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

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9418303 FEB : 1995

No.

IN THE

7 Court of the United States

OCTOBER TERM, 1994

ROBERT ANDERSON HOOVER,

¥. Petitioner,

Davip R. Hinson, Administrator,

Federal Aviation Administration, and

NATIONAL TRANSPORTATION SAFETY BOARD,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

F.. LEE BAILEY *

TONI MARIE KENNEDY

1400 Centrepark Boulevard

Suite 909

West Palm Beach, FL 33401

(407) 687-3700

JOHN S. YODICE

RONALD D. GOLDEN

500 E Street, S.W.

Suite 930

Washington, D.C. 20024

(202) 863-1000

* Counsel of Record

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ISSUES PRESENTED

I. -Whether setting aside the trial judge’s credibility

findings violates the Due Process Clause of the Fifth

Amendment to the United States Constitution.

II. Whether revocation of Petitioner’s medical certifi-

cate when Petitioner met the standards prescribed by the

Federal Aviation Regulations violates the Due Process

Clause of the Fifth Amendment to the United States

Constitution.

(i)

TABLE OF CONTENTS

Page

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CONSTITUTIONAL PROVISIONS INVOLVED........ 2

STATEMENT OF THE CASE 200.uoo.n...n...c.c.ccccceecececeese- 2

REASONS FOR GRANTING THE WRIT ................... 6

THE DECISION OF THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF

COLUMBIA, RENDERED ON NOVEMBER 3,

1994 CONFLICTS WITH DECISIONS OF THIS

COURT AND OTHER UNITED STATES COURTS

OF APPEALS, AS WELL AS SANCTIONED THE

DEPARTURE FROM DUE PROCESS REQUIRE-

MENTS COMMITTED BY THE NTSB............... 6

A. Setting Aside The Trial Judge’s Credibility Find-

ings Violates The Due Process Clause Of The

Fifth Amendment To The United States

SSIES Se en 6

B. Revocation Of Petitioner’s Medical Certificate

When Petitioner Meets The Standards Pre-

scribed By The Federal Aviation Regulations

Violates The Due Process Clause Of The Fifth

Amendment To The United States Constitution... 11

co caessee w saeamemaceenmsencier 14

(iii)

TABLE OF AUTHORITIES

CASES

Administrator v. Doe, 4 NTSB 84 (1983), aff’d,

732 F.2d 168 (9th Cir. 1984) ..............................

Administrator v. Smith, 5 NTSB 1560 (1986) ........

Beck v. Quicktrip Corp., 708 F.2d 532 (10th Cir.

RI sciiesisk cic eanesatetespamiibeamestean in Ce sie ena

TE inickieh secsesiaalhieaeahas cide teas ee

Chirino v. NTSB, 849 F.2d 1525 (D.C. Cir. 1988) ..

Coleman v. NTSB, 1 NTSB 229 (1968) ..................

Dawson v. Chrysler Corp., 630 F.2d 950 (8rd Cir.

1980), cert. denied, 450 U.S. 959 (1981) ..............

Dimartini v. Ferrin, 906 F.2d 465 (9th Cir.

EE TEENIE FR acim ta erase ENE

Duncan v. United States, 355 F. Supp. 1167

A an

Greene v. McElroy, 360 U.S. 474, 79 S. Ct. 1400,

en . & , 8: eee een

Harr v. United States, 705 F.2d 500 (D.C. Cir.

IE seicsscencnicancemiiaiaee tte a a

Huddell v. Levin, 587 F.2d 726 (3rd Cir. 1976) ......

McGraw v. NTSB, 3 NTSB 2345 (1980) .................

Miranda v. NTSB, 866 F.2d 80 (5th Cir. 1989) ......

Montilla v. Immigration and Naturalization Serv-

fon, 908 V.Sa 168 (38 Cot. 1GGE) Wc...

Watson v. Patterson, 358 F.2d 297 (10th Cir.),

cert. denied, 385 U.S. 876 (1966) ....................-.--.

CONSTITUTIONAL PROVISION

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STATUTES

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Be Ca IED biciinciccnernenentionndinmmmmnmnt

REGULATIONS

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14 C.F.R. § 67.15 (d) (2) (ii) and (f) (2) -..................

14 C.F.R. § 67.17 (d) (2) (ii) and (f) (2) ~.................

Page

In THE

Supreme Court of the United States

OCTOBER TERM, 1994

No.

ROBERT ANDERSON HOOVER,

m Petitioner,

DAvip R. Hinson, Administrator,

Federal Aviation Administration, and

NATIONAL TRANSPORTATION SAFETY BOARD,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Robert Anderson Hoover, respectfully prays

that a writ of certiorari issue to review the judgment and

order of the United States Court of Appeals for the Dis-

trict of Columbia entered on November 3, 1994.

OPINIONS BELOW

The Federal Aviation Administration revoked Petition-

er’s airman medical certificate on an emergency basis on

December 14, 1993, alleging that he did not meet the

medical standards of 14 C.F.R. § 67.15(d)(2) (ii) and

(f)(2) and 14 C.F.R. § 67.17(d)(2) (ii) and (f)(2).

(Appendix E) Petitioner appealed the Administrator’s

Emergency Order, and an administrative hearing regard-

ing said revocation was held, resulting in Judge William

R. Mullins’ decision and order in favor of Petitioner,

which issued on January 16, 1994. (Appendix C) The

FAA appealed Judge Mullins’ order to the National Trans-

portation Safety Board, resulting ‘n its Order in favor of

the FAA, served February 18, 1994. Hinson v. Hoover,

NTSB Order No. EA-4094, February 18, 1994. (Appen-

dix B). Hoover petitioned the United States Court of

Appeals to review the Order of the NTSB, which petition

was denied by judgment of the Court of Appeals on No-

vember 3, 1994. (Appendix A)

JURISDICTION

The decision of the court below was entered on Novem-

ber 3, 1994. (Appendix A) The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1). The peti-

tion is filed within 90 days of the judgment of the United

States Court of Appeals for the District of Columbia.

Supreme Court Rule 13.1.

CONSTITUTIONAL PROVISIONS INVOLVED

Fifth Amendment

“No person shall be . . . deprived of life, liberty

or property, without due process of law, ...” U.S.

Const. Amend. V.

STATEMENT OF THE CASE

Petitioner is a well known, 73 year old aviator, and

acknowledged Dean of air show pilots. General Chuck

Yeager has described Hoover as “the best pilot I ever

knew.” Petitioner learned to fly at age 16 and subse-

quently became a fighter pilot. In World War II, he flew

59 combat missions, during the last of which he was shot

down and spent most of the remainder of the war as a

prisoner in Stalag 1 prison camp. Petitioner subsequently

worked as a test pilot both for the military and private

industry, and later began flying experimental and newly

designed aircraft. Petitioner tested and/or flew countless

aircraft and was on the XS-1 rocket research program

with Chuck Yeager.

During the course of his aviation career, Petitioner

developed various flight demonstration routines. One of

those routines, involving the Aero Commander Shrike, be-

came his trademark. Throughout his illustrious career,

Petitioner has experienced and successfully coped with

countless emergencies and mechanical failures, both of his

own and those of others; he has accumulated an estimated

20,000 hours of flight time.

On June 19-21, 1992, Petitioner participated in the

Air and Space Air Show in Oklahoma City, Oklahoma.

He performed his usual and customary aerobatics routine

each day. On August 26, 1992, more than two months

after the performance, Clint Boehler and James Kelln,

two FAA inspectors, closeted themselves in a room in the

Oklahoma City FAA Flight Standards District Office and

planned a way to have Petitioner grounded. A third FAA

inspector, Norbitt Nester, overheard Boehler and Kelln’s

conversation, and testified that Boehler and Kelln had

collaborated, conspired to file two separate reports, and

intended to make it appear as if they had not collaborated.

The FAA failed to call either inspector to rebut this testi-

mony. The collusive reports alleged that Petitioner’s flying

had deteriorated and that he appeared medically unfit.

They further alleged that Petitioner was shunned by his

colleagues. These statements were filed, and the next day,

August 27, 1992, the FAA, acting on the inspectors’ strik-

ingly similar and unsubstantiated allegations of substand-

ard performance at an air show more than two months

earlier, demanded that Petitioner undergo psychiatric eval-

uations by doctors of the FAA’s choosing.

Petitioner, having had no reason to question his medical

fitness or flying abilities, complied. Dr. Garrett O’Connor,

who had been selected by the FAA to conduct the test-

ing, concluded that Petitioner was “fit to hold a second-

class medical certificate from a neuropsychological and

neuropsychiatric point of view and should therefore be

permitted to continue his flight activities.”

Although such conclusion should have ended the

FAA’s inquiry, it did not. On April 14, 1993, Petitioner

and Dr. Bert Puskas (Petitioner’s personal Aviation Medi-

cal Examiner) participated in a conference call with Dr.

Barton Pakull, Dr. William Hark and Dr. Jon Jordan

of the FAA. Despite the recommendation from Dr.

O’Connor, Dr. Pakull stated he did not believe Petitioner

was fit to fly. He further stated that the doctors who per-

formed the tests and reported their conclusions were just

“tools,” and that it is he who makes the decisions in Wash-

ington. Consequently, Dr. Pakull, on April 13, 1994,

informed Petitioner that he was grounded.

Petitioner protested on the basis that he had complied

with the FAA’s request for testing, at his own expense,

and had received a clean bill of health. From the time

he was first contacted by the FAA in August, 1992 up

until the time of the April 14, 1993 conversation with

Dr. Pakull, Petitioner had performed aerobatic routines

33 times without incident. As a result of his pleading,

the FAA agreed to a new, independent examination if

Petitioner surendered his medical certificate to his flight

surgeon, Dr. Puskas. Although under no obligation to do

so, Petitioner complied with this request.

The FAA then sent Petitioner to the UCLA Neuro-

psychiatric Institute for further testing which resulted in

a recommendation from the UCLA panel that his airman

certificate be reinstated. Acting in complete disregard of

this second recommendation, the FAA refused to institute

Petitioner’s certificate and forwarded the test results to a

psychologist—Dr. Richard Gaines—associated with the

FAA, who disagreed with the Institute. ©

Petitioner subsequently brought his problem with the

FAA to the attention of Dr. Brent Hisey, a neurosurgeon

and a flight surgeon at Tinker Air Force Base in Okla-

homa. Dr. Hisey agreed to review Petitioner’s case on the

condition that he submit to another complete examina-

tion, and that Dr. Hisey render his opinion candidly

whether favorable to Petitioner or not. Petitioner then

underwent a third series of exams with Dr. Hisey and

clinical psychologist David Johnsen. The conclusion

reached from this third set of tests was that Petitioner

was qualified for his medical certificate, and the test re-

sults were forwarded to the FAA.

Despite the fact that three independent sets of tests

concluded Petitioner should retain his medical certificate,

Dr. Pakull would not change his position. Petitioner then

demanded return of his certificate, and the FAA re-

sponded on December 14, 1993 with an Emergency Order

of Revocation, alleging that Petitioner did not meet the

medical standards of the Federal Aviation Regulations.

The Emergency Order of Revocation was filed as the

Complaint in the proceedings below. (Appendix D)

The Administrative Law Judge found that the Adminis-

trator had not shown by a preponderance of the evidence

that Petitioner suffered the cognitive deficit as alleged in

the Order, and overruled the Administrator’s Emergency

Order of Revocation. The NTSB reviewed the matter and

concluded that all of the law judge’s findings were belied

by the evidence, and his analysis was clearly deficient.

Accordingly, the NTSB reversed the decision of the Ad-

ministrative Law Judge and affirmed the Administrator’s

emergency order of revocation. Petitioner filed a timely

Petition for Review, invoking the jurisdiction of the

United States Court of Appeals under 49 U.S.C.

§ 1486(a). On November 3, 1994, the Court of Appeals

rendered judgment that the petition for review be denied

for substantially the same reasons as set out in the Board’s

order.

REASONS FOR GRANTING THE WRIT

THE DECISION OF THE UNITED STATES COURT

OF APPEALS FOR THE DISTRICT OF COLUMBIA,

RENDERED ON NOVEMBER 3, 1994, CONFLICTS

WITH DECISIONS OF THIS COURT AND OTHER

UNITED STATES COURTS OF APPEALS, AS WELL

AS SANCTIONED THE DEPARTURE FROM DUE

PROCESS REQUIREMENTS COMMITTED BY THE

NTSB.

A. Setting Aside The Trial Judge’s Credibility Findings

Violates The Due Process Clause Of The Fifth Amend-

ment To The United States Constitution.

