Petition for Writ of Certiorari — Tearney v. Administrator, Federal Aviation Administration

Supreme Court brief1989

Ask Donna

What actually matters in this document.

Text

t\ | ce eee

so-big

No.

IN TEE

SUPREME COURT OF THE UNITED STATES

October Term, 1989

BARNEY J. TEARNEY Petitioner,

Vv.

ADMINISTRATOR, FEDERAL AVIATION

ADMINISTRATION, and NATIONAL TRANS-

PORTATION SAFETY BOARD, Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Lawrence B. Smith

3938 E. Grant Rd., #191

Tucson, Arizona 85712

(602) 326-0283

Counsel for Petitioner

September, 1989

QUESTIONS PRESENTED

1. Do Chenery II and Bell Aerospace

provide a regulatory agency like the Feder-

al Aviation Administration (FAA) with the

unlimited choice of making or amending air-

safety rules either by adjudication or by

Administrative Procedure Act (APA) public

notice and comment procedures, as the Fifth

Circuit has held here, or is this judicial-

ly created exception to APA rulemaking

requirements limited to the narrow situa-

tion where an agency is interpreting broad

mandates in its charter and applying them

to specific fact situations, as exemplified

in District of Columbia Circuit decisions

and other circuits?

2. In the face of the constitutional

prohibition that Cengress may not delegate

to the executive branch its Art. 1, § 1

legislative power to create benefits or

penalties, and the APA § 9 mandate (which

codifies it) that any such delegation must

be in plain language, is the term “public

interest.” without more, sufficiently defi-

nite to support a claim by the Federal

Aviation Administration that it may suspend

or revoke pilots’ licenses as a penalty for

safety violations?

3. Does the FAA’s claim that it has

authority to order suspension or revocation

of a pilot’s license as punishment for the

violation of a safety rule, affording only

administrative trial--rather than using the _

statutory civil-penalty-jury-trial system

of justice--which claim is based upon a

loose interpretation of the term “public

interest,” violate the letter and spirit of

the APA because the agency has failed to

promulgate this separate system of justice

through APA public notice: eit comment proc-

edures, even failed to publish its inter-

pretation in the Federal Register?

ieee ae

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..........cccceeeeees i

esc c acs ctacceccece 1

ie. scene nccncccccenin 1

STATUTES INVOLVED ......... Ce Ce

- STATEMENT OF THE CASE .........--..ee0ee- 3

REASONS FOR GRANTING THE WRIT ...........10

Exceptional Importance ............... 10

I. FAA failure to publish or promulgate

taxi-standing rule violates APA and

BOGUAWOR GAGMABGRL 2. vecccisccsccccec. 13

A. Chenery II and Bell Aerospace

case-by-case adjudication not

applicable eeeereeeeeeeeenstseeeteeseeee8 @ 16

B. FA Act and FAA orders mandate

that APA public notice and

comment procedures be followed ...22

II. “Public interest” unconstitutional

basis for license penalties ......... 26

A. Congress may not delegate its

legislative power ........220002++29

B. APA requires specific delegation

ep EW ccc cccccccccce 30

III. FAA failure to publish or promulgate

license-penalty policy violates APA and

UE EEE, cect ccc ccccccccccccces 38

CONCLUSION ........ Se ee ee 46

and Judgment of Court of Appeals;

Opinion and Order of National Trans-

portation Safety Bd., statutes,

rules, exhibits, etc., ... a-1 to a-110

APPENDIX (separately bound) Opinion |

}

AUTHORITIES CITED

Cases:

Am. Standard, Inc.. v. U.S., 602 F.2d

256 (U.S.Ct. of Claims 1979) ......... 45

Appalachian Power Co. v. Train,

566 F.2d 451 (4th Cir. 1977) ......... 44

Chisholm v. F.C.C., 538 F.2d 349 (D.C.

Cir.), cert. denied, 429 U.S. 890

(1976) re are reer oe an Hee ae ee ee ea See ee

Connally v. General Construction Co.,

269 U.S. ~385 (1926) eeeeeeersesgres#tiee#eee#er#sese#er#e#e 35

Environmental Defense Fund, Inc. v. Gor-

such, 713 F.2d 802 (D.C. Cir. 1983) ..45

Global Van Lines v. ICC, 714 F.2d

APO. . SO GAs BOGS) i Wi cde Sowdn ccs. 37

Go Leasing, Inc. v. NTSB, 800 F.2d 1514

(9th Cir. 1986) eeeeseeesresgrsrterersererenerteeeeeese 37

Grayned v. City of Rockford, 408 U.S.

104 (1972) eeeeoereeeeegerPenteeeee#ee#ee#ee##e#e#teee# 35

Hard v. C.A.B., 248 F.2d 761 (7th Cir.),

cert. denied 355 U.S. 960 (1957) ..... 36

Jensen v. Adm’r of Federal Aviation

Administration, 641 F.2d 797, vacated

680 F.2d 593 (9th Cir. 1982) ......... 37

Komjathy, NTSB Order No. EA-2343,

BB-G04S, JUAS 34, BOOB cc vecesdicecsss 36

Komjathy v. NTSB, 832 F.2d 1294 (D.C.

