Petition for Writ of Certiorari — Air East, Inc. v. National Transportation Safety Board

Supreme Court brief1975

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“PLT eT cee ke 2 oo

PREME COURT

— JUL 3 1975

MICHAEL RODAK, JR..CLERK

In THE =

Supreme Court of the United States

OCTOBER TERM, 1975

No. 5 > ] 2 |

AIR EAST, INC., d/b/a ALLEGHENY COMMUTER,

AIR EAST, INC., CHARLES ALLAN McKINNEY,

JAMES AVERY TALLENT, JEFFREY H. WILKIN-

SON and THOMAS REDDECLIFF,

Petitioners,

VS.

NATIONAL TRANSPORTATION SAFETY BOARD

and ALEXANDER P. BUTTERFIELD, Administrator

of the Federal Aviation Administration,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

Wa ter FE. RurHerrorp

Attorney for Petitioners

One State Street Plaza

New York, N. Y. 10004

TABLE OF CONTENTS

I TOGO inns i'n hn he Cae adetensbavedsiacens

pS ERE RTE ry aes eC REY Pepe ee ey eee

SE UID «is biceencsacnncsaeessencaetcas

i oe ect cuts Céecenneahhaawes

er rE

Reasons for Granting the Writ .................055

The summary revocation of the aviation li-

censes herein without adequate statutory or regu-

latory guidelines and without a prior hearing was

a violation of due process .............00 eee eens

The failure to grant the petitioners procedural

due process with respect to their appeals from the

summary revocations was contrary to constitu-

tional and regulatory precedent ................-

ms Oy Fs

The failure to make specific charges ........

The failure to dismiss stale charges .........

Failure to dismiss charges not alleged to be

in violation of any regulation or statute ....

The Administrator supplied the Board and the

Law Judge with prejudicial material outside of

Ce ID inchs wk 00s Cay c eanshecd cadens oe

. Inadequate findings of fact, conclusions and

el ee I ee A nck cae bees

. Failure to apply correct principles of law ....

. Failure to give adequate time to prepare an

appeal and grant oral argument ............

. Refusal to pass upon the constitutionality and

application of various federal air regulations

Revocation was not an uathorized penalty ...

Ct te ee pe ee een aeeake

eR RR RN ck a ee ERR LNT FI Fa ES

ii TABLE OF CONTENTS

TaBLE oF Cases CiTED PAGE

Administrator v. Babbitt, 1 N.T.S.B. 1305 (1971) .... 25

Administrator v. Bradway, 45 C.A.B. 956 (1966).... 30

Administrator v. Buchanan, 45 C.A.B. 973 (1966) .... 25

Administrator v. Cochran, 1 N.T.S.B. 136 (1967).... 34

Administrator v. Donoghue, 1 N.T.S.B. 1568 (1972) .. 24

Administrator v. Fabian, 31 C.A.B. 1106 (1960) .... 34

Administrator v. Lloyd, 1 N.T.S.B. 1826 (1972) .... 38

Administrator v. Musso, 30 C.A.B. 1610 (1960) .... 24

Administrator v. Roberts, 1 N.T.S.B. 1627 (1972) .... 38

Administrator v. Robertson, Docket No. 74-450,

decided June 24, 1975, 43 Law Week 4833 ...... 14

Airerane, Inc. v. Butterfield, 369 F. Supp. 598 (E.D.

ls SE soca edad 7 eee rr ee 10, 11, 12, 13, 19

American Smelting & Refining Co. v. Federal Power

commission, 494 F. 2d 925 (D.C. Cir. 1974) .... 28

Andrews v. Knowlton, 509 F. 2d 898 (2d Cir. 1975),

pet. for cert. filed March 26, 1975 (Docket No.

EE RTM Mce NG Races EN Sas be eMac ceenes 25

Armstrong v. Manzo, 380 U. S. 545, 85 S. Ct. 1187, 14

SEE EMD cbs bc ba. 4644.5 64046's c0se0s eee 22

Bell v. Burson, 402 U. S. 535, 91 S. Ct. 1586, 29 L. Ed.

ee i cee n ens ained eave ® 7

Bence v. Breier, 501 F. 2d 1185 (7th Cir. 1974) ...... 38, 39

Blackwell College of Business v. Attorney General,

454 F. 2d 928 (D.C. Cir. 1971) .............. 20, 23, 39

Boddie v. Connecticut, 401 U. S. 371, 91 S. Ct. 780, 28

ered he vs bpd ee ese ches cans

TABLE OF CONTENTS iii

PAGE

Brady v. Maryland, 373 U. S. 83, 83 S. Ct. 1194, 10

DL REED 64ecs KKackianecnkdecusteks 31

Braniff Airways, Inc. v. Civil Aeronautics Board, 306

oe ei” Se | er errr re rrr er 28

Breeden v. Weinberger, 493 F. 2d 1002 (4th Cir. 1974) 338

Camero v. United States, 375 F. 2d 777 (Ct. Cl. 1967) 27

Carey v. Civil Aeronautics Board, 275 F. 2d 518 (1st

- ® RRy er Cerat r 28

Commissioner v. Duberstein, 363 U. S. 278, 80 S. Ct.

1190, 4 L. Ed 2d 1218 (1960) .................. 29

Cross v. United States, 512 F. 2d 1212 (4th Cir. 1975) 39

Delaware; L. & W. R. Co. v. City of Hoboken, 10 N. J.

8. ee rer ree 28

Denton v. Yazoo & Mississippi Valley Railroad Co.,

284 U.S. 305, 52 S. Ct. 141, 76 L. Ed. 310 (1932) 35

Environmental Defense’ Fund, Inc. v. Ruckelshaus,

459 F. 2d 564 (D.C. Cir. 1971) 0... ccc ccceces 16

Environmental Protection Agency v. Mink, 410 U. S.

73, 93 S. St. 827, 35 L. Ed. 2d 119 (1973) ...... 16

Federal Communications Commission v. WJR, 337

U.S. 265, 69 S. Ct. 1097, 93 L. Ed. 1353 (1949) .. 36

Fuentes v. Shevin, 407 U. S. 67, 92 S. Ct. 1983, 32

Sh DOE Ge We A 4 Ce ke bcib head banecknns 8, 13, 17

Giaccio v. Pennsylvania, 382 U. S. 399, 86 S. Ct. 518,

BD Ba, Se ee EE ROD 36k ncn Sa vdes vawansndes 16

Giglio v. United States, 405 U. S. 150, 92 S. Ct. 763

eee SU Os Rr er reer 32

Goldberg v. Kelly, 397 U. S. 254, 90 S. Ct. 1011, 25

Sk Geek ee ET CE 2b a Corkidacaces Nab kecouenuas 13

. - > aaeE Rae 2% es orn ct Gir nb tal die ihe bela aati Mile SERS ey SERS

asta ai aiity is eithcth ating Sates Nie cia i Sk ae all ve

iv TABLE OF CONTENTS

PAGE

Gonzalez v. Freeman, 334 F. 2d 570 (D.C. Cir.

EE nin nen stndrh ahs anc cares) oven teed 16, 17, 39

Goss v. Lopez, —— U. S. ——, 43 Law Week 4181

mr ee eer Serre eae 20

Grayned v. City of Rockford, 408 U. S. 104, 92 S. Ct.

2294, 33 L. Ed. 2d 222 (1972) ............0000. 16, 25

Greater Boston TV v. F.C.C., 444 F. 2d 841 (D.C.

TE SE odes cPth CIN TMS ke kk ae ee Kaba was an 33

Holmes v. New York City Housing Authority, 398 F.

ee Ee es EE bk otek Ws bead Cane s6 ac curs 16

Hornsby v. Allen, 326 F. 2d 605 (5th Cir. 1964) .... 16

In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527

EE 23 CONUS TAs Wade LACGet case tah ae aen ents 23

In re Oliver, 333 U. S. 257, 68 S. Ct. 499, 92 L. Ed.

CIR dae Chal Vek te ous oe uu wee wes Sean 22

In re Ruffalo, 390 U. S. 544, 88 S. Ct. 1222, 20 L. Ed.

SIRT oe eos ce van shana en bed KKS 22

Londoner v. Denver, 210 U. S. 373, 28 S. Ct. 708,

Se ae EEE. a oxi 6s Sa ewes ome teen a8 37

Morgan v. United States, 304 U. S. 1, 58 S. Ct. 773,

ge he ee 22

Morrissey v. Brewer, 408 U. S. 471, 92 S. Ct. 2593,

SE Eas EC A UD COED 65's ce ona cine fee epenas 20

Nadiak v. Civil Aeronautics Board, 305 F. 2d 588 (5th

Cty SOE Saeco sees cs Perererrtr rere errr eee 27

Napue Vv. Illinois, 360 U. S. 264, 79 S. Ct. 1173, 3 L. Ed.

Be ows 3A 000 in COR iid BABE Oh wk sgn dec 32

National Labor Relations Board v. Florida Citrus

Canners Cooperative, 311 F. 2d 541 (5th Cir.

TABLE OF CONTENTS Vv

PAGE

N.L.R.B. v. Union Pacifie Stages, 99 F. 2d 153 (9th

KR PPT PTTUTET STE CTT EET CST Teer 30

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

See WE Wey Cena Tene hUes bee Cbae cs dete ee newas 38, 39

Portable Electric Tools, Inc. v. National Labor Rela-

tions Board, 309 F. 2d 423 (7th Cir. 1962) ...... 33

Priority Air Dispatch, Inc. v. Brinegar, not off. re-

ported, 12 CCH Aviation Reporter 18,046 (D. D.C.

BOE Wane cha Ce Cana dete oe fdas 4a Fs 9,10

Priority Air Dispatch, Inc. v. National Transporta-

tion Safety Board, F. 2d (D.C. Cir.

June 19, 1975, Docket No. 73-2169, slip opinion

WR, THUIOOD: kas view viele Cea scncundivien sage nas 7, 10,19

Rothschild v. New York, 388 F. Supp. 1346 (S.D.N.Y.

EE Re ee oe eee eee eee eee Tei 33

Russell v. United States, 369 U.S. 749, 82 8. Ct. 1083,

BS Le. Bed. SABO (1GGZ) oon onc. cc ccc cc cwcwcscnsss 22

Saginaw Broadcasting Co. v. Federal Communica-

tions Commission, 96 F, 2d 554 (D.C Cir. 1938) 28

Sarzen v Caughan, 489 F 2d 1076 (1st Cir 1973) .... 23

Schneiderman v, United States, 320 U. S. 118, 63 S.

Ct. 1588, 67 LL. Bed. TOG (1BE3) 2... 2 ec enccces, 30

Securities and Exchange Commission v. Chenery

Corp., 318 U. S. 80, 63 S. Ct. 454, 87 L. Ed. 626

NN Ie aia dead t chilies 29, 35

Service v. Dulles, 354 U.S. 363, 77 S. Ct. 1152, 11 L.

eR kk y eer err yee rere 21

Shreve v. Hot Shoppes, Inc., 184 F. Supp. 436 (D.D.C.

Ba nner oar Br ere Fey Ci eee ee 33

United States v. Banks, 16 Crim. L. Rep. 2090 (D.

Eh. Cope B, Faeee nsec cesavencvicasaeaves 27

vi TABLE OF CONTENTS

United States v. Comyns, 248 U. S. 349, 39 S. Ct.

be 8 fs reer ree

United States v. Harper, 335 F. Supp. 904 (D. Mass

1972), appeal vacated and dismissed as moot, 406

NT Ee

United States v. Jannsen, 339 F. 2d 916 (7th Cir.

in bisa ht ea hai CUR tk AMS hKda 00d GUA

United States v. MeCord, —— F. —— (D.C. Cir.

Dee. 12, 1974), slip opinion pp. 22-28, 43 Law

PP Serre rer errr Tre Terese

United States v. Mitchell, 372 F. Supp. 1239 (S.D.N-Y.

DBF) hc ciwe cds ncaa ercnsceesesiossacwsvaseuase

United States v. Murray, 445 F. 2d 1171 (8d Cir.

ss. i Hehe aka wk ER hic ts Cha Re en eds de

United States v. Nixon, 42 Law Week 5237, 5241 (July

PES Kasdd ORES cis CGNKWS A award da grienle anes

United States v. Ozark Air Lines, Inc., 374 F. Supp.

234 (E.D. Mo. 1974), aff'd 506 F. 2d 526 (Sth

ES PECBS dickens Meh bance eee ked wake

United States v. Pennsylvania Industrial Chemical

Corp., 411 U.S. 655, 93 S. Ct. 1804, 36 L. Ed. 2d

SE EE Cah ck UAG Rass chaeh bbe ssp sens caeess

United States v. Russo, Crim. No. 9373 (C.D Cal.

EE REC AeaL CETL is che hoa esas ayiean saa hs

United States ex rel. Accardi v. Shaughnessey, 347

U.S. 260, 74S. Ct. 499, 98 L. Ed. 681 (1954) ....

Universal Camera Corp. v. N.LR.B., 340 U. 8S. 474,

71 S. Ct. 456, 95 L. Ed. 456 (1950) .............

Vitarelli v. Seaton, 359 U. S. 535, 79 S, Ct. 968, 3 L.

Bh Se BRS GROUP hiv ving cvenassswcascracncas 21, 22

PAGE

TABLE OF CONTENTS vii

Waters v. Peterson, 495 F. 2d 91 (D.C. Cir. 1973) .... 389

WIBC v. Federal Communications Commission, 259

F. 2d 941 (D.C. Cir. 1958), cert. den. 358 U.S. 920,

79 S. Ct. 290, 3 L. Ed. 2d 239 (1958) ............ 37

Wolff v. McDonnell, —— U. 8S. , 42 Law Week

5190, 5198 (June 26, 1974) ............... 00 eee 20

REGULATIONS

Federal Air Regulations:

Ft Bo” Rh re eer Pee errr ere re 8

8 Pe rr er err err re 8

§$13.19(b), as modified 38 Fed. Reg.

RN NS oie ey ecuay aes 18

GAs ise Cetera es Tore ere 18

SPP ee eee TCT eee Cen 37

BES Nica Red WAKA SORE FARR EAA SER WS 37

SUE CubG Osh FASC ORR EMC GOR KOC REX 37

Sai rere 37

Part 61, Subparts DandE .......... 24

EE ces bucachekak as hadi hckedna 30

Ee ee Pr errr Tre 39

RE sd ed deed ban dana cisesecens 39

is oe ee. | | rr 24

SUE acu kocee ie hea hae uniaeek seaa 39

SEE nw GA WRK CRO AS RARE OR axa nRcaus 39

lO rer reel ror Te 39

LOSI E Bal AERP LYS Toy ROOT sua ERA AE PRION OL ATA TM

viii TABLE OF CONTENTS

PAGE

Os ESR eo XS 37

URE bi teas & sei be kek 37

RR eee eee 37

OC” SABC SAE Rete COR eae 37

NNR os, ALGAE ees <3 eke oy 37

tre ah ke 37

eur oh 25, 26, 37

14 C.F.R. Part 135, Subpart A ................ 24

RMN Coles ti twanhictete deeisia 37

1 Seeger an uae ee ene 37

Part 145, Subparts A and B........ 24

A a ERS: 5 Ae i Rane aaa 37

NTSB Regulations:

Were SE 2c A 21

5 Spi ARs Aaa ied eet oie 21

SER or gn eS nen re 23

MMII 7 oe eae es eR 27, 28

Se ates 28

(MII onda og got 36

STATUTES

OOOO A: SOBA oi io ccd cs Sek, 30

ls Sag Eee ae canyon Ne Rp 30

ON eee codencnsas estans 18

WO acy sisi vo ov om vcccnc ccs 34

TABLE OF CONTENTS ix

PAGE

49 U.SiC.A. $§ 1422, 1494, 1497 ... 0. cece 24

CP TR, SB ha 5 08S hia ccsecinn 3, 4, 8, 18, 38, 39

oe re ee 3, 4, 8, 15

oe SN ee ee ee re 33

ee eS ee Perr ee 8

OTHER AUTHORITIES

Case Note, 40 J. Air Law & Com. 749 (1974) ........ 11

Davis, Administrative Law Text, page 52 (3d Ed.

OE ec ca Pete un savas euler ea nikeone 17

Davis, Administrative Law Text, § 8.02, pare 197

SPE sy hi 4c ha sbsdes ceed ces wekewucaeS 23

2 Davis, Administrative Law Treatise, Chapter 16

SR: Be I 55 a oa ep ekuseekandheawchs 28

FAA Manual “Terminal Air Traffic Control,’’ order

7110.8C published 1 January 1973 as amended—

POORE SG OF CEE BHO ov casvcustidsccnecescdes 26

Freedman, Summary Action by Administrative Agen-

cies, 40 Univ. of Chicago L. Rev. 1 (1972) ...... 20

38 Fed. Reg. 26,444 (1973) ........... cc cece cece eee 18

ES tor RSMO ASCO, SELON eS =

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

Ar East, Inc., d/b/a ALLEGHENY Commuter, Air East,

Inc., Cuartes AuLAN McKryney, James Avery TALLENT,

JerrrEY H. Witxrnson and Tuomas Reppecwirr,

Petitioners,

vs.

NaTIoNAL TRANSPORTATION Sarety Boarp and ALEXANDER

P. Burrerrietp, Administrator of the Federal Aviation

Administration,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

Petitioners Air East, Inc., d/b/a Allegheny Commuter,

Air East, Inc., Charles Allan McKinney, James Avery

Tallent, Jeffrey H. Wilkinson and Thomas Reddecliff re-

spectfully pray that a writ of certiorari issue to review

the judgment and opinion of the United States Court of

Appeals for the Third Circuit entered in this proceeding

on March 13, 1975.

Opinions Below

The opinion of the Court of Appeals, reported at 512 F.

2d 1227 (3d Cir. 1975), appears in Appendix B hereto. The

opinion of the National Transportation Safety Board,

OEE FS RNY

io Bh te Nt

— FY EAT SPOLETO LTO AES EY

THA RITE SOI MTA: TORE

reported as NTSB Order No. EA-581, appears in Ap-

pendix C hereto. The opinion of Administrative Law

Judge Fred L. Woodlock appears in Appendix D hereto.

Jurisdiction

The judgment of the Court of Appeals for the Third

Circuit was entered on March 13, 1975. A timely petition

for rehearing en banc was denied on April 7, 1975. This

petition for certiorari was filed within ninety days of the

latter date. This Court’s jurisdiction is invoked under

28 U.S.C. § 1254(1).

Questions Presented

1. Whether the summary revocation of petitioners’ avia-

tion licenses without adequate statutory or regulatory guide-

lines and without a prior hearing is a violation of due

process of law.

