Petition for Writ of Certiorari — Garrett v. United States

INDEX

Page

Citations to Opinions Below 1

Jurisdiction ___. 2

Question Presented 2

Statutes Involved 2

II CIID ss natnaecisiesomniensnetninicsendauiacceanentnamseriovdhinescatsns 2

Statement of Case 2

Reasons for Granting the Writ:

1. A Novel Question of National Scope Concerning

the Administration of an Important Federal

Statute Which Materially Affects Safety in Civil

Aviation is Presented _______. 16

2. The Broad and Liberal Application of the

Civil Penalty Statute in This Case Conflicts with

Other Decisions Holding That Penalties Should

be Strictly Construed and Applied...» 21

3. Public Safety Demands that Blame be Placed

Where Blame is Due 23

Conclusion ___........ 29

Appendix A, Opinion of Court Below......._-----_-_----_. ..-la

Appendix B, Statutes Involved_...____---___-_____ lla

Appendix C, Pertinent Federal Aviation Rules

and Regulations 20a

Appendix D, Diagramatic Illustration of McQuillen’s

Testimony __.. ‘etnias 30a, 31a

Appendix E, List and Thumbnail Summary of Decisions

in Civil Penalty Cases. 32a

RPP FS EMS SOR LA ELE ENNIO OLAS BI QIOAE LE EI Pe

REEF Re: RL RRS Ne AE,

ae

TABLE OF AUTHORITIES

Page

Decisions:

Cudahy Packing Co. v. Holland,

315 U. S. 357 (1942) 19

Federal Communications Commission v. American

Broadcasting Co., 347 U. S. 284, reh. den. 347

U.S. 965 21

Hard v. Civil Aeronautics Board, 248 F.2d 761,

7th Cir., 1957, cert. den. 355 U. S. 960 16

Allen W. Hayes v. United States, 264 F.2d 929,

2nd Cir., 1959 20

Kashland v. Helvering, 298 U. S. 441 21

National Labor Relations Board v. Duval Jewelry Co.,

357 U.S. 1 (1958) 19

Panama Refining Co. v. Ryan, 293 U. S. 388 (1935) _...20

Pangburn v. Civil Aeronautics Board, 311 F.26 349,

Ist Cir., 1962 16

Peters v. Hobby, 349 U. S. 331 21

Pike v. Civil Aeronautics Board, 303 F.2d 353,

8th Cir., 1962 21

Schechter Poultry Co. v. United States,

295 U. S. 495 (1935) 20

Shankland v. Washington, 5 Pet. 390, 8 L.Ed. 166... 19

Shreveport Engraving Co. v. United States,

143 F.2d 222, 5th Cir., 1944, cert. den. 323 U.S. 749,

reh. den. 323 U. S. 815_. 19

Dnited States v. Lockheed Aircraft Service

International, inc., 202 Fed. Supp. 665,

E.D. N.Y., 1962___....

TABLE OF AUTHORITIES—continued

Page

United States v. Proper, 7 Avi. 18, 173, U.S.D.C.,

N.Y., 1962 ..22

Wilson v. Civil Aeronautics Board, 244 F.2d 773,

App. D. C., 1957, cert. den. 355 U. S. 870... 16

Statutes:

Federal Aviation Act of 1958, 49 U.S.C.,

Sections 1301, et seq.:

Section 601 (49 U.S.C., Section 1421)... 2, 4, 18

Section 609 (49 U.S.C., Section 1429)... 2, 5, 16, 18

Section 610 (49 U.S.C., Section 1430)... 2,3

Section 901 (49 U.S.C., Section 1471) 2, 3, 16, 18

Section 903 (49 U.S.C., Section 1473)... 2,3

Public Law 89-670, Oct. 15, 1966, 80 Stat. 931,

et seq. 49 U.S.C., Sections 1651, et seq..........._. 2

Miscellaneous:

Federal Aviation Regulations, 14 C.F.R.,

Section 43.13(3) ; : 3,4

section 121.135 . ae

Section 121.363 stsiddatlabienaseaccso tan 24

Section 121.365(b) and (c)_. 25

Section 121.369(8) 25

Mattis, John J., The Traffic Cop of the Skies,

—FAA Enforcement Actions,

35 Journal of Air Law and Commerce 40,

School of Law, Southern Methodist University,

I IN I scale occtinenspatencarechercteimmeniadondicwsactae

ee EIR EA LE LILO TANG SEARS a RENAL

;

IN THE

Supreme Court of the United States

OCTOBER TERM, 19.

A. T. GARRETT, W. D. WALTERS

AND J. B. MCDANIEL,

Petitioners,

ol Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioners pray that a Writ of Certiorari issue to review

the judgment of the United States Court of Appeals for

the Fifth Circuit entered on December 2, 1969. Petition

for rehearing was denied on January 19, 1970.

CITATIONS TO OPINIONS BELOW

The opinion of the Court of Appeals which incorporates

the opinion of the District Court in its entirety is reported

at F.2d and is printed in Appendix A, infra,

pp. 1a-8a. The opinion of the District Court is reported at

296 F.Supp. 1302.

2

JURISDICTION

The judgment of the Circuit Court of Appeals was en-

tered on December 2, 1969. (R. Vol. III, p. 5); Appendix

A, infra, page 9a). Rehearing was denied on January

19, 1970, without opinion. (R. Vol. III, p. 6). The juris-

diction of this Court is invoked under 28 U.S.C., Section

1254(1).

QUESTION PRESENTED

Whether the Administrator of the Federal Aviation Ad-

ministration may delegate to air carriers the authority to

promulgate procedures which have the force and effect of

rules or regulations issued by the Administrator under the

Federal Aviation Act of 1958 (49 U.S.C., Sections 1301

et seq.) so as to subject airmen to civil penalties under

48 U.S.C., Section 1471, for violation of maintenance pro-

cedures established by air carriers and never approved by

the Administrator.’