Cir.), Gore. denied, U.S. 108

S.Ct. 2825, 100 L. Ed. 2d 926 (1988) 0236

Morton v. Ruiz, 415 U.S. 199 (1974) .....44/

Nader v. Butterfield, 373 F. Supp.

ARTS CBcB.C. BOTS) ccoccccccccccscscesecad

NLRB v. Bell Aerospace Co., 416 U.S.

267 (1974) eocccccccccccc ec d4,16,18,19,26

NLRB v. Wyman-Gordon Co., 394 U.S.

759 (1969) ee raw ow eR eee eee eeeere#ss 24

Northern California Power Agency v. Mor-

ton, 396 F.Supp. 1187 (D.D.C.), aff-

irmed 539 F.zd 243 (D.C. Cir. 1976) ..44

Pangburn v. C.A.B., 311 F.2d 349

(lst Cir. 1962) eeeeesesseneneeeesneseneeeeetee#ee##e*# 37

Pastrana v. United States, 746 F.2d 1447

(11th cir. 1984) ee #eeesee3s5ee#e#eee#ee#eee#eee#ee#ee#e#@*# 35

Pike v. C.A.B., 303 F.2d 353 (8th

Cir. 1962) eoeeeerernrteereeeeenenseteneeeeeetees#kse#se#te#e#*# >:

SEC v. Chenery Corp., 332 U.S. 194

(1947) (Chenery II) ...14,15,16,17,19,26

Tearney v. NTSB, 868 F.2d 1451, (5th

Cir. 1969) ...2.02.-24,15,21,33,35,36,42

United States v. Eaton, 144 U.S. 677

(1892) e*eeee#ee. ee ees#e5s+ee#e#eeeeees e*eerwvee#ef ef © @ @ 29

United States v. Gordon, 580 F.2d 827 -

(Sth Cir.), cert. denied, 439 U.S.

eee 22). aaa 29

United States v. Grimaud, 220 U.S. 506

TET Vek wh Nckcnene seas be de —ewees ss

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

denied, 355 Uele 870 (1957) Sees eee ces®

Statutes:

Administrative Procedure Act, 5 U.S.C.

§§ 551-559, 702-706 (1982):

§ 552(a)(1) ...----.-3,15,26,39,41,42,44

§ 553 wccccceeccccvvcccseeee 3, 14,15,26,41

§ SSB ccc cc crccccvevcccceccsccese dyed, 30

§ 706 wc cccnccceccccccceceed, 20,38,41,42

Federal Aviation Act of 1958, as amended,

49 U.S.C. app. §§ 1301-1552 (1982):

1348 (§ 307) TEEERPELRELELEREE EET SP Oey ft.

1421 (§ 601 TEPEREEELELESEEE ETERS YT o.

oiwon mM

1429(a) (§ 609) ..1,2,3,22,23,27,36,38

& 1471 (§ 901) eeereeeee ee eee eos e ee ee 3,32

§ 1473 (§ 903) eceoeeee eee eee ee eeeeee 3,32

Independent Safety Board Act of 1974:

49 U.S.C. app. § 1903 (1982) .......3,23

Regulations:

Department of Commerce, Air Commerce

Regulations: § 74(A), (F) (1926) ...3,41

Civil Aeronautics Regulations: 14 C.F.R.

§§ 20.371 & 20.37110 (1938) ........3,41

Federal Aviation Regulations, 14 C.F.R.

Parts 1-199 (1988):

§ 13.19 Cocccccccccceeeeeeseenesedyg Seg ce

SB DLeD coccccccccccveccccccecccccceseed

aL CeTITieTeree ri eiters t .

§ 121.542 cameeeteecadd ov30ei ik eevee 3,20

§ 121.543 wcccccceccecececes eoccccseee es sO

GS LS BES cccccceccecccccccesescecsecves 20

ers Sy Srerrererrerereerererereeeenere sai 20

G 121.54S cccccccccccecveccescccccscceces 20

GS 121.549 wcccccceccvecccccece eoccccccece 20

BS BSReOOD cece edeccccscsccsecccccces 3,13

Miscellaneous:

FAA Action Notice, A~8430.6,

a | | Sree WeETTELTCTT 21

FAA Rulemaking Policies, FAA Order

SR PERE) ~os cwrees oe cee eesncecsecce 24

Compliance and Enforcement Program,

FAA Order 2150.3 (1980) ........... 18,40

Manual of Procedures 22, Bureau of Fli-

ght Standards, Federal Aviation Agen-

cy, Enforcement Authority (1960) ..... 39

ee 13

S. Rep. No. 248, 79th Cong., 2d Sess.

(1946) [APA iegis. hist.] ......... 25,31

Smith, FAA PUNITIVE CERTIFICATE SANC-

TIONS: THE EMPEROR WEARS NO CLOTHES;

OR, HOW DO YOU PUNISH A PROPELLER?,

14 Transp. L.J. 59-100 (1985) .....33,40

vii

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1989

BARNEY J. TEARNEY Petitioner,

Vv.

ADMINISTRATOR, FEDERAL AVIATION

ADMINISTRATION, and NATIONAL TRANS-

PORTATION SAFETY BOARD, Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner Barney J. Tearney respect-

fully prays that a writ of certiorari issue

to review the judgment and opinion of the

United States Court of Appeals for the

Fifth Circuit, entered in this proceeding

April 4, 1989, order denying Rehearing and

Rehearing En Banc entered May 12, 1989.

