Petition for Writ of Certiorari — Wilson v. Civil Aeronautics Board (No. 434)

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‘IN THE

Supreme Court nf the United States,

‘OCTOBER, TE RM, 1957 °

ABA

Sipney W, Witson, Petitioner

Crvtt.. AERONAUTICS Boarp, Respondent

PETITION FOR A WRIT OF CERTIORARI ‘TO THE

UNITED STATES COURT OF APPEALS FOR

. THE DISTRICT OF COLUMBIA CIRCUIT *

. KF. HARoLp BENNETT |

_ 55th Street and Cicero Avenue -

(Chicago, Tlinois

GEORGE EL ARCHER *

~D47 West Jackson B vd.

= wi Chicago, [linois

oo anne Fuge |

: as 1366. National Press Building

: Washington, D.C. .

Atfor neys for Pe titiones®

- farses or Bynor S. ADAMS, — D.C.

- ! *

—- Renee mae. * en ; .

INDEX

‘ = Page

Opinions . arsed fo ahead et ee eee piace casdvecese 1

Jurisdiction * Ach Neeedaneseeaa’ Peer: eee erst 2

Questions Presented ae cas ay .: van mawgeneneas- 2

‘Statutes and Regulations ......0.........00. ere ae

“Statement of the DONE cask tiny veers Sbesecésese @

Reasons ‘for Granting the Writ. Se ee Pen a

‘I. The Decision of the Court of Appeals Below Is

in Probable Conflict with sacatcanrs Decisions of

eee ad ae eee eens wake >"

1.The Asserted Power to Punish Under Section

Wr Sik bs car cceakas ces ckeennneareneares a ae

y Analogous Statutes as Aids in Construction ens

. 3.. The Mack of Sufficient Standards in Section. 609

* When Used as a Penal Statute ....2.......... 11

4.The Applicability of Administrative Construc-_

SO 5 ss-nnc iPass once etka ey hkeiek scenacas « .

IIs ‘The Court of Appeals Has Decided an Important

Question of Federal Law Which Has Not Been,

But Should Be, Settled by This Court .......:.. 17.

Conclusion ........... ekaivicees akhes ee ery

* Appendix Peeee ve eeees ice ee ees BPs aber yee Ta =

* ‘PABLE OF AUTHORITIES |

: CASES:

American Airlines 1 v. North American, 351 U.S. 7 15

Anderson v. McKay, 94 US. ‘App. D.C. 11, 211 F. 2d ‘

. Anniston Mfg. ‘Co. v. Davis, 301 U.S. 337 ewes

Boston Sand Co. v. United States, 278 U.S. 41.. 8 2

Brown v. Civil Aeronautics Authority, ie F. 2d 737

(CA. ) eee wee ve eens Tesadghesvess 6

Index Continued

( | Page

Brubaker and Ghien, CAB Dockets, SR-2168, 2169 . .6, 13

Bulger v. Benson, 262 Fed. 929 (C. 3. ee | ie

Campbell v. Galeno, ty = RReuneee ae 7

Champlin Refining Co. v. Corporation Commission, Be

©. 5 ft RIE Pad cie Wha eRe knadudwsssangaes sees (12

' Crowell v. Benson, 285 U. i pc kacuveaeeee urease (12

- Dimick v. ‘Schiedt, 293 U.S, 474 .....5:.......5.005° 8

District of Columbi « v. Colts, 282 U.S. 63 ..... eee

. Everson v. Board .7 Education, ge Se 12

Federal Trade Comm. x. American Tobacco Co:,

RE SE cui bed bandsdanadisanneaceented 12

_ Fong Haw Tan ‘v. Phelan, ; i t eer 11

‘ er v. Berkow, 83 U.S. Mpp: D.C. 70, 165

2°) Fees

Hard v.. Civil Aeronautics Board, (C.A.. 7,- No. -

ES ASP Pe error 18

Helwig v. United States, 188 US. 605 ckwenen salto CMe

‘Huntington v. Attrill, 146 U.S..657 2 .........4... 6

Iselin v. United States, 270 U. eee 7.

Keppel v.. Tiffin Savings Bank, 197 U.S. 356 ..... .

L. P. Stewart-& Bro. v. Bowles, 322 U.S. 398\...... 7

Lee v. Civil Aeronautics Board, 96 U.S. App. D.C.

me + = = & weOPEPPrTrTiTrerrr TT UTS <

Louisville & Nashville Ry. v. United States, 282 U.S. -

ME Schick tuuete sands dndeae ceeds anes eane nes 14

. Norwegian Nitrogen Co. v. United States, 288 U. S. ’

Sa a ree ee ery rr ee ee 5

Order of Railway Conductors v. Swan, 152 F. 2d°

oe th Serer ree 13 oa

Sanford’s Estate v. Commissioner, 308 U.S) 39 . 141

United States v.\C.1.0., et SS rere 8

United States v. ‘Delaware & Hudson Co., 213 U. ‘~ z

a aie eee eeg ey Teer rrr rere 11; 12

= United States v. FE. I. DuPont de Nemoars & Co., 353 |

| it & Fee arr er re OTT yt yey ee ix: Ie

~ United States v.-Jim Fuey Moy, 241 U.S. 394...... 12

United States ‘v. Standard Brewery, 251 U. S. 210... 14

-¢ United States v.:200 Barrels of Whiskey, 95 TLS. os :

eae a lid a ANA Ge aad LORE NSE S ROA

Tinited States:ve Weitzel, 246 U.S. ee a

Wallace v. Cutten, 298>U.S. 229 .............. ae

Wiison. v. Civil Aeronautics Board, US. “App. §

7 DC: ., D4 BR: 2d TTB ... wee ewe cee eee eee 2la 3

= -

“

tnuex Couuunueas » iii.

| : : . Page

; Sratures: Ke —

Section 411, Civil Aero. Act of 1938, “49 USE. 491;

66 Stat. rer ree ees ee 15

Section 609, Civ. Aero. Act of 1938,; 49 USC. Sec. |

D09, 52 Stat. SE ..2,3; 0, 6, 8,10, 11; 15, 3a —

Section 901,Civ. Aero. Act of 1938, 49 U.S.C: ‘See.

