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

Supreme Court of the United States

October Term, 1992

John C. Pritchard,

Petitioner,

v.

National Transportation Safety Board, et al,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Ce ee ee ee

JOHN C. PRITCHARD

8601 Falmouth #406

Playa del Rey, CA 90293

(310) 305-2837

Petitioner Pro Se

QUESTIONS PRESENTED

1. Whether the Administrator of the Federal

Aviation Administration may suspend an airman's

pilot certificate on the basis of an inference of pilot

error, admittedly concluded without investigation,

or as required by the provisions of the Federal

Aviation Act (49 U.S.C. Section 609(a)), and in

violation of the Due Process principles which the

Court established in Accardi v, Shaughnessy (347

US. 260 (1953)).

2. Whether the Court of Appeals erred in

sustaining an inference of pilot carelessness,

concluded without investigation, by equating such

presumption to permissable state of mind

inferences drawn in murder cases where a deadly

weapon is used.

TABLE OF CONTENTS

Questions Presented

Table of Contents

Table of Authorities

OPINIONS BELOW

JURISDICTION

STATUTES INVOLVED

STATEMENT OF THE CASE

BACKGROUND

REASONS FOR GRANTING THE WRIT

I The FAA Administrator Improperly

Issued An Order of Suspension

Without Investigation

II The Court of Appeals Improperly

Equated the Board's Presumption of

Carelessness to Inferences of Intent

Drawn from the Circumstances

DISCUSSION

CONCLUSION

APPENDICES

il

TABLE OF CONTENTS (cont.)

APPENDIX A

Order of the Court of Appeals for the Ninth

Circuit, filed on July 15, 1992, affirming Captain

Pritchard's suspension (Docket No. 90-70041).

APPENDIX B

Order of the National Transportation Safety

Board (EA-3024), adopted on November 1, 1990,

affirming the suspension of petitioner Pritchard's

pilot certificate.

APPENDIX C

Oral Initial Decision and Order of NTSB

Law Judge Joyce Capps, affirming the FAA's

suspension of petitioner John Pritchard's pilot |

certificate.

APPENDIX D

FAA Order of Suspension, dated September

16, 1987, suspending petitioner Pritchard's Airline

Transport Pilot Certificate.

APPENDIX E

Circuit, filed on June 27, 1990, denying petitioner's

Order of the Court of Appeals for the Ninth a

Motion for Reconsideration.

ili

APPENDIX F

Excerpts from FAA Order 2150.3, the FAA

Compliance and Enforcement Program manual,

detailing the requirements of FAA investigative

policies (from the Excerpts of Record before the

Court of Appeals).

APPENDIX G

Federal Aviation Act a

49 U.S.C. Section 1006(a)

49 U.S.C. Section 1006(f)

49 U.S.C. Section 1429(a)

Federal Aviation Regulations

14 C.F.R. Section 13.1

14 C.F.R. Section 91.9

(now 14 C.F.R. Section 91.13(a))

NTSB Rules of Practice

49 C.F.R. Section 821.32

iv

TABLE OF AUTHORITIES

Page

CASES

Accardi v. Shaughnessy,

347 U.S. 260 (1953) passim

Administrator v. Babbit,

1 NTSB 1305 (1971) 10

Administrator v. Coleman,

1 NTSB 229 (1968) 10,

Administrator v. Davis and Manecke,

1 NTSB 1514 (1972) passim

Administrator v. Eger,

2 NTSB 862 (1974) 10, 15, 22

Administrator v. Hart,

2 NTSB 1110 (1974) 10

Administrator v. Hibbard,

1 NTSB 1152 (1971) 7,9, 19

Administrator v. Lindstam,

41 C.A.B. 841 (1964) passim

Arnett v. Kennedy,

416 USS. 134 (1974) 12

Barry v. Barchi,

443 US. 55 (1978) 12

TABLE OF AUTHORITIES (cont.)

Board of Regents v. Roth,

408 U.S. 564 (1972) 12

Dickey v. Lewis,

859 F.2d. 1365 (9th Cir. 1988) 8, 11,

Ferguson v. N.T.S.B.,

678 F.2d. 821 (9th Cir. 1982) 23

Haines v. Dept. of Transportation,

449 F.2d.1073(CAD.C.1971) 2B

Illinois Central Railroad v. I.C.C.,

206 U.S. 441 (1907) 20

Kolek v. Engen,

869 F.2d. 1281 (9th Cir. 1989) 12

Lincoln v. French,

105 U.S. 614 (1881) 13, 20

Maggio v. Zeitz,

333 U.S. 56 (1948) passim

McFarland v. American Sugar,

241 US. 79 (1916) 14, 20

Mills v. Orcas Power,

355 P.2d. 781 (1960) 5, 14, 23

vi

TABLE OF AUTHORITIES (cont.)

Page

Peavey v. City of Miami,

1 So. 2d. 614 (1941) 5, 14, 23

Pike v. Civil Aeronautics Board,

303 F.2d. 353 (CA 8, 1962) 10, 28

Service v. Dulles,

354 U.S. 363 (1957) 8,15

Steadman v. S.E.C.,

450 U.S. 91 (1981) 20

United States v. Heffner,

420 F.2d. 809 (Fourth Cir. 1970) 17,18

Vitarelli v. Seaton,

359 U.S. 535 (1959) 8

Western & Atlantic Railway Co. v.

Henderson, 279 U.S. 639 (1929) 20

Yellin v. United States,

374 U.S. 109 (1963) 8, 17,18

Vil

TABLE OF AUTHORITIES (cont.)

Page

STATUTES

5 U.S.C. Section 556 9

28 U.S.C. Section 1254(1) 1

49 U.S.C. Section 1429(a) passim

49 U.S.C. Section 1432 14

49 U.S.C. Section 1486(f) 1

RULES AND REGU! “4.%2 2 $

Supreme Court Rule 10.1 3

14C.F.R. § 13.1 6, 11

14C.F.R. § 13.9 7

49 C.F.R. Section 821.32 9

49 C.F.R. Section 821.48(a) i)

Vili

wes renrees = >

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

Petitioner John C. Pritchard requests that the

Court issue a writ of certiorari to review a

Memorandum of the United States Court of Appeals

for the Ninth Circuit, issued on July 15, 1992,

wherein the court of appeals affirmed a National

Transportation Safety Board Order which sustained

the suspension of Captain Pritchard's Airline

Transport Pilot certificate.

OPINIONS BELOW

The Opinion and Order of the National

Transportation Safety Board in the underlying case

is reported ina ‘Slip Opinion’ as EA-3024 (App. B).

The Memorandum of the United States Court of

Appeals for the Ninth Circuit, affirming the

Board's Order, is unreported (App. A). The Order of

the United States Court of Appeals for the Ninth

Circuit, denying Petitioner's Motion for Rehearing,

is unreported (App. E). The appeals court docket

number is 90-70041.

JURISDICTION

The Memorandum of the Court of Appeals

affirming the Board's Order in this case was

entered on July 15, 1992. (App A). The order of the

Court of Appeals denying reconsideration was

entered on September 14, 1992 (App. E). The

jurisdiction of this Court is invoked pursuant to 28

U.S.C. Section 1254(1) as is provided for within the

Federal Aviation Act (49 U.S.C. Section 1486(f)).

STATUTES INVOLVED

This petition concerns the proper application

of Section 609(a) of the Federal Aviation Act of 1958

(49 U.S.C. Section 1429(a)) in light its mandate that

the Administrator! of the Federal Aviation Admini-

stration "investigate" prior to making any determi-

nation to suspend a pilot's airman certificate.

Where the FAA Administrator has established

written standards and policies for the conduct of his

“investigations” (App. F), the principles of Admini-

strative Due Process, as provided for under the

terms of the 5th and 14th Amendments to the U.S.

Constitution, require that the FAA Administrator

adhere to such investigative policies and conduct a

proper investigation before making his adverse

determinations which affect an individual's rights.

In this case, however, the FAA admitted that it

simply presumed that pilot carelessness was the

cause of an aircraft incident rather than to

investigate in fulfillment of the statutory require-

ments. Further, the FAA ignored compliance with

it's own written policies. The applicable statute and

policies are fully set forth and presented in the

appendices (App. F and G).

STATEMENT OF THE CASE

The petitioner asks that the Court exercise its

power of supervision due to the wide departure of

the Appeals Court from the accepted course of

judicial proceedings and from the applicable

I Section 6(c) of the Department of Transporta-

tion Act (Public Law 89-670, approved October 15,

1966, 80 Stat. 931) effective April 1, 1967, trans-

ferred the powers and duties of the Administrator

of the FAA to the Secretary of Transportation.

decisions of the Court (S.Ct. Rule 10.1(a)). In

(347 U.S. 260, 268 (1954)), the

Court stated that a federal administrative agency

has a Due Process obligation to fulfill the

requirements of its own written policies,2, whether

or not such policies are mandated by statute.

However, here the statute itself also required

investigation prior to action. The Administrator,

the Board, and the Court of Appeals ignored these

requirements. i

In Captain Pritchard's case, even though a

complete, fair, and unbiased investigation was

required by both the underlying statute and the

written policies of the two responsible federal

agencies, the Appeals Court allowed an inference of

pilot carelessness to stand in spite of the FAA's

admitted failure to investigate beyond establishing

that an incident had occurred. The FAA was

allowed to ignore its own policies, promulgated in

the public's interests and in the interests of air

safety, that its investigation include an unbiased

gathering of all the facts, including any special,

mitigating, or potentially exculpatory information.

