Transcript of Record — Wilson v. Civil Aeronautics Board (No. 434)

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BRIEF FOR PETITIONER AND JOINT APPENDIX -

United States Court of Appeals.

nite States Court af At ned

FOR THE DISTRICT OF —— ciRCcUIT _ . For the

District of Cyiumbia Crrcyit

FILED

. . ° = 7 | <

No. 13,553 shat 4) dlewast’

2 ~~~ SIDNEY W. WILSON,

Petitioner,

| ome 1 :

CIVIL. AERONAUTICS BOARD, _

Respondent.

we ihe ‘ : : oO ..

PETITION FOR THE REVIEW: OF ORDERS OF THE

CIVIL AERONAUTICS BOARD. _ :

LLOYD FLETCHER: .

_ . National Press. Building ©

- — DC.

. HAROLD BENNETT

ws Street and Cicero Avenue

Chicago, Illinois

Attorneys for Petitioner

. @

_ (iy Were er Px

| STATEMENT OF QUESTION PRESENTED —

The ’ parties to this proceéding by prehearing conference:

stipulation f iled herein and approved by.. Order of this Court

‘ dated November. 14, 1956, have stipulated tl the single issue

of this proceeding to ‘be as follows: |

7 Whether, in circumstances in which the Civil Aero- .

. -nautics Board does not: ‘find the pilot to be unqualified to fly, :

the Board is empowered under Séction 609 of the Civil Aero-

| nautics Act to suspend his airman certificate as a deterrent

sanction (J _A. 1).

IN-DE X

STATEMENT OF QUESTION PRESENTED

JURISDICTIONAL STATEMENT

STATEMENT OF THE CASE

STATUTES INVOLVED

STATEMENT.OF POINTS

SUMMARY OF ARGUMENT

CONCLUSION

Brubaker, CAB Dat, $8-2168°°. 6s

‘eeOUMNNT ae

1, INTRODUCTORY t . es,

Il. THE. RESPONDENT'S SUPPLEMENTAL ‘ORDER OF “JULY 31, 1986,

_ CONSTITUTES AN ATTEMPT TO EXERCISE oe POW ERS

~ UNDER A-REMEDIAL STA TUTE

Ill, SECTION 609, CIVIL AERONAUTICS ACT OF 1938, AS

AMENDED, IS PURELY A REMEDIAL'STA-TUTE,

CAREFUL CONSIDERA TION OF ITS WORDING A

DISCL@SES NO POWER TO PUNISH

“IW. “THE PUNISHMENT: POWERS UNDER THE-AC

IN SUBCHAPTER IX THEREOF, AND A COMM@ARISON OF RELATED

ANDA

ND PURPOSE |

RE CONTA [NED *

STATUTES SHOWS THAT CONGRESS MUST HAVE INTENDED

SUCH EXPRESSED PUNISHMENT ential TO BE EXCLUSWE

(a) Subcha pier 4X ofthe Act.

(b). Comparison of &mportant Related Statutes

ek CITATIONS

S@ases: 2. \

Alaska Airlines, Inc., 13 CAB 495.

; Aviation Corporation of Seattle, 13 CAB 526

Bethell, 13 CAB 28 Se gg

Boston Sand/Co. v. United States, 278 U.S. 41 (1928)

Brown v, Civil Aeronautics Authority, pay F, 2d 737

(CCA, 9th) (1940) 5 8 :

Condit, -13 CAB 458

"District. of Columbia v. Colts, 59-App. “D.C. 224,

38 F, 2d 535, aff'd 282 U.S, 63 (1930)

, Eck,. 13 CAB 408

_ Einstein v. Sawhill, 2 App:. D.C: 19 (1893)

. Hannregan v. Esquire, Anc. , 327.U.S. 146 (1945).

Iselin v. United States, 270 U.S. 245 (1926)

Jones, 13 CAB 470 ae ee ee : Ms

js, UM ewe

| J Steuart & Bro. v: Bowles,.78 U.S. App. D.C. 350, 140

’. 2d 793 sitting aff'd 322 U. S. 399 (1944)

11.

je RO ae we a a 18:

s: Adm'r of. Civif Aeronautics-v. Civil Aeronautics Board, ne ee et | .

% * 96 U.S. App. D.C, 299, 225 F. 2d Meee te et

aN oe afta sk ee ee A

“Bockweod v. District of Columbia, 24 “APP. D.C, 569 (1905) oot a es ee ore 12

McKenzie, so, Sette gee ata ie Ty aia ates ean ee i a r

Mansfield Journal Co. v. Federal Communications Comm., i. : ae

2 . 86 U.S. App. D.C, 102, 180 F.2d 28 (1950) : ; ; eoeer ee | “22

oc rrr watts ee i acer eien meme 2

Nelson v, B.. Sime -Hardware Co., "9 App. D.C. 250, | oe

oe eae eee See aa, oer ane ee ae eee 8

sate oe SdOlsen’, CAB Dkt, SR. 2169 ee oe ee x. cana Se

— fen, SCAUSOO S.C Fae: See 2 rts eae V7

(Ih ge Sass 18

Riess, 13 CAB 300 ge by ee ie tae a a er mae 18

Southern Pacific Co. v. Interstate Commerce Commission, ae *- : -

219 U.S. 433 (1911) ie ae ~gul > | eat ase tree 15

UN i ee a Sy ge Oe

United States v. C.I. 6. . 236 U.S. .S. 106 (1947) - —s —— aa - a

United States v. Weitzel, 246 U. S. 533.1917). Se tg ob i 12

Wallaze v.-Cutten, 298 U.S. 229 (1936) - | S : i ‘ “elege es ee , ii, 16

Willock, 13 CAB 326 OS sates ro Ms a La EEE Sam dale, Sig a a a Sime

oo Statutes:

Civil Aegonautics Act of 1938, 52 Stat, 973, as amended, “

49 USCA 401 et, seq. .

“fe. 4 | a ee ed ag : ry en les a en hoe

DC a mS ge Be Yaar re ie ore nm <a

Re te re Be gee i a Se ee

: ; OS ROSE Ey I ee ane oy ere Pere ate gee eer ‘ev

et oe I el oe or ree ee ee I yo 16

PI i ae Se ae

Sec,,1006 . OS. oy) te Gs poeta tat a: Se 1, 5

Federal Communications Act, as amended, ae aie . ; fy ;

48 Stat. 1982, 47 USCA 303 , ‘ oa . ee ; “

| R.S. 4450, -36 Stat. 1167, as amended, 7 EE aeeied ,

De ge a ee =

is oan aes , :

-..* Securities Exchange Act of 1934, as amended, . .

48 Stat. 898, 15 USCA 78s. .° «eS Sema tees whe aT eM? 22

erty, '

Miscellaneous: :

Attorney General's Committee on Administrative Procedure, 3

; Senate Document No, 186; 76th Nasa 3rd Sess. (7940) .

Parts 5 and 10 “tee ae ‘ , , : Sh

SS ogee Civil ai Regulations, Coge of Federal Sabetaetinn. Title 14

Part’ gl foe a pe ae ao

Sec. 40. 364 - ‘ . ‘ ‘ . ‘ : .

Sec, 60, 12 he Rise, ;

Sec, 00.06. ee. kw

Sec. 60,47 Ng te, eR

” - Freund, “Administrative Powers Over Persons ine iabenty,

~— ++: ~ The University of Chicago Press(1928) 2. wl,

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a S. 2, 75th Cong., 3d Sess,, Sec. 276 (d) eve tas

19, 20, 21

19-20

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‘

-UNLTED STATES. COURT OF APPEALS ao a

- For The District Of Columbia Circuit °

“€

No, 13,553

—

"=r SIDNEY W. WILSON,

7 ag \ =

a . Vv. ‘

C IVIL | AERONAUTICS BOARD,

—

See Petitioner’,

a eee Pees ea ened Respondent

PETITION FOR ‘THE REVIEW OF-+ ORDERS OF THE Pe

CIvié AERONA UTICS BOARD;

.4%

- JURISDICTIONAL STATEMENT |

’ BRIEF FOR“PETITIONER

This is a petition to review "Supplemental Opinion and Order on

Recons iderat ion" issued by respondent, Civil Aeronautics Board, on

July 31, 1956 (S -754) (J.A. 32-38) and "Order Denying Petition for Re-'

consideration"’ issued by respondent on ‘August 9, 1956 (S-7 57) (J. A.

41-43). The jurisdiction of this Court is invoked under Section 1006

of the Civil Aeronautics Act of 1938, as amended, (52 | Stat. 1024,

49 U.S. C.A. 646), under which this Court has jurisdiction to review. .

ae any order, affirmative or negative, issued by the Civil Aeronautics

entered in proceedings under Section 609 of said Act (52 Stat. 1011,

49 U.S.C.A. 559) dealing with, among other things, the amendment,

The Petition for

suspension and revocation of airman certificates.

. e 7 '

=. : ‘? : ia

- .

' .Board. It seeks review of final orders of the Civil Aeronautics Board

. a

« : —

> 2

J stitial Review 9 ‘was filed in this Court: within 60 jon after the entry |

of the Board's Orders herein complained of, in accordance with the re- |

7 quirements of Section 1006 (a). and (b) of said Act.

| :

As the respondent in the proceeding below, the petitioner herein.

has a "substantial interest" i in the orders of which review is sought,

| -within the ‘meaning of Section 1006 (a) of said me ’ |

“s ———- OF THE CASE *

| On December 31, 1954, the Adm inistrator of Civil ‘Lnitcuabtion .

“filed a complaint charging the petitioner with certain oo of the |

Civil Air Regulations and seeking a suspension of his airline transport

pilot certificate (J. A. 3-4). Petitionét duly filed his answer PE

the. violations charged. Thereafter, a hearing was held before an Ex-

aminer of the Civil Aeronautics Board, who issued his Initial Decision.

2 A. 5-22), in which he found that on July 6, (1954, petitioner, while in

command of a NationakAirlines' DC -6B in scheduled air transportation,

after having been cleared for an instrument approach to Runway 28 at

the Greater Pittsburgh Airport, Pittsburgh, Pennsylvania, and making

such approach without landing, (a) violated Sections 40. 364 and 60. 46

of. the Civil Air Regulations by failing to rr the. pres¢ribed missed =

approach procedure for that runway, (b) violated Section 60. 47 of such —

regulations by failing to insure the maintenance of a continuous radio

| watch on the appropriate frequency; (c) violated Section 60. 12 of said

regulations in that the aforesaid failures ‘constituted operation of the air-

craft ina careless manner endangering lives and property, and (d) failed

to exercise the degree of care, caution, and judgment required of a. holder

of an airline transport pilot rating. The Examiner further found, how- |

ever, that suspension of petitioner’ s airline transport a, in view |

of petitioner" s. good flying: record before and since the violations charged,

: would sérve no useful purpose and that. the public interest did fot require

any remedial action. Upon an n appeal by both parties, the respondent,

Civil Aeronautics Board, issded’ its opinion under date of March 28,

1956, agreeing in substance with the Examiner's findings of violations

and also with his decision not to suspend petitioner’ Ss ve sled transport :

pilot certificate (J.A. 22-31). aS .

, Thereafter, both parties ta the proceeding filed petitions seeking |

; reconsideration by respondent Board of its decision dated March 28,

1956. On July 31, i956, respondent entered its "Supplemental. Opinion:

and Order on Recons ide ration" wherein respondent (Vice- Chairman

Adams concurring. and dissenting) (J. A.. 38) reaffirmed its. earlier dé- -

cision that petitioner had violated the Civil Air Regulations, as afore- -

said, but ‘reversed that portion of its earlier decision which imposed

no suspension of petitioner's airline transport pilot certificate (J. A.

3 32- 38)... | In its said “Supplemental Opinion and. Order on Reconsidera-

= th tion" the respondent ordered that petitioner's Said certificate be sus -

oy pended’ effective August 10, 1956, through August 19, 1956 (J. A. 37).

The suspension: so ordered was, based upon the respondent's conclus' ion

that, in the public interest,. it should So. Suspend the’ petitioner’ S said .

sertificate asa "deterrent sanction" (J. &. 38).

On August 7, 1956, petitioneF filed a petition for recons ideration

of said ‘Supplemental Opinion and Order on the ground that in issuing :

said Order suspending petitioner’ s airline ‘transport pilot certif icate as

a punitive or deterrent sanction, the respondent had exceeded | its statu-

tory powers (J.A. 38- 40). Petitioner further: sought. a Stay of executior

thereof to enable him to. petition this Court for judicial review. On

‘August’ 9, 1956, respondent issued its Order by which it denied ‘the pe~

SS tition fer reconsideration but granted an appropr late stay pending judi-

c ial review. by this Court G, A. 41- 43). Be

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- ~~ SS STATUTES INVOLVED © :

rn. . , . | tia 7 e

The principal provisions of the Civil Aeronautics Act here involved

are set forth below. Other pertinent Stanenery provisions are cited or °

quoted in their appropriaté place in the text of this: brief.

iakcos Aeronautics A@t of 1938 (52 Stat. 973) as /ametided,

(48, U. Ss. C. A. 401 et seq. ds provides in part:

Sec. 609. (52 Stat. f011, 49 U.S.C.A. +559)

"The Board may, from time to time, reinspect-. ae

any aircraft, aircraft engine, propeller; appliance,

-air navigation facility, or air agency, may reexamine’

_any airman, ang, after investigation, and upon notice.

and heating, y alter, amend, modify, or suspend,

in whole or in part, any type certificate, production ©

certificate, airworthiness certificate, airman certi-

ficate, air carrier operating certificate, air naviga=>

tion facility certificate, or air agency certificate if

- the interest of the public ‘sdrequires, ‘or may revoke,

vat .in whole or in part, any such certificate for any cause

, which, at the time of. revocation, would justify the .

Adfninistrator of Civil Aeronauti¢s in refusing to |

issue to the holder of such certificate a like certifi-

te a od . i ! 7

e Sec. 901 (52 Stat. 1015, 49°U.S.C.A. 621)

(a) Any. person who violates (1) any provision of

a subchapters V, VI, and VII of this chapter, or. any .

provision of subsection (a) (1).0of section 181 of this * |

title, or (2) any rule or regulation issued by the Post- .

master General under this chapter; shall be subject to

d’civil penalty of not to exceed $1,000 for each such"

~ violation. Any such penalty may be compromised by

the Board or the Postmaster General, as the case may

@ ~~" de. ee aS |

.(b) In case an aircraft is involved in n such viola-

, tion and the violation is by the’owner or person in com-

; “mand of the aircraft,such aircraft shall be subject to °.

ll Lien for the penalty . ee : re

“

Sec. 903 (52 Stat. 1017, 49 U. S.C. A. 623) -

-"(b) (1) Any civil penalty imposed under this -

chapter may be-collected by. proceedings in personam

against the person subject to the penalty . “Such

proceedings shall conform as nearly as may be ‘to

civil suits in'admiralty, except that either party may

demand trial by jury of any issue of fact, if the value

in controversy exceeds $20, andthe facts sotried

* shall not be re-examined other than in accordanc |

with the rules of the common law... ." :

‘Sec. 1006 (52 Stat. 1024, 49 U. 5.C. A. 646)

"(a) Any order, affirmative or negative, issued _

_ by the Board under this chapter . . . shall be subject

to review by the courts of appeals of.the United States

or the United States Court of Appeals for the District

“ _ of Columbia upon petition, filed within sixty days after the

— entry of such order, by any person fisclosing. a sub-

S stantial interest in such orger:. .°."

STATEMENT OF POINTS oe al

The respondent, Civil Aeronautics Board, erred:

qa) In ieidian by its Supplemental Opinion and Order dated J uly $1,

1956 that petitioner’ S airline transport pilot certificate should be sus-

pended for. a 10-day period asa deterrent sanction against Petitioner.

(2) In reaffirming etabitelly power to SO suspend petitioner's :

certificafé as a deterrent sanction by Order hata Petition for Recon- _

sideration dated August 9, 1956. 7

_ SUMMARY 2F ARGUMENT _

The proceedings which resulted in the punitive orders herei al com - |

plained of were conducted: solely under Section 609 of the Civil Aeronautics

Act of 1938 by the’ terms of which Congress has granted to the Civil Aero- a

nautics Board remedial powers in the public interest ‘to inquire into f it-

- ness and qualifications of holders of aviation certificates issued under -

the Act, and where such holders are found deficient in fitness or quali-

fication, the Board may suspend their certificates. No power is expressly

granted to the Board to. punish’ the holder of a certificate fora violation

of the Act,. nor may such. power be implied under the clear remedial word-

ing of Section 609. The legislative delegation of power to punish any vio-

lations of therAct is contained exclusively in entirely different sections ©

of the Act not availed of here by the Board. The construction of the statute

urged by petitioner is not only. supported by sound and established pr inci- —

ples of Statutory construction, but by ah examination and compar ison of ‘es

| important comparable Statutes in related f oles of. government regulatory

licensing. The Board's interpretation of its power to punish under Sec-

tion 609 results. ina deprivation ofa certif icate holder's right to trial

by jury expressly provided for under. the: penalty sections of the Act.