3 <a ee 3, 5, 8, 15, 17, 18, Sa

‘Section 903, Civ. Aero, Act. of 1938, 49. U.S.C, Sec.

2 623, 52 Stat, Me Sc itass eget aaa’ 3, 8, 17, 16, 4a

-. Seetion 1006, Civ. Aero. Act of 1938, #08 S.C. 646 2,5

“15 U.S.C. 78s, Fe Se re es °10—

98 U.S.C. See. EE 60s 4 0h5 au cane hs ay ‘exe oe

28 U.S.C. Sec. 2101(c) ......... a de tane baees Pea

Bf ee Se ee errr ere vericways os Turee Tea %

47 U.S.C.A. Sec. 303(m) ...... <ekes pickbaaesnes - 10

49 U.S.C.A. 312, 49 Stat: 658 ore Abexauenek ae

ee OR OE eer creer err rr 2

- Rey. Stat. 4450; 46. U.S.C.A. 939(6), 49 Stat. 1381, |

=e amended ‘eehisas cchacwbe rene aee eases a

Reavtarions: ;

Civil Air Reguidtions, Section . 21.16, 14 CFR. ne

kh En ae es ek ks LET Se ae 3,16, 4a

Civil Air Regulations, Section ‘O1. 24(4), 14 C. FR. -

DAE 5. Sct Ade cagiicn« suka accuse es a, * 17, 5 Sa

Civil Air Regulations, Section 21. 41, 14 CER. Poa

BE oh Se ae Re ate ee Cs ee eke ee eee & 3, 16, aa

Civil Air Regulations, Section 21 42, 14 C. F.R. 7

BO cis caw Ae eee RER he ky Rae xeee es beens 3, 16, 5a.

Civil Air. Regulations, | Section 40.301, 14 C.F.R. ,

., ee neues Lh ak ache Raeas Sakae we kee ees 3,16, 6a

Civil Air Regulations, Section 40.302, . 14 CER.

PF eT Te PETE TT 3, 16, 6a

C.A(B.. Rules, Ait “Safety ‘Proceedings, Section” .

/ B16, 14 C.F.R. 301.26 Sean envensceees ss is ae

Ornen " £ }st

meee by Senator MeCarray, 88 Cong. Ree. 66342. 18

IN THE

Puprews Congrt nf the Auited States

Octoase TERM, 1957

~ No.

—— wee

Swney W. Wuson, Petitioner

a 3

Crvm, AERONAUTICS Board, Respondent

. @ : PERNA - Se nn a

_ PETITION FOR-A-WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT :

a . | hs 5 SS

foe

Petitioner, Sidney W. Wilson, prays that a writ of

certiorari issue to review the opinion and judgment

of the United States Court of Appeals for the District

of Columbia Circuit decided in the above case on May

9, 1957 by which that Court affirmed orders entered by

respondent suspending: petitioner’ s airline. transport

‘pilot err

OPINIONS BELOW

- The Initial Decision of tife Civil Aeronautics Board

‘Hearing Examiner was issued-October 18, 1955 It is

not officially reported but appears inthe Joint Appen-

dix below as certified to this Court (J. A. 5-22). The

f ‘

original Opinion and Order of the respondent, Civil |]

Aeronauties Board, was issued March 28, 1956. It.also

is not reported officially but appears in said J oint Ap- @

pendix below (J.A. 22-31). On reconsideration the

* Board issued its Supplemental Opinion and Orde? on

, July 31, 1956 which appears in the Joint Appendix

aforesaid (J.A. 32-38). The Opinion of the Court of

Appeals ( U.S.App. D.C. 244 F. 2d 773) -is §

printed. in the Appendix hereto. ( pp. la to ee

JURISDICTION

, “The judgment: of the Court of Appeals was canal |

May 9, 1957 and is included in the record as, trans-—

mitted to this Court. The basis of jurisdiction i in that

_ court was Section 1006 of the Civil Aeronautics Act of

. 1938, 49 U.S.C. 646. This petition for a writ of certi-

orari is filed within the time prescribed in 28 U:S.C.

- Sec. 2101(e); as further extended to September 7, 1957"

by Order of this Court dated July 26, 1957. The juris-

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

1254(1) and 49 U.S.C. See. 646(f).. a. ioe

_ QUESTIONS PRESENTED

In a proceeding under Section 609 of the Civil Aero- 4

nauties Act of 1938, as amended, (49 U.S.C. See. 599,

52 Stat. 1011) the Civil Aeronautics Board issued, on™

. reconsideration, an order suspending petitioner’s air- .

line transport pilot certificate forg period of ten days.

There was no a nor was it contended, that peti-

tioner was in any wa unqualified to hold such certifi- °

eate, the ten-day suspension having been ordered as a

deterrent sanction against petitioner for violation of _

« the Civil Air’ Regulations. The Court of Appeals af-

firmed the Board’s Order. — | :

_ The ae presented, therefore, are ( 1) whether

under Section 609 of the Civil Aeronautics Act‘ of 1938, ——

Congress. intended: to empower the Board-to ‘Suspend

the airnian certificate of.a-qualified pilot purely as a

~ deterrent sanction for penal purposes, and (2) whether cu

~ a long standing practice and custom of the Board/is .

sufficient to justify the exercise of such penalty power

under Section 609 J mit ,

STATUTES AND REGULATIONS 3

“The pertinent provisions ‘of the Civil Aéronauties

_ Act of 1938 are Sections 609, 901 and 903, together with

Civil Air Regulations Sees. 21.16, 21949, 21.42, 21.24(d)

- and 40.301-302, all of which are set’ out in, the Appen-

dix hereto, pp. 3a to 7a, so far, as material here.

STATEMENT OF THE CASE e

Petitioner, Sidney ‘W.. Wilson, is an airline trans- 3

port pilot employed by National Airlines, Inc. (J.A. ~

22). On December 31, 1954, the Administrator of

Civil Aeronautics,. asserting his authority under Sec-

tiori 609 of the Civil Aeronautics Act: of 1938 (52 Stat.