In this case, in asserting a presumption of

pilot carelessness, the FAA was allowed to

completely ignore an admitted airport design

deficiency, at the very heart of the case, for which

Captain Pritchard had not received any warning or

notice, and for which the record showed he would

- In this case, the FAA admittedly failed to

investigate its charges in accordance with either

the intent of the statute or in compliance with FAA

Order 2150.3, the FAA's ‘Compliance and

Enforcement Program’, dated 5/16/80 (Excerpts in

App. F).

have been required to take extraordinary actions to

surmount. The FAA was allowed to presume pilot

carelessness without inquiry into any of the

associated facts or circumstances, and justified

solely on the testimony of Captain Pritchard's

expert that, under some circumstances, Captain

Pritchard may have been able to safely prevail over

the hazard he faced.

The underlying facts of the case are simple

and undisputed. After landing his widebody, air

carrier aircraft at the Kansas City International

Airport, Captain John Pritchard was instructed by

an FAA ground controller to taxi to his assigned

gate. The FAA controller provided no other

warnings or information. However, a written

advisory had been provided to Captain Pritchard

before his flight which put him on notice that the

normal route by which Pritchard would have

proceeded to his gate had been closed due to an

airport construction project. Pritchard thus elected

to proceed to his gate via an alternate route which

he concluded would pose the least difficulty.

During the course of an obtuse turn from one

taxiway to another, the right main wheel of Captain

Pritchard's aircraft left the taxiway and imbedded

in mud at the base of a taxiway light. Captain

Pritchard immediately stopped the aircraft and had

it towed to the gate by ground crews. There was no

damage suffered by the aircraft. However, the blue

taxiway light was broken. Captain Pritchard's

expert later discovered that the intersection where

Pritchard attempted his turn did not meet the

applicable FAA dimensional design standards, and

that the point where the wheel of Captain

Pritchard's aircraft came to rest in the mud was

required, under FAA standards, to have been

covered with concrete in order for Pritchard's

aircraft to have accomplished its turn using normal

techniques and procedures.

It was undisputed that the taxiway

intersection did not meet the FAA's design

standards and that Captain Pritchard did not have

any information which would have alerted him to

the hazard which he faced, given the standard that

FAA airport certification requires that each part of

an airport be suitable for the most demanding

aircraft for which it has been certificated to serve.?

Nonetheless, on the basis of the end result, the FAA

concluded Captain Pritchard to have been careless

in violation of the Federal Aviation Regulations.

The NTSB ratified this surmise with its own order

affirming Captain Pritchard's license suspension

irrespective of the FAA's failure to investigate

either the taxiway intersection or the role which the

dimensional deficiency may have played.

The Court of Appeals affirmed the NTSB

Order without regard to the fact that the FAA

Administrator simply inferred pilot carelessness

based on the result rather than on the basis of an

investigation conducted in accordance with the

FAA Administrator's own written policies.

Further, the FAA failed to accomplished its

3 Under FAA standards, portions of airports are

not always suited for all aircraft for which the

airport has been certificated. In these cases, where

a particular part of an airport may not be suited to

normal operations by a certain size or category of

’ aircraft, notices are circulated providing infor-

' mation on the restrictions or warning of the

| hazards. (Cf. Peavey y. City of Miami, 1 So.2d. 614,

617 (1941); Mills v. Orcas Power & Light, 355 P.2d.

781, 784 (1960)).

5

ee Se

‘Investigation’ within the meaning that Congress

had intended under the governing statute (49 U.S.C.

Section 1429(a)). FAA inspectors charged with the

investigation of the taxiway incident repeatedly

admitted that they had failed to conduct any

investigation or inquiry beyond the fact that the

taxiway incident had occurred. They did not

examine, evaluate, or even consider the role which

the dimensional taxiway design deficiency may

have played in the incident. Further, FAA counsel

did not even consider or evaluate the deficiency after

its existence was brought up in interrogatories and

requests to admit fact. The questions were not

answered and the factual assertions were ignored.

The FAA Administrator failed to undertake any

further investigation or evaluation of the taxiway

deficiency in spite of the requirements of his own

regulations (14 C.F.R. § 13.1(b)).

Although the law judge at the underlying

hearing concluded that Captain Pritchard had

essentially been careful before, during, and after his

attempted turn, and that "if Captain Pritchard had

to go off that pavement, he did it in as safe a manner

as could be done" (App. C; TR at 193), she was

constrained under the terms of the Board's

Lindstam Doctrine‘ to find Captain Pritchard guilty

of carelessness in violation of the cited regulation.>

4 Administrator y. Lindstam, 41 C.A.B 841 (1964).

The law judge capsulized Lindstam (App. ©:

"once the government establishes a

certain incident, and there is no forth-

coming evidence to explain how that

incident occurred, we have to find that

there is negligence or _ carelessness

involved."

————eeEeEEE

The full NTSB ratified this conclusion, again

ignoring the admitted taxiway design deficiency but

referencing the conclusion of Pritchard's expert

that a widebody L-1011 aircraft could safely

complete the turn under some circumstances (App.

B). The Board concluded that, whether or not the

FAA conducted any investigation beyond establish-

ing that an incident had occurred, the fact that a

maneuver might have been accomplished safely,

regardless of the difficulty or lack of warning,

proved the FAA's surmise that Captain Pritchard

was guilty of carelessness for not accomplishing it

without incident.

The facts show that the FAA Administrator

ignored the specific requirements of his own rules

and policies. Further, the FAA's inference of pilot

carelessness met neither the standards which the

Board had previously established for such

inferences’ nor was it accomplished with regard to

6 The Federal Aviation Regulations (14 C.F.R. §

13.19(b)) mirror the statutory requirement that the

suspension of an airman's certificate be preceded

by a complete investigation. Paragraph 203(b) of

FAA Order 2150.3 (App. F) states that this required

investigation shall be a complete, fair, and impar-

tial gathering of all facts, including those “which

tend to undermine an allegation".

7 In Administrator y. Davis and Manecke (1

NTSB 1514, 1520 (1972)}) the Board established that

an inference of pilot carelessness is _ established

| when all other reasonable explanations have been

eliminated. In Administrator vy. Hibbard (1 NTSB

1152, 1154 (1971)) the Board concluded that an

inference of pilot carelessness is rebutted when it

was shown that the FAA failed to investigate a

pilot's explanation of the cause of an incident.

| —-

elite eile

the standards which the Court has previously set

forth. In allowing the FAA Administrator's

inference of pilot carelessness to stand without an

investigation, meeting the FAA Administrator's

own standards, both the Board (NTSB) and the

Court of Appeals violated the ‘Due Process’ doctrine

established by the Court in numerous other cases. ®

Further, in comparing the present case to Dickey v.

Lewis (859 F.2d. 1365 (9th Cir. 1988), the Court of

Appeals erroneously equated an inference of pilot

carelessness to state of mind inferences when a

deadly weapon is used in a murder. State of mind

can only be evaluated on the basis of the

circumstances and the result. Hard evidence was

available for investigation and evaluation in

Pritchard's case which was not examined when

both the statute and written policies required it.

BACKGROUND

In the underlying case, on September 16, 1987

the Administrator of the Federal Aviation Admini-

stration issued an Order of Suspension (App. D)

which suspended the Airline Transport Pilot certifi-

cate of Petitioner John C. Pritchard. The FAA

Administrator alleged that Captain Pritchard had

been careless in the operation of his widebody air

carrier aircraft for having allowed the right main

wheel of the aircraft to depart a taxiway while

making a turn from one taxiway to another.

As is allowed within the provisions of Section

8 Accardi_y. Shaughnessy, (supra); Service vy.

Dulles (354 U.S. 363, 388 (1957)); Vitarelli_ vy. Seaton

(359 U.S. 535, 547 (1959)); Yellin v. United States

(374 U.S. 109, 121 (1963)).

609 of the Federal Aviation Act (49 U.S.C. § 1429%a)),

Pritchard appealed the Administrator's suspension

order to the National Transportation Safety Board.

On April 28, 1988, a hearing was held before an

administrative law judge of the National

Transportation Safety Board. There, the law judge

issued an Oral Initial Decision and Order (App C)

affirming the FAA Administrator's Order of

Suspension. In her order the law judge found that,

irrespective of the fact that Board rules (49 C.F.R. §

821.32) and the provisions of the Administrative

Procedures Act (5 U.S.C. § 556) place the ‘burden of

proof’ upon the FAA Administrator, once an

incident is established "we have to find that there is

negligence or carelessness involved" unless

convincing evidence to the contrary is brought forth

by the accused (App C).? The law judge further

concluded that Captain Pritchard's choice of

taxiways had been careless. !9

On June 9, 1988, Captain Pritchard perfected

an appeal to the full National Transportation Safety

Board by the filing of an appeal brief in accordance

with Board rule 821.48(a) (49 C.F.R. § 821.48(a)). In

an order adopted by the Board on November 1, 1989

(App. B), the full National Transportation Safety

Board reversed the law judge's conclusion that

Pritchard's choice of taxiways had been careless,

nonetheless the Board affirmed the law judge's

Oral Initial Decision and Order. Rather than

following its own prior precedent with regard to the

9 Administrator y. Hibbard (1 NTSB 1152, 1154

(1971)).

10 In its Opinion and Order (App B; EA-3024), the

full NTSB reversed the law judge's conclusion that

Pritchard's choice of taxiways had been careless.

use of the inference of pilot carelessness,!! and with

regard to the conduct which the Board otherwise

deems to be in violation of the cited regulation,!2 the

Board instead concluded that Captain Pritchard

had been careless for not operating his aircraft as

safely as it might have been (App B; EA-3024) based

upon the inference of carelessness drawn from the

end result.!3 The Board ignored the FAA's failure

to reasonably investigate its charge of carelessness,

in accordance with the provisions of the statute and

its own policies, beyond simply establishing that an

incident had occurred.

