering items in litigation, has clearly

held repeatedly that the absence of regula-

tory violations in a pilot's flight history

is not a matter for mitigation. It is

expected that pilots will conform with the

requirements of the Federal Aviation

Regulations and that, accordingly, any pilot

should present with a clear record.

Further, the Board has pointed out

repeatedly, such as in the case of

Administrator v. Buck, 1 NTSB 176 or

Administrator v. Green, 1 NTSB 276, and in

the case of Administrator v. Whittaker, that

while the Board may recognize there may be

adverse economic consequences on a respon-

dent as a result of an order lodged against

him, even that of revocation where he loses

his certificate, that that is not a para-

mount consideration; rather, that the public

safety is the paramount issue; that is, eco-

nomic consequences do not in and of them-

selves prohibit imposition of a sanction.

C-34

Taking all those factors into account

and giving some credit, in fact, to the fac

that the Respondent does have a long histor

in aviation, I feel that it is sufficient t

assure compliance with the regulations in

the future, to deter others that may be

Similarly situated, and to promulgate safet

to modify the Administrator's order to pro-

vide for a suspension of 30 days and that i

what I will order.

ORDER

It is, therefore, ordered that:

1. The Administrator's order of suspen

sion be and the same hereby is modified to

provide for a suspension of 30 days instead

of 60 days.

2. That the Respondent's commercial

pilot certificate No. 331204 be, and the

same hereby is suspended effective eleven

days from this date, such suspension to con

tinue in force and effect for a period of 3

days after the certificate shall have been

physically surrendered to the Complainant.

y.. Se

3. Respondent shall surrender cer-

tificate either by personal delivery to an

authorized representative of the

Administrator or by placing the certificate

in the United States mail, postage pre-paid,

and properly addressed to an authorized

representative of the Complainant.

4. If the Respondent surrenders his

certificate on or before the effective date

of this order, the period of suspension

shall commence to run as of the actual date

of surrender. However, if the Respondent

fails to surrender his certificate on or

before the effective date of this order, the

period of suspension shall commence when the

certificate is physically in the possession

of the Complainant and for the period spe-

cified herein.

Issued this 23d day of March, 1982, at

Denver, Colorado.

Patrick G. Geraghty

Administrative Law Judge

APPEAL

Any party to this proceeding may appeal

from this decision and order by filing with

the Board a notice of appeal within ten days

following this date. The appeal must be

perfected within 40 days following this date

by filing with the Board a brief in support

of that appeal. Appeals may be dismissed by

the Board in cases where the party fails to

perfect his appeal by the timely filing of a

brief. The parties" attention is directed

to the Board's Rules of Practice in air

safety proceedings, the section dealing with

appeal briefs, for further information con-

cerning appeals.

An original and four copies of each

document must be filed with the National

Transportation Safety Board, Docket Section,

Office of Administrative Law Judges, Room

822, Washington, D.C. 20594, with a copy of

each document served upon the other party.

If the Board on its own motion does not

elect to review this decision and order, the

C-37

decision and order shall become final.

Further, in the absence of an appeal that is

perfected by the Respondent within the time

provided herein, the decision and order

shall become final. The timely filing of an

appeal and its perfection by the filing of

the brief shall, however, stay the order in

this decision pending the outcome of that

appeal.

SERVICE: JOSEPH A. ROACH

P. O. Box 20353

Denver, Colorado 80220

Le B. ULLSTROM, ESQ.

& ROBERT P. SMITH, ESQ.

Suite 400

601 Broadway Office Building

Denver, Colorado 80203

PETER R. LAYLIN, ESQ.

Office of Regional Counsel,

Federal Aviation Administration

10455 East 25th Avenue

Aurora, Colorado 80010

NOVEMBER TERM - January 8, 1988

Before Honorable William J. Holloway, Jr.,

Chief Judge, Honorable Robert H. McWilliams,

Honorable Monroe G. McKay, Honorable James

K. Logan, Honorable Stephanie K. Seymour,

Honorable John P. Moore, Honorable Deanell

R. Tacha and Honorable Bobby R. Baldock,

Circuit Judges.

JOSEPH A. ROACH

Petitioner,

vs. No. 83-1549

THE NATIONAL TRANSPORTATION

SAFETY BOARD,

eee eee ee eee

Respondent.

