Petition for Writ of Certiorari — Air Line Pilots Ass'n, International v. Quesada

Supreme Court brief1961

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Supreme Court of the United. States

October Term, 1960 |

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PETITION FOR: A. WRIT. OF CERTIORARI TO

ik UNITED STATES ‘COURT OF APPEALS

FOR THE SECOND CIRCUIL

INDEX

PAGE

r — a K .

. QpMOO BION 6 ois Sivdvny -ccccrccnsccncsccens

——— Se ae ——— we — a . - 2

Jurisdiction ........ Per preee Pe TT ETT eT TEE 2

Questions Presented .........5. = Sounas Sena eas 2

Constitution, Statutes and Regulations Involved ... 3

Statement ...... aR SO SINS A A Me nee 3

Reasons for Granting the Writ ...... py ae ey ale ee 7

RRS ce ee ec oa een a? 38

Supplements Pk eee ret pry ere rr ree 39°

ApPENDIX A—Constitution, Statutes - Regulations

_ Involved: ; ;

Fifth Amendment, United States Constitution. —la

Administrative Proeedure Act......... yee we la

Federal Aviation Act of 1958................ 10a

Civil Aeronautics Act of 1938........ ewe eees 22a

Code of Federal Regulations...,............. : 23a

Aprenpix B—Opinion of the Court of- Appeals for

the Second Circuit, entered on April 21, 1960... 65a

APPENDIX C—Opinion of the Court of Appeals for

the Second Circuit, entered on February 9, 1961. 76a

y

5

~ Citations

: PAGE

CasEs: :

American Federation of Labor v.” National Labor’

______ Relations Board, 308 U.S. 401, 408 (1940) ...... - 29

American Trucking Associations, Inc. v. United

States, 344 U. S. 298, 314 (1953) .......... wee. Ot

“Associated Industries ‘of New York State, Ince. v.

— Iekes, 134 F. 2d 694 (2d Cir.), cért. granted,

319 U. S..739,. vacated as moot, 320 U. S. 707

ee SE ee Gh MGEcs ape wee ss ce i”

Bowles v.. Willingham, 321 U.S. 503 (1944) ....... 31

6

Carter, In re, 177 F. 2d 75 (D. C. Cie. 1949) ; Id.

', 192 F. 2d 15 (D.C. Cir. 1951)"............ eee ae

Chicago & Southern Airlines, Ine. v. Waterman

Steamship Corp., 333 U. S. 103 (1948) ........ 3i

Civil Aeronautics Board v. American Air Trans-

port, 201 F. 2d: 189 (D. C. Cir. 1952), certificate !

dismissed, 344 U.S. 4 (1952) eS Sar eae 29, 33

Columbia Broadcasting System v. United States,

316 U.S. 407 (1942) .......... aieeuens 9, 11, 13, 29, 30°

FCC v. National Broadcasting Co., Ane. (KOA),

319 U. PE varbawpedhscecegsasexqoesss 11,29.

FCC v. WJR, The Goodwill Station, Ine., 337 U.S |

265 (29) .eunenes Sasa PNPUCKSa te xtssencees 33

Hood v. United States, 256 F 2d 522 (9 Cir. 1958) 26

Joint Anti-Fascist Refugee Committee v. McGrath.

341 U. S. 123, 151-153 (1951) ....:...18, 30, 31, 2, 31

Local 1424, IAM, AFL-CIO v. NLRB, 362 U. S.

411, 417, n. 7 (1960)

* iij oe

Cases (Continued) : , |

Norman v. Baltimore & Ohio Railroad, 294 U.S. *

oe epee WeeaveceeaaKeire pees 34

~ Norwegian Nitrogen Products Co. v. United States,.”

4 ee Me CUED oh ces cede cnccsesedececss 26

Opp Cotton Mills, Ine. vy. Administrator, 312 U.S. >.

PT REE oss pciw nb aescaedecwencecvaxs 13 -

Parker v. Fleming, 329 U. S. 531 (1947) .......... 11, 18

Parker v. Lester, 112 F. Supp. 433 (D..C. Cal. 1953)

aff'd 277.¥. 2d 708 og Re eee rer 33

Philadelphia Co. v. Securities Exchange Commis-

sion, 164 F. 2d 889, 899 (D. C. Cir. 1947), vacated

and dismissed as moot, 337.U. S. 901, (1949) ... . 29, 33

Powell v. United States, 300 U. S. 276, 284-85 (1937) 29

L. Singer and Sons v. Union Pacific RR., 311 U.S.

295, BOL (IMO) oer eteeeeeeees 18

United States v. Alabama Railroad Co., 142 U SS. |

Se fo teh ee cees CUL ea eu end ies 26

United States vy. Atlantic Refining Co., 360 U. S. |

Cr firs Ves Ca eC eee. a oie, 26

United States v. Seatrain Lines, Ine., 329 ss CC

424, 432 (1947) . 62.2.2... ome Ner or 13

Vinson v. Hobby, 114 I’. Supp. 663 (D. ¢. W. Va.

: 1953) _ Blea Rn POO ae sd ee beuhanacans 21

LBW ike Ine. v. Federal Communications Com- .

mission, 170 F. 2d 793 (D.C. Cir. 1948) ........ 29

%

_ See.

7 ?

STATUTES: ras

PAGE”

Aibninintrntive e Pieiies e Act, 60 ‘Stat. 237, as

amended 5 L. S. C. § 1001, et is : hs

§ 2(d) weeks aswesmeee ean Ye beeen cen ee ees ar ae

ME aac enn t en Ree ee meow SE Seawater. 38

LE Se pee ear ey epee ere © Oy rer es. 5,6

Se eakeh cu chee ced bee eee teense eet 1, 8, 33

Bi PRES De Gh AS an 21 Se green dhe wi se UR ae or 3, 8, 33

ST ere eee ee eaioies MECC BREE

Administrative. Procedure Act, 60 Stat. 237, as

amended, 5 U.S. C., § 1001, et seq.:

BT Beppe eaten Sune Fein Seats BAAD eee ae

CU ie ok teeta, —

iD SERRE PCRS ME eee eat eo 5,6

r°§ 1004 ee ee hae ee ei a aA wk we », 8, 33

RE nt eae eee ey

SSRI BPRS ena ak ges Pte, eae EE Rear 5, 8, 33

Civ rid Acronauties Act of 1938, G2 Gitat. 973 :.....:.: ". #

Civil. Air Regulations, Parts 20, 24, 29, 40, 41

SE og ey 5 TR Matty eae ee 3, 4,5, 24, 29

” ea eee eee Conn 25

RG ee ie ec as eters 2s

IEE hark adc bang cose niveau cas seees 30

RNIN coos rte ss ee yca see cas 36

Ora eh es 3

2 Fe Say sn rer IO EEE Ey remy. 20, 20

WD 5 6a oS ka ek rae ee eT eae he Reeees 4,9

—— .

* v é or

; | PAGE

Statutes (Continued) :

Ce eee ee SAAD te at 4,5, 28

a aa el ie AOR ne aut <i Bs

OF Ee aaa Oa Antsy Any hg Bat Oa ta 32, 37

tS aires Pat teat Baa ree ote

Fede val Aviation Act of 1958, =2 Stat. 731, 49

US. C. § 1301, et seq.:

LS RAN aim CRN), Zotibar drat Gain Monee pk GF At 13

9 sie) oS. ke eGR NCCE Re Wawa ee cape ED RTs 13

SRN stn ot eds ease ran ayaa, 4

SUSUR ie CMG SR ARORA MATA

rae eae IG IS ORR ASW ny SAAR OT kag Ihe 4,7, 12

OED SOD MEER EE wed, 21, 22

Re oe co oe. i Pa Oe ee §, 28

ODEs Se RICAN hth Merten 6 4,7,12

PR wioess Alcateneas PT oh NGAI. 28

$000 oo... 5.10 «2, 5,6, 7,8, 9, 10,41, 12, 13, 16, 17, >.

18,19, 20, 21, 22, 25427, 32, 37

Pe Sere ee acer eyelet pe

Federal “Aviation Act of 1958, 72 Stat, 731, 49

~ U.S.C. § 1301, et seq.:

{1300-1542 2... Creation veste Raterewry "29

$IDOR(B) Jones cen sccss sideeanuwneeen cers oo. a

NE ssa Chaann Fee nee ‘atlases 2 13

NE ss Sanus hecvas ocnultueea sand laxneaes 4

ROU Sahin c8k 42 cus es san wea a aees 1]

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PAGE

Sratetes (Continued):

§§ 1421-1430 ..... SER eee poree leeds cue «(8

hae >. f. SOT Tere ah renee 4,7,12

“RE RA le ee 14,21

ee ies ee gl i pana Se 7,9, 28

se i eg 4, 7,12

DE ci sntascnsckeeasewdenvieceracsaees 28

RES en ap GC RN CMe on 7

ECE alan a8 pang ated ated SET 27

$1429 ...... ROT 5, 6, 7, 8, 9; 11, 18, 19, 20, 32, 37

© SESE AREY eee 18

ED Sra eR IE oa. re

Judical Code, 28 U. S. C:

on EOE oO Sa ae +e 9

| ., SE enue et es 5

Ey Grea REE ee 2 §

N. Y. Generat Construczion Law

OO Pos bonsai ae reich a, pee 13

— States Constitution -

Amendment V ....05.......0p.c0cseeeees 8, 27, 32, 34

CONGRESSIONAL MATERIAL

‘HH. R. Rep. No. 2360, 85th Cong. 2d Sess. +

are eee SE a ee ~ .12, 16, 17,23

-$. Rep. No. 1811, 85th Cong. 2d Sess. (1958).... °. 12

104-Cong. Rec. 13646 (1958) ......... nase 10

wy

Vii |

‘ PAGE

ConGREsSIONAL MarTeriaL (Continued) : |

Hearings Before: the Sub-Committee on Aviation .

of the Senate Committee’ on Interstate and

Foreign Commerce on S. 3880, 85th Cong. Sess. .

pages Sh aon es errr etre ye 15

pages 164- 165 ieee 65 C1560 b eters eeedanke 17

Hearings Before the Sub-Committee, of the House

Committee on Tnterstate & Foreign Commerce

on H. R2 12616, Soth Cong., 2d Sess. o4- 95 (W958) TT

Statement of Congressman Oren Harris, 104 c ong.

_ Ree. 1608] (1958) ........%: Ce aes ee" ee 4 17

Statement of Congressman Flynt, 104 cae Ree. - :

"16084 (1958) peed deena ks aoe eee eR A re '7

MiscELLAN BOUS .

Davis, Administrative Law, ‘$5.01, 5.06 (1958) .. 29

Gellhorn & Byse, Administrative Law, Cases and |

Comments, 774-75 (1954) ...........6. sa ete eee 32

N. Y. Genera! Construction Law, ¥en 13

Supreme Court uf the United States

October Term, 1960

No.

Ei

Vv

Ain Line Pivots Association, [NrerNATIONAL, an

unincorporated association, CLARENCE N, Sayen,-ete., et al.,

Petitioners,

4 cas against

. °

Kiwoop R. Quesava, individually and as Administrator

of the Federal Aviation Agency, o

4 yh. - Respondent.

ray

—

PETITION FOR / WRIT OF CERTIORARI TO

“ THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Air Line*Pilots Association, International,. and the

individual. plaintiffs who are airline pilots and members

of Air Line Pilots Association, International, respectfully

pray that a writ of certiorari issue to review the judgment.

‘ot the United States Court of Appeals for the Second Cir-

cuit, entered in the above-entitled ease on February 9, 1961.

Opinions Below

~The opinion of the United States. Distriet Court ,for

the Southern District of New York‘ on the denial of, plain- ,

tiffs’ motion for a preliminary. injunction (Appendix to

Appellants’ Brief in the United States Court of Appeals

for the Second Cireuit, App. 315a-321)* is rgrortes at

*The Appendix to Appellants’ B rief in the United States Court

of Appeals for the Second Circuit that was prepared for purposes

of plaintiffs” appeal from the order denying their motion for a

preliminary injunction was also the major portion of the record

on which, plaintiffs’ appeal from the order grantirig defendant's

motion for summary judgment was heard. References to it are

‘designated ‘ “App.”