973, 49 U.S.C. 401 et seq.) filed a Complaint (J.-A: , 3-4)

With the Civil Aeronautics. Board alleging that peti-

tioner, on July 6; 1954, while pilot-in-command of Na- |

tional Airlines Flight 611, a DC-6B aircraft, engaged

in air commerce between Miami, Florida and’ Pitts:

_ burgh, Pennsylvania, had violated certain Civil Air

-Regulations in that he did not execute the missed ap-

‘proach procedure specified in the standard instrument

approach procedure’ for “Runway 28 at the-Greater -

Pittsburgh Airport (J.A. 22-23). It was further alleged

that petitioner violated the regulations in failing to

maintain a continuous radio watch on the appro- |

ee Fe

iia frequency (J.A. 23).. A hearing was held by

CAB Examiner: Caldwell who found that petitioner

had violated the regulations as alleged | but, con-

sidering that petitioner had - a. clear: record of over

10,000 flying hours to his credit, and inasmuch as he ©

-had flown continuously without incident during the

fifteen months that had elapsed, between the violation

incident and the Initial agrees stated that ‘‘.... any

suspension of respondent's airline. transport: pilot rat- .

ing . ... would in effect be a punishment and not of a

remedial nature, »(J.A. 20) The Examiner was of the

further opinion n that-‘‘no usefuF purpose’? would be

served by imposing a suspension of the certificate and

that ‘‘the publicainterest at this time does not. aa

any remedial action.”’ (J.A.20) - ¥

“The ease was appealed to the Jelena Board |

which, on March 28, 1956, affirmed the Examiner and

: found that the record did not eontain any evidence as

-to the need fora ‘‘suspension aga punitive or deterrent

sanction.”’ (J.A. 30) However the - Administrator :

petitioned for reconsideration on the. grounds that ‘‘it -

. is the added duty of the Board’’ (J.A. 35) to. impose

_- adequate sanctions for violation of. the regulations and

“that, the Board did not consider whether its action

would have a deterrent -effect on other pilots. (J.A..

36) On reconsideration the Board agreed with the:

» Administrator,and issued its Supplemental Order sus-

pending the petitioner ’@ certificate for a ten day period: .

(J.A. 37) -A Petition for Reconsideration of this

- Supplemental Opinion, filed on the grounds that the ~

Board exceeded its statutory powers by issuing the

- penalty sanction, (J.A. 38-40) was denied by the Board

- -but an appropriate order was issued staying execution

of the suspension. (J.A. 41-43) A Petition for Review

: eee

of the Board’s Order was filed under authority of Sec-:

tion 1006 of the Act, 49 U.S‘C. 646, in the. United

- States Court of Appeals for bea! pibiriet of Columbia

— Circuit.

. The Court of Appeals affivnied the. Board’ s iia.

mentai Order of Suspension in an Opinion dated May

9, 1957, holding that, Section 609 of the Act conferred

broad discretionary - ‘authority “upa the Board and

stating:

‘Nothing 1 in the Act or its titans listory per-

suades- us that disciplinary action for, violation ‘of.

- regulations was intended to be the exclusive prov-

ince of Section se :

In addition, the Court held that the practice of the ns

Board since-1938 has been to impose such suspensions

. gand that this: consistent and unchallenged administra-

tive practice would not be overturned except for very:®

cogent reasons. The Court was of the opinion thas ait

safety supported this. practice.

REASONS FOR GRANTING THE WRIT

1 THF DECISION OF THE COURT. OFr APPEALS BELOW IS in

PROBABLE CONFLICT : WITH APPLICABLE DECISIONS OF

THIS COURT - whe ; pe ole

‘A The Asserted, Power to Punish Unda: + Section 609

~ Regardless- of whether-the action of the Board is’

te termed a forfeiture, deterrent sanction, or disciplinary

_ action for violations of Civil Air Regulations, it is

still, nonetheless, a penalty. The Board itself, ‘in a

case decided shortly before the. present one, carefully

analyzed the nature of,a suspension of an airman’s

" certificate because of a violation of, the Civil Air Regu-

_ lations and a the ase time specifically held as fol-—

lows:

@ s : a 6

“We are inclined to the view, and. hold, that sus- |

pensions imposed merely to prevent and deter vio- |

-Jations, 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 immunity i is proyided by Section 1004(i).”” «

Brubaker and Olsen, CAB Dockets SR-2168, 2169, - -

August * 2 ga

This, of course, éonforms with a long“line of federal

eases and can leave little doubt that the Order herein

constitutes a penalty. See Huntington v. Attrill, 146 © |

U.S. 657, 668; Hélwig-v. United States, 188 U.S. 605, . -

611; Brown Vv. Civil Aer onautics Authority, 112 F. 2d

737..(C.A.9); Porter v. Montgomery, 163 F. 2d. 211

215 (C, A.3); Heitmuller v. Berkow, 83 U.S. App. D.C. —

70, 165 F. 2d 961, 962; Lee v. Civil Aeronautics Board,

96 U.S. App. D.C. 299, 225 F. 2d 950, Judge Pretty-:

man, dissenting on-another issue, 225 F’. 2d 953.

Actually, Section 609 of the Act is a purely remedial

statute whereby Congress has grarited the Board power

to ‘‘reinspect”’ aircraft and their. components and ‘‘re-

examine’’ airmen and, thereafter, ‘‘if the interest of.

the public so requires”’, to alter, amend, modify, sus-.-

pend and revoke. certificates previously issued under §

powers delegated in other sections of the Act. -Peti-

tioner does not contest Sectiop 609 as a remedial. pre-

vision, but questions whether it may be used to invoke »

penal sanctions.

It ts believed that the decision below is unique. in

that itis apparently the first time any court has _im-

plied a penal power from statutory Janguage which in.

no way contains a penalty provision or any. language

suggestive of punishment. :

x long line of cases has sonsiatently uplela the prin- :

ciple that authority to penalize will not be presumed. :

unless the statute involved expressly provides the

power. United States-v. 200 Barrels of Whiskey, 95 | >

U.S. 571, 576, Keppel v, Tiffin Savings. “Bank, 197 US.

