Appendix — Hard v. Civil Aeronautics Board (No. 734)

OPINION.

(248 F. 2d 761.)

Ix tHe Unitep States Court or APPEALS

For the Seventh Circuit.

No. 11989. SeErpTEMBrx TERM AND Session, 1957.

2

mantis R. Hano, Petitioner, | O" Petition For Re-

- . view Of An Order

’ Of The Civil Aero-

Civit AERONAUTICS Boarp,

nauties Board.

Respondent.

October 8, 1957. =

Before Fixxecasx and Scunxackennerc, Circuit Judges,

Pratt, District Judge.

Fixxecan, Circuit Judge. A protocol statement, part of

the Congressional declaration of policy in § 2 of the Civil

Aeronautics Act of 1938' is the main prop for Board?

action under § 609 of the Act:

‘See, 2. In the exercise and performance of its

powers and duties under this Act, the Authority [Civil

Aeronautics Authority, now ( AB] shall consider the

following, among other things, as being in the public

interest .

1. 52 Stat. 973, 980; 49 UL S.C. A. § 402.

2. Civil Aeronautics Board, See 54 Stat. 1235 for the transfer

of Civil Aeronautics Authority; 1940 Reorg. Plan No. IV, § 7

effective June 30, 1940, 5 F. R. 2421.

26

(b) The regulation of air transportation in such

manner as to recognize and preserve the inherent ad-

vantages of, assure the highest degree of safety in

[air] transportation . . . (italics supplied) ”’

Section 609, in relevant part provides that: ‘‘The

Authority . . . from time totime . . . 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 . . . airman certificate .. .

if the interest of the 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

Authority in refusing to issue to the holder of such cer-

tificate a like certificate. In cases of emergency, any such

certificate may be suspended, in whole or in part, for

a period not in excess of thirty days, without regard to

any requirement as to notice and hearing. The Authority

shall immediately give notice of such suspension to the

holder of such certificate and shall enter upon a hearing

which shall be disposed of as speedily as possible. During

the pendency of the proceeding the Authority may further

suspend such certificate, in whole or in part, for an addi-

tional period not in excess of thirty days.’”*

Challenging a final order of CAB suspending his airline

transport pilot ratiag for six months (with a credit for

sixty days) Hard invoked our jurisdiction under § 1006 of

the Act‘ coupled with § 1009 of the Administrative Pro-

cedures Act,® seeking reversal of that decision because it

is grounded on the Board’s conclusion that: ‘‘. . . the

accident itself, together with a substantial suspension of

_ . . [Hard’s] airline transport rating, would provide a

sufficient deterrent against . . . [Hard] or other pilots —

ae eS

% «=©52 Stat. 1011; Emphasis supplied.

4. 52 Stat. 1024, as amended; 49 U. 8. €. § 646(a).

5. 60 Stat. 227; 5 U.S. C. § 1001, et seq.

27

taking simdar risks with their passengers’ lives.’’ With-

out disputing the facts concerning his accident, Hard at-

tacks the Board’s jurisdiction to impose on him what he

categorizes as a ‘‘penalty’’; while buttressing his conten-

tion with the argument that it was error for the Board

to try a case under § 609 on a theory that he lacks quali-

fications for an airline transport pilot rating, and then im-

pose deterrent sanction despite finding him qualified. And

in reliance on § 903(b)(1) Hard, the petitioner, asserts he

is entitled to a trial by jury on issues involving civil

penalties. |

ty his various points urged in this review, Hard would

constrict the Board’s power, to suspend his airline trans-

port rating, to only the case where it found him unqualified

or lacking ability to fly aircraft. -The Board, on the other

hand, reading and synthesizing §2 and § 609 envisages a

broad grant of power -encompassing deterrent action when

‘*the interest: of . the publie’’ safety ‘‘so requires.”’ In

other words this administrative agency charged with ‘‘as-

~ suring the highest degree of safety’’ in air transportation

contends that § 609 supplies authority for making an

example of Hard in ordér to deter him and other airline

pilots from jeopardizing the safety of travelers by air.

‘*Penalty,’’ as a symbol repeatedly used by this petitioner

is singularly ineffective for gauging the scope of power

granted the Board by Congress. Power and jurisdiction

flow from the total piece of legislation, under examination,

for that reason the answer eludes capture with the singl+

word ‘‘penalty.’’ Legislative history and experience under

the Act combine in firmly suggesting an interpretation at

odds with the limited view put forward by this petitioner.