Pritchard subsequently appealed his case to

the U.S. Court of Appeals for the Ninth Circuit.!4

11 Administrator _y. Davis and Manecke, 1 NTSB

1514 (1971).

12 In Administrator y. Eger (2 NTSB 862, 863

(1974)), the Board concluded that carelessness is

conduct which demonstrates a "general lack of

care". The law judge in this case found that Captain

Pritchard had been’ generally careful, before,

during and after his attempted tum (App C).

13 Both the Board and the courts’ have

previously held that "a pilot's responsibility must

be defined with sufficient specificity in order to

hold him culpable for a regulatory violation" (Pike

v, Civil Aeronautics Board 303 F.2d. 353, 357 (CA 8,

1962), also; Administrator _v, Coleman, 1 NTSB 229;

Administrator y. Babbit, 1 NTSB 1305 (1971);

Administrator _y. Hart, 2 NTSB 1110 (1974)).

14 After initially having dismissed Pritchard's

case as untimely, the Court of Appeals ultimately

reviewed Pritchard's case when the Court reversed

the dismissal and remanded the case for further

consideration (112 LEd. 2d 560; llla SCt. 552 (1990)).

10

Without a hearing, on July 15, 1992, the Court of

Appeals issued a Memorandum which affirmed the

Board's Opinion and Order in the case (App A).

The Appeals Court did not discuss the central Due

Process issue concerning the FAA Administrator's

failure to investigate the circumstances of the

taxiway incident before inferring Pritchard's

carelessness.!5 And the Court failed to address the

Board's inconsistencies with regard to its standards

for alleged pilot carelessness.

In examining the Board's use of inference,

the Court of Appeals improperly compared the

inference of pilot carelessness drawn by the FAA

Administrator to a ‘state of mind’ presumption of

criminal intent in a murder case involving the use

of a deadly weapon (App. A, citing; Dickey v. Lewis,

859 F.2d. 1365, 1369 (9th Cir. 1988)). Further, the

Court of Appeals improperly compared Captain

Pritchard's ‘Due Process’ argument, with regard to

his lack of a proper opportunity to present

"convincing proof’ to overcome an inference of

carelessness, with a case where a judgment on the

pleadings had been granted after a pilot was

imprisoned for drug trafficking and after the

imprisoned drug trafficker had failed to deny the

central charges cited in an FAA Suspension Order

15 Both the provisions of the Federal Aviation

Act (49 U.S.C. § 1429(a)) (App G) and the Admini-

Strator's own policies require a complete and

impartial investigation of all the facts and circum-

stances surrounding an _ incident before = an

airman's certificate may be suspended. The FAA

Administrator admitted his failure to investigate

the taxiway deficiency at any point, even when

Pritchard submitted the issue for investigation

before the hearing (14 C.F.R. § 13.1).

11

C—O

(App. A, citing; Kolek v. Engen, 869 F.2d. 1281, 1288

(9th Cir. 1989)). Both the Board (NTSB) and the

Court of Appeals acted without regard to the safety

concerns which Congress had intended in its grant

of powers, and without regard to both Captain

Pritchard's rights and the limitations placed on the

FAA Administrator's exercise of his powers.

REASONS FOR GRANTING THE WRIT

As a threshold matter, at the time of the

incident the facts show that Captain Pritchard was

a professional airline pilot who relied on his pilot

certificate for his livelihood. Thus, “it is clear that

[Captain Pritchard] had a property interest in his

license sufficient to invoke the protection of the Due

Process Clause." (Barry v. Barchi, 443 U.S. 55, 64

(1978)). And Captain Pritchard maintains an

equally important interest in his ‘good name and

reputation’ (Board of Regents v. Roth, 408 U.S. 564,

573, and note 12 (1972); Arnett v. Kennedy, 416 U.S.

134, 157 (1974)).

Here, the Court of Appeals departed from a

very basic rule of administrative law in affirming

the Board's (NTSB) Order. Where, in Accardi v.

Shaughnessy (347 U.S. 260, 265 (1954)), the Court set

a_standard whereby a federal agency may not

depart from the rules and policies which it has

established for the protection of an individual's

rights, the Court of Appeals allowed just such a

departure from agency policies. A regulatory

violation was concluded without investigation when

both the underlying statute!® and the FAA

16 The Federal Aviation Act (49 U.S.C. § 1429(a):

App. G) grants the FAA Administrator the power to

suspend a pilot certificate if, after investigation,

the Administrator determines safety demands it.

12

naa a

Administrator's own policies required a complete,

fair, and impartial investigation of the facts and

involved circumstances. A complete investigation

would have concluded the near impossibility of the

turn Pritchard attempted, and the necessity for a

warning to Pritchard in order for the turn to have

been safely accomplished, just as Pritchard's own

investigator and expert concluded.!? However, the

investigating FAA inspector admitted his failure to

investigate the cited incident beyond establishing

the undisputed fact that the incident had occurred.

The Court of Appeals further erred in

equating an inference of pilot carelessness to the

presumption of criminal intent in a murder —

a deadly weapon (App. A, citing; Dickey v. Lewis

supra 1369 (9th Cir. 1988).!8 Such standard was

accomplished contrary to the Court's direction in

Lincoln v. French 105 U.S. 614 (1881)) and the

evolving case law with respect to presumption and

inference, as well as without regard to the Board's

own procedures as were properly established in

Administrator v. Davis and Manecke (1 NTSB 1514,

17 Pritchard's expert extensively discussed the

difficulties of the turn during his testimony at the

hearing and _ further clarified the problems

Pritchard faced in a declaration included in the

Excerpts of Record submitted to the Appeals Court.

18 Significant among the many _ differences

between the two applications is that the intent to

kill is a state of mind issue which necessarily

requires the establishment of a presumption or

inference drawn from the circumstances. It is a

violation of the Court's prior direction when

carelessness is presumed irrespective of the facts

(Maggio y. Zeitz, 333 U.S. 56, 66 (1948)).

13

1520 (1972)).

"It is essential that there shall be some

rational connection between the fact proved and the

ultimate fact presumed, and that the inference of

one fact from proof of another shall not be so

unreasonable as to be a purely arbitrary mandate."

(McFarland v. American Sugar, 241 U.S. 79, 86

(1916)).!9 However, in Captain Pritchard's case, the

FAA's inference of carelessness was arbitrary

when there was an utter lack of investigation

concerning the cause of the taxiway incident. The

FAA Administrator was allowed to entirely ignore

his statutory responsibility to investigate both to

determine involved circumstances and to protect

safety in air commerce with regard to the operation

of the involved airport.2°

In allowing the inference of pilot carelessness

to stand, without investigation, both the Board and

19 Where Captain Pritchard had received no

notice or warning concerning the hazard he faced,

precedent holds that both the FAA and the airport

operator were liable (Cf. Peavey _y, City of Miami, 1

So 2d. 614, 617 (Fla. 1941): Mills vy. Orcas Power &

Light, 355 P.2d. 781, 784 (Wa. 1960)).

20 The provisions of the Federal Aviation Act (49

U.S.C. § 1432(b)) provides for the Administrator to

set minimum safety standards for the issuance of

Airport Operating Certificates. Although _ the

Kansas City International Airport admittedly did not

meet these standards (App B; EA-3024), the FAA

Administrator ignored investigation of the dimen-

sional taxiway deficiency. The Appeals Court did

not address the issue of the FAA Administrator's

investigative responsibilities prior to issuance of

his suspension order.

14

————

the Appeals Court affirmed an inherent abuse of

discretion and the violation of Captain Pritchard's

Due Process right. Neither the Board nor the

Appeals Court concluded pilot carelessness in line

with the standards for carelessness which the

Board had previously established (Administrator v.

Eger, 2 NTSB 862, 863 (1974)). Where the law judge

found that Captain Pritchard had been generally

careful, he could not also have been found to have

demonstrated "a general lack of care" (Eger, supra).

I. THE FAA ADMINISTRATOR IMPERMISSIBLY

ISSUED AN ORDER OF SUSPENSION WITHOUT

INVESTIGATION.

While the provisions of the Federal Aviation

Act (49 U.S.C. § 1429(a)) grant the Administrator the

power to suspend an airman’'s certificate, Congress

predicated this authority on the prior conduct of an

investigation (App. G). Although it might be

reasonably argued that Congress allowed the FAA

Administrator the discretionary authority to

undertake his investigations in whatever manner,

and to whatever extent, he deems appropriate, the

FAA Administrator cannot reasonably ignore his

own investigative policies and standards (Service v.

Dulles, 354 U.S. 363, 388 (1957)). It is a violation of

the Due Process rights granted under the terms of

the 5th and 14th Amendments to the Constitution.

In looking at this case from the simple

standpoint of policy and precedent, the FAA

Administrator is precluded from drawing

inferences of pilot carelessness without meeting

both the standards set forth by the Board (NTSB) for

review (Administrator v. Davis and Manecke,

supra, 1154), and those established by the courts for

the use of presumptions and inferences (Maggio v.

Zeitz, 333 U.S. 56, 66 (1948)). Both standards require

‘3

investigation to reasonably rule out causes other

than negligence or pilot carelessness. In Captain

Pritchard's case, however, the FAA Administrator

met none of these standards. The incident was

simply established and the investigation went no

further. Captain Pritchard's Due Process rights

were violated, and his pilot certificate was

suspended contrary to established policy and

precedent.