STATUTES INVOLVED

The statutes involved are Sections 601, 609 and 610 of

Title VI and Sections 901 and 903 of Title IX of the

Federal Aviation Act of 1958. 72 Stat. 775, 779, 780, 783

Title VI and Sections 901 and 903 of Title IX of the

"Public Law 89-670, Oct. 15, 1966 (80 Stat. 931, et seq; 49

U.S.C., Sections 1651 through 1659) created the Department of

Transportation and transferred the Federal Aviation Agency, re-

named Federal Aviation Administration, to that Department. The

duties of the Administrator’ of the Federal Aviation Agency under

Title VI of the Federal Aviation Act were continued in him as

Administrator of the Federal Aviation Administration and the quasi-

judicial duties of the Civil Aeronautics Board under Title VI were

transferred to the National Transportation Safety Board. Substantive

provisions of the Federal Aviation Act and of the regulations issued

under the Act have continued, unchanged.

3

and 786; 75 Stat. 467; 76 Stat. 149; 49 U.S.C., Sections

1421, 1429, 1430, 1471 and 1473. They are printed in

Appendix B, infra, pages 11a through 19a.

STATEMENT

Petitioners are mechanics employed by Eastern Airlines,

an air Carrier. The United States brought separate actions

against them and another mechanic, W. F. Petsch, to

recover civil penalties under 49 U.S.C., Section 1471(a),

for the alleged failure to follow maintenance procedures

established by Eastern in the assembly of a propeller. Fail-

ure to follow “approved” maintenance procedures was

charged to be a violation of Section 43.13(c) of Federal

Aviation Regulations [14 C.F.R., Section 43.13(c)]* and

consequently a violation of 49 U.S.C., Section 1430(a) (2).

(R., Vol. I, 1 through 7). The four separate actions were

consolidated for trial. (R. Vol. I, p. 14, 16). In its post-trial

brief filed with the District Court, the Government with-

drew its case against Petsch. (R. Vol. I, p. 448). Petition-

ers were found guilty and a civil penalty of $100.00 was

imposed on each. (R. Vol. I, 458).

49 U.S.C., Section 1471, provides that any person who

violates any provision of Title VI (safety provisions) of

the Federal Aviation Act or “any rule, regulation or order

issued thereunder” shall be subject to a civil penalty not

to exceed $1,000 for each violation. Jurisdiction is given

to the district courts to impose civil penalties at the instance

of the United States Attorney by 49 U.S.C., Section 1473.

49 US.C., Section 1430(a)(2) provides that it shall be

unlawful: “For any person to serve in any capacity as an

* Pertinent provisions of Regulations are reprinted in Appendix

C, infra, pages 26a through 29a.

4

airman in connection with any civil aircraft, aircraft engine,

propeller or appliance used or intended for use, in air com-

merce . . . in violation of any order, rule, or regulation

issued under this Title (Title VI - Safety Regulations of

Civil Aeronautics).” (Parenthetical explanation supplied. )

Section 43.13 of Federal Aviation Regulations (14

C.F.R. 43.13) provides that each person maintaining civil

aircraft shall use methods, techniques and practices “ac-

ceptable to the Administrator.” Section 43.13(c) provides:

“Special provisions for air carriers and commerciat

operators. Unless otherwise notified by the Admin-

istrator, the methods, techniques and practices con-

tained in the maintenance manual or in the main-

tence part of the air carrier manual of a certificated

air carrier or commercial operator (that is required

by its operating certificate or approved operating spe-

cifications to provide a continuous airworthiness,

maintenance and inspection program) constitute ac-

ceptable means of compliance with this Section.”

The substantance of the charge against petitioners, there-

fore, was that they were liable for a civil penalty because

of their alleged failure to follow an “approved” main-

tenance procedure established by Eastern Airlines. (Com-

plaints, Par. V; R. Vol. I, 2, 4, 6).

49 U.S.C., Section 1421 provides:

“General Safety Powers and Duties. — (a) Minimum

Standards — Rules and Regulations. — The Admin-

istrator is empowered and it shall be his duty to pro-

mote the safety of flight of civil aircraft in air com-

merce by prescribing and revising from time to time:

“(3) Reasonable rules and regulations and mini-

mum standards governing, in the interest of safety,

(A) the inspection, servicing and overhauling of air-

5

craft, aircraft engines, propellers and appliances; (B)

the equipment and facilities for such inspection, ser-

vicing and overhauling; and (C) in the discretion of

the Administrator, the periods for, and the manner

in, which such inspection, servicing, and overhauling

shall be made, including provision for examination

and reports by properly qualified private persons whose

examinations or reports the Administrator may accept

in lieu of those made by its officers and employees;

it ”

ses >

Petitioners defended with contentions that:

(1) The District Court was without jurisdiction to im-

pose a civil penalty for the alleged violation of a repair

procedure established by an air carrier because the statute

(49 U.S.C., Section 1371) provides for civil penalties only

for violations of the Act or of a “rule, regulation or order

issued thereunder”; and the Administrator was without

authority to delegate the rule making authority to an air

carrier;

(2) That the repair procedure established by Eastern

was (a) not contained in the maintenance part of Eastern’s

aif carrier manual and had not been “approved” and (b)

even if it had been in the manual, the repair procedure was

inadequate to prevent errors in the assembly of the pro-

peller in question and the error which occurred could have

occurred even though the procedure was followed:

(3) That petitioners followed the prescribed procedure;

and

(4) That an administrative disciplinary procedure is

provided by 49 U.S.C., Section 1429, whereby the Admin-

istrator may amend, suspend or revoke airmen’s certificates,

subject to review de novo by the Civil Aeronautics Board

6

(iow the National Transportation Safety Board) with re-

view in the Circuit Courts of Appeal, and that it is the

intent of the Act that technical matters such as maintenance

procedures, especially those established by air carriers and

not by rule or regulation of the Administrator, shall be

supervised and enforced by especially qualified administra-

tive and quasi-judicial authorities rather than the courts,

and that the district courts therefore are authorized to en-

force only rules and regulations issued by the Administra-

tor himself. (R. Vol. I, 17 through 20).

Petitioner Garrett, who was a lead mechanic and whose

only function in connection with the assembly of the pro-

peller in question was to assign competent personnel to its

assembly*, contended that neither the law nor rule of the

F.A.A. authorizes the imposition of a civil penalty on a

person who is prevented by other duties assigned to him

by the air carrier from participating in, and from supervis-

ing, the assembly.