OPINIONS BELOW

The opinion of the Court of Appeals for

the Fifth Circuit is reported at 868 F.2d

1451, and reprinted in the appendix. (a-39)

The Opinion and Order of the National

Transportation Safety Board (NTSB), not yet

reported, is reprinted in the appendix (a-

22), as is the administrative law judge’s

(ALJ) oral initial decision, which it af-

firmed. (a-5)

JURISDICTION

The Federal Aviation Administration ini-

tiated an enforcement action against petit-

ioner under 49 U.S.C. app. § 1429(a) by

first serving him with a Notice of Proposed

Certificate Action dated February 26, 1986,

then by serving him with an Order of Suspe-

nsion dated July 9, 1986 (a-1) which or-

dered a 7-day suspension of his Air Transp-

ort Pilot license as punishment for an

alleged safety violation. Under § 1429(a),

he appealed to the NTSB and hearing was

held by the ALJ on January 30, 1987, who

affirmed the suspension, with the final

Board order, also affirming, entered June

17, 1988.

Capt. Tearney petitioned the Court of

Appeals for the Fifth Circuit for review

under 49 U.S.C. § 1486. That court entered

a judgment and opinion affirming the NTSB

order on April 4, 1989; an order denying a

petition for rehearing and rehearing enbanc

was entered May 12, 1989. Order A-8 extend-

ing time for filing a petition for a writ

of certiorari, dated July 11, 1989, was

signed by Associate Justice Byron R. White.

The jurisdiction of this Court to review

oer me

the judgment of the Fifth Circuit is in-

voked under 28 U.S.C. § 1254(1).

STATUTES INVOLVED

The statutes and regulations directly

relevant to the issues are here listed,

with the pertinent portions of their text

set forth in the appendix:

Administrative Procedure Act, 5 U.S.C.

§§ 551-559, 702-706 (1982): §§ 551(4),

552(a) (1), 553, 558, 706.

Federal Aviation Act of 1958, as amend-

ed, 49 U.S.C. app. §§ 1301-1552 (1982): §§

1348, 1421, 1429(a), 1471(a)(1) & (2),

1473(a) & (b)(1), and § 1903(a)(9) (NTSB).

Federal Aviation Regulations, 14 C.F.R.

LEP TRE NT ntti ea OE

Parts 1-199 (1989): §§ 13.19, 91.9, 121.-

| 311, 121.542, 121.589.

Dept. of Commerce, Air Commerce Regula-

tions, §§ 74 (1926). Civil Air Regulations,

14 C.F.R. §§ 20.371 & 20.37110 (1938).

STATEMENT OF THE CASE

Background -- During the period 1971 to

Phang,

1983, Southwest Airlines (SWA), based in

Dallas, Texas, carried 56,000,000 pas-

sengers. During that time, to effect more

efficient utilization of its (now $25 mil-

lion per copy) aircraft, its practice was

to pushback from the gate with a tug, start

engines ahh wield pull away, although a

few persons might still be standing for a

few moments while locating carryon luggage

in the overhead, putting a raincoat away,

etc. (Exh. F, a-99)

Not only did Southwest never have an

incident or injury to any passenger, there

is no evidence that any such event has ever

occurred on any other carrier, some of whom

also engaged in the same practice. (Exh. F,

a-99)

In January 1983 the FAA Principal Opera-

ting Inspector for SWA wrote to its presi-

dent and told him that the agency con-

sidered the practice unsafe. He cited no

Federal Aviation Regulation (FAR) as being

violated. (Exh. D, a-94) The company demur-

red. Then during late 1984 or early 1985

the FAA Southwest Region’ initiated enfor-

cement actions against several SWA pilots

for taxiing with one or more passengers

still standing. (Exh. I, a-105)

This was a ploy to pressure the company

into changing its policy. It did. But only

by posting an informal memorandum telling

its pilots that the FAA was going to treat

taxiing with passengers standing as a per

se violation of its “careless or reckless”

rule. (Exh. H, a-104) With that, Southwest

| regional counsel dropped all the pending

violation actions. (Exh. I, a-105)

The Administrator, himself, also wrote

to the company president, but neglected to

cite any regulation as being violated.

(Exh. E, a-96) In response to the presi-

1 FAA has nine U.S. regions: Alaskan, Central,

Eastern, Great Lakes, New England, Northwest Moun-

tain, Southern, Southwest, Western-Pacific.

dent’s answer (Exh. F, a-99), the Adminis-

trator assured him that he was “taking all

appropriate measures to standardize agency

action.” (Exh. G, a-102)

Over the next two years FAA officials

received complaints in some ten additional

cases from individuals who evidently belie-

ved there was some rule against it. This

apparently convinced these officials that

the company memorandum was not doing the

job. So they again brought niteinnce~<hiy

now, May 1987--to formally change its flig-

ht eperations manual. The company ac-

quiesced and did so. |

The pressure FAA officials used was

this: They took case number ten, which they

had not yet initiated as an enforcement

action, by now four months after the al-

leged incident, and the second case against

petitioner (Tearney II)*, and on May 18,

* It was later dropped for lack of evidence,

after the complaining witness was deposed.

a a ee ee ee ee eee aes

1987, issued an emergency order revoking

his Air Transport Pilot (ATP) license.?