' 356, 362, 373, Iselin v. U. S., 270 U.S. 245, ‘Campbell v.

| Galeno, 281 US. 599, Wallace v..Cutten, 298 US. 229,

LL P. Steuart & Bro. ‘Tne. v. Bow les, 322 U.S. 398, 404.

moe P. Steuart & Bro. v. Bow ‘les, supra, was a wartime >

_ ease in which this Court found that the power*to. allo- -

- eate rationed materials included the power to withhold

‘such materials when it was established that the peti-

tioner had used these crucial wartime goods in viola- - .

tion of the statute. The Court concluded that a sus-

pension order preventing the dealer from obtaining.

his share of: these materials -was remedial in nature...

It should be noted, however, that the Court expressly

- affirmed ithe principle that penalties for punitive pur- :

- poses avill not. be implied from. general words of a

.. statute, stating at 322 U.S. 404:

| “ave agree that it is for Congress to nintnevibe the ea

‘penalties for the-laws which it writes. It would

transcend both the judicial and the administrative ,

function to: make additions to those which Con- ©

gress has placed behind a statute. ( Citing cases) | |

Hence we would have no culty in agreeing

with petitioner’s contention jf the issue were

whether a suspension: order c be-used’ as‘a

means of punishment of an offénd¢r. But that

‘statement of the question is a distortio of thei issue

presented on this record. 9 .

Tt should be further ak: that the spenete | vase igs —--

not a. matter involving legislative inadvertence (Cf.

wWnited States v. Weitzel, 246 U. 8. 533, 043) or. the .

oe ee > s

* application of ‘the ‘rule of necessity’’. It is strictly

a question of whether a penal power can be read ‘into

Section 609 by implication. Congress expressly pro-

vided for punishment of violators of the act and regu-

- lations ‘in Sections 901 and'902. In Sections.901 and

7 903 the specific civil penalties and the procedures are

sef out including the right to a trial by jury. Both the

language and the jurisdictional amount in Section 903

follow the wording of the Seventh Amendment to the

Constitution. As a practical result of the decision be-

low any holder of a certificate fssued by the Civil Aero-

nauties Administration becomes dependent upon the

whim of the Administrator for a statutory right to a. .

trial by jury in cases where it is sought to punish such -

certificate holder; he has been afforded a statutory |

sight to a jury trial, which by such interpretation is

no longer his to demand. We need not remind this

_ Cougt that any seeming curtailment of a right to a

jury trial will be .severely scrutinized.. Dimick v. -

/Schiedt, 293 U.S. 474; District of Columbia v. Colts,

98° U.S. 63. ~ : =o, e-

gant as Aids in Consfruction .

_ We believe th¢ statute is clear in providing a judi-

cial forum for penalty proceedings against alleged vio- |

-. ators (Sections 901-903). - Nevertheless, to dispel any

doubts as to the legislative intention, it is appropriate

* to examine other enactments in related fields of gov-

‘ erment activity... See, Boston Sand Go. v. U. S., 278

U.S.-41; and UnitedStates v. C. I. 0., 335 U.S. 106.

The most qnalogous law is the statute regulating the’

merchant, marine. [hat act in diregt language em:

‘powers the Coast Guard Commandant to suspend or

. Be

: 4

“¢ “a

y :

revoke certificates for specified violations. The perti-- |

nent section reads: _ ee -

_ Tn any investigation of acts of incompetency or

misconduct or of any act in violation of the pro-

visions of title 52 of the Revised Statutes or of any

- of 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 rcasonable 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

-investigation and thé findings and recommenda-

tiofts 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 incompetent or has been guilty of mis-

behavior, negligence, or unskillfulness, or has en-

dangered 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 or holder of such certificates . . .”’

(Italies supplied). R.S. 4450; March-3, 1911, ¢.

231, or See. 291, 36 Stat. 1167, as amended May 27,

- 1936, 49 Stat. 1381; 46 U.S.C.A. 239 (g). oe

_ The seetion péstaining to,sea captains, who certainly

*‘are akin to airline captains, reads: ieee

>. “Licenses of eaptains . . . such license shall be sus- .

‘pended ar revoked upon satisfactory proof of bad

_. conduct, ‘intemperate habits, incapacity, inatten-

‘tion to his duties, or the willful violation of any -

provision of thi8 chapter . . . applicable ‘to him.”’

‘6 USOA. 2B... .

The Communications Act of 1934, as amended, is

equally helpful in demonstrating that the Congress is

~ able properly to siauaibuil its intention of conferring .

' punishment power. There, the Federal Communice.

tions Commission is empowered to affirm, modify, sus-

pend, or revoke certificates in issue- after notice of hear-

ing. It specifically enumerates a detailed list of vio-

lations such as ‘‘violating any act, treaty or convention,

. willfully damaging radio apparatus, transmitting

false or deceptive signals, . . . willfully or maliciously

we ie with any other communication or signal”

..’ ete. 47 U.S.C.A. 303 (m).

As to violators of radio operations aboard sis the

Federal Communications Commission 1 is empowered as

follows:

If the holder of a cumtttiine violates the redic

provisions of the Safety Convention or the provi-

sions of this chapter, or the rules, regulations or .

conditions prescribed by the Commission, and if the

efficient @giministration of the Safety Convention

or of this part so requires, the Commission, after,

“hearing, is authorized to modify or cancel a cer- .

tificate which it has issued . . .”’ (Italies supplied)

June 19, 1934, 50 Stat. 195, 60 Stat. 697 as renum-

bered in 68 Stat. 706, 707, 47 U.S.C.A. 359.

See also, the Securities Exchange Act of 1934, 15."

U.S.C. 78s,.48 Stat. 898, and the Interstate Commerce .

Act, Part II, See. 212, 49 U.S.C.A. 312, 49 Stat. 555, .

which specifically allow suspension where a licensee _

has willfully failed to- comply. — the Act or —

- tions.