2. Whether the petitioners were denied due process on

tthe review of the summary revocations of their aviation

licenses

(a) by the failure to give adequate notice of the

charges alleged;

(b) by the failure to dismiss stale charges;

be in violation of any regulation or statute;

(d) by the Administrator’s supplying the Board and

the Law Judge with prejudicial material outside of

the record;

(e) by the failure of the Law Judge and Board to

make adequate findings of fact and conclusions of law

and to specify the reasons therefor;

(f) by the failure of the Law Judge, Board and

Court of Appeals to apply correct principles of law;

(g) by the failure of the Board to give the peti-

tioners adequate time to prepare their appeal and by

denying them oral argument;

(h) by the refusal of the Board and Court of Ap-

peals to pass upon the constitutionality and application

of various federal air regulations; and

(i) by applying the sanction of revocation when

the petitioners did not violate any federal aviation

regulation which provided for the penalty of revocation.

Statutes Involved

The statutory provisions involved are in Title 49, United

States Code §§ 1429, 1485(a), which are printed in Ap-

pendix A hereto.

Statement of the Case

Prior to March 7, 1974, Air Kast, Inc., conducted sched-

uled air taxi passenger operations serving the Pennsy]-

vania communities of Pittsburgh, Johnstown, Altoona and

Harrisburg, and scheduled air mail operations serving

Pittsburgh, Johnstown, Bradford, DuBois and Harrisburg.

In connection with its air taxi operations, Air Kast was

also an authorized aircraft repair station. The individual

petitioners herein were pilots employed by Air East in con-

nection with its flight operations, except for the petitioner

Reddecliff, who was chief mechanic for the repair station.

Air East, Inc, was the holder of an Air Taxi Commercial

Operator Certificate issued on August 21, 1969, and a Re-

pair Station Certificate issued on August 21, 1970. Peti-

tioners Charles Allan McKinney and Jeffrey H. Wilkinson

were holders of commercial pilot certificates, while peti-

P86 ARSE ES SEER SALARIES

tioner James Avery Tallent was the holder of an airline

transport pilot certificate. Petitioner Thomas Reddecliff

was the holder of a mechanic’s certificate with airframe and

powerplant ratings. All of the aforesaid certificates were

issued by the Federal Aviation Administration (hereinafter

referred to as the FAA).

On or about January 18, 1974, the Administrator under-

took a review of Air East’s operations and, after inter-

viewing various former employees and examining various

records over a seven-week period, apparently concluded

that Air East’s operations as well as the piloting of its man-

agement personnel constituted an emergency to air com-

merce. At no time were petitioners requested to partici-

pate in the FAA investigation, advised of the charges

against them, or asked for an explanation concerning the

charges alleged against them.

On March 7, 1974, John J. Keyser, Assistant Chief Coun-

sel of the FAA, purportedly acting on behalf of the Ad-

ministrator of the FAA, issued emergency orders of rev-

ocation which immediately revoked all of the certificates

above mentioned (R. I 1-27"). The alleged statutory au-

thority cited for such orders was Sections 609 and 1005(a)

of the Federal Aviation Act of 1958, as amended, 49

U.S.C.A. §§ 1429 and 1485(a) (reproduced in Appendix

A). The petitioners appealed said orders to the National

Transportation Safety Board (hereinafter referred to as

the NTSB or the Board) on or about March 11, 1974, and

the Administrator filed his complaints (exact duplicates

of the emergency orders, R. I 37-42) on March 14, 1974.

The cases were consolidated and assigned to NTSB Law

Judge Fred L. Woodlock. A pre-trial conference was held

* As used herein, “R. I 1-27” refers to the Record (R.) in the

Court of Appeals, the volume thereof (I), and the pages therein

(1-27) where the documentation is located. The Clerk of the Court

of Appeals has been requested to transmit a certified copy of the

record to this Court pursuant to Supreme Court Rule 21(1).

on March 20, 1974, at which time various orders relating to

discovery were entered, including an order directing the

Administrator to serve bills of particulars as to each

charge because of lack of specificity in the complaints (R.

II 356-361). Trial began on March 21, 1974.

On Friday, March 22, 1974, the Administrator gave to

the Chairman of the NTSB, ex parte and outside the offi-

cial records, certain defamatory material relating to the

petitioners herein and impliedly criticizing certain dis-

covery rulings made by the Law Judge that were adverse

to the Administrator. A copy of this material was also

given to the Law Judge and to petitioners’ counsel at the

close of the day’s proceedings on March 22, 1974. On Mon-

day, March 25, 1974, the petitioners moved to dismiss the

charges based upon this improper and unethical approach

by the Administrator to the Law Judge and the Board

(R. I 248-258). The Law Judge denied said motion (R. VII

357-368).

On April 1, 1974, the Administrator requested and re-

ceived the right to take an interlocutory appeal to the

Board with respect to the Law Judge’s ruling that the

Administrator was limited in his evidence to those charges

specified in the bills of particulars.

On April 5, 1974, petitioners moved to disqualify the

entire NTSB from further participation herein (R. I 25°-

266), and on April 8, 1974, NTSB Chairman John H. Reed

disqualified himself. The other Board members denied

petitioners’ motion for disqualification in Order KA-568

(R. IIT 376-382). On the same date, the Board denied the

Administrator’s interlocutory appeal and held that the

Administrator was limited at the hearing to the introduc-

tion of evidence within the confines of the various bills of

particulars (R. Il 383-385). In spite of this ruling, the

Law Judge continued to allow the Administrator’s attorney

to make proffers of other evidence for the record relating

to acts not specifically charged.

The Administrator presented his evidence from March

22, 1974, to April 18, 1974. At the termination of the

Administrator’s case, the Law Judge dismissed Charges

11 and 18 of the Air East d/b/a Allegheny Commuter

complaint (R. I 1-7) and Charge 4(g) of the Charles Allan

McKinney complaint (R. I 8-12).

The petitioners proceeded with their case under protest

(R. XV 3429-30). The trial ended on April 24, 1974, and

the Law Judge issued his oral initial decision on April

26, 1974 (Appendix D). The Law Judge found against

the petitioners on all charges except Charges 9 and 20 of

the Air East d/b/a Allegheny Commuter complaint (R. I

1-7); Charge 4(g) of the Tallent complaint (R. I 13-17);

Charge 3(f) of the Wilkinson complaint (R. I 18-21); and

Charge 5 of the Air East Repair Station complaint (R. I

25-27). The Law Judge affirmed the Administrator’s order

of revocation in each case.

Petitioners appealed from said initial decision on April

28, 1974 (R. I 308). The Administrator also filed a Notice

of Appeal on April 29, 1974 (R. 1 310). On April 30, 1974,

the petitioners moved ‘to dismiss the Administrator’s ap-

peals on the ground that they had not been timely filed

(R. I 3138).

In aecordance with Board rules, the petitioners filed their

brief on appeal by mail on May 3, 1974, and on May 6,

1974 requested oral argument before the Board (R. I 324).

On May 10, 1974, the Board adopted its opinion and Order

EA-581 (issued on May 13, 1974) which denied petitioners’

appeal, affirmed the initial decision of the Law Judge with

one modification, and affirmed the Administrator’s emer-

gency orders revoking the petitioners’ certificates. The one

modification made by the Board was ‘to dismiss Charge 4(h)

of the Tallent complaint (Appendix C, fn. 116).

Petitioners’ request for oral argument before the Board

was denied by said order, and the issues raised by the

Administrator’s appeal and petitioners’ motion to dismiss

said appeal were not reached.

The petitioners then filed timely appeals to the United

States Court of Appeals, which affirmed the orders of rev-

ocation on March 13, 1975.

Reasons for Granting the Writ

The summary revocation of aviation licenses without

prior hearing on the alleged grounds of ‘‘air safety” pre-

sents an important issue of federal law on which there

are no statutory or regulatory guidelines, and the proce-

dures followed in the review of such action are so lacking

in due process that immediate clarification is needed by

the Supreme Court to resolve conflicts between the Cir-

cuits and among ‘the District Courts.

1. The summary revocation of the aviation licenses

herein without adequate statutory or regulatory guidelines

and without a prior hearing was a violation of due process.

The aviation certificates involved herein are licenses that

are within that class of rights which are protected from

arbitrary governmental action. Bell vy. Burson, 402 U.S.

535, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971); Priority Air

Dispatch, Inc. v. National Transportation Safety Board,

F. 2d —— (D.C. Cir. June 19, 1975, Docket No. 73-2169,

slip opinion pp. 775-784). The due process clause of the

United States Constitution requires a prior hearing before

the revocation of such rights, ‘‘except for extraordinary

situations where some valid governmental interest is at

stake which justifies postponing the hearing until after

the event.’’ Boddie v. Connecticut, 401 U. S. 371, 378-379,

91 S. Ct. 780, 28 L. Ed. 113 (1971). However, as to such

exceptions, this Court has stated:

“. . . These situations, however, must be truly

unusual. Only in a few limited situations has this

a NR AGREE RATATAT NORA CARRY EPS EP

Court allowed outright seizure without opportunity for

a prior hearing. First, in each case, the seizure has

been directly necessary to secure an important govern-

mental or general public interest. Second, there has

been a special need for very prompt action. Third,

the State has kept strict control over its monopoly of

legitimate force: the persons initiating the seizure

has been a government official responsible for deter-

mining, under the standards of a narrowly drawn

statute, that it was necessary and justified in the par-

ticular instance.” Fuentes v. Shevin, 407 U. S. 67,

90-91, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972).

Section 609 of the Federal Aviation Act of 1958, as

amended (49 U.S.C.A. §§ 1655(e)(1) and 1429), does au-

thorize the Administrator to revoke any certificate issued

by him upon a determination “that safety in air commerce

or air transportation and the public interest requires’’

such action (Appendix A). If an appeal is taken from

such action to the Board, the revocation is stayed unless

the Administrator ‘‘advises the Board that an emergency

exists and safety in air commerce or air transportation

requires the immediate effectiveness of his order.’’? 49

U.S.C.A. 9§ 1429, 1485(a) (Appendix A).

The Administrator’s procedural regulations relating to

certificate action are contained in 14 C.F.R. Part 13. None

of these regulations provides for participation by inter-

ested parties in the agency decision-making process. Once

the FAA reaches a decision it advises the party of its

proposed certificate action and the party then has certain

options, the best of which is a request for an informal con-

ference where safety violations are concerned. 14 C.F.R.

§ 13.19. However, if the FAA considers the situation an

“emergency,” there are no regulations or procedures per-

mitting the certificate holder to present his side of the

story before the Administrator or his designee revokes the

certificate.

Besides the instant proceeding, summary action by the

Administrator in the name of “air safety’’ has been before

the courts three times in recent years, and in two cases the

authority to revoke prior to a hearing was held to be an

unconstitutional denial of due process and in the other case

the Court side-stepped the issue by finding that there had

been an opportunity, albeit informal, to present the certifi-

cate holder’s position before the Administrator acted.

In United States v. Harper, 335 F. Supp. 904 (D. Mass.

1972), the Administrator sought a mandatory injunction

requiring the defendant Harper to surrender his airman

and medical certificates on the ground that there had been

an emergency revocation of the same by the Administrator.

The defendant challenged the Administrator’s emergency

order of revocation on the ground that he had not been

given an opportunity to answer any charges and be heard

as to why his certificates should not be revoked. Judge

Wyzanski dismissed the Government’s complaint, holding:

“Insofar as 49 U.S.C. § 1429 purports to authorize

a permanent revocation of a certificate without giv-

ing the holder an opportunity to be heard, that statu-

tory section deprives the holder of due process of law

guaranteed by the Fifth Amendment. The right of

a person to be heard before he is deprived of his prop-

erty by governmental action is the most elementary.

fundamental, and comprehensive of the rights guar-

anteed by the due process clause of the Fifth Amend-

ment. [Cases cited.] Such a guarantee may be validly

limited only under the most compelling circumstances

and then generally only for the briefest of periods.

Here no such compelling circumstances exist.” 335 F.

Supp. at 906-907.

An appeal to this Court was vacated and the case remanded

with directions to dismiss as moot. 406 U.S. 940 (1972).

In Priority Air Dispatch, Inc. v. Brinegar, not off. re-

ported, 12 CCH Aviation Reporter 18,046 (D. D.C. 1973),

apenas LRG OPEL LATIN OE EI

the plaintiff obtained a preliminary injunction when the

Administrator revoked on an emergency basis plaintiff’s

FAA exemption for the carriage of hazardous materials

because of alleged violations of the federal aviation regu-

lations. In granting the preliminary injunction, the Court

held:

‘*. . . it appears that plaintiff is entitled to notice

of charges and an adversary hearing prior to termina-

tion or revocation of its exemption. . .”’

When the NTSB subsequently held that it lacked juris-

diction ‘to review the Administrator’s emergency revoca-

tion of P.A.D.’s exemption, the Court of Appeals reversed

the Board and ordered it to proceed to a hearing on the

revocation of both the exemption and the plaintiff’s air

taxi certificate. Priority Atr Dispatch, Inc. v. National

Transportation Safety Board, —— F. 2d (D.C. Cir.

June 19, 1975, Docket No. 73-2169, slip opinion pp. 775-

784). In his concurring and dissenting opinion, Judge

Danaher stated:

“T am entirely satisfied that Priority was and is

entitled, after notice of specific charges, ‘to an evi-

dentiary hearing before its operating authority shall

be cancelled.’’ (Slip opinion p. 784)

It would thus appear clear that the Court of Appeals for

the District of Columbia has at least implicitly approved

the decision by the District Court that an adjudicatory

hearing based upon specific charges must be afforded to

the operator before his exemption or certificate is revoked

even when the Administrator proceeds to act on an emer-

gency declaration based upon alleged air safety violations.

In Aircrane, Inc. v. Butterfield, 369 F. Supp. 598 (E.D.

Pa. 1974), a three-judge federal District Court was called

upon to decide the constitutionality of that portion of the

Federal Aviation Act which allowed for the summary

seizure of an aircraft for an alleged violation of a safety

regulation.’ In a careful analysis of all the recent Su-

preme Court decisions relating to the need for a prior

hearing before termination of rights, the Court concluded

that the ultimate issue was ‘‘a balancing of the govern-

ment’s interest in summary action against the property

owner’s interest in adjudicating his rights prior to gov-

ernment action.’’ 369 F. Supp. at 604. In undertaking

its consideration of the various interests involved, the

Court initially disposed of the Government’s waving of

the ‘‘air safety’”’ flag by observing:

“As a starting point, we believe that the dangers

inherent in summary governmental action impel the

courts to serutinize closely governmental interests

which supposedly justify such procedures. We do

not believe that the sections which are challenged as

unconstitutional should be upheld simply by referring

to the overriding purpose of the Federal Aviation

Act... The legitimate objectives of a statutory

scheme as extensive as the FAA Act do not necessarily

immunize from attack each and every section and

regulation promulgated under it.” 369 F. Supp. at

605.

The Court then proceeded to analyze the Government's

interest in summary action and concluded that the federal

air regulation upon which the alleged violation was based

was related to air safety and that the FAA’s actions were

therefore prompted by a legitimate governmental concern

for public safety.

As opposed to the Government’s interest, the Court

could find very little countervailing reasons why summary

action would adversely affect the owner’s interest. First,

the Court found that the seizure of the aircraft would not

significantly impair Airerane’s ability to ultimately vin-

* Case Note, 40 J. Air Law & Com. 749 (1974).

a — ee OMe a ee Ne ee ee te ia ia . ’

— — LAL TLE EID ESE IE NE EA 2 ‘

dicate its rights because the aircraft, while an extremely

valuable asset, would be returned to the owner upon the

posting of a small bond, and therefore the owner was not

unduly burdened in mounting a meaningful legal attack

on ‘the agency’s action by the lack of its operating assets.

Secondly, the Court found that prior to seizure the owner

of the aircraft had the opportunity to advise the FAA in

detail of its position with respect to the alleged violations.

This pre-seizure discussion was held to satisfy the acknowl-

edged principle that:

‘*. , . One of the reasons due process ordinarily

requires that adverse parties receive a full oppor-

tunity to present their respective positions is that ‘fair-

ness can rarely be obtained by secret, one-sided de-

termination of facts decisive of rights.... No better

instrument has been devised for arriving at truth

than to give a person in jeopardy of serious loss

notice of the case against him and opportunity to

meet it.’’’? 369 F. Supp. at 607.

Finally, the Court concluded that the limited inconvenience

to the owner of the aircraft, i.e., the posting of a $1,000

bond, weighed in favor of upholding the statutory scheme.

Although the Court balanced the competing interests in

favor of summary action by the Government, it was

clearly disturbed by several factors:

‘‘Against these reasons for upholding ‘the seizure

provisions, we balance two considerations which, under

the language of Fuentes, do cut somewhat in Owners’

favor. First, there does not appear to be present

here the type of emergency such as was posed by con-

tanninated food in North American Storage, supra, and

second, there is some question whether the seizure

here took place under a ‘sufficiently narrowly drawn

statute to insure that summary action takes place

only when ‘necessary and justified.’” 369 F. Supp.

at 608.

In its final analysis, the Court upheld the constitution-

ality of the summary seizure on a very narrow point:

‘*We have based our decision to uphold this statutory

scheme on the conclusion that the salient facts of the

ease justify viewing it as an exception to Fuentes, in

which notice and hearing may be dispensed with. We

note in passing, however, that even if the Fuentes

principles applied, we are of the view that the ex-

tended exchange of communications between Owners

and the FAA before the seizure might well have

constituted sufficient notice and hearing to satisfy

due process under the cireumstances.’’ 369 F. Supp.

at 608-609.

Petitioners would distinguish Aircrane from their case

on two very important points: First, unlike Aircrane, the

petitioners herein were not given notice of the charges

against them or offered an opportunity to rebut them

prior to emergency revocation. Secondly, once revoked,

the petitioners lost their means of livelihood and lacked

the financial resources to present a meaningful defense

during the Board proceedings. Cf. Goldberg vy. Kelly, 397

U. S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970).

In analyzing the present situation under the three

criteria set fort! in Fuentes (supra, pp. 7-8), petitioners

concede the first criterion of Fuentes, i.e., that an impor-

tant government or general public interested is involved in

air safety.* Petitioners submit, however, that criteria two

and three are lacking herein, i.e., the special need for very

prompt action and the decision to revoke being necessary

and justified and made by the responsible government offi-

cial under the standards of a narrowly drawn statute.