“angument

4 “Introductory

| On ieee 23, 1938, “the Congress of the United States proclaimed.

_ the following statement of policy:

"There is recognized and’ declared to exist in'be-

-. half-of any citizen of the United States a-public right

of freedom of transit in air commerce through the -

navigable air space of the United States." Civil

Aeronautics Act of 1938, Section 3, 52 Stat. 980,

49 U.S.C. A. 403.

“Occasionally, as.in this case, those charged by. that same Con- | 2

. gress with the duty of reasonably regulating our citizens' exercise of

such right of freedom of transit tend‘to: forget that it existed before

the statute under which they are empowered to operate. Of course, an |

activity such as aviation, in the interests of all, must be Subjected to

_ reasonable regulation. But, in. ‘thus recognizing the citizen's right of

freedom of transit in air commerce at the very outset of its regulatory

‘statute, Congress has warned that a strict construction in favor ‘of the ; |

right should be favored. Such right, therefore, should be regulated

no further than the statutory language clearly and conv incingly indi-

cates. A °

7 However, the respondent has read its statutory: powers with a

liberal eye and attempted to deprive petitioner of his right to fly through

the exercise of an assumed power to punish him under-a non -penal sec-

tion of the statute. It will be the purpose of this brief to demonstrate the

im propriety of eee: action.

1 Il.

The respondent's Supplemental Order of July 31,

1956, constitutes an attempt to exercise penal powers

under a remedial statute.

At the outset ‘it is important to note that the action taken sal the’ re-

| Spondent*in Suspending petitioner's airline transport pilot rating is de-, :

signed purely and simply: to punish him for a violation of the Civil Air ;

Regulations and is nota remedial action des igned to — the we

’ from an incompetent or unqualified pilot.

It is not believed: ‘that this statement is, or ‘can. be, disputed by -

. respondent. At no time in the proceeding have petitioner"; Ss competency.

_ and qualifications as an airline. pilot veen drawn into question, and the

issue before this Couri, as stipulated by the parties, so recognizes.

Also, in its sciineahs opinion of March 28, 1956, G A. 29. -30),, _the re-.

mentee WO ee

"As tee Examiner asted, respondent who is

37 years.of age and married, has been flying since .

1936 and had accumulated a total of over 10,000.

hours flying time in early 1955. He has been flying

for National Airlines for over ine years, with many

‘hours in DC-4, DC-6B, and DC-7 aircraft and sub-

Stantial instrument time, and he’has. continued to fly.

for' National during a period of fifteen months from -

the time of the violations to the issuance of the Initial

Decision-heretn. Thus respondent appears to have

_ along, clear flying record, continuing for: twenty ~ |

years throughout his adult life, a fact which tends to

minimize the likelihood that additional disciplinary-

measures are needed to deter him from similar acts .

in the future.

_° “The nature of respondent's violations, which

have previously been described in detail, require

little further elaboration. Suffice it that while re-

_° Spondent's violations were clearly more than tech-

- nical and involved regulations which are’ highly im-

portant.to air safety, his conduct-under the circum-

stances (referred to ina footnote as being the

_.¢ ‘communication to petitioner of .'inaccurate current

airport weather’) did not involve any special or:ag-

gravating element of flagrancy or recklessness suffi-

cient to dictate suspension regardless of the other

factors discussed herein. Moreover, our decision .

not to impose a punitive suspension on respondent |

is not inconsistent: with past practice. ' % (Underscor-

ing Supplied) . :

The respondent’ s "decisi ion not to impose a punitive : suspens ion" —

was changed in its Supplemental Opinion and Order on Reconsideration

— a

dated July 31, 1956 so as to impose on petitioner a-punitive suspens ion

of his airman certificate fora 10-day period; which action respondent .

referred to in its Supplemental. Opinion aS a "deterrent sanction. ae

(J.A. 36). - The latter phrase is merely descriptive language for a —

- punitive Suspension as has been clearly recognized by respondent. itself.

in its earlier decision in the cases of Le# vis H. Brubafer and Charles E.

Olsen, CAB Dockets Nos. SR-2168, 6169, entered d August 2, 1954. In

| | that opinion the respondent held: 3 |

: 2

ns eee

. =

a r

- "We are inclined to the view,. and hold, that

Suspensions imposed merely to prevent and deter

violations, ‘and where requalification in one or more ..

respects is not involved, are punitive in the consti-

tutional sense, and are a type of ‘penalty':from which -

a is provided by Section ee 5

- When the Brubaker and Olsen cases were ea to this Court.

in Lee, Adm inistrator of Civil ‘Aeronautiés v. ‘Civil Aeronautics Board,

96 U.S. App. B.C. 299, 225 F. 2d 950 (1955)., the respondent in its brief

| stresses again and again that a Suspension of a pilot's license for violation

of the Civil Air Regulations, whiere the holder’ S qualifications are not at

issue, is S purely punitive in nature, and summarizes. its position by Saying:.

"A punitive suspension plainly is a penalty both

an law. and practical effect.". Brief for Respondent,

P. 22, zin Lee-v. - Civil Aeronautics Board, supra.

| Finally, in this Court's decision in that case, Judge Préttyman ‘filed

a separate opinion (dissenting on another issue) in which he clearly recog - ‘

nized that a suspension unrelated to pilot qualifications constitutes a pen-

alty. ° At pi ve 302 of 96 U.S. App. D. C.. Judge Prettyman Stated as follows:

"The question, then, is whether the proceeding

is punitive or merely remedial. In this connection

we go to the Fifth Amendment cases. Any reading

, of the complaint shows the action prayed is purely .

punitive. The complaint says baldly that the men

were careless and therefore ought to be suspended. ;

_ It does not allege the pilots to be unqualified.—TI think ~ Pa ke

they were protected. by reason of their testimony taken :

in the investigation. iy (Underscoring Supplied)

| ‘See, also, Brown v. Civil Aeronautics Authority, 112 F. 2d.737

(CCA, 9th)( 1940). There the Court ‘plainly indicated that a suspension im-_

posed solely because of violations would constitute a penalty against the

2 3 pilot justify ing the a et ofa supersedeas on appeal. But since the

administrative order Tequired the pilot to take a written examination for

the purpose of determ ining his fitness to fly, the Court considered that

the "safety of the public” was ; involved and a supersedeas was denied.

. In the present case; as J udge Prettyman noted in the Brubaker and

Olsen. ,casg, supra ‘supra, | "any reading of the complaint shows the action prayed

-is purely ‘punitive." In this respect the complaints ‘in the two cases are

indistinguishable. (See the Complaint herein, J.A. 3-4).

' This Court has also stated in cases involving: suspension of the |

right-to deal in rationed commodities that "the question turned on whether .

the Board's order is in fact a penalty, i.e., a means and method of pun-

ishment of an offender against its rules."' Nelson v. B. Simon Hardware

. Co., 19 App. @.€. 250, 251; 145 F.2d 386 (1944) . In LP. Steuart &

Bro, Vv. Bowles, 78 App. B.C. 350, 351, 140 F. 2d. 7103 (1944) , the Court .

said that "a penalty is a punishment, an injury. inflicted for punitive pur-

poses. ' The suspens ion in that ease was‘held not to be penal because

-it protected the public by allocating fuel oil away. from A dealer disposed ve

to violate the ration program nas channels through | which it would be |

distributed ina lawful manner, thus insuring the equitable distribution

of a rationed commodity. The United States Supreme Court affirmed

.in 322 U.S. 398 but indicated that had the ‘Suspension order been penal |

rather than remedial, the result would be different. Mr. Justice Douglas

stated wor. the Court at 322 U.S. 404, as follows: : |

"We agree that. it is for Congress. to ‘sitive ee

the penalties for the laws which it writes. It would

: : one transcend both the’ judicial and the. administrative func-

“wring, «tion to make additions to those which Congress has

, _. placed behind-a statute. (Citing cases) Hence we

- would have no difficulty in agreeing with petitioner's a5

contention ‘if the issue were whether a suspension order,

€ould be used as a means of punishment of an offender.

But that statement of the question is a distortion af the

issue presented on this record."' |

* since the foregoing ‘demonstrates the punitive nature of respondent Ss...

' Supplemental Order in this case, detailed consideration will now be given

‘to the scenes provision from which respondent purports to derive such

| penal powers. agi : | ie

Tl.

Section 609, Civil Aeronautics Act of 1938, as.

_ amended, is purely a remedial statute, anda ~

careful consideration of its wording and purpose

discloses no power to punish. |

The respondent's power to suspend an airman certificate is con- a

‘tained in Section 609 of. the Act, which reads, in pertinent part, as.

follows:

"The Board may, trom time to time, reinspect any

aircraft; aircraft engine, propeller, appliance, air

navigation facility, or air agen¢y, may reexamine any

airman, and, after investigation, and upon notice and

hearing, may alter, amend, modify, or suspend, in

whole or in part, any type certificate, production.

certificate, air- -worthiness certificate, airman

_ certificate, air carrier ope rating certificate, air

‘navigation facility certificate, Or air agency certi-

ficate if the interest of the public so requires, or ‘may

revoke, in whole or in part, any such certificate for.

. amy cause which, at the time of revocation, would

justify the Administrator of Civil Aeronautics in ~ |

refusing to issue to the holder of such certificate _—_,

a like’certificate. . ." Act of June 23, 1938, . @¢- *

. 601, Title VI, Sec. 609, 52 Stat. 1011, 49

U.S.C. A. 559. ,

“-

This section of the Act as within eee VI entitled "Civil

‘Aeronautics Safety Regulations, " and obviously Section 609 is designed

‘specifically to enable respondent Board, as a remedial matter, to.

‘“reinspect" aircraft and their compohouts and "reexamine" the com-

petency of airmen and thereafter, where the public interest so requires,

to alter, amend, modify, suspend and revoke certificates previously

issued under powers granted in preceding sections. No power is

_ specifically delegated under Section 609 to punish an airman, air

carrier, . aircraft, etc. Clearly, no such punishment power will be

implied. Wallace v. Cutten, 298 U.S..229 (1936); Iselin v. United

States, 270 U.S. 245 oe: A fortiori is this true, where not even

_ a casus omissus is involved, for Congress specifically. provided penal-

ties for violations of the Act in an entirely — title labeled

| "Subchapter IX-Penalties, " hereinafter discussed. !

Furthermore, this Court ina professional license case long ago |

established that any statute pertaining to the exercise of a trade or

profession must be strictly construed in’ favor of the citizen. Lockwood -

V. District of Columbia, 24 ‘App. D:C. 969 (1905), where Mr. Chiéf

oJ ustice Shepard v wrote:

"The established rule of the courts is that all .

t - statutes imposing restrictions upon business

eas or the common occupations of the people, or

? ‘levying a tax upon them, % are to be construed

‘Strictly. ss

ee oe \ In contrast, the respondent, in using Section 609 as’a punishment

serehin, has endeavored to give the statute a liberal and distorted in-

_ terpretation far beyond ite obvious intendment.

Research by counsel into the legislative history of the Civil

| Aeronautics Act of 1938 -has failed to disclose any significant comment

| either in the Committee Reports or the Hearings which might be

eS specifically helpful in construing the provisions of the Act here under

construction. However, it is well known that the late Senator. Pat’

McCarran was one of the most active legislators in the 1938 revisions |

of the country's aviation laws. On J anuary 5, 1938, he introduced in —

the Senate a bill; S. 2? 75th. Cong: , 3d Sess., in which Section 276 (d) .

dealing with gspension and revocation of aircraft, airman and related

- certificates, read | as follows:

\ Bas

on \ —-

* Even had there been a. legislative inadvertence in the present statute, United States v. Weitzel,”

_ -246 U.S.-533 (1917) warns us that the judiciary must not supply the omission simply “because the

court ‘thinks the legislatore should have made them (the stat aes more comprehensive. ” 246.U; s. 54 3..

- Sf Par rules, . regulations, or requigements of the.

. / 13 : : . | ° "

vas = he ;

"(d). The Authority may/amend or modify any .__

certificate or license- issued under this,part; and

may suspend or revoke any such certificate or

_ license when the holder thereof fails to comply _

» With the provisions of this Part, ‘or the orders, ©

uthority thereunder, or the terms and condi-

_ tions of the certificate or license. Ms (Under-

scoring Supplied) |

Ss. 2 never passed the Congress... having been apparently superseded,

by the: slightly later bill which became: the present Act.. ‘It is. believed .

: noteworthy to observe, however, that in contrast to the language of

: Section 609, the language of the abortive bill, quoted above contains

words indicating power to punish through suspension or revocation :

upon failure to comply with, the, regulations’ of the Authority. - It ae

fair inference, therefore, that Congress_preferred the present: statutory

scheme. where remedial provisions are contained in one place (Sub-

| chapter. VI, including Sec. 609) and punishment provisions in another

(Subchapter ee Soe ‘ a Me te aa

Finally, it is important to- consider the purpose of Section 609.

_ Bearing in mind constantly that the section is a part of the ‘Subchapter a

dealing only with the respondent's power and duty "to promote safety

| of flight" (Sec. 601), and that. penalties for violation of the Act are :

: fully provided: in another Subchapter, it becomes obvious that the power

conferred by Section 609 is solely remedial, e. g. ; the certificate of —

a defective aircraft or air navigation f ility may bé‘suspended in the:

a interests of safety until the defects sr soca or.if they cannot

_be corrected, then the certificate. may be altered: or modified SO as.

* A restrict the freedom of its operation; the: airman. certificate of a

pilot who, on: reexamination, has been found to have a ‘visual deficiency’

may be altered SO as to require the- -wearing of: ‘correcting lenses while

flying aircraft; or the certificate may be suspended where it is found’,

| that the holder is presently unqualified in piloting techniques until

he has proven his attainment of suitable | proficiency. se .: oes

ype tod

14 | af 2 Sacre

Or course, these examples. are merely illustrative and can.be

“multiplied any fold, but. in ne event can the power to ‘punish be found

2 °o .

‘in the wording: ° |

The phrase, "reexamine any airman" seems clear and unambiguous.

No dictionary definition heed be cited to demonstrate that "reexamine"

means to "examine again. * Examine for what again? Fhe ‘answer to

that question depends upén an analysis of tRe reason for the first exami-

ra nation of the. airman.

& an When petitioner obtained his airline transport pilot certificate,

such first examination consisted of his proving compliance with the

minimum requirements set forth by respondent in its Civil Air Regu-

lations, ‘Part zi. . These requirements set, minimums with respect to

age, character, ctbineindhte. | education, ae ronautical knowledge,. ex- .

_ perience, and skill, and radio skill: In short, they’ deal exclusively

with qualifications as an airline pilot, not a single one of Which has

been the subject of respondent's orders in this case. .And yet by the.

- plain wording of. Section 609, the respondent's right to suspend stems.

solely from the power. to "reexamine. " Respondent has reexamined

petitioner and has not found him unqualified in | any respect to hold the

rating for: which he was a examined.

ad “

7 But it he found that he violated certain provisions of the regula- |

tions, and despite the availability of: ‘the: penalty provisions of the Act,

| respondent nonetheless has ordered that petitioner be ‘punished for such

violations by a ee of his certificate. Such action meets

neither: the letter nor the. spirit of Section 609, _ and constitutes an as-

| sumption of power not delegated by Congress. Yet it is beyond question

soni > >

If it be objected that such examination is actiially Cagducted under the supervision of the Adminis -

7 , yet under respondent's own interpretation of the Reorgazation Plans of 1940, in safety matters

Administtator "is bound by the rules of the Board.” See e Respondent’ $ Brief, p. 14, in Lee v. Civil

ptt utics Board, sepia. | “Neg :

“15° |

that an, administrative agency may not einuctan a power which the statute

does not grant to it. Hannegan v. Esquire, Inc. , 327 U.S. 146 (1945);

Southern Pacific Co. Vv. sneratete Commerce Sane — U.S.

433 (1911). |

At pages 23- 24, of its brief to this, Court i in Lee v. ‘Civil Aero-. -

nautics Board, supra, respondent makes the following distinction:

- "The statute (Sec. 609) sharply distinguishes

bet ween revocation and suspension. . . Revocation thus

is for causes relating to qualification to fly, and is the

.*. *ganetion. ‘characteristically free of the punitive crimi-—

>. nal.element' recognized in Helveri ng (303 U.S. at Pp.

ey 399).