This matter comes on for consideration

of the petition for rehearing and suggestion

for rehearing en banc filed by the petition-

er in the captioned cause.

Upon consideration whereof, the petition

for rehearing is denied by the panel to whom

the case was argued and submitted.

The petition for rehearing having been

denied by the panel to whom the case was

argued and submitted and no member of the

panel nor judge in regular active service on

the court having requested that the court be

polled on rehearing en banc, Rule 35,

D-1

Federal Rules of Appellate Procedure, the

suggestion for rehearing en banc is denied.

ROBERT L. HOECKER, Clerk

APPENDIX E

14 C.F.R. 8 91.79(c): $91.79 Minimum

Safe Altitudes; general.

An altitude of 500 feet above the sur-

face except over open water or sparse-

ly populated areas. In that case, the

aircraft may not be operated closer than

500 feet to any person, vessel, vehicle,

Or structure.

APPENDIX F

14 C.F.R. 8 3l1l(a): $91.31. Civil air-

craft operating limitations and marking

requirements.

(a) Except as provided in paragraph (d)

of this section, no person may operate a

civil aircraft without compliance with

the operating limitations for that air-

craft prescribed by the certificating

authority of the country of registry.

APPENDIX G

14 C.F.R. 8 91.15(c): 891.15 Parachutes

and parachuting.

craft is wearing an approved parachute,

no pilot of a civil aircraft, carrying

any person (other than a crewmember) may

execute any intentional maneuver that

exceeds - (1) A bank of 60 degrees rela-

tive to the horizon, or-

APPENDIX H

14 C.F.R. § 91.9: 891.9 Careless or

reckless operation

No person may operate an aircraft in a

careless or reckless manner so as to en-

danger the life or property of another.

APPENDIX I

49 U.S.C. 8 1301, definition of “Air

Commerce"

"As used in this Act, unless the con-

text otherwise requires-

(4) ‘Air commerce’ means interstate,

overseas, Or foreign air commerce or the

transportation of mail by aircraft or

any operation or navigation of aircraft

within the limits of any Federal airway

Or any operation or navigation of air-

craft which directly affects, or which

may endanger safety in, interstate,

overseas, or foreign air commerce."

APPENDIX J

49 U.S.C. 8 1429, Reinspection or

reexamination; amendment, suspension,

Or revocation of certification.

"(a) Procedure; notification; hearing;

appeal to National Transportation Safety

Board; judicial review. The Administra-

tor may, from time to time, reinspect

any Civil aircraft, aircraft engine,

propeller, appliance, air navigation

facility, or air agency, or may reexa-

mine any Civil airman. If, as a result

of any such reinspection or reexamina-

tion, or if, as a result of any other

investigation made by the Administrator,

he determines that safety in air com-

merce or air transportation and the

public interest requires, the Admini-

strator may issue an order amending,

modifying, suspending, or revoking, in

whole or in part, any type certificate,

production certificate, airworthiness

certificate, airman certificate, air

carrier operating certificate, air

navigation facility certificate (inclu-

ding airport operating certificate), or

air agency certificate. Prior to amen-

ding, modifying, suspending, or revoking

any of the foregoing certificates, the

Administrator shall advise the holder

thereof as to any charges or other rea-

sons relied upon by the Administrator

for his proposed action and, except in

cases of emergency, shall provide the

holder of such a certificate an oppor-

tunity to answer any charges and be

heard as to why such certificate should

not be amended, modified, suspended, or

revoked.”

APPENDIX K

5 U.S.C. 8 557 (c), Administrative

Procedure Act.

“Before a recommended, initial, or ten-

tative decision, cr a decision on agency

review of the decision of subordinate

employees, the parties are entitled to a

reasonable opportunity to submit for the

consideration of the employees partici-

pating in the decisions -

(1) proposed findings and conclusions;

(2) exceptions to the decisions or

recommended decisions of subordinate

employees or to tentative agency decis-

ions and

(3) supporting reasons for the excep-

tions or proposed findings or conclu-

sions. The record shall show the ruling

on each finding, conclusion, or excep-

tion presented. All decisions, includ-

ing initial, recommended, and tentative

decisions, are a part of the record and

shall include a statement of --

(A) findings and conclusions, and the

reasons or basis therefor, on all the

material issues of fact, law, or discre-

tion presented on the record; and

(B) the appropriate rule, order, sanc-

tion, relief, or denial thereof."