182 F. Supp. 595. The opinion of the Court of Appeals

affirming the denial of plaintiffs’ motiori for a preliminary

injunction (Appendix B, infra, pp. 65a- 75a) is reported

at 276 F. 2d 892. The opinion ofthe District Court grant-

ing defendant’s motion for summary judgment (Supple-

_ mentary Appendix for Appellants in the United States

Court of Appeals | ‘for the Second Circuit, Qupp! App.

' 326a)° and the opinion of the Court of Appeals affirming

the order granting defendant’s motion far summary judg-

ment (Appendix'C, infra, pp.-?6a-78a) have not yet been,

reported.

Jurisdiction

A judgment of the Court of Appeals affirming the °

denial of plaintiffs’ motion for a preliminary injunction

was dated and entered on April 21, 1960. The judgment

of the Court of Appeals affirming an @rder granting

defendant’s motion for summary judgment and dismiss-

ing the complaint .was dated and entered on February 9,

1961. The jurisdiction of this Court is invoked under

28 U. S. C. § 1254(1). ?

Questions Presented eo.

1. Whether the Administrator of the Federal Aviation

Agency may take action amending, modifying, suspending,

or revoking airmen certificates without complying with

Section 609 of the Federal Aviation Act of 1958?

2, Whether’ the due process clause of the Fifth Amend-

ment to the United States Constitution requires that airmen

_whose certificates are amended, modified or revoked be

‘accorded notice and hearing before the action becomes

effective with respect to their certificates?

*The Supplementary Appendix for Appellants in the United

States Court of Appeals for the Second Circuit consists of. pages

324a to 333a. References to it are designated “Supp. Hassall

’ United States Constitution? _

Constitution, Statutes and Regulations Involved

- The pertinent provisions of the United States Con-

stitution, “yy Federal Aviation Act of 1958 (72 Stat. 731,

49 U.S. C. § 1301, et seqg.), the Administrative Procedure

Act (60 Stat. 237, as amended, 5 U, S. C. § 1001, et seq.),

and the Civil Air Regulations are get forth in Appendix

A, infra, pages la-64a, 14 C. F. R., far 20, 21, 29 and 40.

*

Statement

Air Line Pilots Association, Intermatiorial, is an unin-

corporated association which represents the professional

airline pilots employed by scheduled United States gir

carriers. The individual plaintiffs herein are airline pilots

- who. hold airman certificates and Airline Transport Pilot

Rating Certificates for which they had duly qualified prior

to June 27, 1959- under the provisions of Title VI of the

Federal Aviation Act of 1958, 49 U. S. €. 4§ 1421-1430

and the relevant provisions of the Civil Air Regulations,

14-C. F. R., Parts 20, 21 and 29 and the predecessor statutes

and regulations. Prior to March 15, 1960, the date that

the administrative action attacked herein became effective

the individual plaintiffs were employed as pilots by various

scheduled United States air carriers; and nineteen of them

_ had reached the age of 60. .Elwood R, Quesada was the

Administrator of the Federal ‘Aviation Agency at. the time

that the administrative action challenged herein was taken ;

Najeeb Halaby, ‘his suecessor in office, has since been sub-

stituted for Quesada as defendant herein.

4.

On June 27, 1959, defendant, by publication wat 24 Fed.

Reg. 5247-5249 (1959) (App. 278a-28la), gave notice’ of

' intention to amend Parts 40, 41, and 42 of the Civil Air

Regulations which deal with certification and operation

rules for air carriers. Prior to the proposed. amendment,

14 C. F. R. § 40.260 provided:

‘Wtilization of airman. No air carrier shall utilize

an individual as an airman unless he holds a valid

appropriaté airman certificate issued by the Admin-

istrator and i is otherwi ise qualified for: the particular

operation in which he is to be utilized. =

The ‘Administrator proposed to. ouienl this section by —

designating the above text as paragraph (a): and adding

thereto a new paragraph (b), as follows:

- ‘No. individual who has reached ‘his, 55th birth:

day shall be utilized or serve as a pilot in command,

or as second in command of a flight crew of 3 or |

more pilots, on a turbojet-powered aircraft engaged

in air carrier operations unless he held an aircraft

_ type rating for the particular aircraft either prior

to such birthday or the effective date of this regula-

: tion. In addition; no individual who has reached

. his 60th birthday shall be utilized or serve as a

pilot’ on any aircraft “a in air carrier opera-

tions.”’

The same amendment was to be made in 14.C. FR.

§ 41.48 and 14 C. F. R. § 42.40.

The authority cited by the Administrator for the above

amendments was Sections 313(a), 601, 602 and 604 of the

ogi Aviation Act of 1958, 49 U. S. C. §§ 1354, 1421,

422 and 1424.

Written comment®,' both for and against the proposed

amendments, were received by the Administrator, including

opposing comment from the Air Line Pilots Association,

International, and individual pilots. In addition, plaintiff

Air Line Pilots Association, International, on behalf. of

~ :

4)

the individual plaintiffs herein .and on its own. behalf,

requested the Administrator to, schedule a hearing at which

the proposed amendments’ could be considered (App. Ta),

“The Administrator denied the or request for a hearing

. insofar as the age 60 maximum was concerned ( APP. seat

262a)..

On December 1, 1959, the Sdibalstintas issued the fol-

lowing amendment to Parts 40, 41 and 42 of the Civil Air

Regulations, 14 C. F. R.°§§ 40.260, 41.48 and 42.40:

‘*No individual who has reached his 60th birth-

day shall be utilized or serve as a pilot on any*

aircraft while engaged in air carrier operations.’’

(App. 262a) ae

7

The Administrator iaile: no finding that an emergency

existed and prov ided that the amendment was to take

effect on March 15, 1960. The Administrator did not amend

Parts 20, 21 or 29 of the Civil Air Regulations, 14C. F. R.

Parts 20, 21, and 29, dealing with pilot certificates, airline’

transport pilot rating, and physical standards for airmen,.

respectively.

Plaintiffs brought suit in the United States District

Court for the Southern District of New York for an

injunction.and for a declaratory judgment declaring the

amendment nujand void. The jurisdiction of the court

was based on 28 U. B.C. §§ 1331 and 1337. Plaintiffs

alleged that the amendments: were invalid: because they

had not been issued in eonformity with, and denied affected

pilots, the safeguards ofa) the procedural requirements of.

Section 609 of the Federal Aviation Act of 1958, 49 U.S. C.

$1429; or (b) the procedural requirements of Sections

4, 5, 7, and 8 of the Administrative Procedure Act, 5

U.S.C. §§ 1003, 1004, 1006 and 1007; or (c) the require-

ments of the Fifth Amendment to the United States Con-

ees

's *m eS. F.. R. § 42.40 the word “large” modifies the ‘word

“aircraft.” .

stitution. Plaintiffs also alleged that. the Administrator's _

action was, arbitrary and unreasonable‘and therefore con- .

stituted a violation of the Fifth Amendment to the Con-~

stitution. os

; ? 2.

Plaintiffs moved for a preliminary injunction and .

defendant cross-moved for summary judgment.

Plaintiffs’ motion for. a ‘preliminary injunction was

denied by an order of the United States District) Court

for the Southern District of New York, filed on March

14, 1960 (App. 315a-321la). Plaintiffs thereupon appealed

to the Court of Appeals for the Second Circuit.

The*Court of Appeals affirmed the denial of the pre-

liminary injunction on thé ground that the action of the

Administrator constituted rule making and the Administra-

tor followed the procedural requirements for rule making

in Section 4 of the Administrative Procedure Act, 5 U.S. ¢.

§ 1003. The Court also held that the fact that the amend-

ment modified the licenses of airmen did not require the.

Administrator to follow the procedures set forth_in Section

609 of the Federal Aviation Act of 1958, 49 U. SC. § 1429.

~ On this point-the Court said:

‘“‘The plaintiffs strenuously urge that, however

things may be under the Administrative Procetlure

Act, the statutory. scheme of the Federal Aviation

Act shows that Congress intended to afford airmen

the greater protection of an individual. hearing before

their certificates may be modified, We disagree.

Section 609 of the Act, 49 U. S. C. -§ 1429, states

that ‘the Administrator may * * * reexamine any

civil airman,’ and if, as a result of such reexamina-

tion, the Administrator ‘determines that safety in —.

air commerce * * * and the public interest requires, -

(h>) may issue an order amending, modifying, sus-

peurling, or revoking * * * (any) airman certificate.’

The certificate holder must be advised of the

* ‘charges or other reasons relied upon by the Admin-

istrator’ for his action, and a. h@arging must be

afforded with a right of appeal and frial de, nox °

7

before the Civil Acronautics Board and ultimate

rights of review —in.the courts. of appeals. It is

“Clear that Congress intended that the section should

apply only when an order of the Administrator is

directed to un individual airman and is concerned

with conduct or other facts peculiar to that airman.

Use of. ‘airman’ in the singular, the reference to

‘charges,’ the word ‘order’ in contrast with ‘regula-

tion’ in § 601, and the statement that upon review

the Board shall not ‘be bound by findings of fact

of the Administrator’ all strongly suggest that

§ 609 is not intended to apply when a general diree-

tive of the Administrator is promulgated, though

the regulation may in fact modify airmen’s certifi-

cates. Cf. §§ 602, 604 of the Act, 49 U.S. C. §§ 1422,

1424. Moreover, were we to interpret 4 609 to apply

to a case like that before us, the area in’ which

§ 601 might operate would be severely restricted.”’

(Appendix B, infra, p. 72a).

Thereafter, on June 14, 1960, the United States Dis-

trict Court granted defendant’s motion for summary judg-

ment (Supp. App? 326a). Its action was affirmed by the

Court of Appeals in an order dated and filed on Feb-

ruary 9, “1961, on the same grounds on which the Court

of Appeals had based its decision affirming the order of

the District Court denying’ plaintiffs’ motion fora pre-

liminary injungtion (Appendix C, infra, pp. 76a-78a).

| _ Reasons for Granting the Writ

aha |

1. This case. involves an .important question \oe first

iMpression concerning the interpretation of § 609 of the

Federal Aviation Act of. 1958,49 U. S. C. 6 1429, to deter-

mine the degree of protection afforded the holders of air-

man certificates, air-worthiness certificates, production

certificates, air carrier operating certificates, and other

certificates issued uffder the Federal Aviation Act of 1958,

499 U.S. C. $$ 1422, 1423, 1424, 1426 and 1427, against

-

—

*

; 8 ‘ , . 9

‘ or ae F nh

amendment, modification, suspension or revocation of their

certificates. The Administrator directéd air carriers not

_ to permit any pilot who was over 60 years of age to serve

as a pilot on any aircraft engaged in commercial air opera-

tions. See opinion .below, Appendix B, infra, page 66a,

tote 1. The immediate effect of the Administrator’s action

‘was to bar some 40 pilots from. continuing to practice

their profession on March 33, 1960, the effective date of

the: action (App. 255a).. Since then, the effect of the

Administrator’s action has been to automatically termi-

nate the rights of all pilots who reach the age of 60 to

pilot aircraft in commercial air operations. Thus, the

Administrator’s action has destroyed. the value of the

airman certificates issued to these pilots as a license per-

_ mitting them to fly aircraft in commercial air, operations.

Since the Courts below considered the: Admiistrator’s

action as ‘‘rule making’’, it has thus far been held that

neither Section 609 of the Federal Aviation Act, 49 U.S. C.

§ 1429, nor Sections 5, 7 and 8 of the Administrative Pro-

cedure Act, 5 UD. S. C. §§ 1004, 1006, and 1007, required

the. Administrator to-hold a hearing prior to the promulga-

tion of the regulation.. For the same reason and because *

the Administrator’s action was directed to the air carriers

and not at the airmen’s certificates it has thus far been

held that individual pilots who reached age 60 prior to

the effective date of the Regulation and_those pilots who

have reached age 60 since then are not entitled to an.

opportunity to be heard before the Regulation is applied

to them. See opinion below, Appendix B, pages 72a-74a. |

Thus, by means of promulgating a regulation and directing

the regulation at the employers of the pilots affected by it,

the Administrator has prevented pilots holding valid air-

man certificates from obtaining a hearing at any stage, —

either before or after the administrative action is applied to”

> them to terminate their right to practice their profession.