Contrasting thé punitive’ provisions of these Acts: *

with the broad general terms of Section. 609° clearly

illustrates the remedial nature of that Section and em-

. phasizes the absence of. the typical statutory language

that is essential in order to sustain the Board’s action .

in inflicting a penalty suspension for ‘an alleged vio-

*Jation. See Fong Haw Tan v. Phelan, 333 US. 6.

o _Even in statutes of the merchant marine tvpe, there

is hesitancy to allow penal jurisdiction to be exercised

- by quasi-judicial bodies. In Bulger v. Benson, 262

Fed. 929 (C.A., 9, 1920) the Federal Supervisory In-_

spector filed a complaint tharging that the Master of |

_a ship was guilty of inattention to duty and had vio-

lated certain Pilot Operating Rules which: caused his ~

vessel to have a collision. After hearing, specific stat-

utory authority was cited to sustain a fine of $50 and

a suspension of the Master’s license for six months.

The government’s argument that this was a remedial -’

- action was rejected by the Court of Appeals in holding

that the-statute was ‘‘penal in its nature’’ and that the

suspension order under the procedure followed by the

Government was’in excess of the statutory authority. .

_ Only the $50 fine was upheld.

8. The Lack of Sutficient Standards in Section _-

- 609 When Used as a Penal Statute ; .

Another reason for denying the power to punish un-

der Section 609 is that it lacks an adequate criterion.

“There is neither an applicable uniform standard nor a

- limitation on the punishment... The penalty to fit the

alleged violation can be tailored: by the administrative .

"_ ageney as it sees fit: This, we suggest, is quite distaste-

- ful to a legal system which insists upon due process as

‘its cornerstone, and certainly approaches the brink of

violating constitutional safeguards. Jt has been re--

peatedly stated by this Court that. legislative enact-

. ments must be construed not only to avoid the con-

clusion that they are unconstitutional but also to avoid

grave doubts on that seore. United States v. Delaware

—_

~_—

& Hudson Company, 213 U.S. 366, 408; United States

Vv. Jin Fuey Moy, 241 U.S. 394, 401; Federal Trade

Commission v. American Tobacco Compens, 264 U.S.

298, 307; United States v. LaF ranca, 282 U.S. 568, 574;

Anniston Mfg. Co. v. Davis, 301 U.S. 337, 352; Cf.

Crowell v. Benson, 285 U.S. 22, 62; Lverson v. Board

of Education, 330 U.S. 1.

In Champlin Refining Company v. Connatiitienl Com-

mission, 286° US. 210; 240-43, this Court rejected the

-contention that an oil allocation statute was remedial |

and held that actually it was imposing additional

penalties, for violations.of the Act. It was, therefore,

held void for lack of a definite standard, quotingcat

_. p..242, the following statement from Connally v. Gen-

eral Construction Co., 269 U.S. 385, 391: .:

“* «That the terms of a penal statute creating a new.

offense must be sufficiently explicit to inform those.

~ who are subject to it what conduct or their part

will render them liable to its penalties, is a well

~ recognized requirement consonant alike with ordi-

nary notions of fair play and the settled rules of.

law. And a statute which either forbids or re-

-.quires.the doing of an act in terms so vague that.

men of common intelligence must necessarily guess

cat its meaning and differ as to its application, vio-

lates the first essential of cue process of law.’”’ .

4. The Applicability of Administrative Construction

The Court below stated that since 1938: the ened

has consistently suspended airmen’s certificates -for

violation of the regulations. There appears.to be some

doubt in the Board itself as to this consistency, for as _

late as October 18, 1955 in. the Initial Decision herein ~

- the Hearing Examiner referred to his. powers in reme-

dial weal mses 20- 2r) thus following the languhge 7

} /

‘ ® et : , °

and meaning of the Board’s own Rules in Air Safety

Proceedings: = :

‘301.26 Initial Decision. (b) Where the examiner

» has determined that remedial action is required

.." . the examiner shall inquire of the Administrator

? if there is any record of previous suspensions or

revocationg of Respondent’s certificates; whether

Respondent has had any assessment of civil

penalties levied on. him or any previous discipli--

-nary action for violation of air safety standards;

whether proper notice thereof has been given Re-

spondent, and request copies of any reply thereto.’’

Further, the question here has never previously been

* actually contested and argued before the Board, and it _

- eannot reasonably be held to have decided the penal

naturé of a suspension for violation of regulations

until Brubaker and Olsen, GAB Dockets No. SR-2168, -

- 2169 (Aug. 2, 1954), quoted above. Under these cir-

cumstances no effect should be given to the so-called

administrative practice. See Anderson v. McKay, 94 _

- U.S. App. D.C. 11, 211 F. 2d 798 and, Ordér of Rail-

- way Conductors v. Swan, 152 F.2d 325 (C:A. 7), aff'd.

329 U.S. 520. Only last spring this Court‘in United _—

States v. E. I. DuPont de Nemours & Co., 353 U.S. 586,

590 overruled an argument that a thirty-five year ad-

ministrative practice by. the Federal Trade Commis-

sion in refusing to apply Section 7°of the Clayton Act -

to s6-ealled ‘‘vertical acquisitions’’ was persuasive as»

to the intent of Congress. This Court held that the

question was being decided by it for the first time and .

that not only had the Court the duty to reconcile ad-

‘ministrative interpretations with the policies laid down -

~ by Congress, but that the failure.of the Commission to —

act was ‘‘not a binding administrative interpretation

that Congress did not intend vertical acquisitions to .

, ,

come within the purview of the Act.’ By the same

reasoning, it is submitted that the previous actions by

the Civil Aeronautics Board in suspending certificates

as punishment for violations does not bind the Courts.

Certainly administrative rulings eannot add to the :

‘_- terms of an act. of Congress and make conduct criminal

which such laws"leave untouched. United States v.

Standard. Brewery, 251 U.S. 210, 220. Moreover, the

rule as to the persuasive effect of administrative prac-

-tiee is applicable only- where the statute is ambiguous

‘or doubtful, Louisville d: Nashville Ry. v. United.

States, 282 U.S. 740, 757 and where an administrative —

agency assumes a power plainly not granted, no amount

of administrative interpretation in favor of the as-

sumed power is binding upon the courts. Tezras Pacific &

-Ry. Co. v. United States, 289 U.S. 627, 640.