This is a case which illustrates, painfully, how neces-

sary the oversight of administrative agencies of the United

States by the federal judiciary really is; it presents this

Court with an opportunity to inter one of the most wrong-

headed and due process-threatening rules ever fashioned:

the so-called rule of the Doe’ case. In that case the

NTSB ruled that:

On the issue of credibility of the expert medical

witnesses, we find that they are all credible to the

extent that the term “credibility” refers to ‘the truth-

fulness of the witness. The Board’s traditional ap-

proach to medical expert testimony has not been to

evaluate it for the truth or falsity of the statements

made because the matter of the veracity of the wit-

ness has already been resolved when the witness is

evaluated and accepted as an expert in the field of

medicine about which he has been called to testify

(Emphasis supplied). Once expertise or qualification

to give an opinion on the particular medical condition

at issue has been established, the Board evaluates the-

testimony on the basis of logic, depth, and persuasive-

ness. Doe at 90.

1 Administrator v. Doe, 4 NTSB 84 (1983), aff'd, 732 F.2d 163

(9th Cir. 1984).

By creating the monster that is Doe, the NTSB has

either evinced a startling naiveté concerning the ready

supply of medical witnesses whose opinions are for sale

to litigants, or has constructed a thinly-veiled vehicle to

arrogate to itself powers which due process has tradition-

ally required to be vested in the trier of fact. To suggest

that every doctor who can survive voir dire on the issue

of his or her qualifications is ergo a teller of truth is, in

every sense of the word, fatuous.

An overview of the genesis of the case illustrates the

desperate need for judicial oversight of the FAA and

NTSB. More than sixty days after an active air show

performer exhibits alleged symptoms of infirmity, two

FAA inspectors to whom the safety of the nublic has been

in part® entrusted finally get around to making a report,

trying to be careful to conceal its collusive nature. Peti-

tioner continued to perform his aerial “act” in this and

other countries on some 33 occasions. He submitted to

not one but two FAA-designed medical examinations;

both teams cleared him to fly. Both teams were overruled

by Dr. Pakull, who was present at the trial but declined

to take the witness stand to explain his conduct. The

FAA had two other experts at the trial—Neurologist John

Hastings and Psychologist (and COGSCREEN architect)

Gary Kay, who failed to testify. The only medical witness

upon whose testimony a revocation could be predicated—

Dr. Robert Elliott—was soundly trounced in the credi-

bility department, as follows:

1. Dr. Elliott lied to Petitioner when he said that the

tests he would perform would in no way affect Petitioner’s

right to fly.

2It must be noted that their views of the adequacy of Hoover’s

maneuvering skills were beyond the pale of these conspirators’

expertise, since this judgmental function had been given over to

the ACE (Aerobatics Competency Evaluator) program; they could

only damage Petitioner directly by creating a medical issue, which

they did.

2. Despite his claim at trial that he found Petitioner

to be unfit for a medical certificate, Dr. Elliott never

offered that opinion to anyone else until he was solicited

to “toughen up” his stance (by telephone) by Dr. Pakull

with the help of FAA regular Dr. Richard Gaines.

3. Dr. Elliott lied when he asserted, repeatedly, that

the computer version of a test he administered to Peti-

tioner was a valid clinical version, and capitulated only

when confronted by a statement from the manufacturer

that the only shipments made of the computerized version

were plainly labelled “For Research Purposes Only.”

4. Dr. Elliott admitted to trial judge Mullins that he

had never tested Petitioner for the purpose of determining

his fitness to fly.

Consequently, the administrative law judge found that

Dr. Elliott’s report had been discredited. Despite such

evidence, The NTSB held “. . . we think all of the law

judge’s findings are belied by the evidence, and his analy-

sis is clearly deficient.” The NTSB then concluded that

the Administrator proved by a preponderance of the evi-

dence that Petitioner has a cognitive deficit which makes

him unqualified to hold an unrestricted second class air-

man medical certificate. Indeed, the decision of the NTSB

sounds more in advocacy than in judicial neutrality, and

suggests that the exercise in Oklahoma City was a waste

of the public’s and Petitioner’s time and considerable ex-

pense. The U.S. Court of Appeals affirmed the NTSB

decision within three days of oral argument.

Petitioner is entitled to the protection of the Due Proc-

ess Clause of the Fifth Amendment to the United States

Constitution in connection with these. proceedings. The

administrative hearing, as impacted by the subsequent

reversal of the ALJ’s decision by the NTSB and denial

of petition for review by the Court of Appeals, must have

been conducted with “fundamental fairness.” If not, Peti-

tioner has been denied procedural due process. Watson

v. Patterson, 358 F.2d 297, 298 (10th Cir.), cert. denied,

385 U.S. 876 (1966).

Due process mandates that the fact-finder, in this case

the ALJ, receive and consider all competent and material

evidence before making a final decision. Beck v. Quick-

trip Corp., 708 F.2d 532, 536 (10th Cir. 1983) (quoting

Frank Adam Electric Co. v. Westinghouse Electric &

Mfg. Co., 146 F.2d 165, 168 (8th Cir. 1945)). Part and

parcel of that consideration of all the evidence is an evalu-

ation of the credibility of the witnesses. Beck at 536.

Included in this evaluation is an assessment of the be-

lievability of expert witnesses. It is fundamental that “the

credibility of opinion evidence is for the fact-finder.”

Huddell vy. Levin, 537 F.2d 726, 736 (3rd Cir. 1976)

(citing Sartor v. Arkansas Natural Gas Corp., 321 U.S.

620 (1944)); see also, Dawson v. Chrysler Corp., 630

F.2d 950, 960 (3rd Cir. 1980), cert. denied, 450 U.S.

959 (1981).

The ALJ in the case at bar performed his function

according to the dictates of due process; upon hearing and

considering all the evidence, the ALJ determined, among

other conclusions, that the FAA’s experts were not credi-

ble. The NTSB, ostensibly relying on its decision in Doe,

reversed the ALJ by undermining the factfinder’s very

function—the assessment of the credibility of the evidence.

This action by the NTSB deprived Petitioner of due proc-

ess. The adoption of the NTSB Order by the Court of

Appeals is a sanctioning of the NTSB’s departure from

constitutional guarantees of due process.

It is a well established Board precedent that resolution

of a credibility determination is within the exclusive prov-

ince of the law judge unless made in an arbitrary or

capricious manner. Chirino v. NTSB, 849 F.2d 1525,

1529 (D.C. Cir. 1988). As the FAA itself admits, the

“Board’s policy is not to disturb a credibility finding ‘un-

less there is a compelling reason or the finding was clearly

erroneous.” McGraw v. NTSB, 3 N.T.S.B. 2345 (1980).

Credibility findings are within the exclusive province of

the law judge, who alone, is in a position to observe the

demeanor of the witnesses, and the “Board is most reluc-

tant to disturb a credibility finding by a [law judge] unless

the record reflects a compelling reason for such action.”

Coleman v. NTSB, 1 NTSB 229 (1968); Miranda v.

NTSB, 866 F.2d 805 (Sth Cir. 1989). Stripped to its

essentials, this is merely a challenge to the ALJ’s credi-

bility assessments, a challenge for which the Board is

given a very narrow window of appellate scrutiny:

“. . . whether made by jury, judge or agency a determina-

tion of credibility is nonreviewable unless there is uncon-

trovertible documentary evidence or physical fact which

contradicts it. As the trier of fact, the law judge is in the

best position to make these determinations.” Administra-

tor v. Smith, 5 NTSB 1560, 1563 (1986).

In the present case, the trier of fact found that Elliott

unethically administered an experimental test to Peti-

tioner. Moreover, the experimental version is useless as

an assessment tool. Thus, either the FAA expert had been

improperly administering a useless diagnostic tool over his

years of practice and making diagnoses from it, or, he had

purposefully disregarded the fact that the computer ver-

sion is a mere research vehicle. Judge Mullins also found

that Petitioner was not prepared for the time involved

with Dr. Elliott’s testing and did not have sufficient

breaks. Dr. Antoinette Appel testified that such condi-

tions cause poor performance. Thus, in this instance,

Judge Mullins was not questioning Dr. Elliott’s opinion,

but the reliability of the data from which he formed his

opinion. This is the exact analysis of logic, depth, and

persuasion that a fact finder is charged with employing,

and which the NTSB wrongfully covets. As the Court of

Appeals wrongfully sanctioned the NTSB’s departure from

the accepted and usual course of judicial proceedings as

required by the decisions of this Court and other federal

circuit courts, the Petitioner requests that this Court exer-

cise its power of supervision.

B. Revocation Of Petitioner’s Medical Certificate When

Petitioner Meets The Standards Prescribed By The

Federal! Aviation Regulations Violates The Due Process

Clause Of The Fifth Amendment To The United States

Constitution.

The three batteries of testing that Petitioner underwent

concluded that he was fit to hold his second class airman

certificate. Dr. Garrett O’Connor, who was selected by

the FAA and conducted the first battery of tests con-

cluded, “It is my opinion that Mr. Hoover is currently

fit to hold a second class medical certificate from a neuro-

psychological and neuropsychiatric point of view and

should therefore be permitted to continue his flight activi-

ties.” The results from the UCLA Neuropsychiatric In-

stitute and Hospital (also selected by the FAA), where

the second battery was conducted, were: “Therefore, on

this basis, we favor a recommendation that reinstates his

license on a temporary 3-6 month period during which

his current medical and neuropsychological status is

closely monitored for potential change. Although such

change is unlikely, we are confident that Hoover would

appreciate the importance and significance of this recom-

mendation for all parties concerned.” The results of the

third battery, as described by Dr. David E. Johnsen, were:

“Mr. Hoover is not suffering from any unusual or signifi-

cant cognitive dysfunction that would interfere with his

ability to function as pilot in command of any aircraft

for which he had been appropriately rated by the FAA.

Likewise, there are no neuropsychological indications that

would contraindicate his maintaining his Second Class

Medical Certificate.”

14 C.F.R. § 67.11 establishes that an applicant who

meets the medical standards prescribed in this part, based

on medical examination and evaluation of history and

condition is entitled to an appropriate medical certificate.

Beins v. United States, 695 F.2d 591 603 (D.C. Cir.

1982) (“Like the court in Duncan, we find the language

of entitlement to be significant: If the applicant meets

the medical standards, he must be given a certificate—

at that point in the certification process the FAA’s deci-

sion is not discretionary”); Duncan v. United States, 355

F. Supp. 1167, 1169 (D.D.C. 1973). It seems clear,

therefore, that any applicant meeting the standards as set

forth by the Administrator has a legal right to the certifi-

cate. Harr v. United States, 705 F.2d 500, 503 (D.C.

Cir. 1983). Petitioner, with a 50 year aviation career,

demonstrated his medical fitness to the standards required

by the Federal Aviation Regulations year after year, and

then an additional three times, yet had his medical cer-

tificate revoked by an FAA employee who had never met

him.

Under the Fifth Amendment to the United States Con-

stitution, the federal government shall not take a person’s

life, liberty or property without due process of law. In

the present case, the FAA and the NTSB have taken Pe-

titioner’s in defiance of that precept. Without his second

class airman medical certificate, Petitioner is not able to

perform and pursue his vocation as an air show performer.

This Court has held that:

[t]he right to hold specific private employment and

to follow a chosen profession free from unreasonable

governmental interference comes within the “liberty”

and “property” concepts of the Fifth Amendment. . .

Greene v. McElroy, 360 U.S. 474, 492, 79 S. Ct. 1400,

1411, 3 L.Ed.2d 1377, 1388 (1959)); see also DiMartini

v. Ferrin, 906 F.2d 465, 466 n.3 (9th Cir. 1990).

14 C.F.R. § 67.11 establishes that an applicant who

meets the medical standards prescribed in this part, based

on medical examination and evaluation of history and

condition is entitled to an appropriate medical certificate.

Beins at 603. Three sets of tests indicated that Petitioner

was qualified, yet the FAA revoked his medical certificate.

To do so, acting on unsubstantiated reports resulting from

collusive efforts and despite the three sets of contrary

results, was intentional, arbitrary and capricious.

The NTSB rubber-stamped the FAA’s revocation, relied

on evidence of unethical and diagnostically worthless test-

ing, and intentionally ignored the trial court’s credibility

findings which destroyed the FAA’s only critical witness.

The NTSB has turned a deaf ear to Petitioner, and has

listened only to the sirens of the FAA. The Court of

Appeals has rubber stamped the decision of the NTSB.

Both agencies have vigorously eschewed their most impor-

tant obligation: to guarantee those whom they regulate

at least the semUiunce of a level playing field. The notion

of fair play protected by procedural safeguards that is

demanded by the Fifth Amendment to the Constitution

precludes an administrative agency from promulgating a

regulation affecting individual liberty or a property inter-

est, which the rulemaker may then with impunity ignore

or disregard as it sees fit. Montilla v. Immigration and

Naturalization Service, 926 F.2d 162, 164 (2d Cir.