Eastern Airlines has its principal repair facility in Miami,

Florida, with outlying repair bases, including that at At-

lanta where petitioners are employed. (R. Vol. I, 246).

Ordinarily, the maintenance and repair procedures recom-

mended by the manufacturer of an aircraft or of aircraft

components are approved and required to be followed by

the Administrator (R. Vol. I, 265-268) and are contained

% There was no contention that Petsch, McDaniel and Walters

were other than competent. The uncontradicted evidence shows to

the contrary and that all have advanced in their employment status

since the propeller incident. In fact, Petsch was advanced to the

supervisory position of shift foreman and Walters, an electrician,

was certificated as a mechanic by the Administrator while these

cases were pending against them in the District Court. (R. Vol. I,

331, 342.)

7

in the air carrier’s maintenance manual. At one time,

when Eastern performed all of its aircraft maintenance in

Miami, this was the case with Eastern (R. Vol. I, 246);

but Federal Aviation Regulations do not require an air

carrier to maintain its complete maintenance manual at

every repair base. An outlying repair base is required to

maintain only those portions of the maintenance manual

which describe the repair functions which are performed at

their base. Regulations, Sections 121.135(b)(16) and

(c); 14 C.F.R., Sections 121.135(b)(16) and (c). The

maintenance manual of Eastern at the principal repair base

in Miami contains a complete description of the procedures

to be followed in overhauling and reassembling Electra

propellers. However, in 1960 Eastern decentralized its

maintenance and repair facilities. (R. Vol. I, 246, 247).

When this occurred Eastern adopted the practice of over-

hauling propellers at its principal repair base in Miami and

then disassembling the propellers and shipping them to out-

lying repair bases for reassembly and installation on air-

craft. From that time until after the time of the occurrences

in this case in May, 1965, the portions of the maintenance

manual maintained in Atlanta contained no instructions

concerning the procedures to be followed by mechanics in

reassembling a propeller following overhaul. (R. Vol. I,

p. 166). The only procedures afforded to Atlanta mechan-

ics were “hand-me-down” word of mouth instructions passed

on from one mechanic to another. (R. Vol. I, 246-251)

and an assembly check-sheet (Government Ex. 2, R. Vol.

II, p. 2) which was prepared at the Atlanta repair base.

(R. Vol. I, p. 151). The assembly check-sheet was not set

forth in the maintenance manual (R. Vol. I, p. 168, 263),

was not prescribed by the manufacturer and had not been

approved by the Administrator. (R. Vol. I, p. 151-152).

8

Court’s Exhibit A (R. Vol. II, p. 21, et seq.) contains

all of the procedures contained in the portions of the main-

tenance manual maintained in Atlanta concernnig work

on Electra propellers which are relevant to the present

case. See stipulation, (R. Vol. I, pp. 373-375). All of the

pages in Court’s Exhibit A, except one (R. Vol. II, p. 49)

were issued by General Motors Corporation, Allison Divi-

sion, the propeller manufacturer, and relate to the servic-

ing (line and heavy maintenance but not shop overhaul)

of a propeller, giving instructions for removing a blade,

adjusting a blade and reinserting a blade properly while

the propeller is mounted on an aircraft or in a moderately

equipped repair shop.‘

The page which is the single exception was written by

Eastern rather than the manufacturer and was inserted in

the maintenance manual in November, 1965, six months

after the events in this case, as a result of changes in pro-

cedures adopted by Eastern after this case arose. (R. Vol.

II, p. 49; Vol. I, p. 182) That page does relate to propeller

assembly procedures at outlying bases following overhaul

and will be discussed in factual sequence, infra.

The four engined Lockheed Electra aircraft has four

*See introductory statement at page 28 of Court’s Exhibit A

(R. Vol. II, p. 28) where a “Propeller Overhaul Manual” is re-

ferred to. Reassembly of a propeller following overhaul is a part

of the overhaul procedure which is not contained in Eastern’s At-

lanta maintenance manual. The basic procedures followed in repair

maintenance and in overhaul maintenance are different. For exampie,

in repair maintenance, mechanics are cautioned to work on and

insert propeller blades at a positive angle of 18 degrees 15 minutes

to 18 degrees 30 minutes (R. Vol. II, p. 44); whereas, in over-

haul maintenance the propeller is reassembled with the blades at a

negative angle of minus 4 degrees with the hub mechanism in full

reverse position. (R. Vol. I, pp. 255-256; Vol. II, p. 2, Govt. Ex. 2)

-

9

propellers driven by jet turbine engines. Each of the pro-

pellers has four blades and is approximately 12 feet in dia-

meter. The propeller is an exceedingly complex mechanism

and incorporates a governor to contrel engine speed and

power. (R. Vol. I, pp. 183, 250, 261) The propellers are

overhauled at the Miami repair facility and shipped to out-

lying repair bases for reassembly in 4 boxes, one box con-

taining the hub assembly, one the spinner and two boxes

containing two blades each. (R. Vol. I, 250).

Propellers are assembled in Atlanta on metal stands on

which a propeller shaft is mounted vertically. (R. Vol. 1,

pp. 186-7, 393) The propeller hub is placed on the shaft

nose-end up and the blades are inserted horizontally. The

hub has four recesses, one for each blade, inside of which

is a female spline or peripheral gear. The base of each blade

is circumscribed by a male spline. (R. Vol. I, pp. 183-186,

250-261) See illustration at R. Vol. II, p. 54. Each pair

of meshing teeth on the hub and blade transcribe an arc of

approximately 4 degrees so that an error of one tooth in

insertion of a blade will result in a 4 degree error in pitch

of the blade. (R. Vol. II, p. 48) Each blade must be

installed in the hub in the horizontal plane at a pitch of

minus 4 degrees relative to the vertical axis of the hub

with the hub mechanism in full reverse position. (R. Vol.

I, pp. 255-6; Vol. II, p. 2, Govt. Ex. 2)

The mechanics in Atlanta are furnished with a manual

tool or instrument called a protractor which is used to

measure the pitch of the blades at a designated measuring

point called the 42 inch station. (R. Vol. II, pp. 66-68;

Vol. I, 257) The protractor has two bubble levels, one of

which is used to zero in the instrument in the perpendicular

axis of the hub and the other of the levels is used to set the

pen

Pee a a a ho TREE e On ERED ge ae ee RS ee i

10

scale of the instrument and to measure the pitch of the

blade in the horizontal plane relative to the perpendicular or

vertical axis of the hub.