9°

The importance of the question presented in this case

” is apparent from the fact that the Administrator. could

follow the very same procedure to adversely affect hi lders

of other certificates under the Federal Aviation Act.. For

example, a regulation directed at air carriers with respect

to the type of aircraft they could use, could render value-

less a type certificate issued under § 603 of the Act, 49

U.S. C. § 1423. Further, the same procedure, epuld be

followed by other agencies. Cf. Columbia Brockoesting

» System v. United States, 316 U. S. 407 (1942). Thus,

if thy administrative action herein is held to be valid, ‘the.

rights of other persons holding certificates under the

Federal. Aviation Act could also be modified, and even

destroyed, without providing them with notice or an oppor-

tunity to:be heard at any stage of ‘the proceedings.

_ The decisions below are erroneous ‘because they fail

. to give any effect to Section 609 of the Federal Aviation

Act, 49 U. S. C. § 1429. Section 609 provides as follows:

‘ ‘‘The Administrator may,*from time to time,

reinspect gny civil aircraft, aircraft engine,

_ propeller, appliance, air navigation facility, or air

agency, Or may reexamine any civil airman. If, as a

result of any such reinspection or reexamination, or

if, as a result of any other investigation made by

the Administrator, he determines that safety in air

commerce or air transportation and the public inter-

eo est requires, the Administrator may issue an order

amending, modifying, suspending, or revoking, in

whole or in part, any type certificate, production cer-

tificeate, air-worthiness certificate, airman certificate,

air carrier operating certificate, air navigation facil-

ity certifi¢ate, or air agency certificate. .Prior to

amending, modifying, suspending, or revoking any of

the foregoing certificates, the Administrator ‘shall

] - advise the holder thereof as to any charges or other

| reasons relied upon by the Administrator for his pro-

posed action and, except in cases of emergency, shall

provide the holder of such a certifieate an opportunity

to answer any charges and be heard as to why such

certificate should not be amended, modified, sus-

10.

pended, or .revoked. Any person whose certificate

is affected by such an.order cf the Administrator

under this section may appeal the Administrator's

order to the Board and the Board may, after notice

and-hearing, amend, modify; or reverse the Adminis-

trator’s order if it finds that safety in air commerce

or air transportation and the public interest do not

require affirmation of.the Administrator’s order.

In the conduct of its hearings the Board shall not

be bound by findings of fact of the Administrator.

The filing of an appeal with the Board shall stay

the effectiveness of the Administrator’s order unless

the Administrator advises the Board that an emer-

gency exists and safety in air commerce or air traus-

portation requires the immediate effectiveness’ of

‘his order, in. which event the order ‘shall ‘remain

effective and the Board shall finally dispose of the

appeal within sixty days after being so advised

by the Administrator. The person substantially

_ affected by the Board’s order may obtain judicial

. review of said order under the provisions of sce-

tion 1006, and the Administrator shall be made a A;

party to such proceedings. -

It is apparent that Section 609 provides substantial

safeguards to holders of. certificates. First, unless. the

Administrator finds that an emergency exists he must

provide the holder of a certificate with an opportunity

to ‘‘be heard as to why such certificate should as le

amended, modified, suspended -or revoked’’. Second, *

person whose certificate“is affected by such an stl gi

the Administrator under this section may appeal the

Administrator's order to the Board and the Board may.

after notice and hearing, amend, modify, cr reverse the

Administrator’s order if it finds that safety in air com-

merce or air transportation and the_ public interest do

not require affirmation’’ of the*-Administrator’s. order.

Third, in the conduct~ef its hearings the Board is net

‘*bound by. findings of fact of the Administrator’’. Fourth.

unless the Administrator advises the Board that an emer-

gency exists and that safety requires the immediate effec-

e

1L

tiveness of his order, the filing of an appeal with the

Board stays the effectiveness of the Administrator’s order.

And fifth, provision is, made for judicial review of the

Board’s order by the Courts of Appeal.

The coufts below held that the safeguards provided

in Section 609 are not applicable to an :amendment or

modefication of. a ‘certificate that-ig accomplished by means

of,a regulation. That the Administrator's action constitutes

an amendment anc modification of pilots’ certificates, and

indeed, an effective suspension and revocation of the certifi-

cates of pilots above the age of 60 to fly in commercial

air transportation, was admitted by’ the Administrator

and not questioned by the Court of Appeals (App. 262a- °

263a, 264a; Appendix B, pages 70a-72a). The deci-

sions of this Court in FCC v. National Broadcasting Co..

Inc. (KOA), 319 U. S. 239 (1943), Pagker v. Fleming, 329

U. S. 531 (1947), FCC v. WIR, the Goodwill Station, Inc.,

337 U. S. 265 (1949), and Columbia Broadcasting System

v. Unitcd States, 3.6 U. S.°407 (1942), leave no question

but that the action of the Administrator herein constitutes

an amendment and modification of pilots’ certificates. But

the Court below reasoned that the exercise by the Adminis

trator of his safety rule making power under Section 601(a)

of the Federal Aviation Act, 49 U. S. C. §1421(a) was

not limited .by Section 609 of the Act, 49 U. S.C. 61429

even though it resulted in amending, modifying, suspend. .

ing or revoking airman certificates. See Appendix B, p.

72a. The Court said: .

‘ce ¢ @

it is clear that Congress intended that the

section should apply only when an order of the

Administrator is directed to an individual airman

and is concerned with conduct or other facts peculiar

to that airman. Use of ‘airman’ in the singular.

the reference to ‘charges’, the word ‘order’ in con-

trast with ‘regulation’ in 4601 and the statement

that- npon review the Board shall not ‘he bound

by findings of fact of the Administrator’ all strongly

Suggest that § 609 is not intended. to apply when a

lz

general directive of the Administrator is promul-

gated, though the regulation may in fact modify

airmen’s certificates. Cf. §§ 602, 604 of the Act,

49 U. S. C. $§ 1422, 1424. Moreover, were ‘we to

interpret § 609 to apply to a case like that befor

us, the area in which § 601 might operate would be

severely restricted.’’ (See Appendix B, p. 72a)

The Court also believed that the legislative history of

the Federal Aviation Act supported its conclusion. It said:

‘‘There is no indication anywhere that Congress

intended such limitation on § 601. Indeed, the legis--

lative history of the Federal Aviation Act and the

practice under the prior law show that Congress. .

intended the Administrator to have broad power

- to establish safety rules for the nation’s airways

without the delay attendant, upon numerous individual

hearings and ‘protracted appeals. The immediate

impetus to the legislation’ was a series of major

air crashes culminating in the midair collision of

two large airlines [sic] over the Grand Canyon in 1906

with the loss of 128 lives. Congress believed there

was a need for a more streamlined and efficient

means of safety rule-making in place of the system

of divided duties and responsibilities existing under

the Civil Aeronautics Act. The committee reports

make plain that the Administrator was to have sole

responsibility for safety rule-making under the new .

law, and’ that the procedures of § 609 were only

to come into operation when the Administrator modi-

fied or revoked ‘a certificate’. H. R. Rep. No. 2504,

85th Cong., 2d Sess. (1958); see S. Rep. No. 1811,

Soth Congy 2d Sess. (1958). The elaborate pro-

cedural requirements of § 609 are patently incom-

patible with the expedition with which Congress

intended that the Administrator should «ct in the

promulgation of safety rules. The clear rublic inter-

est in the speedy adoption of rules relating to. air

safety far outweighs any possible advantage in a

multitude of piecemeal and time-consuming hearing:

brought by each contesting airman.’’ (Appendix B,

pp. 72a-73a)

13

Court below are net supported -by the structure of the

Federal Aviation At of 1958 or by its legislative history.

Insofar as the decision of the Court is based on the use of the

__word *‘airman’’ in the singular, the reference to ‘charges’ :

and the use ‘of the word ‘‘order’’, it is subject .to the

criticism recently expressed by this: Court that ‘‘insights -

derived from syntactical analysis form a hazardous basis

for the explication of the major legislative’ enactments

se" See Local 1424, 1AM, AFL-CIO v. NLRB, 362

U.S. 471, 417, n. 7 (1960). Further, it is clear from

decisions of this Court that the word ‘order’? is a word

that can refer to administrative action in the nature of

rule making. “See United States v. Seatrain Lines, Lue.,

3829 T. S. 424, 432 (1947); Columbia Broadcasting Sustem

v. United States, 316.U. S. 407 (1942); Opp Cotton Mills,

Inc, v. Administrator, 312 U. S8.°126, 147 (1941). And it is

accepted construction of statutes that use of the singular

includes the plural. See, e.g., N. Y. GENERAL CoNnsTRUCTION

Law, § 35.

It is iw are pd cmon that the conclusions in the

Both the structure and the legislative history of the

Federal Aviation Act indicate that Congréss intended that

rules promulgated by the Administrator that have the.

effect of amending, modifying, suspefiding or revoking air-

man and other certificates issucd under’ the Act should

be subject to the procedural requirements of $609. Thus,

the Act requires the Civil Aeronautics Board, arid not only

the Administrator, to consider ‘‘the promotion of safety

in air commerée’’ ini the exereise and performance of its

powers .aid duties under the <Act. _ Federal Aviation

_ Act, §$102(e), 102(b), 49 U. S.C. 66 1302fe), 1802(h).

. And ( 609 permits the Administrator to 1: ake action amend.

ing, modifying, suspending or revcking certifieates ‘fas a

result of any other investigation made by the Administra-

tor’’-and empowers the Board in reviewing the Administra-

tor’s action to ‘amend, modify, or reverse * * * if it finds

that safety in air commerce or air transportation and the:

14

public ‘interest do not require affirmation of the Adminis-.

trator’s order * * *.’’ This is not the scope of review

that is. afforded when the question is merely whether the |

Administrator’s findings of fact support action by him

amending, modifying, or revoking a certificate. When Con-

gress desired to limit the scope of review that the Civil

Aeronautics Board was to exercise over action of the

Administrator to such:narrow compass it did so by the

use of suitably narrow language. Thus, in § 602(b), which

‘permits an applicant for an airman certificate to appeal

from the Administrator's denial of a. certifieate to the

Board, on review-the Board is only to determine ‘‘ whether

the airman meets the pertinent rules, regulations, and

standards * * *.’’ See Federal Aviation Act, § 602(b),

49 U.S. C. § 1422(b). Thus, the language of the statute

indicates that Congress empowered the Civil Aeronautics

Board to review regulations of the Administrator that

amend, modify, suspend or revoke airman certificates.

This conclusion is reinforced -by the legislative history

of the Federal Aviation Act. While it is true that one

purpose of the Federal Aviation Act of 1958 was to vest

in the Administrator power to make air safety regulations

that was not subject to review by the Civil Aeronautics

Board, it was not intended that this power should extend

to regulations that amended, modified, suspended or

revoked certificates under the Act. This is apparent from

tk hearings, reports, and debate on the Act. For example.

when General Elwood R. Quesada appeared before the

Sub-Committee on Aviation of the Senate Committee on

Interstate and Foreign Commerce to testify on the bill that

later became the Federal Aviation Act of 1958, the follew-

ing colloquy took place between him and Senator Monroney.

the Chairman of the Sub-Committee and floor‘ manager

of the bill in the Senate:

‘*‘Senator Monroney. * * *

‘‘As IT understand the bil! and the proposed

amendments, the possible differences that will need

15

to be spotlighted in the amendments that yon sug-

gest fall into three general categories:

-“*). The promulgation of a’r safety rules, which

is identical with the present bill, S. 3880, the differ-

ence being only in the degree of appeal.

_ ‘*Mr. Quesada: Yes, sir:

“*Senator Monroney. We are together on the

question of the right of appeal to the Board on

matters involving decisions by the Administrator

on airmen and on aireraft. —.

“Mr. Quesada. That is ccrrect.

‘*Senator Monroney. And we are perhaps closer

_together on the matter of decisiotis involving the

allocation of airspace being exempted from appeal.

The question is whether permission to appeal to the

Board on 1 or.2 other points should be inéluded..