Neither the Board's Order nor the Appeals

Court's affirmation made any attempt to justify the

FAA Administrator's failure to meet his own

investigative standards in concluding pilot error

without investigating beyond the fact that an

aircraft incident had occurred. Instead, the Board

affirmed the FAA Order on the basis of its

conclusion that the end result had been less safe

than it might have been (App B). The Appeals

Court then improperly justified its own affirmation

based upon reasoning surrounding the use of ‘state

of mind’ presumptions concluded in a murder case

where the perpetrator had used a deadly weapon

(App A, citing; Dickey v. Lewis, 859 F.2d. 1365, (9th

Cir. 1988)). The comparison was inappropriate. In

this case, the need for the inference was not

necessitated by a lack of evidence with regard to

intent. Evidence and expertise was available, yet

ignored. _

Both the Board and the Appeals Court further

ignored the law judge's findings that Captain

Pritchard had been generally careful throughout

the course of his turn (App. C), and the law judge's

conclusion that "if Captain Pritchard had to go off

that pavement, he did it in as safe a manner as

could be done" (App. C). Yet, by the Board's

definition and the most common understanding,

carelessness is "a general lack of care" (Eger,

16

supra). A ‘general lack of care’ was never shown,

and the FAA Administrator's failure to investigate

demonstrated that his order was issued without

jurisdiction and without fulfillment of his Due

Process responsibilities. It created unnecessary

conflict and allowed a hazard to continue. There

was an admitted taxiway dimensional shortfall in

violation of FAA safety standards which had not

even been considered in the FAA's presumption of

pilot carelessness.

In Captain Pritchard's case, hard facts were

readily available for investigation but they were

completely ignored under the latitudes allowed in

the Board's Lindstam Doctrine (supra). Conse-

quently, the FAA Administrator elected to do

nothing more than establish the undisputed fact

than an incident had occurred. However, the Board

itself had previously precluded the use of inferences

under these same circumstances (Administrator v.

Hibbard, 1 NTSB 1152, 1154 (1971)). The change here

had an extremely prejudicial and detrimental affect

on Captain Pritchard's defense. The principles of

presumption and inference were never intended to

relieve a federal agency of its investigative

responsibilities. It is a breach of both the FAA

Administrator's statutory duty and Pritchard's

‘Due Process’ right under both the law and

applicable agency policy (App. F).

In United States v. Heffner (420 F.2d. 809 (1970)),

the Court of Appeals for the Fourth Circuit cited the

Court's Accardi Doctrine (supra) in reversing a tax

fraud case. The Fourth Circuit noted that in both

Accardi (supra) and Yellin v. United States (374 U.S.

109 (1963)) the Court "vacated government actions

and remanded for new determinations consistent

with the established procedures even though the

Court doubted that these procedures would lead to a

17

different result" (Heffner, supra at 813). The FAA

Administrator's investigative policies required that

the investigating FAA inspector undertake “an

unbiased gathering of all facts" (App. F). The FAA

Administrator further directed that "[t]he object of

the investigation is to obtain that evidence necessary

to establish whether a violation occurred" (App. F).

Yet the investigating FAA inspector in this case

admitted that he did nothing more than establish

that an incident had occurred. He did nothing to

establish the circumstances associated with the

incident or his presumption of pilot carelessness.

This is contrary to the standards which the Courts

have otherwise established in the public's interests.

The failure to investigate was a breach of the

FAA Administrator's ‘Due Process’ responsibilities

under the terms of both the Federal Aviation Act

(supra) and the FAA Administrator's own policies.

The FAA's failure to investigate leaves an

important public safety issue unresolved. Under

the circumstances of this case, the Administrator

improperly issued his Suspension Order without

fulfilling the statutory prerequisite for the exercise

of the power Congress granted, and both the Board

and the Court of Appeals improperly affirmed that

Suspension Order. Pritchard "should at least have

the chance given him by the regulations" (Yellin v.

United States, supra at 121). Thus, the Court's

Accardi Doctrine should govern. And the FAA

Administrator should be required to follow the

policies which he has established in fulfillment of

both his safety responsibilities and his Due Process

obligations.

18

Il. THE COURT OF APPEALS IMPROPERLY

EQUATED THE BOARD'S PRESUMPTION OF

CARELESSNESS, REACHED HERE WITHOUT

INVESTIGATION, TO INFERENCES OF INTENT

DRAWN FROM THE CIRCUMSTANCES.

The Board's order, and the Appeals Court's

affirmation, undertook a significant departure from

the accepted and usual course of judicial

proceedings. Where the principles of presumption

and inference have long been accepted as methods

to determine the probable truth of a matter, the

Board now concludes its determinations based upon

possibilities instead of probabilities, and requires

that these possibilities be established as true unless

overcome with convincing evidence.?! According to

the law judge, and as affirmed by the Board, a

finding of pilot carelessness was required in any

case where there was not convincing proof of

impossibility (App. C and B).

In its Memorandum, the Appeals Court took

this tangential reasoning a step further by impro-

perly equating the inference of pilot carelessness,

drawn from the fact that a taxiway turning

maneuver ended in a result less safe than it might

have been, to a murder in which intent may be

presumed by establishing the fact that a deadly

weapon was used in its commission. The Appeals

Court first ignored the Due Process requirement for

a complete, precise, and unbiased investigation by

the FAA before taking its action,22 then, the

21 Administrator vy. Hibbard, supra. (Cf.

Universal Camera vy. NLRB, 340 U.S. 474, at 490 and

497 (1950)).

22 49 U.S.C. § 1429(a), and FAA Order 2150.3,

paragraph 203(b). (APP. F).

19

Appeals Court ignored the mandatory nature of the

Board's inference of carelessness in violation of a

long line of contrary Court rulings?3 and in

violation of the intent which Congress expressed in

its most recent amendments to Rule 301 of the

Federal Rules of Evidence.24

The Appeals Court erroneously compared the

situation surrounding the Kansas City taxiway

incident, where evidence was readily available for

investigation and evaluation, to inferences involving

state of mind determinations where only the

circumstances are reasonably available for evalu-

ation (Citing; Dickey (supra)). Where a federal

administrative agency has both a statutory and Due

Process policy requirement for a complete and

unbiased investigation of all the facts surrounding

an incident, the Appeals Court was wrong to allow

an inference to stand when there was admittedly no

investigation beyond establishing that an incident

occurred, especially when Pritchard made repeated

attempts to have the matter properly investigated.

In affirming the FAA Administrator's Order

of Suspension, both the Board and the Appeals

Court relied on the testimony of Captain Pritchard's

23 Lincoln y. French, 105 U.S. 614, 617 (1881);

Illinois Central Railroad y. LC.C,, 206 U.S. 441, 465

(1907); McFarland vy. American Sugar, 241 U.S. 79, 86

(1916); Western and Atlantic Railway Co, y.

Henderson, 279 U.S. 639 (1929); Maggio v. Zeitz, 333

U.S. 56, 66 (1948); Steadman y. S.E.C., 450 U.S. 91, 98

(1981).

24 House Report No. 93-1597; Notes of Conference

Committee.

20

expert who concluded that Pritchard's aircraft

could have accomplished its turn safely under some

circumstances. The FAA ground controller said

he'd seen another aircraft accomplish the turn, and

the airport operations manager stated that he'd

never seen another aircraft fail to negotiate the turn

which Captain Pritchard attempted. The FAA

investigation did not evaluate the admitted taxiway

deficiency or its ultimate affect on the incident about

which the FAA Administrator took his action.

Thus, the burden of going forward at the hearing

shifted to Captain Pritchard when all of the experts

on FAA policy, procedure, and design standards

were not available for Pritchard's examination due

to the FAA's failure to investigate or evaluate prior

to taking its action against him.?5

Ultimately, the fact that Pritchard's expert

concluded that the safe completion of the taxiway

turn was not impossible led the Board to its

improper and erroneous extrapolated view that

Pritchard's "witness acknowledged there was no

reason why the turn could not have been made

safely" (App. B). With respect to the circumstances

present, the uncontested testimony in the case

25 The FAA and the Department of Transporta-

tion have established policies whereby its

employees are precluded from providing expert

testimony outside the agency except when such

experts have not been relied upon in reaching its

determinations. Thus, when the FAA failed to

investigate the taxiway incident, Pritchard had no

one within the FAA to call as a witness to provide

testimony concerning the safety impact of the

taxiway design deficiency or iis affect on _ the

incident. FAA testimony simply relied on non

expert opinions that the aircraft should have stayed

on the taxiway.

21

demonstrated that the route Captain Pritchard

selected was only used due to the closure of the

normal routing by a construction project. Further,

no information was available on the aircraft which

was claimed to have successfully negotiated the

turn or the procedures which were utilized.

However, even the FAA's investigating inspector

concluded that the fact the airport was FAA

certificated was sufficient cause for a pilot to believe

that it met all FAA standards and could be used

normally.26 Thus, when the points relied upon for

establishment of the inference of carelessness had

been overcome by uncontroverted evidence, the

Board was left to fall back on its basic view that the

inference carelessness could not be overcome

without proof of impossibility, irrespective of the

FAA's failure to investigate. Even the case

compared by the Appeals Court did not support this

view.