(Exh. A, a-82)‘

As compelling evidence that this was

just a ploy, on May 21, just three days

later, these same officials withdrew the |

emergency order (Exh. B, a-87) and proposed

in its stead a 180-day suspension.* (Exh.

C, a-90)

Issues -- The issues petitioner raises

are strictly legal:° (1) The safety “rule”

3 It was well-known at SWA that the Director

of the Southwest Region called the president and

threatened that, unless SWA changed its flight

operations manual, everytime the FAA got a taxiing

complaint they would immediately issue an emergency

revocation order against the captain. Aside from the

impact on the individual, this of course causes any

airline serious inconvenience.

* This order allowed him to exercise commercial

privileges, which meant he could fly as first-officer

for one year, a significant wage loss, and then would

have to retake the ATP written exam and a flight test

in a Boeing 737, at a cost of thousands of dollars.

5 Since this order did not leave him commercial

privileges so that he could fly right seat, it

threatened Capt. Tearney with a wage-loss of $50,000.

~ © Capt. Tearney adamantly denied the charge. Of

more than a dozen cases, to our best knowledge, only

(continued...)

he was charged with violating, as required

by the Administrative Procedure Act (APA),

has neither been published in the Federal

promulgated through public notice and com-

ment procedures so that it may be found in

the Code of Federal Regulations. These

failures bar this action. >

(2) The FAA claims that § 609 of the

Federal Aviation Act of 1958, as amended

(FA Act), authorizes it to suspend or revo-

ke a certificate anytime its officials deem

it to be in the “public interest.” No lan-

guage in that act so much as hints that

suspensions or revocations may be used as a

penalty. On its face, the agency’s claim,

means that it has created license penalties

itself. Consequently, regardless of what

Congress may have intended (there is ab-

6(.. .continued)

one captain admitted he'd knowingly started to taxi

with a passenger still standing.

solutely no evidence it ever intended to

grant such wide open power), this claim

violates the constitutional prohibition

that Congress may not delegate its legisla-

tive authority to create benefits or penal-

ties. It also violates Section Nine of the

APA, which codifies that principle and

mandates that no penalty may be imposed by

an agency unless specifically spelled out

by its basic charter.

(3) Even assuming, arguendo, it to be

valid, this claim of authority, constitutes

a statement of general policy and/or an

interpretation of § 609 of general ap-

plicability formulated and adopted by the

agency. As required by the APA, the policy

has neither been published in the Federal

notice and comment procedures as a substan-

tive matter so that it may be found in the

Code of Federal Regulations. These failures

bar this action.

The great mystery is why FAA officials

did not simply amend their air-carrier

rule, one that directs that all persons on

board should be in their seats with belt

fastened during takeoff and landing, to

include taxi. The answer, unquestionably,

is that they wanted to avoid the hassle of

APA rulemaking, and were sensitive to their

lack of supporting evidence.

REASONS FOR GRANTING THE WRIT

Exceptional Importance

I. Making airsafety rules--rules of the

road--by adjudicating that it is proper for

the FAA to announce the new policy by let-

ter to an individual airline assails the

letter and spirit of the Administrative

Procedure Act. In ratifying such a procedu-

re, the Fifth Circuit has strained the

rationale laid down in the landmark cases

of Chenery II and Bell Aerospace beyond the

breaking point: It has squarely held that

the FAA in making airsafety rules has the

unfettered option of doing so either by

adjudication, or by following APA public

notice and comment procedures. Put another

way, in any rulemaking situation, the agen-

cy may decline to follow APA procedures.

Petitioner does not question the hold-

ings in Chenery II and Bell, but suggests

that if they are so easily misunderstood,

with such drastic consequences as depriving

a citizen of his right to earn a living,

and serious implications for airsafety in

general, the time is ripe for the Court to

redefine in plain language the exception to

APA rulemaking they carve out and instruct

that it should be very narrowly construed,

indeed.

II. About one million citizens, pilots,

mechanics, flight engineers, air-taxi oper-

ators, repair stations and air carriers

hold certificates issued by the FAA. Per-

haps 250,000 of them, or more, rely on

their license for their livelihood, and

several hundreds of thousands owe their

employment to an operator’s right to do

business.

Annually, at least two to three thousand

airmen, mostly pilots, but a growing number

of small operators, have their licenses

suspended for periods of up to one year, or

wiped out by revocation.

To have the FAA put people out of work,

ruin careers, cause enormous hardship, by

imposing suspensions and revocations as

penalties, based solely on the claim that

it may do whatever its officials deem to be

in the public interest, is anomalous. The

more so, when on its face this violates the

fundamental constitutional principle that

Congress may not delegate its iegislative

power to create benefits or penalties,

which Congress itself saw fit to codify in

plain language in the APA, so there’d be no

mistake about it.

III. It is probably the greatest open

secret in government: No statute or rule so

much as hints that the FAA may impose susp-

ension or revocation of a license as pun-

ishment for the violation of a safety rule,

and substitute a one-man administrative

hearing for the statutory right to trial by

jury. Nothing, not even a statement of

policy published in the Federal Register.