It is probably only on 1 of the 3 matters relating

to air safety regulations, the right -of appeal in

1 out of 3 where there is some small degree of:

difference.’’ i. ;

Hearings before the Sub-committee on Aviation

of the Senate Committee on Interstate and Foreign

Commerce on 8. 3880, 85th Cong., 2d Sess., pages

155-156. aoe oe

And during the debate on the bill, Senator Thye asked

Senator Monroney, ‘** * * Will the Civil Aeronauties

Board continue in existence if the bill is enaeted inte

lawt’? Senator Monroney replied:

‘*Indeed it will, save for the one function dealing

with safety rules which are now handled by the

Civil Aeronautics Board. * * * The provision dealing

with safety regulations is the one change with

respect to the present jurisdiction of the Civil Aero-

nautics Board which has been made. a

‘‘Under the provisions of this bill, even in that

respect the Board is given the. right to hear and

determine two types of appeals invoving airmen’s

certificates and the certification of- aireraft on

remspection by the Administrator.’’.104 Cong. Ree.

13646 (1958).

16

The reports. on the Federal Aviation Act also show

that Congress was aware that the Civil Aeronautics Boar

was empowered under Section 609 to review actions of

the. Administrator involving airman certificates and other

certificates. -H. R. Rep. No. 2360, 85th Cong., 2d Sess.

distinguishes between the safety rule making area‘in which

the Administrator is to have plenary authority and the

area in which his actions are to be subject to revie w hy

the Civil Aeronauties~Boara. It states: |

‘‘The principal purpose of this legislation is te [

establish a new Federal Agency with powers adequate.

‘to enable in to provide for the safe-and efficient

use of the navigable aceapene by both civil and

military operations.”

7 * +

‘‘The Administrator of the New Federa! Aviation )

Agency (1) would be given full responsibility and

authority for the advancement and promotion of

civil aeronautics generally, including the promulga-

tion and enforcement of safety regulations * * *

‘*At the same time, the legislation would continue

the Civil Aeronautics Board, with the same authorily

it now has with respect to air carrier economic

regulation * * *. The Civil Aeronautics Board. is

given authority to hear and determine two types

of appeals. Appeals can be taken to the Board

from actions of the Administrator involving airmen’s

certificates and the certification of aircraft o”

reinspection by the Administrator.

.‘‘The new Federal Aviation Agency would bh

headed by a civilian Administrator with plenary

authority to—

‘*(a) Allocate airspace and control its use by

both civil ‘and military aircraft;

‘*(b) Make and enforce air traffic rules for both

civil and military aircraft;

‘*(e) Develop and operate a common system of

air navigation facilities for both civil and military

aircraft;

“(d) Make and enforce Safety regulations gov-

erning the design and operation of civil aircraft.”

(At pp. 1-2).

17

And see H. R. Rep. No. 2360, 85th Cong., 2d Sess., pp. 6-8,

29 (1958) ; Hearings Before the Sub-Committee on Aviation

of the Senate Committee qn Interstate and Foreign.Com-

merce on S. 3880, Soth Cong., 2d Sess: 164-165 (1958)

(Testimony of Elwood R. Quesada); Hearings Before a

Sub-Committee of the House Committee on Interstate and

Foreign Commerce on H. R. 12616, 85th Cong., 2d Sess.

94-95 (1958) (Testimony of James T. Pyle, Administrator

of Civil Aeronautics); Statement of Congressman Oren

-Harris, 104 Cong. Rec. 16081 (1958) Statenient of Coh-

gressman Flynt, 104 Cong. Ree. 16084 (1958).

This legislative history indicates that Congress intended

in Section 609 te provide a procedure which was to be

followed by the Administraior and the Civil Acronauties ~

Boaid whenever action was taken amending, modifying,

suspending, or revoking airman. certifieates and? other

certificates granted under the Act. Congress may well

- have concluded that the broad powers granted to the

Administrator that were not subjeet to review by the

Board should not include the power to‘take actions amend-

_ing, modifying, suspending or revoking certifieates granted

under the Federal Aviation Act because of the investnient

in training, time, and money. that is required to seeure’

an airman certificate or any other certificate under the Act.

But the Court below held that compliance: with the

procedural requirements of Section 609 of the Act ‘tare

patently incompatible with the expedition with which Con-

gress intended that the Administrator should att in the

promulgation of Afety rules * * *.°’ See Appendix B,

p. 73a. And the Administrator’ argued that requiring

that all action that amends, modifies, suspends or revokes

certifieates be taken. in compliance with the proceedures

of Section 609 of the Act would necessitate that all safety

rule making be promulgated in aecordance with Section

609 {App. 264a- 265a). That compliance with the procedure

Ve 18

set forth in Section 609 would not delay the promulgation

- of orders of the Administrator is clear onthe face of the

section. Section 609 permits the Administrator to take

immediate action amending, modifying,’ suspending or

revoking certificates whenever he believes that an emer-

gency exists. See Federal Aviation. Act, §§ 609, 1005, 49 -

U.S. C. §§ 1429, 1485. Nor is the argument that all safety

regulations would have to be issued in compliance with

Section 609 valid. Section 609 need only be complied with -

when thee action of the’ Administrator amends, modifies,

suspends, or revokes certificates. Not all safety régulation

would. result .in amendment or mpdificatioh of airmen

certificates or other certificates issued under the Act. The

question of whether a regulation amends, modifies, sus-

pends or revokes a certificate within the meaning of § 609 ©

“of the Act depends on the degree of the impact of the

regulation on the holder of the certificate. This is the

type of determination that admimistrative agencies and

courts are often called ‘upon to make in determining a

person’s standing to intervene in an administrative pra

ceeding or to appeal from administfative action. See, e.g.

Parker v. Fleming, 329 U. S. 531, 538 (1947); L.. Singer

_and Sons v. Union Pacific RR., 311 U. S. 295, 304 (1940);

FCC v. WJR, The Goodwill Station, Inc., 337 U. S. 269

279-280 (1949) ; Concurring opinion of Mr. Justice Frank-

furter, Joint Anti-Fascist Refugee Committee v. McGrath,

341 .U. S. 123, 151-153° (1951). These cases make

it abundantly clear that not all action that may remotely

_ affect certificates would be consjdered as action ‘‘amend-

. ing, modifying, suspending, or revoking’’ the said certif:-

cates sq as to require that the- procedures set forth in —

Section 609 of the- Federal Aviation Act be -followed.

"In the instant case, the Adiministratér’s action does not

“give rise ‘to a far fetched claim that exercise of his rule

making authority has amended-and modified thé certificates «

of pilots. Instead, ‘the situation is one in which airmen

holding. valid certificates find that the value of their

.

a

. gal /

19

certificates and the license that it gave them to pilot aireraft

in air commeree—are nullified. Such action is clearly an

amendment and modiication, indeed, in the case of pilots

over the age of 60 a suspension and revocation, of airman

certificates. In taking such action, the Administrater should

de required to comply with the express procedural require.

ments of Section 609 of the Act.

2. But even if the Court should hold that the procedures

of § 609 of the Act need. not be followed when the Adminis-

trator adopts a regulation that has the effect of amending,.

-modifying, suspending, or *revoking airmany: certificates,

the Administrator's action that Is challenged herein is still

violative of the provisions of § 609 of the Act, 49 U.S. C.

§ 1429, and still raises important questions concerning ‘the

interpretation and application of that section of the Act.

In the instant case the Administrator has not only

denied adversely affected pilots an opportunity to be heard

» before ‘promulgation of the.regulation. He has also effec- °

tively prevented -the approximately forty pilots who lost

their jobs and the value of whose certificates to pilot .air-

craft in air commerce was destroyed on the effective date

of the age 60 regulation from securing a hearing at any-

stage, either before or after the regulation was applied to

them to’terminate their ‘right to. pilot aircraft in air com-

merce. Thus, the Administrator has combined the legis-

lative and adjudicative fwnctions. into one self- -executing

determination which sets the policy and fully accomplishes

the implementation of that policy by depriving a small

group of individuals of: their jobs and the value of their

licenses, without affording the individuals affected by his

action any opportunitysto question its validity or its appli-

eability to them. : ,

It is respectfully ‘submitted that, at the very least,

these forty airnien who were most immediately and direetly

affected by the regulation were entitled to make use of

the procedural safeguards of } 609 of the Feder al Aviation . ~

~

&

20

Act of 1958, 49 U. S. C. § 1429, before* the regulation

was applied to them to deprive them of theig jobs and the

value of their licenses. Indeed, it is difficult to see any”

scope far §.609 of the Act, if it is not effective to give

each of these forty pilots (in the absence of an emergency)

the right to a hearing before the Administrator and to °

appeal the Admniistrator’s determirfation to the Civil

Aeronautics Board before the regulation is applied to him.

_ That the action of the Administrator. constitutes in

fact and in law an amendment, modification, suspension.

‘ and revocation of the licenses of these forty pilots to pilot

aircraft in air commerce has been shown above. See p.

11, supra. That each of these forty pilots is therefore

entitled to a hearing at some time before the regulation

‘is finally held applicable to him is clgar from the face of .

“the statute, its legislative history and the past practice

under both the Federal Aviation Act of 1958, 49 U.S. C.

§§ 1301-1542, and the Civil Aeronautics Act of 1938, 52 Stat.

973, ff. Seetion 609 of the Act requires the Adminis-

’ trator to advise a certificate holder of his reasons for

amending, modifying, suspending, or revoking the certifi

_cate. And, unless an emergency exists, the Administrator

must give the certificate holder an opportunity, to be heard

‘on why the certificate should not be amended, medites,

suspended or revoked. ’

Tf the Ad inistrator had followed the statutory pre .

cedure with respect to the certificates of the forty airmen

most immediately and directly affected by the regulation,

each of them would, have kad an opportunity to’ raise the

issues of the validity of the regulation, and its applicability

to him. And each of them would have had. an opportunity

to —— a waiver under 14 C. F. R. § 29.5. |

~ Nor would such a hearing be a meaningless formality.

Even in the application of a regulation that hinges on the

question of a person’s age, difficult fact questions. 6.9:

. 6

21

the question of whether an individual airman was sixty ,

years old, might arise. . See Vinson vy. Hobby, 114 F. Supp.

663 (DS. W. Va. 1953). . 7

' In addition, in challenging the validity of the regula- 3

tion as applied to him before the Administrator, thé airman

would have an opportunity to convince the Administrator

that the regulation was invalid and that he w was entitled to a

waiver, :

Section 609 of the Act also prov ides for an —a

the Civil Aeronautics Board. The Board is not bound

by the Administrator’ s findings of fact and ‘‘may, after

notice and hearing, amend, thodify, or rev erse the Adminis- |

trator’s order if it finds that safety in air- commerce or

air transportation and the public interest do not require

afirmation’’ of the order. On such an appeal, each of the

pilots the value of whose certificates to fly’in air commerce

was destroyed, could question the Administrator's deter-

minations as to the validity of the regulation, its appli,

cability to him, and his right to a waiver.

The Court below concluded that the procedural safe-

guards-in ¢ 609 of the Act were ‘‘not intended to apply

when a general directive of the Administrator is praner.

gated, though the regulation may in fact modify airmen’s

certificates * * *.'. See Appendix B, p. ‘72a. The

statute does not support the Court's sialon Indeed,

under § 602(b) of the Act, 49 U.S. C. § 142: 2(b), even an

applicant for an airman certificate is e1 ntitled to haye the

Civil Aeronautics Boaid review tne Administrator’ 8 action

denying him a certificate. On such review the Board is

not hound by the Administrator's findings of fact, and it’

determines whether the Administrator has applied his

“general directive(s)’’ accurately since the Board decides |

“whether the airman meets the pertinent rules, régula-

tions, and standards * * *.””