The propeller shaft in the propeller stand, on which the

propeller hub is mounted for assembly, is held to the stand

by a flanged collar. In May, 1965, the collars on the stands

were loose and defective, permitting movement of the shaft;

and the concrete floor of the Eastern repair hangar in At-

lanta contained irregularities. (R. Vol. I, pp. 187, 393-401)

The propeller assembly sheet in use in May, 1965, contains

only one line, or step, of installation instruction for all four

blades. (Govt. Ex. 2, R. Vol. II, p. 2) It did not instruct

the mechanics at the Atlanta repair base that the protractor

should be rezeroed in the axis of the hub prior to the inser-

tion of each of the four blades. (R. Vol. I, pp. 403-405).

On May 12, 1965, leadman Garrett® was instructed to

assign men from his crew to assemble an Electra propeller

and he was asked to take charge of emergency repairs to

the landing gear of a Boeing 737 jet aircraft. He was also

assigned the maintenance of batteries being reconditioned

and charged in the battery shop. (R. Vol. I, 219-221) On

the particular shift he had only three men, in addition to

himself, in his crew, McDaniel, Walters and Petsch. (R.

Vol. I, pp. 219,222).

The Boeing 737 aircraft was new in the Eastern system

at the time and this was the first 737 required to be placed

upon jacks at the Atlanta repair base. (R. Vol. I, pp. 221-

226) While he himself studied the manual on the 737 air-

craft to determine the manner in which the 737 should be

placed on jacks in order to avoid damage to the aircraft,

5 A leadman or crew chief is not a supervisory employee but is

an hourly-paid, working group leader. (R. Vol. I, p. 142, 159-160)

1]

Garrett assigned petitioners and Petsch to the assembly of

the propeller and Walters was assigned also to attend the

battery shop. Petsch, McDaniel and Walters worked on the

propeller assembly for an hour or more while Garrett was

studying the manual and having telephone conferences with

the Miami repair base concerning the repair requirements

on the 737 aircraft. (R.Vol. I, pp. 227-229) At the end

of about an hour the Boeing 737 was brought to the hanger

from the flight line and Garrett called Petsch and McDaniel

away from the propeller assembly to assist in bringing the

737 into the hanger. (R. Vol. I, p. 229, 230). At this time

Walters left the propeller assembly to check the battery

shop. (R. Vol. I, p. 230) All three returned to the propeller

assembly and worked for about half an hour and McDaniel

and Petsch were again called away, this time to assist in

jacking up the 737 aircraft (R. Vol. I, p. 231, 382) There-

after Petsch did not return to the propeller assembly but

remained to assist with the 737 repairs.* Sometime later

McDaniel was again called from the propeller assembly to

assist in removing the 737 from the jacks and at this time

all four blades had been inserted in the propeller and locked

up, and the mechanical assembly was complete. (R. Vol.

I, p. 236, 388) Walters, an electrical specialist, completed

the assembly of the propeller electrical connections and

called inspector George Brownlee to check the propeller

and approve it for service. (R. Vol. I, p. 236, 337) When

Brownlee inspected the propeller, none of the procedural

steps in the propeller assembly sheet had been signed-off

by the mechanics and Walters signed on each line of the

* At this time two blades had been installed and locked up. (R. Vol.

I, 383) The testimony of Garrett that Petsch assisted in the assembly

of the propeller for at ‘east one and one-half hours is uncontradicted.

Petsch testified that he was “not sure”. (R. Vol. I, 347)

12

step-by-step assembly procedure although he had not per-

sonally performed each step of the operations. (R. Vol. I,

p. 338) It was not unusual for a mechanic to sign off work

performed by others in his crew and in his presence. (R.

Vol. I, p. 261, 262, 338-340) Walters and McDaniel testi-

fied that the propeller was assembled in accordance with

the instructions which they had received and in accordance

with the usual practice and procedure; (R. Vol. 1, 334, 338,

339, 383) and there was no evidence to the contrary. While

Inspector Brownlee should have checked the angle of each

of the propeller blades with the protractor at the time of his

inspection, he asked Walters if each had been measured

with a protractor and receiving an affirmative reply, checked

the blades only with a “devil’s level”, a less accurate instru-

ment than the protractor. (R. Vol. I, 321, 322)

The propeller was installed on an Electra aircraft on the

following day, and shortly thereafter the pilot of the aircraft,

while in flight, discovered an unusual vibration.” The air-

craft was returned to the base and the propeller was re-

moved and it was discovered that one blade had been

installed at -8° full reverse position, rather than at -4°, or

one gear tooth off the proper point of insertion.* The blade

was reinstalled properly and the propeller was reinstalled

on the aircraft. (R. Vol. I, 308-311)

7 An unusual noise was noted at the time the propeller was in-

stalled on the aircraft, but it was diagnosed as being due to a cross-

wind. (R. Vol. I, 362-365, 370)

* Any error in assembly of aircraft and components is to be

avoided; but the District Court correctly found (R. Vol. I, 458),

that this was not a serious condition. Similar vibration could be

caused by grease leaking from the propeller hub causing a state of

imbalance (R. Vol. I, 203, 260) or by the harmonic created by a

cross-wind (R. Vol. I, 328).

A short time later other propeller blades were discovered

at time of assembly to have been improperly inserted even

though the prescribed procedures had been followed and

on other occasions aircraft were discovered with one pro-

peller blade inserted improperly. (R. Vol. 1, 312, 350-355,

405). As a result, Richard A. McQuillen, who at the time

was Chief Steward and safety officer for the Machinists

Union, collective bargaining representative of the Eastern

mechanics, made an investigation to ascertain why blades

could be improperly installed when the prescribed pro-

cedure had been followed. He discovered that on occasion

improper insertion of propeller blades could result even

though the protractor indicated proper angles of insertion

when the protractor had been zeroed in the vertical axis

of the hub only once. He also discovered that improper

insertion could be avoided by reorienting the protractor in

the vertical axis of the hub in the plane of insertion of each

blade before each blade was installed. (R. Vol. I, 402, 407,

414) A diagramatic illustration of McQuillen’s testimony.

showing that if a propeller hub when placed on the pro-

peller stand should come to rest out of true vertical because

of the loose condition of the collar or because of the uneven

hangar floor, an error in the insertion of a blade can occur

unless the protractor is reoriented before each blade is in-

stalled, is contained in Appendix D. infra. pages 30a and

31a.