"On the other head, suspension is ‘not so limited,

but may be imposed where the ‘interest of the public

so requires' . . . This standard obviously embraces: ‘a

both remedial and ‘punitive ——. “6 +

- ‘= ’

@iowever, the respondent in making t this. distinction and claiming

‘a punishment power under Section 609 has overlooked other important os

words of the Statute. The power granted by Section 609 in cases where

"the interest of the public so requires”. is not simply to "Suspend. wen *

isa powe r to "alter, amend, modify or suspend. oe

~ Thus, if respondent is correct in asserting ; a power to punish an

airman by suspending his certificate fora period of time, it could

like wise punish hint by altering, amending or modifying his certificate:

For example, an airline pilot admittedly competent and qualified in

all respects, but who in some way had infringed a provision of the

| voluminous ‘regulations, could be punished, under respondent's theory, |

by merely altering or modifying his airman certificate So as to:remove —

therefrom his instrument rating or his rating for particular aircraft |

used by his employer. In-either event, Such action would destroy his

| means of livelihood as an airline pilot even though under his altered

airman certificate he could still pilot aircraft for other purposes.

Surely it cannot be gairisaid. that Congress intended no such possible

| 10

result to flow from the remediai wording of Section 609. Yet respondent's

theory of its power to punish under that section leads inexorably to this

_ fantastic result which is so at war with the statute as a whole. If the

- respondent feels that punishment of,an airman is warranted under any

given set of facts, then. as Congress clearly intended, ‘the appropriate

steps should be taken menial Subchapter I IX of the Act denominated

7 "Penalties".

IV.

' The punishment powers under the Act are contained

in Subchapter IX thereof, and a comparison of re-~-

lated statutes shows that Congress must have intended

_ such expressed punishment powers to be exclusive.

(a) Subchapter Ix of the Act.

if Cunesuas bil overlooked the jathosition of sanctions against

: violators of the Act, there might be some merit i respondent's claim

of a power to punish in the public interest by penal suspension. Cf.,

however, Wallace V. Cutten, ‘supra. But clearly Congress cannot be —

accused of any. such — or inadvertence.

On the contrary, Congress carefully conferred punishment powers

in that part of the Act denominated "Subchapter Ix- Penalties." This.

: subchapter (or "Title" as it was originally called) contains three sections

headed "Civil Penalties" (Section 901), "Criminal Penalties" (Section

: 902), ‘and "Venue and Prosecution of Offenses" (Section 903). In the

present case involving the safety provisions of Subchapter VI, only

Section 901 déaling with "Civil ‘Pefialties" is material to the question,

and that section reads, in pe rtinent part, as follows:

—_ =

: a) pion ees who violates (1) any provision

of subchapters V, VI, and VII of this chapter, or

any provision of subsection (a) (1) of section 181 of

this title, or.(2) any rule or regulation issued by the

Postmaster General under this chapter, shall be

subject to a civil penalty of not to exceed $1, 000.

for each such violation. Any such penalty may be

compromised by the Board or the Postmaster General,

as the case maybe... ." ?

=z respondent feels that in any given case, the violator of its safety

regulations should be punished in the public interest and as a deterrent |

to the violator and others from further violations, then Section 901 in

clear and unambiguous language provides the punishment. Here, in

contrast to the remedial wording: of Section 609, we find the familiar:

language of punishment. “Any person who violate¥. eae shall be subject

to a civil penalty..." is’ widely divergent in letter and spirit from :

"The Board may . . . reexamine any airman, and. . : suspend, in

_whole or iw part, any . . . airman certificate . . . if the interest of

the public so requires aa

0 : @ ©

Respondent itself, in the past, has seemed clearly to rec: ygnize . =

the force of petitioner’ ~ contentions. In case after case, where a civil

penalty had been previously imposed for violation of the regulations,

but where the pilot's qualifications were not at issue, the respondent —

has dismissed proceedings under Section 609 with no action taken to

suspend the offending pilot's airman certificate. ‘See, for example,

E. W. Condit, 13 CAB 458; C. T. Willock, 13 CAB 326;C. J. Tindel,

13 CAB 465; Joel ‘Eck, 13 CAB 408; R. S. Jones, 13 CAB 470; Peters,

5 CAB 346; Davis, 5 CAB 183; and J. C. McKenzie, 13 CAB 461.

the McKenzie case, after finding that the pilot had operated his aircraft

"in a careless and reckless manner so. as to endanger the lives and property

: of others" and that the pilot had paid/a ear civil penalty, the ——

concludes:

elas : as

Ors

- the most time- honored rules of statutory construction.

| &

18°

_T, That in view of the above-mentioned civil penalty, _-

the public interest does not require that the Civil Aero-

- nautics Board take any action against respondent's .

private —_ certificate at this time." -

” See, further, Reid, 5 CAB 4 where peenerenry found "serious"

violations of the regulations but in view of the pilot's expe rience and

qualifications, it dismissed. the complaint and recommended that

appropriate steps be taken to impose upon the respondent a civil senaity

' in an amount commensurate with the gravity. of the offenses which he

had committed. | NS ) ee ot aus a2 ee

- Also, on. many occasions, the respondent has progerty exercised

: its true’ remedial powers, ‘without attempting to punish under Section

609, in cases where the: facts demonstrated incompetency or lack of

flying proficiency of the pilot, and has suspended the airman certificate

until such time as the holder had completed additional flight instruc- ae

tion and study and retaken flight tests and written examinations. See,

' for example, Francis C. Bethell, 13 CAB 28; George Law, 13 CAB 263;

Malcolm Riess, 13 CAB 300; Henry Line, 13 CAB 308; Floyd P. Klee,

13 CAB 435; Jack N. Neal, Dkt. No. SR3- 1563 (September 10, 1956).

and, On like principles, suspending air. carrier operating certificates ©

until qualifications proven, Alaska Airliges, Inc. , 13 CAB 495; Aviation .

‘i Corporation of Seattle, 13 CAB 526.

rt The series sol Board actions discussed immediately above demon- |

strate - ‘a proper regard by the tribunal for its limited powers under — of

the statute. But to use its remedial powers of suspegsion under Section

609 as a ‘weapon solely of punishment is. highly improper and violates .

2 |

Furthermore, with regard to the adminjstrative power over com-

promise of fines, such as granted to respondent in Section 901 (a),

Supra, the possibility of. abusing the power by a threat of ‘license suspen-—

sion proceedings nas been pointed out by the Attorney ‘General's Com-

mittee on Administrative Procedure:

o | 19.

"The potentiality of. abuse is always present as

long as permittees dread.the mere possibility |

that suspension proceedings may be instituted.

_. Such fear provides a potent inducement to settle

_ cases, particularly if the compromise figure is

_ 80 small that it occasions no greater expense than

would be involved in the defense of suspension ~°

_. proceedings. The temptation to solicit settle-

ments even of cases where the Administration's

case is weak must be almost irresistible under

| _ guch psychological conditions." Sen. Doc. No..

ae Cayo 186, 76th Cong. , ‘3rd Sess. (1940) Part 5, p. 14..

It would certainly seem that any. affirmance of ne respondent's as-

. ser tion of power to suspend purely punitively, so that the’ licensee’ s

| proof of. competence would be irrelevant, can only serve to increase

the in.terrorem use of the civil penalties ‘settlement procedures. On

the other hand, if the. ‘suspension power granted in Section 609° is |

restricted, as it properly should be, toa reexamination of fitness to

exercise his airman rating, the. competent: pilot need no longest’ ‘dread"

suspension as a possible double punishmatit for an alleged violation of

the regulations and may devote his energies to defending against the

; assertion of penalties under Subchapter IX. Such a holding ‘would

a tend to remove the "temptation" to solicit settlements of. "weak" cases |

which gave concern ‘to the” mtoraey General's Committee.

(b). Comparison of Important Related Statutes. i

A well- known aid to Statutory construction is the rule permitting.

the court to examine other enactments by the same legislature in related

fields of government. activity for enlightenment as to the legislature’ s

purpose and intent in a statute under: construction. See Boston Sand Co.

U.S. 106 (1947); Einstein v. Sawhill, 2 age: D: °C. 10 (1893).

The merchant: marine inspection service e dating from 1852, repre-

sents "perhaps as thorough a system. of administrative control as is

pee ahy whe re in American legislation. " Freund, ’ Administrative

— =,

‘ Powers Over Persons and Property," The Univ. of Chicago Press

(1928), pp. 354- 5. For many years and long prior to the passage of

_ the Civil. Aeronautics Act of 1938, an' administrative agency of the

United States government ° has performed the function of issuance, | =

suspension and revocation of licenses and certificates of merchant

marine officers and seamen. ..The present Congressional statute

granting these powers was enacted in 19114. and reads, in pertinent

- part, as follows:

"In any investigation of acts of incompetency .

ormisconduct or of any aét in violation of the pro-

visions of title 52 of the Revised Statutes or of any

of the 1 the regulations issued thereunder, committed by —

any. licensed officer or any holder of a certificate

Of service, the person whose conduct is under in-

_ vestigation shall be given reasonable notice of the —

time, place, and subject of such investigation and

+ an opportunity to be heard in his own defense. The

: whole record of the testimony received by such in-

vestigation and the findings and recommendations ©

shall be forwarded to the Commandant of the Coast _

_, Guard, and if that officer shall find that such licensed

, officer or holder of certificate of service is in-

__ competent or has been guilty of misbehavior, negli-

- . gence, or unskillfulness, or hag endangered life, or

has willfully violated any of the provisions of title 52

of the Revised Statutes or any of the regulations issued

thereunder, he shall, in a written order reciting said

findings, suspend or revoke the license or certificate

of service of such officer of holder of such. certificate.

_.. . ." (Underscoring Supplied) R.S. 4450; Mar. 3,.

1911, c. 231, Sec. 291, 36 Stat. 1167, as amended

May 27, 1936, 49 Stat. 1381: 46 U.S.C.A. 239 (g).

3 |

It has been variously known as the Steamboat Inspection Service, the Bureau of Navigation, and

. Most recently as the Bureau of Marine Inspection and Navigation. See Monograph of the Attorney

General's rar wr on Administrative Procedure, Senate Document Na. 186, 76th Cong.., es Sess. ,

Part 1°, p. 2. The functions are now performed by the United States Coast Guard.

Amendments immaterial to the present discussion have been made, and the Reorganization Plans

transfeired the enforcement functions to the Coast Guard.

ss |

This statute (R. s. 4450) has been quoted in. deta solely in windlass

that. the Court may have the benefit of reading the type of language em: |

~ ployed by Congress when it intends to delegate both remedial and puni- |

tive powers. It will be observed that the wording of the merchant. marine

statute clearly coufers the power to punish by suspension or revocation

where the administrative agency finds that the licensee "has been guilty ,

of misbehavior, negligence. . . or has willfully violat d-any of the

provisions of title 52..." This. is in striking contrastito the remedial -

language of Sectton 609 where the respondent is only empowered to

a "reexamine" an airman and to suspend his certificate’ "if the interest

| |

of the public so requires. “ Since R.S. 4450 long antedated Section 609,

—. the inference is inescapable that had Congress truly intended to delegate

punitive power in the later statute, it would have used wording at least

comparable to that of its earlier statute. But: this Congress did not

do. Instead it used strictly. remedial language in — 609. and later

| conferred penal powers ‘in Sections 901 and‘902. "“ |

It. is significant, also, ‘that R.S.. 4450 has been criticized tor

SO combining both remedial and punitive powers. The Attorney General's

Committee on. ‘Administrative Procedure, which in 1940 made a com- |

prehensive Study for the Senate of administrative procedures, . had this —

to say about R.S. 4450:

"The oniy ein provided by statute for

punishing offenses of officers and seamen is the

Suspension or revocation of licenses and certifi-

cates. Undoubtedly, this sanction is the proper

one for cases involving incompetency. . . The.

purpose of conferring the power of revocation or

suspensfon of licenses or certificates upon the. _

Bureau was to permit the. Bureau to weed out the

iricompetents.'! (Underscoring Supplied) Mono-

graph of the Attorney General's Committee on |

Administrative Procedure, oupra; Part 10, Pp. 20.

_ The Committee goes on to raise the question of whether i in en-

forcing discipline the "more appropriate sanction" is not the imposition

| associated with the power to punish for wrongdoing. See, for example,

(22.

_ of fires. It is submitted that Congress answered that ‘Question in the

affirmative by the statutory. scheme employed in r the Civih Aeronautice

Act of 1938. See Section 901. - ee a \

Detailed consideration win been given to R.S. 4450 ime, so

far as counsel have been able to ascertain, it is the "grandfather

‘statute in this field. It would unduly lengthen this brief to give like \ \

consideration to ali analogous. Statutes covering other administrative. Le

. agencies. It if believed sufficient merely to refer the Court to several ©

of the license suspension and revocation powers ératted to other agencies \,

in all of which, unlike Section 609, Congress specifically used language

. Federal Communications Act, as amended, 47 U.S. Cc. A. ‘Sec. 303,

c :

48 Stat. 1082 (authority to suspend whére licensee has "violated"" the es

Act or regulations, "willfully. damaged" radio apparatus, "transmitted

false or deceptive ‘Signals, "' etc. ); Securities Exchange Act of 1934,

15 U.S.C. A. ‘Sec. 18s, 48 Stat. 898 (power to suspend where licensee

. . has violated” = Act or regulations. : Seas ee pera Poa

‘Clearly, therefore, if Congress had niahane Section 609 stiould

be used by respondent to punish a "violator, " it would have used the |

punishment language found in so ‘many other related statutes.

In the. preceding pages of this brief, _we submi: it has been éstab-

- lished that the suspension orders of respondent herein constitute the —

imposition purely of a penalty, Ssitice admittedly petitioner’ Ss: qualifica-

: tions are not, at issue. Cf. Mansfield Journal Co. v. Federal Communi-

cations Commission, 86U.S. App. D.C. 102, 180 F. 2d 28 (1950).

This being so, the respondent is here attempting to‘use the remedial o

: provisions of Section 609 as a means of depriving petitioner of his

Statutory. right of trial wed jury where punishment for a —— is the

sole objective.

~~ o

‘ie 903 (b) ( 1) of the Act provides, in n pertinent part, as :

a :

follows:

: Any civil. penalty imposed under this chapter

__.may be collected by proceedings in persondm against

- the person subject to the penalty . . . Such proceedings"

shall conform as nearly as may be te civil suits in|

veges. except that either party may demand trial :

‘b f any issue of fact, if the yalue in controversy

oe $20, ‘and the facts so tried shall not be re- ;

examined other than in accordance with the rules of.

the common law.’. ." (Underscoring Suppling) |

Thus, ‘tie | statube. clearly grants petitioner the right of trial by

jury where a. penalty imposition is sought. Had Congress not so pro- —

vided: in Section 903, then it seems. clear that a serious question of .

: constitutionality would be involved. ‘See. District of Columbia v.

; Colts, 59 App. D.C.. 224, 38 F. 2d 535,. aff'd 282 U. S. 63 (1930) in

\which Colts was held by this Court. and the Supreme Court to be con- __

me stitutionally ‘entitled to a jury trial on a complaint for violation: of the:

District of Columbia Traffic Act, which complaint. contained language

(operating : a motor vehicle "recklessly. . . $O as. to endanger property

and indiv iduals'') remarkably’ similar to the language Of the complaint

. herein. (JA. 3-4). | pe A | :

| However), since Congress specifically provide for trial by jury a

in penalty cases in the present Act,. the constitutional uestion need

‘not be reached. In construing respondent's powers under Section: 609

against the background of the statute as a whole, and in avoiding any

question of unconstitutionality, it is clearly pertinent for the Court 2

to bear in mind the Congressional grant of trial by jury in the penalty

provisions of the statute. Thus viewed, Section 609 is clearly seen as

a purely remedial statute granting powers in the public interest to

‘inquire into fitness and qualifications. Respondent's. use of it.as a

| weapon ‘of punishment nm an administrative tribunal evades. the. Con-

' -gressional grant of trial. se jury in a penalty case. | Section 903 (b) (ay =

Hie | ey

pee ray “oa” : . . 4

| yt _ CONCLUSION ee

| _In view of the ‘ones: this Court should set aside respondent's

Supplemental Order of July 31, 1956 and the Order denying Petition for

Reconsideration dated August 9, 1956, whereby respondent attempts |

to punish petitioner by. suspending his airman certificate. Anaf- —

firmince. of the asserted power would be. "not a construction ofa

statute, ‘but, . in effect, an enlargement of: it" which "transcends the

Yadicial function. ” Iselin. Vv. United States, 270 U. S. 245, 250.

oe échanttind,

Pee LLOYD FLETCHER ©

eis a - National Press Building

Washington, D.C. ok,

se CRS Re ee ".- F. HAROLD BENNETT

| . | © §5th Street and Cicero Avenue

ee, “8 a as Chicago, Illinois ©

i ar ee Westie oc Fm eae a Attorneys: for Petitioner

3 \

Sh a

- UNITED STATES COURT OF APPEALS

| _ For The District Of Columbia Circuit!

No. 13,553

( - SIDNEY W. WILSON, -

| Petitioner,

‘ ; V. . F

| CIVIL AERONAUTICS BOARD, -

| | ; Respondent.