It is clear that in*prov a procedarey safeguards for

_ airmen holding valid certificates im { 609 of the Act, Con-

en

gress intended to provide more extensive protection than

it provided for applicants for airman certificates in

§ 602(b). The fact that §609 empowers the Civil Aero-

nautics Board to amend, modify or reverse the Adminis-

trator’s order after notice and hearing

‘if it finds that safety in air commerce or air trans-

portation and the public interest do not require

affirmation of the * * * order * ° *,’’

indicates that the Board is to do more than determine

whether the Administrator has applied his ‘‘ general direc-

tive’ accurately. It is also to determine whether the

‘general directive’’ is valid as applied to the individual

airman. - , :

The legislative history lest the Federal Aviation Act

proves that this appraisal of the power of the Board under

Section 609 of the Act is correct. Thus, the House Report

on the bill that became the Federal Aviation Act states:

‘‘In transferring safety rulemaking functions to.

the new agency, thi» legislation does not strip the

Civil Aeronautics Board of all of its responsibilities

in the field of safety. Certain definite and very

important safety responsibilities are retained in the

Board. ' ° :

‘‘The Board,-as an independent, quasi-judicial

- body, will hear appeals from certain actions of the

Administrator affecting certificates. An appeal to

the Board is provided from a refusal by the Adminis-

trator to issue a certificate, except where the cer-

tificate is under suspension or has been revoked

within 1 year. es ;

‘‘When the Administrator revokes, modifies, oF

suspends a certificate under Section 609, an appeal

to the ‘Board is provided. ,

‘‘In order to expedite the safety-enforcement

process, section 609 of the legislation changes the

‘present law by permitting the Administrator to

amend, modify, suspend or revoke safety certificates

_ prior to formal proceedings before the Civil Aero-

nautics Board. However, in order to protect the

23

holders of certificates from arbitrary action, the

Administrator is required, except in cases of emer-

gency, before taking any, action to advise the holder

_of the certificate of the nature of the charges against

_him and. te-give the holder an opportunity to present

informally his defenses to the Administrator. If,

after this. informal presentation, the Administrator

is still of the opinion that the certificate should be

amended, modified, suspended, or. revoked, the

_ Administrator may take such action. Thereafter,

if the holder of the certificate disagrees with the

action of the Administrator, he may appeal to the

Civil Aeronautics Board, where he will be given a

full hearing complying in al’ respects with the

requirements of the ‘Administrative Procedure Act.

In this ‘hearing before the Board, the Administrator

will have the normal burden of proof to establish

facts justifying the amendment, modification, sus-

ension or revocation of the certificate.’’ (H. R.

ep. No. 2360, 85th Cong., 2d Sess. 8° (1958).)

And see pagés 14-17, supra.

Moreover, it, is undisputed that, in twenty-two years

of practice under the Civil Aeronautics Act of 1938, in—

every instance where a physical standard was to be applied

in derogation of the rights of the holder of: an existing

certificate, that individual was accorded the opportunity

for-hearing and review under the predecessor of present

Section 609 (Appendix, p. 298a).

Congress, in enacting. the Federal Aviation Act of 1958,

approved the practices utilized under the Civil Aeronauties ~

Act of 1938 by which phiysical standards were promulgated

and then applied to individuals. By reenacting relevant

provisions of the prior statute, Congress adopted as

controlling. the prior practice. See letter from James

T. Pyle to Congressman Harris, H. R. Rep. No. 2360, 85th

Cong., 2d Sess: 29 (1958). Administration of the Federal

Aviation Act conformed to this € ‘ongressional intent until

the *Administrator issued the instant determination.

24

Physical standards for airmen promulgated under See.

tion 601 or its predecessor have always been incorporated

into Part 29 of the Regulations, entitled ‘‘Physical Stand. -

ards for Airmen.”’

Adjudications incorporating a trial-type hearing have

been the sole means by which these physical standards have

been applied. to airmen. Issuance, denial, amendment,

modification, suspension or revocation of airman certif-

cates have been the: results produced by these physical

standards adjudications. . *

In contrast, the Administrator has here established a

policy and revoked certificates in one step, and has held no .

hearings. To accomplish this, he has inserted the determi-

nation of physical standards into Parts 40, 4) and 42 of the

Civil Air Regulations, ostensibly directed at the air

. carriers rather than the airmen.

A study of physical standards cases under the Civil

Aeronautics Act of {938 and the Federal Aviation Act of

1958 has been prepared and is annexed hereto as Supple.

ment A. This study includes all physical standards case: |

reported by the Civili Aeronautics Board from July 21,

-1939 to and including November 18, 1959, immediately prior

to the date the instant determination. was issued.,

Each of these cases involves the application of a phy-

sical standard to an airman. All represent appeals to the

_ Civil Aeronautics Board from action by the Administrator

denying or revoking an airman certificate.

The study covered ‘approximately 115-cases. The cases

involved airmen with such defects as defective vision or

hearing, diabetes, hypertension, asthma, drug addiction,

tuberculosis, personality abnormality, heart disease, mental

illness, high blood pressure and epilepsy. Five of the

cases involved hearings on applications denied by the

Administrator solely because of the applicant’s age.

2

25

In over 45% of these cases, the Administrator’s denial

or revocation of a certificate was reversed by the Civil

Aeronanticae Board. In still others, appeals from such

action by the Administrator resulted ia a remand to him

for further consideration.

In every case, including the five *‘age’’ cases, the oppor-

tunity to be heard and to present and rebut evidence was

extended to the airman affectéd. At the hearings, waivers

' were requested and frequently were granted by the Board, »

as the study shows. It is highly significant that the Board -

granted a waiver to one individual whose application was —

deniéd by the Administrator solely because he did not meet.

the age requirements contained in the Civil Air Regula-

tions. See 14 C. F.°R. § 20. 30.

Each of these cases, as the study shows, involved an

opportunity for the affected airman to be heard, and to

submit and rebut evidence. Furthermore, in every case,

the individual was afforded the opportunity to apply for

_ a waiver from the terms of the physical standard, as pro-

vided by Section 29.5 of the Civil Air Regulations. In

‘almost half the cases, a waiver was granted.

This study illustrates the uniform manner in which the’

procedures traditionally observed by the Board and the

Administrator have, in the past, operated to insure safety

- in air transportation while at the same time preserving

the rights of individual airmen. ‘The Administrator’s

action respecting pilots who have reached the age of 60 is

an unwarranted and radical departure from. such past

practice. i

The past practices referred to herein ave the practices

by which physical standards for airmen have heen included

only in Part 29 of the Regulations, and by. which individuals

have been afforded a hearing to defend their certificates

from revocation. This .practice should be given gredt

weight in the interpretation. of § 609 of the Act.

26

In the case of United States v. Alabama Railroad Co.,

142 U. S: 615 (1892), the Postmaster General’s change in’

. the previons interpretation of a statute dealing with the

rates for mail carriage by. railroads was challenged.

Upholding the challenge, and declaring that the Postmaster

General was bound by the practices resulting from prior

uniform interpretation of the statute, the Supreme Court

stated:

‘‘We think the contemporaneous interpretation thus

given by the executive department of the government °

and continued for nine years through six different

administrations of that department * * * should

be considered as decisive in this suit. It is a settled

doctrine of this Court, that, in cases of ambiguity,

the judicial department will lean in favor of a

construction given to a statute by the department

charged with the execution of such statute, and, if

such construction be acted upon for a number of

years, will look with disfavor upon any sudden

change, whereby parties who have contracted with

the government upon the faith of such construction

may be prejudiced.”’

And see:

United States v. Atlantic Refining Co., 360 U. S,

19 (1959) ;

Norwegian Nitrogen Products Co. v. United States,

288 U. S. 294 (1933) ;

Hood v. United States, 256° F. 2d: 522 (1958).

But the Court below indicated that to give individual

airmen the right to hearing before their certificates were

modified might: require that some 18,000 pilot certificate

holders be given individual hearings. See Appendix B,

“p. 71a. It is clear that this is not the ease. Only those

pilots who reached age'sixty and had their license modified,

revoked or suspended would be entitled to a hearing before

the Administrator and to appeal to the Civil Aeronautics

™, ‘

Board. That this is a or number of people is apparent

from the fact that by 1962 there would only be a total of

about eighty active air carrier pilots in the above age

sixty group according to the estimate of the Administrator °

(App. 255a). -And see 49 U. S. C. § 1489. Furthermore,

once ‘the Administrator and the Civil Aeronautics Board

had held the regulation valid, the ruling would be binding

on the Administrator and the Board under the doctrine

of stare decisis and if the validity of the regulation were

later questioned by other airmen that issue could be dis-

posed of summarily. See Associated Industrics of Neu

York State, Inc, v. Ickes, 134 F. 2d 694 (2d Cir.), cert.

granted, 319 U.S. 739, vacated as moot, 320 U. 8S. -707

Nor would the fact that the Administrator is required

to grant each individual pilot who reaches the age of sixty

8 hearing before applying the regulation to him affect

safety in air commerce. Section 609 permits the Adminis-

trator to modify, amend suspend, or revoke airman certifi-

cates without a hearing in. cases of emergency and to

continue his order in effect while an appeal to the Civil

Aeronautics Board is pending.

Thus, there is no reason’ to believe that congress

intended to deny hearings and the other procedural safe-

. guards of § 609 of the Act to individual: pilots the value

.of whose airman certificates is destroy ed by action of the

Administrator.

3 The Constitutional question presented by this case

is of major importance in the field of public law. Peti-

tioners ask this Court to determine whether, under the —

Due Process Clause of the Fifth Amendment to the Con-

stitution, the Administrator may properly do away with’

the jobs and licenses of pilots by devising a method by

which, without any notice or opportunity to be heard, pilots

28 ¢

ure removed from their jobs and the value of their licenses

is destroyed through the actions of private persons, their

employers. While property rights of individuals in their>.

licenses and in their jobs may properly be limited by een-

,,Siderations of public policy which, in extraordinary cases,

require that observance of procedural safeguards be post-

poned, there is no warrant for a complete denial of notice

and hearing to persons whose ability to practice their

profession under a license granted by an agency of the

United States is destroyed. .

-. Nor is the action of the Administrator herein necessarily

limited to pilots. If the Administrator has the power to

destroy the value of pilot certificates by regulations that

‘ostensibly operate on the pilots’ employers without pro-

viding notice and hearing to the affected pilots, «does he

not have the power to destroy the value of a type certificate

for a particular aircraft without notice and hearing by

regulations that ostensibly operate on the potential pur-

chasers of that aircraft? See Federal Aviation Act, ‘4 603,

604(a), 49 U. S. C. §$ 1428, 1424(a).

On the effective date of the Administrator’s action,

some forty pilots were told by their employers that they

could no longer pilot aircraft in air carrier operations (App.

224a, 255a). Each of these pilots pos®ssed an Airline

Transport Pilot Rating Certificate which qualified him

under Civil Air Regulations to serve as pilot in command

a an aircraft engaged in air carrier operations. See 14

_ F. R. € 21.1 et seq., 641.48. When, by reason of the

poadeta bat s action, each of these pilots was removed

from his job in air carrier operations on March 15, 1960.

he was summarily deprived of (1) his license and (2) his

right to continue in the practice of a lawful profession.

Tne Administrator labeled his action a ‘‘regulation,”

which he purported to promulgate under:the rulemaking

power delegated to-him in the Federal Aviatiun Act of

Zo

1958. This label, however, is not controlling, since Courts

will independently examine the effect of administrative

action in determining what procedural safeguards must

.~ attend it. See Columbia Broadcasting System vy. United

States, 314 U. 8. 407, 416 (1942); American Federation of

Labor_v. National Labor Relations Board, 308 U. 8S. 401,

408 (1940); Powell v. United States, 300 U. S. 276, 284-85

(1937); Philadelphia Co, v. Securities Exchange Commis-

sion, 164 F, 2d 889;-899 (D.C. Cir, 1947) ; Davis, ApMInis-

TraTIVE Law, §{ 5.01, 5.46 (1958). Constitutional protee-

‘tions are operative, regardless of the form, label or lan-

guage used: by the Administrator to describe his action, if

the effect of the administrative action is to limit or revoke

outstanding licenses to practice a lawful profession. See

Federal Communications Commission v. National. Broad-

casting Co. (K. O. A.), 319 U.S: 239 (1943); L. B. Wilson,

Inc. vy. Federal Communications Commission, 170 F. 2a 793

(D.C. Cir. 1948) ; Civil Aeronautics Board v. American Air

Transport, 201 F. 2d 189 (D. C. Cir. 1952); Philadelphia.

Co. v. Securities Exchange Commission, supra.