Prior to Captain Pritchard's case, the

standard for pilot carelessness established by the

Board had been one in which the facts demon-

strated "a general lack of care” (Eger, supra). The

Court of Appeals had thus concluded that the

26 On appeal, both the Board and the Appeals

Court referenced the non expert testimony of the

airport operations manager alluding to _ his

impression that the type of taxiway lines painted at

the intersection provided information on _ the

difficulty which might be expected in attempting a

turn. However, as was provided to the Board in FAA

documentation accompanying Pritchard's appeal,

and to the Appeals Court in Pritchard Excerpts of

Record (5-7), the taxiway lines provide no _ such

information. Pritchard never had an opportunity

to challenge the non expert conclusion utilized by

the Board in support of its inference.

22

a ereacmaaaiitatiiletilae atin ae

purpose of the cited regulation was to prohibit a

pilot from engaging in teeming dangerous

practices” (

449 F.2d. 1073, 1076 (CA D.C. 1971), or practices

which demonstrate ' ‘a gross disregard for safety"

(Ferguson v. National Transportation Safety Board,

678 F.2d. 821, 829 (9th Cir. 1982)). All of this was

entirely consistent with the growing body of law on

the responsibilities of the various aviation entities,

specifically the established responsibilities of air-

ports to assure that their facilities are safe for use

(Peavey v. City of Miami, 1 So.2d. 614, 617 (Fla, 1941);

Mills v. Orcas Power and Light, 355 P.2d. 781, 784

(Wash, 1960)).

The Board affirmed the suspension order, and

the FAA's conclusion of carelessness, based on the

fact that Captain Pritchard's turn could have been

accomplished. The reasoning used by the Board in

its ratification of the inference of carelessness was

that if the turn could have been accomplished

safely, it should have been accomplished safely.

Without investigation or further evidence concern-

ing the degree to which the taxiway design shortfall

was a factor, this logical chasm perverts the

original intent and purposes of the legal principles

of presumption and inference, and violated the

Board's own evidentiary standards.27 Careless-

ness must be presumed irrespective of the

conclusions of the trier of fact that Captain

Pritchard had been careful before, during, and after

his attempted turn, and irrespective of the fact that

he fulfilled all of his various responsibilities.28

27 Administrator vy. Davis and Manecke, 1 NTSB

1514, 1520 (1972).

23 :

In comparing the present case to

(supra), the Appeals Court departed from the

accepted standards for presumption and inference

and forgot the standards which the Court has long

applied. “Rules of evidence as to inferences from

facts are to aid reason, not to override it. And there

does not appear to be any reason for allowing any

such presumption to override reason.” (Maggio v.

Zeitz, 333 U.S. 56, 66 (1948)).

DISCUSSION

The two elements which Captain Pritchard

raises here in his petition have been central to his

case, and to his appeals, from the very beginning.

However, the Board and the Appeals Court

essentially ignored both the Due Process issue and

the FAA Administrator's tangential shift away

from the central tenets of presumption and

inference, which have been well established over the

years, to something more akin to a mandatory

presumption of pilot careless after any aircraft

accident or incident.

The public's interests and the interests of

justice are ill served by principles which allow a

federal administrative agency to ignore meaningful

investigation and expert analysis in favor of

suspicion and surmise. The evidentiary principles

of presumption and inference were never intended

as a substitute for factual investigation. Instead,

the principles arose out of a need where facts could

not be readily examined. Here, the only reason that

the facts and circumstances were not completely

examined and evaluated was that the Board's

Lindstam Doctrine (supra) no longer demands it.

The FAA Administrator has been free to ignore the

standards for presumption and inference which the

Board itself has established (Administrator v. Davis

24

EOE Eee

and Manecke, supra), when an inference of pilot

carelessness must not only be overcome with

convincing evidence, but when the only suitable

evidence is evidence of impossibility.

While the question of whether on not

inferences may be promulgated without investiga-

tion remains an open issue, it is well established

that federal administrative agencies have a Due

Process obligation to fulfill the requirements of their

own regulations and policies (Accardi, supra).

Although the statute is unclear as to the degree to

which it required the FAA Administrator to

investigate before taking his action against Captain

Pritchard, the FAA Administrator's policies are

clear that his investigations are to be a complete

and unbiased gathering of all facts, including those

which tend to undermine any allegation of

carelessness by Captain Pritchard. Where the

record shows that Captain Pritchard attempted to

seek the FAA's complete, impartial, and unbiased

investigation of the admitted taxiway design

deficiency, and the impact it had on the incident

about which the FAA Administrator complained,

the FAA Administrator could not simply rest on the

inference of pilot carelessness based upon the

undisputed fact of the result.

: CONCLUSION

Pritchard's Petition for a writ of certiorari

should be granted. Where the underlying statute

withheld authority for the FAA Administrator to

issue a Suspension Order until the completion of an

investigation, such investigation must at least meet

both the FAA Administrator's own policy standards

and those investigative standards which the Board

(NTSB) has specified for the use of presumption and

25

inference. The standard which the Board has

espoused in requiring presumptions of careless, in

spite of the admitted lack of investigation, is

arbitrary. Thus, the Memorandum of the Court of

Appeals affirming the Board's Order should be

vacated. And the case should be remanded to the

Court of Appeals for further proceedings in ligh*. of

the Court's direction in both Maggio v. Zeitz and

Accardi v. Shaughnessy.

Respectfully submitted,

November 30, 1992

JOHN C. PRITCHARD

8601 Falmouth #406

Playa del Rey,CA 90293

(310) 305-2837

PETITIONER PRO SE

26

APPENDIX A

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

|

)

JOHN C. PRITCHARD, ) No. 90-70041

)

Petitioner, ) NTSB

) No. EA-3024

v. )

) MEMO*

NATIONAL TRANSPORTATION _ )

SAFETY BOARD, ) FILED

) JUL 15 1992

Respondent, )

Petition for Review of an Order of the

National Transportation Safety Board

Submitted July 6, 1992**

Pasadena, California =

Before: FARRIS, WIGGINS, and FERNANDEZ,

Circuit Judges.

John Pritchard petitions pro se for review of

r the National Transportation Safety Board's order

affirming an administrative law judge's

determination that he operated an aircraft in a

careless or reckless manner so as to endanger the

life or property of another, in violation of 14 C.F.R.

Section 91.9 (now codified at 14 C.F.R. Section 91.13).

We affirm.

Pursuant to 49 C.F.R. Section 821.37, "[dJue

regard shall be given to the convenience of the

parties with respect to the place of the hearing."

Pritchard resided in Texas. Although he indicated

that his witnesses were "based" in California, he

failed to specify in both his motion to change venue

and to bifurcate where the witnesses actually

resided. The FAA Administrator's witnesses

resided in Kansas. Under section 821.37, the

administrative law judge was required to give due

regard to the convenience of both parties. The

Board's conclusion that this requirement was

satisfied is not “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with

law.” 5 U.S.C. Section 706(2)(A).

Summary judgment was precluded by the

FAA Administrator's responses to Pritchard's

Requests for Admission. See Fed. R. Civ. P. 56(c)

(summary judgment appropriate if no “genuine

issue as to any material fact"). The Administrator

disputed, for example whether a Lockheed 1011

could safely proceed through the intersection

between Bravo and Bravo-10 and whether Pritchard

should have discerned the intersections

deficiencies, if any. The administrative law judge

could properly consider the Administrator's

responses; although a matter is admitted under

Fed. R. Civ. Pr. 36(a) if an answer or objection is not

served within thirty days, the rule allow the court to

lengthen the period and, in any event, is

“instructive rather than controlling" in Board

proceedings. 49 C.F.R. Section 821.19%c).

A-2

The Board also did not abuse its discretion in

affirming the administrative law judge's

determination that Pritchard operated an aircraft

in a careless or reckless manner. Pritchard's

expert witness testified that the turn could have

been made safely. A ground controller testified that

another Lockheed 1011 had successfully proceeded

through the intersection at night. And, the airport

operations manager testified that no other aircraft

had taxied off the intersection since the airport

opened in October, 1972. The sharp angle of the

turn and the lack of centerlines indicated that the

turn required particular attention and care. We

understand Pritchard's argument, but, even if he

could not discern the intersection's narrow fillet

radius, the Board could properly conclude that the

turn should have been accomplished without

incident.

Pritchard's due process arguments also fail.

Pritchard received adequate notice of the

proceeding and "ample opportunity to contest the

charges brought and the sanction imposed against

him." Kolek v. Engen, 869 F.2d 1281, 1288 (9th Cir.

1989) (FAA enforcement proceedings). Both the

administrative law judge and the Board fully

considered the arguments raised in Pritchard's

motions to change venue and to bifurcate. The

Lindstam Doctrine did not impermissibly shift the

burden of establishing that Prichard had operated

an aircraft in a careless or reckless manner. Cf.

Dickey v, Lewis, 859 F.2d 1365, 1369 (9th Cir. 1988)

(mandatory presumption in criminal proceeding).

We have carefully reviewed the record. There was

no deprivation without adequate procedural

protections. See Kolek, 869 F.2d at 1288.

AFFIRMED.

° This disposition is not appropriate for publication

and may not be cited to or by the courts of this Circuit except

as provided by Ninth Circuit Rule 36-3.

“8 Pursuant to Ninth Circuit Rule 34-4, the panel

unanimously finds this case suitable for disposition without

oral argument.

APPENDIX B

SERVED: November 24, 1989

NTSB Order No. EA-3024

UNITED STATES OF AMERICA

NATIONAL TRANSPORTATION

SAFETY BOARD

WASHINGTON, D.C.