In Sanford’s Estate v. Commissioner of Internal .§

Revenue, 308 U.S. 39, Mr. Chief Justice Stone stated

at p. o2:

“‘ Administrative practice may be of persuasive

weight in determining the construction of a statute

of doubtful meaning? where the practice does not ~

conflict. with other provisions of the statute and .

is not so inconsistent with applicable decisions of

the Courts as to produce inconsistency and con-

fusion in the administration ef. the law.’’ (Italics

supplied)

and further, sat p. 53:

“The very purpose ‘sought to be ‘cian by:

judicial acceptance of.an administrative practice

would be defeated if we were to regard the present

practice as controlling. If a practice is to be ac;

cépted because of the superior knowledge of ad-

ministrative officers of the administrative needs

.¢

and eonvenience (citation) there i is no such reason ae

for its acceptance here.”’

= We concede that Section 609, -when viewed in ite |

remedial context, grants. broad general powers, but -we

~ strongly urge that it is clear and unambiguous in not —

providing punishment for violators. The respondent —

has heretofore relied on the Section 609 phrase ‘‘if the

interest of the public so requires ‘fas granting the:

power to punish for violations, but it has been ‘stated

by this Court that the phrase ‘‘in the interest of the

public’’ contained in in Section 411 (49-E8.C. 49], 66

” Stat-628) of the Act is not sufficient to impute puni-

_ tive powers. In American Airlines v. North American,

= 351 U.S. 79, 85 this Court stated,

“The section is not concerned with punishment of

wrongdoing or protection of injured competitors,

but rather with protection of the _— interest. ee

(Italies nee)

By the same token, Section 901, not availed of by re-

spondent. here, is unequivocal in providing penalties for

such violators.

Norwegian N itrogen Co. v. United States, 288 US.

-294 the only citation in the opinion below, in petition-.

er’s view does not affect the validity of the foregoing

3 contentions. The full statement from which the Court:

quoted is at p: 315 of 288 U. S., as follows:

“True indeed it is that administrative practice

does not qvatl to overcome.a statute so plain in its

commands as to leave nothing for construction.

True it also is that administrative practice consis-

tent .and generally unchallenged will not. be over=

- turned except for very cogent reasons if: the scope

of command is indefinite and doubtful. ae

— =< Italics —

@. 16

‘It'is submitted there is no warrant to the assertion

below that air safety is the touchstene of public policy.

supportirig the administrative practice: No one, has

‘offered in the record or elsewhere.to demonstrate the

truth of this proposition, the respondent having merely |

relied on ‘‘the common knowledge of mankind. ”” (Resp.

Brief below, p. 29.) :

“Iti is submitted that the. contrary i is salen the fact. ©

Commercial’ fiying demands the highest degree of. pro-

ficiency. It-is mandatory for professional ' pilots to

maintain their skis at their peak by constantly exer-

cising them. Of course, the Respondent Board is fully

cognizant of this important aviatinn axiom.

‘The Civil Air Regulations in several instances. re-

quire recent flying experience in order to obtain and

exercise the privileges of an airline transport’ pilot

rating. See C.A.R. Sées. 21.16, 21.41, 21.42, 40.301; -

14 CF. RE Sees, 21.16, 21.41, 21.42, 40.301-2 (Appendix

pp. 3a ‘to 7a). In order.to maintain such rating,

an airline. transport pilot. must undergo a route fa-

miliarity examination (C.A.R. Sec. 40.302; 14 C.F.R.

_ See. 40.302) at least once every twelve months, and at

_ least each six months he must satisfactorily demon-

strate his navigation; instrument, ‘radio and other.

_ flight skills in actual flight. C. A.R. See. 40.302, supra.

Hence, the Board’s present insistence that it is pro-—

moting safety by grounding experienced airmen is not

only inconsistent with its own regulations, but is a mis-

conception of its statutory ‘powers.-, Clearly, the

grounding of an experienced and qualified airman for

any period whatsoever cannot be in the public interest:

If itil: it will tend to make a pilot less qualified— a

at least temporarily.’ |

. This administrative meiteaie can be ecalbicwecs. ,

, versing the Court below... It is probably unnecessary to

-add that there is an ample deterrent element .(assum-_

ing, arguendo, that it is necessary in order to require

pilots to fly safely), in imposing a pecuniary fine after

full judicial: process, theluding trial Sy jury, as con- »

templated ‘by. Congress in Sections 901-903. Indeed,

the structure of the Act*is such, as pointed out above,

that Congress must have believed the fine would have a

\more incisive and more forceful deterrent effect. than eS

espe =. & eee a

I. THE COURT OF APPEALS HAS DECIDED AN IMPORTANT |

' QUESTION OF: FEDERAL LAW WHICH HAS MOT BEEN.

BUT SHOULD .BE, SETTLED BY THIS COURT

- Section 903.(b) (1) of the Act (49 U.S.C.A. Sec. |

- 623 (b) (1)) details the procedure in respect to civil

penalties for violation of Title- VI’ (the authority for

promulgating Civil Air Beenie). —— (4) —

of f that Section states: Sead =

“*(4) The Supreme Court of the United States,

and under its direction other courts of the United

States, may prescribe rules regulating such pro-

ceedings in any. particular not provided by law.”’

Reported cases of these decisions are rare and. so. far

as we are aware, this Court has never had occasion to

1 The ] present case, involves only a 10 day suspension, but recent

Board: cases indicate 6 months is within its concept of the public

interest. Indeed, there is no limit to the sanctions ‘possible under

Section 609, a fact that is embraced by C.A.R. 21.24(d) ; 14 C.F.R.

21.24(d) (App. p. ...-) which authorizes revocation as legitimate

‘sanction. ws poe ediieal

‘prescribe, or divect other courts to” prescribe, such rules

- The present atrophic condition of Sections 901 and

903 is a result of administrative legislation and is _in-

consistent with the substantial body of law that nffist

__ have been anticipated by the Congress’ in order to have.

‘. induced it to provide this important provision. A ?

glance at Titles V, VI and. VII (the only parts of the

-rAct subject to the. civil penalties of Section 901) will

demonstrate that this congressional foresight could be |

| predicated only upon anticipated judicial proceedings

involving any penalty for violations of the regulations

promulgated under Title VI. ae e

This premise considered, it is respectfully urged that |

it is of importance: to that Segment of the public in- -

volved in interstate and foreign air commerce that this .