I. FAA failure to publish or promulgate

taxi-standing rule violates APA and

requires dismissal.

The holding below is unequivocal. After

acknowledging that the FAA only recently

promulgated “through formal rulemaking a

regulation concerning carry-on luggage. .

.”,’ the Fifth Circuit said:

That the FAA could have promulgated its

taxiing rule through formal rulemaking

does not mean that it should have done

so. The FAA has broad discretion to

proceed via formal rulemaking or on a

case-by-case basis when it addresses

safety concerns. As we held in Miranda

v. National Transportation Safety Boa-

7 14 C.F.R. § 121.589; See 52 Fed.Reg. 21476

(1987). This rule, inter alia, prohibits closing the

boarding door until all carryon luggage has been

properly stowed.

rd,* in choosing the latter method it

committed no error.

Tearney v. NTSB, 868 F.2d 1451, 1453 (5th

Cir. 1989) (emphasis added) (@M@ME).° It

cites SEC v. Chenery Corp., 332 U.S. 194,

203 (1947) (Chenery II), saying it “unequi-

vocally stated that an”

agency must retain power to deal with

the problems on a case-to-case basis if

the administrative process is to be

effective. There is thus a very definite

place for the case-by-case evolution of

statutory standards. And the choice made

between proceeding by general rule or by

individual, ad hoc litigation is one

that lies primarily in the informed

discretion of the administrative agency.

868 F.2d at 1453 (emphasis added) (im).

It cites NLRB v. Bell Aerospace Co., 416

8 866 F.2d 805 (Sth Cir. 1989).

% Many cases use “informal” which, as we un-

derstand it, means that notice and comment procedures

were followed byt, that no public evidentiary hearing

was held during rulemaking. This is somewhat confus-

ing, as even without a hearing--which are almost

nonexistent at the FAA--formal public notice and

comment procedures must be followed. See 5 U.S.C. §

553.

It would seem better practice to use "informal”

to describe “rules” that have not been put through

any rulemaking procedures, and “formal” for those

that have.

U.S. 267, 294 (1974), as reaffirming Chen-

ery II and restating the principle that an

agency “is not precluded from announcing

new principlés in an adjudicative proceed-

ing and that the choice between rulemaking

and adjudication lies in the first instance

within the [agency’s]) discretion.” 868 F.2d

at 1453 (<M).

We should note that neither the FAA nor

the Fifth Circuit disputes the obvious,

that the taxi-standing policy constitutes a

“statement of general policy” or “inter-

pretation of general applicability formu-

lated and adopted by the agency,” or an

amendment to a policy or rule, within the

meaning of the APA, 5 U.S.C. § 552(a)(1),

which would otherwise requirt publication

in the Federal Register; er that it is a

“substantive” matter within the meaning of

id. § 553, which would otherwise require

promulgation through formal public notice

and comment procedures. Nor does the agency

Claim that either of these requirements has

been met.

We would also assert that it strains

logic to hold that it is proper for an

agency to formally promulgate a rule that

tells the flight crew not to close the

boarding door till they are certain all

carryon luggage is properly stowed, but

that it need not do that for a “rule” that

tells them not to taxi until all passengers

are seated.

Thus the single issue presented in this

section is whether under the teaching of

Chenery II-Bell Aerospace the FAA has the

choice indicated.

A. Chenery II and Bell Aerospace case-by-

case adjudication not applicable.

What the Fifth Circuit has done is lift

out of context a seemingly broad general

statement of principle, but which in fact

is one that applies only in very narrow,

restrictive circumstances.*® It misap-

prehends what is meant by “statutory stan-

dards,” or new “principles.” Chenery II

involved a complex public-utility-securit-

ies-law issue, resolution of which depended

upon an interpretation of the Securities

Act. There was no broad exception to rule-

making intended there. "The function of

filling in the interstices of the [Securit-

ies] Act should be performed, as much as

possible, through this quasi-legislative

promulgation of rules to be applied in the

future.” 332 U.S. at 202-203.

Nothing in the instant case involves the

FAA’s basic charter, simply the Administra-

tor’s duty to make airsafety rules. See FA

Act, § 307, 49 U.S.C. § 1348(c). The taxi-

standing rule was clearly one “to be app-

10 We confess to serious reservations about the

use of Chenery II as the touchstone for a line of

cases in which exceptions are carved out of major

provisions of the Administrative Procedure Act which,

enacted in 1946, 60 Stat. 237, was not a factor in

that decision.

dusstnte. . . a

lied-in the future.”

Bell Aerospace provides the clearest

example. The issue was whether “buyers”

were employees under the labor laws who

could organize a collective bargaining

unit, or were they such a part of manage-

ment as to be prohibited from so doing. And

if the Court found that they were, whether

the NLRB had to invoke its rulemaking proc-

edures to say so. 267 U.S. at 291-292.

Again, an iwv2rpretaton of basic law. See

also, Chisholm v. F.C.C., 538 F.2d 349, 364

(D.C. Cir.), cert. denied, 429 U.S. 890

(1976) (*[Wje are in no en to say

‘that the Commission has misinterpreted Con-

gress’ intent or usurped its authority.”).