McQuillen, as safety director, filed a complaint with

F.A.A. concerning the defective condition of the propeller

stands and an investigation was conducted in which the

supervisory personnel of Eastern Airlines and F.A.A. par-

ticipated; but Foreman E. A. White of Eastern would not

permit McQuillen to participate in the investigation. Sub-

sequently the propeller stands were repaired: (R. Vol. I.

a eng!

13

14

398-402) and in November, 1965, Eastern began painting

an index mark on the hub and on each blade at the proper

angle of insertion at the time of overhaul in Miami and

issued a new assembly sheet which contained a separate

instruction for the insertion of each blade, requiring each

blade to be separately measured and signed off. (R. Vol.

I, 181, 182)°

Other than to assign competent mechanics to the as-

sembly of the propeller, Garrett took no part in its assembly

since his entire time on the work shift was consumed in

the emergency repair of the 737 aircraft. To hold him re-

sponsible for the work of the mechanics the Government

introduced a job description from Eastern’s general main-

tenance manual describing the duties of a lead mechanic

which stated that the lead mechanic is responsible for the

work of the members of his crew.’® The District Court held

that he was jointly responsible with the members of his

crew, notwithstanding that Garrett was prevented from tak-

ing any part in the propeller assembly or supervising the

assembly by the emergency assignment given him by the

airline to return the Boeing 737 jet aircraft to service as

soon as possible.

W. F. Petsch participated in the assembly of the pro-

® Court’s Exhibit A, page 49 (R. Vol. II, p. 49), which reflects

the practice of marking hub and blade with a paint stripe at time

of propeller overhaul in Miami, is dated November 22, 1965, six

months after the events in this case occurred. This page is the only

instruction in the portion of Eastern’s maintenance manual main-

tained in Atlanta which relates to building-up a propeller at outlying

bases following overhaul and it was not in the Atlanta manual in

May, 1965. (R. Vol. I, 408-410)

1© The Government’s chief witness admitted that the job descrip-

tion was not a maintenance procedure. (R. Vol. I, 165)

15

peller for at least an hour and a half and in the insertion

of at least one, and probably more, blades (R. Vol. I, 383).

Notwithstanding this uncontradicted fact, the Government

withdrew its case against him in its brief filed with the Dis-

trict Court (R. Vol I, 484); and the District Court ap-

proved the Government’s asserton that it had not made out

a case against Petsch. (R. Vol. I, 457) Counsel for peti-

tioners has never been able to discover any reason for the

Government’s withdrawal of the case against Petsch, other

than, as noted previously, that at the time of the trial

he had been made a foreman and had become a supervisory

employee of the air carrier.

16

REASONS FOR GRANTING THE WRIT

I

A NOVEL QUESTION OF NATIONAL SCOPE

CONCERNING THE ADMINISTRATION OF AN

IMPORTANT FEDERAL STATUTE WHICH MA-

TERIALLY AFFECTS SAFETY IN CIVIL AVIA-

TION IS PRESENTED.

Approximately 96,000 mechanics in the airline industry,

certificated by the Federal Aviation Administrator" are sub-

ject to the dual disciplinary procedures provided by Con-

gress for the enforcement of the safety provisions of the

Federal Aviation Act and the safety rules and regulations

of the Administrator. The two procedures are certificate

action under 49 U.S.C., Section 1429, and civil penalties

under 49 U.S.C., Section 1471.” Little statistical informa-

tion concerning the relative use of the two procedures has

been available from the Federal Aviation Administration -

but it is certain that monetary discipline is used as fre-

quently as is certificate action.’* This is true notwithstand-

1! Statistics furnished by Federal Aviation Administration.

12 Wilson v. C.A.B., 244 F.2d 773, App.D.C., 1957, cert.den.

355 U.S. 870; Hard v. C.A.B., 248 F.2d 761, 7th Cir., 1957, cert.

den. 355 U.S. 960; Pangburn v. C.A.B., 311 F.2d 349, 1st Cir.,

1962.

13The General Counsel of the Federal Aviation Administration

advises that the most recent figures available are for the fiscal year

1968 and that:

“During fiscal year 1968, 3,173 violations of the Federal Avia-

tion Regulations were reported to the Office of the General Counsel;

3,127 actions were processed to completion. Of the latter figure,

1,518 were proceedings involving suspension or revocation of air-

man certificates. Of the completed cases not involving certificate sus-

17

ing the fact that reported judicial decisions in certificate

action cases greatly outnumber the meager dozen civil fine

decisions which are in the reports.”*

This results from several factors. First, all enforcement

actions are initiated in the same fashion and the determina-

tion of which procedure will be used is made after the first

step in the administrative procedure has been completed.”

Second, ordinarily a fine is imposed for violations which

are regarded not to be so serious as to justify certificate

action. Third, as a practical matter a civil penalty may

be imposed under either procedure and not infrequently

in certificate action proceedings the Administrator has with-

held certificate action upon condition of the payment of a

civil penalty.”

The fair and proper use of the civil penalty procedure

pension or revocation, civil penalties in the form of fines accounted

for 855 cases. Total civil penalties collected ammounted to

$168,643.88. There were 460 cases closed without action. The re-

maining cases were disposed of by referral to appropriate military

authorities for action, referral to foreign governments, and by ad-

ministrative action consisting of letters of correction or letters of

reprimand.”

14 A list and thumbnail summary of all reported civil fine decisions

which we have found is included as Appendix E, infra, pages 32a-

33a.

15 The first step is the notice of an investigation to the airman con-

cerned and his response. Defendants’ Exhibit 2, R. Vol. I, pp. 343-

356; Vol. II, pp. 3-16; Federal Aviation Regulations, Part 13; 14

C.F.R., Section 13.1, et seq.