It is highly unusual for licensees ‘o be forced to resort

to judicial proceedifigs to compel an administrative officer

to recognize that as a matter ot Due Process of. Law, the

revocation of a license and termination of the right to prac-

tice a lawful profession must be accompanied by notice and

an opportunity for the licensee to be heard. The individtial

evidentiang, hearing is invariably the sine qua nen ‘of the

normal, process of license modification or revocation. Agency

“rules”? or ‘‘regulations”’ are but one step in the accom-

plishment of the administrative purpose; the second step—

application of the ‘‘rule’’ or ‘*regulation’’ to individuals

Who fall within its general and prospective terms, awaits

subsequent adjudieatory enforcement proceedings. In such

circumstances, the individual hearing, required either by

due process, by statute or both, is held as a matter of

30

‘course when the second of these two steps is sought to be

accomplished. ln Columbia Broadcasting System v. United

States, 316 U. S. 407, 418 (1942), this Court said:

‘‘Most rules of conduct having the foree of law are

not self-executing but require judicial or administra-

tive action to impose their sanctivny with respeet to

particular individuals. Unlike an administrative

order or a court judgmént adjudicating the rights of

individuals which is binding only on the parties to

the ‘particular proceedings, a valid exercise of the

rulemaking power is addressed to and sets a stan-

dard of conduct for al!.to whom its terms-appiy. It

operates as such in advance of the imposition of

sanctions on any particular individual.’’ °

Coutrast the administrative determmation the consti-

tutionality of which is challenged in the instant case. This.

determination directed carriers to,remove forty pilots from

their jobs on a given date and thereafter to remove from

their jobs other pilots at the time that they reached the age

of 60. Thus, the carriers are used as the Administrator's

enforcement officers, and the necessity for subsequent en-

forcement proceedings alluded to in-the C.B.S. case, supra,

is obviated. The Administrator does net dispute the fdet

that his determination is to be enforced against individual

piluts, without giving them any notice or oppurtunity to be

heard, and, in fact, no hearings have been held.

The content of due process varies with the circumstances

of particular cases. This Court, in Joint Anti-Fascist Com-

mittee v. McGrath, 341 U.S. 128, 164 (1951) wrote:

‘*The precise nature of the interest that has been ad-

versely affected, the manner in which this was done,

the reasons for doing it, the available alternatives te

the procedure that was followed, the protection imi-

plicit in the officer or the functionary whose conduct

is challenged, the balanee of hurt complained ef and

good accomplished—these are some of the considera

tions that must enter into the judicial judgment.”

It is appropriate to compare ‘the balance.of hurt com- °

plained of and good accomplished’? as a result of the Ad-

ministrator’s determination here. On the one band, in-

. dividual pilots have lost their Airliné Transport Pilot

Rating Certificates and the right to continue in the prac-

_ tice of their profession without any notice or hearing af-

forded. to them. Othe nirman certificates which they

possess have been substantia'ly limited.

Upon an examination of the **good accomplished’’ by

the Administrator’s action, which denies these airmen an.

opportunity to be heard, there appears in the instant case

u0 consideration of foreign policy such*as was held to

justify the denial of hearings to an applicant for a certifi-

cate of convenience and necessity in the case of Chicago

and Southern Airlines, Inc. y. Waterman Steamship Corp.,

333 UTS. 103 (1948). Nor are there émergency wartime:

conditions: such as were held to justify the denial of hear-’

ings to a landlord -prior to the a of a price regula-

tion in Bowles v Ww dlingham, 321 U.S. 503 (1944).

But the Administrator argues that the action taken

‘against the pilots who were over age 60 was necessary to

‘preserve safety in air carrier operations and to prev ent

an alleged hazard resulting from the possibility of suddén

incapacitation of pilots in air-carrier operations.

The decision of this Court in the- Joint Anti-Fadscist

Committee case, supra, however, teaches that the ivailable

alternatives to the procedure that was followed bear sig-

hificantly upon the meaning of due process in particular

situations. Somé of the available alternatives to the Ad-

Ministrator’s action which, would have provided affected

pilots with an opportunity to be heard were:

1. The Administrator could have condueted more fre.

quent and intensive examinations of ‘the praficieney. and

vhysica] condition of pilots who were over 60. Intensive

sgini-a annual examination of the phy sicial condition and

oo of all Pilots in air carrier operations are now

uired. See 14 C. F. R. §§ 40.302tD), 41.53."

2. The Administrator could have refused to renew the

medical certificate of pilots over age-60.

3. The Administrator could have removed pilots the

were over 60 from flight auty under Section 609 of the Fed-

eral Aviation Act.

Surely the Administrator could have used one. of these

methods, or another method that gave the forty pilots

affected by his action. an opportunity to be heard’ before.

their right to practice their profession was terminated.

Moreover, if the Administrator. believed that an emer-

gency existed, he could have invoked the emergency powers

granted to him by { 609 of the Federal Ayiation Act. Sce

49 U.S. C. $1429; Getiuorn: ann Bysk, “ADMINISTRATIVE

Law, Cases anp Comments, 774-75 (1954).

Ignoring his emergency powers -nder the statut?, the

Administrator chose instead to act inja manner that Was

“both unconstitutional and unauthorized, ‘and that-permitted

months to pass. before his.action became effectiv e.

The substantia] and irreparable injury which has been

occasioned to the pilots who were 60 years old on the effee-

tive date of the Administrator’s action could have been

avoided without endangering public safety in any respect.-

The Administrator's choice of available alternatives is

therefore a significant factor in arriving at the meaning of

due process under the circumstances of this case. The

Due Process Clause of the Fifth Amendment requires that >

each individual affected by the Administrator’s actior be

accorded notice and the opportunity to be heard in gGefeuse

of his job and his lieénse. See, ¢.9., Joint Anti-Fascisi

Refugee Committce vo McGrath, 3841-U. S. 123 (A901):

Greene Vv. Meck lroy, 300-0. S. 474 (19 | In re Carter, 1¢7

F.2d fo (D.C. Cir..1949) 5 vi. 1a2 F.2d 35 (D.C! 1951);

Parker v. Lester, 112 °F. Supp. 433, (D. C. Cal. 1953), aff'd

227 F. 2d 708 (9th Cir. 1955); Civil Aeronautics Board v.

American Air Transport, 201 Kk. 2d 189-(D. ©. Cir. 1992 );

certificate dismissed, 244 U.S. 4 (1952).

Considerations of substantial and irreparable injury te

the licensee placed to one side, there are many other disad-

vantages which accrue from summary revocation of a

license. Primarily, however honest the Administrator's

intentions may be, his action thay be misguided. It is not

infrequent that the licensing authority itself is disposed

to alter its initial determinations on the basis o ey vide nce

-presented by a licensee at a hearing.

Furthermore, summary revocation forces -individuals

dissatisfied with the action of the licensing officials to

utilize judicial procedure. - Such judfeial proceediigs

involve, in most cases, an inquiry into matters which might

initially have been considered by the administrative officials

themselv es if. an administratiy e hearing had been held.

It is for these reasons, tufer alia, that the Courts have:

shaped the concept of due process into one which requires

a hearing-to precede administrative. action that’ ‘effects |

license revovation or property destruction, See Civil te ros.

nautics Board v, American Air Tiausport. 201 F. 2d 189

(D. C. Cir. 1952), certificate dismissed; 344 UL S. 4 (1952) +

Philadelphia Co. v. SEC, 175 F. 2d SOS (D.C. Cir. 1948),

vacated and dismissed as movt..337 U.S. 901 (1949) ;

‘and see Administrative Procedure Act, »S2(d), 2le). 5,

F,gnd 8,5 U.S.C. && 1001/d),- 1001 (©), 10042 1006. and

1007, “Gof

It is Tespect fuay submitted that the constititional ques.

tion presented herein strongly merits the consideration of

this Court.

34

4. This case Slso presents an important question ‘con.

cerning the inferpretation’ and application of the Du

Process Clause of the Fifth Amendment to the ( onstitution

when administrative action is challenged | as arbitrary and

unreasonable.

The Court below stated that to sustain such a challenge

it must be shown that the administrative agency had no

reasonable basis for the exercise of its judgment; and cite

American Trucking Associations, Inc. v. United States, 344

U.S. 298, 314 (1953).; Norman v. Baltimore & Oltio Railioad.

294 U.S. 240 (1935) (App. B, p. 74a).

The instant case is one in which petitioner has shown

that the Administrator’s action was without a reasonabl:

basis. It is respectfull; submitted that if the power of

the Court to overturn arbitrary administrative action is te

_ be given any. effect, it should be exercised in this case.

According to an affidavit of General Quesada, he based

his age -60 action on the following :

“A review of the available studies on ‘the subject

. of the effect of aging by the medical staff of the FAA

reveal that there is progressive deteriovation ot

certain physiological and psychological functions with

age and that sudden incapacitation due to such

diseases as heart attack and stroke become more.

freqyent with advancing years * * *. Moreover the

sum of these studies led us to the conclusion that.

unfortunately, medical science at the present tim

does ‘not have any means of detetmining the

physiologic age of: any specifie individual, ner |

there any reliable. method of predicting accurately

the occurrence of sydden ineapacitation due to heart

attacks or strokes. This was illustrated signifieant!y

by a st udy of one large industrial group of employers

under close medical supervision over an extended

period... This study, which was. amplified by «i+

cussions between physicians of this large industrial

group and members of my medical staff, showed that

approximately 85°~ of the perwots w ho had a heart

attack for the first time, had the-attack within six

months to a year after a therongh medical ex-

amination in which the individual had been found

to he in weendition normal to his age and without

any evidence. bs iggest the imminenee of such an

attack."* (.App.~256a)

Having conclided that: generally, as people grow older

they are subject to mere ils of the bedy than when they

ure younker the Administratoy turned his attention to

“the problem * * * [of] what maximum age limitation

would proyide 7a reasonable standard and wonld at the

same time ‘give full consideration to the duty resting npow

air carriers to perform their serviees with the aren

possible’ degree of safety in the spubli interest."° * ° °°

(App. 257a)

To solve shin problens the Administrator usec’ statistics

showing the mortality rate. from heart disease and the

incidence: of death from strokes, in all white males in the

United States’ (App. 257a-258a). All the statisties relied

upon by the Administrator were based on samples that cy

sisted of people whe were ‘in a condition normal to * * *

(their) age” (App. Fla, Joba, 2Zora-Josa). °

But this sample does not have any relevance to the

airmen affected hy the Administrator’: action that .i< chal

ienged herein. In crder to pilot aireraft in air commerce

a pilot must have an Airline Transpert Pilot) Rating

See 14C. FL R. 6 41.481a). To secure such a rating a pilot

must ‘‘meet the physical standards of the first class pre-

scribed in Part 29 of this Subchapter.’ 14.0. FOR. 6 20.14.

These physical standards vo not make any allowanee fer

the ‘‘condition normal’’ to the age of the pilot. They are

fixed: standayds of evesight, hearing, general physieal con-

dition, blowd pre sstire, ere nlatory efficiency, anal the nery-

ous system. For example, the physical standards, of the

first class for airmen eoguate s:

36

“*(e) General physical condition. (1) Applicant

shall have no organic or functional disease or struc:

tural defect or limitation which would be likely to J

render him unable to safely perform the duties and

exercise the privileges of the grade of airman cer-

" tificate held or sought.

(2) Unless the adjusted maximum readings ap-

ply, applicant’s reclining blood pressure shall not ex-'

ceed the maximum readings for his age group, as

indicated in the table’ in this subparagraph. The .

adjusted maximum readings shall apply to any ap-

plicant, age 30 years or more, whose reclining blood

pressure exceeds the maximum readings for his age

group-and whose cardiac and kidney conditions, after

complete cardiovascular examination, are shown to

be normal. , ;

Maximum readings Adjusted maximum

(reclining blood (reclining blood

; pressure in mm. ) pressure in mm.)

Age group Systolic Diastolic Systolic —Piastolic

.. Seerere * 140 8S —- --

can ks eh 145 OD 155. GS

SE RNa re oees 155 96 165 100

oO and over ... 160 98 170 100

_ ‘*(3) Applicants 40 years of age or over shall

demonstrate a degree of circulatory efficiency com-

patible with the safe operation of aircraft at high

altitudes.”” 14 C. F. R. ¢ 29.2.