* Petitioners contend, however, that, as in Aircrane, the Court

must examine each regulation to determine whether it is applicable

and involves a matter of air safety that would warrant the sum-

mary action taken by the Government. The Court of Appeals did

not undertake such a review (see pp. 37-38 infra).

—_— OAT OTE ETRE SONI DOLLS BENS TERT

One must immediately question where the ‘‘emergency™

was in the present situation which justified the need for

“very prompt action.” The Administrator’s investigation

took seven weeks, and during this time Air East operated

with a perfect safety record. Indeed, Air East in its three-

year history had conducted some 36,000 flights with only

one accident, the cause of which was not shown to be in

any way related to the charges in the complaints (R. VI

245-7). Furthermore, the individual petitioners and the

repair station had never been convicted of any prior safety

violations. Where, then, was the “truly unusual”’ situation

which justified revocation prior to hearing?

The decision by the Court of Appeals justifies the leis-

urely pace of the FAA’s seven-week investigation by con-

cluding that serious consideration was being given to the

charges. This was certainly based upon good faith con-

jecture by the Court since there was no evidence in the

record as to the reason for the prolonged investigation; but

even if such a delay was based upon the FAA’s ‘‘serious

efforts . . . to establish the validity of the charges,” it is

difficult to conform such assiduousness with the general and

unspecific charges eventually filed by the FAA in the rev-

ocation orders (see Appendix C, pp. A20-A43).

Furthermore, the Court of Appeals’ decision overlooked

the fact that in 1973 petitioner Air East was the subject

of two normally scheduled FAA field investigations which

resulted in favorable reports. Thus, in the one-year period

prior to revocation, Air East received three extensive in-

vestigations by the FAA—two conducted by experts as-

signed to the FAA’s System Worthiness Analysis Program

(SWAP),* which found no significant deviations from pre-

? As to the value that the FAA places on its SWAP investiga-

tions, see Administrator v. Robertson, Docket No. 74-450, decided

June 24, 1975, 43 Law Week 4833.

scribed rules and regulations (R. VII 602-621),* and a third

investigation conducted by FAA lawyers, in a ‘‘somewhat

covert” manner as acknowledged by the Third Circuit, who

apparently concluded that the “public interest’’ required

the revocation of all the certificates held by the petitioners,

although these same lawyer/investigator/aviation experts

were incapable of identifying in their revocation orders

any date, time or place of a specific violation.

While it is true that Air East had its first and only acci-

dent on January 6, 1974, this accident was not shown to

be related to or caused by any of the violations alleged in

the complaint (R. XTIT 2704).° It is therefore clear that,

based on Air East’s exemplary safety record, its prior in-

spections by FAA SWAP teams, and its acknowledged

willingness to discuss problems with FAA inspectors, there

was no emergency to justify summary revocation of the

petitioners’ certificates.

It is equally clear that the emergency revocations herein

were not made under the standards of a narrowly drawn

statute. Initially petitioners point out that the statute

authorizes the Administrator to dispense with notice and

hearing when he “is of the opinion that an emergency

requiring immediate action exists in respect of safety in

air commerce.’’ 49 U.S.C.A. § 1485(a) (Appendix A). Inso-

far as the decision to revoke without a hearing can rest upon

*In addition, the Chief of the FAA’s Pittsburgh General Avia-

tion District Office (GADO) testified that Air East’s management

always displayed compliance disposition and was willing to sit

down and work out problems with GADO inspectors (R. VIII 801).

5 When Pan American World Airways had three disastrous

crashes in the South Pacific within one year (Tahiti, July 23,

1973; Pago Pago, January 30, 1974; and Bali, April 22, 1974),

the FAA did not revoke its operating certificate. Nor when

DC-10 cargo doors came off in midair due to faulty design did

the FAA ground the aircraft or revoke McDonnell Douglas pro-

duction certificate. Obviously, safety decisions are made on an

ad hoc basis, and consistently in favor of the “big guy.”

“the opinion’’ of the Administrator as to such a vague

term as ‘‘safety,’’ petitioners contend that the “standards

of a narrowly drawn statute” are nonexistent and the

grant of such power is unconstitutional as violative of due

process. Giaccio v. Pennsylvania, 382 U. S. 399, 86 S. Ct.

518, 15 L. Ed. 2d 447 (1966); see Grayned v. City of Rock-

ford, 408 U. S. 104, 108-109, 92 S. Ct. 2294, 33 L. Ed. 2d

222 (1972).

The Court of Appeals agreed that the statute was broad,

but concluded that such a vast discretionary grant of

authority was necessary in order to carry out the pur-

poses of the statute. But even if this grant of authority

ean be constitutionally justified (which petitioners do not

concede), the failure of the Administrator to prescribe

specific rules and regulations advising the aviation com-

munity and the public as to when and how it will be exer-

cised cannot be constitutionally justified. Hnvironmental

Defense Fund, Inc. v. Ruckelshaus, 489 F. 2d 584, 597-598

(D.C. Cir. 1971); Holmes v. New York City Housing Au-

thority, 398 F. 2d 262, 265 (2d Cir. 1968) ; Hornsby v. Allen,

326 F. 2d 605, 610 (5th Cir. 1964).

Indeed, as Mr. Chief Justice Burger once held:

‘* . . Such debarment cannot be left to adminis-

trative improvisation on a case-by-case basis. The

governmental power must be exercised in accordance

with accepted basic legal norms. Considerations of

basie fairness require administrative regulations es-

tablishing standards for debarment and procedures

which will include notice of specific charges, oppor-

tunity to present evidence and to cross-examine ad-

verse witnesses, all culminating in administrative

findings and conclusions based upon ‘the record so

* This Court has had occasion to criticize as being vague such

statutory terms as “in the public interest.” Environmental Pro-

tection Agency v. Mink, 410 U. S. 73, 79, 93 S. Ct. 827, 35 L. Ed.

2d 119 (1973).

made.” Gonzalez v. Freeman, 334 F. 2d 570, 578

(D.C. Cir. 1964).

And as Professor Davis has advocated in his treatise:

‘* .. The Courts should develop a requirement that

as far as practicable administrators must structure

their discretionary power through appropriate safe-

guards and must confine and guide their discretionary

power through standards, principles, and rules. The

requirement should extend also to undelegated power,

including especially the extremely important power of

selective enforcement.’’ Administrative Law Tect,

page 52 (3d Ed. 1972).

Thus, whether one considers the statutory grant as too

vague or the failure of the Administrator to establish

standards and guidelines for the utilization of this statu-

tory power, the conclusion is ‘the same in either case: 1.e.,

the lack of adequate standards, either statutory or regu-

latory, renders the emergency revocation prior to a hearing

violative of due process.

The final criterion set forth in Fuentes, supra, is that

summary revocation prior to hearing can only be justified

if ‘‘the person initiating the seizure has been a government

official responsible for determining, under the standards of

a narrowly drawn statute, that it was necessary and

justified in the particular instance.” 407 U.S. at 91.

The initial orders of revocation were issued over the

signature of John J. Keyser, an Assistant Chief Counsel

for the FAA (R. I 6, 11, 16, 21, 23, 26). After the peti-

tioners appealed, Mr. Patrick G. Geraghty, Chief, Special

Projects & Appellate Branch of the FAA, simply filed

duplicate copies of the complaints and certified that an

emergency existed (R. I 38, 41).’

™ The chain of command within the FAA runs down from the

Administrator to the Deputy Administrator to the Chief Counsel

(footnote continued on following page)

ae : ROYALE ES LENG LOLOL I ELLE NOE DLR LA ELE TL OS i

There is no doubt that the Administrator is authorized

to delegate many of his statutory duties (49 U.S.C.A.

§ 1344(d)), and in fact the Assistant Chief Counsel was

authorized by regulation to issue the initial orders of rev-

ocation. 14 C.F.R. §13.19(b), as modified 38 Fed. Reg.

26,444 (1973). However, subdivision (d) of regulation

§ 13.19 specifically states that if the certificate holder files

an appeal to the Board “the Administrator’s order is

stayed unless he advises the Board that an emergency

exists . . .” (emphasis added). The “he” in the cited

regulation clearly refers to the Administrator, and there

is no other regulation which delegates the declaration of

emergency certification to any subordinate. It was there-

fore improper for the Chief of the Special Projects & Ap-

pellate Branch of the FAA to certfiy the emergency to the

Board and such conduct constituted the exercise of emer-

gency power by an unauthorized government official.*

Faced with the foregoing constitutional difficulties, it

appears that the Court of Appeals attempted to justify the

due process deficiencies by remarking:

‘“‘The petitioners were aware that an investigation

was underway because they had been deposed and the

company’s records had been subpoenaed. To some

extent, therefore, they had been given an opportunity

to present explanatory material before the revocations

occurred. There is no necessity, therefore, to con-

(footnote continued from preceding page)

to the Deputy Chief Counsel to Assistant Chief Counsel, which

Mr. Keyser is one of many. Mr. Geraghty was one of numerous

branch chiefs working for Mr. Keyser.

® Petitioners further contend that it was error for the Board to

refuse to review the declaration of emergency certification (R. II

491). 49 U.S.C.A. 1429 contains no limit on the Board’s power of

review over the Administrator’s actions, and, in fact, affirmatively

the Administrator. This self-imposed rule of abstention by the

Board further denies the petitioners procedural due process.

sider under what circumstances an invitation to submit

exculpatory material might be necessary before sum-

mary action by the Administrator.’’ (Appendix B)

Clairvoyance has never been a substitute for the notice

requirements of due process. Indeed, in order to illustrate

the type of notice given to the petitioners herein, the entire

deposition of Mr. Reddecliff is printed in Appendix E.

The subpoena served upon Air East was equally uninfor-

mative since it simply called for the production of all per-

sonal, operational and maintenance records. When the

President of Air East responded to the subpoena, the notice

received was as follows:

“By Mr. Geracuty: Let the record show that we

are convened at the Johnstown Cambria County Air-

port at 13:45 hours, 30, January, 1974, for the purpose

of taking return of subpoenas issued to Mr. McKinney

as President of Air East, Inc., which were issued pur-

suant to an order of investigation issued by the Ad-

ministrator of the Federal Aviation Administration

under authority delegated to him under the Federal

Aviation Act of 1958, as amended. Such investigation

being into the operating practices and procedures of

Air East, Ince.”

The deposition then went on to ask Mr. B. F. McKinney to

identify the Air East records he was producing pursuant

to subpoena.

The Court will note that the “notice” referred only to

an investigation of Air East, and not the individual peti-

tioners.

®In Aircrane v. Butterfield, 369 F. Supp. 598 (E.D. Pa. 1974),

and Priority Air Dispatch, Inc. v. National Transportation Safety

Board, F. 24 —— (D.C. Cir. June 19, 1975, Docket No. 73-

2169), the operator was given an opportunity to present its views

in writing before revocation. Petitioners were not afforded this

right, and the failure thereof again illustrates the arbitrary and

ad hoc procedures followed by the Administrator.

rrp coe ee ee PARLE PEELE LIT GE I ee

At no time prior to revocation were any of the petitioners

told what charges were being considered or given an op-

portunity to explain any of the alleged offenses uncovered

by the FAA investigators.” Cf. Blackwell College of Bust-

ness v. Attorney General, 454 F. 2d 928 (D.C. Cir. 1971).

School children, parolees and prison inmates have more

constitutional rights. Goss v. Lopez, U. S. , 43

Law Week 4181 (January 22, 1975); Morrissey v. Brewer,

408 U. S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972) ; Wolff

vy. McDonnell, —— U. S. ——, 42 Law Week 5190, 5198

(June 26, 1974).

Petitioners would therefore submit that the summary

revocation of their aviation licenses was a violation of due

process of law and since no statutory or regulatory guide-

lines exist for the application of this summary power, the

unconstitutional procedures occurring to petitioners are

bound to recur. Review by this Court is a necessity.

2. The failure to grant the petitioners procedural due

process with respect to their appeals from the summary

revocations was contrary to constitutional and regulatory

precedent.

The appeals herein were reviewed in such a desultory

fashion by the Law Judge, Board and Court of Appeals

that one can only conclude that procedural due process of

law does not exist with respect to alleged air safety viola-

tions.

10 As Professor James O. Freedman states in his article Sum-

mary Action by Administrative Agencies, 40 Univ. of Chicago

L. Rev. 1 (1972):

“Requiring an administrative agency to inform an indi-

dual that it is contemplating summary action against him, to

describe the general nature of its information and the tenor of

its reasoning, and to permit him a brief opportunity to discuss

the matter with the agency’s staff and advance arguments why

summary action should not be taken could be most helpful in

reducing the risk of error.’’ (at 49)

A. The failure to make specific charges.

An examination of the complaints herein (App. C A20-

A43) reveals that the Administrator revoked petitioners’

certificates for allegedly violating federal air regulations,

ete., ‘fon numerous occasions.’’ No dates, times, aircraft

numbers, component parts, or other factual material are

specified so that petitioners could identify the event.

Sections 421.4(d) and 421.23 of the Board’s regulations

require factual pleading (14 C.F.R.). Although the Law

Judge ordered the Administrator to file bills of particulars

giving factual details, these bills were equally defective and

the petitioners moved to dismiss the complaints for lack of

specificity.

In a classic statement which illustrates the prevailing ap-

proach at the Board to air safety enforcement proceedings,

the Law Judge refused to grant the motion, stating:

“T am bothered by it and I could, of course, strike

the pleading and grant the respondents’ [petitioners

herein] motion. However, I am not going to do so, even

though I think there is merit to the motion, because I

think if we get into these technical matters, and I don’t

mean ‘to discount the importance of technical matters,

we will never get to trial on this thing.” (R. VI 37)

The petitioners were therefore required to proceed to trial

even though their motion had ‘‘merit.’? The due process

requirement for notice of specific charges had become a

mere ‘‘technicality.”

It appears abundantly clear that the complaints herein

fail to comply with Board rules relating to factual pleading.

It is equally clear that the failure of a government agency

to adhere to its own rules and regulations constitutes a de-

nial of due process of law. United States ex rel. Accardt v.

Shaughnessy, 347 U. S. 260, 266-268, 74 S. Ct. 499, 98 L. Ed.

681 (1954); Service v. Dulles, 354 U. S. 363, 388-389, 77

S. Ct. 1152, 11 L. Ed. 2d 1403 (1957); Vitarellt v. Seaton,

SE LRPROPR RTE PY DIAN Ps EE CS

359 U. S. 535, 79 S. Ct. 968, 3 L. Ed. 2d 1012 (1959) ; United

States v. Nixon, 42 Law Week 5237, 5241 (July 24, 1974).

Of course, the lack of specificity and the failure to give

adequate notice so that petitioners could properly prepare

their defense were not only regulatory deficiencies, but also

constitutional infirmities. As this Court stated in Morgan

vy. United States, 304 U. S. 1, 58 S. Ct. 773, $2 L. Ed. 1129

(1938) :

“The right to a hearing embraces not only the right

to present evidence but also a reasonable opportunity

to know the claims of the opposing party and to meet

them.’’? (Emphasis added.) 304 U.S. at 18.

Accord, In re Ruffalo, 390 U. 8. 544, 88 S. Ct. 1222, 20 L. Ed.

2d 117 (1967); In re Oliver, 333 U. S. 257, 273, 68 S. Ct.

499, 92 L. Ed. 682 (1948); Armstrong v. Manzo, 380 U.S.

545, 550, 85 S. Ot. 1187, 14 L. Ed. 2d 62 (1965).

The Board and the Court of Appeals attempted to jus-

tify the lack of specific allegations by stating that the

complaints were amplified by the bills of particulars,”

and the delivery of some twenty-one depositions to peti-

tioners’ counsel on the afternoon of the day prior to com-

mencement of trial made petitioners “aware of the heart

of the Administrator’s case in advance of the hearing.”

But what the Board and the Court of Appeals ignored

was the fact that the depositions were delivered the after-

11 A defective indictment cannot be cured even by a good bill

of particulars. Russell v. United States, 369 U. S. 749, 769-770,

82 §. Ct. 1083, 8 L. Ed. 2d 240 (1962); United States v. Comyns,

248 U. 8. 349, 353, 39 S. Ct. 98, 63 L. Ed. 287 (1919). Further-

more, none of the “details” set forth in the bills (R. I 76-243)

were proven at trial as evidenced by the Law Judge’s complete

failure to be specific. The bills as filed were deceptions.

12 The depositions (save for two) were not a part of the record

and therefore could not have been reviewed for content. Even the

Law Judge questioned whether these depositions were subject to

uniform interpretation (R. VI 59). (See Appendix E.)

noon before trial commenced, and the bills of particulars

- were delivered the first day of trial and on subsequent

days during trial. As this Court stated in Jn re Gault,

387 U. S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967):

“Notice, to comply with due process requirements,

must be given sufficiently in advance of scheduled

court proceedings so that reasonable opportunity to

prepare will be afforded, and it must ‘set forth the

alleged misconduct with particularity.’” (Emphasis

added.) 387 U.S. at 33.

“Timely notice of allegations and charges is an elemental

aspect of due process.” Sarzen v. Gaughan, 489 F. 2d 1076,

1084 (1st Cir. 1973). Accord, Blackwell College of Bust

ness v. Attorney General, 454 F. 2d 928 (D.C. Cir. 1971);

Davis, Administrative Law Text $8.02, page 197 (3d Ed.

1972).

The inherent unfairness of the instant procedure whereby

the Administrator revoked petitioners’ certificates on gen-

eral allegations; waited until the first day of trial to give

any specifics, which the Law Judge agreed were not very

enlightening, and then forced the petitioners to proceed

to trial while the Administrator prepared his case as he

went along, was so alien to the concept of due process,

fairness and justice that this Court should strongly con-

demn such procedures.

B. The failure to dismiss stale charges.

Section 421.25 (14 C.F.R.) of the Board’s regulations

provides for the dismissal of offenses occurring more than

six months prior to the Administrator’s orders of revoca-

tion. However, if the complaint alleges “lack of qualifica-

tion,” the Law Judge is to examine the allegations, and

if they present an issue as to “lack of qualification,’’ he

may allow trial on these charges no matter how old they

may be.

as | Se ane ame LELILL ELIS CLINE LIES LES DLR IN TS

Obviously, in proceeding under this section, the Law

Judge has to first know the date of the offense so that he

can determine whether the statute of limitations has run;

but no dates were specified in the complaints. Secondly,

the Law Judge has to decide whether the offense charged

presents an issue of “lack of qualification.” But what is

“lack of qualification”? The term is not defined by the

regulations, and is apparently subject to an ad hoc defini-

tion by each Law Judge who is faced with the issue. Cf.