-———— ee we ween enw nnn new wen eK ee eK rH EE HK Kr ee

JAMES B. BUSEY, Administrator,

Federal Aviation Administration,

)

)

)

)

Complainant, )

) DOCKET

v. )

) SE-8665

JOHN C. PRITCHARD, )

)

Respondent. )

OPINION AND ORDER

Respondent has appealed from the oral initial

decision and order issued by Administrative Law

Judge Joyce Capps on April 28, 1988 at the

conclusion of an evidentiary hearing. 1/ The law

judge found carelessness in respondent's operation

B-1

of an L-1011 commercial aircraft after landing at

Kansas City International Airport on January 19,

1986. While taxiing the aircraft to the gate,

respondent allowed the right main landing gear to

leave the taxiway, enter the mud and strike a

taxiway light. Applying the facts presented at the

hearing which were “not contested at all," the law

judge found that respondent was careless in: 1) his

choice of taxiway egress;2/ and 2) not making the

turn "as safely as it could have been."

Respondent has filed a "brief" (75 pages plus 5

pages of errata) which challenges the law judge's

ruling on two preliminary motions and also raises

these two arguments: 1) the first officer shared

responsibility for the incident by failing to "keep

watch" on his side of the aircraft during the turn; 2)

the airport operator and/or ground control failed to

warn respondent that the taxiway he selected did

not meet FAA Airport Design Standards for his

category aircraft. 3/

We find no reversible error in the law judge's

rulings on respondent's preliminary motions to

change venue or bifurcate hearing. Respondent

had filed his motions because he and most of his

witnesses were "based" in (or closer to) Los Angeles

than Kansas City, the proposed venue. However, in

response, the Administrator noted, inter alia, the

following: all of his (the Administrator's) witnesses

lived in Kansas City; respondent actually resided in

Texas, not CaL.fornia; respondent failed to identify

where his witnesses actually resided, (as opposed to

where they were "based"); respondent waited 5

months after receiving notice of the Admini-

strator's preference for Kansas City before

registering his opposition. Section 821.37(a) of the

Board's Rules mandates that, "due regard shall be

given to the convenience of the parties with respect

B-2

ates,

to the place of the hearing." 49 C.F.R. Section 821.

That venue in Kansas City may have resulted in

greater financial burden to respondent, does not

necessarily mean that respondent was not given his

"due regard.” From the argument offered by the

Administrator in opposition to the motion, notably

the absence of specific residences for respondent's

witnesses, it is clear that the law judge had a

reasonable basis on which to rule.

Respondent's appeal of the law judge's decision

not to grant summary judgment also fails. Several

issues of material fact were in dispute at the time of

the hearing, including respondent's central

argument concerning the taxiway design. We do

not see how the law judge could have decided the

case without first resolving these questions of fact.

Respondent next seeks to exculpate himself by

raising the shared responsibility of his first officer

for the incident. We are not convinced. Because of

the design of the L-1011 (taxi controls accessible only

in the left seat, better visibility in the right seat),

respondent maintains that he had to rely on the

first officer to "keep watch" on the right-side of the

aircraft. To accomplish the 135 degree turn

attempted by respondent, this contention may in fact

be true. However, respondent presented scant

evidence on his actual direction to the first officer.

Respondent testified only that the first officer's duty

was "a general" one and that he was briefed on

respondent's intentions. 4/ Furthermore, it is

unclear from the testimony of respondent's expert

just how much better the first officer's view really

was. [See Tr. at 158-60.] We distinguish

respondent's "reliance" on his first officer in this

case from that in Coleman and Thomas, two cases

where we have held that a captain can rely upon

the first officer's oral characterization of a radio

B-3

transmission. Administrator v. Coleman, 1 NTSB

289 (1968) and Administrator v. Thomas, 3 NTSB 349

(1977). Not only as pilot-in-command but as the pilot

operating the aircraft, it was respondent's duty to

require clearing assistance from his crew, ground

control or ground guides. The responsibility for the

consequences of respondent's failure to do so rests

solely with him.

We do not find established, however, the alleged

“imprudence” of respondent in passing up 90

degree turns for one requiring a 135 degree turn.

That there were other more accommodating

egresses available, or that B-10 was designed for

other traffic, do not alone mean that respondent's

decision was unsafe or even “imprudent.” Rather, it

was respondent's lack of care in accomplishing the

turn which mandates affirmation of the

Administrator's order. It is on this basis that we

reject respondent's central argument concerning

deviations from FAA taxiway dimension criteria.

Testimony from respondent's expert witness makes

plain that respondent could have easily ascertained

the alleged deficiency in the taxiway dimensions

and thereby apprehend just how difficult the turn

would be. Moreover;the obtuseness of the angle (135

degrees) and the absence of taxiway centerlines

were readily apparent; both of these, too, should

have alerted respondent of the need to exercise

additional care in making the turn.

Respondent's witness acknowledged there

was no reason why the turn could not have been

made safely. The ATC ground controller also

testified that he had observed another L-1011 safely

make the turn at night. The weather was clear and

the taxiway surface was apparently dry. We can

find in the record no evidence that would either tend

to exculpate respondent or vitiate the inference of

B-4

carelessness made by the Administrator.

Therefore, we affirm the law judge's initial decision

and order.

ACCORDINGLY, IT IS ORDERED THAT:

1. Respondent's appeal is denied;

2. The initial decision and the order of suspension

are affirmed.

KOLSTAD, Acting Chairman, BURNETT,

LAUBER, NALL and DICKINSON, Members of

the Board, concurred in the above opinion and

order.

1 An excerpt from the hearing transcript

containing the initial decision is attached.

2/ Respondent landed on runway 27 and exited

on C-7 high speed taxiway. Ground control

instructed respondent to "taxi to ramp;" the most

direct route to his destination; however, was

taxiway D-6, which was temporarily closed.

Respondent elected-to take taxiway B and turned

on Taxiway B-10, a turn of 135 degrees. B-10,

designed for traffic landing on runway 09, also

did not have a centerline.

3/ FAA Advisory Circular 150/5 300-12 sets out

minimum dimensions for taxiway width, edge

safety margin, fillet configuration, shoulder

width and safety area width. Respondent

contends that the fillet should have been 75 feet

and was actually 25 feet, and that the 15-foot edge

margin was not maintained for his category

aircraft; the FAA concedes the latter.

B-5

4/ Law Judge Capps:

“What did you say to the first officer? You said

you discussed it. Tell me about the discussion.

Respondent:

...We briefed the fact that 1 was going to

enter...utilizing Bravo 10.... Now, to the exact

verbance that was used and to what extent that

transpired, ...I can't say exactly what happened.

But that was a general." [Tr. 127]

APPENDIX C

UNITED STATES OF AMERICA

NATIONAL TRANSPORTATION

SAFETY BOARD

- Office of Law Judges

T. Allan McArtor, Administrator,

Federal Aviation Administration,

Complainant,

Vv.

JOHN C. PRITCHARD,

Respondent.

Courtroom 6

Sixth Floor

415 East 12th Street

Kansas City, Missouri

Thursday

April 28, 1988

)

)

)

)

)

)

)

)

)

)

)

DOCKET

SE-8665

The above-entitled matter came on for

hearing, pursuant to notice, at 9:00 o'clock a.m.

C-1

BEFORE: HON. JOYCE CAPPS

Administrative Law Judge

ORAL INITIAL DECISION AND ORDER

JOYCE CAPPS, Administrative Law Judge:

This proceeding comes before the National

Transportation Safety Board pursuant to the

provisions of Section 609 of the Federal Aviation Act

of 1958, as amended, on the appeal of John C.

Pritchard, respondent herein, to the order of

suspension with waiver of penalty dated September

16, 1987 suspending his airman's certificate

1983580, including his airline transport pilot

privileges, for a period of 30 days due to his alleged

violation of Section 91.9 of the Federal Aviation

Regulations. The factual basis for the

Administrator's complaint is that the respondent,

which taxiing his aircraft, allowed the right gear to

go off the runway and become imbedded in mud.

After due notice to the parties, this matter came

on for trial in Kansas City, Missouri, on April 28,

1988, at which time the Administrator was

represented by Barbara Boyle Esquire. The

respondent was represented by Mr. Kevin W. Daisey

who is employed by Hawaiian Airlines. Mr. Daisey

is not an attorney, but I do wish to state that not

being an attorney was hardly noticeable because he

did a very fine job today in both his direct

examination in his case in chief and in his cross

examination. I will add, also, that one of the

witnesses for the respondent also played some role

in representing the respondent, and that was Mr.

Robert C. Konop who is also employed by Hawaiian

C-2

iain ae eee a

Airlines.

The facts of this case are very, very simple, and

have not been contested at all. On January 19, 1986,

Captain Pritchard was the pilot in command of a

Lockheed 1011 which, at the time, was designated as

a Total Air Flight 116 from Lambert Field, St. Louis,

Missouri to Kansas City International Airport.

After landing on Runway 27 at KCI, the respondent

taxied down to turn off Charlie 7 and just as he

passed D-6 turn off, he contracted the tower and

made it known that the wanted to go to Gate 30

which happens to be located in the terminal

building B. He was given clearance to proceed

directly to his gate without any further instruction

being requested or given.

The manner of getting to Gate 30 form the

respondent's position was left up to the captain. It

should also be stated that the captain was sitting in

the left seat and was the only person on the aircraft

who could taxi to the aircraft because the tiller

wheel is located only to the left seat pilot's position.

He proceeded taxiing on Taxiway Charlie and then

made a right turn and proceeded in a northerly

direction on Taxiway Bravo. In order to get to Gate

30, the respondent normally would go to Gate 30 by

using D-6. However there was a NOTAM out on

this date that D-6 was closed due to construction

and repairs. So that is why he proceeded on to

Taxiway Bravo.