At any rate the conclusion petitioner suggests—that the.

Board mandated a ‘‘penalty’’ is unpersuasive rather than

a logically compelling linguistic technique. We thiak the

. Board's order is consonant with the Congressional grant

28

of power and consistent with achieving the statutory aim

spelled ov! as the ‘“‘highest degree of safety.’? Whether

the Board’s order has salutary effect is beside the mark

for all the agency can do is strive for protection of the

public traveling by aircraft. But the problem engendered

by this appeal is, of course, not solved in isolation. For,

as we show below, Hard participated in a serious episode

appraised by the examiner as ‘‘marginal’’ with regard to

fault and responsibility. What Hard contends for would

drive the Board into an area of sharp black and white,

leaving the gray zone unprotected when, in the exercise of

its discretion, a qualified airline pilot’s behavior merits

suspension rather than revocation of rating.

After a non-fatal accident on February 17, 1956, at

Owensboro, Kentucky, involving an Eastern Air Lines air-

craft, Hard was piloting, his airline transport pilot rating

(ATR) was suspended, on an emergency basis, for SiXiy

days. During that suspension period the Administrater

of Acronauties filed a complaint with the Civil Aeronautics

Board seeking a suspension or en onc of the ATR held

by this petitioner. An examiner for CAB found that the

60 days suspension was in the Wubliec interest but that there :

was no violation of Civil Aeronautics Regulations. CAB,

on review, ordered petitioner’s airline traysport pilot rat-

ing suspended for six months. The impact of the Board’s

order, stayed during this court’s review, precludes peti-

tioner from serving as an airline captain during the

suspension period established by the Board, though he may

act as a ¢o-pilot by virtue of other unrevoked licenses

currently held by him.

Lying behind the Board’ s ultimate action in ordering

Hard’s suspension for four months (crediting him with

two months period under their emergency ofder) is this

pilot’s approach to the Owensboro Airport for landing

under instrument conditions due to rain in the area. After

through the overcast north of the field, petitioner

ed to land on Runway 5 which runs to the north-

» of action which required that the aircraft

1 to a point southwest of the field so that the

ld be landed in a northeasterly direction. Hard,

‘aircraft during this approach, proceeded south-

point found by the Board to be approximately

ile to the left of the southwest end of Runway 5.

egan a descending and banking U turn to the

ar the runway. The left bank steepened sharply

roach; power wys applied and the aircraft rolled

ht; and the right wing struck the ground at a

eet short of the runway and 125 feet to its right.

ft was demolished, but none of the twenty-three

board sustained any serious injury. At the

gs it was the Administrator’s contention, and the

found in effect, that Hard had not allowed suffi-

: ‘ ‘suspension between the end of the runway

pint at which the turn began to permit a normal

the runway; that he persisted in attempting to

‘it became apparent that a landing could be ac-

| only through acrobatic maneuvers. There was

by the Board that Hard lacked flying ability.

on $609, the Administrator filed a complaint

B on March 16, 1956, requesting revocation or

n of petitioner's ce rtificate based on alleged lack

cation. CAB, through its Bureau of Safety In-

m (64 Stat. 972, 49 UL S.-C. $8581, 592), held

arings en March 22, 1956 and took testimony of |

; ineluding this petitioner. Petitioner responded

\ inistrator’s complaint with an answer and

to dismiss; the hearing examiner overruled the

Subsequently a trial on the merits was held by

Board’s examiner and he found, in substance, that

though the emergency suspension was in the public interest

es

oa

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there had been no violation of any rule, regulation or stat-

ute—or, succinctly put: Hard had not been shown to be

unqualified to fly and that disciplinary action was uncalled

for in the circumstances. The examiner’s decision was

appealed, June 1, 1956, by the Administrator to the Board.