16 An informative and authoritative review of enforcement pro-

cedures is contained in The Traffic Cop of the Skies—F.A.A. En-

forcement Actions, 35 Journal of Air Law & Commerce 40, 1969,

published by School of Law, Southern Methodist University, Dallas,

Texas.

» -—* =~ Me, ab ve

qi RY AS LIT TEN POR C MAE TIE ah ah th aha AN RAR PEO ALTRI RE

18

in the district courts is of much importance to the statutory

enforcement scheme and to safety in civil aviation, and the

practical ability of the Administrator to impose a civil

penalty in the certificate action procedure, and the fact

that he is not compelled by law to use the district court

procedure in all cases in which he feels that a civil penalty

is the proper disciplinary action, is of much pertinence to

the present case.

Section 901 of the Federal Aviation Act (49 U.S.C.,

Section 1471) authorizes the imposition of a civil penalty

in the district courts only for a violation of the Act itself

or of a “rule, regulation or order issued thereunder.” No

such limitation is contained in Section 609 (49 U.S.C.,

Section 1429), the certificate action procedure, and the

Administrator may impose a civil penalty under that pro-

cedure for any cause which safety in air commerce re-

quires, irrespective of whether the Act or a regulation has

been violated. It can, therefore, be of no great concern to

the Admniistrator in disciplining individuals’ which pro-

cedure is used; but it is of tremendous importance to 96,000

certificated mechanics that, in a matter so technical as air-

craft maintenance procedures, they not be deprived of the

expertise of the National Transportation Safety Board when

the statute entitles them to a trial de novo in that forum

rather than in a United States district court.”

Section 601 (49 U.S.C., Section 1421) charges the Ad-

ministrator with the duty and power to prescribe and

revise “reasonable rules and regulations and minimum

7 As distinguished from in rem actions against aircraft. Cf., 49

US.C., Section 1473.

The District Court admitted in this case that the repair pro-

cedure was too technical for it to understand. R. Vol. I, p. 453.

19

standards governing in the interest of safety, the inspec-

tion, servicing and overhaul of aircraft, aircraft engines,

propellers and appliances.” The statute does not authorize

air carriers to prescribe or revise rules and regulations and

minimum standards and it does not authorize the Admin-

istrator to delegate that rule making authority to an air

carrier. Neither does it authorize the Administrator to use

the district court procedure to impose a civil penalty upon

an airman for violation of an air carrier’s repair pro-

cedure which has never been approved by him as a satis-

factory minimum standard.

In Shankland v. Washington, 5 Pet. 390, 8 L.Ed. 166,

this Court established the rule applicable in cases of dele-

gated authority and has never deviated from it. It was there

stated: “It is a general rule that in all cases of delegated

authority where personal trust or confidence is reposed in

the agent and especially where the exercise and applica-

tion of the power is made subject to his judgment or dis-

cretion, the authority is purely personal and cannot be

delegated to another unless there is a special power of

substitution, either express or necessarily implied.” The

President of the United States necessarily has implied au-

thority to redelegate discretionary authority delegated to him

by Congress. Shreveport Engraving Co. v. United States,

143 F.2d 222, Sth Cir., 1944, cert.den., 323 U.S. 749,

reh’g den., 323 U.S. 815. But for an inferior administra-

tive official to delegate discretionary authority requires ex-

press authorization. [Cudahy Packing Co. v. Holland, 315

U.S. 357 (1942)], except where the nature of the power

necessarily requires delegation. N.L.R.B. v. Duval Jewelry

Co., 357 U.S. 1 (1958). The rule making authority has

never been held subject to redelegation even by the Presi-

PRL! AAS RAS TAI BO BEE BOLE EER WMT PIE

20

dent. Cf., Panama Refining Co. v. Ryan, 293 U.S. 388

(1935); Schechter Poultry Co. v. United States, 295 U.S.

495 (1935).

The delegation to an air carrier of authority to establish

repair procedures having the dignity of a rule promulgated

by the Administrator himself, not only deprives interested

parties of the protection of the Administrative Procedures

Act in the promulgation of the rule (cf., Allen W. Hayes

v. United States, 264 F.2d 929, 2nd Cir., 1959), but it

also authorizes the air carrier to suspend the rule without

the approval of the Administrator through the action of a

repair foreman instructing employees to deviate from the

rule.”

The danger of such an occurrence is demonstrated in the

present case; in fact, leadman Garrett was held responsible

for the work of competent mechanics to whom he had

assigned the propeller assembly because the rule of the

carrier stated that a part of his job duties was to be re-

sponsible for their work. But he was prevented from carry-

ing out that responsibility by being instructed to perform

the more important emergency responsibility of returning

a 737 jet aircraft to service which engaged his entire atten-

tion while the propeller was being assembled.

Congress provided for imposition of civil penalties by

the district courts where the Act or a rule, regulation or

order issued under the Act had been violated; but it gave

the Administrator virtually unlimited scope in disciplining

* Foreman White of Eastern testified that the propeller build-up

sheet (Govt. Ex. 2, R., Vol. II, p. 2) was prepared at the Atlanta

repair facility under his direction (R. Vol. I, 151. Subsequently in

November, 1965, a revised build-up sheet (Defendants’ Ex. 4, R.

Vol. II, p. 20) was prepared. (R. Vol. I, p. 181, 182)

21

airmen by certificate action. The courts were given au-

thority only to apply the studied language adopted by

Congress and by the Administrator, but the Administrator

was given authority to punish even for violation of cus-

toms, practices and unwritten law. As a protection to

certificate holders, however, Congress provided a de novo

review before the National Transportation Safety Board

of disciplinary actions taken by the Administrator. Cer-

tificated airmen should not be deprived of the right to have

technical matters reviewed by the expert tribunal estab-

lished by Congress for this purpose and especially is this

so where such a construction of the statute does not impair

its effective administration in any respect but, to the con-

trary, adheres to the obvious intent of Congress to entrust

to the district courts only the construction of clear lan-

guage adopted by Congress or by the Administrator him-

self after due deliberation and publication pursuant to the

Administrative Procedures Act. The authority of the Ad-

ministrator, as found by the District Court, is broad; but

it is not so broad as to permit him to extend or vary the

statute. Cf., Kashland v. Helvering, 298 U.S. 441; Fed.