After turning on to Taxiway Bravo there is a 90

degree turn off onto Taxiway D if he would have

elected to use that which would have taken him to

Gate 30. He did not elect to do that. He proceeded

north on Bravo and came to Bravo 11, which was

also a 90 degree turn that would have taken him to

Gate 30. The respondent testified that from past

C-3

experience of having used B-11, he didn't want to do

that on this occasion because it involved two very

sharp turns. That is why he consciously taxied past

the B-11 turn off and went to the B-10 turn off

intending to make a very sharp right turn and go to

Gate 30 from B-10. The turn from Taxiway Bravo to

Bravo 10 is a 135 degree turn.

In the process of making the turn onto B-10, the

right gear of the aircraft, the entire right gear of the

aircraft left the taxiway and became deeply

imbedded in [a] muddy, grassy area. I think after

that occurred what Captain Pritchard did was very

prudent and cautious. When he did find his

aircraft imbedded in mud, he immediately stopped

and waited for assistance which did come and the

aircraft was safely and efficiently removed by a

tractor and towed to the ramp area.

There were 141 passengers on board the aircraft

and I think something like 12 or 15 attendants or

stewards and then we had three mea in the cockpit.

There was no damage done to the aircraft, nor was

any injury sustained by anyone. The only bit of

damage at all was a taxiway light that was

damaged.

This case, in my opinion, fits under the

Lindstam Doctrine. In that, once the government

establishes a certain incident and there is no

forthcoming evidence to explain how that incident

occurred, we have to find that there is negligence or

carelessness involved. That is what was done here.

The Administrator put on evidence that there was

no mechanical problem with the airplane, itself.

There was no weather problem involved because it

was a beautiful day. There was no traffic problem

in that this occurred on a Sunday about noon, and at

that particular time there was very light traffic that

C-4

een

was being worked by the tower.

The respondent's defense in this case seems to

be twofold. One, that his first officer. who had a

better view from the right side of the aircraft, did not

do what he should have done to help the pilot in

command avoid what occurred here. I don't know

exactly what that first officer was supposed to do,

but whatever it was, he didn't do it according to the

respondent. And No. 2, that the airport itself is not

properly designed to accommodate 1011 aircraft. I

don't buy either one of these defenses.

The respondent's own expert witness, Mr.

Konop, stated in his testimony that the width of the

main gear is 36 feet, that both taxiway Bravo and

Bravo 10 are 75 feet wide. He also stated that

bearing those measurements in mind, and the

maximum radius capabilities of the 1011, that turn

from Taxiway Bravo onto B-10 could have been

accomplished and the aircraft remain on the

pavement.

There are taxiway center marking for turning

off Taxiway Bravo onto B-11 and beyond the B-10 up

to B-9. They are both 90 degree turns. And both of

them or either of them could have been used to get to

Gate 30. However, there is no taxiway marking

from Bravo onto B-10 from a northerly direction

down to a southeasterly direction which B-10 runs.

That does not mean that an aircraft is prohibited

from making that turn. As Mr. David Napoli

testified, it's just not a recommended turn. Mr.

David Napoli is the Airport Operations Manager at

KCI. Before that he was the Assistant Operations

Manager and all together has been at KCI for 11

years. KCI began operating in October of 1972 and a

review of the records and from Mr. Napoli's own

knowledge in the past 11 years, there has never,

C-5

since the opening of the airport, been a taxiway

excursion from the pavement on B-10 -- never. That

suggests to me that either no pilot has ever made

that turn from Taxiway Bravo onto B-10 or else they

have made the turn and they have made it safely. I

would think it was probably the former because I

can't imagine why anybody would want to make

that turn. I mean, why put yourself through that

aggravation when there were one, two, three other

90 degree turns that could have been made. I would

much rather make a 90 degree turn than I would a

135 degree turn any day of the week.

I think that there was carelessness on the part

of Captain Pritchard in first, completely ignoring

other, safer, avenues of exodus from Taxiway Bravo

and secondly, after determined to do that, not

making the turn as safely as it could have been

made according to his own expert.

Captain Pritchard is not the first pilot who has

ever gone off the pavement and he won't be the last.

But, usually those are just due to momentary

carelessness on the part of the pilot in command.

This case differs from some others I have heard in

that there was no damage to the aircraft. I think

that is phenomenal here because usually there is

some sort of damage at least to the strut. At least a

collapse of the gear itself. But there wasn't even a

gear collapse here. So, if Captain Pritchard had to

go off that pavement, he did it in as safe a manner

as could be done. he must have been going very

slowly or otherwise I'm sure we would have had a

gear collapse here. I think that he proper sanction

in a situation like this with all of the circumstances;

namely, that there was no damage whatsoever

except to that little landing light -- and it was just

one little old landing light -- and there were no

personal injuries, that a 20 day sspension is

C-6

warranted. Of course, in this case, since there was

a timely filing of the NASA report, no time will

actually be served. It is, therefore,

ORDERED that the Administrator has

established by a preponderance of the evidence the

violation of 91.9 and the order of suspension with

waiver of penalty is hereby modified to reflect a

sanction of 20 days, provided however, that no period

of sanction shall actually be served in view of the

timely filing of a NASA report.

Entered this 28th day of April, 1988, in Kansas

City Missouri.

Joyce Capps

Judge

Edited on June 3, 1988

APPENDIX D

U.S. Department of Transportation

Federal Aviation Administration

Central Region

Iowa, Kansas, Missouri, Nebraska

601 E. 12th Street

Kansas City, Missouri 64104

In Reply Refer To: ACE-7

86CE630012

Area Code: 816 374-5446

CERTIFIED °

September 16, 1987

TO: John C. Pritchard

842 South Highway 46

New Braunfels, TX 78130

ORDER OF SUSPENSION

It appears to the Administrator of the Federal

Aviation Administration, acting by and through his

Regional Counsel, on the basis of all information

available, that:

1) At all times hereinafter mentioned, you were,

and presently are, the holder of Airline Transport

Pilot Certificate Number 1983580.

2) On January 19, 1986, you acted as pilot-in-

command of Civil Aircraft N702TT, a Lockheed

1011-385-1, desingated as Total Air Flight 116, on a

D-1

flight from Lamber Field, St. Louis, Missouri, to

Kansas City International Airport (MCI), Kansas

City, Missouri.

3) After landing on Runway 27, at MCI, N702TT

was cleared to taxi to the ramp. While taxiing

Flight 116, you allowed the aircraft's right main

gear to leave the taxiway, enter the mud, and struck

a taxiway light.

4) By reason of the foregoing facts and

circumstances, you operated an aircraft in a

careless manner, so as to endanger the life and

property of others, in violation of Section 91.9 of the

Federal Aviation Regulations.

By reason of your violation of the Federal

Aviation Regulations, the Administrator has

determined that safety in air commerce and the

public interest require the suspension of your

airline transport pilot certificate.

NOW, THEREFORE, IT IS ORDERED,

pursuant to Section 609 of the Federal Aviation Act

of 1958, as amended, that your Airline Transport

Pilot Certificate Number 1983580 be suspended

effective October 11, 1987, and said suspension to

continue in force for a period of thirty (30) days

thereafter. In the event you fail to surrender your

certificate to this office on or before October 11, 1987,

said suspension shall continue in effect until thirty

(30) days subsequent to your actual surrender

thereof.

KENNETH E. GEIER

Regional Counsel

BARBARA BOYLE

Attorney

D-2

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN C. PRITCHARD ) FILED

) SEP 14, 1992

Petitioner, )

) CA No. 90-70041

vs. )

) NTSB No.

NATIONAL TRANSPORTATION ) EA-3024

SAFETY BOARD, )

) ORDER

Respondent. )

)

Before: FARRIS, WIGGINS, and FERNANDEZ,

Circuit Judges.

The panel as constituted in the above case has

voted to deny the petition for rehearing and to reject

the suggestion for a rehearing en banc.

The full court has been advised of the

suggestion for an en banc hearing, and no judge of

the court has requested a vote on it. Fed R. App. P.

35(b).

The petition for rehearing is denied and the

suggestion for a rehearing en banc is rejected.

APPENDIXF

FAA ORDER 2150.3

COMPLIANCE AND ENFORCEMENT PROGRAM

The following are excerpts from the FAA's

Compliance and Enforcement Program Manual,

FAA Order 2150.3 which was in effect, on January

19, 1986, at the time of the incident described within

the FAA Administrator's Order of Suspension and

the Board's (NTSB) Order affirming that certificate

suspension. These excerpts are also contained

within Addenda attached to Pritchard's 1/18/92

Reply Brief submitted to the Court of Appeals for the

Ninth Circuit. Those portions of particular impor-

tance are highlighted or underlined.

CHAPTER 1.

INTRODUCTION

1. PURPOSE.

This order describes the authority, respon-

sibilities, policies, guidelines, procedures, objectives,

and legal aspects of the Federal Aviation Admini-

stration Compliance and Enforcement Program.

CHAPTER 2.

ENFORCEMENT OBJECTIVES AND POLICY

200. PURPOSE.

The purpose of this chapter is to set forth the

policies and objectives of the Federal Aviation

Administration as established by this order and by

policy statements or directives issued by the

F-1

Administrator.

201. GENERAL.

The FAA is charged with the responsibility to

assure that the highest possible degree of safety in

air transportation and air commerce is maintained.