: oC :

PETITION FOR THE REVIEW OF ORDERS OF THE

CIVIL AERONAUTICS BOARD

: . ‘ FS .* 4

JOINT APPENDIX |

(i)

‘ INDEX |

: | Record Appendix

3 7 Page Page

Ns ey a = ey a | a

Order approving ‘stipulation , i | ee

_Compia int i ee oe. grok (aera. ake ‘ ss | 3

Initial Decision issued October 18, 1959 ae 389 3)

C.A.B. Opinion and Order S-728, dated as eA

March 28, 1956 eee : . rigx.s 450 22°

_ Supplemehtal opinion and order on recon- — | | :

| sideration, S-754, daied July 31, 1956 - ‘ 541 32

Petition for Reconsideration of Supplemental

Opinion and Order and for a Stay of | |

Execution a caer ee ; d 950 | 38.

Order S-757 denying recons sideration and granting

conditidnal stay, dated August 9, 1956 ie

/ . &n’'tne 5

UNITED. STATES COURT OF APPEALS, ee

For The District of aca Circuit

_ SIDNEY W.. WILSON,

Petitioner, °° a ee he ws

v. ea eae ; +. Fie. 38, S68:

. Se - ; ° 8 :

CIVIL. AERONAUTICS BOARD, 3

Respondent. '

: :

STIPULATION |

Subject: to approval iy the Coan, the ‘einai ‘hereby stipulate and |

agree as follows with respect to the issues, the matters to be contained

in the joint appendix to briefs, and the dates for the filing of briefs and -

the joint — to briefs: 7 -

/ ‘fe :

- Issues ; Siac

Petitioner, an airline. pilot, seeks review (1) of a Board order

(S-754). which imposed, as a deterrent Sanction, a ten- -~day suspension

of his pilot license for violations of the Civil Air Regulations, and (2)

of a Board order (S- 757). denying reconsideration of the suspension order.

The single issue is stipulated to be: :

Whether, in circumstances in which the Civil Aeronautics Beard

does not. find the pilot to. be unqualified to fly, the. Board is empowered

under Section 609 of the Civil Aeronautics Act to suspend his airman

certificate as a deterrent sanction.

Content of Joint sical to Briefs and Use

of Unprinted Portions of Transcript

It is stipulated that petitioner shell cause the foblowing to be

printed as the joint appendix to briefs: ce ae

1. This stipulation and the order of the Court approvirig the

a stipulation. < 2 ae Be aes as

2. Complaint (pp: 324 of transcript).

3. ‘Examiner’ s Initial Decision (pp. 389 - 399 of transcript).

. fe B. Opinion and Order S- 728 (pp. 450- 461 of transcript).

5. C. ‘A.B. via race — and Onter 8- 754 (pp. 541- 548

— teaneenied" :

6. Petition for recansideration (pp. 550-553 of transcript).

7. C.A.B. Order S- 157. (pp. 557- 558 of transcript).

- The foregoing matters are believed to be adequate for full presenta-

tion of this case. Itis stipulated and agreed, however, that either |

party on brief | or argument, and the Court in reaching its decision, may -

2 refer to ard rely upon | any portion of the unprinted transcript of record’

to the same extent and effect as’ if such portion’ of the transcript had |

. been- printed, ‘it being understood that the Court may order additional.

printing if it deems such printing to be necessary. |

eee: Ill |

Time ioe Filing Briefs and Joint Appendix.

“

The time for r filing briefs and the joint appendix t to. briefs shall

be as follows: 3 ) chee

(1) Petitioner’ s principal brief, together with the joint appendix

| to briefs, will be filed on or before December 28, —

(2) Respondent's brief will be filed on or ‘before February i,

1957.. | me ; vere hae

(3): Any reply brief by petitioner \ will be filed within ‘fifteen days

after the. filing of reapupeent's brief.

_ Lloyd thins: ny

Attorney for Petitioner

‘Franklin M. Stone’ — i

Attorney for Respondent

Before: Bastian, Circuit Judge, in Chambers.

Upon consideration of the joint motion of petitioner and respondent

ae dispense witha prehearing conference in the above case and for ap-

2 proval ofa stipulation as to the issues and to the manner of filing the

| briefs and joint appendix, it is : 3

ORDERED that the prehearing conference now scheduled for No-

vember 15, 1956, be dispensed: ‘with, that the stipulation be approved,

and that the Clerk ae) and he is hereby, directed to file said stipulation

forthwith. ie Sak e | ia toe | 7 )

| It. is FURTHER ORDERED that 2 stipulation regarding the issues

and manner of f iling. briefs: and the joint appendix be printed in the joint.

appendix and unless modified as further order of this Court shall control

_ further proceedings. in this case. co oe : eee

Dated: November'14, 1956. 7 | oe Vee.

.’ BEFORE THE CIVIL AERONA UTICS. BOARD

1A selene eee ‘Washington, D.C.

~ Rec'd Dec. 31, 1954

FRED B, LEE * Gar :

Administrator of Civil Aeronautics, Complainant, - ant .

: eke. Sore | ae ae a Docket No. SR 2188 © |

Sidney W. "Wilson, Respondent | = |

OO Se Ce Oe a:

Complainant brings this action under the provisions of the Civil.

me Aeronautics Act. of 1938, as amended (52 Stat. 973; 49 U.S.C. 401 et

seq.), and = 7? 7 eos eae, ee

’ | 2

Respondent, during all times mentioned herein was the holder of |

Airman Certificate No. 26768 with an Airline Transport Pilot it Rating.

| On or about July 6, 1954, Respondent was. peer of a : :

Douglas DC-6B aircraft, registration No. N8223H, operated in scheduled

air transportation as National Airlines Flight 611 1/6.

none . ya |

; ocisssitent while pilot - in-command of said. Flight 611/6, on

“* ‘July 6, 1954, was cleared for and commenced an instrument: approach

to Runway 28 at Greater Pittsburgh Airport, Pittsburgh, Rennsylvania.

Respondent, at the date and place previously alleged, and after he

‘ failed to land ‘on Htnway 28, did not execute the missed approach procedure |

~~)

“ an “specified in the standard instrument: pproach procedure: for Runway 28,

oF that’he ‘did not climb to’2, 500 feet on a course of 277 degrees and pro- —

— ceed to the Clinton Radio Beacon, ats violating ee 40. 364 and

m 46 of the Civil Air Regulations. on | ne

“At the date and place previously alleged, and after Flight 611 had

failed to. land on. Runway 28, Respondent did not insure that a continuous

radio watch on the appropriate radio frequency, was maintained, in vio-

- lation.of Section 60. 47 of the Civil Air.Regulations, ~

Ne eee a Vi. | |

Respondent, in operating said aircraft as heretofore alleged, :

’ operated sa id aircraft in a careless and »eckless manner‘so as to en-

danger the lives and property of others,, armen’ violating Section

60. 12 of the Civil Air Regulations.

ea | | vil “ |

Respo ent, in operating said aircraft as heretofore ‘alleged,

| failed to exercise the degree of care, caution and judgment required of

~him as thé holder of an Airline Transport Pilot Rating. ~

WHEREFORE, Complainant requests that, in the public interest, the

A irline Transport Pilot Rating of Respondent be suspended®’ ~~.

| /s/ J. M. Pikeman :

$5 for Robert P. Boyle, General Counsel

| | ‘Civil Aeronautics ‘Administration )

, Dated this sist Day of December, . 1954 | .

» . "i

x oe x .* : i * ‘i . *

* ‘ a

—- . , . . ek hi

. . . 7 ~ n Pe ~ :

—— : . é , e +.

[Rec'd Oct. i9, 1955, Civil Aeronautics Board]

389 ee an + INITIAL DECISION

i R : » 3 : (Hearing) ae ° - | P

ISSUED: October 18,1955 ©

TO: _- Sidney W. Wilson, Respondent (Registered)

~© 6095 S.W. 128th Street

Miami,. Florida

Ralph L. Harkenrider, penne for Respondent ,

Air Line Pilots Association

55th Street and.Cicero Avenue

Chicago 38, Illinois °

Ned K.- Zartman, Attorney

Civil Aeronautics Administration . |

. Sydney J. Schneider, Attorney

Civil Aeronautics Administration

Robert P. Boyle, General*Counsel for the

Administrator of Civil Aeronautics

This proceeding was brought under authority of Section 609 of the Civil

Aeronautics Act of 1938, as-amended. The Complainant filed.a complaint

with Feapect to the airfing transport pict rating held pe ite mma

60. 46. and 60. 47 of the Civil Air Regulations and requested Respondent's

airline transport pilot rating be suspended. tg aa

| The compla int was duly served on Respondent by peglatered mail.

Respondent answered the complaint and requésted an oral hearing..

Pursuant to F ypondent's written request and after adequate notice- >»

served upon the parties, an oral hearing was ‘held before the undersigned _ ; ,

Hearing Examiner on. March 17, 1955 in Pittsburgh, Pennsylvania. Mic

Ralph L. Harkenrider; Attorney, Legal Department, “Air Line Pilots eg

Association, Chicago, Illinois, appeared on behalf of Respondent. Mr.

_ Sidney J. Schneider and Ned K. ‘Zartman, General Counsel's Office,

Civil Aeronautics Administration, Washington, D.. C:, appeared on

behalf of Complainant. — ee a

eS ~The complaint charges Respondent, the holder of an airline trans- r

- port pilot rating, on or about July 6,. 1954 (Para. Il) was pilot in command

_ of a Douglas DC-6B aircraft, registration No. ‘N8223H, operated in ©

scheduled air transportation as National Airlines' Flight 611/6; (Para. |

. In while pilot in command of said Flight 611/6 was cleared for and com-

menced an instrument approach to Runway 28 at Greater Pittsburgh

A isport, Pittsburgh, Pennsylvania; (Para. IV) after Respondent failed

to land on Runway 28, he did not execute the missed approach procedure

specified in the standard instrument approach precedure for Runway 28,

in that he did not climb to 2,500 feet on.a course: -of 277 degrees and

_proceed to the Clinton Radio Beacon: (Para. -V) after Respondent had

‘fa iled to land on Runway 28, he did not insure that a continuous:xadio |

watch on the appropriate radio frequency was maintained; (Para. vD

‘operated the aircraft ina careless and reckless manner so as to endanger

_ the lives and property of others; and (Para. VII) failed to exercise the

7 degree of care, caution and judgment required of him asa holder of an

7 airlirie transport pilot rating. . oa =< |

r. Respondent answering the complaint adm its the ajlegations contained

in Paragraphs I; I and II. As to the allegations contained in Para-

_ graph IV, ‘Respondent admits that on the date and at the place alleged he

did not land on Runway 28 and he did not execute the missed approach

| procedure specified in the standard instrument approach for Runway 28, |

in that he did not climb to 2,500 feet on the course of 277 degrees ¢nd_ ‘

proceed to the Clinton radio beacon; ‘but Respondent denies that his

fa ilure to execute the missed approach: procedure spec ified could be con-

the Civil Air Regulation As to the allegations contained in Paragraph

strued to be or was sagt violation of Sections 40. 364 and 60. 46 of

V, Respondent denies that on the date and. place and after Flight 611/6

had failed, Respondent did not insure that a continuous regular watch

on the appropriate radio frequency was maintained. Respondent denies

; the allegations contained in Paragraph VI that he operated the aircraft

in a careless and reckless’ manner and denies the allegation conta ined

in Paragraph VII that in operating Flight-611 /6, he failed to exercise a

degree of care and caution required of him as a holder ot an airline

- transport rating.

: nF , De |

. The fecord consist s of the oral testimony ot eeniadee. William

R. _ Andrews, ‘Walter A. Jensen, Cary Euwer, and the documentary ex-

“hibits Offeréd by the parties. Respondent objected to the admission of

Complainant’ s Exhibits’ 1, 2, 3, 4. and 5,. in that they were not material

and relevant to the issues. ‘Respondent's objection has been considered.

As Respondent is charged with fa iling to execute the missed approach

procedure specified in the standard. -instrument approach procedure for

Runway: 28 at the Pittsburgh Airpc rt, the Examiner is of the opinion that.

these exhibits are material and rele vant to the allegations of Paragraph

IV of the complaint and, therefore, Respendent's objections are ae |

and the exhibits, admitted os evidence in the record.

_ ‘The recorded conversations on July 6, ‘1954 between the pilot of

Nationals’ Flight 611/6 and other dilets of spec ified aircraft and the —

Civil Aeronautics Administration Traffic Controller in the Greater.

‘Pittsbuggh Airport control tower between the hours of O701E and 0806E

_ on 118. 7MC and 121. 1MC were played on the recording machine at the

391 .

hearing and heard by all. parties present. The recorded conversations’

were later reduced to writing-and submitted by agreement of counsel as —

part of .the record in this proceeding. : |

~ Respondent was pilot in command of a Douglas DC- 6B aircraft

No. N8223H operated in scheduled air transportation as National Air-

lines" Flight 611/6. The flight was conducted under an interchange 3

agreement between Capital A irlines’ and National Airlines. The flight

originated at Miami, Florida, and stopped at several places including

Washington; 7 Sad which was the terminal stop for National Airlines: :

and the interchange point. The flight proceeded over the route of Capital |

Airlines from Washington, D. C. to Detroit, Michigan.. The first. |

scheduled stop was Pittsburgh, Pennsylvania, the Site of the incident in- e

volved.” The crew was’ composea of Respondent as pilot in command;

First Officer E. Lo Gould; ; and Flight, Engineer George R. Bannister.

The missed approach procedure for Runway 28 at Greater Pitts-

burgh Airport is a part of the procedure author ized in Capital Airlines

and Natioaal Airlines operation aici ications. The missed approach -

: °

= &

procedure required Respondent to climb to 2, 500 feet or higher if di-

' - rected by ATC on the west course of the ILS ora 277 degree course.

The standard instrument approach procedure prescribed for Runway 28 .

in effect July 6, 1954 Was ‘promulgated as part of 609 of the Regulations

of the Administrator and published in the Federal Register, _February,

4, 1954. ‘Such publication, therefore, constituted constructive notice

to all interested parties.

(Fs:

—

Respondent was proceeding from Weatngn, a <. to Pittsburgh,

i Pennsylvania. ‘In the vic pity of Mt. Pleasant, Pennsylvania, Respondent

: requested and obtained from Pittsburgh Air Traffic Centroel-an-instru-— ———

ment flight rule ‘clearance. - Respondent continued toward Pittsburgh. and

at O701E, Pittsburgh Approach Control, transmitting on radio frequency

118. ™MC, cleared Resfendent over McKeesport, to the River radio

beacon. Respondent was advised that his runway would be 28. Flight |

611/6 acknowledged this: radio message on the same frequency. At

2 0705E ‘Respondent reported over McKeesport. The approach control at

. Pittsburgh informed Respondent that he had Flight 611/6 in radar con--

: tact and cleared Respondent for a straight- in approach to Pittsburgh S

‘a irport and\again advised Respondent that the runway: would be 28.

At O708E, Pittsburgh Approach Control still transmitting on 118..7MC

after giving Flight 611/6 its position in. relation to the River beacon and

the localizer course instructed. Respondent to change to 121. 1MC and.

_report when over River radio beacon inbound. At O710E, Respondent |

reported passing the River radio beacon. This transmission was made on

a radio frequency of 121. 1MC to the local controller in the Pittsburgh -

tower. The local controller on the same frequency. cleared Respondent

to land on Runway 28. Respondeni did not accomplish a, landing on Run-

way 28 on this approach. Up to ‘this point, the operation of the plane

“was routine. Respondent made a straight-in instrument approach to -

‘Runway 28 under an IFR clearance and because of the weather conditions :

prevailing at the time, an instrument letdown and instrument approach

at the airport was necessary.

| - Respondent admits in his answer and in his oral testimony given at

. -g

the hearing that he did not execute the Standard misae approach. pro-

: cedure. 7-Respondent testif ied that after the missed approach to Run- z

way 28, Flight 611/6 proceeded straight ahead for two minutes onacourse —

approximately 277 degrees-282 degr ees, climbing to about 2, 500 feet,

then made a turn of 50. degrees to the left and then made another turn to

the right paralleling the localizer course to the Clinton marker. Re-

Spondent never reached the Clinton radio beacon but circled approxi-

mately a ‘mile and a quarter southeast thereof. Respondent gave as his

‘ reason for failing to proceed to to the Cli inton marker. in accordance with

the prescribed standard missed approach procedure, the presence of

an Aero Cemmander aircraft in the immediate vic ‘inity of the marker.