After the examiner’s decision, but before the Board’s final

suspension order, its accident investigation report was

issued, containing inter alia this statement: ‘‘The Board

is of the opinion that these factors [outlined in the report |

indicate poor planning and execution of the approach by

Captain Hard.’’ Several months later, the Board wrote

its decision and stated among other aspects:

‘‘We agree with the Administrator that disciplinary

action is called for in this case, and that the Board

coule not, by failure to impose a sanction, tacitly con-

done « course of action, which, even if no accident had

resulted, would have brought an aircraft to within

inches of disaster. On the other hand, we question —

whether respondent’s conduct on this flight was so

egregious as to require revocation in the public in-

terest, when we consider his eleven year record as a

captain for Eastern and over 8,000 hours of flying

experience without a previous incident of this type,

or any disciplinary action for violations of safety

rules. This does not mean that a single violation by

an experienced pilot cannot ever call for revocation

of his rating, for in flagrant cases the Board ha-

ordered revocation. But on the facts here involved, we

believe that the carelessness shown is not so egregious

as to point to the ultimate sanction of revocation. In

our judgment, the accident itself, together with a sub-

stantial suspension of his airline transport rating,

would provide a sufficient deterrent against respond-

ent or other pilots taking similar risks with their

passengers’ lives.

Accordingly, we find a six month suspension shoul:

be imposed upon respondent, . sg

From its factual premises, that administrative logic is

und: -standable and, again we comment on the absence of

>

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a contest over the fact findings concerning the accident.

-To be sure the suspension of Hard, a qualified airman,

at first appears as an arbitrary or unauthorized action

but we think there is ample statutory foundation support-

ing the power asserted by the Board. Nothing we have

found in the Act manifests a legislative purpose to hobble

this agency in its exercise of discretion. Policy formulation

is a legislative function.

Wilson v. C. A. B., 244 F. 2d 773 (D. C. App. 1957)*

currently pending on petition for certiorari is closely

analogous to Hard’s case and apparently the District of

Columbia Court of Appeals was impressed by the Board’s

history that: ‘‘From the effective date of the Act of 1938

through June 20, 1956, the Board has suspended approxi-

mately 4000 airmen for violation of rules, without findings

that they lacked competence or qualifications and without

requiring re-examination before reinstatement.’’ By a

marginal note in its brief filed in our court the Board has

supplied us with similar information. While, of course, a

persistent course of error could not override judicial judg-

ment, courts do and have consistently placed authoritative

weight on interpretative rules and practices consistently

followed over long periods by administrative agencies.

United States v. Shreveport Grain & Elevator Co., 287

U.S. 77 (1932), Norwegian Nitrogen Products Co. v. United

States, 288 U.S. 294 (1933). Without relying on the Wilson

case we would leave the order brought before us for scru-

tiny undisturbed because in our opinion the Board act?d

within permissible limits of administrative interpretation

circumscribed by the power and authority granted in §§ 2

and 609.

We find nothing in the record showing any steps taken

by petitioner for deferment of the accident report at the

Board level, despite his obvioys awareness of the investi-

6 Supreme Court Doc. No. 434, 26 L. W. 3084.

gation. Federal Trade Commission v. Cement Institute,

333 U. S. 683 (1948) adequately offsets petitioner’s claim of

pre-judgment by the Board. See Davis, Administrative

Law, Chapter 9 (1951). Indeed, the absence of revocation

manifests treatment of pilot Hard inconsistent with that

argument his counsel now presses On US.

32

We affirm the Board’s order presented for review by the

petition filed in our court.

OrperR AFFIRMED.

STATUTES INVOLVED.

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

amended, (49 U, S. C. 401 et seq.), provides in part:

DECLARATION OF Po icy.

Sec. 2. [52 Stat. 973, 980, 49 U. S. C, 402) In the exer-

cise and performance of its powers and duties under this

Act, the Board shall consider the following, among other

things, as being in the public interest, and in accordance

with the public convenience and necessity—

(a) The encouragement and development of an air-

transportation system properly adapted to the present and

future needs of the foreign and domestic commerce of the

United States, of the Postal Service, and of the national

defense;

(b) The regulation of air transportation in such manner

as to recognize and preserve the inherent advantages of,

assure the highest degree of safety in, and foster sound

economic conditions in, such transportation, and to improve

the relations between, and coordinate transportation by,

air carriers.

(c) The promotion of adequate, economical, and efficient

service by air carriers at reasonable charges, without un-

just discriminations, undue preferences or advantages, or

unfair or destructive competitive practices;

(d) Competition to the extent necessary to assure the

sound development of an air-transportation system prop-

erly adapted to the needs of the foreign and domestic com-

merce of the United States, of the Postal Service, and of

the national defense ;

oe

‘(e) The regulation of air commerce in such manner as

to best promote its development and safety; and

(f) The encouragement and development of civil aero-

nautics.