Administrator v. Musso, 30 C.A.B. 1610 (1960).

Since the Federal Aviation Act vests authority with the

Administrator to set qualifications for the issuance of air-

man, air carrier and other aviation certificates (49 U.S.C.A.

$$ 1422, 1424 and 1427), one would logically assume that

lack of qualification refers to the certificate qualifications

issued by the Administrator. The petitioners, however,

possessed all of the qualifications required by the regula-

tions to obtain and hold their respective certifications. None

of the complaints recites any failure to adhere to the quali-

fication requirements of the regulations. How, then, do the

petitioners lack qualification?

The FAA and the NTSB apparently work under the

unstated theory that, if the Administrator alleges that you

committed some unstated number of violations of some un-

stated regulations, you lack qualification. But ef. Admin-

istrator v. Donoghue, 1 N.T.S.B. 1568, 1569 fn. 7 (1972).

Obviously, such an ad hoc interpretation of ‘‘lack of quali-

fication’’, which deprives a certificate holder of the benefit

of the statute of limitations, is constitutionally improper.

The qualifications required for a mechanic’s certificate are

set forth in 14 C.F.R. Part 65, Subpart D; for a commercial

ap certificate in 14 C.¥.R. Part 61, Subpart D; for an air-

ine transport pilot’s certificate in 14 C.F.R. Part 61, Subpart E;

for a repair station certificate in 14 C.F.R. Part 145, Subparts

A and B, and for an air taxi certificate in 14 C.F.R. Part 135,

Subpart A.

See Grayned v. City of Rockford, 408 U. S. 104, 108-109,

92S. Ct. 2294, 33 L. Ed. 2d 222 (1972).

As the Board advised the Administrator, as far back as

1966:

‘‘, . . if the Administrator desires to impose sanc-

tions on airmen on the basis of a general duty to exer-

cise ‘the degree of care and responsibility required of

a certificate holder,’ the regulations could be amended

to this effect.”” Administrator v. Buchanan, 45 C.A.B.

973, 974 (1966).

The regulations were never so amended, and unfortunately,

in this case the Board ignored its own precedents, and the

Court of Appeals ignored the entire issue.

C. Failure to dismiss charges not alleged to be in

violation of any regulation or statute.

Charge 19 of the Air East complaint (R. 15) charges Air

Kast with intimidation of its pilots, but does not allege any

regulatory or statutory provision which allegedly pertains

to the offense. The Board has consistently held, except for

this case, that no punitive action could be taken against a

certificate holder unless there was a violation of a specific

regulation. Administrator v. Buchanan, 45 C.A.B. 973

(1966) ; Administrator v. Babbitt, 1 N.T.S.B. 1305, 1307

(1971).

Furthermore, there were a number of charges alleged in

the complaints accusing the petitioners of violating instru-

ment approach procedures ‘‘approved’’ in Part 97 of the

federal air regulations (R. I 2, pars. 5 and 6; R. I 9, pars.

4(a) and (b); R. I 14, pars. 4(a) and (b); R. I 18, pars.

3(a) and (b)). Of course, instrument approach procedures

are not published in Part 97 or in the Federal Register and

therefore they cannot be regulatory. Andrews v. Knowl-

ton, 509 F. 2d 898, 905 (2d Cir. 1975), pet. for cert. filed

March 26, 1975 (Docket No. 74-1217). But, in any event,

Part 97 (14 C.F.R.) deals only with ‘‘prescribed’’ proce-

dures and not ‘‘approved”’ procedures. That this is more

than a mere semantic difference is disclosed by FAA man-

ual ‘‘Terminal Air Traffic Control,’’ order 7110.8C pub-

lished 1 January 1973 as amended. Note 4 to Section 1020

thereof provides:

“A ‘prescribed’ instrument approach procedure is one

published in FAR Part 97 and available for publie

use. An ‘approved’ instrument approach procedure

is one issued to one or more operators for their use.

It is not published in FAR Part 97, but is furnished

to specific operators and the ATC facilities involved.

‘Approved’ instrument approaches are not restricted

to use only by the operator’s to whom issued; ATC

is not responsible for determining if an operator/pilot

requesting such approach has obtained necessary ap-

proval for its use.”’

Under the FAA’s own definitions, an “approved’’ pro-

cedure is not regulatory, and therefore under the above-

cited Board precedent it could not constitute a regulatory

violation for which a sanction could be imposed. Here

again, the Board ignored its own precedent, and the Court

of Appeals ignored the entire issue.

D. The Administrator supplied the Board and the

Law Judge with prejudicial material outside of

the record.

At the close of the hearing on March 22, 1974, the at-

torney for the Administrator presented to the Law Judge

a copy of a letter sent that day from the Administrator to

NTSB Chairman John H. Reed. This letter contained cer-

tain prejudicial and defamatory remarks concerning the

petitioners and also an implied criticism of the Law Judge's

actions with respect to certain rulings he made as to the

production of witness statements (R. I 248-258). The

receipt of this letter eventually caused Chairman Reed to

disqualify himself from further proceedings herein (R. IT

381-2). Petitioners’ motion to dismiss the complaints

herein because of the Administrator’s actions was denied

by the Law Judge (R. VII 357-370).

Since not one witness testified at the hearing as to any

of the acts (economic coercion) mentioned in the material

submitted by the Administrator, the presentation of this

material in the manner indicated was improper, unethical

and a blatant attempt to prejudice the rights of the peti-

tioners herein. Indeed, the Law Judge did convict Air

East on Charges 19 which related to alleged coercive acts.

Unfortunately, the Court of Appeals condoned this event

with a footnote to the effect that it did not think that the

material submitted was prejudicial. Cf. Nadiak v. Civil

Aeronautics Board, 305 F. 2a 588, 594 (5th Cir. 1962).

Of course, the Chairman of the NTSB thought it so im-

proper (R. I 265-266) that he disqualified himself, and the

Law Judge questioned the propriety of submitting such

material to him (R. VIT 366-368).

It is well acknowledged that Government misconduct is

a proper basis upon which to dismiss indictments. United

States v. Russo, Crim. No. 9373 (C.D. Cal. 1973); United

States v. Banks, 16 Crim. L. Rep. 2090 (D. S.D. October

9, 1974) ; ef. United States v. McCord, —— F. 24d —— (D.C.

Cir. Dee. 12, 1974), slip opinion pp. 22-28, 43 Law Week

2257 ; Camero v. United States, 375 F. 2d 777 (Ct. Cl. 1967).

The only way that the effect of such prejudicial behavior

and misconduct could have been removed from the proceed-

ings herein was to dismiss the complaints and it was error

not to have done so.

E. Inadequate findings of fact, conclusions and the

reasons therefor.

Section 421.32(b) of the Board’s regulations set forth

certain requirements that shall be contained in the Law

en PMN OL OIE IE LESIONS ELS TOP MIEN LOIN OIE A II IE LOE IF

Judge’s initial decision. These requirements are:

“The initial decision shall include a statement of

findings and conclusions, as well as the reasons or

bases therefor, upon all material issues of fact (in-

cluding credibility of witnesses, where such finding is

material), law, or discretion, presented on the record,

and the appropriate sanction or denial thereof.” 14

C.F.R. § 421.32(b).

Unfortunately, the findings herein do not meet the re-

quirements of § 421.32(b). In fact, there are no findings as

such—only a rambling summary of the testimony (Ap-

pendix D).

As Mr. Justice Brennan pointed out on a prior occasion,

where findings are no more than a summary of the evidence,

they are inadequate (Delaware, L. € W. R. Co. v. City of

Hoboken, 10 N. J. 418, 427, 91 A. 2d 739, 743 (1952)), and

the matter should have been remanded for specific findings,

or the Board should have issued new findings pursuant to

§ 421.36 (14 C.F.R.). Carey v. Civil Aeronautics Board,

275 F. 2d 518 (1st Cir. 1960); Braniff Airways, Inc. v. Civil

Aeronautics Board, 306 F. 2d 739 (D.C. Cir. 1962);

Saginaw Broadcasting Co. v. Federal Communications

Commission, 96 F. 2d 554 (D.C. Cir. 1938); American

Smelting & Refining Co. v. Federal Power Commission, 494

F. 2d 925, 944-945 (D.C. Cir. 1974) ; 2 Davis, Administrative

Law Treatise, Chapter 16 (1958, 1970 Supp.).

The Court of Appeals again gave this deficiency foot-

note treatment by remarking that it thought the Law

Judge’s decision to be “comprehensive and unusually well-

detailed” (Appendix B). However, an examination of

the findings herein has to leave one wondering if the term

“finding of fact” has taken on a new meaning. For ex-

ample, with respect to the complaint against petitioner

Wilkinson, the Law Judge’s findings with respect to

Charge 3(h) were: The charge is supported by the evi-

dence and it is so found”; and with respect to Charge 3(i) ;

‘The evidence supports this charge and it is so found.”

How can these be findings of fact?

By pointing out the specific findings above, petitioners

do not imply that they agree that the other findings are

correct. Indeed, they contest all the findings as being

inadequate because the “findings” only state what various

people testified to, no specific acts or events are detailed,

and are conclusory as opposed to factual.

In addition, the Law Judge made findings based upon

non-existent testimony. For example, the Law Judge

found that petitioner Tallent violated Charge 4(e) (Ap-

pendix D, p. A117) based upon the testimony of the wit-

nesses Montague and Sayther, but neither one testified

against Tallent on this subject. Likewise, petitioner

McKinney was found to have violated Charge 4(a) based

upon the testimony of Montague (Appendix D, p. A119),

but an examination of the record reveals that Montague

never testified against McKinney on this charge. Like-

wise, the Law Judge convicted petitioner Wilkinson of

Charge 3(a) based upon the testimony of the witnesses

Howell and Dunn (Appendix D, pp. A124-A125), yet the rec-

ord reveals that these witnesses gave no testimony against

Wilkinson on this charge. Petitioner’s citation of similar

defects in the evidence relating to Charge 8 of the Air East

complaint were characterized by the Board as an attempt

to “undermine” the testimony and evidence (Appendix C,

p. A63).

Furthermore, findings that someone made an “illegal

approach” or an “unauthorized approach” or utilized an

“unauthorized procedure” are meaningless and do not

adequately advise the reviewing court of the grounds for

the administrative action. Securities and Exchange Com-

misston v. Chenery Corp., 318 U. S. 80, 94, 63 S. Ct. 454,

87 L. Ed. 626 (1943); Commissioner v. Duberstein, 363

eaianarcinsmte contra eaia aE pera LAE GIES NOR LRA NERA ROTI 7 TR

ee ae ret Cet cee PR ae Dn ia ust ean | PES ae

U. S. 278, 292-293, 80 S. Ct. 1190, 4 L. Ed. 2d 1218

(1960) ; ef. Schneiderman v. United States, 320 U. S. 118,

129-131, 63 S. Ct. 1333, 87 L. Ed. 796 (1943); 5 U.S.C.A.

§557(c)(3)(a). This is a classic case which demands

remand for adequate findings and the reasons therefor.

F. Failure to apply correct principles of law.

Although the findings herein are totally inadequate to

advise the reviewing court if the agency applied the cor-

rect principles of law, several salient errors are disclosed

which warrant reversal.

For example, the administrative agency failed to apply

the proper standard in reviewing the testimony of the

government witnesses. An examination of the Law

Judge’s opinion reveals that he cited and relied upon only

that testimony by government witnesses which was ad-

verse to petitioners. There is no mention of the instances

where government witnesses contradicted each other or

gave favorable testimony to the petitioners. That testi-

mony was ignored by the Law Judge and the Board. Cf.

Administrator v. Bradway, 45 C.A.B. 956, 968-969 (1966).

This was error because the record as a whole must be

considered—i.e., both the good and the bad, Universal

Camera Corp. v. N.L.R.B.. 340 U. S. 474, 488 71 S. Ct.

456, 95 L. Ed. 456 (1950); 5 U.S.C.A. § 706; and when

an administrative agency accepts carte blanche all of the

adverse testimony of the government witnesses, ignores

testimony favorable to petitioners given by said witnesses,

and totally rejects all of petitioners’ evidence, a reviewing

court should not casually accept this as a simple choice of

credibility. N.L.R.B. v. Union Pacific Stages, 99 F. 2d

153, 158 (9th Cir. 1938).

Furthermore, the administrative agency herein applied

the wrong standard for reviewing the testimony by the gov-

ernment witnesses. The Law Judge refused to give any

consideration to the fact that all of the Government’s wit-

nesses were testifying pursuant to a promise by the FAA

that their cooperation would be taken into consideration

with respect to their own violations.** With respect to this

point, the Law Judge stated:

‘*Much also was made of the fact that during the

course of the various depositions which were obtained

from witneses by the Administrator, each witness was

told that he would not get immunity by testifying but

his cooperation would be taken into consideration by

the Administrator in determiming any sanction im-

posed on him or any enforcement action taken against

him, and that therefore each witness came in and ex-

posed himself as having committed these various vio-

lations on the strength that he would be released from

any obligation in connection with them.

It is an interesting theory biut not a very realistic

one. It implies that the Federal Aviation Administra-

tion conspired with these various witnesses and en-

couraged them to falsify their testimony so that

charges could be made against Air East and the other

respondents.

That is the only extension of such a defense I can

reach and I find the argument without any merit

whatsoever.” (R. IT 398)

While the Law Judge’s innocence of the real world (ap-

parently shared in by the Board) is refreshing, it is directly

1¢ At no time during the trial did the Administrator's attorney

ever voluntarily disclose any informatiom relating to the promises

made to government witnesses for their cooperation. In United

States v. Mitchell, 372 F. Supp. 1239, 1257 (S.D.N.Y. 1973), it

was held that all “favors or deals” between the Government and

its witnesses had to be disclosed upon the witness being called to

testify. The lack of candor displayed by the Administrator herein

is also reflected by his attorney’s representation to the Court that

no exculpatory materiai existed, when im fact there was such evi-

dence (R. XII 2116-25). Cf. Brady v. Maryland, 373 U. S. 83,

S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

PR 5

RELI EEO ELIS OPN. I OEE NES BEI IAG NS EE

IF ES rat

contrary to all rules by which such testimony should be

evaluated. Thus, in Giglio v. United States, 405 U. S.

150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972), this Court

held that it was reversible error for the jury not to be

made aware of and to consider in its deliberations on

credibility the fact that a promise of leniency had been

made to a key witness in return for his testimony. See

Napue v. Illinois, 360 U. S. 264, 79 S. Ct. 1173, 3 L. Ed.

2d 1217 (1959); United States v. Murray, 445 F. 2d 1171,

1176 (3d Cir. 1971).

The Third Cireuit recognized the validity of petitioners’

point but surmised “we have no doubt that this factor was

properly evaluated [by the Law Judge] before the deci-

sion was announced” (Appendix B, p. Al6). How the Third

Circuit could make this pronouncement in light of the

above-cited quotation by the Law Judge at the time he

announced his decision is inexplicable.”*

Finally, with respect to credibility, both the Law Judge

and the Third Circuit pointed out that testimony of Air

East’s weather observer was totally unworthy of belief.

In some magical fashion the brush that tarred this witness’

testimony also tarred all testimony favorable to peti-

tioners. What the Law Judge, the Board and the Third

Cireuit all overlooked or ignored was the fact that the

weather observer was called by the Government as its wit-

ness. Since the Government called the weather observer

to testify, the Administrator vouched for his credibility

(United States v. Jannsen, 339 F. 2d 916, 919 (7th Cir.

1964) ), and since the witness was never declared to be hos-

tile (R. VI 276-8), it was improper for the Government to

18 Likewise inexplicable is the statement by the Court of Ap-

peals that “the only evidence presented in favor of the petitioners

was their own testimony.” This is false and can only reflect the

fact that the Court of Appeals did not read the record. See, for

example, R. VIII 969, 1026, 1048, 1065; IX 1322, 1328, 1335;

X 1702.

impeach him. Rothschild v. New York, 388 F. Supp. 1346,

1349 (S.D.N.Y. 1975); Shreve v. Hot Shoppes, Inc., 184

F. Supp. 436, 439 (D.D.C. 1960). Petitioners never called

this witness to testify on their behalf.

It is obvious from the foregoing that erroneous stand-

ards were used throughout the proceedings below to judge

credibility, and such an error is a denial of due process

which requires reversal. As the Court of Appeals held in

Breeden v. Weinberger, 493 F. 2d 1002 (4th Cir. 1974):

“. . . administrative findings based on oral testi-

mony are not sacrosanct, and if it appears that credi-

bility determinations are based on improper or irra-

tional criteria they cannot be sustained.” (493 F. 2d

at 1010.

Accord, National Labor Relations Board vy. Florida Citrus

Canners Cooperative, 311 F. 2d 541 (5th Cir. 1963);

Portable Electric Tools, Inc. v. National Labor Relations

Board, 309 F. 2d 423 (7th Cir. 1962).

The Court of Appeals also misapplied the applicable

legal principles involved with respect to the review of ad-

ministrative agency decisions. Cf. Greater Boston TV v.

F.C.C., 444 F. 2d 841, 850-853 (D.C. Cir. 1970). Although

recognizing the substantial evidence test (49 U.S.C.A.

§ 1486(e)), the Court of Appeals stated:

“‘If only a single witness had provided this type of

evidence, there might be difficulty in determining

whether it was sufficiently probative to sustain the

burden of proof. However, the cumulative effect of

the testimony of many witnesses who appeared and

their complementary corroboration made it possible

for the fact finder to decide the contested issues.’’

(Appendix B)

Reduced to basics—the Court of Appeals was acknowledg-

ing that the evidence was ‘‘junk’’ testimony, but because

there was a great deal of junk, substantial evidence existed.

Petitioners would submit that it is the ‘‘quality’’ of the

evidence and not the ‘‘quantity’’ that must be considered

in determining whether substantial evidence existed.

In addition to the previously mentioned erroneous prin-

ciples of law, the Law Judge and the Board also found

violations of certain regulations despite petitioners’ claims

that the procedures utilized had been approved by FAA

officials. The Law Judge took the position that ‘‘. . . it

is fairly well established that the government cannot be

estopped to deny the authority of any employee to alter its

practices” (Appendix D, p. A102). This is clearly not the

law. United States v. Pennsylvania Industrial Chemical

Corp., 411 U.S. 655, 673-4, 93 S. Ct. 1804, 36 L. Ed. 2d 567

(1973) ; Administrator v. Fabian, 31 C.A.B. 1106 (1960).