APPENDIX L

Constitution of the United States, Arti-

cle 1, Section 8, Clause 3, Commerce

Clause.

"To regulate commerce with foreign

nations, and among the several states,

and with the Indian tribes:"

APPENDIX M

United States Constitution, Fifth Amend-

ment:

"No person shall be held to answer fo:

a Capital or other infamous crime unles:

on a presentment or indictment of a

grand jury, except in cases arising in

the land or naval forces, or in the

militia, when in actual service, in tim

of war or public danger; nor shall any

person be subject for the same offence

to be twice put in jeopardy of life or

limb; nor shall be compelled in any

criminal case to be a witness against

himself, nor be deprived of life,

liberty, or property, without due pro-

cess of law, nor shall private property

be taken for public use without just

compensation."

M-1

eee, ee, ee et

Ds iii

APPENDIX N

49 U.S.C. 8 1301, definition of "Inter-

state Air Commerce".

(23) “Interstate air commerce,"

"overseas air commerce," and "foreign

air commerce," respectively, mean the

Carriage by aircraft of persons or pro-

perty for compensation or hire, or the

carriage of mail by aircraft, or the

operation or navigation of aircraft in

the conduct or furtherance of a business

Or vocation, in commerce between,

respectively --

(a) a place in any State of the United

States, or the District of Columbia,

and a place in any other State of the

United States, or the District of

Columbia; or between places in the

same State of the United States

through the airspace over any place

outside thereof; or between places in

the same Territory or possession of

the United States, or the District of

Columbia;

(b) a place in any State of the United

States, or the District of Columbia,

and any place in a Territory or

possession of the United States; or

between a place in a Territory or

possession of the United States, and a

place in any other Territory or

possession of the United States; and

any place outside thereof; whether

such commerce moves wholly by aircraft

or partly by aircraft and partly by

other forms of transportation.

CERTIFICATE OF SERVICE

I, L. B. Ullstrom, the attorney for the

petitioner herein, and a member of the Bar

of the Supreme Court of the United States,

pursuant to Rule 28.2, hereby certify that

on the 25th day of February, 1988, I

served copies of this Petition for Writ of

Certiorari to the United States Court of

Appeals for the Tenth Circuit, by mailing

copies in a duly addressed envelope, with

first class postage prepaid, to the

following attorneys of record:

Darlene M. Freeman

Chief, Enforcement Proceedings Branch,

AGC-250

Office of the Chief Counsel

Federal Aviation Administration

800 Independence Avenue, S.W.

Washington, D.C. 20591

Peter Laylin, Esq.

Attorney for the Administrator

Office of Regional Counsel

Federal Aviation Administration

17900 Pacific Highway South

C-68966

Seattle, Washington 98168

John M. Stuhldreher, General Counsel

Office of General Counsel

National Transportation Safety Board

Washington, D.C. 20594

ATTN: Ralph Maxwell, Docket Section

ZO Chabon

Ik B. Ullstrom

polishes. Tech Center, #211

2801 Youngfield

Golden, Colorado 80401

(303) 239-9829

CERT-1

STATE OF COLORADO ,.

COUNTY OF JEFFERSON ) ss.

SUBSCRIBED and sworn to before me this

QS day of February 1988.

My Commission expires: S-7S-58

Qouchua! Fan

Notaty Public

Address: JO! Voor efretd

Cre(den, Co SO”O/

CERT-2

AFFIDAVIT OF MAILING

I, L. Berwyn Ullstrom, attorney for the

petitioner herein, and a member of the Bar

of the Supreme Court of the United States,

hereby certify that on the 25th day of

February, 1988, I deposited 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 Certiorari To The

United States Court Of Appeals For The Tenth

Circuit.

kb byr~

L. Bérwyn Ullstrom

Applewood Tech Center, Suite 211]

2801 Youngfield Street

Golden, CO 80401

(303) 239-9829

Attorney for Petitioner

STATE OF COLORADO )

} 88.

COUNTY OF JEFFERSON )

SUBSCRIBED AND SWORN to before me at

Golden, Colorado, this AS day of

Februar 1988. ity

yny ae 6S1ON CE PILES . 2-235-868

Se ae ce re (AA

Notary Public —

Address: D201 YourqaAnaxod

Crelderw, Co GOYol

AFF-1

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