# Petition for Writ of Certiorari — Wilson v. Civil Aeronautics Board (No. 434) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386418_1510%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1957 ## Text ‘IN THE Supreme Court nf the United States, ‘OCTOBER, TE RM, 1957 ° ABA Sipney W, Witson, Petitioner Vv 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 ; . my 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 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 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 iP _ 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 \ AV ~ 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 —_ ae ~_— & 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.’”’ . aa 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 — = 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 6a 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, * --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386418_1510%3A2. Public record. Not legal advice.