1991). The affirmance by the Court of Appeals of the

NTSB’s disregard for the Federal Aviation Regulations

directly conflicts with the decision of another United States

court of appeals on the same matter. In addition, it is a

great departure from the accepted and usual course of

due process proceedings, so as to call for an exercise of

this Court’s power of supervision.

In short, in a case where the party with the burden of

proof came to court with corrupt evidence to deprive an

American Icon of his right to professionally exist, the

“government” huddles with itself, and declares victory. In

so doing, the FAA and the NTSB have forfeited—in the

greater quadrant of the aviation community—what ques-

tionable credibility they may have earlier had. If this in-

justice cannot be set right by this Court, all of those who

fly are simple targets for those bad intentioned officials

who arbitrarily and capriciously set out to curtail pilots’

careers.

CONCLUSION

Based on the foregoing arguments and authorities, this

Court is respectfully urged to grant the petition for writ

of certiorari.

Respectfully submitted,

F. LEE BAILEY *

TONI MARIE KENNEDY

1400 Centrepark Boulevard

Suite 909

West Palm Beach, FL 33401

(407) 687-3700

JOHN S. YODICE

RONALD D. GOLDEN

500 E Street, S.W.

Suite 930

Washington, D.C. 20024

(202) 863-1000

* Counsel of Record

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APPENDIX A

[Filed Nov. 3, 1994]

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 94-1318

ROBERT A. HOOVER,

Petitioner

Vv.

NATIONAL TRANSPORTATION SAFETY BOARD and

DAviD R. Hinson, Administrator,

Federal Aviation Administration

On Review from the National Transportation

Safety Board

Before: WILLIAMS, GINSBURG, and ROGERS, Circuit

Judges.

JUDGMENT

This petition for review was considered on the rec-

ord from the National Transportation Safety Board and

on the briefs and arguments of counsel. The court is

satisfied that appropriate disposition of the case does not

call for further opinion. See D.C. Cir. Rule 36(b).

There is substantial evidence in the administrative rec-

ord to support the National Transportation Safety Board’s

conclusion that the Administrator proved by a preponder-

ance of the evidence that the petitioner’s license was prop-

erly revoked under 49 U.S.C. § 44709(b)(1)(2) and 14

C.F.R. § 67.15. Therefore, it is

ORDERED and ADJUDGED that the petition for re-

view be DENIED substantially for the reasons set out in

the Board’s Order and Opinion No. EA-4094 of February

18, 1994.

The Clerk is directed to withhold issuance of the man- :

date herein until seven days after disposition of any timely

petition for rehearing. See D.C. Cir. Rule 41(a)(2).

This instruction to the Clerk is without prejudice to the

right of any party at any time to move for expedited is-

suance of the mandate for good cause shown.

Per Curiara

For THE COURT

/s/ Ron H. Garvin

Ron H. GARVIN

Clerk

APPENDIX B

Served: February 18, 1994

NTSB Order No. EA-4094

UNITED STATES OF AMERICA

NATIONAL TRANSPORTATION SAFETY BOARD

WASHINGTON, D.C.

Adopted by the

NATIONAL TRANSPORTATION SAFETY BOARD

at its office in Washington, D.C.

on the 18th day of February, 1994

Docket SE-13417

DAvID R. HINSoN, Administrator,

Federal Aviation Administration,

Complainant,

ROBERT ANDERSON Hoover,

Respondent.

OPINION AND ORDER

The Administrator has appealed from the oral initial

decision issued by Administrative Law Judge William

R. Mullins, at the conclusion of an evidentiary hearing

held January 13 through January 16, 1994.7 In that de-

cision, the law judge reversed the Administrator’s emer-

1 Attached is an excerpt from the hearing transcript containing

the oral initial decision.

gency order revoking respondent’s airman medical certifi-

cate. The Administrator’s emergency order alleges that

respondent does not meet the medical standards of para-

graphs (d)(2)(ii) and (f{)(2) of sections 67.15 and

67.17 of the Federal Aviation Regulations (FAR), 14

CFR Part 67,” because he has a cognitive deficit.*

2 FAR §§ 67.15 and 67.17(d) (2) (ii) and (f) (2) provide that to

be eligible for a second-class or third-class medical certificate,

respectively, an applicant must meet the following requirements:

(d) Mental and neurologic. ...

(2) Neurologic. ...

(ii) No other convulsive order, disturbance of consciousness,

or neurologic condition that the Federal Air Surgeon finds—

(a) Makes the applicant unable to safely perform the duties

or exercise the privileges of the airman certificate that he

holds or for which he is applying; or

(b) May reasonably be expected, within two years after the

finding, to make him unable to perform those duties or exer-

cise those privileges;

and the findings are based on the case history and appropriate,

qualified, medical judgment relating to the condition involved.

(f) General medical condition... .

(2) No other organic, functional, or structural disease,

defect, or limitation that the Federal Air Surgeon finds—

(i) Makes the applicant unable to safely perform the duties

or exercise the privileges of the airman certificate that he

holds or for which he is applying; or

(ii) May reasonably be expected, within two years after

the finding to make him unable to perform those duties or

exercise those privileges;

and the findings are based on the case history and appropri-

ate, qualified, medical judgment relating to the condition

involved.

3A cognitive deficit is a disturbance of the brain which inter-

feres witn thinking. (Testimony of Dr. Pincus, TR-472). Stedman’s

Medical Dictionary, 25th Edition at 325 (1990) defines “cognition”

as a “generic term embracing the quality of knowing, which in-

cludes perceiving, recognizing, conceiving, judging, sensing, rea-

soning, and imagining.”

The Administrator asserts on appeal that the law judge

erred by reversing the emergency order. The Administra-

tor argues that a preponderance of the evidence, some of

which, he claims, was erroneously excluded by the law

judge, supports the Federal Air Surgeon’s determination

that respondent is unqualified to hold an unrestricted med-

ical certificate.* For the reasons that follow, we agree.

We reverse the initial decision.

Respondent is a renowned air show performer. His

illustrious aviation career spans over 50 years. During

World War II he was a Navy pilot. While flying his last

combat mission his aircraft was shot down, and he was

taken as a prisoner of war.° After leaving the military, he

worked as a test pilot for both the military and private

industry, where he developed various flight demonstration

routines. Since leaving private industry he has performed

aerobatic routines at air shows all over the world. After

25 years of performing, respondent, at the age of 72, is

known as the “Dean” of air show pilots. (Reply brief at

2).

In June 1992, respondent performed at an air show

in Oklahoma City, Oklahoma. Two FAA Aviation Safety

Inspectors witnessed the performance. Both subsequently

submitted statements which questioned respondent’s physi-

cal and mental condition, based on their observations dur-

ing his performance and while on the ground. Respondent

was subsequently asked by the Federal Air Surgeon’s of-

fice to submit to neurological, psychological, and psy-

chiatric evaluations. Respondent submitted to the re-

quested evaluations and was re-tested at his request, when

the first results were deemed unfavorable by the office of

the Federal Air Surgeon. The Administrator’s emergency

* Respondent has filed a brief in replying urging the Board to

affirm the initial decision.

5This fact is relevant in that respondent’s experts claim he

sustained a head trauma that could explain the abnormal findings

of two radiological examinations, infra.

order was issued as a result of the Federal Air Surgeon’s

final determination that all of the evaluations establish

that respondent has a cognitive deficit.

Garrett O’Connor, M.D., a psychiatrist, carried out a

clinical evaluation of respondent to determine the possible

presence of neuropsychological factors which might dis-

qualify respondent from holding a medical certificate. ( Ad-

ministrator’s Exhibit A-1, Respondent’s airman medical

file, at 174-181). Dr. O’Connor performed a standard

psychiatric interview. He found a few abnormalities on

the mental status examination relating to short-term mem-

ory deficits and an impairment in respondent’s ability to

complete backward digit span tasks accurately. Based

on these abnormal findings, he referred respondent to Dr.

Robert Elliott. According to Dr. O’Connor’s report, Dr.

Elliott’s findings “confirmed rather precisely the deficits

noted in my own clinical evaluation.” (A-1 at 175). In

his opinion, “[t]he most likely explanation for the ab-

normal findings is some form of nonspecific aging pathol-

ogy. Id. at 181.

Dr. Robert Elliott is a board-certified neuropsychologist.

He devotes fifty percent of his practice to the evaluation

of pilots, consulting with most of the major air carriers

and with the FAA. He has performed over 800 evalua-

tions of airmen since 1976. (TR-45). Dr. Elliott per-

formed twelve neuropsychological tests on respondent: the

Wechsler Adult Intelligence Scale-Revised (WAIS-R); the

Trail Making Test (parts A and B); the Booklet Category

Test; the Rey Osterrieth Complex Figure Test; the Rey

Auditory-Verbal Learning Test; the Wisconsin Card Sort-

ing Test; the Boston Naming Test; the Wechsler Memory

Scale-Revised; the Controlled Oral Wotd Association test;

the Manual Finger Tapping Test, and the FAA Com-

puterized Cognitive Screening Battery (COGSCREEN).°

6 See infra for a discussion of the admissibility of COGSCREEN.

Dr. Elliott explained the purpose of these tests in the

order in which he administered them to respondent. (TR-

79). Respondent performed in the average or above-

average range on the WAIS-R, which measures level of

functioning from an intelligence standpoint. However, in

the second test which was administered, the Trailmaking

Test, which assesses a person’s ability to sequence, re-

spondent’s performance on Part B was significantly im-

paired using Reitan’s population or pilot norms.’ Dr.

Eliott next administered the Booklet Category Test. He

explained that this test is a very sensitive measure of cog-

nitive impairment, and respondent’s performance was so

poor that, in his opinion, there is no question impairment

is present. (TR-91). Respondent scored 112 errors on

this test. Using Reitan’s (general population) norms, 51

is indicative of impairment. Using pilot norms, 30 errors

is indicative of impairment. On the Rey Auditory-Verbal

Learning Test, a memory test and the fifth test admin-

istered by Dr. Elliott, respondent was given 15 words and

then asked to repeat them. Respondent repeated two words

correctly, and made up two that weren’t even mentioned.

7 Performance on neuropsychological tests is assessed by measur-

ing an individual’s test results to other individual’s test results,

referred to by the experts as “norms.” Using Heaton’s norms,

test scores are compared to others of the same age and education

level. Utilizing Reitan’s norms, test scores are compared to the

general population. Dr. Elliott also used norms for the pilot popu-

lation. According to an article authored by Heaton and others,

Comprehensive Norms for an Expanded Halstead-Reitan Battery

(Administrator’s Exhibit A-17), at extreme age levels, age-cor-

rected scores are not particularly useful in evaluating good con-

ceptual skills in an absolute sense, “i.e., while it is normal to have

relatively weak conceptual skills at this age, the average 75-year

old high school graduate is not likely to perform well in a con-

ceptually demanding job.” (Exhibit A-17, p. 36). Respondent’s

expert neuropsychologist disagrees. In the Board’s view, the record

here is persuasive that air show performance is a conceptually

demanding job and we find unconvincing respondent’s experts’

testimony that the use of other than age-corrected norms is inap-

propriate. a

In Dr. Elliott’s opinion, this result is very unusual and is

indicative of neuropathology. (TR-93).

The sixth test administered to respondent was the Wis-

consin Card Sorting Test. This test assesses the ability of

a person to use logic and reasoning to solve a novel prob-

lem, by measuring the ability to change one’s response

style to be more effective, i.e., if the person continues to

use an approach that is inappropriate, to solve a problem,

his responses are indicative of cognitive deficit. Respond-

ent’s results were found to show significant impairment

using Heaton’s norms, Reitan’s norms, and pilot norms.

When compared to others of the same age, respondent fell

into the 5th percentile (out of 100 people he would rank

between 1 and 4 from the bottom).* On the tenth test

administered, the Manual Finger Tapping Test, respond-

ent’s performance was found to be indicative of significant

impairment, even when compared to persons of respond-

ent’s age group.

In addition to respondent’s poor performance on selected

tests, Dr. Elliott testified that from a clinical perspective,

respondent needed a lot of instruction, responded very

slowly, and at times did not seem to understand directions.

Dr. Elliott recommended that respondent see a neurologist

to rule out neuropathology or an identifiable neurode-

generative disease process because respondent’s test results

were strongly suggestive to him of cognitive deficit. (TR-

130). Respondent was referred to Michael E. Gold, M.D.,

a neurologist.