This Court stressed in Bell, “Nor are

es oO amages involv e.” Id. at 296

(emphasis added). The 7-day suspension

ordered was imposed as punishment for the

alleged violation, as an alternative penal-

ty to a civil money fine. Compliance and

Enforcement Program, FAA Order 2150.3,

205, at pages 13-15 (1980) (a-75). The

court below overlooked this.

It also failed to deal with the fact

that there was already a rule extant which

governs: “During the takeoff and landing of

an airplane, each person on board shall

occupy an approved seat or berth with a

separate safety belt properly secured about

him.” 14 C.F.R. § 121.311(b). The taxi-

standing policy plainly amends this by

expanding the portion of flight in which

passengers must be in their seats. There is

no brief in Chenery II or Bell to amend an

existing rule through adjudication.

The Board’s approval, and thus the Fifth

Circuit’s, of FAA’s claim that "the regul-

ations cannot contain a complete list of

every prohibited act,” Board Opinion and

Order at 8 (a-35), overlooks reality, the

agency’s rules do just that: The FARs tell

cockpit crews that during any “critical

—

phase of flight” they may not call in and

order “galley supplies,” confirm “passenger

connections,” make announcements “promoting

the air carrier or pointing out sights of

interest,” fill out “company payroll and

related records.” 14 CFR § 121.542(a). The

crew is further advised not to engage in

any activity that would be distracting,

such as, “eating meals,” “nonessential

conversations,” “reading publications.” Id.

§ 121.542(b). ”For the purposes of this

section, critical phases of flight includes

all ground operations involving taxi, take-

off and landing, and all other flight oper-

ations conduct below 10,000 feet, except

cruise flight. NOTE: Taxi is defined as

‘movement of an airplane under its own

power on the surface of an airport.’” Id. §

121.542(c). See also id. §§ 121.543, 121.-

545, 121.547, 121.548, and 121.549.”

11 Interestingly, the FAA promulgated an inter-

nal memorandum which covered the taxi-standing

(continued...)

pe ae wo ee) ee eee eS a

ea ait lad a Se) ie ee el ee ed ie

Frankly, we do not understand what rele-

vance “foreseeability,” 868 F.2d at 1453

(qmm—™), has to do with a rule-of-the-road.

Sustaining a procedural challenge to an

agency policy, the District of Columbia

Circuit pointed out that “The APA es-

tablishes procedural requirements for rule-

making precisely because they are presumed

to elicit responses which, when given the

requisite consideration by the agency, may

affect its decision. Here the opportunity

for such an effect has never been ac-

corded.” Simmons v. I.C.C., 757 F.2d 296,

300 (D.C. Cir. 1985); see also New England

Tel. & Tel. Co. v. F.C.C., 826 F.2d 1101,

1110 (D.C. Cir. 1987) ("First, a departure

from prior policy cannot stand when the

agency fails to explain the reason for the

change.”)

11(. | continued)

policy. See FAA Action Notice, A-8430.6, Oct. 2 oe

1986 (Exh.J, a-107).

7 21

A Boeing 737 captain can see most of the

cabin. But not all. What do 747 captains

do? Are not the airlines entitled to know

the practical basis for the rule?

B. FA Act and FAA directives mandate that

airsafety rules be promulgated through APA

public notice and comment procedures.

Even assuming, arguendo, that case-by-

case adjudication for making airsafety

rules would otherwise apply, both Congress

and the FAA itself have mandated that such

rules be made only by means of APA public

notice and comment procedures.

The NTSB has no air-safety rulemaking

powers, adjudication or otherwise. Its only

mandate vis-a-vis FAA is to act as a quasi-

judicial panel and “review on appeal (A)

the suspension, amendment, modification,

revocation, or denial of any operating

certificate or license issued by the [A-

administrator] under sections 1422, 1429, or

1431(c) of this title and the revocation of

any certificate of registration under sec~

vee ee ere

tion 1401(e)(2) of this title . . .” 49

U.S.C. § 1903(a) (9)? see also, id. § 1429-

(a).

Safety rules are solely the FAA’s res-

ponsibility: ”The [Administrator] is fur-

ther authorized and directed to prescribe

air traffic rules and regulations governing

the flight of aircraft .. .” 49 U.S.C. §

1348(c) (FA Act § 307(c)) (emphasis added),

as well as “[s]uch reasonable rules and

regulations .. . as [he] may find neces-

sary to provide adequately for .. . safety

in air commerce.” Id. § 1421(a)(6) (FA Act

§ 601).

Section 307 also provides: "In the exer-

Act .. ." Id. § 1348(da) (emphasis added).

In keeping with this, the agency itself

counsels its officials:

A primary Congressional consideration

underlying the Administrative Procedure

Act is that a regulatory agency afford

the public an opportunity to participate

in its rule-making processes. Both the

letter and the spirit of the rulemaking

provisions of this act shall be obser-

ved. FAA follows the principle that the

public interest is best served when reg-

ulatory affairs are open to the public

to the fullest extent possible.

FAA Rulemaking Policies, FAA Order 2100.13,

§ 22.a. at page 8 (1976).