201(b) There shall be in the Board an /sdministrator

who shall be appointed by the President by and with the

advice and consent ofthe Senate, and who shall receive a

salary at the rate of $15,000 per annum.

Swe. 301. [52 Stat. 985, 49 U. S.C. 451) The Adminis-

trator is empowered and directed to encourage and foster

the development of civil aeronautics and air commerce in

the United States, and abroad, and to encourage the estab-

lishment of civil airways, landing areas, and other air navi-

gation facilities. The Administrator shall cooperate with

the Board in the administration and enforcement of this

Act.

Sec. 401(h) The Board upon petition or complaint or

upon its own initiative, after notice and hearing, may

alter, amend, modify, or suspend any such certificate, in

whole or in part, if the public convenience and necessity so

require, or may revoke any such certificate, in whole or in

part, for intentional failure to comply with any provision

of this title or any order, rule, or regulation issued here-

under or any term, condition, or limitation of such certi-

ficate: Provided, That no such certificate shall be revoked

unless the holder thereof fails to comply, within a reason-

able time to be fixed by the Board with an order of the

Board commanding obedience to the provision, or to the

order (other than an order issued in accordance with this

proviso), rule, regulation, term, condition, or limitation

found by the Board to have been violated. Any interested

person may file with the Authority |Board]| a protest or

memorandum in support of or in opposition to the altera-

tion, amendment, modification, suspension, or revocation

of a certificate.

35

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

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

aircraft, aircraft engine, propeller, appliance, air navi-

. gation facility, or air agency, may reexamine any air-

man, 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 certificate, airman certificate,

air carrier operating certificate, air navigation facility

certificate, or air agency certificate if the interest of the

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 like certificate ....’’

See. 702 (49°U. S. C. A. 592 Reorg. Plan No. IV 1940

52 Stat. 1012, 49 U. S. C. A. 581, 582).

(a) It shall be the duty of the Board to

(1) Make rules and regulations governing notification

and report of accidents involving aircraft;

(2) Investigate such accidents and report the facts,

conditions, and circumstances relating to each accident and

the probable cause thereof ;

(3) Make such reports public in such form and manner

as may be deemed by it to be in the public interest; and

(4) Ascertain what will best tend to reduce or eliminate

the posstbility of, or recurrence of, accidents by investigat-

ing complaints filed with the Board, and by conducting

special studies and investigations, on matters pertaining

to safety in air navigation and the prevention of accidents.

See. 901 (52 Stat. 1015, 49 U.S. C. A. 621)

**(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-

master General under this chapter, shall be subject to

36 !

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 may

Wecke:

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

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

mand of the aireraft, such aircraft shall, be subject to

lien for the penalty ....”

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

‘“(b) (1) Any civil penalty imposed ander 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 de.

mand trial by jury of any issue of fact, if the valae

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... .’’

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

under its direction gther courts of the United States,

may prescribe rules\ regulating such proceedings in

any particular not provided by law.”’ |

~

ae eater

REGULATIONS, INVOLVED.

C:A.R. 21.16, 14 C.F.R. 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 sha'l meet the follow-

ing aeronautical experience requirements:

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

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

copilot actually performing the duties and functions of

a pilot in command ‘under the surveillance of the pilot in

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

least 100 hours shall 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 para-

‘ giaph (b) of this section.

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

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

(1) 5 hours shall have been had within 60 days immedi-

ately preceeding the date of application ;

(2) 500 hours shall have been cross-country flight time;

(3) 100 hours shall have been night flight time; -

(4) 75 hours shall have been instrument time under

actual or simulated instrument conditions of which not less

than 50 hours shall have been in actual flight.

(.A.R. 21.24, 14 C.F.R. 21.24.

(d) Nothing im this section shall he construed to deny

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

ministrator, or the Board to impose any authorized sanc-

38

tion, including revocation¢@f the certificate, for a- viola-

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

_’ oceurringduring the effective period of the certificate.

C.AR. 21.41, 14 C.F.R. 21.41 Passenger carrying.

A certificated airline transport pilot shall not pilot any

-aireraft carrying any person other than members of the

yew thereof, certificated airmen carried in air carrier

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

tificated instructor rated for 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) and if an

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

aireraft in which any such person is carried.