Communications Commission v. American Broadcasting

Co., 347 U.S. 284, re’h. den. 347 U.S. 965; Peters v.

Hobby, 349 US. 331.

THE BROAD AND LIBERAL APPLICATION OF

THE CIVIL PENALTY STATUTES IN THIS

CASE CONFLICTS WITH OTHER DECISIONS

HOLDING THAT PENALTIES SHOULD BE

STRICTLY CONSTRUED AND APPLIED.

In Pike v. Civil Aeronautics Board, 303 F.2d. 353, 8th

Cir., 1962, in deciding whether Section 901, the civil

22

penalty statute, should be applied, the Court said: “Such

a penalty certainly is punitive,” and held that, in deciding

whether a civil penalty should be imposed, both the statute

and the regulation alleged to have been violated should

be construed “with an attitude of reasonable strictness”.

Likewise, in United States v. Proper, 7 AVI. 18, 173,

U.S.D.C., N.Y., 1962, it was held that a pilot had the

right to rely on the manual and regulations of the air car-

rier by whom he was employed where the civil air regula-

tions were so ambiguous as to cast doubt in the pilot’s

mind as to a proper determination of a Federal Aviation

Agency inspector’s right to access to the flight deck of an

aircraft in flight; and a complaint for a civil penalty against

the pilot was dismissed. These decisions comport with the

usual rule that penalty statutes are to be strictly construed

and applied. No other decision prior to that of the 5th

Circuit in the present case departs from this basic concept

of statutory construction.

Perhaps this appears to be a conflict of decision of small

import; however, the adoption of a liberal or broad, rather

than a strict, construction of a penalty statute carries with

it a vast difference in the burden of proof resting upon

the Government, tantamount to a shifting in the burden

of proof. This shifting of the burden is manifest in the

present case. The Government introduced no evidence that

petitioners failed to follow the repair procedures which

had been prescribed by Eastern Airlines. It relied entirely

upon a presumption that if prescribed repair procedure had

been followed the error in the assembly of the propeller

would not have occurred. Notwithstanding the positive

and uncontradicted testimony that the usual procedures had

been followed, the District Court adopted this presumption

as sufficient to sustain a violation. He found: “Thus, proof

23

of the accepted method carries the burden of establishing

the basis for violation” (R. Vol. I, 456), and “While such

instructions are verbose, technical and beyond the practical

comprehension of all except the most experienced me-

chanic, a literal adherence to them would have affected a

proper assembly in this instance” (R. Vol. I, 453). The

District Court made no affirmative finding of evidence that

petitioners did not adhere to the prescribed repair pro-

cedures and indeed he could not, because there was none;

and in reaching this finding he ignored completely the

uncontradicted testimony of Petsch and McQuillen that

an error in assembly could occur, and had occurred in other

cases, even though the prescribed procedure was followed.

The District Court held that “The regulatory powers under

the Act are broad” (R. Vol. I, 456).

These findings and this broad and liberal application of

the penalty statute were approved by the Circuit Court

without opinion.

Thus, the proper approach to all government regulation

is involved in the determination of whether the penalty

statute shall be strictly construed or broadly construed.

Never does a person subject to penalty need the protection

of the law more than when he is dealing with the enforce-

ment officials of the sovereign, and this is particularly true

where the Government representative is both the giver of

the law and the enforcer.

Ill.

PUBLIC SAFETY DEMANDS THAT BLAME BE

PLACED WHERE BLAME IS DUE.

Each day we see segments of our nation’s population in

revolt against injustices in our system of government—in

24

schools, in employment, and in our judicial system itself.

Bombs explode in public buildings, killing and maiming

the innocent, as evidence of the intensity of emotions which

a sense of injustice can engender. It is imperative to public

safety in air transportation, that, in their dealings with the

government, the persons responsible for the mundane as-

pects of air safety not be burdened with the oppression of

injustice and a sense of persecution. That the knowledge of

a job well done is its own reward is implicit in the testimony

and attitude of petitioners and their witnesses; but that

attitude of responsibility for public safety can better be cul-

tivated by the further knowledge that the job well done

will be appreciated and by knowledge that blame will be

placed where blame is due, than by fear of unjust prosecu-

tion. Resentments inculcated by unjust criticism and futility

of endeavor breed negligence as well as outright violence.

It is, therefore, imperative that the Government be scrupu-

lously fair in its regulation both on the administrative level

and on the judicial level. The Administration must con-

stantly guard against inequities which are prone to grow

from fraternalism between its representatives and the super-

visory representatives of airlines with whom they deal on a

daily, first name basis.

The primary responsibility for safety in the maintenance

of commercial civil aircraft is placed upon the air carrier.

United States v. Lockheed Aircraft Service International,

Inc., 202 Fed.Supp. 665, E.D. N.Y., 1962; F.A.A. Regu-

lations, Section 121.363; 14 C.F.R., Section 121.363. The

maintenance departments of air carriers are subject to the

constant pressure of the needs of the service and there is

constant temptation to take short cuts in returning aircraft

to service. This is recognized by F.A.A. Regulations in pro-

viding that each aircraft, after it is repaired, will be ap-

eens aoe

25

proved for return to service by a certificated inspector and

that the inspector, as an employee of the air carrier, must

be under different supervision from the repair and

maintenance department. F.A.A. Regulations, Sections

121.365(b) and (c); 14 C.F.R. 121.365(b) and (c).

Thus the Regulations seek to provide for the public safety

by removing the pressure of the needs of the service from

the inspectors who certify the aircraft for return to ser-

vice."

In the present case the propeller assembly sheet (Gov-

ernment Exhibit 2) was prepared by the Atlanta repair

facility of Eastern Airlines. It was not included in the main-

tenance manual of the air carrier and was never approved

by the Administrator as an adequate build-up aid.” In fact,

the procedure for assemblying propellers following over-

haul is not described at all in the portion of the air carrier’s

maintenance manual which is maintained in Atlanta. The

assembly procedure sketchily covered by the assembly sheet

was handed down by word of mouth from mechanic to

mechanic. The assembly sheet did not require the reorienta-

tion of the protractor in the plane of each blade before that

blade was installed and the mechanics had not discovered

at the time the present case arose that such reorientation

is essential to avoid error in the insertion of blades. Sub-

sequently the mechanics themselves, under the auspices of

the safety program sponsored by their Union, the Inter-

national Association of Machinists, made an investigation

19. See also the additional precautions to insulate inspectors from

service pressures in Regulation 121.369(8).