_ Court consider this case to determine in-what cases the.

holders of certificates -issued by the Civil Aeronauties

Administration are entitled to judicial presen, and a |

trial by jury. — ;

Petitioner wishes finally to advine the Court that _

there‘is now pending in the United States Court of <

- Appeals for the Seventh Circuit the case of Hard v.-

‘Civil Aeronautics Board; No. 11989 in which although

there are additional considerations, the issue is similar

_to the issue presented herein, i.e., whether under See-

‘tion 609 of. the Act the respondent has the power to

invoke penal sanctions by suspending an airman’s cer- —

tifieate for violation of regulations. Oral argument is -

scheduled i in that ease + for September 16, 1957.

2 See eet by Senator McCarran, 83 Cong. Ree. 6634 (May .

9, 1938). .

CONCLUSION.

For the reasons above stated; it. is respectfully: sub-

mitted that this petition for a writ of certiorari should

abe — a: ae os

ee F. Harorp BeNnert |

oy i 55th Street and Cicero Avenue:

3 Chicago, Hlinois —

‘Grorce F. ARCHER

547 West Jackson Blv a.

_. Chicago, Illinois |

LLoyp FLETCHER

' 1366 National Press Building

Washington, D.C. |

Attorneys for Petitioner i

* ‘

‘9

¢g

a ee

SiDNey Ww. Wisos,. Petitioner,

=, oe

Civi. Azronavtics Boarp, Respondent.

- No. 13553.

| United States Court of Appeals

District of Columbia Circuit. -

Argued April 1, 1957”

Decided May 9, 1957

* * * * * @ .

cs Mr. Lloyd Fletcher, Washington, D, C., for. appellant.

Mr. O. D. Ozment, Chief Litigation and Research Divi-

-M. Stone, Gen. Counsel, Civil Aeronautics Bd., John H.

Wanner, Associate Gen. Counsel, Civil .Aeronautics Bd.,.

Gerald F. Krassa and Ulrich V. Hoffmann, ‘Attys., Civil |

Aeronautics "Bd., and Daniel M. Friedman, ‘Atty., Dept. of

Justice, were on the brief for respondent. .Mr. Robert L.

Park, Atty., Civil Aeronautics Bd., also entered an appear-

ance for respondent. —

"Before BaZELoN, Fany and DaNAHER, Cirenit Judges.

Bazewon, Circuit Judge.

Petitioner, an airline pilot, seeks review of Civil”.

Aeronautics Board orders which (1) suspended his airman

certificate for ten days, and (2) denied reconsideration of

the’ suspension. The single 1 issue is stipulated to be:

Whether, i in Groundtances in, which, the Civil Aero-

. nauties Board does not find the pilot to. be unqualified ~

to fly, the Board i is empowered under Section 609 of ;

oe 2a

the Civil Aeronautics ‘Act? to suspend. nits 8 airman cer-

tificate as a deterrent sanction.

- .

Under: § 609, the Board “may reexamine any airman, ~

and, after investigation, and upon notice and hearing, may

alter, amend, modify, or suspend * * * [his] airman cer- -

tificate * * *, if the interest of the public so” requires,* wth:

Emphasis adtied. |

Petitioner argues that, since reexamination is a condition. i

precedent to action under § 609, thé section must be read to

authorize suspension only for lack of competence or qualifi-

regulations, he says, is covered exclusively by § 901 of the

Civil Aeronautics. Act? which' provides that a. ‘‘person: who.

- violates {regulations] shall be subject to a civil penalty eee

not to. exceed $1000 for: ‘ach such violation. ’”* His view: is .

that/Congress did not authorize suspension of a certificate

for disciplinary purposes. We oganot agree. on

By resting suspension on a Board determination that

“the interest of the public so requires,’’ Congress conferred

broad discretionary authority upon the Board. What Con-

gress had in mind appears from the direction contained in’

§ 601(b) of, the Act® that the Act be administered ‘‘in such.”

manner as will best tend to reduce or éliminate the possibil-

ity of, or recurrence of, accidents in air ‘transportation

adie Nothing i in the Act or its legislative history per-

suades us that disciplinary action for violation of regula-

tions was intended to be the exclusive province of § 901.

Moreover, the Board has never ‘recognized such ex-

clusivity in its administration of the Act. From the effec- |

ue date of the Act in 1938 through June 30, 1956, the - a

- -152Stat. 1011 1 (1938), 49 U.S.0sA. 93559. Se

252 Stat. 1015 (1938), 49 U.S.C.A. § 621.

* 52 Stat. 1007 (1938), 49 USCA. § 551.

~ ,

7 ae

_ ‘Board has suspended approximately 4000 airmen for-viola-_ =

tion of rules, without findings that they lacked competence | ;

or qualifications ‘and. without requiring re-examination be-

fore reinstatement. This consisterit and, until now, un-

‘challenged administrative practice ‘‘will not be overturned

‘except for very ‘cogent reasons * * *.’? Norwegian Nitro-

gen Products Co. v.-United States, 1933, 288.U.S. 294, 315,

53 S. Ct. 350,358, 77 L.Ed 796.° The most cogent of rea-

sons—air safety—supports the administrative practice here

e -

under attack.

Affirmed, : ie ae. A

est ‘Statutes Involved “4 4.

“The Civil Aeronautics Act of 1938 (52 Stat. 973) as ~”

_ amended, (49:U. S.C. A. 401 at seq.), provides in part:

Sec. 609 (52 Stat. 1011, 49 U.S.C.A. 559) Sg

‘‘The Board may, from: time to time, reinspect any

aircraft, aircraft engine, propeller, appfiance, air navi-.— .

gation facility, or air agency, nay reexamine’ any air-

mah,’ and, after investigation, and upon notice and

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

whole or in.part, .any type certificate, _ production

- certificate, airworthiness cértificate, airman certificate,

dir carrier operating. certificate, air navigation facility

or in part, any such certificate for any cause which,

‘at the time of revocation, would justify the Ad-. ;

_. \ministrator of Civil) Aeronautics in’ refusing’ to

issue to the -holder of such certificate a like cer-

tifieate ....” Sak oe ame, SO aa

' (a) Any person 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 Post-._ .