The Court has spoken forcefully of the

need for rulemaking:

The rule-making provisions of [the

APA], which the Board would avoid, were

designed to assure fairness and mature

consideration of rules of general appli-

cability. . . . They may not be avoided

by the process of making rules in the

course of adjudicatory proceedings.

There is no warrant in law for the Board

to replace the statutory scheme with a

rule-making procedure of its own inven-

tion.

NLRB v. Wyman-Gordon Co., 394 U.S. 759, 764

1969); see also Nader v. Butterfield, 373

F. Supp. 1175 (D.D.C. 1974) (internal FAA

memo approving use of x-ray machines to

inspect carryon luggage voided for lack of

compliance with APA).

—

As it stands, the Fifth Circuit’s deci-

sion approves a regulatory system where

the Administrator issues formal regulations

in the Code of Federal Regulations govern-

ing aircrew conduct, but whomever he or she

may happen to be at the moment, or offi-

cials of any region, may write a letter to

a single airline and create or amend then.

(See Exhs. D, a-94; Exh. E, a-96; and Exh.

G, a-102.)

Senator Pat McCarran, APA sponsor and

Judiciary Committee Chairman, called it:

a comprehensive charter of private lib-

erty and a solemn undertaking of offi-

cial fairness. ...

a bill which . . . is one of the most

important measures that has been presen-

ted to the Congress of the United States

in its history. ...

a bill of rights for the hundreds of

thousands of Americans whose affairs are

controlled or regulated in one way or

another by agencies of the federal gov-

ernment. ...

S. Rep. No. 248, 79th Cong. 2d Sess. at

III, 297 and 298 (1946).

The fact that the court below has ap-

plied the case-by-case adjudicatory prin-

ciple to excuse the FAA from following APA

public notice and comment procedures (5

U.S.C. § 553) in safety rulemaking in the

face of a congressional mandate and the

agency’s own directive to do so, under-

scores, we respectfully submit, the need

for the Court to clarify the limited scope

of the Chenery II/Bell Aerospace exception.

The FAA’s failure to either publish its

taxi-standing policy in the Federal Regist-

er, id. 552(a)(1), or promulgate it as a

substantive rule through APA public notice

and comment procedures, id. § 553, requires

that the case against Capt. Tearney be

dismissed. Id. §§ 552(a)(1) and 706(2)(A) &

(C).

II. “Public interest" unconstitutional

basis for license penalties.

No statute or regulation so much as

hints that the FAA may order suspension or

revocation of a license as a penalty for

the violation of a safety rule.” Agency

officials never deny this. What they claim

is that certain language in § 609 of the FA

Act, 49 U.S.C. § 1429(a), authorizes them

to suspend or revoke certificates anytime

they ‘(in the name of the Administrator)

deem it to be in the interests of the pub-

lic and airsafety.

Section 609’s pertinent language:

The [Administrator] may, from time to

time, reinspect any civil aircraft,

aircraft engine, propeller, appliance,

air navigation facility, or air agency,

or may reexamine any civil airman. If,

as & result of any such reinspection or

reexamination, or if, as a result of any

other investigation made by the [Adm-

inistrator], he determines that safety

in air commerce or air transportation

and the public interest requires, [he]

‘may issue an order amending, modify-

ing, suspending, or revoking, in whole

' or in part, any... certificate. .

Any person whose certificate is affected

by such an order .. . under this sec-

tion may appeal .. . to the National

Transportation Safety Board... [emph-

asis added}

12 Nor is there a shred of legislative history.

See also 14 C.F.R. § 13.19, and the Order

of Suspension (a-1) which, after reciting

details of the alleged incident and claimed

violation, provides:

By reason of the foregoing, the Adminis-

trator has determined that safety in air

commerce and the public interest require

the suspension of your airman certifi-

cate. ‘

Now, THEREFORE, IT IS ORDERED, pursuant

to the authority vested in the Adminis-

trator by Section 609 of the Federal

Aviation Act of 1958, as amended, that:

(1) Any airman certificate now held by

you, including Airline Transport Pilot

Certificate No. 527802838, [sic--shall

be suspended]

Although we submit that anyone who can

parse a sentence can see that “public int-

erest” is not a general grant of power but

a condition subsequent to first reinspect-

ing an aircraft or reexamining an airman

(“if as a result of”), we assume here,

arguendo, that this interpretation is rea-

sonable. Thus the issue we present is whe-

ther “public interest” is sufficiently

explicit language to show a constitutional

delegation of authority from Congress to

the FAA to impose suspensions and revoca-

tions as penalties for the violation of

safety rules. Put another way, the issue

involves a common sense application of the

English language.

A. Congress may not evlagete its legis-

lative power.

It is fundamental that Congress may not

delegate its Art. I, § 1 legislative power

to create benefits or penalties. United

States v. Eaton, 144 U.S. 677 (1892), Unit-

ed States v. Grimaud, 220 U.S. 506 (1910);

see also Administrative Procedure Act, § 9,

5 U.S.C. § 558. The Fifth Circuit has re-

cognized this basic principle:

The federal constitution provides

that “[A]Jll legislative powers herein

granted shall be vested in a Congress of

the United States, which shall consist

of a Senate and House of Representat-

ives”, United- States Constitution, Art.