C.A.R. 21.42, 14 C.F.R. 21.42 Recent experience require-

ments.

(a) Passenger flight (day and night). A certificated air-

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-

therance of their official duties, or a certificated instractor

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 fui' stop in an aircraft of the

same category, class, and type as that of the aireraft in

which such person is carried.

(b) Instrument flight. A certificated airline transport

pilot, who within the — 6 calendar months has not

flown and logged at least 2 hours of flight time solely by

reference to instruments under ejther actual or properly

simulated instrument flight conditions, shall not pilot an

aircraft — such conditions until he has flown and logged

at least 2 hours of such flight time ie by a cer-

39

tificated pilot of at least private grade holding an appropri-

ate category, class, and type rating for the aircraft and

authorized to operate aircraft under instrument conditions.

C.A.R. 40.301, 14 C.F.R. 40.301 Puot recent expervence.

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 the particular type ou-which he is to serve.

C.A.R. 40.302, 14 C.F.R. 40°92 Puot checks.

(a) Line check: Prior to serving as pilot in command,

and at least once each 12 months thereafter, a pilot shall

satisfactorily accomplish a line check in one of the types

of airplanes normally to be flown by him. This check shall

be given by a check pilot who is qualified for the route.

It shall consist of a least a scheduled flight between ter-

minals over a route to which the pilot is normally assigned

during which the check pilot shall determine whether the

individual being checked satisfactorily exercises the duties

and responsibilities of pilot in command.

(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 navigate 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 given

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

C.A.R. 60.12, 14 (. F. R. 60.12 Careless or reckless

operation.

No person shall operate an aircraft in a careless or reck-

less manner so as to endanger the life or property of

others.

40

PART 303—RULES OF PRACTICE IN ‘AIRCRAFT

ACCIDENT INQUIRIES. |

-&

5 303.1 (14 C.F.R. 303.1) Nature of inquiry. Aireraft

accident inquiries are held by the Board as @ part e

investigation of accidents involving aircraft -in order to

determine the facts, conditions, and circumstances relating

to each accident and the probable cause thereof and to

ascertain mefsures which will best tend to prevent similar

accidetiis in the future. It is purely a fact-finding pro-

cedure, and there are no formal pleadings or issues and no

adverse parties and during the course of the hearing no

objections to any matter will be entertained from any party

to the investigation or any other person. Aircraft accident

-Gnquiries are not subject to the provisions of Sees. 4, 5, 7,

8, or 10 of the Administrative Procedure Act.

§ 303.2 Institution of inquiry. The Director, Bureau of

Safety, shall, on behalf of the Board, order an inquiry into

an accident involving aircraft whenever he deems it nee-

essary in the public interest.

¢ 303.13. Examination of Witnesses. (a) Witnesses will

be examined by the Board of Inquiry. Following such ex-

amination the parties to the investigation who have indi-

cated at the prehearing conference their desire to examine

such witnesses will be given an opportunity to do so. If a

party to the investigation who has not indicated at the

prehearing conference an intention to examine a witness,

desires to do so, he may make a request to the Presiding

Officer along with his justification as to why such examina-

tion is now deemed necessary. The Presiding Officer will

then determine whether to permit examination by such

party to the investigation. |

(b) Materiality, relevancy and competency of witness’

41

testimony, exhibits or physical evidence will not be the sub-

ject of objections by a party to the investigation or any

other person, but such matters will be controlled by rulings

of the Presiding Officer on his own motion. If the examina-

tion of a witness by a party to the investigation is inter-

rupted by a-ruling- of the Presiding Officer, opportunity

will be given to show materiality, relevancy or competency

—of the testimony or evidence sought to be elicited from the

witness. as

¢ 303.14. Evidence. The Presiding Officer shall receive

all testimony and exhibits which might be of aid in deter-

mining the,cause of the accident. He may exclude any testi-

mony or exhibits which are not pertinent to the inquiry

or which are merely cumulative: He may withhold from

public disclosure any evidence, pending a final determina-

tion by the Board as to whether it is in the public interest

tv release such evidence.

Boarp Report.

§ 303.22 Basis of report. The Board’s report as to the

facts, conditions, and circumstances relating to the accident

and the probable cause thereof ‘shall be based upon the

docket of the inquiry, together with any other information

which has come to the attention of the Board and its staff.