Review herein should clearly have considered the principle

that no violation could be found where the procedure was

specifically approved by FAA officials, especially when the

Act vests authority in the Administrator (or his designee)

to grant exemptions from any rule or regulations. 49

U.S.C.A. §1348(e). The Court of Appeals ignored the

issue.

Another erroneous principle applied below related to the

alleged falsification of record. The Board had previously

taken the position that any falsification would have to be

of a material fact in order to constitute a regulatory viola-

tion. Administrator v. Cochran, 1 N.T.S.B. 136, 138 fn. 4

(1967). But one may search all of the opinions below for

any finding that the alleged falsifications herein were of

material facts. The opinions below are devoid of any such

statement.

Many of the charges herein’ related to the issue of

whether or not Air East’s management knew that one of

16 See Charges 12, 13, 14 and 15 of the Air East complaint

(R. I 3-4).

PRET NEF ETRE PY SET

its employees was apparently forwarding some false check-

ride forms to the Pittsburgh GADO. However, any activi-

ties of the employee as an FAA-designated check pilot were

carried out in his role as an FAA inspector and not as an

Air East employee (R. V 133-4; VIII 717-8). In fact, Mr.

Fahey, Chief of the GADO office in Pittsburgh, acknowl-

edged that when such checks are given the check pilot is

carrying on an FAA function rather than a company func-

tion and that ‘‘He’s working for us’’ (R. VIII 718).

In light of this testimony, petitioner Air East submits

that when its employee was performing his FAA-desig-

nated duties he was a ‘‘borrowed servant’’ working for the

United States Government. In Denton v. Yazoo & Mis-

sissippi Valley Railroad Co., 248 U. S. 305, 52 S. Ct. 141,

76 L. Ed. 310 (1932), this Court held that a railroad em-

ployee who was performing duties for the Post Office De-

partment was a borrowed servant and the railroad was not

responsible for his acts. As the Court stated the rule:

‘‘When one person puts his servant at the disposal

and under the control of another for the performance

of a particular service for the latter, the servant, in

respect of his acts in that service, is to be dealt with as

the servant of the latter and not of the former.’’ 284

U.S. at 308.

Since no legal relationship existed between Air East and

its employee when he was in a borrowed-servant status,

Air East would not be responsible for his acts. The Board

and the Third Circuit ignored this legal principle.

Based upon the foregoing, it is clear that incorrect legal

standards were applied and correct legal principles were

ignored by the Board and by the Court of Appeals. Find-

ings based upon an erroneous application of the law cannot

stand. Securitttes and Exchange Commission vy. Chenery

Corp., 318 U. S. 80, 94, 63 S. Ct. 454, 87 L. Ed. 626 (1943).

G. Failure to give adequate time to prepare an appeal

and grant oral argument.

The Board’s rules require an appeal to be taken within

two days of the Law Judge’s initial decision and a brief

to be filed on appeal within five days thereafter. 14 C.F.R.

§ 421.41(a)(b). How is it physically possible with a tran-

script of some 4,000 pages and 150 exhibits containing sev-

eral thousand pages to prepare an appellate brief in five or

seven days? Again, this is a failure to provide a reasonable

opportunity to be heard and constitutes a denial of due

process of law.

Furthermore, the petitioners’ request for oral argument

before the Board on their appeal was denied on the basis

‘‘that the issues in this proceeding have been exhaustively

litigated and, in our view, no useful purpose would be

served by further argument’’. While petitioners recognize

that there is no absolute right to oral argument, whether

the failure to provide for it constitutes a denial of due

process will depend upon the particular circumstances of

each individual case. Federal Communications Commission

v. WJR, 337 U. S. 265, 275-277, 69 S. Ct. 1097, 93 L. Ed.

1353 (1949).

Due process required oral argument in the instant case

because it is clear that the Board never had the opportunity

to properly review the points raised by petitioners on their

appeal herein. Petitioners mailed their brief from New

York on Friday, May 3, 1974. The brief was not received

by the Board until Monday, May 6, 1974. Yet, by May 10,

1974, the Board would have the reviewing court believe that

it had fully reviewed petitioners’ brief and the legal au-

thorities cited therein; reviewed 4,000 pages of testimony

and hundreds of exhibits to determine if the findings were

supported by a preponderance of the reliable, probative and

substantial evidence and prepared and/or reviewed the con-

tents of its 57-page opinion and order.

Any federal appellate court knows that such a process is

physically impossible; yet, this is the type of justice that

suffices in the NTSB, where apparently the philosophy

reigns supreme that so long as “‘air safety” is involved any

abuse of individual rights will be tolerated. The time has

come to call a halt to such abuses.

The official minutes of the NTSB reveal that the Board

met on May 10, 1974, for a total of 55 minutes and that its

discussions related to three separate items on the agenda.

The only legal representative present was NTSB attorney

Stuhldreher, who could hardly be expected to present

petitioners’ position since he apparently had already

drafted the Board’s adverse decision (R. II 457). Clearly,

the only way that the Board could have become aware of

petitioners’ position herein was to grant oral argument,

and the failure to do so constituted a denial of due process.

Londoner v. Denver, 210 U. S. 373, 386, 28 S. Ct. 708, 52

L. Ed. 1103 (1908); WIBC v. Federal Communications

Commission, 259 F. 2d 941 (D.C. Cir. 1958), cert. den. 358

U.S. 920, 79 S. Ct. 290, 3 L. Ed. 2d 239 (1958).

H. Refusal to pass upon the constitutionality and ap-

plication of various federal air regulations.

Although the petitioners raised issues pertaining to the

constitutionality and the application of various federal air

regulations,” the Board refused to review this issue and the

Court of Appeals ignored it.

The Board has consistently held in safety enforcement

proceedings that it lacks jurisdiction to entertain attacks

on the validity or reasonableness of regulations promul-

gated by the FAA Administrator. Appendix C, fn. 108;

7 The federal air regulations challenged as being unconstitu-

tionally vague were 14 C.F.R. §§ 91.9, 91.29, 91.31 and Part 97

while those alleged to be inapplicable to the facts herein were 14

C.F.R. §§ 43.5, 43.9, 43.13, 43.15, 91.116, 91.117, 91.165, 135.43,

135.111 and 145.61.

Administrator v. Roberts, 1 N.T.S.B. 1627, 1628 (1972) ;

Administrator v. Lloyd, 1 N.T.S.B. 1826, 1828 (1972). If

the NTSB will not pass upon the constitutionality of the

Administrator’s regulations, then obviously the only re-

course the petitioners have is the courts. But here the

Court of Appeals ignored the entire issue.

While admittedly these regulations are technical in

nature, only the courts remain to give any legal interpreta-

tion thereto and protect the rights of those who are

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

353 (Sth Cir. 1962) ; United States v. Ozark Air Lines, Inc.,

374 F. Supp. 234 (E.D. Mo. 1974), aff'd 506 F. 2d 526 (8th

Cir. 1975). As the Court of Appeals for the Seventh Cir-

cuit ruled in Bence v. Breier, 501 F. 2d 1185 (7th Cir. 1974) :

ity

. we do not think it just to simply defer to a

mere governmental assertion of impracticality respect-

ing rules challenged for vagueness. Due process de-

mands that each challenged rule be examined in its

context to determine whether in fact further specificity

would be feasible or practicable.” 501 F. 2d at 1189

fn. 2.

The constitutionality and application of the challenged

regulations should be judicially reviewed.

I. Revocation was not an authorized penalty.

Petitioners submit that their certificates could not be

revoked because they had not violated any federal air

regulation that provides for a penalty of revocation. The

Court of Appeals affirmed the revocations on the theory

that they “‘were within the scope of authority granted to

the Board. . .”

We note initially that the Board is not given the power

to revoke, but only to affirm, amend, modify or reverse

the Administrator's initial decision to revoke. 49 U.S.C.A.

§ 1429. It is petitioners’ contention that the initial decision

by the Administrator was improper since it was contrary

to his published regulations.

There is no doubt that the statute gives the Admin-

istrator the power to revoke. 49 U.S.C.A. § 1429. How-

ever, the Administrator has published regulations that he

will revoke if federal air regulations (14 C.F.R.) §§ 61.6,

61.20(b), 61.48, 65.18, 65.20 and 67.20 are violated. No

other federal air regulations set forth revocation as a

possible penalty.

Since the Administrator has given public notice as to

the penalty of revocation for only certain specified viola-

tions, and the petitioners did not violate any of these

regulations, it is clearly improper to permit an ad hoc

revocation in this case. As the Fourth Circuit recently

held en banc in Cross v. United States, 512 F. 2d 1212 (4th

Cir. 1975):

“Due process on the issue of sanction requires that

the punishment follow rationally from the facts, be

authorized by the statute and regulations, and aim

toward fulfillment of the Act’s purposes.” (Emphasis

added.) 512 F.2d at 1217-1218.

And as Mr. Chief Justice Burger found in another context:

‘In short, we construe, the pertinent statutory scheme

as authorizing debarment but as not authorizing de-

barment without either regulations establishing stand-

ards and a procedure which are both fair and uniform

or basically fair treatment of appellants.” Gonzalez

v. Freeman, 334 F. 2d 570, 580 (D.C. Cir. 1964).

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

Cir. 1962); Waters v. Peterson, 495 F. 2d 91, 100-101

(D.C. Cir. 1973); Bence v. Breier, 501 F. 2d 1185 (7th

Cir. 1974). Considering the totality of unfairness and

lack of due process present throughout the entire pro-

ceedings herein, it was improper to revoke the petitioners’

certificates. Blackwell College of Business v. Attorney

General, 454 F. 2d 928 (D.C. Cir. 1971).

EAE SEN EIEN LIE ANE LM

CONCLUSION

For the reasons stated, a writ of certiorari should

issue to review the judgment and opinion of the Court

of Appeals for the Third Circuit.

Respectfully submitted,

Water E. RuTHERFORD

Attorney for Petitioners

One State Street Plaza

New York, N. Y. 10004

> > Supreme Court, U. $.

'GRARY, | FILED

jy 3 1975

MICHAEL RODAK, JR..CL

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

No. 85 en 1 yd

AIR EAST, INC., d/b/a ALLEGHENY COMMUTER,

AIR EAST, INC., CHARLES ALLAN McKINNEY,

JAMES AVERY TALLENT, JEFFREY H. WILKIN-

SON and THOMAS REDDECLIFF,

Petitioners,

vs.

NATIONAL TRANSPORTATION SAFETY BOARD

and ALEXANDER P. BUTTERFIELD, Administrator

of the Federal Aviation Administration,

Respondents.

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Wa ter FE. RutHerrorp

Attorney for Petitioners

One State Street Plaza

New York, N. Y. 10004

TABLE OF CONTENTS

PAGE

Aprenpix A—Statutes Involved .................. Al

Apprenpix B—Opinion of the Court off Appeals ..... A4

Appenpix C—Opinion of the National Transportation

PR SUE G Nein ceGeee bass cenencaaas A19

Apprenpix D—Opinion of Administrattive Law Judge

NE CAS saa ae SUPA AN does behas cbs dees A67

AprenpDIx E—Deposition of Thomas Reddecliffe .... A135

FALE GE TET ITLL ENTE TET LNT STEM NETTLES: BEM PPC NILE D

APPENDIX A.

Statutes Involved.

49 U.'S.C.A.—

§ 1429. Reinspection or reexamination; amendment,

suspension, or revocation of certificates; noti-

fication; hearing; appeal to Board; judicial

review

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 a result of any such reinspection or

reexamination, or if, as a result of any other investigation

made by the Administrator, he determines that safety in

air commerce or air transportation and the public interest

requires, the Administrator may issue an order amending,

modifying, suspending, or revoking, in whole or in part,

any type certificate, production certificate, airworthiness

certificate, airman certificate, air carrier operating certifi-

eate, air navigation facility certificate, or air agency cer-

tificate. Prior to amending, modifying, suspending, or

revoking any of the foregoing certificates, the Administra-

tor shall advise the holder thereof as to any charges or

other reasons relied upon by the Administrator for his

proposed action and, except in cases of emergency, shall

provide the holder of such a certificate an opportunity to

answer any charges and be heard as to why such certificate

should not be amended, modified, suspended, or revoked.

Any person whose certificate is affected by such an order

of the Administrator under this section may appeal the

Administrator’s order to the Board and the Board may,

after notice and hearing, amend, modify, or reverse the

Administrator’s order if it finds that safety in air com-

merce or air transportation and the public interest do not

require affirmation of the Administrator’s order. In the

RE ESTER eR cr cen races eT Re RTT SEE ROOT PPR RE IAN LLL LE LIL ESE LUNAS LAL SFP IORR ”

Appendix A.

conduct of its hearings the Board shall not be bound by

findings of fact of the Administrator. The filing of an

appeal with the Board shall stay the effectiveness of the

Administrator’s order unless the Administrator advises

the Board that an emergency exists and safety im air com-

merce or air transportation requires the immediate effec-

tiveness of his order, in which event the order shall re-

main effective and the Board shall finally dispose of the

appeal within sixty days after being so advised by the Ad-

ministrator. The person substantially affected by the

Board’s order may obtain judicial review of said order

under the provisions of section 1486 of this title, and the

Administrator shall be made a party to such proceedings.

Pub.L. 85-726, Title VI, § 609, Aug. 23, 1958, 72 Stat. 779.

§ 1485. Orders, notices, and service—Effective date

of orders; emergency orders

(a) Except as otherwise provided in this chapter, all

orders, rules, and regulations of the Board or the Ad-

ministrator shall take effect within such reasonable time

as the Board or Administrator may prescribe, and shall

continue in force until their further order, rule, or regula-

tion, or for a specified period of time, as shall be pre-

seribed in the order, rule, or regulation: Provided, That

whenever the Administrator is of the opinion that an

emergency requiring immediate action exists im respect

of safety in air commeree, the Administrator is authorized,

either upon complaint or his own initiative without com-

plaint, at once, if he so orders, without answer or other

form of pleading by the interested person or persons, and

with or without notice, hearing, or the making or filing of

a report, to make such just and reasonable orders, rules,

or regulations, as may be essential in the interest of safety

in air commerce to meet such emergency: Provided fur-

Appendix A.

ther, That the Administrator shall immediately initiate

proceedings relating to the matters embraced in any such

order, rule, or regulation, and shall, insofar as practicable,

give preference to such proceedings over all others under

this chapter.

RRO Sa eas asec TERR TEI IIIT EDL LS EI ELON a OT RR AST Tye

APPENDIX B.

Opinion of the Court of Appeals.

Am East, Inc., d/b/a Allegheny Commuter,

et al., Petitioners,

NationaL Transportation Sarety Boarp and Alexander P.

Butterfield, Administrator of the Federal Aviation Ad-

ministration, Respondents.

Nos. 74-1542 and 74-1914 to 74-1918.

United States Court of Appeals,

Third Circuit.

Argued Feb. 7, 1975.

Decided March 13, 1975.

Walter E. Rutherford, Haight, Gardner, Poor & Havens,

New York City, for petitioners.

Carla A. Hills, Asst. Atty. Gen., New York City, William

Kanter, Anthony J. Steinmeyer, Morton Hollander, Ap-

pellate Section, Civ. Div., Dept. of Justice, Washington,

D. C., for respondents.

Before Apams, Rosenn and Weis, Circuit Judges.

OPINION OF THE CouRT

Weis, Circuit Judge.

In legislating on air travel safety, Congress has recog-

nized that the duty of air carriers is to perform their serv-

ices ‘‘with the highest possible degree of safety in the pub-

lie interest,” 49 U.S.C. §1421(b). With that standard as

a backdrop, we consider these appeals from the revocations

Appendiz B.

of certification of an air taxi line, several of its pilots, and

its chief mechanic. A review of the record establishes to

our satisfaction that the action of the National Transpor-

tation Safety Board is supported by substantial evidence,

and we affirm.

Air East is a commuter airline authorized to furnish

passenger and mail delivery service to a number of com-

munities in western and central Pennsylvania, including

Pittsburgh, Johnstown, Altoona, Bradford, and DuBois. It

was certified by the Federal Aviation Administration

[F.A.A.] on August 29, 1969. Petitioners Charles Allan

McKinney, James A. Tallent, and Jeffrey H. Wilkinson

were senior pilots with Air East who held pilot’s licenses

issued by the F.A.A.? Additional petitioners are Air East

(Repair Station), a separate corporation which operated

an aircraft repair facility in Johnstown pursuant to a cer-

tificate issued on August 21, 1970, and Thomas Reddecliff,

an F.A.A. certified mechanic who supervised the repair

station operations.

Air East operated without mishap until the evening of

January 6, 1974, when a flight originating in Pittsburgh

crashed on its approach to the runway in Johnstown, kill-

ing twelve of the occupants. Although there had been prior

anonymous complaints to the federal authorities about

some of Air East’s practices, the crash precipitated a gen-

eral investigation? of the carrier’s operation in addition to

1Tallent held an Airline Transport Pilot certificate, and Me-

Kinney and Wilkinson had Commercial Pilot certificates.

2 This probe was authorized by 49 U.S.C. § 1429(a), which em-

powers the Administrator of the F.A.A. to ‘‘reinspect’’ periodically

any licensee’s conduct and to ‘‘reexamine’’ any civil airman. The

result of reinspection or reexamination, if ‘‘safety in air commerce

or air transportation and the public interest requires,’’ may be the

‘‘amending, modifying, suspending, or revoking”’ of any certificate

issued by the F.A.A.

es Seraereres rs perenne AGNES IIL HS BIE EIIR LE AON M ALE IPS

Appendix B.

the inquiry specifically directed to the cause of the acci-

dent... During the period from January 18 to March 4,

1974, the F.A.A. interviewed a number of witnesses, de-

posed twenty-five persons, including present and former

Air East employees, and examined the company records

of aircraft maintenance and pilots’ operations. On March

7, 1974, the Administrator issued an “emergency” order

revoking the air taxi certificate held by Air East d/b/a

Allegheny Commuter, the repair station certificate, the

pilot certificates of McKinney, Tallent, and Wilkinson, and

the mechanic certificate of Reddecliff*

Petitioners immediately filed an appeal, and on March

21, 1974, a hearing commenced before an administrative

law judge of the National Transportation Safety Board

[N.T.S.B.]. After twenty-five days of testimony and argu-

ment, on April 24, 1974 the administrative law judge issued

his oral decision, sustaining the revocation. The Board

affirmed in an opinion issued on May 10, 1974,° and peti-

tioners appealed to this court. 49 U.S.C. 4 1486.

*49 U.S.C. § 1441(a)(2)-(5) requires the Administrator to in-

vestigate accidents involving civil aircraft, report the facts of each,

and take steps to remedy such incidents and prevent their recur-

rence.