Respondent contends that this fact is: substantiated by the y a transcrip-

tion of 118. TMC and that. Mr. Andrews, the radarscope opérator had no

- recollection of the Aero Commander being in “the vicinity. ‘Respondent.

through’ the cross- examination of Mr. Andrews and the direct theoretical .

testimony. of Mr. Jensen, whom he called a as an expert witness.on radar,

attempted to raise the implication that: Mr. Andrews did not properly

7 Flight 611/6 on the radarscope.or that some interference might

have been present which interfered with his observations: on the morning

| of the inc ident® Respondent reported to Pittsburgh Approach Control on

118. 7MC when he. was over McKéesport. Mr. Andrews, the approach »

~ controller acknowledged and transmitted to Respondent on the same « |

. frequericy stating that he had the flight .in radar contact. The position of ~

McKeesport was indicated on the radarscope. It was ‘evident at 07 OSE a @ <"

that Mr. Andrews had properly identified. Flight 611/6 \Mr. ‘Andrews

continued to observe Flight 61176 through the use: af the radarscope as the

flight made its approach to Runway. 28. ‘Mr. Andrews testified that Re-

‘Spondent after failing to land on Runway 28, proceeded straight ahead in

a westerly direction across the field to the western boundary of the air- :

port. At that point, Respondent Started a turn to the left and continued

turning until Respondent came ‘out on an easterly heading. Respondent |

then proceeded southeast of the field and when Respondent was approxi-

——* at the approach end of Runway 32, Respondent mode a right turn |

o 10 2 : |

and headed in the direction of Union radio beacon. Mr. Andrews illus-

trated the course of Flight 611/6 by a disgram drawn by him at the re-.

quest of Respondent's attorney. Examination of the 118. 7 recorded .

radio transmissions discloses that atjer Respondent missed his approach

_ to Runway 28, Mr. Andrews inquired as to where Respondent was pro-.

ceeding and Respondent replied that he was at Union radio beacon. 2, 500

feet in the clear and on: top. It, therefore, appears that Flight 611/6

was then proceeding to Union radio beacon. ‘Respondent did not mention.

in any radio transmission to the controller at that time that he was

circling Clinton or anywhere ‘in the vicinity of Clinton. Respondent on

being questioned by the Exam iner stated that at the time he missed his

first approach to Runway 28, he | had in his mind making the next approach

_to Runway 32. eres 5 ene —> -

With respect to the 45 to 60 daprie turn to the left a then a turn

to the right resulting in paralleling the localizer course of Clinton marker,

Respondent testif ied that he passed straight over Runway 28 after passing

the Parkway marker. Later he testified that he was slightly to the north

of the course to Clinton and a left turn was made to get back on course.

’ This should have required only a slight turn to the left in order to cor-.. :

: rect for proper course. The Parkway marker. is about 7.3/4 miles

| from Clinton radio beacon. and with Respondent climbing straight ahead

- ata normal climbing speed, he would have covered 5 miles putting’ him

about 2° 3/4 miles from Clinton at the:time the left turn was made. “Mr.

Andrews, the radarscope controller, testified that Flight 611/6 after its

first missed approach made a turn approximately 180 degrees and pro- :

‘ceeded on an easterly heading southeast of the field. It seems very un-

| likely that a 45 degree to 60 degree turn as ‘such testified to by Respon-

dent was actually taken. If at the time the flight did make the left and

right turn why was it necessary for Mr. Andrews to have aborted-the .

approach of Capital 872 or to have informed Flight 611/6 that he did not ©

know whether Respondent was coming back to land. With reference to |

the testimony of Respondent that a turn ‘n within a-radius of 1 (1/2 to e.

miles would have e resulted in tight bank, tl the Examiner is of the ‘opinion 2

. = =

393

~ nse cath te 3 Mr

— ;

that the aircraft would have turned well within the 1 ¥ 2 to 2 atten sé as.

testified to by Mr. Andrews. | oa Peis ee

Respondent further testified that at after climbing 0 on top he saw the

Aero. Commander aircraft over the Clinton radio beacon and he started

circling approximately. 1 mile to 1 1/4 mile southeast of Clinton. The

Be recora shows that Respondent did not : report this aircraft to Pittsburgh :

7 Approach Control and that he was not going to follow the’ missed approach

procedure. Mr. Andrews, controller, testified that'there was no air-

: craft in the vicinity of Clinton at the time and. that he did not receive any

transmissi ion from Flight 611/6 referring to another aircraft, Neither.

re the 118. 7MC nor the 121. iMC recorded radio transcript show that Re-.

spondent reported. after the first missed approach or any reply to such

a -report. When My. Andrews told Respondent he couldn’ t ascertain his

| intentions, Respondent in his response did not mention the Aero Comman- a

der but stated only ‘that’ he had lost the field. The recorded radio trans-

’ ‘mission shows that Flight 611/ 6 missed its approach to Runway 28’at

approximately OT13E. The Aero Commander first contacted Pittsburgh

a ti Control on 118.7MC at O714E. At that time, - the Aero Com-

mander } gave no position report or any indication that itwas, circling over -

Clinton. It would‘appear that under normal circumstances had the Aero.

: Commander been circling over an identifiable navigational facility, it

would have reported to Air. Traffic Control. “It was not until 07 18E, five

minutes after the missed approach of Flight 611/ 6, that the Aero Com-

mander reported as "just passed Clinton now."' This was a full five :

. Minutes after Respondent missed his approach. Therefore, it can be ;

inferred that the Aero Commander + was five minutes away — Clinton

when Respondent claims he saf the aircraft over Clinton. Respondent .

. testified that he did not recall whether the Aero Commander was still

over Clinton after the second missed approach. At O727E after missing

his second. approach Respondent reported that he was proceeding to ‘Clinton.

| Immediately thereafter Mr. Andréws Cleared Respondent to leave Clinton

_ ona heading of 180 degrees to. Union and. also informed him that his

traffic was an Aero Commander rs 300 on: top over Clinton. At

° cae,

- . %: : Pal

- ™

(12

07298, Respondent, after receiving the weather nen, decided to

‘ hold for improvement in the weather. Mr. Andrews then cleared me |

; Clinton. At 07 30E Mr. Andrews again. siaiiaa Reaponiiont that the

Aero Commander was holding over. Clinton. . The Aero Commander held

over Clinton until 0739E when it then: reported. it was proceeding to. Wheel-

ing, West Virginia. . : Thus it appears that Mr. ‘Andrews' recollection

_ Nas accurate when he testified that there was no aircraft at the time Re-

-Spondent missed his approach to Runway 28. It is obvious that Respon-

dent's testimony must be based on the recollection of seeing an Aero.

Comsmnuiee or hearing about an Aero ———- over Clinton after

fees his ‘second missed approach. and not after the first missed approach. -

Respondent attacks the’ credibility of Mr. Andrews' testimony on

ground, that Mr. Andrews' memory was poor on the day of the hear ing; °

that he testified without notes after an elapsed period of eight-months; ,

that. he did not see the aircraft’ physically. which was represented on his

_radarscope qs a dot approximately one-quarter of an inch in size; and,

that Mr. Andrews did not explain such radar phenomena as ‘sub-clutter,

z ground-clutter, precipitation interference, tangential courses and

merger targets. Respondent. contends that there was no one present to

corroborate Mr. Andrews' observations. on the radarscope. The.record

; shows that Mr. ‘Andrews was qualif ied in 1947 as one of the first radar

controllers in the country. Since that time. he has ‘had extensive experi- |

ence as a radar controller. Mr’ Andrews testified that he was not a

" radar engineer but’ strictly a controller whose duty is to observe the © |

radarscope. ‘ Respondent upon cross- examination of Mr. Andrews at- .

394 ° tempted to cast doubt on Mr. Andrews' observations of the radar-

eae ‘scope. Respondent also further attempted to discredit Mr. ‘Andrews ;

through the testimony of Mr. J ensen whom he called as an expert witness :

to explain the radar phenomena of sub- -clutter, gr8und- clutter, precipi- =

: tation interference, tangential courses and merger taggets. | Mr. Andrews”

did not attempt to describe these technical engineer ing terms and no |

attempt was made by Complainant to qualify Mr. Andrews asa radar

a : TAEre

engineer. ‘As " radar operator, Mr. Andrews testified that he recog- -

nized such factors as: sub-clutter, and other interferences to be considered

in ‘controlling aircraft with the use of radar. _ Mr: Andrews ‘in his testi-

mony stated that none of these factors were present at the time of his :

observations of Flight 611/6 on July 4, 1954 and that. there was no inter-

ference with his observations and control of aircraft under his jurisdic- ,

‘tion at that time. _ Although there is always the possibility of- inter - :

ference or misleading indications on the radarscope, there is no testi-

mony in the record to indicate that these factors existed at the time of :

the incident alleged in the complaint. There was no malfunction of the |

electronic equipment then being used and Respondent produced no evidence

that any of the phenomena mentioned were. actually present at the time of

Mr. Andrews' observation. There was a man in the radar shack with :

Mr. Andrews working liason but he was not observing radar. ‘The duties -

_ of this man were to obtain flight data and weather clearance from the Air .

: Traffic Control Center. While there was no. person to corroborate Mr.

Andrews’ testimony, sufficient corroboration can be found in the 118.7

MC and 121. 1MC recorded radio traascriptions. The Examiner closely. |

| observed Mr. Andrews' personat demeanor. and his manner of testifying

_ and in the opinion of the Examiner, Mr. Andrews' testimony is credible

and of substantial, ‘reliable and probative value. - There is no doubt in

the Examiner’ 'S mind that Flight 611/6 followed the flight path poy

observed’ by Mr. Andrews as controMer on the radarscope.

_. .With respect to the allegation that after Flight 61 1/6 had‘failed to. :

: land on. Runway 28, ‘Respondent did not insure thata continuous radio .

watch on the appropriate} radio frequency was maintained, the written . .

‘ transcriptions of the tape recording reveals the radio coinmunication

between Pittsburgh Approach. Control (118. TMC) and tower controller. =

(121. 1MC) and the Respondent. Flight 611/6 contacted Pittsburgh Ape

; proac Controller at O701E and was cleared over McKeesport radio =

beacon’and advised that approach for landing would be on Runway 28.

At O705E Respondent reported over McKeesport. and at that time the

Pittsburgh Approach Controller reported that he had the’ aircraft in

elite

‘radar cbntact. At 0708E, Flight 611/6 was. informed by Pittsburgh —

- ABor

ch Control that it was three miles east southeast of River beacon

and ‘approximately, 1 3/4 miles south of the localizer course. The air-° |

craft was requested to change to 121. 1MC and this transmission was owe

acknowledged by, Respondertt. On 121. IMC, Respondent reported at.

O701E, that he was passing over the River beacon. At 071 3E, the tower

controller asked Respondent whether he had just passed over the airport

and immediately thereafter he requested Respondent to change to approach

a? control 118.1MC and Respondent acknowledged the transmission. During . -

the next two minutes betweeri O713E and 0715E, four. calls: ‘were made to

Flight 611/6 on the 121,.MC frequency.. No response was received

. from Respondent. The 118.7 frequency transcript shows that at 0713E

‘three calls were made by the approach control to Flight 61 1/ 6 and during .

the period. 0714E to 0715E three additional transmissions were made on —

that frequency, to Respondent's aircraft. Several calls were made

' simultaneously on both:118 MC and 121. 1MC. At 0715E, Respondent

395

called the Pittsburgh Approach Control. On the approach to Runway 28,

y ‘Respondent stated that he was on'the tower frequency 121. IMC and |

had his radio tuned to that frequency duri ing the approach and on the. first

pull- -up after abandoning the approach. The Respondent was contacted ~

by the tower controller on 121. iMC immediately after his approach was

missed and was requested to change to 1 18.7 MC and Respondent acknow-

; ledged that transmission and thereafter Respgndent was called by approach

control on 118. TMC. He claims that he did not hear the Approach Con- ,

‘trol transmission becaues he was being called on the wrong frequency.

However, the record shows that Respondent was called three times on

: 421. 1MC frequency and three times on 118. MC and on two occasions

‘calls were made simultaneously on both frequenci ies. ‘Finally, Respon-

_ dent replied on 118. TMC ‘at. O715E. _ The record, therefore, shows it was

) * two minutes from the time when Renpnnted: acknowledged a request te

‘change frequencies to the time when he finally replied (0713 1/4 to

» OTs } /4). _ Respondent's contention that he was called on the wrong

” trequency and inet he only failed to respond to the Approach Control

‘ ¢

»> .

° iS

I “*

transmission for ‘the scant period of 1. 1/4 minutes, ‘is not supported by

the record, neither is Respondent’ 's contention that he was too busy to

reply supported by the record, In the cockpit with Respondent at the |

_ time was the first officer and flight engineer. The first officer was 3

flying the aircraft. It appears that Respondent's job was to handle. the

~ radio communication. During the time when the Respondent’ s@ircraft

passed over the field, he acknowledged the tower coritrol request to -

he was in continuous radio contact with. Pittsburgh Approach Control,

2, Further, the récorded transcript of the ‘radio communications during

tw other missed approaches shows he was in radio contact continuously.

His radio was not malfunctioning. |

Flight 611/6 was making a straight- ‘in instrument approach ‘to

‘Runway 23 under an IFR clearance. Because of. the. weather conditions

prevailing at the time, an instrument letdown and instrument approach

at the airport were necessary. |

The first issue for decision is whether Respondent \ was required

to comply with the missed approach procedure specified in the standard |

instrument procedure for Runway 28 at the Greater Pittsburgh Airport

as set forth in the operation ‘Specifications of National Airlines and

spondent's failure to exectte the missed approach procedure was in

-viélation of Section 40. 364 and 60. 46 of the Civil Air Regulations.

~ Section 40. 364 of the Civil Air Regulations reads as follows:

“When an instrument approach is necessary, the instrument

. approach procedures and the weather. minimums author ized

‘in the operation specifications shall be adhered ad

The missed approach procedure, which is a part of the standard’

instrument:approach procedure authorized in Capital Manion and Na-

tiona¥-Airlines - operation specif ications, required Respondent to climb |

to 2, 500 feet (or higher if directed by ATC) on the west coast course

of the ILS ora 277 degree course to Clinton radio beacon after missing

_ an approach on Runway, 28 at the Greater Pittsburgh Airport. Section

switch to 118, TMC frequency and dur ing his first approach to Runway 28

| Capital Airlines. and prescribed by the Administrator; and whether Re- |

* 16 ;

60.46 of the-Civil Air Regulations reads as follows:

396 “When instrument let-down to an aigport is necessary, a

) ‘standard instrument approach procedure prescribed for

that airport by the Administrator shall be used, unless:

(a) A different instrument ‘approach procedure

specifically authorized by the Administrator ts .

used, or

- &

(b) A different instrument approach procedure i is

authorized by air traff ic control for the particular |

: approach, provided such authorization is issued in’:

accordance with procedures approved by the Ad-

ministrator. . |

NOTE: Standard instrument approach procedures

| _ prescribed by the Administrator are published ;

in the CAA Flight Information Manual, for sale

by the Superintendent of Documents, U.S:

Government Printing Office, Washington 25,

D.C. Such procedures have been carefully

investigated with respect to pattern and ter-

rain clearance. Safety would not permit ‘several

aircraft to make simultaneous use of more than one

| instrument approach procedure unless such opera-

ie - tions were controlled." : |

The missed approach procedures are part of the standard instru-. :

ment approach procedures prescribed in Section 609. 11 of the regulations 1

of the Administrator. It appears from the language of the regulations

that no. exception is provided. However, Section 40. 360 and.60.2 of the -_

- Civil Air Regulatioris permits a deviation from prescribed procedures 7

in an-emergency situation. Respondent admits that he did not proceed

‘to the Clinton radio beacon after the missed approach to Runway 28

in accordance with the missed approach procedure for the: ae that

an Aero Commander aircraft was circling over Clinton. There is no .

evidence in. the record that Respondent at any time declared. an emergency.

~ existed. Nor is there any-evidence in the record to show that Respondent

reported to Pittsburgh A pproach@ontrol or the tower controller that he

was not proceeding to Clinton radio in accordance with prescribed pro-

cedure. Therefore, Respondent's only reason for not executing the ©

m issed approach procedure after the first missed approach to Runway 28 ©

. is the presence of an Aero Commander aircraft over Clinton radio

beacon. -Respondent is not supported by the record in this contention.

‘ ‘The record clearly shows that the Aero Commander aircraft did not

reach the Clinton radio beacon and did not report his position as being in.

the vicinity of the beacon until maahy five minutes after Flight 611 missed

its f irst approach to Runway 28. In the opinion of the Examiner, it is

; apparent that. after Flight 611/ 6 missed its first approach, Respondent

then made up his mind to make. his second approach to Runway 32 and —

: disregard the prescribed missed approach. procedure for Runway 28.

