# Petition for Writ of Certiorari — Roach v. National Transportation Safety Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1422%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1988 - **Citation:** 486 U.S. 1006 ## Text 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. ii TABLE OF CONTENTS Questions Presented ......« e List of Pertties «xss 6. 2-3 es Table of Contents cha s =. «% aoe! SS fable of Authorcities ny e 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). vi PAGE i ae 24 14 24 24 13 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 .+ 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 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, Ve 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. T le ? 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 > 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. A. 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. 2) 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 B. 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. 16 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). ys 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 Ot Ch dt 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 8 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 oO 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. IV 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. 38 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. B. 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 10 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. 43 > | 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- ay 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 12 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 ] r rr '% , i ] ° ; a4 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 Q 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 4 + 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 vl 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. (c) Over other than congested areas. 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. * * * * * * (c) Unless each occupant of the 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) 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 VU Vi 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 he es o 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 nd 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 id i 2 it 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. (c) Over other than congested areas. 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. (c) Unless each occupant of the air- 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; or (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 (c) a place in 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1422%3A1. Public record. Not legal advice.