+ This action was taken pursuant to 49 U.S.C. § 1429 which per-

mits immediate revocation in an emergency and provides that an

appeal to the licensee shall not stay the Administrator’s order when

he advises the National Transportation Safety Board ‘‘that an

emergency exists and safety in air commerce or air transportation

requires the immediate effectiveness of his order.’’ The Board is

then required to finally dispose of the appeal within sixty days.

5’ The administrative law judge upheld 15 of the 19 charges

against Air East, 9 of 9 against McKinney, 7 of 8 against Tallent,

8 of the 9 against Wilkinson, and the 2 charges against Reddecliff,

as well as 3 of the 4 charges against the repair station. The Board

sustained the administrative law judge except for one of the charges

against Tallent which it reversed.

Appendix B.

Petitioners were charged with the improper operation of

aircraft, including, inter alia:

allowing overloaded planes to take off;

permitting planes to fly without certain instruments

being in proper working order;

permitting planes to fly after improper repairs ;

4. flying below minimum approach altitudes ;

5. using approaches to the airports at Johnstown and

Altoona which were not approved by the F.A.A.;

deviating from assigned altitudes without permis-

sion; and

operating without current weather reports.

Derelictions in record keeping were also alleged, including

failing to prepare accurate weight manifests and computa-

tions of centers of gravity before take-off; falsifying rec-

ords concerning flight checks given to pilots; falsifying

records designating the supervisory mechanic responsible

for repair of aircraft; and failing to enter mechanical defi-

ciencies in the log. It was also charged that there were

instances in which aircraft were put into service after im-

proper repairs.°

* Other additional charges included:

Against Air East:

instituting company practices which :

a. prohibited pilots from logging inoperable instruments

and equipment;

b. required flight personnel to report such deficiencies on

separate pieces of paper or orally to maintenance per-

sonnel;

¢. prohibited maintenance personnel from entering repairs

in the log until such repairs were completed;

(footnote continued on following page)

GOORIN DESIRE IES LE LE CARIN EI TES FSO CE ERLE of EM PRE IEE

Appendix B.

Petitioners contend that:

the emergency revocation of the licenses without a

prior hearing was a denial of due process;

the hearing which was granted denied due process;

(footnote contirued from preceding page)

es fF FSS

d. allowed the operation of unairworthy craft; and fore-

ing employee compliance by coercion and intimidation.

scheduling pilots for excessive duty without adequate rest;

improperly maintaining pilot flight time records;

utilizing pilots as required flight crew when they had not

received initial flight training;

authorizing pilots to fly who had not completed proper

flight, instrument and route checks;

failing to provide equipment so that pilots engaged in IFR

and multi-engine operations could properly maintain and

demonstrate their ability to conduct such operations;

failing to deliver summary reports to the Administrator

relevant to propeller feathering in flight;

preventing pilots from attaining proficiency in more ad-

vanced fiying techniques.

Against McKinney, Tallent and Wilkinson:

failing to maintain minimum distances from clouds under

VFR conditions;

continuously serving as pilots-in-command without current

instrument checks;

accepting assignments in excess of the maximum allowable

hours and without required amounts of rest.

Against McKinney and Wilkinson:

serving as pilots in aircraft and under conditions for which

they had not been checked.

Against McKinney and Tallent:

operating unairworthy planes and continuing flights when

they discovered the craft to be so.

Against Reddecliff:

performing inadequate repairs on aircraft and permitting

their return to service in substandard condition.

Appendix B.

3. the charges were not supported by probative and

substantial evidence; and

4. the sanctions were excessive.’

THe Emercency Revocation Dip Not VIOLATE

Due Process

This investigation began on January 18, 1974, and dur-

ing the following six weeks, F.A.A. officials interviewed

present and former employees of Air East. Several poten-

tial witnesses were reluctant to have their roles made pub-

lic, and they preferred that the investigators meet them

privately at the witnesses’ homes during nonbusiness hours.

Some of the witnesses had experienced personal differences

with the Air East management; some were hesitant to in-

volve friends in the inquiry; several were themselves guilty

of violations which might expose them to possible sanc-

tions; and others, still employed by Air East, did not wish

to incur the animosity of management. The preliminary

investigation, therefore, was not open but was somewhat

covert.

However, the F.A.A. did issue subpoenas to Air East for

the production of records, and on February 19, 1974, an

? Petitioners also allege that, in the absence of a finding that

safety in air commerce or air transportation is involved, there is a

lack of jurisdiction to revoke under 49 U.S.C. § 1429. However,

the Board in its decision stated :

“Upon consideration of the briefs of the parties, and the entire

record, the Board has determined that safety in air commerce

or air transportation and the public interest require affirma-

tion of the Administrator’s orders revoking the certificates of

all six respondents.”

There is evidence to support that finding and we will not disturb it.

A10

Appendix B.

investigator deposed Reddecliff in the presence of his at-

torney. While the petitioners did not know all that was

transpiring, certainly they were aware that a much broader

investigation was underway than that focusing solely on

the accident of January 6, 1974.

Petitioners assert that the Administrator’s decision to

revoke the certificates on an emergency basis denied them

the opportunity for a hearing before being deprived of

their livelihood. Unquestionably, as a result of the loss of

certification, Air East was put out of business, and the

pilots could not pursue their customary occupations with-

out their licenses.

But under 49 U.S.C. $1429(a), emergency revoca-

tion has an effect limited in time to a period of sixty days.

While no hearing is required before revocation, the statute

provides that an appeal by the licensee must be decided

within sixty days. If the hearing’ establishes that the Ad-

ministrator’s action was not justified, the licenses can be

restored immediately. Thus, while the action is termed an

“emergency revocation,” it is for all intents and purposes a

suspension for sixty days or less. We point this out, not to

invoke a de minimis concept, but to demonstrate that the

statutory procedure does afford a prompt adjudication

after revocation.* We do decognize that the suspension of

a business for sixty days or a forced unemployment for

that period is a grave matter which should not be treated

lightly.

* Indeed, petitioners assert that they did not have sufficient

time to prepare their defense and appeal to the Board. But, the

expedited disposition mandated by the statute is for the benefit of

the licensees, and they were free to waive it. Probably, for eco-

nomie reasons, petitioners chose not to do so. While recognizing

their difficulties, we are not persuaded that prejudice resulted or

that a hearing at a later date would have produced a different

result.

All

Appendix B.

Due process is flexible and must be analyzed in the

context of its application. What is reasonable in one situa-

tion where there is time to pursue a leisurely and reflective

study of the circumstances may be impractical and danger-

ous to life itself in another situation. Here, the stakes

were high indeed—a threat to the lives of passengers who

entrusted themselves to an air carrier which they had every

right to assume was in compliance with the strict regula-

tions of a specialized government agency. Even though the

loss of the privilege of operating aircraft, albeit tempo-

rary, is critical to those who are certified, that hardship is

outweighed by the disaster that could befall the passengers.

When the balancing of the public interest in safety

against a licensee’s right to a hearing before revocation

involves factors such as we have here, no extensive discus-

sion of authority is necessary. We need only remark that

in this instance we are not concerned with such relatively

less critical problems as the desirability of the collection

of a judgment by an individual against the holder of a

driver’s license,® or the possible difficulty of recoupment

when a welfare payment is erroneously made.” Indeed,

here the consequences of inaction may be even worse than

where the seizure of misbranded food products before hear-

ing has been sustained,” or where the justification for sum-

mary action was prevention of a bank’s failure.’ And

surely, if the summary seizure of property to collect taxes

° Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90

(1971).

1° Goldberg v. Kelly, 397 U.S. 254, 90 §.Ct. 1011, 25 L.Ed.2d

287 (1970).

11 Ewing v. Mytinger and Casselberry, Inc., 339 U.S. 594, 70

S.Ct. 870, 94 L.Ed. 1088 (1950).

12 Fahey v. Mallonee, 332 U.S. 245, 67 S.Ct. 1652, 91 L.Ed.

2030 (1947).

Al12

Appendiz B.

meets constitutional standards,'* there can be no doubt of

the result where the threat to life is real. See also Aircrane,

Inc. v. Butterfield, 369 F.Supp. 598 (E.D.Pa.1974).

We do not mean to imply that an agency like the

F.A.A. is to be given carte blanche to exercise its power

arbitrarily and capriciously. If these were only minor

violations of a bookkeeping or technical nature or more

serious charges of dubious authenticity, obviously dif-

ferent considerations would apply. But here, the accu-

sations went to grave wrongdoing which jeopardized pub-

lic safety and were supported by statements of apparently

knowledgeable individuals.

Petitioners complain that, since the Administrator

took six weeks to collect evidence and review it before

ex parte revocation, the lack of urgency was patent. But

that argument cuts another way as well. It demonstrates

that the revocations were not hasty or ill-considered and

took place only after serious efforts had been made to

establish the validity of the charges. Once the Admin-

istrator concluded that irreparable harm could result at

any time, withdrawals of operating privileges were justi-

fied, if not demanded, by the public interest. The reality

of the safety hazard was sufficiently established by the

preliminary investigation to justify the emergency pro-

cedures utilized here.

The petitioners were aware that an investigation was

underway because they had been deposed and the com-

pany’s records had been subpoenaed. To some extent,

therefore, they had been given an opportunity to present

explanatory material before the revocations occurred.

There is no necessity, therefore, to consider under what

** Phillips v. Commissioner of Internal Revenue, 283 U.S. 589,

51 S.Ct. 608, 75 L.Ed. 1289 (1931).

Al3

Appendiz B.-

circumstances an invitation to submit exculpatory mate-

rial might be necessary before summary action by the

Administrator.

The petitioners urge that the statute is unconstitu-

tionally vague in authorizing the Administrator to dis-

pense with a prior hearing when “he is of the opinion

that an emergency requiring immediate action exists in

respect to air safety in commerce,” 49 U.S.C. ¢ 1485(a).

They assert that “safety” is too general a term or, at

the least, that some appropriate regulations should have

been drawn to delineate the Administrator’s discretion.

But, the congressional intent is clear from the language

of the statute. The primary concern is that of public

safety, and in order to carry out the purpose of the legis-

lation, the scope of authority was necessarily couched in

broad terms. To limit the exercise of this discretion

would be to frustrate the ends to which the statute was

directed.

Tl.

THerE Was Dvr Process aT THE HEARING

Petitioners assert that they were denied a fair hear-

ing because of procedural irregularities which occurred

during the course of the administrative process. They

cite as an example the Board’s regulations which re-

quire the production of “a concise and complete statement

of the facts relied upon.’"* The record reveals, how-

ever, that the administrative law judge at a pre-hearing

conference ordered the filing of a more specific statement

by the Administrator. In response, the government sub-

mitted its so-called “Bill of Particulars” which, though

#415 C.F.R. §§ 421.4(d), 421.23.

Al4

Appendix B.

not completely satisfactory to the petitioners, set forth

in greater detail the various acts claimed to support the

individual charges. Additionally, the names of witnesses

who were expected to testify as to each count were in-

cluded. Moreover, the government was required to de-

liver to petitioners’ counsel copies of the depositions

secured during the investigation period. The administra-

tive law judge’s orders effected a more comprehensive

disclosure of the government’s case than is customary in

the normal civil or criminal cases in the district court.

A reading of the transcript reveals that the administra-

tive law judge was conscious of the burden imposed upon

the petitioners by the stringent time limitation and, ac-

cordingly, ordered the government to do all but write a

seript for the hearing.

The petitioners pressed strongly for specific dates and

times for each of the violations cited by the Administra-

tor. In some instances, this was not possible because the

witnesses had no independent means of fixing the precise

day or hour when some of the incidents occurred. Un-

derstandably, this posed difficulties for the petitioners

who might have desired to produce such data as weather

reports to discredit testimony with respect to flying condi-

tions. Nevertheless, it appears that the witnesses did their

best to pinpoint dates when possible and narrowed times

to weeks or months when no other data were available.

If only a single witness had provided this type of evi-

dence, there might be difficulty in determining whether it

was sufficiently probative to sustain the burden of proof.

However, the cumulative effect of the testimony of the

many witnesses who appeared and their complementary

corroboration made it possible for the fact finder to de-

cide the contested issues. In this proceeding as in most

instances where oral testimony is important, absolute pre-

Ald

Appendix B.

cision, desirable though it may be, was simply not possible.

The generalizations were not more prevalent and, in fact,

less so than in other proceedings. Cella v. United States

208 F.2d 783 (7th Cir. 1953).

Other alleged deficiencies in the hearing process have

also been urged upon us. We have examined them in the

light of the record and find no prejudicial error.

III.

THERE Was SuBSTANTIAL EvIDENCE TO SUPPORT THE

FINDINGS OF THE Boarp

In reviewing an appeal from the Board, we are bound

by its findings of fact if supported by substantial evi-

dence. 49 U.S.C. §1486(e). We will not abdicate our

function by defining “substantial” as a scintilla, Doe v.

Dept. of Transportation, 412 F.2d 674 (8th Cir. 1969),

see Davis, Treatise on Administrative Law § 20.01, but

nevertheless, we must rely on the ability of the hearing

officer to make judgments on witnesses’ credibility. In that

spirit we have evaluated the record, a voluminous one,

and find that the substantial evidence test has been more

than satisfied. What the petitioners urge, in effect, is

to reverse the hearing officers findings on the credibility

of witnesses. We decline to do so.

15 Petitioners allege that (1) investigators destroyed their notes

on interviews with witnesses (copies of the statements were pro-

duced); (2) the Administrator sent a letter to the Board contain-

ing allegedly prejudicial information (we do not find it so); (3)

the findings of the administrative law judge did not comply with

the regulations (we find the oral decision to be comprehensive and

unusually well-detailed) ; and (4) oral argument before the Board

should have been granted and the Board should have disqualified

itself (we find no merit to these).

Al6

Appendix B.

Although it is true that a few of the witnesses may

have had personal differences with some of the petitioners,

not all did. Some of the witnesses had reason to fear

F.A.A. proceedings for their own violations occurring

while in the employ of Air East, but the fact that any

of them had been promised consideration by the agency is

not, in and of itself, sufficient to discredit their testimony.

The possibility of bias was repeatedly drawn to the attten-

tion of the administrative law judge by petitioners’ able

counsel, and we have no doubt that this factor was Prop-

erly evaluated before the decision was announced.

The only evidence presented in favor of the petitioners

was their own testimony, and obviously, that had to be

evaluated in the light of self-interest—certainly, as poytent

an element in credibility judgments as those which the

petitioners find applicable to the government witnesses.

It is not necessary to review the evidence in detail.

Instead, we will cite only a few examples to illustrate: the

nature of the testimony which petitioners would havee us

reject. For example, the petitioners denied all violatiions

of overloading the aircraft on scheduled flights; yet, seven

pilots testified that they had been ordered by petitiomers

McKinney and Tallent to ignore the weight limits so tthat

flight schedules could be met. One of the witnessses

related an incident which took place on August 13, 1{973,

when, as the result of an improper load balance, the pllane

nearly fell on its tail as passengers boarded.

Five pilots testified that they were instructed by the

company to use unauthorized approaches at Johnstcown

and Altoona and that they, along with petitioner piliots,

sometimes did so. Similarly, ten pilots detailed the ccom-

pany policy of flying below F.A.A.-prescribed minimaum

descent altitudes while under instrument flight conditioons.

Al7

Appendiz B.

Although petitioners deny such conduct, there is credible

evidence to the contrary.

A telling example illustrating the difficulties of peti-

tioners’ case involved Air East’s own weather observer.

He testified that between the dates of May 22 and May

25, 1973, he was a patient in the hospital on self-care

status.*° Although he stated that he had prepared the

weather and visibility reports at the airport during this

period, the medical librarian from the hospital produced

records indicating that the weather observer was actually

in the hospital at those hours. The administrative law

judge characterized this Air East employee as “a man

who the evidence shows as worthy of absolutely no belief

whatsoever.”

Recitation of other instances described in the testimony

would unduly lengthen this opinion. We think it sufficient

to say that a careful review of the record reveals that

the test prescribed for appellate review of administra-

tive proceedings has been met.

IV.

Tue Sanctions WERE Not Excessive

We need only summarily treat the petitioners’ conten-

tion that the sanction of revocation was not appropriate.

The evidence of numerous incidents in which the public

safety was compromised justifies the substantial depriva-

tions imposed. They were within the scope of the au-

16 Self-care patients were permitted to leave the hospital after

hours only with their doctors’ permission. In doing so, they were

required to sign in and out, noting the times and dates.

A18

Appendix B.

thority granted tu~the Board and we find no error in the

revocation orders.”

In summary, we find that the action of the National

Transportation Safety Board was supported by substan-

tial evidence and that the petitioners’ procedural rights

were not violated. Therefore, the decision of the Board

will be affirmed.

** There is a difference of opinion as to whether the enforce-

ment provisions are intended to be remedial or punitive in nature.

See Sabinske v. C.A.B., 346 F.2d 142 (5th Cir. 1965); Nadiak v.

C.A.B., 305 F.2d 588 (5th Cir. 1962); Pangburn v. C.A.B., 311

F.2d 349 (1st Cir. 1962). That debate does not affect our decision

here.

We have been advised that after one year petitioners may ask

for reinstatement. We echo the caveat in Nadiak v. C.A.B., supra,

that passing upon such an application is a matter entrusted to the

diseretion of the Administrator and that nothing we have said or

have implied in this opinion is intended to apply in that context.

Al19

APPENDIX C.

Opinion of the National Transportation Safety Board.

Servep: May 13, 1974

NTSB Order No. EA-581

Unirep States oF AMERICA

NATIONAL TRANSPORTATION SAFETY BOARD

Wasuinoton, D.C.

Adopted by the Nationa, TRANSPORTATION Sarety Boarp

at its office in Washington, D. C.

on the 10th day of May 1974

ALEXANDER P. BUTTERFIELD,

Administrator, Federal Aviation

Administrator, Dockets SE-

Complainant, 2509, 2511,

vs. 2519, 2512,

2513, and

Arr East, Inc., et al., 2522

Respondents.