1, § 1. Congress may not abdicate or

transfer to others the essential legis-

lative functions with which it is thus

vested .. . [citing cases].

United States v. Gordon, 580 F.2d 827, 839

(Sth Cir.), cert. denied, 439 U.S. 1051

(1978). It said further: “It is well estab-

lished that a delegatee may formulate rules

for violation of which the statute itself

process, [citing cases, including Grim-

aud].” 580 F.2d at 840 (emphasis added) .

This makes the point nicely: Where is any

statute which provides that suspensions and

revocations may be imposed as penalties for

safety violations? Nowhere.

B. APA requires specific delegation

to impose a penalty.

This constitutional principle finds

expression in § 9 of the APA:

(a) This section applies, according

to the provisions thereof, to the exer-

cise of a power or authority.

(b) A sanction may not be imposed or

a substantive rule or order issued ex-

cept within jurisdiction delegated to

the agency and as authorized by law.

5 U.S.C. § 558(a) & (b). Its legislative

history:

This provision, limiting administra-

tively imposed requirements to the auth-

ority granted and delegated, is designed

to afford statutory recognition for the

basic rule of law, embodied in judicial

decisions. The creation of penalties or

benefits is exclusively the province of

Congress.

[It] means that agencies may not

undertake anything which statutes or

other adequate sources of authority

(such as treaties) do not authorize them

to do. Where these sources are specific

in the authority granted no additional

authority may be assumed. .. . Sanc-

tions in the way of penalties or relief

must be identified and authorized by

law, and where authorized they nust in

any case apply in the factual situation

presented.

S. Rep. No. 248, 79th Cong., 2d Sess. 34

and 274 (1946) énahesis added). "No addi-

tional authority may be assumed” is another

way of stating the premier maxim of statut-

ory interpretation: Expressio unius est

exclusio alterius. Congress chose civil

money penalties with right to jury trial:

(a) (1) Any person who violates * * *

any rule, regulation, or order * * *

shall be subject to a civil penalty of

not to exceed $1,000 for each such viol-

SGiGR 4 2.»

(2) Any civil penalty may be conm-

promised by the [Administrator]...

[emphasis added]

49 U.S.C. § 1471(a)(1) & (2). And:

(a) The trial of any offense under

this chapter shall be in the district in

which such offense is committed [etc.] .

(b) (1) Any civil penalty imposed or

assessed under this chapter may be col-

lected by proceedings in personam...

Such proceedings shall conform as nearly

as may be to civil suits in admiralty .

. . either party may demand trial by

jury of any issue of fact, if the value

in controversy exceeds $20, and the

facts so tried shall not be reexamined

other than in accordance with the rules

of the common law... .

49 U.S.C. §§ 1473Ta) & (b)(1) (emphasis

added). Where does the FA Act say anything

else? “Factual situation presented.” The

only factual situation that § 609 talks

about is “reinspection” and “reexam@n-

ation,” qualifications matters. Congress

wrote § 901 and § 903 with a high degree of

clarity: Where in the act is there a hint

that suspension or revocation may be im-

posed as a penalty?

To assume that Congress intended to

authorize license penalties, one must also

assume that it told pilots (and other cer-

tificate holders) that they had the right

to jury trial and, at worst, if found guil-

ty, would pay only a money fine, but then

turned right around and authorized an FAA

-official to determine in his sole discre-

tion whether that pilot could ever exercise

those rights, and substitute administrative

justice with a harsh--often draconian--

penalty.**

With all due respect to the Fifth Cir-

cuit, it seems to be saying that a “rose is

a rose is a rose,” that public-safety is

public-safety is public-safety. 868 F.2d at

1455 (@@%). Nowhere does the court explain

how “public interest” conveys a delegation

of authority to impose a “penalty.” The

leading FAA case of Pike v. CAB., 303 F.2d

13. For a complete history of FAA enforcement,

see Smith, FAA PUNITIVE CERTIFICATE SANCTIONS: THE

EMPEROR WEARS NO CLOTHES; OR, HOW DO YOU PUNISH A

PROPELLER?, 14 Transp. L.J. 59-100 (1985) (hereinaf-

ter "Emperor" ).

353, (8th Cir. 1962), is instructive. A

commercial pilot, Pike was. charged with

giving flight instruction when he did not

possess an instructor’s certificate. The

circuit court reversed revocation of his

license because nothing in the statutes or

FAA regulations specifically forbade him

from giving instruction. Blackmun, J. (then

circuit judge):

This lack of specificity and compl-

eteness of the Regulations disturbs us

for this case. Because of this we are

disinclined to reach a result. drastic

in its application to the irdividual

concerned (whether it be Pike or any

other), which deprives an airman of

admitted experience and ability his

primary means of livelihood. [Citing

cases] We prefer to have, where a result

of that magnitude is to be forthtoming,

a statute or regulation which is more

positive and definite than those here

involved.

pare

Id. at 357. To deprive an airline captain

of his right to earn a living, even for

seven days, is hardly insubstantial. And as

seen from the emergency order (Exh. A, a-

82) in Tearney II, the instant case was

used as an excuse to escalate the punish-

ment to a total deprivation of his adult

career. See Pastrana v. United States, 746

F.2d 1447 (11th Cir. 1984) (pilot’s license

is a property right).