Dr. Gold reported to Dr. O’Connor that respondent’s

neurological exam was normal. (A-1, p. 202-204). None-

theless, he ordered an MRI [magnetic resonance imaging]

8 Respondent objected to the consideration of these test results

because, according to his experts, the edition used by Dr. Elliott

was a research edition and inappropriate for evaluation purposes.

Nonetheless, this tool was also administered by Drs. Uchiyama and

Johnsen.

on eee

brain scan, an electroencephalogram [EEG], and a SPECT

scan.” Dr. Gold reported that both the MRI and EEG

were normal.’° However, the report of the SPECT scan

performed on November 4, 1992 by Albert Salcedo, M.D.,

found that

“[{t]he superior parietal areas demonstrate a mild

tracer deficiency in symmetrical fashion. These ap-

pear to extend at least part way up over the cerebral

convexities. The remainder of the cortex appears nor-

mal. There was symmetrical and normal uptake in

the basal ganglia and cerebellar hemispheres.”

(A-1, p. 207). Dr. Salcedo concluded:

“This is a borderline examination suggesting the pos-

sibility of biparietal areas of hypoperfusion/hypome-

tabolism. These findings should be correlated with

neuroanatomical findings and with the patient’s condi-

tion. If clinical symptoms persist, one may wish to

consider a six month follow up examination.”

Id.™

In June 1993, respondent sought a second opinion, with

the consent of the Federal Air Surgeon. Respondent was

evaluated by Dr. Uchiyama, a neuropsychologist at the

University of California at Los Angeles (UCLA) Institute

® SPECT scans show the distribution of blood flow to the brain.

(Testimony of Dr. Ziessman, TR-826). SPECT scans are an ac-

cepted diagnostic tool. (Deposition of Dr. Simon, p. 19).

10 The Administrator’s expert neurologist testified that the MRI

was normal for a 70 year old person, but that he considered the

findings of “slight suleal widening in the occipitorparietal area”

and “a rare punctate area of increased signal” (A-1, p. 205) as

not normal, and consistent with the findings of the SPECT scan.

(Testimony of Dr. Pincus, TR-413).

11The Administrator’s expert in nuclear medicine described

hypoperfusion as when not enough blood goes to a certain part of

the brain. (Testimony of Dr. Ziessman, TR-829).

10a

and Hospital. Dr. Uchiyma administered 18 tests, includ-

ing most of those previously adminstered by Dr. Elliott.

According to Dr. Elliott, who testified concerning the

UCLA report, Dr. Uchiyma administered novel tests to

compensate for what neuropsychologists term “practice

effect,” i.e., the belief that an individual will improve in

performance due to practice after repeated testing, rather

than due to improvement in terms of cognitive function-

ing. (TR-136).

Dr. Uchiyama’s report, which is contained in Adminis-

trator’s Exhibit A-1 at pages 122-138, indicates that re-

spondent’s results were age-corrected. (A-1, p. 130.)

(Emphasis added). On attention and concentration tests

respondent ranged from the Impaired to the High Average

range. /d. at 131. “[O]n a measure of visual perceptual

tracking and divided attention (Trial Marking Test, Part

B) .. . [respondent] evidenced significantly slowed per-

formance that placed him in the Impaired range (less than

the Ist percentile),” although Dr. Uchiyama noted there

were “no errors, prompts, or near misses.” Jd. Respondent

also showed “discrete areas of deficit” on the CALCAP.

Id. Respondent was “functioning more than two standard

deviations below the normative sample mean in the areas

of sequential reaction time, language discrimination, re-

sponse reversal-words, and form discrimination. In addi-

tion, he exhibited highly variable performance on one of

the three simple reaction time measures that were assessed

on the dominant hand.” Jd. Respondent’s executive func-

tioning and higher order reasoning were also found to

range from Impaired to the Average range. Id. at 132.

On the Wisconsin Card Sort Test respondent scored within

normal limits. Jd. Respondent’s performance on various

verbal learning and memory tests ranged from Impaired

to Superior. On the Rey Auditory Verbal Learning Test

his performance was evaluated as significantly higher than

his performance six months earlier when administered by

Dr. Elliott. 7d. at 133.

lla

Respondent also underwent a SPECT scan at UCLA

on June 1, 1993. Dr. Mena reported finding:

“bilateral temporal hypoperfusion, right dorsal frontal

hypoperfusion, [and] left dorsal parietal hypoper-

fusion.”

Dr. Mena initially concluded that the focal right, frontal,

bilateral temporal and left parietal hypoperfusion suggest

“multiple strokes or degenerative changes in the areas out-

lined above.” In a subsequent report, however, he revised

his conclusion by deleting his reference to stroke or de-

generative changes and inserting the words “Normal vari-

ance?”,

According to Dr. Uchiyama’s report, the results of re-

spondent’s neuropsychological testing could “reasonably be

consistent with his SPECT report of 6/1/93.” (A-1, p.

135). However, he noted that respondent’s deficits “ap-

pear to be above the threshold required fer normal flight,

as this appears to be a highly overlearned skill in the

patient, and he is able to successfully compensate for such

weaknesses. However, because of the patient’s reduced

reaction time and ability to deal with novel stimuli, some

question remains as to how quickly he may be able to deal

with an emergency situation that was out of his normal

range of experience.” (TR-136). Dr. Uchiyama con-

cludes his assessment in pertinent part as follows:

In the present case, Mr. Hoover revealed some se-

lected risk signs on neuropsychological performance

that could be viewed as signs of accelerated aging or

subclinical (subthreshold) disease. His recent SPECT

also revealed some perfusion changes that could be

viewed in the same light. Although his other basic

cognitive abilities were shown to be well intact, these

subclinical changes should not be ignored, nor should

they by [sic] over-interpreted at this time. Frankly,

if they occurred in an individual in another profes-

12a

sion, e.g., psychiatry or neuropsychology, they would

probably have less significance at this age because of

few demands on speeded information processing in

clinical practice. However, although tasks measuring

speed in information processing decline steadily with

age, one might also expect someone of Mr. Hoover’s

profession to show a slower gradient with age. How-

ever, this is not the case.

(A.1, p. 137).

Finally, Dr. Elliott testified concerning an article ap-

pearing in the Journal of Aviation, Space, and Environ-

mental Medicine in April 1989, entitled Neuropsychologi-

cal Screening of Aviators, A Review, authored by Banich,

Stokes, and Elledge. According to Dr. Elliott, the article

enumerates those sognitive skills that are critical for pilot-

ing performance—perceptual motor abilities, spatial abili-

ties, working memory, attention, processing flexibility, and

planning and sequencing skills. (TR-62).” Dr. Elliott

believes that respondent continues to be a consummate

aviator because his routines are very well practiced. He

is concerned, however, that when presented with a novel

situation the risk that respondent’s impairment would not

allow him to compensate for his cognitive deficits is too

great. (TR-174-176).

Dr. Richard Gaines is a pilot and a board-certified

neuropsychologist. He has examined over 1100 pilots in

the last 20 years, including 14 years on active duty per-

forming aviation-related research psychology. Dr. Gaines

testified that he agreed with the cognitive skills identified

in the Banich article as necessary for pilots. (TR-308).

Dr. Gaines reviewed the test results obtained by Drs.

Elliott and Uchiyama, as well as the evaluation performed

by respondent’s expert witness, Dr. Johnsen. According

12The law judge refused to accept the article, identified as Ex-

hibit A-5, into evidence. See infra.

13a

to his review, even Dr. Johnsen obtained impaired results

from respondent on the Booklet Test, using pilot norms.

In Dr. Gaines’ expert opinion, respondent’s excellent flight

performance cannot compensate fully for his cognitive

deficit, in the event something novel should occur.

Jonathan Pincus, M.D., has been the Chief of Neurology

at Georgetown University Hospital since 1986. From

1974 to 1986 he was a full professor at Yale Medical

School. His particular interest is in behavioral neurology,

movement disorders, Parkinson’s Disease and Alzheimer’s

Disease. Dr. Pincus testified that in order to diagnos

neurological deficit, a neurologist’s most important source

of information is the patient’s history. A neurologist will

also perform an examination and order a variety of tests—

CT scan, MRI scan, EEG, SPECT scan and PET scan.

Although the neurologist will also perform a Mini-Mental

Status Exam to test cognitive functioning, the best docu-

mentation and quantification of cognitive functioning is

performed by neuropsychologists, who are specially trained

to perform these tests.

According to Dr. Pincus, SPECT scans are very helpful

in making neurological diagnoses because there are certain

characteristic configurations which appear on the SPECT

scan for certain conditions, e.g., Alzheimer’s disease, tem-

poral lobe epilepsy, and stroke. Dr. Pincus testified that

if a traumatic incident had caused brain dysfunction it

would be reflected by abnormality on his SPECT scan.

Dr. Pincus is aware that respondent has a history of loss

of consciousness which occurred when his aircraft was

shot down in World War II, but he finds it hard to believe,

in his expert opinion, that respondent sustained serious

brain damage at that point in time and then continued to

perform as he has for the past 50 years. Dr. Pincus re-

18 Respondent agreed, 2%n cross-examination, that he has not

“experienced every possible emergency that one could be con-

fronted with in aviation.” (TR-608).

l4a

viewed respondent’s entire airman file.“* He noted what

he believed are significant changes in neurological exami-

nations performed on respondent in the past year. First,

he pointed out, the June 1993 SPECT scan shows what

he thinks are more abnormalities than the October 1992

SPECT scan. Secondly, Dr. Pincus notes that Dr. Hisey *°

found ankle jerks on examination of respondent in 1993,

but Dr. Gold had not. (TR-416). In Dr. Pincus’ opinion,

ankle jerks almost always mean peripheral neuropathy at

one of the peripheral nerves. (TR-417).** Dr. Pincus

opined that there is an overwhelming likelihood of neuro-

logic dysfunction. (TR-418).%

Respondent testified that he did not perform erratically

at the June 1992 air show. He offered what appear to be

reasonable explanations for his behavior (for example, he

had to perform a go-around because of a hydraulic pres-

sure problem). He produced evidence which he believes

supports his claim that the two FAA inspectors “con-

spired” to get him grounded.”* In addition, respondent pro-

14 Dr. Pincus also placed significance on the fact that since 1982,

respondent has been involved in 5 incidents and 2 violations, which

he believes may be indicative of decreased function. Respondent

testified that all of the incidents were as a result of mechanical

malfunction or another pilot’s act.

15 Dr. Hisey is a neurosurgeon who examined respondent.

16 Dr. Pincus also interpreted the 1992 MRI as not normal and

consistent with the SPECT scan. (TR-414).

17Qn cross-examination Dr. Pincus acknowledged that the

Georgetown Neurology Department has a grant from the FAA to

develop COGSCREEN. (TR-427).

18 Respondent made much of the fact that the two inspectors

allegedly prepared their statements together. He also presented

testimony that one of them “hates” tall, skinny men. In our view,

this purported impeachment testimony lends little support to re-

spondent’s case. In any event, the reasonableness of the Admin-

istrator’s request for evaluations is not before us, nor do we agree

with respondent’s contention that the medical evaluations are

suspect because they were prompeted by these statements.

15a

duced several top air show performers, all of whom

testified that they saw nothing in respondent’s performance

that day, or any other day, to suggest that he has any

medical problems which would make him unqualified to

fly." Respondent also produced recent video tapes which

showed that he is still able to perform” his air show

routine.” The law judge actually observed respondent

perform during a recess in the hearing.”

As to his performance on the neuropsychological test-

ing administered by Dr. Elliott, respondent claims that he

was told by Dr. Elliott the day before the testing that it

would take four hours. When he arrived at Dr. Elliott’s

office he learned that it would take the entire day. Re-

spondent claims he was under a lot of stress, and that

Dr. Elliott never offered him any rest breaks or lunch

19 We think it significant that all of the air show performers

did agree, on cross-examination, that timing and decision-making

skills are critical to air show performers, who, in their opinion,

must be even “sharper” than other pilots.

20 We question the relevance of respondent’s actual performance

skills to the issue of unrestricted medical certification. As the

Administrator points out in his appeal brief (p. 110, n. 42), the

law judge relies on “Webster’s” as his source for his mistaken

belief that cognition is defined as “an inability to perform.” (TR-

540; see also TR-631). Webster’s Ninth New Collegiate Dictionary

(Merriam-Webster, Inc. 1984 at 257 (defines cognition as “the act

or process of knowing including both awareness and judgment:

also: a product of this act”). Perhaps the law judge was con-

fused by the use of the word “act” in the definition.

21 We have grave doubts concerning the propriety of the law

judge’s permitting a pilot to operate the controls of an aircraft,

even under the watchful eye of another pilot who is serving as the

pilot in command, when the pilot who is manipulating the controls

has had his medical certificate revoked on an emergency basis

because the Federal Air Surgeon has deemed him unqualified.