Opinion AND ORDER

This proceeding involves emergency orders of revoca-

tion issued by the Administrator against the following

certificates: The air taxi/eommercial operator certificate

of Air East, Inc., d/b/a Allegheny Commuter; the com-

mercial pilot certifiate of Charles A. McKinney (Vice-

President of Flight Operations for Air East) ; the airline

transport pilot certificate of James A. Tallent (Chief Pilot

ae =

A20

Appendix C.

for Air East); the commercial pilot certificate of Jeffrey

H. Wilkinson (Training Officer for Air East); the repair

station certificate of Air East, Inc., and the mechanic

certificate of Thomas Reddecliff (Chief of Maintenance for

Air East). Following motions by both the Administrator

and respondents, all six cases were consolidated for hearing

before Administrative Law Judge Fred L. Woodlock. The

hearing commenced on March 21, 1974, spanned 25 con-

secutive working days, and concluded with the final

presentation of testimony and with oral argument on April

24, 1974. On April 26, 1974, Judge Woodlock issued an

ora] decision in which he affirmed all six orders of revoca-

tion but dismissed certain charges in the various com-

plaints.’

With respect to Air East, d/b/a Allegheny Commuter,

the law judge found that the following charges where estab-

lished by the preponderance of evidence:

(2)? Air East, as a matter of policy on numerous oc-

casions, operated, caused, or permitted to be

operated, aircraft in operations under Part 135

of the Federal Aviation Regulations (FAR) when

such aircraft either exceeded the maximum certifi-

cated takeoff weight and/or were outside the ap-

proved center of gravity limits, in violation of

sections 91.9° and 91.31(a)* of the FAR and sec-

*An excerpt from the hearing transcript containing the in-

itial decision is attached.

*The paragraph numbers herein correspond to the

number as set forth in the complaint (or order). At the end of

each charge is a reference to the transcript pages on which the

law judge discussed the evidence supporting that particular charge.

* Section 91.9 reads as follows:

‘*§91.9 Carless or reckless operation.

(footnote continued on following page)

A21

Appendix C.

. tion 610(a)(4) and (5) of the Federal Aviation

Act of 1958° (hereinafter referred to as the Act).

(Tr. 3849-3861)

(3) Air East, when conducting the operations de-

scribed in Paragraph (2), directed or permitted

its flight personnel to insert false and fictitious

computations on the required load manifests so

that they falsely showed such aircraft did not ex-

ceed the approved maximum takeoff weight and/or

that the loading fell within the center of gravity

limits, in violation of section 135.43(c) of the

FAR.* (Tr. 3861-3863)

(footnote continued from preceding page)

No person may operate an aircraft in a careless or reckless

manner so as to endanger the life or property of another.”

* Section 91.31(a) provides as follows:

‘89131 Civil aircraft operating limitations and marking re-

ments.

(a) Each person operating a civil aircraft shall comply with

the operating limitations for that aircraft prescribed by the cer-

tifieating authority of the country of registry.’’

® Section 610(a)(4) and (5) of the Act provides as follows:

‘*§ 610. [72 Stat. 780, as amended by 84 Stat. 234, 49 U.S.C.

1430)

(a) It shall be unlawful—

* * a2 . e *

(4) For any person to operate as an air carrier without an

air carrier operating certificate, or in violation of the terms of

any such certificate; :

(5) For any person to operate aircraft in air commerce in

violation of any other rule, regulation, or certificate of the Sec-

retary of Transporation*® under this title; . . . (* Footnote omitted.)

6 Section 135.43(¢) provides as follows:

‘*§ 135.43 Recordkeeping requiremenis.

(footnote continued on following page)

A22

Appendix C.

(4) Air East, on numerous occasions, failed to prepare

or cause to be prepared as required at takeoff time,

and to retain, load manifests for operations in-

volving the carriage of mail by aircraft under

contract with the U.S. Postal Service, in violation

of section 135.43(c) of the FAR.’ (Tr. 3863-3864)

(5) Air East, on numerous occasions, knowingly en-

couraged or permitted or instructed and required

its pilots, when conducting operations under Parts

91 and 135, to use instrument approach procedures

at Johnstown—Cambria County and Martinsburg

—Blair County (Altoona) Airports, which had

not been approved by the Federal Aviation Ad-

ministration (FAA) in FAR Part 97, in violation

of sections 91.116(a)* and 91.9" of the FAR and

section 610(a)(5) of the Act.” (Tr. 3864-3867)

(footnote continued from preceding page)

(e) For multiengine aircraft for which two pilots are required

by this chapter for operations under VFR, each certificate holder

shall prepare or cause to be prepared a load manifest containing

the following information concerning the loading of the aircraft

at takeoff time—

(1) The number of passengers;

(2) The total weight of the loaded aircraft;

(3) The maximum allowable takeoff weight for that flight;

(4) The center of gravity of the loaded aircraft; and

(5) The center of gravity limits for the loaded aircraft.’’

"Id.

* Section 91.116(a) provides as follows:

“*§91.116 Takeoff and landing under IFR: General.

(a) Instrument approaches to civil airports. Unless otherwise

authorized by the Administrator (including ATC), each person

operating an aircraft shall, when an instrument letdown to an

airport is necessary, use a standard instrument approach proce-

dure prescribed for that airport in Part 97 of this chapter.’’

* See footnote 3, supra.

(6)

(7)

A23

Appendiz C.

Air East, on numerous occasions, knowingly en-

couraged or permitted or instructed and required

its pilots, when conducting operations under Parts

91 and 135, to use altitudes and/or visibility

minimums at the airports described in paragraph

(5) which were below those prescribed in the FAA

approved instrument approach procedure as de-

scribed in FAR Part 97, in violation of sections

91.117(a) and (b)” and 91.9% of the FAR and

section 610(a)(5) of the Act. (Tr. 3867-3873)

Air East operated or caused or permitted to be

operated under Part 135 numerous flight opera-

tions into and out of the Johnstown—Cambria

Airport in weather conditions less than the VFR

(visual flight rules) minimums when the Johns-

town Flight Service Station (FSS) was not in

operation and without the pilots being given

weather reports from an accredited weather ob-

1! Section 91.117(a) and (b) provides as follows:

‘*§91.117 Limitations on use of instwment approach proce-

dures (other than Category II).

(a) General. Unless otherwise authorized by the Adminis-

trator, each person operating an aircraft using an instrument

approach procedure prescribed in Part 97 of this chapter shall

comply with the requirements of this section. This section does

not apply to the use of Category II approach procedures.

(b) Descent below MDA or DH. No person may operate an

aircraft below the prescribed minimum descent altitude or con-

tinue an approach below the decision height unless—

(1) The aircraft is in a position from which a normal approach

to the runway of intended landing can be made; and

(2) The approach threshold of that runway, or approach lights

or other markings identifiable with the approach end of that run-

way, are clearly visible to the pilot.”’

12 See footnote 3, supra.

18 See footnote 5, supra.

A24

Appendix C.

server, in violation of section 135.65," 135.111, (a)*°

and 91.116(c)** of the FAR and section 610(a) (5)

of the Act.” (Tr. 3874-3879)

(8) Air East initiated, adopted, or permitted the use

of company policies, practices, or procedures

which:

4 Section 135.65 provides as follows :

‘*§ 135.65 Weather reports and forecasts.

_ Whenever a person operating an aircraft in operations to which

this part applies is required to use a weather report or forecast,

he shall use that of the U.S. National Weather Service or an

aceredited observer. However, in the case of operations under

VFR, the pilot in command may, if such a report or forecast is

not available, use weather information based on his own observa-

tions or on those of other persons able to supply appropriate

observations. ”’

8 Section 135.111(a) provides as follows:

“*§ 135.111 IFR: Takeoff, approach, and landing minimums.

(a) No pilot may begin an instrument approach procedure if

the latest weather report indicates the weather conditions at that

airport are below its authorized IFR landing minimums.”’

® Section 91.116(¢) provides as follows:

““§91.116 Takeoff and landing under IFR: General.

. o * . 7 -

(ec) Civil airport takeoff minimums. Unless otherwise author-

ized by the Administrator, no person operating an aircraft under

Part 121, 123, 129, or 135 of this chapter may take off from a

civil airport under IFR unless weather conditions are at or above

the weather minimums for IFR takeoff prescribed for that airport

in Part 97 of this chapter. If takeoff minimums are not prescribed

in Part 97 of this chapter, for a particular airport, the following

minimums apply to takeoffs under IFR for aircraft operating

under those parts :

(1) Aireraft having two engines or less: 1 statute mile visi-

bility.

(2) Aircraft having more than two engines: One-half statute

mile visibility.”’ ‘ - ‘ ° f

17 See footnote 5, supra.

FP POTIRE ITT CGI Ns ATRL IRIE EN SEMI LEG ENS LE TUT EE Ae IMT BIE BR ID IN ET

A25

Appendix C.

(a) Prohibited its pilots from logging inoperative

or malfunctioning aircraft instruments, engines,

or equipment in the appropriate spaces in the air-

eraft flight log; (Tr. 3879-3880)

(b) Contrary to the Air East company manual,

required its flight personnel to report such mal-

functions as described in subparagraph (a) above

on a separate sheet of paper or orally to main-

tenance personnel. (Tr. 3880-3882)

tering such flight personnel reported discrepancies

in the flight log until such time as the required

parts or repairs could be accomplished (Tr. 3882-

3885)

(d) Permitted, required, or eaused the falsifica-

tion of aircraft maintenance records required to

be maintained by Air East. (Tr. 3885-3886)

(e) Permitted, required, or caused the return to

service for operations under Part 135 aircraft

which had not had required airworthiness inspec-

tions and/or maintenance required by the FAR.

(Tr. 3886-3887 )

(f) Permitted, required, caused, or allowed opera-

tion of aircraft under Part 135 when required in-

struments and/or equipment were inoperable. (Tr.

3887-3889)

(g) Permitted, required, caused, or allowed the

operation of aircraft when such aircraft were not

in an airworthy condition. (Tr. 3889-3892)

By reason of the actions described in paragraph

8, Air East repeatedly violated sections 91.9,

18 See footnote 3, supra.

A26

Appendix C.

91.29(a),’* 91.165,?° 135.60(g),”* and 135.143(a) and

(b)* of the FAR and sections 610(a) (1)** (4)** and

(5)** of the Act.

9 Section 91.29(a) provides as follows:

**§91.29 Civil aircraft airworthiness.

(a) No person may operate a civil aircraft unless it is in an

airworthy condition.’’

*° Section 91.165 provides as follows:

**§ 91.165 Maintenence required.

Each owner or operator of an aircraft shall have that aircraft

inspected as prescribed in Subpart D or § 91.169 of this part, as

appropriate, and § 91.170 of this part and shall, between required

inspections, have defects repaired as prescribed in Part 43 of this

chapter. In addition, he shall ensure that maintenance personnel

make appropriate entries in the aircraft and maintenance records

indicating the aircraft has been released to service.”’

22 Section 135.60(g) provides a sfollows:

**§$ 135.60 Approved aircraft inspection program.

o « - - - -

(g) Each certificate holder who has an approved aircraft in-

spection program shall have each aircraft that is subject to the

program inspected in accordance with the program.’’

22 Section 135.143(a) and (b) provides as follows:

**§135.143 General requirements.

(a) No person may operate an aircraft in operations to which

this part applies unless that aircraft and its equipment meet the

requirements of applicable regulations.

(b) No person may operate an aircraft in operations to which

this part applies, unless the required instruments and equipment

in it have been approved and are in operable condition”’

28 Section 610(a)(1) of the Act provides as follows:

‘*SEC. 610 [72 Stat. 78C, as amended by 84 Stat. 234, 49 U.S.C.

1430]

(a) It shall be unlawful—

(1) For any person to operate in air commerce any civil air-

craft for which there is not currently in effect an airworthiness

certificate, or in violation of the terms of any such certificate; .. .”

24 See footnote 5 supra.

25 Td.

A27

Appendix C.

(10) Air East maintained its pilot flight time records

in accordance with the maintenance “Time in Serv-

ice” definition (wheels-off to wheels-on) rather

than pilot flight time (block-to-block). As a result

thereof, Air East failed to keep the flight time

records for all of its pilots in sufficient detail to

determine compliance with flight time limitations,

in violation of section 135.43(a)(4)(vii) of the

FAR* and section 610(a)(5) of the Act. (Tr.

3893-3895)

(12) From April 12, 1973 to date, Air East knowingly

utilized the services of at least one pilot as pilot-

in-command in Part 135 operations when such

pilot or pilots had not completed the routes and

airports flight check given by the Administrator or

an approved check pilot, in violation of section

135.122(a) of the FAR* and section 610 of the

Act. (Tr. 3895-3896)

26 Section 135.43(a) (4) (vii) provides as follows :

‘*§ 135.43 Recordkeeping requirements.

(a) Each certificate holder shall keep at his principal business

office and make available for inspection by the Administrator the

following :

- * . * * 7

(4) An individual record of each pilot used by him in opera-

tions subject to this part, including the following information:

* * 7 * * —

(vii) The pilot’s flight time in sufficient detail to determine

compliance with the flight time limitations of this part.’’

27 See footnote 5, supra.

28 Section 135.122(a) provides as follows:

“*§ 135.122 Pilot-in-command qualifications: Routes and air-

ports

(a) The certificate holder may not utilize a pilot, nor may any

person serve as pilot in command of a flight under IFR unless,

since the beginning of the 12th calendar month before that service

(footnote continued on following page)

A28

Appendix C.

(13) From April 29, 1973 to date, Air East knowingly

and continuously used the services of at least one

pilot in a Beechcraft Model 99 aircraft when he

had not passed a flight check in that type aircraft

given by the Administrator or an authorized check

pilot in that type aircraft since the beginning of

the 12th calendar month before that service, in

violation of section 135.138(b) of the FAR” and

section 610(a)(2)* and (5)** of the Act. (Tr.

3896-3899)

(footnote continued from preceding page)

he has passed a flight check in one of the types of airplanes that

he is to fly, given by an approved check pilot who is qualified in

the aireraft, or by the Administrator, consisting of at least one

flight over a representative airway or approved off-airway route,

or portion thereof, over which he may be assigned to fly.”

*® Section 135.138(b) provides as follows:

“§ 135.138 Initial and recurrent pilot testing requirements.

(b) No certificate holder may use the services of a pilot, nor

may any person serve as a pilot, in any aircraft unless, since the

beginning of the 12th calendar month before that service, he has

passed a flight cheek given to him by the Administrator or an

authorized check pilot in that class of aircraft, if single-engine air-

plane other than turbojet, or that type of aircraft, if helicopter,

multiengine, or turbojet, to determine the pilot’s competence in

practical skills and techniques in that aircraft or class of aircraft,

including at least the maneuvers that are set forth in § 61.117

(b)(2), exeept (iii) (£); § 61.117(b) (3), except (i), (ii) (iii),

(v), and (vi); § 61.117(s); § 61.121(b(1) and (2); § 61.121(e) (2)

and (3) of this chapter, and related advisory circulars for pilot

certification in the class of aircraft the pilot is to operate. How-

ever, a pilot who holds an instrument rating need not demonstrate

the instrument flight maneuvers in § 61.117(¢).”

*° Section 610(a) (2) of the Act provides as follows:

“SEC. 610. [72 Stat. 780, as amended by 84 Stat. 234, 49 U.S.C.

1430] (a) It shall be unlawful— °

(footnote continued on following page)

FP NVI MS ” eal LE aaa oe ec Pa

PRE LS ETN PTR MO ON AIA a ow

A29

Appendix C.

(14) From April 30, 1973, to date, Air East knowingly

and continuously used the services of at least one

pilot-in-command under IFR (instrument flight

rules) when he had not passed an instrument check’

given by the Administrator or an approved check

pilot, in violation of section 135.131(a) and (b) of

the FAR™ and section 610(a)(5) of the Act.

(3899-3900) °

(15) Air East knowingly falsified, or caused or per-

mitted the falsification of, numerous pilot training

records to show that flight crewmembers who had

not been trained or tested were trained or tested

and thereby failed to make available the true and

(footnote continued from preceding page)

(2) For any person to serve in any capacity as an airman in

connection with any civil aircraft, aircraft engine, propeller or

appliance used or intended for use, in air commerce without an air-

man certificate authorizing him to serve in such capacity, or in

violation of any order, rule, or regulation issued under this

title; ...”

5° See footnote 5, supra.

* Section 135.131(a) and (b) provides as follows:

“§ 135.131 Pilot in command: Instrument check requirements.

(a) No certificate holder may use a pilot, nor may any person

serve as a pilot in command of an aircraft under IFR unless, since

the beginning of the sixth calendar month before that use, he has

passed an instrument check and the Administrator or an author-

ized check pilot has so certified in a letter of competency.

(b) No pilot may use any type of instrument approach proce-

dure under IFR unless, since the beginning of the sixth calendar

month before that use, he has successfully demonstrated that pro-

cedure and the Administrator or an authorized check pilot has so

certified in a letter of competency.”

*2 See footnote 5, supre.

A30

Appendiz C.

correct information, in violation of séections

135.43 (a) (4) (vi) and (x) of the FAR.* (Tr. -, 3900).

(16) Air East, by reason of its actions as descrikjped in

paragraphs (12), (13) and (14), failed to Piprovide

aircraft and facilities to enable its pilotsts, who

were engaged in IFR and multiengine operérations,

to maintain and demonstrate properly their é ability

to eAiduct such operations, in violation of s section

135.37 of the FAR.* (Tr. 3901)

(17) Air East, on at least one occasion, failed tcto mail

or deliver to the appropriate representative p of the

Administrator a summary report concernining at

least one of its multiengine aircraft, reportiting the

required information relating to propeller feeather-

33 Section 135.43(a) (4) (vi) and (x) reads as follows:

“§ 135.43 Record keeping requirements.

(a) Each certificate holder shall keep at his principal bipysiness

office and make available for inspection by the Administratytor the

following:

. . . . 2 o-

(4) An individual record of each pilot used by him in , opera-

tions subject to this part, including the following informati¢joy .

* - . a * .

(vi) The date and result of each of the initial and reeyoyrrent

proficiency tests and instrument and route checks required py this

part and the type of aircraft flown during that test or check.

me.

- . 2 - *

(x) The date of the completion of the initial phase @2nd each

recurrent phase of the training required by this part.”

* Section 135.37 provides as follows:

“*§ 136.37 Aircraft and facilities for recent flight experiej nog

Each certificate holder shall provide aircraft and facilitjities to

enable each of his pilots who is authorized to engage in IF-pp and

multiengine operations to maintain and demonstrate his abidility to

conduct those operations.”