Respondent did not actually see the Aero Commander until his second —

approach to Runway 32. In the.opinion of the Examiner, there is no

~ evidence to Support any justif ication for Respondent's failure to execute

_ the missed approach procedure for Runway 28. The Examiner concludes

' from the evidence of record that Respondent should have followed the

307.

prescribed missed approach procedure completely and that Respondent's

failure to climb to 2, 500 feet on a course of 277 degrees and -proceed to

the Clinton radio beacon after failing to land on Runway 28 after his ae

first approach was in violation of. the provisi ions of Section 40. 364 and

60. 46 of the Civil Air ee as charged in oe IV of the

complaint. 2 be : ait

The second issue for decision is whether Resporident, ‘the pilot i in

‘command of Flight 611/6 after failing to land on Runway 28 did not in-

“sure that a continyous radio watch was maintained as Provided by Sec-

tion 60: 47 of the Civil Air Regulations. |. ° Seetire :

Section 60. 47 of the Civil Air ‘Regulations reads as ia |

"Within. control zones and control areas the pilot in

- eommand of the aircraft shall ensure that a continuous

watch is maintained on the appropriate radio frequenci ies

< are : | se é

and shall report by radio as: soon as sinenthae the . tt ascend

iia _time and altitude of passing each designated reporting:

point, or the reporting points: specified by air traffic -

control, together with weather ‘conditions. which have

- not.been forecast, and other information. pertinent to

- the’ safety of flight. | a |

NOTE: Designated. reporting, points are noted in publica d

tions: of aids to air navigation. Control of air traffic is

predicated on knowledge of the position of aircraft in

flight. The reporting of- unanticipated weather en- 2

| countered en route such as icing or extreme. turbulence

_. May be of importance to the safety of other aircraft antici

_° pating flight within the area."' |

There is no dispute that Flight 611/ 6 was , operating ina control

zone at the time of its approach to Runway 28. Part 60, Air. Traffic

Rules, is applicable to all civilian aircraft operating anywhere in the

- United States. Therefore,. Respondent was required to insure that a

. continuous watch is maintained on the appropriate radio frequency.

The purpose of the regulation is to control air traffic and in order to

maintain control, the air traffic or tower controller must know the po-

-sition of all aircraft in flight in their particular control area. -This

means, therefore, ‘that the pilot in command of aircraft has the dual |

function of listening in on the. appropriate radio frequency for reports -

and instructions and also transmit reports on the position of the air- —

craft, particularly while operating under IFR rules. The record 1 shows — — ace

that for a period of two minutes after. Flight. 611/ 6 missed its first ap- .

. proach on Runway 28, the flight was called several times simultaneously

on frequencies 118.7MC and 121.1MC. There is no evidence of mal-

) functioning of the radio equipment or that Flight 611/6 was being called :

~ on the wrong frequency. The Examiner is of the opinion ° that the cockpit

procedures after a missed approach are not so complicated that either

the pilot in command or co-pilot with considerable hours of experience

in DC- 6 aircraft could have : a justifiable excuse in failing to answer

* &

—

| ~— a : 19

calls winiieuninei simultaneously on two radio frequenci ies for a period

of two minutes . ’ The Examiner concludes that Respondent, therefore,

violated the provisions of Section 60. 47 of the Civil Air Regulations.

Respondent, ‘the moldar of an airline trnnanaet rating, while exer- .

-cising the privileges of his rating as pilot in command of an aircraft

' engaged ‘in passenger air transportation, should perform his duties with

398 - ©

such care, caution and judgment to insure ‘a standard of performance

with the highest possible degree of safety. On the basis of the record in -

this proceeding, failure of Respondent to execute the missed approach

procedure prescribed for Runway 28 of the-Greater Pittsburgh Airport,

on J. paly 6, 1954, is a careless operation of aircraft so as to en-

danger the life and property of others and thereby constitutes a violation ©

of Section 60. 12-of the Civil Air Regulations. Respondent by operating

aircraft engaged in commercial passenger air transportation in a care-

less manner and his failure to insure that a continuous radio watch on >

the appropriate radio frequency was maintained after failing to land on

Runway 28 demonstrates a lack of care, “caution and judgment. required

of Respondent as the holder of an airline transport pilot rating.

For the reasons given herein, Respondent's motion to dismiss the

| complaint is denied.

- The final question for determination is whether on the basis of the |

seisee in this proceeding the interest-of the ‘public 1 requires a suspension

en Snead

of Respondent's airline transport rating.” Respondent when cleared to

land on Runway 28 after pass ing the River beacon was given the 0708 | |

_Weatlmy as ceiling estimated 300. visibility. 3. miles. Respondent descended

to 400 feet and could not see the runway. The 07 15 weather report gives

the ceiling as 400 feet visibility 4 miles. It is apparent that the actual

’ -ceiling was well below 300 feet. This probably was a major factor in

influencing Respondent's decision at the time: he pulled up. and abandoned

his approach. for a landing on Runway. 28 to make his next attempt for

landing on Runway 32. with lower ceiling permitted for landing... After

missing’ two approaches for landing on: Runway 32, the aircraft being

eae: oe

|e ae

< F a " =

“2 . . - .

~ - »

iu y, e- Z nei .

vA 7 . :

/ : . -

.- . ? m. > “

. - a .

! piloted by first Officer Gould, Npsgpassanes took over on the third ty and

ded without incident.

The record shows that eiiiembit age 37, married, ‘has been 7

flying since 1936 an® at the end of February, 1955, had a total Bae est

10, 252 flying hours. Respondent has been flying for National Airlines z-

a little over. nine years. He was checked out in December 1946 asa

: Captain. Respondent has approximately 1600 hours in four -eng ine air-

craft of the DC-6B and DC-7 type and 1,775 hours in DC-4 aircraft. His

instrument time shows 1, 040 hours at the end of February. He received

his airline transport pilot rating ih January or February, 1953. The

‘complaint was filed December 31, 1954, approximately five and twenty- _

five days subsequent to the date of the violation alleged. , Approximately ~ |

fifteen months have’ now elapsed since the date of the. violations and during

‘this period of time, Respondent has flown’ many hours. in command of

DC-6 and DC-T. aircraft without ‘incident occurring of the same nature of

the violations charged in the complaint. As of this time, any suspension

of Respondent's airline transport. pilot rating fora per ‘iod of fifteen to |

twenty days would in effect. be a punishment and not of a remedial nature.

For these reasons, the Examiner is of the opinion that no useful purpose

would be served by imposing a suspension of Respondent's airline trans-

port pilot rating and that.the <tagaa interest at this time does not require

- any remedial action. — he

PS. ea.

: ee

Ao ~~ seee>

epi cere Re ‘FINDINGS

The Examiner upon consideration of the whole record’! in this pro-

: | ceeding,. makes the following findings:

399

1. That Respondent during all times. mentioned herein was and now

is the holder of 4! irman Certificate #267 68 with airline transport ager

rating; 7 , .

2. That Respondent on or. about J uly 6, 1954, was s pilot in command

of a Douglas DC- 6B aircraft,’ registration ‘No. N8223H operated in sched- .

uled air transportation as ‘National. Airlines Flight 611/6;

3. That Respondent while pilot in command of said Flight 611/6 on

Te july 6, 1954 was cleared for and commenced. an instrument approach to

icy ‘21 nae

Runway 28 at Greater Pittsburgh Airport, Pittsburgh, "Pennsylvania;

4. That Respondent on the date and at the place’ previously alleged;

and after he failed to land on Runway 28, did not execute the missed

approach. procedure. spec ified in the standard instrument approach pro-

cedure for Runway 28 in that he did not climb to 2,500 feet ona. course

of 277 degrees and proceed to the Clinton radio beacon, Pes. vio-

“e. lating the provisions of Section 40. 34. and 60. 46 of: baad Civil A ir Regu:

lations; ne 3

-~S2

3.5. ‘That on the rae and at the place previously alleged and after.

Flight 611/6 had failed to land on Rinway 28, Respondent did not insure

that a continuous radio watch on the appropr iate radio frequency was

maintained in violation of Section 60. at of te Civil Air Regulations;

6: That Respondent in operating said aircraft as heretofore alleged

by not executing the - missed approach procedure specified in the standard

instrument approach procedure for Runway: 28 and did-not insure that a :

continuous radio watch on the appropriate radié frequency, was main-

tained operated Said aircraft in a careless ‘manner so. as. to endanger the

life and property of others, thereby — Section 60. 12 of the. Civil

‘Air Regulations; ae ;

ho ae That Respondent ts operating said. aircraft as heretofore al-

leged failed to exercise the degree of care, caution and judgment required |

of him as a holder of an airline transport pilot rating: |

8. That at this time, the public interest does ‘not require any re-

| medial action against Respondent's airline transport ply: rating.

ea , ORDER Soom eae Y eee |

ir iS ORDERED, That this proceeding he. and the same is, ‘hereby

terminated —— the ist day of November, 1955. -

| | APPEAL | , a |

-Bither party to this proceeding oe appeal the: Ranens iner's initial

decision. Notice of appeal Shall be filed by. Appellant with the Civil .

Aeronautics Board, Safety Enforcement Proceedings Division, Docket

Section, Washington 25, D. C., onor before the 27th day of-October,

22 | pet

+1955. Appellant shall, within 10 days thereafter, file a , specification of

errors and. cause a copy to be served upon the other party. If no appeal

“to the Board from either party- nor motion by the Board to review the

initial decision is filed within the time allowed, this initial decision

shall be come final (Sections 301. 260e), 301. 30 through 301. 34 of the

, Rules of Practice in Air Safety. Proceedings). |

nee es cae - /sf Joseph C. Caldwell, Jr.

= ae i: Regiorial Hearing Examiner

. ee (Awe SS ar 4 * . *

wt re Decided: March 28, 1956

_ . APPEARANCES: ae Mats :

S Sydney J. Schne, ider and Ned K. Zartman for: Complainant.

Ralph L. Harkenrider and F. Harold Bennett tok Respondent.

OPINION | : ‘

BY THE BOARD: eae | ;

\\ This proceeding involves a ecinplaint filed December 31, 1954 ie

the “Administrator of Civil Aeronautics which charges the. respondent :

"Sidney W. Wilson with certain violations of the Civil Air Regulations, 3/

and seékg suspension ‘of his airline transport pilot rating. Respondent's

answer der ied the violattons charge 1. eee

After due notice a public hearing was held before. Examiner Joseph: .

= Caldwell, J r. > who has issued his Initial Decision. In it jhe found

‘that on J uly 6, 1954, _Tespondent, while in command of a National Airlines' Se

DC-6B in scheduled air transportation, after having been cleared for an, poe

instrument approach to runway. 28 at the Greater Pittsburgh Airport,

oe Pa. and making such approach: without landing, (a). violated

Sections “40. 364 and 60 ‘46 of the Civil Alr. r- Regulations ~ 2/ by Sings to.

; 1/ Sections 40. 364, 60. 46; 60. 41, and 60. 12; see notes 52, 3, and: 4, pent ‘

2/ ‘Section’ 40. 364 and Section 60. 46 of the Civil Air Regulations require

in effecttthat, unless special authorization is received, an -instrument‘ap-

_ proach shall be- conducted in accordance with procedures approved by the

Administrator. In the case of an air ‘carrier; such procedures are nor-

mally set forth in the operations mantal in compliance with the require-

meant of Section 40. 51 et = of the —_— Air Regulations

NEN Parte occurence

coe , |

, eee as <o

a execute the prescribed missed approach procedure for that runway, (b)

451

violated Section 60.47 of such regulations | fe by failing to insure the

“maintenance: of a continuous radio watch on the appropriate frequency, 7

failtses c constituted operation of the aircraft in a careless piacgaeed en- - .

dangeri ing lives and property, and (d) failed to exercise the” ‘degree of | ~

care, caution, and judgment required of a holder of an airline transport e

- pilot rating. The Examiner further found, however, that suspension of .

respondent's airline transport pilot rating, ‘in view. of respondent's good

» flying record before and:since the violations here charged; -woufa serve

‘no useful purpose" and that the —_— interest at this time does not ‘

require any remedial action." yee

Both parties have appealed. The Administsfatos argues t that the.‘

3 Examiner erred in failing to impose. a suspension upon the respondent.

452

: Examiner’ s findings of violations and also with his decision not. to Sus — i

| pend, ‘although we reach such result ona somewhat different basis, as

rs .

Respondent assails the Examiner" Ss determination that he committed the

violations charged: ‘Briefs have been filed by each party, and ms case

stands submitted for deci8i ion.

Upon cons ideration of the record, we agree in Substance with the .. .

: here inafter indicated. Our discussion will deal chiefly with the brinci-

pal contentions of the parties in support of their respective app

AS previously indicated, the Administrator’ s ‘charges’ ak sia:

upon alleged departures by respondent. from established a air traffic pro-

_. cedures after having failed to complete a landing on weed 28 at the

AONE RCLY BARI AL

| : . : . . ; ‘ - :

/ | "Retin 60. 41 of the Civil Air Regulations requires. in snptianiet' «

part that within control zones and control areas the pilot ingcommand.

of an aircraft operated “subject-to instrument flight rules "shall ensure.

that a continuous watch is maintained on the appropriate radio frequenc’ ies

and shall report... other information ‘pertinent to the safety of flight.

4/ _ Section 60.12 of the Civil Air Régulations prohibits: Operation of an-

aircraft "ina careless or reckless manner SO as to endanger the. ~

life or property of others." Cart eae

24 -

Pittgpierh A irport. ~The prescribed missed approach procedure for Run-

.. ground for landing is not available after having descended to the minfi-

—Wway: 28> = requires in essence that, ‘if adequate visual reference to the .. -

mum permissible. altitude over the approach end. of the runway, the air-

craft be flown Straight ahead, on a course almost due west, climbing to»

an altitude of 2, 500 feet and proceeding to the: Clinton radjobeacon, a 7

distance of approxima tely 6 statute miles from the approach end of the

runway. 8/ Based ‘eele ipally on the. testimony of William R. Andrews

as to his observations while on‘duty as Civil ‘Aeronautics Administration |

& radar ifaffic controller, the. Examiner found that respondent's aircraft, - |

after having executed an instrument approach to Runway 28 wRhent'tint-

ing, continued straight ahead only until over the far end of Runway 28

(approximately 1 1/2 miles or about 35 seconds flying time) .and then

made a left turn of about 180 degrees and flew east until southeast of the |

_ airport where 2 right turn was made. of 0 is

45$3.-. .. Respondent admitted he did not. proceed to ‘Clinton, but asserted

no turn was made until approximately two minutes after having passed _

over the approach end of the runway, by which time the aircraft had -

climbed clear of clouds. Thereupon, ‘according to respondent, ‘an Aero.

Commander aircraft was sighted about a mile away and respondent's

aircraft, S order to avoid flying in close proximity to sugh other aircraft, ’

‘made a left\urn ¢ of roughly 50 degrees followed by a similar right turn.

+ Wilson! "testimony, if accepted, may have exculpated him from the

charge of ei tedtes ee to follow ‘the prescribed missed approach pro-

Cedure.. us Howevels: the Examiner aistounted Wilson' S testimony and

“— _ *

5/ 2 The standard. ination t approach seocedure ieiaiiasiiia for Run-

way 28 in effect on July 6;_1954 was promulgated as part of Part

609 of the Regulations of the Administrator : |

: 6/ It is-also to. be noted that the Parkway marker beteon is 6 3/4

miles from Clinton, not 7 3/4as indicated by. Examiner.

1/ - There would still remain the question of whether he should have.

sought permiss ion from.air traffic control for the deviation from

prescribed procedures. The record clearly shows that ‘he did not do so. -

25 | ined |

accepted the version of the incident testified to by the radar operator ‘

, Andrews. Sd i vs | |

Respondent's princ ipal attack on appeal is directed to the testi- -

mony of Andrews in‘an effort to show that the Examiner's findings are |

not supported by substantial, reliable and probative evidence. We have

considered respondent's contentions on this score and have concluded

that the Examiner’ s findings are properly supported. Several of these

contentions, however, warrant comment. | | ine

| Responcent argues that mathematical computation based on the

. testimony of Andrews, the radar controller, will effectively discredit

| ‘Andrews' version of the plane's flight path, Respondent seems to in- |

- terpret such testimony as describing a.""U"' turn with a diameter of a

mile or less, and on that. basis argues that sucha turn at 180 or 190 —

: miles per hour would have been so tight as to amount toa frightening

| Yael which would have necessarily resulted in passenger complaints.

aa However, Andrews actually testified that the diameter of. the arc of the

turn was 1-1/2 to 2 miles and there is no doubt that such a turn would

454 ~ - not be so unusual. as. to be likely to evoke passenger complaints. ie:

Respondent seeks to utilize the evidence - in the transcript of the |

recorded radio messages as to the ‘movements of the Aero Commander :

ina further effort to discredit the testimony of Andrews. Respondent .

first claims that Andrews stated that he did not see the Aero Commander

on the radar screen at the time respondent allegedly sighted it over

_ Clinton. Reasoning backwards from the undisputed 7:18 A.M. position

_Teport ef that aircraft that it was then over Clinton, respondent correctly

points out that at 7:15 A.M. , the time it was allegedly sighted over

Clinton, the Aero eninele could not have been more than three minutes

flying time away from. that point. Noting the considerable range of An- .-

drews' radar, respondent concludes that the Aero Commander must have

been visible on the radar scope. The short answer to this argument is |

that, while the Aero Commander probably was visible on the radar screen

ae at 7:15 as respondent contends, a careful reading of Andrews" testimony

455

10°.

on this point shows that he did not testify to the contrary. 8/ Accordingly,

this contention of respondent does not warrant reversing the Examiner's «

conclusion with respect to the relative weight of Andrews’ and Wilson's

testimony. eas —

In this connection, two further matters nsawtne a on the conflict of .

testimony merit comment. Thus, the Examiner in accepting the testi-

‘mony. of Andrews, commented specif ically and .in-favorable terms upon

Andrews' demeanor and manner of testifying. In reviewing the Examiner" s

findings, such conclusions must be accorded considerable weight. More- 3

over, there is additional circumstantial ev idence to which the Examirer

refers, which supports his conclusion to accept the testimony of An- 4

drews over that of Wilson. Thus, for example, it seems reasonable that

- had respondent actually seen the Aero Commander. at 7:15, as he says,

that he would have reported its presence as another aircraft ina posi- »

tion he himself was supposed to occupy. The record is clear, however,

_ that Wilson made no such report, even though communications with traf-

fic control were resumed'shortly after 7:15 and he remained in communi-

‘cation there for at. least 45 ininutes more. adeea: ers, reject

ae Andrews a in essence, (a) that at 7:13 (not 7:15) he did not see

an aircraft identified as the Aero Commander on his screen, and -

(b) that, although) not certain, he believed there were no aircraft at all

over. Clinton at 7:13, but (c) that he did see a couple of blips at an un-

specified location on his screen which were "probably over traffic",

(i.e., passing aircraft which were not believed to contemplate an approach

under Andrews' jurisdiction) which it "wasn't necessary for me to watch."