The pilot engaged in air carrier operations is examined

every six months to determine whether he- meets these |

fixed physical standards (14 C. F. R. 6 21.40(b)). It is there:

fore clear that a sample based on all white males in the

United States and on persons ‘‘found to be in a condition

normal to * * * (their) age’? is an arbitrary and’ unrea-_

sonable sample by which to set s andards for pilots of |

aireraft in air commerce. In add. ion to meeting fixed |

physical standards, such pilots undergo /proticiency tests

es

37

every Six months. See 14 CC. Fe R. $$ 40.302(b), 40.153.

And the Administrator has the statutory power to re-

examine any airman at any time he sees fit, 49 U.S.C.

— §:1429.

Here the Administrator admits that accident reports

do not provide any significant data on the effects of age as

a.causai factor of accidents (App:,255a).. Thus, no rela-

tionship has been-established between pilot ave and hazards

to safety ih air transportation.

As was pointed out in Joint ctnti-Fascist) Com-

mittve v. McGrath, 841 U.S. 123, 163 (1951), “the available

aliernatives to the procedure that. was followed** should be

considered in: determining whether administrative action

violates due process. As has been shown above, pages 31-32,

the available alternatives to the Admitistrator’s action in

barring all pilots above the age of 60 from practicing their

profession iu air commerce would have satisfied all safety

needs. Indeed, the feasibility of the use of these available

alternatives is indicated by the following recent newspaper

. report:

is ‘“U. &. Mar Ler Prrots Fit Arren Ack or 60

a to The New York Times

‘Las ANGELES, May 2—

Projects being conducted by the Federal Aviation

Agency's Bureau of Aviation Medi¢ine may permit

commercial airline pilots to fly after they reach 60

years.of age and may also make electrocardiograms

mandatory for all civilian pilots at eS intervals.

This was ‘disclosed yesterday * Dr. Krank K.

Raymond of Los Angeles, the e. ney *s Western re-

vional flight s Irgeon, in an interview at the opening

of a three-day. seminar for seventy aviation, medical,

examiners at ihe Biltmore Hotel.

‘Commercial pilots of 60 often have tde bodily

capabilities of men of 40, while some men of 40 age

38

. faster and are in the same physical category of the

normal man of 60,’ Dr. Raymond said.

) Studies of new medical standards for testing

. pilots, he said, may permit a man of 60'to cSntinue

flying, and disqualify some men in their forties be-

cause of premature aging.

Dr. Raymond said he favors annual or bi-annual

electrocardiogram heart examinations for all classes

of civilian pilots.’’ *See New York Times, May 3,

_ 1961, p. 75, col. 2. |

It is therefore respectfully submitted that the Adminis-

trator’s action herein was without any reasonable basis

and in violation of the Due Process Clause of the Fifth

Amendment to the Constitution.

CONCLUSION

For the foregoing reasons, it is respectfully urged

that this Court issue its writ of certiorart to review the

decision below.

Samveu J. Cowen,

Counsel for Petitioners,

Office and P. O. Address,

50 East 42nd Street,

New York 17, New York.

Henry WEIss,

BenJAMIN M. SHIEBER,

Hersert A. Levy,

of Counsel.

be

39

Supplement A=-1

*P. D. C.—Physical Disability Case.

*s* . . e ee . oe: . : ‘ .

cert. den. denotes denial, amendment, modification, revocation or suspension of airman certificate.

a Case No } : ! Was Opportunity

and/or Date of Type of Administrator's Examiner's CAB for Administrative = Was Waiver

Name Docket No __Order__ Physical Defect . Action Recommendations Action __ Hearing Granted? Granted?

Hooks _ 214 7/21/39 arm and leg amputee cert. den.** affirmed attirmed yes no

Kemper * 209 7/21/39 one eye blind cert. den. aff rmed attirmed yes no

Shields 210 7/21/39 leg amputee cert. den. reversed affirmed ves yes

‘Swank 213 7/21/39 leg amputee cert. den. affirmed \ affirmed yes no

Rinehart | 212 8/18/39. defective vision cert. den. affirmed \ affirmed yes no

Germain 208 8/25/39 leg amputee | cert. den. reversed \aftirmed yes ves

Wardlow 211 9/26/39 arm amputee - cert. den. affirme’| aftirmed ves no

Shreve . 240 10/20/39 leg amputee cert. den. reverse! aftirmed yes yes

Vautrin 304 10/20/39 defective: vision cert. den. reversed affirmed yes yes

Ricci - 239 ; 10/24/39 arm amputee cert. den. ' affirmed affirmed yes no

Schulenberger 241 10/24/39 atrophy of leg cert. den. affirmed ‘aftirmed yes no

Swanson 218 ‘ 12/5/39 leg amputee cert. den. reversed affirmed ves * yes

iseli SR-40 6/14/40 epilepsy rert. den. affirmed affirmed yes no "

Berrien SR-64 8/21/41 — defective vision cert. den. affirmed . affirmed, yes no *

London SR-167 1/6/42 defective vision _ cert. den. reversed reversed yes no

roc SR-435 . 10/ 16/4 epilepsy cert. den. affirmed affirmed yes no

ro G. SR-438 1/8/43 diabetes cert. den. “reversed reversed yes no

P. D.C. - SR-538 5/28/43 diabetes cert. den. affirmed , -affirmed yes no

E. C. MacDonough SR-589 9/22/43 defective vision cert. den. reversed affirmed yes yes

FAM. Flick | ~ SR-616 5/3/44 defective vision ~cert. den. —— reversed ves ‘Administrator's.

: : plaint dismissed:

C. H. Hicks SR-821 5/29/44 . drug addiction cert. den. —— affirmed ves no |

Malcolm Riess SR-881 6/12/44 defective vision cert. den. —_— - affirmed yes no

NW. N. Murrah SR-806 7/7/44 defective hearing cert. den. ‘affirmed reversed yes yes

K. K. Noble SR-870 7/ 19/44 ear disease cert. den. ahin affirmed , yes no: ———

Fr. oC. ord. #3192 10/10/44 hypertension cert.. den. —— affirmed yes no

and sinus '

. Supplement A-2

40

disease .

Case No ; Was Opportunity

and/or Date of Typeof . Administrator's Examiner's | CAB for Administrative Was Waiver

Name | Docket No Order Physical Defect Action Recommendations Action Hearing Granted? Granted?

Pr. AS not numbered 1/12/45 colostomy cert. den. affirmed affirmed yes no

?. oC ord. #3652" 5/8/45 . ear disease cert. den, reversed affirmed yes yes

r AG ord. #3689 5/18/45, “nervousness cert. den. affirmed reversed yes yes

P.D.C ord. #3702 5/22/45 coronary cert. den. affirmed affirmed yes no

P. DC. ord. #3717 5/29/45 purpora hemorrhagica cert. den. reversed ~ affirmed yes yes

RBs: ord. #3753 6/15/45 duodenal ulcer * cert. den. _reversed affirmed yes ' yes

P. B.C. * ord. #3752 6/15/45 epilepsy cert. den. affirmed ‘affirmed yes no

P. D. ord. $3777 6/27/45 - asthma cert. den. “reversed _ affirmed yes yes

P. B-C. ord. #3804 7/3/45 diabetes cert. den. —— reversed yes yes

PrP. BC. ord. #3816 7/6/45 defective vision _ ' cert. den. — reversed yes yes

P. D.C. ord. #3846 7/17/45 ~—-quiescent tuberculosis cert. den. eto reversed yes ves

P. D..€. ord #3850 7 /20/45 former seizures and _ cert. den. — reversed yes yes

; unconsciousness ;

P. D. C. ord. #3911. 8/3/45 high blood pressure cert. den. tins reversed " yes yes

P. D.C. ord. #3912 8/2/45, asthma _ cert. den. — reversed yes yes

gS ord.. #3929 - 8/8/45 scoliosis, collapsed cert. den. —- reversed yes yes

| lung, et al. : '

ae a ord. #4012 8/31/45 ear disease cert. den. — reversed yes yes

PDC ord. #4046 9/18/45 osteomyelitis cert. den. — reversed yes yes”

P.D.C. ord. #4300 12/11/45 Intraventricular cert. den. — reversed . yes yes

os , 7 sceptum

PDC. . ord. #4691 4/24/46 chronic mastoiditic cert. den. ne reversed yes yes

I. E. Swain ord. #4903 6/19/46 convulsive seizures cert. den. —— affirmed yes no

W. H. Dickerson ord. #4954 7/9/46 | influence of s*:lfa cert. den. nee reversed yes Administrator's

: drugs complaint dismissed

?. S-173 8/13/48 diabetes cert. den. reversed reversed ‘yes no |

P. D.C. S-178 10/6/48 " personality cert. den. reversed reversed - yes no

’ . abnormality ot .

P. D. C. $-213 1/24/49 — myasthenia gravis . cert. den. affirmed affirmed yes no

P. D.C. S-250 ‘6/28/49 diabetes cert. den. affirmed reversed yes yes

P. D. C. S-252 7/8/49 mental & nervous | cert. den. affirmed affirmed , yes — no

Name

P. D. G.

Po Sh

E. J. Huxtable, Jr

J. D. Lindsay

C. W. Langille

D. W. Miller

W. H. Hirschaut

M. G. Grigsby

J. H. Greene

G. F. Hall

at on™

Bee

P. D.-C.

Erwin J. Ring

Harry F. Schaett!

‘James M. Cowart .

Isiah R. Salliday

Ross Briegleb

C. L. Pangborn

1. Fallack

(. J. Oryehowski

Walter Steiges

Merrill Ericson

eee ee ee ee ee

Supplement A-~3

41

and/or Date of Type of

Name Docket No Order Physical Defect

P. D. C. $-253 7/12/49 mental incompetence

P. D. C. S-254 7/15/49 ductus arteriousus

E. J. Huxtable, fr. S-291 11/14/49 psychosis

J. D. Lindsay ~ S-314 2/20/50 asthma ana hayfever

C. W. Langille $-319 3/13/50 systolic heart

murmer

D. W. Miller . S-357 8/1/50 seizures

W. H. Hirschaut S-369 10/2/50 heart disease

M. G.. Grigsby . S$-381 10/31/50 ~ abnormality of

lity

1 H. Greene S-399 3/23/51 thromboangitis

obliterans

G. F. Hall S-419 6/6/51 mental disease

P.D.C. S-453 10/11/31 diabetes:

P. D.C. S-475 3/5/52 menial disease

PD. C. S-476 3/5/52 mental disease

Erwin |. Ring $-632 8/3/34 ‘diabetes

Harry F. Schaettle S-656 1217/54 healed myocard inf.

. James M. Cowart S-659 12/21/54 mental

Isiah R. Salliday $-729 4/2/36 onary arterio-

sclerosis

Ross Rriegleb S-730 46°56 age 17

C. L. Pangborn S-731 4+ 13/56 healed heart canditie

R. L. Fallack S-740 5/28/56 age 16

C. |. Orvyehowski S-733 8336 heart disease

Walter Steiges S-791 3/21/37 poor eyesight

Merrill Ericson S-807 6/6/57 —_~ diabetes

Administrator's Examiner's

__ Action Recommendations

cert. den afhirmea

cert. den. affirmed

cert. den. affirmed

cert. den. reversed

cert. den. affirmed

cert. den. reversed

| cert. den. affirmed

ceri. den. affirmed

_cert. den. affirmed

cert. den. reversed |

cert. den. affirmed -

cert. den. , reversed

cert. den. affirmed

cert. den. reversed

cert. den. ‘ affirmed

cert. den reversed

cert. den affirmed

cert. den. —

cert. den. affirmed

cert. den. —

cert. den. affirmed:

Administrator affirmed

refused :

waiver

cert. den. " affirmed

(limited cert.

granted )

affirmed

reversed

affirmed

aflirmed

attirmed

affirmed

affirmed

affirmed

remanded

affirined

reversed

affirmed

reversed

afhrmed

affirmed

affirmed

afirmed

reversed

rev sed

affirmed

reversed

rever-ed

attir med

Was Opportunity

for Administrative Was Waiver

Hearing Gtanted? Granted”

yes no

yes yes

yes no

yes yes

ves no

yes Administrator's

complaint dismissed

>

yes. no

yes no

ves —_—-

yes yes

yes yes j

ves \dmimistrater . com-

plaint distaissed

Ves yes

— + yes

yes ms

ves ¥es

Ves Th

Ves cs

yes e Ves

Ves ne

ves ves

ves ves

yes yes

' Supplement A—4_

42

3

Case No ‘. ‘ ere : ; . Was Opportunity

and/or Date of Type of Administrator’s Examiner's CAB ~. for Administrative ©§ Was Waiver -

_ Name Docket No Order Physical Defeet Action Recommendations Action Hearing Granted? Granted?