A31

Appendix C.

ing in flight, in violation of section 135.59(b) of

the FAR.*

(19) Air East, through its officials, put into effect and

accomplished the company policies, practices, and

procedures described hereinabove by intimidating,

coercing, or threatening its pilots and maintenance

personnel who refused, or were reluctant, to com-

ply with such unapproved, illegal, or unsafe polli-

cies, practices, or procedures. (Tr. 3904-3907)

The law judge dismissed the following charges included

in the Administrator’s complaint against Air East:

(9) Air East, on numerous occasions, scheduled pilots

for duty in excess of the maximum allowable 14

hours in any 24 consecutive hours and/or without

the required 10 hours of continuous rest in any

24-hour period, in violation of section 135.136(b)

and (f) of the FAR” and section 610(a)(5) of the

Act.” (See Tr. 3892-3).

85 Section 135.59(b) provides as follows:

“§ 135. Mechanical interruption summary report.

Each certificate holder shall mail or deliver, before the end of

the 10th day of the following month, a summary report of the

following occurrences in multiengine aircraft for each month to the

FAA District Office having jurisdiction over the area in which the

certificate holder’s principal business office is located :

* o * : of *

(b) The number of propeller featherings in flight, listed by

type of propeller and engine and airplane on which it was in-

stalled... .”

36 Section 135.136(b) and (f) provides as follows:

“§ 135.136 Flight and duty time limitations.

* * a * a -

(b) No certificate holder may assign a flight crewmember, and

no flight crewmember may accept an assignment, for duty during

(footnote continued on following page)

eget ee 0

A32

Appendix C.

(11) Air East knowingly utilized pilots as required

flight crewmembers when such pilots had not re-

ceived initial flight training, as required by section

135.137 of the FAR.* (See Tr. 3895)

(18) Air East continuously permitted, instructed, or

knowingly authorized its pilots to use unsafe or

unapproved practices or procedures in the opera-

tion of company aircraft as follows:

(a) Pilots were prohibited from using reverse

pitch of propellers during landings. Such prohibi-

tion prevented the pilots from becoming proficient

in the use of reverse propeller pitch in the event

that its use was required in an emergency; (b) As

a general rule, first officers were not permitted to

execute takeoffs or landings and therefore did not

(footnote continued from preceding page)

flight time unless that assignment provides for at least 10 con-

secutive hours of rest during the 24-hour period preceding the

planned completion of the assignment.

: 7 +. * « . .

(f) No certificate holder may assign any flight crewmember,

and no flighterew member may accept an assignment, for duty

during flight time if he has been assigned to any duty with the

certificate holder in connection with operations under this part

during any required rest period.”

57 See footnote 5, supra.

** Section 135.137 provides as follows:

“§ 135.137 Initial and recurrent training requirements.

No certificate holder may use the services of, nor may any per-

son serve as, a pilot or flight attendant crewmember in operations

under this part unless that crewmember has completed the appro-

priate initial or recurrent training phase of the training program

appropriate to the type of operation in which he is to serve since

the beginning of the 12th calendar month before that service.

This section does not apply to a certificate holder who uses only

himself as a pilot.”

A33

Appendix C.

maintain the proficiency expected of a pilot being

utilized as a first officer. (See Tr. 3413)

(20) By reason of all of the circumstances pertaining

to the operation of aircraft as alleged in the fore-

going paragraphs (in the entire complaint), and

in violations of the FAR or the Act specified

therein, Air East repeatedly violated sections

605(a) of the Act.** (See Tr. 3907-3908)

The law judge concluded that safety in air commerce or

air transportation and the public interest require the revo-

cation of the air taxi/commercial operator certificate of

Air East (Tr. 3908), and he thereupon affirmed the Admin-

istrator’s order.

With respect to respondents Tallent, McKinney, and Wil-

kinson, the law judge found that the following charges were

established by a preponderance of the evidence:

While serving as captain and pilot-in-command for

Air East in the operation of aircraft carrying pasen-

gers and/or cargo under Part 135 and/or while serving

as pilot-in-command on operations under Part 91:

(a) On numerous occasions, while operating such

aircraft under IFR, each respondent used instrument

approach procedures at Johnston-Cambria and Mar-

tinsburg, Blair County (Altoona), Airports which had

not been approved by the FAA in FAR Part 97, in

8° Section 605(a) of the Act provides as follows:

“SEC 605. [72 Stat. 778, 49 U.S.C. 1425] (a) It shall be the

duty of each air carrier to make, or cause to be made, such inspec-

tion, maintenance, overhaul, and repair of all equipment used in

air transportation as may be required by this Act, or the orders,

rules, and regulations of the Secretary of Transportation® issued

thereunder. And it shall be the duty of every person engaged in

operating, inspecting, maintaining, or overhauling equipment to

(footnote continued on following page)

A34

Appendiz C.

violation of sections 91.116(a)* and 91.9" of the FAR

and section 610(a)(5) of the Act.** (Tallent (Tr. 3910-

3911); McKinney (Tr. 3917-3918); Wilkinson (Tr.

3925-3926) ).

(b) On numerous occasions, while operating such air-

craft under IFR, each respondent used altitude and/or

visibility minimums at Johnston-Cambria and Martins-

burg, Blair County (Altoona), Airports which were

below those prescribed in the FAA-approved instru-

ment approach procedures as described in FAR Part

97, in violation of sections 91.116(a)** and (b),** 91.117

(a) and (b),* and 91.9% of the FAR and section

(footnote continued from preceding page)

observe an® comply with the requirements of this Act relating

thereto, and the orders, rules, and regulations issued thereunder.’

(* Footnote omitted.)

*° See footnote 8, supra.

** See footnote 3, supra.

*? See footnote 5, supra.

** See footnote 8, supra.

“ Section 91.116(b) provides as follows:

“$91.116 Takeoff and landing under IFR: General.

(b) Landing minimums. Unless otherwise authorized by the

Administrator, no person operating an aircraft (except a military

aireraft of the United States) may land that aircraft using a stand-

ard instrument approach procedure prescribed in Part 97 of this

chapter unless the visibility is at or above the landing minimum

prescribed in that part for the procedure used. If the landing

minimum in a standard instrument approach procedure prescribed

in Part 97 of this chapter is stated in terms of ceiling and visi-

bility, the visibility minimum applies. However, the ceiling mini-

mum shall be added to the field elevation and that value observed

as the MDA or DH, as appropriate to the procedure being

executed.”

** See footnote 11, supra.

** See footnote 3, supra.

DELLE SETI EL INES LNY APE IO BMA IO

A35

Appendix C.

610(a)(5) of the Act* (Tallent (Tr. 3911-3912);

McKinney (Tr. 3918-3920) ; Wilkinson (Tr. 3926) ).

aircraft under IFR, each respondent deviated from an

ATC (air traffic control) clearance that had been ac-

cepted and acknowledged, without obtaining an

amended clearance, in violation of sections 91.75(a)*

and 91.9% of the FAR and section 610(a)(5) of the

Act.” (Tallent (Tr. 3912-3913) ; McKinney (Tr. 3920-

3921) ; Wikinson (Tr. 3926-3927) ).

(d) On more than one occasion, each respondent

operated an aircraft under VFR when he did not main-

tain the minimum distance from clouds as prescribed

in, and in violation of, sections 91.105(a)” and 91.9

of the FAR and section 610(a) (5) of the Act.** (Tallent

47 See footnote 5, supra.

48 Section 91.75(a) provides as follows:

“$91.75 Compliance with ATC clearances and instructions.

(a) When an ATC clearance: has been obtained, no pilot in

command may deviate from that «.earance, except in an emergency,

unless he obtains an amended clearance. However, except in posi-

tive controlled airspace, this paragraph does not prohibit him from

eancelling an IRF flight plan if he is operating the VFR weather

conditions.”

49 See footnote 3, supra.

5° See footnote 5, supra.

51 Section 91.105(a) provides, in pertinent part, as follows:

“§ 91.105 Basic VFR weather minimums.

(a) Except as provided in § 91.107, no person may operate an

aircraft under VFR when the flight visibility is less, or at a dis-

tance from clouds that is less, than that prescribed for the corre-

sponding altitude in the following table: (Table omitted. )

52 See footnote 3, supra.

58 See footnote 5, supra.

A36

Appendiz C.

“i

(Tr. 3913-3914;); McKinney (Tr. 3921); Wilkinson

Tr. 3927)).

(e) On more than one occasion, respondents Tallent

and McKinney™ each operated an aircraft which was

not in an airworthy condition and failed to discontinue

such flight or flights when unairworthy mechanical con-

ditions existed, in violation of section 91.29(a)* and

(b)* of the FAR and section 610(a)(5) of the Act.*’

(Tallent (Tr. 3914) ; McKinney (Tr. 3921-3922) )

(f) Each respondent operated aircraft on numerous

occasions when such aircraft either exceeded the maxi-

mum certificated takeoff weight and/or were outside

the approved center of gravity limits, in violation of

sections 91.31(a)" and 91.9 of the FAR and section

610(a)(4) and (5) of the Act.” (Tallent (Tr. 3915) ;

McKinney (Tr. 3922); Wilkinson (Tr. 3928)).

(g) Between April 29, 1973, and the present time, re-

spondents McKinney and Wilkinson” knowingly and

** Respondent Wilkinson was not charged under this paragraph.

** See footnote 19, supra.

** Section 91.29(b) provides as follows:

**§91.29 Civil aircraft airworthiness.

+. * * * * a

(b) The pilot in command of a civil aircraft is responsible for

determining whether that aircraft is in condition for safe flight.

Hle shall discontinue the flerht when unairworthy mechanical or

structural conditions occur.

*' See footnote 5, supra.

°° See footnote 4, supra.

°° See footnote 3, supra.

* See footnote 5, supra. f

“| Respondent Tallent was not charged under this paragraph.

ENP Sos eT Ce Pe! Bn pL hon c — i.

an eee Te;

A37

Appendiz C.

continuously served as pilot in Beechcraft mode] 99

aircraft when each had not passed a flight check in that

type of aircraft, given by the Administrator or an

authorized check pilot in that type of aircraft since the

begimning of the 12th calendar month before that

service, in violation of section 135.138(b) of the FAR®

and section 610(a)(5) of the Act** (McKinney Tr.

3922-3923); Wilkinson Tr. 3928-3920) ).

(h) From April 29, 1973, to date, respondents McKin-

ney and Wilkinson’* knowingly and continuously

served as pilot-in-command of a flight under IFR when

each had not passed a routes-and-airports flight check

given by the Administrator or by an approved check

pilot in violation of section 135.122(a) of the FAR®

and section 610(a)(5) of the Act.** (McKinney (Tr.

3923-3924) ; Wilkinson (Tr. 3929)).

(i) From April 30, 1973, to date,*’ each respondent

continuously and knowingly served as pilot in com-

mand under IFR when he had not passed an instru-

ment check given by the Administrator or by an

approved check pilot, in violation of section 135.131(a)

and (b) of the FAR*® and section 610(a)(5) of the

*2 See footnote 29, supra.

** See footnote 5, supra.

* Respondent Tallent was not charged under this paragraph.

* See footnote 28, supra.

** See footnote 5, supra.

*7 In the case of respondent Tallent, this period ran from April

30 to October 18, 1973.

** See footnote 31, supra.

A38

Appendix C.

Act.” (Tallent (Tr. 3915-3916) ; McKinney (Tr. 3924) ;

Wilkinson (Tr, 3929)).

The law judge dismissed the charge against the above

three respondents regarding the alleged exceeding of crew

duty and rest times prescribed by section 135.136(b) and

(f) of the FAR.

The law judge then affirmed the orders revoking the

airman certificates of respondents Tallent, McKinney, and

Wilkinson.

With respect to Air East (the repair station), the law

judge found that the following charges were established

by a preponderance of evidence:

(2) Air East, in performing maintenance or altera-

tions on aircraft under authority of its repair station

certificate, on several occasions, approved such air-

craft for return to service without having performed

such required work in such a manner, and using mate-

rials of such quality, that the condition of such air-

craft was equal to its original or properly altered con-

dition, in violation of sections 43.13(a) and (b)”,

** See footnote 5, supra.

Section 43.13(a) and (b) provides as follows:

“§ 43.13 Performance rules (general).

(a) Each person maintaining or altering, or performing pre-

ventive maintenance, shall use methods, techniques, and practices

acceptable to the Administrator. He shall use the tools, equip-

ment, and test apparatus necessary to assure completion of the

work in accordance with accepted industry practices. If special

equipment or test apparatus is recommended by the manufacturer

involved, he must use that equipment or apparatus or its equiva-

lent acceptable to the Administrator.

(b) Each person maintaining or altering, or performing pre-

ventive maintenance, shall do that work in such a manner and use

(footnote continued on following page)

i) ne ely + lek ea _

A39

Appendiz C.

43.15(a)™ and 145.57(a)"™ of the FAR (Tr. 3930-3931).

(a) Air East, in exercising the authority and privi-

leges of its repair station certificate, on numerous

occasions, required, permitted, or caused aircraft, air-

frames, engines, instruments, or accessories which Air

East had maintained or altered to be approved for

return to service without such articles having been

inspected and determined to be airworthy by a quali-

fied inspector. This was accomplished by nonquali-

fied personnel and the subsequent making of fraudulent

or intentionally false entries and certifications in the

aircraft records. By reason of such actions, Air East

(footnote continued from preceding page)

materials of such a quality, that the condition of the aircraft, air-

frame, aircraft engine propeller, or appliance worked on will be at

least equal to its original or properly altered condition (with regard

to aerodynamic function, structural strength, resistance to vibration

and deterioration, and other qualities affecting airworthiness) .”

" Section 43.15(a) provides as follows:

“§ 43.15 Additional performance rules for inspections.

(a) General. Each person performing a 100-hour, annual, or

progressive inspection required by Part 91 of this chapter or an

inspection required under Part 123 of this chapter, shall perform

those inspections in such a manner as to determine whether the

aircraft concerned meets all applicable airworthiness require-

ments.”

72 Section 145.57(a) provides as follows:

‘*§ 145.57 Performance standards.

(a) Except as provided in § 145.2, each certificated domestic

repair station shall perform its maintenance and alteration opera-

tions in accordance with the standards in Part 48 of this chapter.

It shall maintain, in current condition, all manufacturers’ service

manuals, instructions, and service bulletins that relate to the arti-

cles that it maintains or alters.”’

Barres seep ree ererersnc om sormenmonrecene tens OSAP ESL ARETE ERLE EY, TE

A40

Appendia C.

repeatedly violated sections 145.59(a)", 43.5 and

43.11(a)" of the FAR. (Tr. 3931-3932)

*8 Section 145.59(a) provides as follows:

**§$ 145.59 Inspection of work performed.

(a) Each certificated domestic repair station shall, before ap-

proving an airframe, powerplant, propeller, instrument, radio, or

accessory for return to service after maintaining or altering it,

have that article inspected by a qualified inspector. After per-

forming a maintenance or alteration operation, the station shall

certify on the maintenance or alteration record of the article that

it is airworthy.”’

™ Section 43.5 (a) provides as follows:

‘$43.5 Return to service after maintenance, preventive main-

tenance, rebuilding, or alteration.

(a) No person may return to service any aircraft, airframe, air-

craft engine, propeller, or appliance, that has undergone mainte-

nance, preventive maintenance, rebuilding, or alteration unless—

(1) It has been approved for return to service by a person

authorized under § 43.7;

(2) The maintenance record entry required by § 43.9 has been

made;

(3) The repair or alteration form authorized by or furnished

by the Administrator has been executed in a manner prescribed by

the Administrator ; and

(4) If a repair or an alteration results in any change in the.

aircraft operating limitations or flight data contained in the ap-

proved aircraft flight manual, those operating limitations or flight

data are appropriately revised and set forth as prescribed in

§ 91.31 of this chapter.”’

75 Section 43.11(a) provides as follows:

‘$43.11 Content, form, and disposition of annual, 100-hour,

and progressive inpection records.

(a) Maintenance record entries. The person approving or dis-

approving for return to service an aircraft, airframe, aircraft en-

gine, propeller, or appliance after any annual, 100-hour, or pro-

gressive inspection required by Part 91 of this chapter shall make

(footnote continued on following page)

A41

Appendia C.

(4) On numerous occasions, Air East, when perform-

ing work and inspections under authority of its repair

station certificate, failed to maintain proper and ade-

quate records, naming the persons who supervised

and/or inspected that work, in that the records main-

tained by Air East failed to name the person actually

supervising and/or inspecting that work and then

fraudulently and/or intentionally falsified the record

to show that such supervision and/or inspection had

been performed by an authorized and qualified person,

(footnote continued from preceding page)

an entry in the maintenance record of that equipment, containing

the following information :

(1) The type of inspection (and for progressive inspections,

a brief description of the extent of the inspection).

(2) The date of the inspection and aircraft time in service.

(3) The signature (and if a certificated mechanic, the certificate

nuinber) of the person approving or disapproving for return to

service, the aircraft, airframe, aircraft engine, propeller, or ap-

pliance.

(4) For annnal or 100-hour inspections if the aircraft is ap-

proved for return to service, the following or a similarly worded

statement—‘I certify that this aircraft has been inspected in ac-

cordance with (insert type) inspection and was determined to be

in airworthy condition.’

(5) For annual inspections, if the aircraft is not approved for

return to service because of needed maintenance, noncompliance

with applicable specifications, airworthiness directives or other

approved data, the following or a similarly worded statement—'I

certify that this aircraft has been inspected in accordance with an

annual inspection and a list of discrepancies and unairworthy

items dated (date) has been provided for the aircraft owner or

lessee.’

(6) For progressive inspections, the following or a similarly

worded statement—‘I certify that in accordance with a progressive

inspection program, a routine inspection of (identify whether air-

craft, or components) and a detailed inspection of (identify com-

| ponents) were performed in accordance with a progressive in-

spection and the aircraft is approved for return to service.’ ”’

NR oreo LENS GREE LL A

A42

Appendix C.

in violation of section 145.61 of the FAR” (Tr. 3932-

3933).

The law judge dismissed a general charge, based on the

above actions, alleging a violation of section 610(a)(7) of

the Act.

The law judge thereupon concluded that the order re-

voking Air East’s repair station certificate should be

affirmed.

Finally, in regard to Respondent Reddecliff, the law judge

found that the following charges had been established by

a preponderance of the evidence.

(4) On numerous occasions, when serving in his ca-

pacity as chief of maintenance for Air East, Redde-

cliff :

(a) Performed, and/or supervised the performance

of, work on aircraft in such a manner and/or used

or permitted the use of materials of such quality that

the condition of such aircraft worked on was not at

least equal to its original or properly altered condi-

tion, and he permitted such aircraft to be returned

to service in such condition, in violation of section

43.13(a) and (b)" of the FAR and sections 605(a)”

and 610(a)(2)" of the Act (Tr. 3935-3936).

*® Section 145.61 provides as follows:

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