Even if we were to conclude that Andrews' testimony is of little value as

to the position of the Aero Commander prior to 7:18, Andrews' testi-

- mony as to the movement of Wilson's aircraft is not ‘discredited since>it,

unlike the Aero Commander, had previously been identified on the radar

- scope and was then being. controlled by Andrews. It is to be noted that .

_ if Andrews' -version of respondent's flight path is accepted, it-makes no

difference whether the Aero Commander was over Clinton at 7:15 for

respondent was not in a position to-see it at that time, since Clinton was °

then about five miles away and almost directly to his rear. In this con-

nection it is significant that the transcript of radio messages shows that

between 7:15. 1/4 and 7:15 1/2 respondent, asked whence he was then

. proceeding, replied to the Union radiobeacon, which lies southeast of the

airport. This is-:generally consistent with: the flight am version of

Andrews rather than of respondent. : | ek:

| Z{ | | pera ta

respondent's on ee that the Initial Decision, which rests prince ipally

upon Andrews' testimony with respect to the missed approach, is un- |

supported by substantial, reliable, and probative evidence. 9/ ge

In reaching this conclusion we have also considered respondent's

contention that Andrews' entire testimony must be disregarded. because

_ of'an oral "stipulation" between ‘counsel for respondent and counsel for

-the Administrator made at the beginning of the hear ing to the effect that -

'. the Administrator, in calling respondent as his own witness; would be

bound by respondent's testimony. ~The subsequent history of the pro-’

| ceeding negates the effect which respondent now places upon this stipu-

lation. Thus, after resvondent had testified on direct examination as

| the Administrator’ s witness and had given his own vers ion of the inci-

dent, the Administrator called as his. secon \ witness Andrews, whose

testimony was in substance accepted by the Examiner as the basis of his

f indings of violations. Respondent offered no objection when Andrews

- was @alled, and, in addition, made no objection based upon the prior :

eo stipulation ; as to the effect of respondent's testimony at any point during:

the course ‘of Andrews' testimony. Moreover, at the conclusi ion of e ;

Andrews' direct testimony no motion was made to strike such testimony,

but instead respondent proceeded to cross-examine Andrews on his ver-

sion of thé incident. The Administrator offered no further witnesses,

and respondent moved, unsuccessfully, to dismiss the complaint "for

lack of substantial, probative, or reasonable evidence of any violation

as alleged therein", without further spec ification of the ground for the

motion. - Respondent then testif ied on his own be half, and ‘additional

witnesses were presented by respondent in an effort to support his

testimony and impeach that of Andrews. At the conclusion of the hear-

ing, respondent again moved for dismissal of the complaint for lack of

evidentiary support without reference to the stipulation. Respondent's

| gid |

‘of - It is also to be noted that, as indicated by the radio transcript;

. consistent with his present testimony with —— to Wilson' s flight path,

‘and inconsistent with Wilson's version. | :

- *.

first attempt to construe the stipulation as precluding the Administrator :

from presenting eyidence contrary to that of respondent was in his brief

to the Examiner. In such brief. respondent also declared for the first

time that, if the stipulation had not been made, respondent had available

and would have used his immunity as. provided for in Section 1004 (i) of

the Act. Be ee ane ee |

457 | ~+‘-Under all the circumstances just outlined, we are satisfied that

oe Andrews' testimony was properly before the Examiner for cons ideration

in arriving at his decision and is properly before the Board at this time. 3

~ Whatever may have been the snitial intention of the parties as to the

Stipulation, it is clear f from tie subsequent course of the hearing that

‘the stipulation was in practical effect rescinded by the action of all ‘the

‘parties, or in any ‘event the benefits thereof were waived. Moreover,

. there is nothing in the transcript to substantiate that respondent had any oe

intention to claim the privilege against self- incrimination to — any |

imagynity that might ftow from Section 1004¢i) of the Act. oor.

The Administrator contends the Examiner erred in tating: to order —

| oumpininiens of respondent's airline transport pilot rating, and that a

30 day suspension should be imposed® In support of this contention, the

Administrator refers to the. Examiner's statement that a suspension in

this case would be a punishmentyand not of a remedial nature; and cor-

rectly points out ‘that this statement does not fully answer the question —

whether suspens ion should be ordered: As is clear from the Brubaker

(10/ ;

. case, —’ the Board's statutory power to: impose suspension "if ‘the

-11/

punitive or disciplinary suspension for violations charged. and found in

“interest of the public so requires" — . includes the ‘power to impose a

é cases: ‘where the public interest requires such action to prevent or deter -.

‘further violations by the offending pilot or. other pilots, even though the

record gontains no allegation or findifig that the pilot is or may be un- |

qualified. It is not clear from the Initial Decision whether the Examiner

10/ Lee v. ‘Brubaker. and Olsen, Order No. S- 631 adopted August 2, 1954.

11/ Section 609 of the Act. pay

458

Q a7 an

squarely considered, as he should have, the iia whether a punitive

or deterrent suspension - the only type sought herein is. =.

by the public interest. ' :

Turning to this question and taking: ito ‘consideration all pertinent

| circumstances properly before us, we conclude that ¢he detailed unfavor -

able findings concerning respondent's conduct hereinabove set forth

- should prove an adequate. deterrent toa repeti tion of such conduct, and

‘that the Administrator. has. not made 4 sufficient showing that the pub! ic

interest requires the additional sanction of suspension c of respondent's

+. airline transport pilot rating. . Pie

The issue whether Suspensi ion n should be: ordered. nine a violation

has been found is a material one upon which, “under Rule 23(b), the burden

+ of proof rests with the Administrator. In considering whether the Ad-

_ ministrator has sustained that burden, we must weigh respondent's past

record as a. pilot, the nature of his offense and the situation in which it

ee occurred, and the Board's practices in past. cases of a similar nature,

with a view to determining whethet or not a*disciplinary suspension is

needed.

As the Examiner noted, peapondent who, is 37 years of age and °

married, has been fly ing since 1936'and had accumulated a total of. over |

10, 000 hours flying time in early 1955. He has been flying for National

Airlines for over nine years, with many hours in DC-4, DC- 6B, and DC-7

aircraft and substantial instrument time, and he has. continued to fly for

| National during a period of fifteen months from the time of the violations

“to the issuance of the Initial Decision herein. Thus respondent appears |

_ to have a long,®clear flying record, continuing for twenty years throughout

rs his adult life, a fact which tends to minimize the likelihood that additional

disciplinary measures are needed to deter him from similar acts in the

future. eS coe en |

| The nature of respondent's violations, which have previously been |

described in detail, require. little further. elaboration. Suffice it that |

; while respondent's violations were clearly more than technical and in-

volved regulations which are highly important to air safety, his conduct

| 30 |

| under the circumstances 1e/ did not involve any spect: or aggravating

element of flagrancy or recklessness sufficient to dictate suspension -

3 regardless of the other factors discussed herein. Moreover, our de-

- cision not to impose a punitive suspension on respondent is not incon-

13/

* sistent with past practice. _

The Administrator contends that suspension ‘is iinet in the _

public interest in order to prevent other airline pilots from losing re-

spect for regulations and thus to deter them from engaging in conduct

‘similar to respondent's. To demonstrate the existence of a danger of

-guch disrespect for regulations among airline’ pilots, if respondent’ is

not suspended herein, the Administrator quotes in his appeal brief what

appears on its face to be a notice or bulletin to members of an airline

pilots’ union local commenting on a Board decision in a safety case in a

"manner which might well be regarded as supporting the Administrator's

. dent's prejudice in reaching its decision. Accordingly, the record does _ |

contention. However, ‘as respondent has pdinted out, this mater ial is

‘not in the record, and respondent has not had a fair opportunity to

rebut it. Therefore, the Board may not properly consider it to respon-

not contain’ any evidence as" to the need fora period of suspension asa

bi punitive or. deterrent sanction. eo

460 -

It should not be overlooked that our decision herein, though it does |

not involve suspension, is not without disciplinary effect. Respondent

‘isa professional pilot by occupation and, therefore, the issuance after

12/ The Examiner noted, with spec cific reletenos to the question of

suspension, that respondent had been given inaccurate current |

airport weather, in that he was told the ceiling was 700 feet (stated as

300 feet by. typographical error in the Initial Decision) and thereupon

—descendéd to 400 feet when in fact the ceiling was well below 300 feet.

Immediately thereafter operations were transferred to runway 32, which

has lower minimums. Respondent's missed approach flight path did not

involve an actual collision hazard. While these circumstances. in no way

’ justify ee =. violations, they _— éxplain the — in which

they occurred. | 7 3 sites

13/ See, for example, Horne v Simmons, Order No. S- 538 of ioe

ary 21, 1953.

ee ; |

full hearing and appeal proceedings of the detailed f vision hereinabove

- set forth confirming the Examiner’ s conclus To.) that respondent violated

important Civil Air Regulations without justification while flying in ;

scheduled air transportation, will of. itself be likely. to exert a continuing st

‘influence on respondent's future activities in aviation. In the event re-._

‘spondent should ever ‘again be found. to have violated Civil Air Regulations,

issuance of the present decision will constitute "previous disciplinary ac-

_ tion for violation of air safety standards" within the meaning of Rule —

which ee be considered against respondent in the — of a sanction ee

_ in any such case. eee mee ee Soe

‘We have considered the remaining contentions of the parties in

support of their appeals and find they. should not alter the. dec ision set"

forth herein. Per. eee

——- appropriate order will be entered.

Rizley, . Chairman, Adams, Vice Chairman, dines and Denny,

: Members of the Board, —— in the above opinion.

= : |

* =. * el * * | x.

461° ee ian ORDER

. A full public. wien having ets held in, the ‘above-entitled pro-

ceeding and the Board, .upon. consideration of the record, having issued

its opinion containing its findings, conclusions, and decision, which is

_ ” attached hereto and made a part hereof;

IT IS ORDERED: ee

as That the appeals filed herei in by t the complainant and i the re- |

Spondent be. and they hereby are denied;

2. That the above-entitled — be sik it kiran | is termin- :

ated. = ?

By the Civil Aueumaien Board: . | 7

: Secretary ey

SS erases:

ee " 9

82 7

~ B - ® . zi A : ee . -

ee Sie, ee: 7 rr § * We oe

the

<4 SUPPLEMENTAL OPINION AND ORDER ON "RECONSIDERATION

: On March 28,. 1956, we issued 2 a decision deniekitio cross-appeals

of the Complainant, the Administrator of Civil Aeronautits, -and the Re-. oe

spondent, ‘Sidney W. Wilson, and affirming the Initial Decision. We sus- 7

tained the Examiner" Ss conclus ion that Respondent, while in“c mmand of.

‘a National Airlines DC- 6B. had failed to follow prescribed misséd approach

procedureg at the Greater Pittsburgh Airport and had failed” to keep the

: required radio watch," thereby violating various, ,provisions of: the ae

Air Regulations. We also agreed with the Examiner | that no. suspension.

should be imposed. . . ee é = : i

| g Both- the. Complainant and Reupoadeut 5 have filed petitions ‘seeking - - |

argument on the Complainant's petition ‘and received additional briefs in

‘support of, and in apposition to Respondent's petition. 1/ The case now >

£ stands submitted for decision on the petitions for reconsideration..

| In reaching our original decision in this proceeding, we leas that

Respondent, after having aborted a landing on runway 28 of the, Greater

1/ * On-April 6, 1956, the Complainant filed a petition for reconsidera-

= tion: and modif ication of our decision, insofar as it failed to —

a period of suspension on Respondent. The Administrator, asserting

the importance of the matter-to his over-all air safety responsibilities

asked for:‘an opportunity to present oral argument in support-of his pe- .

tition, ~which request was granted onMay 4, 1956. Thereafter, on May —

11, 1956, after the normal time for seeking reconsideration had run, —

the ‘Respondent sought leave to file a petition for reconsideration and

modification of our decision insofar as it found that Respondent had.

violated the Civil Air Regulations. ‘Respondent asked for oral argument -

on his' petition. We granted Respondent leave to file fhe petition,” but not

his request for. oral argument on the issues raised by his petition. How-

ever, we granted Respondent the right to file an additional-brief in sup-

port of his petition, which he did. And the Administrator — a Orier

‘in —— thereto. és

| Pittsburgh Airport, failed to follow the prescribed missed approach

procedure which required a climb straight ahead toa holding Amery

at the Clinton radio marker. Instead, Respondent made about a 180°

ge _turn (with the diameter of the arc of turn being about 1- 1/2. to 2 miles)

to. the left, flying untill southeast of the airport where a right turn was |

made: During ‘this time, the traffic controler attempted to make radio ~

"contact with Respondent ‘without success for a two minute period, and to )

_ avoid the possibility. of a collision, the traffic controller diverted a.

4 Capital A irlines aircraft which had been cleared to land after Respondent.

‘Our findings, as above outlined, were based primarily upon the |

testimony of the radar operator at the Greater Pittsburgh Airport upon-

whose demeanor and manner of testifying the. Examiner had commented in |

a favorable terms. -We specifically rejected Respondent's attempted ex-

‘

—-€ inity.

‘planation for his’ admitted failure to follow prescribed procedures, ‘namely

that he had adopted a course different than the established missed. ap-

‘proach procedure in order to avoid another aircraft i in the Clinton vi--

\ Respondent's position in support of his petition for reconsideration

“involve: largely a reassertion. of his earlier contentions which we dis-

cussed, and rejected in our decision, and which warrant no further con-

_ sideration. \ Respondent, concedes that his testimony and that of the radar .

543 |

operator are in, "irreconcilable conflict'’. ~ And-_we do not find persuasive

“Respondent's arguments for rejecting the latter's fe timony. ¥ As the

2/ Responddut asks the Board to consider as s Additional windouce:

. bearing onthe radar operator's credibility, ‘a letter dated

.July 10, 1954, addressed to National Airlines by Lowell S. Harding, ‘a

CAA Safety Agent, ‘with respect to Respondent's actions which are the

gravamen of this case. (Respondent alleges that this letter quotes from .

the report made by the radar operator to his superiors, the alleged quo-

tation being a statement that Respondent was repeatedly told to proceed :

' to the Clinton radio beacon after the missed approach, whereas the. 2

’ record shows that no Such radio call was made. Respondent suggests

that the report shows such a carelessness with thé truth as to indicate

unreliability in the radar operator's testimony. Complainant, however,

' correctly. contends that- ‘the letter submitted is not part of the record «

herein and-may-not be received in evidence wie further hearing,

-.(continued on next page) : :

. a bd

_Administrator pointsgput, theré is an obvious difference in motivation

between the radar. operator and Respondent to which we cannot be Ob-

to observe their demeanor aud manner of testimony, accepted the radar zs

operator’ s aad necessarily rejected that of Respondent. Moreover, there

is strong circumstantial evidence in the record supporting the radar -

Gee : operator! s version. of the incident as opposed to Respondent's. Thus,

544

“ |

5 ~*~ ‘ . :

8/ " In addition to the. circumstantial evidence. referred to in our °

however plausible Respondent's story may be, we ef ind it to ve without

Substantial record support:, “3/ | i

One further matter on ‘the question of violation warrants addi

‘tional comment. - Respondent argues, inter alia, that analysis of the

‘transcription of the radio contacts: between Respondent and the radar

operator shows that ‘Respondent kept a proper radio watch; that at most

he failed to answer two radio: calls in two minutes, which was: due in

Part to attent, ior ‘to necessary cockpit procedures and is “ordinary pro-

| cedure". ‘However, the Administrator properly points out that, under

the circumstances involved, .a radio silence of two minutes is certainly

| not’ ordinary’ procedure. A pilot who, in these circumstances, deviates

from prescribed traffi ic procedures is obliged io advise the appropriate; '

traff ic controller of his action without delay... Any failure in this regard

— ¢

(footnote two continued): which Respondent has not sought. ' Further-.

vmore, it would be unreasonable, without proof thereof, to attribute to

a the radar operator the contents of 2-letter written by akether person.