22 We think that in accordance with the Board’s ez parte rules,

49 C.F.R. § 821.61, the law judge should not have had any com-

munications with respondent’s witnesses on the air field and out-

side of the presence of the Administrator’s representatives.

16a

breaks. The only break he took was when, at noon, he

called his wife to cancel their afternoon plans. Respond-

ent also claims that Dr. Elliott gave him no explanations

of the testing, and that he was very unfriendly towards

respondent. Finally, respondent claims that Dr. Elliott

told him that the testing would not affect his medical

certification. Dr. Elliott denies telling respondent that the

tests would only take four hours, and he denies not giv-

ing respondent any breaks during the testing. He did re-

call respondent calling his wife to change their plans for

the afternoon, but he testified that he offered respondent

the opportunity to return at a later date and respondent

wanted to complete the testing that day. As to the state-

ment that the testing would not affect respondent’s medi-

cal certification, Dr. Elliott does not deny making this

statement, but explained that at the time he was only

concerned with determining if respondent had any neuro-

psychological deficits. Respondent also testified that Dr.

O’Connor and Dr. Satz at UCLA both told him that they

could find nothing wrong with him, and Drs. Uchiyama

and Mena gave him “a clean bill of health.”

Brent Hisey, M.D., is a Board-certified neurosurgeon and

a Flight Surgeon with the Air Force Reserves. He is also

a pilot. Dr. Hisey examines at least 20 pilots a month

for the Air Force. He explained that in the Air Force a

pilot is either “fit to fly,” or he is grounded. In his ex-

pert opinion, respondent is “fit to fly.” Dr. Hisey per-

formed a neurological examination, a physical examina-

tion, and a laboratory examination on respondent, with

particular emphasis on the frontal lobes, on October 12,

1993. (A-1, pages 72-78). According to the history ob-

tained from respondent, respondent had “minor bumps”

to his head in 1947 and 1954, but no significant closed

head injury. (TR-718). Based on his examination, re-

spondent had “an average neurological examination for

a 71-year old male.” (TR-713).

Dr. David Johnsen. has been a clinical psychologist

since 1987. He is not Board-certified as a neuropsycholo-

17a

gist, but he is licensed by the State of Oklahoma to per-

form neuropsychological assessments. Dr. Hisey referred

respondent to Dr. Johnsen. Dr. Johnsen’s testing was

limited to the re-administration of the four neuropsycho-

logical tests on which respondent had previously performed

poorly. According to his report (A-1, pages 50-55), on

the Category Test respondent committed 88 errors. “This

test would reflect significant impairment if Mr. Hoover

were being compared to 40 year old males, with com-

parable education. However, when compared to males,

ages 70 to 74, his score reflects only mild impairment.”

(A-1, p. 53). Respondent performed at an average level

on the California Verbal Learning Test. Respondent

showed “significant improvement” on the Trail Making

Test and the Wisconsin Card Sort Test. Jd. Dr. Johnsen

testified that he was not concerned with “practice effect”

on these tests because a year had lapsed since their pre-

vious administration. The results of Dr. Johnsen’s test-

ing were that respondent “performed at an average level

compared to individuals of his own age.” (TR-652). Al-

though he agreed with Dr. Uchiyama’s finding of selected

risk signs on neuropsychological performance, in his opin-

ion respondent could not continue to perform for 25 air

show performances, without problems, if he truly suffered

from a degenerative brain disease. (TR-671). Dr. John-

sen opined that respondent’s performance on Dr. Elliott’s

testing would have been significantly impacted if respond-

ent had been offered no breaks.

Dr. Antoinette Appel is a neuropsychologist, and in

fact holds the first degree ever awarded in neuropsychol-

ogy in the United States. She attacked the validity of the

tests administered by Dr. Elliott because of respondent’s

claim that he was not given breaks during the entire day

of testing. She noted that there is a marked drop-off in

performance after 90 minutes, and without lunch re-

spondent’s blood sugar would have been lower to the point

of affecting his performance. Dr. Appel also questioned

Dr. Elliott’s use of the Wisconsin Card Sort Test, because

18a

it is intended for research purposes only. Finally, accord-

ing to her review of Dr. Elliott’s WAIS raw data, there

is an error in Dr. Elliott’s computations and respondent’s

score actually fell within normal limits. Dr. Appel tes-

tified that in her expert opinion * Dr. Elliott’s test results

are “unreliable” (TR-893) and are “false alarms.” (TR-

893). Using Dr. Johnsen’s data and Halstead-Reitan (age-

corrected) norms, she thinks respondent is unimpaired.

(TR-894). Moreover, she testified that she observed re-

spondent for the 72 hours preceding this hearing and ob-

served no aberrant behavior. (TR-896).

Dr. Appel testified that respondent’s performance while

flying is the best indicator of his cognitive abilities, because

there is no validated correlation between neuropsychologi-

cal tests and flying, citing an article written by Dr. Gary

Kay who subsequently developed COGSCREEN for the

FAA, in support of her assertion. (TR-897-900).% As to

the findings on the SPECT scans, Dr. Appel testified that

she has used them frequently in the last 4 or 5 years, and

| in her experience with over 12,000 patients with head in-

juries, there have been symmetrical abnormalities on the

scans. On cross-examination, Dr. Appel admitted that

using Heaton’s norms and Dr. Uchiyama’s raw data,

respondent does fall within the impaired range on selected

tests. (TR-963).

Theodore Simon, M.D., is a professor of radiology at

the University of Texas Southwestern Medical Center,

and is board-certified in nuclear medicine. He testified by

deposition concerning the findings of the two SPECT

scans performed on respondent. Dr. Simon explained that

hypoperfusion can be caused by strokes, abscess, tumors,

3 Dr. Appel testified as an expert in 12 cases last year, and is

involved in about 2 depositions per week.

24 We think the law judge erred by excluding evidence which

would have shown that Dr. Appel relied on quotations taken out of

context from an outdated journal article.

19a

schizophrenia, poisoning, chronic fatigue syndrome, drug

abuse, seizure, and degenerative brain disease. (Deposi-

tion at 38). According to Dr. Simon, if respondent were

suffering from degenerative brain diseases, he would expect

it to show over a series of studies, although he agreed that

six months may be too short a period of time to reveal

degeneration. (Deposition at 39). Dr. Simon opined that

other processes are less probable because respondent has

a history of trauma. (Deposition at 43). He noted that

while the scans of respondent’s brain do involve both sides

of the brain, they do not suggest to him a great deal of

symmetry. (Deposition at 42). Alzheimer’s Disease is

much more symmetrical than respondent’s studies. (Depo-

sition 43-44). It is not uncommon for trauma to also be

fairly symmetric. (Deposition-41). Dr. Simon agreed on

cross-examination that findings of bilateral temporal and

parietal perfusion are highly predictive of Alzheimer’s Dis-

ease. (Deposition-48). Finally, Dr. Simon agreed on

cross-examination that degenerative disease could not be

excluded by the findings of respondent’s SPECT scans.

(Deposition at 53).

Harvey Ziessman, M.D. testified on behalf of the Ad-

ministrator in rebuttal. Dr. Ziessman is the Director of

Nuclear Medicine at Georgetown University. (TR-822).

Dr. Ziessman interprets SPECT scans daily in his practice.

In addition, he is currently writing a textbook on nuclear

medicine in which he devotes one chaper on brain pro-

fusion imaging. De Ziessman testified that the pattern of

symmetrical underprofusion of the parietal and temporal

lobes is approximately 90% specific for a degenerative dis-

ease of the brain. (TR-844). Accordingly, Dr. Ziessman

disagreed with Dr. Simon’s testimony. In his expert opin-

ion, the findings on the SPECT scans performed on re-

spondent are characteristic of degenerative disease of the

brain and not trauma. He also notes that on the second

SPECT scan there is a right-dorsal frontal profusion defect

which was not noted on the first SPECT scan. (TR-851).

20a

The administrative law judge found in favor of respond-

ent. In support of his decision, he cites Dr. O’Connor’s,

Dr. Uchiyama’s, and Dr. Hisey’s “recommendations” that

respondent should be given an unrestricted medical certifi-

cate. The law judge also made “credibility” findings

against Drs. Elliott, Gaines, and Pincus because, he found,

they have ongoing monetary interests with the FAA. The

law judge does not discuss the testimony of Drs. Simon

and Ziessman. His only reference to the SPECT scans is a

comment that the repeat SPECT scan performed in June

1993, showed no changes. (TR-1010). This finding is

directly controverted by Dr. Ziessman’s testimony. In fact,

we think all of the law judge’s findings are belied by the

evidence, and his analysis is clearly deficient.

In order to prevail in this case respondent was required

to go forward with evidence which rebutted the results of

the neurological, radiological and neuropsychological ex-

aminations. In the Board’s view, respondent’s evidence

merely suggests other explanations, and fails to rebut what

we consider to be overwhelming evidence of cognitive

deficit that makes respondent unqualified to hold an un-

restricted airman medical certificate. Administrator v.

Doe, 3 NTSB 192 (1977).

As both parties recognize in their briefs before the

Board, we do not evaluate medical expert testimony for

its truth or falsity, because the matter of the expert medi-

cal witness’ veracity has already been resolved when the

the witness is evaluated and accepted as an expert in the

field of medicine about which he or she has been called

to testify. Once expertise has been established, the Board

evaluates the testimony on the basis of logic, depth, and

persuasiveness. Petition of Doe, 4 NTSB 84, 90 (1983).

Notwithstanding this precedent, however, the administra-

tive law judge appears to have accepted respondent’s

overbroad and unsubstantiated suggestions as to the ver-

acity of the expert opinions offered on behalf of the Ad-

21a

ministrator.” He dismisses Dr. Elliott’s testimony because

he has served as a consultant to the Administrator, even

though Dr. Elliott testified on cross-examination that most

of his aviation-related work is with the major air carriers.

In the Board’s view, Dr. Elliott’s aviation-related experi-

ence renders his evaluation more persuasive than respond-

ent’s expert neuropsychologist’s evaluation, because he is

able to recognize the validity in comparing respondent's

test results with pilot norms.” Moreover, the law judge

appears to have accepted respondent’s disputed claim that

Dr. Elliott administered the tests under oppressive circum-

stances as an excuse to exclude consideration of all of

his findings, even though significant abnormal findings

were obtained during the beginning of his evaluation.

Similarly, Dr. Pincus’ testimony is disregarded because

Georgetown has “some sort of grant” with the FAA, even

though there is not a scintilla of evidence which sug-

gests that Dr. Pincus’ opinion is based on anything other

than his expertise in neurology. The law judge makes no

effort to explain away Dr. Ziessman’s testimony. He

simply ignores it.

The law judge also erred by adopting respondent's

counsel’s claims that “all three sets of doctors” found

that respondent is entitled to a second-class medical certifi-

cate. Had the law judge carefully reviewed all of the

medical records,” he would have noted that both Dr.

25 We do not intend to say that the truthfulness of an expert

may never be questioned, but we fail to understand how the law

judge could disregard all of Dr. Elliott’s testimony, even if he

believed respondent’s claim that Dr. Elliott had been less than

forthright in discussing the possible impact of the testing on

respondent’s career.

26 We also think that part of this analysis requires a weighing

of the expert’s credentials and experience in the field of expertise

about which he or she is testifying.

27 We are perplexed by the law judge’s apparent belief that the

Board does not wish him to review all the medical evidence fully

before rendering his decision. To the contrary, we think that is his

duty.

22a

O’Connor and Dr. Uchiyama recommended certification

with restrictions.

Finally, we find that many of the law judge’s eviden-

tiary rulings are legally deficient.** He precluded the Ad-

ministrator from presenting evidence concerning COG-

SCREEN, a computerized neuropsychological evaluation

which was developed by the FAA in the late 1980s, based

on repondent’s counsel’s unsupported assertion that this

testing has not been validated and is therefore inadmis-

sible “novel scientific evidence.” This is an administrative

proceeding. The Administrative Procedures Act (APA),

5 U.S.C. §556(d), controls the admission of evidence,

not the Federal Rules of Evidence. Under the APA, any

evidence which is relevant should have been admitted.

The law judge would have then been free to give that

evidence any weight he deemed appropriate. Even un-

der the Federal Rules, there is no requirement to exclude

an expert opinion based on a scientific technique simply

because the technique is not “generally accepted” as re-

liable in the relevant scientific community. In Daubert v.

Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786, 2794

(1993), the Supreme Court rejected such a rigid rule,

finding it at odds with the general approach of the Fed-

eral Rules, which have relaxed traditional barriers to

opinion testimony. We can imagine no reason why the

law judge would apply an even more stringent standard

in these proceedings As the Supreme Court notes in

Daubert, it is the responsibility of the judge, faced with

a proffer of expert scientific testimony, to make an assess-

ment of whether the testimony’s underlying methodology

is scientifically valid and properly can be applied to the

facts at issue. Id. at 2796. Moreover, whether a tech-

nique has been subjected to peer review or publication

28 Were it not for the fact that our review of the evidence con-

vinces us that the revocation order should be affirmed, we would

be inclined to remand the case for a new hearing before a differ-

ent law judge.

pe aT eee Ceres en

23a

does not necessarily correlate with its reliability. Jd. at

2797. As the Court notes, cross-examination and pre-

sentation of contrary evidence rather than wholesale ex-

clusion is the appropriate means by which such evidence

may be challenged. Jd. at 2798. Instead, in this case,

the law judge refused to even listen to the proffer, in-

structing the Administrator’s counsel to make it on the

record outside of his presence.”

Based on the foregoing, we are compelled to set aside

the initial decision. We acknowledge respondent’s re-

markable pilot history and significant contributions to

aircraft evolution. Nevertheless, we have reviewed the

entire record de novo, and we find that the Administra-

tor’s expert witnesses’ testimony was far more persuasive

than respondent’s witnesses’ testimony. Dr. Elliott’s test

result are never refuted. Indeed, his findings are con-

firmed by subsequent testing. Moreover, by Dr. Appel’s

own admission, when the test results obtained by Dr.

Johnsen are compared with norms which are not age-

corrected, there is significant impairment in several cog-

nitive skill areas. We are convinced that the public’s

interest in aviation safety requires that respondent’s cog-

nitive testing results be compared with more than the

norms for the average 70 year old person. Respondent

is not seeking a license to perform everyday activities.

Respondent seeks an unrestricted second-class airman

medical certificate so that he may continue to perform

aerobatic routines in front of numerous spectators. In

any event, we are convinced that the neuropsychological

testing which suggests cognitive deficit is confirmed by

what all of the neurology experts agree are abnormal

29 Had the Administrator been permitted to offer evidence of

COGSCREEN, he would have offered the testimony of Dr. Kay,

who, in accordance with the offer of proof, and as explained in his

analysis which is contained in the medical records (Exhibit A-1,

pp. 85-86), would have testified that when respondent’s test bat-

tery is compared to aviators over the age of 60 his performance

on several variables is “significantly abnormal.”

24a

findings on the radiological scans. We fail to see how

the law judge could find the testimony of Dr. Appel, a

neuropsychologist, regarding her interpretation of the

SPECT scans, more in depth or persuasive than Dr.

Ziessman’s testimony, as he is an expert in nuclear medi-

cine. Even Dr. Simon, respondent’s expert in nuclear

medicine, cannot state that degenerative brain disease is

excluded by these scans—he only suggests trauma as

another explanation. In any event, we think that Dr.

Pincus’ and Dr. Ziessman’s testimony that there is a

change in the June 1993 SPECT scan, a right-dorsal

frontal profusion defect, not apparent in the October 1992

SPECT scan, refutes the explanation that trauma is the

probable explanation for the abnormal SPECT scan find-

ings. We conclude that the Administrator proved by a

preponderance of the evidence that respondent has a cog-

nitive deficit which makes him unqualified to hold an

unrestricted second-class airman medical certificate.”

ACCORDINGLY, IT IS ORDERED THAT:

1. The Administrator’s appeal is granted; and

2. The initial decision is reversed and the Adminis-

trator’s emergency order of revocation is affirmed.

VOGT, Chairman, COUGHLIN, Vice Chairman, LAU-

BER, HAMMERSCHMIDT, and HALL, Members of

the Board, concurred in the above opinion and order.

30 Whether the respondent is entitled to a restricted certificate

under section 67.19 is a matter we are not empowered to review.

25a

APPENDIX C

BEFORE THE

NATIONAL TRANSPORTATION SAFETY BOARD

Docket No. SE-13417

EMERGENCY

IN THE MATTER OF:

ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION,

ene,

my Complainant

ROBERT ANDERSON HOOVER,

Respondent.

ORAL INITIAL DECISION AND ORDER

This has been a proceeding before the National Trans-

portation Safety Board, held here in Oklahoma City. To-

day is Sunday, the 16th; we started the hearing at 9:00

on Thursday morning, and we continued through—it is

now 11:30 a.m. here on Sunday. And I would like to

thank all of the parties for an excellent presentation and

for some long weekend work that we have had to do.

I know that there are at lot of people here, including

myself, who have to fly home today; hopefully we will get

to fly home today. So I will try to make my comments

as brief as possible.

The hearing was conducted on the appeal of Mr. Robert

Anderson Hoover, from an order of revocation that re-

voked Mr.—it is an emergency order of revocation, and

it revoked Mr. Hoover’s second-class medical certificate.

I will refer to Mr. Hoover as the Respondent.

The complaint was filed on behalf of the Administrator

of the Federal Aviation Administration through the Gen-

eral Councel’s Office in Washington, D.C. The matter

has been heard before me, William R. Mullins. I am

an administrative law judge for the National Transporta-

26a

tion Safety Board and, as provided by the Board’s rules

and as is mandated by the Board’s rules, I will issue an

oral decision here this morning.

The matter came on pursuant to notice that was given

to the parties. The Administrator was present at all times

and represented through these proceedings by Ms. Susan

Caron, Mr. Robert Vente, and Mr. Gregory Winton,

Esquires, of the General Counsel’s Office in Washington,

pA.

The Respondent was present at all times and was rep-

resented by Mr. John Yodice of Washington, D.C., and

Mr. F. Lee Bailey, of Palm Beach, Florida.

The parties were afforded a full opportunity to offer

evidence; to call, examine, and cross-examine witnesses;

and in addition, the parties were afforded an opportunity

to make argument in support of their respective positions.

DISCUSSION

In this case, as I indicated, there was an Order of—

emergency order of revocation that has revoked the Re-

spondent’s second-class medical certificate. And that

emergency order alleges that Mr. Hoover has a neurologi-

cal condition and an organic functional or structural

disease, defect, or limitation, and both involved cognitive

deficit.

And to those allegations, the Respondent has filed his

answer and denied the allegations.

In these proceedings, and unlike our usual medical

cases, the Administrator has the burden of establishing,

by a preponderance of the evidence, whether or not the

order should remain in force and effect after Mr. Hoover

filed his appeal.

In our normal medical cases the Administrator has

denied a medical, and then the airman becomes the peti-

tioner, and in those cases the airman has the burden of

going forward with the evidence.

27a

But as I indicated, in this case although it involves

medical issues, it is a little different than those we nor-

mally see.

The Administrator called three witnesses in its case in

chief. And, of course, the first exhibit that came in was

the medical records of Mr. Hoover, which are some 340

pages in length. I may be referring to some of those pages,

and I will be referring to different doctors’ reports that are

contained in there.

I will try to identify the page numbers as I go through,

but if I don’t, I think everyone is fairly familiar with the

different report and where they are found in this 340-page

document.

Dr. Elliott was the first witness and the primary wit-

ness for the Administrator, and Dr. Elliott is a neuro-

psychologist. He gave Mr. Hoover—well, let me back up

just a minute.

This matter was preciptated by an airshow here in

Oklahom City back in the summer of 1992, and after

that airshow there were a couple of FAA aviation safety

inspectors that filed reports to the Administrator, stating

that Mr. Hoover’s performance was substandard, that he

appeared frail. And those reports are in the evidence. I

don’t have the page numbers on those reports, but they

are part of the medical file.

Those two individuals were listed as witnesses at the

outset; however, they were not called by the Administrator.

But in any event, as a result of those reports, Dr. Davis |

requested further medical examination of Mr. Hoover, and

that examination was made, and part of that initial ex-

amination was made by Dr. Elliott.

And that is how this whole procedure came about. And

I won’t try to describe it chronologically for the record:

that is faily well accomplished in this 340-page document,

Administrator’s Exhibit 1.

28a

In any event, in this first group of tests and doctors

that Mr. Hoover saw was Dr. Elliott, and he administered

some tests. One of the tests I excluded because of its

research nature.

But of these eleven tests, there were four of them that

Mr. Hoover indicated that he had a significant impair-

ment in his cognitive function.

At that time there was no recommendation made by

Dr. Elliott in his report, and the report was made back

to Dr. O’Connor. And subsequent to that time—and I

believe it was back in the summer of 1993—on request of

the Administrator—and I think that was through Dr.

Pakull of the Air Surgeons Office. In any event, Dr.

Elliott gave an opinion that he felt that Mr. Hoover was

not qualified to hold a second-class airman’s certificate.

Of the four tests that there were problems on, cross-

examination revealed that one of the tests was a research

test that one of the doctors has testified that it was un-

ethical for Dr. Elliott to give. But in any event, it is not

one that is normally given; however, two of the doctors

who testified said that the correlation was—between the

research version and the normal version was pretty con-

sistent. But there was that issue raised.

There was also an issue raised on cross-examination

of Dr. Elliott about the way the test was administered,

and there seems to be three problems raised. One was

notice to Mr. Hoover about the importance of the tests

and the impact it was going to have on his aviation

career, and specifically there was no notice that this would,

in any event, any way impact his medical certificate. And

in fact, the evidence seemed to indicate that he was advised

that it wouldn’t have any impact.

The second problem with the tests was the time involved.

And apparently there was like—the doctor said seven

and a half hours involved; Mr. Hoover said there was nine

———————E———E

DA ens Deane he hoa An is A OT SAA ha! sd Nek

thas ee Be ae 0 a Ca bl ete

Mine at

vatenare ate Ve che we be wht

29a

hours involved. But in any event, there was one brief

break at noon, and Mr. Hoover’s testimony was that he

didn’t even know that it was going to take past that time

and had been advised that it would take three or four

hours.

He had plans that afternoon, and he had to cancel those

plans. And some of the other doctors—and there has

been indication in the evidence that that could have a

significant impact on the credibility of the tests given.

The third element was the time that—there was the

time and the notice and then the business about scheduling

breaks; that Mr. Hoover said he didn’t have any breaks;

he went straight through the whole time, took one break

at noon to call his wife and go to the restroom.

Dr. Gaines then was called, and Dr. Gaines also is a

neuropsychologist. Dr. Gaines had reviewed Dr. Elliott’s

report, and he reinforced, basically, what Dr. Ellott had

testified to, and then Dr. Pincus was called.

Dr. Pincus is head of neurology at Georgetown Uni-

versity, and he testified that he had reviewed these files

and felt that, based on the tests that Dr. Elliott had ad-

ministered, the subsequent tests, as given by the UCLA

medical people—which would be Dr. Uchiyama and Dr.

Satz’s report—and he also, I think, had reviewed Dr.

Hisey’s report, which was the third group of tests under-

gone by the Respondent. And he also concluded that

Mr. Hoover’s medical certificate should be revoked.

Mr. Hoover then testified for the Respondent, and Mr.

Hoover is extremely well known in the aviation world.

One comment was that—Chuck Yeager made the com-

ment that Mr. Hoover was the best pilot he had even seen.

There was a request—it was objected to by the Ad-

ministrator, but I granted it, and a viewing—I had a

viewing of Mr. Hoover’s airshow routine. It was Thursday

30a

afternoon out at the El Reno Airport, some 40 miles west

of downtown Oklahoma City.

And the only thing I can say about Mr. Hoover’s flying

skills, that it occurred to me that my flying skills compared

to his are about like my golf skills compared to Jack

Nicklaus; there is just no comparison.

Mr. Hoover must be—and certainly the people who

testified here—Mr. Tucker and Mr. Loudenslager and Mr.

Oliver—who are world-renowned in their own types of

performances, who also do these areobatic shows, look up

to Mr. Hoover.

Obviously this case has had a lot of notoriety and

probably will continue so, because obviously—it was ob-

vious to me at the outset of the hearing that this matter

is going to be presented to the full Board, regardless of

what my decision was.

But Mr. Hoover testified that when he first went to

Dr. Elliott—I think I have covered some of that—he was

told initially that he would only be there three to four

hours, that about noon he was told that they had three or

four hours to go. He hadn‘t had a break. At that time

he took a short break to go to the restroom, call his wife,

and then they continued till 5:00 o’clock that afternoon.