2° The propeller build-up sheet is not a maintenance procedure

in and of itself. However, the maintenance manuals of air carriers

do contain build-up sheets which are a part of the maintenance pro-

cedures described in the manuals (R. Vol. I, 167, 168).

26

to discover why errors occurred in the insertion of blades

in Atlanta. McQuillen, the safety director who made the

investigation, did not make a positive determination of the

reasons why the errors occurred but he did discover that

the errors could be avoided by a reorientation of the pro-

tractor. The evidence shows that the protractor is a man-

ually held instrument, separate from and unattached to the

stand on which the propeller being assembled is mounted.

It shows that there are irregularities in the concrete floor

of the hangar and that the collar on the propeller stand was

loose so that it was possible for the hub of the propeller to

come to rest out of plumb with a true vertical axis when it

was placed on the stand. (R. Vol. I, 405-407). The evi-

dence also shows that in some better equipped repair shops

the protractor is incorporated as a physical part of the pro-

peller stand itself so that the measurements made by this

more elaborate device are relative to the stand rather than

to the earth’s gravitation. (R. Vol. I, 248, 249)

Even “the most experienced mechanics” should not have

been expected to know that when the template and scale

of an instrument which measures angles by gravitation is

zeroed relative to a propeller hub which is inclined out of

true vertical, the angular scale of the instrument will give

an erroneous measurement in a plane at 180° on the hub

from the plane in which the instrument was zeroed and

that the angular error in degrees will be double the incline

of the hub in the plane in which the instrument was

oriented. The physical fact that such an error will result

unless the instrument is reoriented before each measure-

ment is made is demonstrated by the diagrams contained in

Appendix D, infra, pp. 30a-31a. Perhaps a professional en-

gineer might have anticipated that such an error would

occur; but Foreman White, the F.A.A. Regional Represen-

—, ba

27

tatives, the District Court and the Circuit Court apparently

did not perceive it even when pointed out and explained

to them. Hourly-paid mechanics should not be expected to

anticipate error when none of the instructions given them

by the Airline told them that reorientation is essential be-

fore each blade is measured if error is to be avoided.”

Subsequent to the event in question Eastern Airlines

repaired the propeller stands. It also began painting index

marks on the hub and on each propeller blade at the proper

angle of insertion at the time propellers were overhauled

at the Miami repair base and it adopted a four-step as-

sembly sheet which requires each blade to be separately

measured with the protractor. Notwithstanding all of these

facts the Courts below failed to perceive that the unap-

proved assembly procedure in effect when this case arose

was inadequate to insure against error.

Foreman White of Eastern Airlines, the employee of

Eastern who is responsible for proper repairs at the Atlanta

hangar and who was responsible for the promulgation of

the assembly sheets, was the chief witness for the Govern-

ment. It does not appear that either Eastern Airlines or

Foreman White were disciplined because of the events in

21 The only instructions on the use of the protractor contained in

the maintenance manual in Atlanta are in Court’s Exhibit A, pages

65-67, (R. Vol. Il, p. 65-67). At page 67, mechanics are instructed

that each blade on a propeller mounted on an aircraft must be

checked with the blade in the 9 o’clock position. This instruction

insures that the blade to be checked is always in the same plane

as that in which the instrument is oriented and accomplishes the

same function as reorienting the instrument before each measure-

ment. But such is not the equivalent of an instruction that, when a

propeller is being assembled in the shop mounted horizontally on

a stand and incapable of being rotated, the instrument must be re-

oriented in the plane of each blade before that blade is measured.

28

question but it does appear that precautions ultimately

were taken by them to avoid the repetition of the event.

When these circumstances are viewed in the light of the

uncontradicted testimony of McQuillen as to the inade-

quacy of the instructions which had been given to the me-

chanics upon the use of the protractor, it is shown that the

blame in this case was not placed where it was due. This

inference of fraternalism between representatives of F.A.A.

and of the air carrier so as to avoid placing responsibility

where it is due contributes greatly to the assumption by

this case of its status of importance to petitioners and their

fellow mechanics.

This inference is accentuated by the prosecution of lead

mechanic Garrett whose only act in connection with the

assembly of the propeller was to assign mechanics of un-

questioned competence to perform the work and who was

prevented by his assignment to other more important

emergency duties from personally supervising the propeller

assembly, Garrett was involved only because his job de-

scription provides that he is responsible for the work of his

crew. By the same token, Foreman White is likewise re-

sponsible, as is the air carrier. The prosecution of Garrett

is in sharp contrast to the abandonment by the Govern-

ment of the case against Petsch. Petsch participated in the

actual assembly of the propeller as fully as did McDaniel

but the evidence shows that at the time of the trial he had

been made a foreman. There is absolutely no justification

in the evidence for a difference in the case against Petsch

and that against McDaniel. Walters, the electrician, per-

formed more work on the propeller than any other em-

ployee but he was not as directly involved in the mechanical

insertion of propeller blades as were Petsch and McDaniel.

To say that the injustice in the conduct of the Govern-

—

29

ment and in the judicial result in this case has perplexed

and astounded counsel for petitioners is a gross understate-

ment. It is no doubt always an error to feel that a case

can have only one outcome but we are unable tc under-

stand how the District Court and the Circuit Court were

unable to perceive the error and the injustice in the result

which they espoused.

If mechanics responsible for safety in air commerce do

not receive scrupulously fair and equal treatment both by

the Administration and by the courts and if they are to feel

that responsibility for errors of the air carrier can be passed

to their shoulders, notwithstanding their conscientious in-

terest in and efforts toward air safety, it cannot be expected

that their devotion to duty shall not suffer.

CONCLUSION

For each of the foregoing reasons, the petition for a Writ

of Certiorari should be granted.

Respectfully submitted,

PLaTo E. PApps

Louis P. POULTON

J. R. GOLDTHWAITE, Jr.