It should also be noted ‘that counsel for Respondent, though specifically _

osked therefor, has failed to explain why the request for consideration of.

_ additiona! evidence was not timely filed within the requirements of

Rule. 301. 34 of the Board's Rules of Practice ‘in Safety Proceedings.

. earlier opinidn as supporting Complainant's case, it is pertinent

to refer to the transcription of the first radio conversation between Re-

spondent and the radar operator after the missed approach. The tran-.

scription shows that when Respondent, on being called on his failure to

proceed to Clinton made no mention of the presence of an Aero Comman-

@}«. which he now alleges was the reason for his failure to comply with

. the prescribed missed approach procedure, ‘but merely said: “I lost the

field there old ey. 4

. . Z —_

° . . 2

can lead to a serious safety hazard or the inconvenienc ing of other ‘traf-

*, + -fic as it did in the instant situation. £/ It is therefore clear that the

4 Charge of failure to kéep the required radio watch is supported by the

‘record. eee < er , | a | ce

| Based upon the foregoing considerations, and all the facts of record |

we find that Respondent's petition for reconsideration and modification of

our decision should be denied. | , | ie

| ~ We turn now to the Administrator's request for reconsideration of

our decision not to suspend Respondent's airline transport pilot rating.

In deciding not to suspend Respondent's airman certificate, we rel ied 2

upon (a) the fact that Pt had a clear flying record which mini-

_ mizes "the likelihood that

to deter him from similar acts in the future", (b) the absenee of "any.

dditional disciplinary measures are needed

- special or aggravatory element of flagrancy or recklessness fr and (c)

the conclusion that the mere finding of violations is, in effect, a type

545 : of sanction. 4 . . es .

The Administrator has vigorously contested our conclusion, ar-

.— guing, inter alia, that the Board's statutory responsibility to assure .the .

| attainment of the highest degree of safety in air transportation is not

discharged merely by the ‘adoption of regulations; that "it is the added

duty of the Board to support its regulations by the imposition: of adequate

sanctions for violations of them"; that a decision not to suspend is tanta -

mount to issuing a "free pass" to the majority of airline pilots for 'ttheir

- .

4/ The record supports the conclusion that at least three calts and

- perhaps five were made to Respondent after missing his approach,

rather than just two. The question as to whether it was three or five _

depends upon an interpretation of the time sequence. The particular

recorded radio contacts involved are marked in 1 minute intervals;

the transcription shows 3 contacts between 0713 and 0714. Respondeht

_ Was advised to tune to the particular frequency on which the calls wer

made on 0713-1/4. The question then is how many of the calls were. .

made after 0713-1/4. If all were so made, as is possible, then 5 calls

were made to Respondent; if only one, then three were made. Only on

‘the unreasonable assumption that all 3 calls were made prior .to 0713-

1,4 could it be concluded that. orily 2 calls were made to Respondent.

- first detected violation" of Civil Air Regulations; that ‘other pilots are

not so treated by the Board; that there is no evidence to support the ,

Board's conclusion that a finding of violation ater he sing will of itself

constitute a type of Sanction; that the: Board did not consider whether its

action would have a deterrent effect on other pilots, which Complainant

ie alleges it would not; and that consequently the Board's decision, "if left

546

undisturbed will seriously jeopardize the Administrator’ 8 ability to dis-

charge his statutory functions, particularly in the control of air traffic."

Respondent relies upon the factors ‘stated in the Board's opinion as

justifying the result reached. Respondent claims that the "most unkind ;

thing you-can do toa pilot is criticize his flying ability" and that a Board

decision that he violated the Civil Air Regulations is “the most severe

re ae

penalty that may be imposed on him", | ; 3

In granting the Administrator’ Ss" request for oral argument ¢ on the

sanction issue, we gave ‘recognition to the importance of the issues. raised

‘by. the ‘Administrator' s petition. Upon recons ideration, we find that we’

are persuaded by the Administrator's view of the. importangg of: impos ing

a suspension as a deterrent sanction in connection with our joint responsi-

bility for attaining the highest degree of safety in air. transportation. |

’ We wish to make it clear that we do not endorse any general policy

: which would automaticdlly eliminate any suspension of an. dirline trans- |,

port pilot for his first detected violation of the Civil Air Regulations.

So far as we are aware, the Board has never in the past announced an

‘enforcement policy which would have this result, and to-do so, would,

-we bel ieve, be inconsistent with our responsibilities tnder the Act. The.

public interest in maintaining an effective enforcement program is. 7

manifest; if our air safety regulations are not observed, they make little

contribution to the high degree of air safety in air transportation which’

we are charged with attaining.

On the oth€r hand, we are mindful of our responsibility asa

quasi-judicial body to we igh the individual's case and to temper the

dictates of a broad enforcement policy with the maximum consideration

for the rights of the ‘respondent In any given case, we must, among -

. other matters, weigh the nature of the violations, the individual's past

“flying record and his attitude, including his conduct at the hearing, in

7 determining the sanction, if arly,“ to be imposed.

- Upon reconsideration of our decision in. this case, we find that

these principles properly applied require a different result than we

previousiy reached. Respondent, although having a good past flying

_ record, committed a material violation of air traffic rules which are _

highly important to air-safety. It-is especially necessary under the

. current congested traffic conditions to adhere to prescribed air traffic

247

*e e . : F = e

trator that the detenrent %

rules and to maintain a p r radio watch. We agree With the Adminis-

ct of a suspension in the case of failure to

meet these requirements, is a factor to be weighed by the Board. In

addition, it is significant that Respondent's explanation of his conduct

was properly rejected by the Examiner. in favor of the conflicting

testimigny of the Administrator’ S witness. .

Weighing these factors,

we have come to the conclus ion that the interest of the public requires —

suspension of Respondent's airline transport pilot = fora ten day of

‘period.

ACCORDINGLY, IT bs ORDERED, That Respondent's airline trans-

_. port pilot rating be, and it hereby is suspended effective August 10, 1956,

through August 19, 1956.

Durfee, Chairman, Gurney, Denny and Minetti, Members of the

Board, concurred in the above opinion and order:: ‘Adams, Vice Chair-

man, fited the attached concurrence and dissent. — | ; “a

: | - ¥s/ M. C. Mulligan

| Secretary

(SEAL) pe

5/ _— It is to be noted that the Examiner commented favorably upon the

demeanor and manner of testifying of this witness, without men- -

tioning Respondent’ s demeanor, but rejecting his testimony.

. | (a: inp es

048 —Ct ADAMS, VICE CHAIRMAN, CONCURRING AND DISSENTING:

_ Tsee no reason for changing in any. respect the aoevhet |

. decision rendered March 28, 1956, and I therefore dissent from

‘the action of the majority suspending the respondent's airline

transport rating. | | * e

| 7 ae 3 - /s/ Joseph P. Adams

550 + ae + ‘ - ‘i *

[Rec'd Aug. 7, 1956, CaA.B.} se ok ees

PETITION FOR RECONSIDERATION OF SUPPLE-

MENTAL OPINION AND ORDER AND FOR A STAY —

. OF EXECUTION.

hannoktet, Sidney w. Wilson, by anit ‘inns his attorneys, F.

Harold Bennett and Lloyd: Fletcher, respectfully ee to the Civil ,

Aeronautics Board as follows:

oe On March 28, 1956 this Board issued its decision denying the |

_ of Examiner Joseph C. Caldwell, Jr., wherein the respondent was found .

to have violated various provis ions of the Civil Air Regulations on or .

about July 6, 1954, while pilot in command ‘of a National Airlines DC-6B.

Said decision did not impose a: suspension of respondent's airline trans-

port pilot certificate. — Soy | es |

2. Thereafter the parties filed thet petitions seeking a recon-

_ sideration of said decision of March 28, 1956. After receiving briefs

- and oral arguments by the parties, this Board, on July 31, 1956, en-

tered its "Supplemental Opinion and Order on Reconsideration" wherein

‘the Board (Vice- Chairman Adams concurring and dissenting) reaffirmed

its earlier decis ion that respondent had violated certain of the Civil Air

’ Regulations but reversed that portion of its earlier decision which im-

posed no ‘suspension of. respondent's air line transport pilot certificate.

In its said "Supplemental Opinion and Order on Reconsideration" the

Board ordered that respondent's air line transport pilot rating be sus-

pended effective August 10, 1956, through August 19, 1956. Vice

, 39 ae

| Chairman Adams dissented from the. action. of the majority so suspending ,

551 _ respondent's certificate. wie

3. Pursuant to Procedural Regulations, Patt 301, Section 301. 34,

entitled "Rules of las ae in Air Safety Proceedings", respondent re- .

quests reconsideration by this Board of its said supplemental opinion and

order and a stay of the effectiveness of said order until the Board has

acted upon this petition and thereafter until the issues involved herein. .

are finally determined by the appropriate appellate couft. aah,

.4. Respondent respectfully submits that the Board has erfed in

_ its said supplemental opinion and order dated July 31, 1956, in entering

a suspension of respondent's air line transport pilot rating as a punitive

or deterrent sanction only. ' The Board's power to suspend an airman

certificate is contained in Section 609 of-the-Civil Aeronautics A Act of

1938, as amended, which reads in pertinent part as follows:

"The Board may .... re-examine any airman, and,

€

‘after investigation, and upon notice and hearing, may 4.

alter; amend, modify, -or-suspend in whole or in part, —

ny... airman certificate .. . if the interest of the —

je public so requires, or may revoke, in whole. or in part,

any such certificate for any cause which, at the time of

revocation, would justify. the Administrator \of Civil

Aeronautics in refusing to issue to the holder of such

certificate a a-like certificate ..... ° |

Under said provision providing. for the suspension powers of this Board,

Congress has not granted to the Board any power to suspend an airman

certificate as a punishmeiit to the holder thereof. The section is de-

Signed spec ifically to enable the Board, asa remedial matter, to "re-

inspect" aircraft and other components and "reexamine" the “competency

of aifmen and thereafter, where the —-* interest SO requires, ‘to amend,

suspend and revoke certificates. No power is granted under said section

to punish an airman, the penalty provisions of. said Civil haceulattes

Act of 1938, being contained in Section 901, providing for certain civil

._ perialties for violation vf the Act, and Section 902, providing for criminal

. 552

penalties £ for wiilful violations of said Act. | .

—é Respéndent requests the Board to stay the effectiveness of its.

order dated July 31, 1956, suspending respondent's air ee transport

pilot rating August 10, 1956 through August 19, 1956, until this Board

has acted upon this petition and thereafter until the issues involved

herein can be finally determined by the appropriate appellate. court. As

reasons for this request, respondent asserts that, absent t requested -

- stay and in the event he should ultimately prevail either in this Board

or the courts, the damage suffered by him from a suspension of his

certificate would be irremedial. Since the suspension order by the Board

on J uly /31, 1956, is admittedly a punitive and deterrent sanction, it .

is pis that no interest of the public is involved and, accordingly,

the requested stay is just and equitable. -

WHEREFORE, the premises considered, respondent i antaamnatl

_ prays as follows:

—{a)}—That this Board reconsider its Supplemental Opinion and Order -_

dated July” 31, 1956, and reinstate its original decision of March 28,

-- +1956, SO as to remove the suspension of respondent's air: line transport

pilot rating.

(b) That this, Board forthwith stay the effectiveness of its Supple-

mental Order dated July $i, 1956, until the Board has finally acted upon .

this petition and thereafter until final determination of the issues involved -

_ by the-United-States Court of Appeals for the District of Columbia Circuit.

- plemental Order dated July 31, 1956, until final determination of the

993

issues -involved herein by the United States Court of Appeals for the

District of Columbia Circuit. : d

| _ Respectfully submitted,

/S/ F. Harold Bennett

‘55th Street and Cicero Avenue

. Chicago, Ulinois.

s/ Lloyd Fletcher

1366 National Press Buil ding

(Certificate of Service) ee.) Attor neys for Rengneeiet

eo: a | oe

awe a). — ee

, 557. - .ORDER DENYING PETITION FOR RECONSIDERATION.

On August 7, 1956, Respondent filed a petition seeking, inter _

alia, recons ideration of our ‘Supplemental Opinion. and Order in the above-

entitled proceeding, Order No. S-754, dated July 31, 1956,. insofar @s

such order suspended Respondent's airli ine transport. Pilot certificate

for a 10-day period effective August 10, 1956. On August: 8, 1956, the

Complainant filed an answer opposing the rélief requested.

Respondent's request for reconsideration is based upon thé & asser-

tion, unsupported with citations of aomerey or substantial legal argu-

“ment, that the Board's power under Section. 609 of the Act does not en-

compass the imposition ofa "punitive" suspension. Respondent argues.

_ that under the Civil Aeronautics Act of 1938, the Board's only .power."'to

punish airmen" is contained in Section 901; providing for ‘civil penalties

for violation of the Act. We find Respondent's request for reconsidera-

tion without merit. Apart from any procedural cons iderations which may a

warrant dentat of the petition, 2/ itis” patent that Respondent's conten=

‘tion as to the limitations of our power under Section 609 flies in -the face ‘ ,

of a consistent and unquestioned administrative practice over a period |

of more than fifteen years, a Accordingly, we shall deny the petition _

_§58 for reconsideration. | | cane |

ll Respondent also seeks a stab of the ¢ ithectiventes of our order pend-

ing judicial review. In view of the fact that our-order, unless Stayed,

‘would become effective and fully executed prior to the time perm itted

-under our statute for filing a petition for review, it is necessary for |

the order- to be stayed to preserve Respondent's right to — - It is.

} ; ‘oe. ss i J ™.

1/ Thus, the Administrator properly points to the fact that this question

could have been, but was not raised by Respondent at-earlier gtages of

the proceeding. We agree that this eleventh hour raising of this ques-

tion is hardly an exercise of due diligence. _;

2/ E. —: Landstrom, Airman Certificate 5C.A.B. 65 (1941); Klotz,

Airman Certificate, 13 C.A.B. 14 (1943); Smith,. Airman Certificate,

13 C.A.B. 117 (1947): Davidson, Airman Certificate, 13 €.A.B. 171

(1949}; Delphis Ben Johnson, Airman Certificate, 13 C. A.B. 564 —-

Also compare Lee vs. Olson and area oe No. $-631, paar

August 2, 1954.

a eee ,

are suggested by the Complainant that we deny the relief requested, since .

Respondent may obtain a ‘stay from the Court of Appeals. However, in

the present circumstances, we believe that we should not force. the Re--

spondent to seek judicial relief where it is patent that such relief would

_ be forthcoming in order to preserve the Court's jurisdiction, We shall;

therefore, stay the effectiveness of our order for 60 days from its date ;

of issuance, and thereafter until final determination of the issues by the |

United States Court of Appeals for the District of Columbia Circuit, pro-

7 vided that within 20. days of the order, Respondent shall advise us in

; writing of his. intention to seek such review.

| THEREFORE, IT IS ORDERED: . :

: aw ie _ That, except to the extent hereinafter granted, Respondent's

panies for recons ideration and other relief be, and it hereby is denied;

2.° Tht the effectiveness of Order No. S-754, dated July 31, 1956,

| be and it hereby is stayed for a period. of 60 days- after the date of issu-

Cre

— 2-4. —_

= ance of said order, and that if‘a petition for review of said order is filed,

with the Circuit. Court of Appeals.for the District of Columbia Circuit

within such time, said ‘order shall be further stayed until final disposi-

tion of such petition by the Court; Provided, however, That this- stay

shall, without further order of the Board, terminate and the- suspension

heretofore ordered shall become effective on September 1, 1956, and.

continue through September 10, 1956, unless on‘or before 5: 00 P:M:

-. on August 29, 1956, Resp@ndent shall have advised the Board and the

‘Cbmplainant in writing ofhis intention to file with the Court within the

‘time allowed therefor a petition for review of the Board's order; and ~

Provided, further, That should Respondent's airline transport pilot

-- (SEAE)

rating for a ten day: period shall become effective 10 days after the

issuance of the. Court's judgment disposing of Respondent's petition for ~

review. | = ?

By the Civil ‘Aeronautics Board:

| /s/ M.C. Mulligan

_M.C. Mulligan .

_ Secretary |

Sona head . 49°

' Vice Chairman Adams Concurring:

While 1 believe that the Board has the power under sertion 609 to’

suspend. the respondent's, certificate, I reiterate my previous position

that it should not have used ‘this power in the ene circ cumstances

of this case. : 9 ore

eee at ek en ADAMS, nue

7 ae ee Ae,

@ eee ee , Ee

| . & . : SH ‘ . : %

en oc acca ae, Me \

A oe aoe area Me 7

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.