Some other interesting comments: Dr.—Mr. Hoover

identified a Dr. Puskas—and if I mispronounce those

names, please share my apologies to those doctors—but

this doctor had been his AME for many years, 20 years,

25 years, and that Dr. Puskas was involved, and there was

a conference call—and I don’t know whether this occurred

during the conference call, but—with Dr. Puskas—ap-

parently Dr. Jordan or some of the FAA doctors and some

of the other doctors, but in any event, Dr. Puskas relayed

to Mr. Hoover that Dr. Davis, who runs the Air Aviation

Medical Center for the FAA here in Oklahoma City, had

advised Mr. Hoover through Dr. Puskas that he should

camara aacaaaaaimammmaa,

3la

fight this thing, this revocation, because it really wasn’t

justified.

That is a hearsay statement; however, the statement is

consistent with some of the doctors’ reports that have

come in, and, further, Dr. Davis, I assume, is right here

in Oklahoma City, could easily have been called if that

particular comment wasn’t true.

Mr. Loudenslager and Mr. Tucker and Mr. Oliver,

who are all aerobatic pilots of some world renown, were

called, and all spoke highly of Mr. Hoover’s flying skills.

And I though, just as an aside, that these gentlemen may

be some of the only people I know, with the possible

exception of Mr. Kelleher, down in Southwest—who runs

Southwest Airlines, they operate aircraft for a living, for

profit. I always—you know, my experience has been you

don’t make money flying airplanes.

But anyway, these are all highly qualified aerobatic

pilots, and they perform around the country with Mr.

Hoover. They—lI don’t think that each of them observed

the some 33 performances that Mr. Hoover did after the

performance complained of in Oklahoma City, but the

three of them had seen many of those 33 performances;

none of them had—saw any degradation in his ability to

fly.

They talked about the ACE program, which is the Aero-

batic Competency Evaluator program that has been set up

among the show pilots, if you will; I guess that is how

you refer to that group.

And this is a program that has been endorsed by the

Federal Aviation Administration, because very few, if

any, of the aviation safety inspectors have the flying skills

of an aerobatic show pilot. And the whole concept behind

the ACE program—and all three of these pilots are in the

ACE program—is to self-evaluate and sort of self-police

the aerobatic pilots in these shows.

32a

And as ACEs and with that responsibility to keep an

eye on all of their brothers and sisters who are in that

flying business, they had not observed Mr. Hoover in any

respect to deviate from his routine in any way that would

indicate any medical problems.

Mr. Norbitt Nester was called, who is an FAA avia-

tion safety inspector. And even though the Administra-

tor did not call the two aviation safety inspectors who

originally complained in this case, he certainly rebutted

that their observations were made independently, because

he had overheard these two gentlemen talking about how

to write their letters and how to present it so it wouldn’t

seem like they had colluded or conspired, if you will,

against Mr. Hoover.

Mr. Hoover called three doctors: Dr. Johnsen, who

is a neuropsychologist here in Oklahoma City, and he

had, subsequent to—and let me digress a minute. There

were really three batteries of tests that were given: one

by Dr. O’Connor, and that was the group of tests where

Dr. Elliott was involved.

Then there was the group of tests given by the UCLA

Medical Center, and that was Dr. Uchiyama and Dr.

Satz, and then there was a group of tests or examinations

given here in Oklahoma City, and that was Dr. Hisey and

Dr. Johnsen.

But in any event, Dr. Johnsen was involved in the

tests here; it was his opinion that there was no reason

that Mr. Hoover could not hold a second-class medical

certificate.

Dr. Hisey is a neurosurgeon here in Oklahoma City,

and also an Air Force flight surgeon. He also testified

that Mr. Hoover was good for this second-class medical.

And Dr. Appel, from Fort Lauderdale, also testified,

and she reinforced what Dr. Hisey and Dr. Johnsen have

said; had made her own examination of the records, and

33a

also gave some testimony discrediting some of these other

exams, not only the way they were given, but also the

kinds of exams given, and specifically the one—the Wis-

consin Card Sort, that Dr. Elliott used.

And Dr. Appel testified that the—it took some ten

times longer to take this research version of this card

sort test than the one that should have been given, and

she said that—just that in itself would have made a sub-

stantial difference in the outcome of the test.

There were a number of exhibits that were admitted.

I am not going to even go through all of these exhibits

or even identify them in my comments; they are all sup-

portive, in one way or the other, of the Administrator’s

Exhibit 1, which is the medical records of Mr. Hoover.

For reasons that I am going to give you now, I will

tell you up front that I am going to rule on this case in

favor of Mr. Hoover. And let me give you the reasons.

There were three groups of medical opinions that were

given. As I indicated earlier, there was Dr. O’Connor’s

opinion that was given by—that was given on the request

of Dr. Davis here in Oklahoma City; Dr. Uchiyama and

the people at UCLA—Dr. Uchiyama and Dr. Satz, and

that opinion was apparently given after Dr. O’Connor’s

opinion had come in, and subsequently, Mr. Hoover was

advised that he was not going to be—-that his second-

class medical was going to be revoked.

And he asked at that time if he could go to someone

else. And apparently—I am not sure, and I am not sure

that it is in the evidence how he went to UCLA, but Mr.

Hoover lives in the Los Angeles area, and that would be

a logical place to go. And then the third group was Dr.

Hisey’s.

Each of those three groups of—and the base opinions

and Dr. O’Connor’s opinion—that is page 181 of the

Exhibit A-1, and Dr. Uchiyama and Dr. Satz’s opinion

34a

is page 137, and Dr. Hisey’s opinion is found at page

78—all three groups of those—all of those opinions and

the doctors involved recommended that Mr. Hoover con-

tinue to fly, that he was qualified to have a medical

certificate.

Dr. Uchiyama’s report said that—he put a proviso

on that, but he said he did it for Mr. Hoover’s benefit,

not for the Administrator, because he said he felt Mr.

Hoover would be comfortable, and he even made the

comment—and I will—if I can find it, I will read it

into the record.

He talked about monitoring for a three- to six-month

period. He says such—any for change—monitoring for

potential change. And he says, “Such change is unlikely,”

but “we are confident that Mr. Hoover would appreciate

the importance and significance of this recommendation.”

So, you know, if you read between those lines, he says

he is good to go, but Mr. Hoover should—would prob-

ably feel more comfortable having those—that followup.

Likewise, Dr. O'Connor says that Mr. Hoover is quali-

fied for second-class medical, but he did recommend re-

viewing a—the blood count, that apparently there was

a problem with the blood count. Again, that didn’t relate

to Dr. Elliott’s report.

He said we needed to review the blood count and also

the SPECT scan. The SPECT scan nor the blood count

related to Dr. Elliott’s report.

So even though Dr. O’Connor seemed to put a proviso

on his recommendation, which he just flat-out says he is

fit to hold a second-class medical, neither of those pro-

visos related at all to Dr. Elliott’s findings.

And I also note that the medical record reflects that

the two followups that Dr. O’Connor recommended—

the SPECT scan and the blood count—the blood count

was all right when Dr. Hisey did the report, and also the

i eteaeeenaeaeinemmeel

35a

SPECT scan that was done six months later did not show

any change. And he said that that should be done to find

change.

Another comment that I have to make about this—and

I felt this was important—is that—and particularly Dr.

Uchiyama, but that the doctors who made these reports

all felt that, notwithstanding these tests, it was extremely

important that Mr. Hoover be given consideration by his

—for his continued ability to not only operate an aircraft

but to operate an aircraft in realms that even the best

pilots couldn’t even do so.

And also they talked about that it was extremely im-

portant not only to consider that continued ability but his

training and past training and all of these skills that he

has acquired as a test pilot over these many years.

All three of the Administrator’s key witnesses just ab-

solutely refuted that; they refused to accept the fact that

Mr. Hoover’s ability to perform had anything to do with

a, quote, medical basis for this finding of cognitive func-

tion.

And I cannot agree with that, and I think that taking

that position in and of itself almost is discrediting to those

doctors.

Third important consideration that I have in this case

—and I—the Board has certainly advised me that I am

not in a position to review all this medical evidence, and

I agree 100 percent. But I can review credibility.

Dr. Elliott and Dr. Gaines, outside the evaluation they

did in this case, depend on the Administrator for their

livelihood. Dr. Gaines has a year-to-year contract that

he talked about, and Dr. Elliott talked about—I think he

said at least a third of his business came from the ad-

ministrator.

The third doctor, Dr. Pincus, although he personally

doesn’t have that tie, he is the head of neurology at

36a

Georgetown, and he indicated in his testimony that George-

town has some sort of grant or major contract with the

FAA.

Now, all doctors have monetary interest in what they

are doing, but Dr. O’Connor doesn’t have a monetary

interest to Mr. Hoover after this report was submitted.

Dr. Uchiyama and Dr. Satz and the folks at UCLA do

not have a monetary interest in anything with Mr. Hoover

beyond the report that they presented. And, likewise,

there was nothing in the evidence that would indicate that

Dr. Hisey or Dr. Johnsen have any monetary interest in

Mr. Hoover after they gave that initial report.

Dr.—further, Dr. Pincus testified—and I apologize for

skipping around; I am trying to summarize these notes.

ut Dr. Pincus testified that the most important thing in

this sort of medical diagnosis was the history. And yet

he refused to consider the history that Mr. Hoover has

not a single episode of any demonstrated cognitive deficit

in any of this day-to-day airshow activities.

Dr. Appel testified that she had been with him for the

last 72 hours, watching him; she had not seen any of that.

But he said that that history—but he said history was

real important; at the same time, he wouldn’t take into

account the history, and he said his history of violations—

and then it was shown with the Administrator’s document

and by Mr. Hoover’s testimony that this violation history

involved one incident that would reflect on his perform-

ance.

But several of the others reflected on mechanical mal-

function in a couple of cases; nosewheel light; another one

was an engine fire; another was a situation where he was

doing something he had been doing for several years, and

the FAA decided that he should’t be doing it, and that was

those demonstration flights that he testified about.

37a

So Dr. Pincus on the one hand said history was very

important, and then he considered history that didn’t re-

late to this function, and at the same time he refused

to acknowledge, even that Mr. Hoover—the fact that

there was never any known instances or reported instances

or reported instances or viewed incidents of any dysfunc-

tion on his part. He just refused to consider that.

All three sets of doctors, even considering Dr. Elliott’s

report in the best light, said that he is entitled to a second-

class medical certificate. And even in the ones where they

added a proviso—Dr. O’Connor’s report didn’t even re-

late to Dr. Elliott’s report, and again, as I pointed out, it

talked about the blood count and the SPECT scan, and

those things have been followed up on, and there is no

problem, hasn’t been any change.

But that is considering, as I said, Dr. Elliott’s report

in the best light. I think Dr. Elliott’s report has been,

for the purposes of this hearing, discredited, not only by

the use of the research test, the one of four that he found

the deficit in, which was four out of eleven, but also has

been discredited by the way it was given and the notice

that Mr. Hoover had at the time it was given.

For all of these reasons, it will be my order that the

Administrator’s emergency order of revocation will be

overruled.

ORDER

It is therefore ordered that safety in air commerce and

safety in air transportation does not require an affirma-

tion of the Administrator’s emergency order of revoca-

tion as issued, and specifically I find that there has not

been shown by a preponderance of the evidence in this

case that Mr. Hoover suffers the cognitive deficit as

alleged in the order, and the order is therefore overruled.

WILLIAM R. MULLINS

Administrative Law Judge

38a

APPENDIX D

[DoT Logo]

U.S. DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

800 Independence Ave., S.W.

Washington, D.C. 20591

DEC 14 1993

CERTIFIED MAIL—RETURN RECEIPT REQUESTED

Robert Anderson Hoover

880 Via Del Monte

Palos Verdes Estates, California 90274

Re: Docket No.: 94AGC10007

EMERGENCY ORDER OF REVOCATION

The Administrator of the Federal Aviation Administration

(FAA) has determined that:

1. On February 12, 1992, you applied for a second-

class airman medical certificate and were examined by A.

Puskas, M.D., an FAA designated Aviation Medical Ex-

aminer, who withheld issuance of the certificate pending

further evaluation.

2. On March 2, 1992, Audie W. Davis, M.D., Man-

ager, of the FAA Aeromedical Certification Division,

issued you a second-class airman medical certificate.

3. You have a cognitive deficit as demonstrated on

neuropsychological testing.

4. The Federal Air Surgeon finds that you are unable

to safely perform the duties or exercise the privileges of

your airman certificate; or that you may reasonably be

expected to be unable to do so within two years because

you have:

39a

a. A neurologic condition (cognitive deficit); and

b. An organic, functional, or structural disease,

defect, or limitation (cognitive deficit).

5. Based on the foregoing, you do not meet the medi-

cal standards of paragraphs (d)(2)(ii) and (f)(2) of

sections 67.15 and 67.17 of the Federal Aviation Regu-

lations, 14 C.F.R. §§ 67.15- and 67.17(d)(2)(ii) and

(f) (2).