To achieve this, the agency first must establish

regulatory standards and requirements.

a. Once the regulations are in effect, to assure

effective implementation the agency must provide

for the education and guidance needed by ithe

The importance of this

step, and the related personal and organizations

skills needed, cannot be overemphasized. In the

absence of thorough understanding, compliance

ith saf lati emery

b. Finally, the agency has a statutory obligation

to assure compliance with all regulations. This

obligation is especially critical as it applies to the

holders of FAA certificates. Individual inspectors,

managers, and attorneys must clearly understand

the crucial role they play in achieving compliance.

However, providing guidance and training to

industry, as crucial as that role is, must be kept in

proper perspective. Once a certificate or an

amendment involving that certificate is issued, the

holder (individual, operator, manufacturer,

supplier, etc.) must be held responsible for

compliance. This may best be looked on as a total

enforcement concept. As an example, the

responsible field office should respond as forcefully,

through investigation, reporting, and follow-up, to

an qgirport certificate holder who fails to comply

with firefighting equipment requirements, as

another field office will respond to an aircraft

manufacturer's use of materials that do not

F-2

9 Beate nt Sar IEE us sat ve

conform to specifications in a type design; or still

another field office will respond to the operation of

an aircraft over congested areas below minimum

safe altitudes. The Administrator's enforcement

policy does not vary by internal agency discipline.

Each certification and operating rule is important

in achieving overall safety objectives. The FAA

enforcement program described in this handbook is

equally applicable to all activities regulated by the

agency, including programs which may have

traditionally used different methods of obtaining

compliance. When violations occur, whether they

involved the operations of an airport, the production

of aircraft, the performance of aircraft

maintenance, or the operation of aircraft, FAA

personnel responsible for enforcing those regula-

tions shall investigate, report, and process such

matters for appropriate enforcement action

208. ENFORCEMENT PROGRAM.

The objectives of the enforcement program as

set forth in Order 1000.9C, Enforcement Policy, are

achieved through surveillance and detection,

investigation, and enforcement processing.

a. Surveillance and Detection. An essential part

of the enforcement program is that violations and

potential violations be discovered at the earliest

possible time. In any situation where inspectors

identify a potential violation, they should act to

prevent it. ...

b. Investigation. Prompt action is essential to

assure a fair enforcement program. Unnecessary

F-3

Every effort must be made to expeditiously

investigate and report violations. The responsibility

to act promptly rests equally upon the inspector e

investigating the incident as well as the regional

and Washington offices responsible for enforcement

action. Delays in processing violation reports

weaken the effectiveness of the agency's enforce-

ment program in several ways. First, such delays

may permit an unsafe condition to prevail if prompt

corrective action is not taken. Secondly, delays tend

to deemphasize the seriousness of a given violation.

In this manner, prolonged delays tend to

strengthen the violator's case. By the same token, if

the alleged violator is innocent, any unwarranted

delay in processing the case may impose an

unjustified hardship. In order that enforcement

actions be objective and fair, there must /be/] an

taeedl aed r all f aaa .

gation, and accurate and prompt reporting. A

violation report without all of the facts only leads to

delays and thus, the objective of fair enforcement is

lost. Such reports can also mislead reviewing

authorities and result in embarrassment for the

agency. Poor investigation weakens the effective-

ness of the era oe ann

: 7 . hould | FF

the report.. An inspector who is not attentive to

special mitigating circumstances may only provoke

resentment, making it more difficult to obtain

compliance and cooperation in the future from all

parties, including witnesses. See Chapter 4 for

guidance in planning and conducting investi-

gations.

F-4

eT TN

Sa Sic 8 Ua la chy CORP ALE EEE EAGER

CHAPTER 4.

INVESTIGATION OF VIOLATIONS

400. PURPOSE.

The purpose of this chapter is to furnish the

inspector with general guidelines to assist in the

investigation of matters within the inspector's

assigned jurisdiction. The guidelines are not all

inclusive and are not meant as a substitute for

common sense and good judgment. The type of

investigation to be planned and conducted will vary

with the type of violation involved. The inspector

may find it useful to review agency Order 1600.20A

which contains more complete guidance on

investigative techniques, conduct of interviews,

collection and preservation of evidence, and

preparation of reports.

40. PLANNING AND INITIATING THE

INVESTIGATION.

b. Before initiating an investigation, it is

imperative that an inspector carefully consider the

circumstances of the allegation and the nature of

the violation, and develop an investigative plan of

action accordingly. As the investigation progresses,

the plan should be reevaluated continually and

revised as necessary based on the new facts and

circumstances. In developing such a plan, the

inspector should carry out early and close

coordination with supervisors, legal counsel, and

supporting offices, and consider the following:

(7) Continually reevaluate the plan to

did not do what, where, when, why and how.

F-5

404. EVIDENCE OF VIOLATIONS.

a . : a aa |

Draper ype og er oapapn ee etl hati

occurred, Evidence includes all the means by

which any alleged fact, the truth of which is

submitted to investigation, is established or dis-

proven. It is the means by which we prove or

establish the facts set forth in FAA legal notices. If

there is doubt as to the relevance of a particular

piece of evidence, it should be secured and preserved

from the outset.

b. Evidence may be obtained from any place or

source where it is legally available. An investi-

gation at the scene of a violation will often assist the

inspector in the collection and analysis of evidence.

There is no substitute for the inspector’ 8 personal

observation, which should be placed in writing as

soon as possible. r

accurately obtain the facts and circumstances, but

must prepare a report which clearly conveys such

facts and circumstances.

a BS ‘

* OBIS Sep OTANI LA | Ser on

ee ee

APPENDIX G

STATUTES AND REGULATIONS

FEDERAL AVIATION ACT -

Section 609(a) (49 U.S.C. Section 1429(a)):

"The Secretary of Transportation* 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

Secretary of Transportation, he determines that

safety in air commerce or air transportation and

the public interest requires, the Secretary of Trans-

portation may issue an order amending, modifying,

suspending, or revoking, in whole or in part, any

type certificate, production certificate, airworthi-

ness certificate, airman certificate, air carrier

operating certificate, air navigation facility certifi-

cate (including airport operating certificates), or air

agency certificate. Prior to amending, modifying,

suspending, or revoking any of the foregoing

certificates, the Secretary of Transportation shall

advise the holder thereof as to any charges or other

reasons relied upon by the Secretary of Transpor-

tation for his proposed action and, except in cases of

emergency, shall provide the holder of such

* Section 6(c) of the Department of Transpor-

tation Act (Public Law 89 - 670; 80 Stat. 931)

transferred all functions, powers and duties

of the Federal Aviation Administration to the

Secretary of Transportation. The change

substituted the words “Secretary of Transpor-

tation" for references to the Administrator of

the Federal Aviation Administration.

G-1l

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 Secretary of Transportation under this section

may appeal the Secretary of Transportation's order

to the Board and the Board may, after notice and

hearing, amend, modify, or reverse the Secretary of

Transportation's order if it finds that safety in air

commerce or air transportation and the public

interest do not require affirmation of the Secretary

of Transportation's order. In the conduct of its

hearings the Board shall not be bound by findings of

fact of the Secretary of Transportation. The filing of

an appeal with the Board shall stay the effectiveness

of the Secretary of Transportation's order unless the

Secretary of Transportation advises the Board that

an emergency exists and safety in air commerce or

air transportation requires the immediate effective-

ness of his order, in which event the order shall

remain effective and the Board shall finally dispose

- of the appeal within sixty days after being so advised

by the Secretary of Transportation. The person sub-

stantially affected by the Board's order may obtain

judicial review of said order under the provisions of

sections 1006, and the Secretary of Transportation

shall be made a party to such proceedings.”

Section 1006(a) (49 U.S.C. Section 1486(a)):

"Any order, affirmative or negative, issued by the

Board or Secretary of Transportation under this

Act, except any order in respect of any foreign air

carrier subject to the approval of the President as

provided in section 801 of this Act, shall be subject to

review by the courts of appeals of the United States

or the United States Court of Appeals for the District

of Columbia upon petition, filed within sixty days

after the entry of such order, by any person

G-2

disclosing a substantial interest in such order.

After the expiration of said sixty days a petition may

be filed only by leave of court upon a showing of

reasonable grounds for failure to file the petition

theretofore."

Section 1006(6) (49 U.S.C. Section 1486(f):

"The judgment and decree of the court affirming,

modifying, or setting aside any such order of the

Board or Secretary of Transportation shall be

subject only to review by the Supreme Court upon

certification or certiorari as provided in section 1254

of title 28, United States Code."

FEDERAL AVIATION REGULATIONS -

Section 13.1 (14 C.F.R. Section 13.1)

"(a) Any person who knows of a violation of the

Federal Aviation Act of 1958, the Hazardous

Materials Transportation Act relating to the

transportation or shipment by air of hazardous

materials, or the Airport and Airway Development

Act of 1970, or of any regulation or order issued

under those acts should report it to appropriate

personnel of any FAA regional or district office.”

"(b) Each report made under this section, together

with any other information the FAA may have that

is relevant to the matter reported, will be reviewed

by FAA personnel to determine the nature and type

of any additional investigation

or enforcement

action the FAA will take."

Section 91.9 (14 C.F.R. Section 91.9)

(Now codified at 14 C.F.R. Section 91.13(a) -

"No person may operate an aircraft in a careless or

reckless manner so as to endanger the life or

property of another."

RULES OF PRACTICE IN AIR SAFETY

PROCEEDINGS -

Section 821.32 (49 C.F.R. Section 821.32)

"In proceedings under section 609 of the Act, the

burden of proof shall be upon the Administrator."