° é =

ta .’ af

- master General dion: this chgpter, shall be silos, to

a civil penalty of not to exceed $1,000 for each such

violation. -Any such penalty may be compromised by

_ Board or the Postmaster General, as the case may

. ‘(b) ‘In edse an aircraft.is involved in such viola-

_ tiqp and the violation is by the owner or person in com-

mand of ‘the —* suth aircraft shall be subject to

_ lien for the —-- |

‘so

See. 903 (52 Stat, 1017, 49 U.S.A, 623)

““(b} (1) Any civil penalty, imposed under “this

chapter may ke collected by proceedings in parsonant

against the person subject to the penalty...: Such pro- |

ceedings. shall conform as nearly as may ‘he to civil

suits in admiralty, except that either party may

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

in controversy exceeds $20, and the facts so. tried

shall not be. re-examined other than in accordance

with the rules of the common law . +s

**(4) The Supreme Court of the United States, and

under its direction other courts ofthe United States,

may prescribe rules regulating such proceedings: in

any particular not ——— by law.’

C.A.R. 21.16, 14 C.E.R. See. 21. 16. Aeronautical experience.

An applicant for an airline transport pilot rating shall

hold a valid commercial pilot rating, or equivalent as de- *

"termined by the Administrator, and shall meet the dotlow- ,

ing aeronautical experience requirements:

(a) Applicant shall have had at least 250 heiens of flight

time composed of time aS pilot in command, or time as

eopilot actually performing the duties and functions of

a pilot.in command under the surveill@nce of the pilot in

- command, or any combination thereof. Of this time, at ~

YW least 100 hours sh have been cross-country flight time,

and at least 25 hours shall have been night flight time.

Flight time shown in fulfillment of the requirements of

this paragraph may also be used for the purposes of ae

graph (b) of this section. : ,

2 (b) Applicant shall have had at least 1,200 hours of.

flight time as pilot within the last 8 years, of which |

fe hours shall have been had: within 60 days immedi-

‘ately preceding the date of application ;

(2) 200 hours Shall. have been eross-country flight time ; : 5

. (3) 100 hours shall haye been night flight time ;

(4) 75 hours shall have been instrument time under

actual or simulated instrament conditions of which not less

one 50 hours shall have neon | in actual flight.

CAR 21:24, 4 CER. ted: 21.24.

_(d) Nothing in this section shall -be construed to aay

or defeat the jurisdiction of. the Federal courts, the Ad-

+ ministrator, or the Board to gnpose any authorised sane-

tion, including revocation of the certificate, for a viola-|

tion 6f the act or of the regulations in this sub-chapter

occurring during: the effective period of the certificate.

C.A.R. 21.41, 14 C.F.R. Sec. 21.41 Passenger carrying.

__ A certificated airline transport pilot shall not pilot any

_ aireraft carrying-any person other. than members of the

crew thereof, ceptificated airmen carried in air ¢arrier

aircraft in furtherance of their official duties, or a cer-

tifiecated instructor rated tor the aircraft operated, unless,

within the 90 days immediately preceding, he shall have -

made at least 3 take-offs, and three-landings to a full stop,

in an aircraft of the same category (§ 21.34) aid if an

airplane, within the same class (§ 21.35 (a)) as that of the

aircraft in which any such — is carried. aoe

> CAR. 21.42, 14 C.F.R. ‘See. 21.42 Recent angertoncs re-

| _ quirements. )

(a) Passenger flight (day and night yA certificated sip.

line transport ‘pilot shall not pilot an aircraft carrying

any person other than the members of the crew thereof, .

_ certificated airmen. carried in air carrier aircraft in fur-

a. @ _ a

Pata

therance of their official duties, or a certificated instruc,

_ tor rated for the aircraft operated, unless within the

' preceding 3 calendar months he shall have made and

- logged*at least 3 take-offs and landings to a full stop in

an aircraft of the same category, ¢lass, -and type as that

' of the aircraft in which. such person is carried.

(b) Instrument flight. A certificated. airline transport

pilot, who within the preceding 6 erilendar months has

~ not flown and logged at least 2 hours of flight time solely °

- by reference to instruments under either actual or properly

sintulated instrument flight conditions, shall not pilot an .

aircraft under such. conditions until , he has flown and 1

logged at least 2 hours of such flight time accompanied

by a certificated pilot of at least private grade holding an -

appropriate category, class, and type rating for the aircraft.

and authorized to operate aircraft under instrument eondi-—

tions.. :

CAR. 40.301, 14 C.F.R. See. 40.301 Pilot recent experience:

No air carrier shall schedule a pilot to serve as such in

scheduled air transportation unless ‘within- the -preceding

90 days he has made at least 3 take-offs and 3 landings

in the airplane of tlie particular type on which he is to.

serve.”

-~)

C.A.R. 40.302, 14 C.F.R. See. 40.302. Pilot checks.

(a) Line check: Prior to: serving as pilot i in initia

and ataleast: once éach 12-months thereafter, a-pilot shall —

| ead accomplish 2 line check ir one of the types -

of-aifplanes normally to be flown. by. him. his check

shall be given by a check pilot who -is ‘qualified. for the

route. It shall consist of at ‘least a scheduled flight be-

tween terminals over a route to w hich the pilot is normally -

assigned during which the check pilot shall determine

whether the individual being. checked satisfactorily ex-.

ercises-the duties and responsibilities of pilot i in command.

7a : ‘4

(b) Proficiency check: (1)-An air carrier shall not utilize

a pilot as ‘pilot in command until he has satisfactorily —

-demonstrated to a-check pilot or a representative. of the

Administrator his ability to pilot and nayigate airplanes,

to be flown by him. Thereafter, at least twice each 12 -

months at intervals of not less than 4 months or more than’ . -

- 8 months, a similar pilot proficiency check shall be given

each such pilot? Where such pilots serve in more than

one airplane type, the pilot proficiency check shall be gives.

‘in the larger airplane.type at least once each 12 months.

6, *

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.