The Administrator has determined that, by reason of

the foregoing circumstances, safety in air commerce or

air transportation and the public interest require the revo-

cation of all airman medical certificates held by you.

Further, the Administrator finds that an emergency exists

and that safety in air commerce or air transportation and

the public interest require the immediate effectiveness of

this order.

NOW, THEREFORE, IT IS ORDERED, pursuant to

the authority vested in the Administrator by sections 609

and 1005(a) of the Federal Aviation Act, as amended,

that:

1. Effective immediately, all airman medical certifi-

cates held by you, including the medical certificate

issued to you on or about March 2, 1992, are hereby

revoked on an emergency basis;

2. All airman medical certificates held by you shall

be surrendered immediately by mail or delivery to:

Assistant Chief Counsel

Attn: Susan S. Caron, AGC-310

Enforcement Division

Federal Aviation Administration

800 Independence Avenue, S.W.

Washington, D.C. 20591

40a

Hays V. Hettinger

Assistant Chief Counsel

Enforcement Division

Office of the Chief Counsel

By: /s/ Susan S. Caron

SUSAN S. CARON

Attorney, AGC-310

Appellate Branch

Office of the Chief Counsel

4la

APPENDIX E

14 C.F.R. 67.11

§ 67.11 Issue.

Except as provided in § 67.12, an applicant who meets

the medical standards prescribed in this part, based on

medical examination and evaluation of his history and

3 condition, is entitled to an appropriate medical certificate.

14 C.F.R. 67.15

§ 67.15 Second-class medical certificate.

(a) To be eligible for a second-class medical cer-

tificate, an applicant must meet the requirements of

paragraphs (b) through (f) of this section.

(b) Eye:

(1) Distant visual acuity of 20/20 or better in

each eye separately, without correction; or of at

least 20/100 in each eye separately corrected to

20/20 or better with corrective lenses ( glasses

or contact lenses), in which case the applicant

may be qualified only on the condition that he

wears those corrective lenses while exercising

the privileges of his airman certificate.

(2) Enough accommodation to pass a test pre-

scribed by the Adminstrator based primarily on

ability to read official aeronautical maps.

(3) Normal fields of vision.

(4) No pathology of the eye.

(5) Ability to distinguish aviation signal red,

aviation signal green, and white.

(6) Bifoveal fixation and vergencephoria rela-

tionship sufficient to prevent a break in fusion

under conditions that may reasonably occur in

performing airman duties. Tests for the factors

(c)

(d)

42a

named in paragraph (b)(6) of this section are

not required except for applicants found to have

more than one prism diopter of hyperphoria, six

prism diopters of esophoria, or six prism diop-

ters of exophoria. If these values are exceeded,

the Federal Air Surgeon may require the appli-

cant to be examined by a qualified eye specialist

to determine if there is bifoveal fixation and ade-

quate vergencephoria relationship. However, if

the applicant is otherwise qualified, he is entitled

to a medical certificate pending the results of

the examination.

Ear, nose, throat, and equilibrium:

(1) Ability to hear the widespread voice at 8

feet with each ear separately.

(2) No acute or chronic disease of the middle

or internal ear.

(3) No disease of the mastoid.

(4) No unhealed (unclosed) perforation of the

eardrum.

(5) No disease or malformation of the nose or

throat that might interfere with or be aggra-

vated by, flying.

(6) No disturbance in equilibrium.

Mental and neurologic—

(1) Mental.

(i) No established medical history or

clinical diagnosis of any of the following:

(a) A personality disorder that is se-

vere enough to have repeatedly mani-

fested itself by overt acts.

(b) A psychosis.

43a

lished clinical evidence, satisfactory to

the Federal Air Surgeon, of recovery,

including sustained total abstinence

from alcohol for not less than the pre-

ceding 2 years. As used in this sec-

tion, alcoholism means a condition in

which a person’s intake of alcohol is

great enough to damage physical

health or social functioning, or when

alcohol has become a prerequisite to

normal functioning.

(d) Drug dependence. As used in

this section, drug dependence means

a condition in which a person is ad-

dicted to or dependent on drugs other

than alcohol, tobacco, or ordinary

caffeine-containing beverages, as evi-

denced by habitual use or a clear

sense of need for the drug.

(ii) No other personality disorder, neurosis,

or mental condition that the Federal Air

Surgeon finds—

(a) Makes the applicant unable to

safely perform the duties or exercise

the privileges of the airman certificate

that he holds or for which he is apply-

ing; or

(b) May reasonably be expected,

within two years after the finding, to

make him unable ot perform those

duties or exercise those privileges;

and the findings are based on the case history

and appropriate, qualified, medical judgment

relating to the condition involved.

44a

(2) Neurologic.

(1) No established medical history or

clinical diagnosis of either of the follow-

ing:

(a) Epilepsy.

(b) A disturbance of consciousness

without satisfactory medical explana-

tion of the cause.

(ii) No other convulsive disorder, disturb-

ance of consciousness, or neurologic con-

dition that the Federal Air Surgeon finds—

(a) Makes the applicant unable to

safely perform the duties or exercise

the privileges of the airman certificate

that he holds or for which he is ap-

plying; or

(b) May reasonably be _ expected,

within two years after the finding, to

make him unable to perform those

duties or exercise those privileges;

and the findings are based on the case history

and appropriate, qualified, medical judgment

relating to the condition involved.

(e) Cardiovascular.

(1) No established medical history or clinical

diagnosis of —

(i) Myocardial infarction;

(ii) Angina pectoris; or

(iii) Coronary heart disease that has re-

quired treatment or, if untreated, that has

been symptomatic or clinically significant.

Ns Ce | gt nae et SE ee

45a

(f) General medical condition:

(1) No established medical history or clinical

diagnosis of diabetes mellitus that requires in-

sulin or any other hypoglycemic drug for con-

trol.

(2) No other organic, functional, or structural

disease, defect, or limitation that the Federal

Air Surgeon finds—

(1) Makes the applicant unable to safely

perform the duties or exercise the privileges

of the airman certificate that he holds or

for which he is applying; or

(11) May reasonably be expected, within

two years after the finding to make him un-

able to perform those duties or exercise

those privileges;

and the findings are based on the case history

and appropriate, qualified, medical judgment

relating to the condition involved.

(g) An applicant who does not meet the provisions

of paragraphs (b) through (f) of this section may

apply for the discretionary issuance of a certificate

under § 67.19.

14 C.F.R. 67.17

§ 67.17 Third-class medical certificate.

(a) To be eligible for a third-class medical certifi-

cate, an applicant must meet the requirements of

paragraphs (b) through (f) of this section.

(b) Eye:

(1) Distant visual acuity of 20/50 or better in

each eye separately, without correction; or if

the vision in either or both eyes is poorer than

20/50 and is corrected to 20/30 or better in

46a

each eye with corrective lenses (glasses or con-

tact lenses), the applicant may be qualified on

the condition that he wears those corrective

lenses while exercising the priviledges of his

airman certificate.

(2) No serious pathology of the eye.

(3) Ability to distinguish aviation signal red,

aviation signal green, and white.

(1) Ability to hear the whispered voice at 3

feet.

(2) No acute or chronic disease of the internal

ear.

(3) No disease or malformation of the nose or

throat that might interfere with, or be aggra-

vated by, flying.

(4) No disturbance in equilibrium.

(d) Mental and neurologic—

(1) Mental.

(1) No established medical history or clini-

cal diagnosis of any of the following:

(a) A personality disorder that is

severe enough to have repeatedly

manifested itself by overt acts.

(b) A psychosis.

lished clinical evidence, satisfactory

to the Federal Air Surgeon, of recov-

ery, including sustained total absti-

nence from alcohol for not less than

the preceding 2 years. As used in this

section, alcoholism means a condition

47a

| in which a person’s intake of alcohol

| is great enough to damage physical

| health or personal or social function-

| ing, or when alcohol has become a

prerequisite to normal functioning.

(d) Drug dependence. As used in

this section, drug dependence means

a condition in which a person is ad-

dicted to or dependent on drugs other

than alcohol, tobacco, or ordinary

caffeine-containing beverages, as evi-

- denced by habitual use of a clear

sense of need for the drug.

(ii) No other personality disorders, neuro-

sis, or mental condition that the Federal

Air Surgeon finds—

(a) Makes the applicant unable to

‘ safely perform the duties or exercise

y the privileges of the airman certificate

that he holds or for which he is apply-

5 ing; Or

d (b) May reasonably be expected,

; within 2 years after the finding, to

4 make him unable to perform those

, duties or exercise those privileges;

and the findings are based on the case history

and appropriate, qualified, medical judgment

relating to the condition involved.

(2) Neurologic:

(i) No established medical history or clini-

cal diagnosis of either of the following:

(a) Epilepsy.

(b) A disturbance of consciousness

without satisfactory medical explana-

tion

eS aE RS AA FS Ea

Beha a a a Siete RA AS OS, Vises we bee

of the cause.

48a

(ii) No other convulsive disorder, disturbance

of consciousness, or neurologic condition that

the Federal Air Surgeon finds—

(a) Makes the applicant unable ot safely

perform the duties or exercise the privileges

of the airman certificate that he holds or

for which he is applying; or

(b) May reasonably be expected, within

2 years after the finding, to make him un-

able to perform those duties or exercise

those privileges; and the findings are based

on the case history and appropriate, quali-

fied, medical judgment relating to the con-

dition involved.

(e) Cardiovascular.

(1) No established medical history or clinical

diagnosis of—

(i) Myocardial infarction;

(ii) Angina pectoris; or

(i111) Coronary heart disease that has re-

quired treatment or, if untreated, that has

been symptomatic or clinically significant.

| (f) General medical condition:

(1) No established medical history or clinical

diagnosis of diabetes mellitus that requires in-

sulin or any other hypoglycemic drug for con-

trol;

(2) No other organic, functional or structural

disease, defect, or limitation that the Federal

| Air Surgeon finds—

(i) Makes the applicant unable to safely

perform the duties or exercise the privi-

leges of the airman certificate that he holds

or for which he is applying; or

49a

(ii) May reasonably be expected, within

two years after the finding, to make him

unable to perform those duties or exercise

those privileges;

and the findings are based on the case history

and appropriate, qualified, medical judgment

relating to the condition involved.

(g) An applicant who does not meet the provisions

of paragraphs (b) through (f) of this section may

apply for the discretionary issuance of a certificate

under § 67.19.

14 C.F.R. 67.19

§ 67.19 Special issue of medical certificates.

(a) At the discretion of the Federal Air Surgeon, a

medical certificate may be issued to an applicant

who does not meet the applicable provisions of

§§ 67.13, 67.15, or § 67.17 if the applicant shows

to the satisfaction of the Federal Air Surgeon that

the duties authorized by the class of medical certifi-

cate applied for can be performed without endanger-

ing air commerce during the period in which the

certificate would be in force. The Federal Air Sur-

geon may authorize a special medical flight test,

practical test, or medical evaluation for this purpose.

(b) The Federal Air Surgeon may consider the ap-

plicant’s operational experience and any medical

facts that may affect the ability of the applicant to

perform airman duties including:

(1) The combined effect on the applicant of

failure to meet more than one requirement of

this part; and

(2) The prognosis derived from professional

consideration of all available information re-

garding the airman.

50a

a third-class medical certificate should be made to

an applicant, the Federal Air Surgeon considers the

freedom of an airman, exercising the privileges of a

private pilot certificate, to accept reasonable risks to

his or her person and property that are not accept-

able in the exercise of commercial or airline transport

privileges, and, at the same time, considers the need

to protect the public safety of persons and property

in other aircraft and on the ground.

(d) In issuing a medical certificate under this sec-

tion, the Federal Air Surgeon may do any or all of

_the following:

(1) Limit the duration of the certificate.

(2) Condition the continued effect of the cer-

tificate on the results of subsequent medical

tests, examinations, or evaluations.

(3) Impose any operational limitation on the

certificate needed for safety.

(4) Condition the continued effect of a second-

or third-class medical certificate on compliance

with a statement of functional limitations issued

to the applicant in coordination with the Direc-

tor, Flight Standards Service or the Director’s

designee.

(e) An applicant who has been issued a medical

certificate under this section based on a special medi-

cal flight or practical test need not take the test

again during later physical examinations unless the

Federal Air Surgeon determines that the physical

deficiency has become enough more pronounced to

require another special medical flight or practical

test. |

(f) The authority of the Federal Air Surgeon under

this section is also exercised by the Manager, Aero-

medical Certification Branch, Civil Aeromedical In-

stitute, and each Regional Flight Surgeon.

———————————_—

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.