James M. Cowart ‘S-827 9/9/57 * ‘mental | cert. den. —— remanded yes meme,

Frank W. Casey S-828 9/9/57 schizophrenia cert. den. _ remanded yes - ——

Herman Schram S-843 11/15/57 — manic depressive cert. den. reversed remanded yes. ——

‘ ; psychotic, — | , : .

John Doe S-846 12/11/57 mental cert. den. affirmed affirmed ——yess no

Denford D. Finke S-864 . 4/1/58 age 16 cert. den. — affirmed * yes no

J. K. Bates, ét al. 21 tdses S-866 4/10/58 = —— _-cert. den. pao remanded yes ee

Russel H. Paschke 5S-894 "7/2/58 _ mental _ cert. den. - reversed affirmed “yes yes”

LouisL.Armold.. S898 _ ‘7/9/38 mental cert. den. reversed _ affirmed yes ves

J. ¥. Bates, et al. © 21 cases S-901 7/17/58 diabetes’ and heart Administrator's petition for stay of CAB remand denied.

Wm. R. Bernurd —S--921 9/18/58 . age 16 cert. den. affirmed yes no

Anthony T. Milazzo S-931 10/24/58 deaf mute * cert. den. _— reversed - yes yes

Fred A. Pharis S-938 11/17/58 age 14 cert. den. affirmed yes no .

. Frank W. Casey S-939 12/4/58 mental Request to reopen by Casey and Administrator after cert. den. Poard asks

for written reasons.

Lyn B. Haggins S-946 12/30/58 diabetes © cert. den. reversed affirmed yes yes

Eugene J. M. Lunch 5-947 12/30/58 diabetes cert. den. reversed affirmed _ yes . yes .

Cecil C: Curtis . S-948 12/30/58 diabetes cert. den. reyersed affirmed yes yes

Billy N. Gray . S-949 12/30/88 myocardial infarction — cert. den. reversed” affirmed yes yes

Isidore H.- S-950 12/30/58 ; myocardial infarction cert. den. reversed affirmed yes yes

- Langenderfer. é; Fy

Oren J. Casey S-953 12/30/58 diabetes cert. den. reversed affii med yes yes

Albert H. Stronstoiff S-951 12/2/59 . myocardial infarction cert. den. affirmed reversed yes ves

Stanley J. Portman S-967 3/3/59 diabetes . cert. den, reversed _ affirmed . yes ves

Eugene M. Quimby S-968 3/3/59 diabetes cert. den. . reversed affirmed yes yes

Frank W. Casey S-980 4/24/59 Schizophrenia | cert. den. | affirmed affirmed yes yes

(limited vert. .

. _ granted)

Jas. R. Whitman, Jr. S-985 5/11/59, diabetes cert. den. reversed affirmed yes ves

Frederick K. Ake = S-988 5/15/59 diabetes cert. den. reversed affirmed yes yes

Henry H. Cre dian 6/8/59 diabetes cert. den. reversed reversed no

as : a By

Supplement A-5- eter te nes a

‘ CaseNo. : ues f° ‘Hearing Granted? .

ras and/or Date of Type of - Administrator's Examiner's - CAB Was Opportunity Was Waiver

Name Docket No. __. Order __ Physical Defect Action Recommendations _ Action for Administrative Granted?

JK. Bates $-997. 6/19759 “heart disease cert. den. reversed ~~ affirmed yes "yes ‘

Daniel H: H. Casebeer S-999 ” | 6/23/59 . heart disease cert. den. affirmed afferned ves no

Marshal D. S-1003 6/24/59 diabetes cert. den. reversed a affirmed . yes yes

Hendrickson oy rae,

Jas. R. Whitman, Jr. S-1015 | 8/26/59 diabetes .) cert. den. — _ afhrmed . yes - no ,

George F. Baker ~ §-1024 11/18/59 Effective October 15, 1959, the Administrator amended Part 295 ‘by modifying the revulations to

Ernestine Bienman S-1024 t1/18/59 provide that a medical history or a clinival diagnosis of certain specified diseases oF. E conditi ms (diabetes,

Owen L, Butler S-1024 | 11/18/59 myocardiai, infarction, coronary Leart disease) shall be disqualifying for airman medica! ¢er ‘icates

- 7 ne visiovas fn of any type. Subjects in case #S-1024 all were denied certificates by the Xdministrator prior to

A. C. Holder S-1024 11/18/59 | : 5 ae ; Z ‘. ere

Wm. W. em Ir. 5-1024 1118/59 October 15, 1959 because ofa mania: history or clinical diagnosis of one of the three specitied maladies.

Silas R. Langlois‘ S-1024 - 11/18/39 _ The Civil Aeronautics Board Examiner granted a limited certificate to all of these individuals, in

Ralph B. Muse S-1024 _ 11/18/59 © accordance with the regulations in effect prior to October 15, 1959. The Administrator appealed to

"Ralph C. Parker S-1024 11/18/39 the Board from-the decision of the Examine¢ granting said limited certificates. and the Tteard. on ©

_ H.S. Seabrook S-1024 — 11/18/59 November 18, ‘1959, remanded these. cases tu the Examiner for reconsideration in the light of the

. Robert E. Tramp S-1024 11/18/59 amendments to Part 29. No final decision had been rendered at the time this study was prepared.

Ps)

la

Appendix A

JNITED STATES CONSTITUTION

AMENDMENT V

Ne person shall be held to answer ‘for a capital, or

otherwise infamous crime, unless on a pres*ntment or in-

dictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any person be

subject for the same offense to-be twice put in jeopardy of

life or limb; nor shall be compelled in any criminal case to

be a witness against himself, nor be deprived of life, liberty,

or property, without due process of law; nor shall private

property be taken for public use, without just compensation.

. - z 7

ADMINISTRATIVE PROCEDURE ACT *

66 Stat. 237 et seg.; 5 U.S. C. 1001 ef seg.

Sec. 2. (c) Rute anp RULE MAKING.—‘‘Rule’’ means

the whole or any part of any agency statement of general

cr particular applicability and future effect designed to

implement, interpret, or prescribe law or poliey or to

describe the organization, procedure, or practice require-

ments of any agency and includes the approval or preserip-

tion for the future of rates, wages, corporate or financial

structures or reorganizations thereof, prices, facilities,

appliances, services or allowances therefor or of valua-

tions, costs, or accounting, or practices: bearing upon any,

of the foregoing. ‘‘Rule making’’. means agency process

for the formulatton, amendment, or repeal of a rule.

(d)-OrpER AND absupIcaTIoN.—‘‘Order’’ means the

whole or any part of the final disposition (whether aff au

tive, negative, injunctive, or declaratory in form) of any

agency in any matter other than rule making but including

licensing. -‘‘ Adjudication’? means agency process for the

formulation of an order. ; ;

(e) Licexst axp Licenstne.—**License’* includes the

whole or part of any agency -permit. certificate, approval.

* As of February 15, 1959.

2a 2

eee ‘Appendix A

registration, charter, riacmbership, statutory exemption or

other fora of permission. | ‘‘Licensing’’ includes agency

process. respecting the grant, renewal, denial, revocation,

suspension, annulment, withdrawal, limitation amendment,

modification, or ‘conditioning of a license.. |

(f) Saycrion’ anp ReLIEF.—‘‘Sanction’”’ includes the

whole or part of any agency (1) prohibition, requirement,

limitation, or other cofdition affecting the freedom of any. -

person; (2) withholding of relief; (3) imposition of any

form of penalty or fine; (4) destryetion, taking, seizure, or

withholding of property; (5) assessment of damages,

reimbursement, restitution; compensation, . costs, charges,

or fees; (6) requirement, revocation, or suspension ofa

license; or. (7) taking “of other compulsory or restrictive

action. ‘*Relief’’ includes the whole or part of any agency

(1) grant of money, assistance, license, authority, exemp-

’ tion, exception, privilege, or remedy ; (2) recognition of any.

cleim, right, immunity, privilege, exemption, or exception;

or (3) taking of any other action upon the application or

Petition of, and beneficial to, any person. er

(g) Acency PROCEEDING AND AcTIon.—*‘ Ageney proceed.

ing’? means any agency process-as defined «in subsections

(ce), (d), and (e) of this section. ‘Agency action”’ includes -

the whole or part of every agency rule, order, license, sanc-

tion, relief, or the equivalent or denial thereof, or failure

to act. ia ote

‘Rete Makixe is

Sec. 4. {60 Stat, 238; 5 U.S. C. 1003] Except to the

extent that there is involved, (1) any military, naval. or

foreign affairs function of the United States or (2) any

matter relating to agency management or personnel or to

public property, loans, grants, benefits, or contract-—

(a) Notice.—General notice of proposed rule making

shall be publislied in the Federal Register (unless all per-

sons subject thereto are named and either personally served

or “otherwise have’ actual notice thereof in accordance

3a : e- y @

Appendix A

with law\ and shall include (1) a statement of the time,

place, aes nature of public rule making proceedings; -(2)

reference \to the authority under which the rule is pro-

posed ; and (3) either the terms or substance of the pro-

posed rulé or a description of the subjects and issues

involved. Except where notice or hearing is required by

statute; this subsection shall not apply to interpretative

rules, general statements of Policy, rules of ageney organi-

. zation, procedure, or practice, or in any situation in which”

the agency for good cause. finds (and incorporates *the

finding and a brief statement -of the reasops therefor in

the rules issued) that notice and public procedure thereon

are impractieable, unnecessary, or contrary to. the public

interest. mks | a

(b) Procepures.—After notice required by this section,

the agency shall afford interested persons an opportunity

to. participate in the rule making through submission of

Written data, views,’ or arguments with or without oppor-

tunity to present the same ora}ly in any. manner; and,

after consideration of alf relevant ‘matter presented, the

agency shall incorporate in any rules adopted a concise

General statement of their basis and pu@pose. Where

rules are required by statute to be made on the record ‘after.

opportunity for an agericy hearing, the requirements of

Sections 7 ard8 shall apply in plage of the provisions of

this subsection. Oe oe é

(ce) Errective DaTEs.“The required publication or

Service of any substantive rule (other than one granting or

recognizing exemjition or relieving restriction or inter-

pretative rules gid. statements of policy) shall be-made not

less than thirty days prior to the effective date thereof

except as otherwise provided by the agency upon good

cause found and published with the rule.

(d) Petirions.—Every agency. shall accord any inter-

ested person the right to petition for the issuance, amend--

ment, or repeal of a rule. | )

t ta

Appendix A

ADJUDICATION ; :

Sec. 5. [60 Stat. 239; 5 U. 8. C. 1004] In every case

of adjudication required by statute to be determined on the

record after opportunity for an agency. hearing, except to

the extent that there is involved (1) any matter subject to

a subsequent trial of the law and the facts de novo in any

court; (2) the selection or tenure of ani officer or employee

- of the United States other than examiners appointed pur-

suant to section 11;,(3) proceedings in’ which decisions rest

solely on inspections, tests, or elections ; (4) the condvet of

military, naval, or foreign affairs functions; (5) cases in

which an agency is acting as an ‘agent for a court; and {6)

the certification of ‘employee representatives—

(a) Notice.—Persons entitled to notice of an agency

‘hearing shall be timely informed of (1) the time, place and

nature thereof ;.(2) the legal authority and jurisdiction un.

der which the hffring is to be held, and ( 3) the matters of

fact and law asserted. In instances in which private per-

sons are the moving parties, other parties to the proceeding _

shall give prompt notice of issues controverted in fact or

law; and in other instances agencies may by rule require

responsive pleading. In fixing the times and, places for

hearings, due regard shall be had for the convenience and

necessity of the parties or their representatives.

(b) Procepure.—The agency shall afford all interested

parties opportunity for (1) the subffijssion and ¢onsidera-

* tion of facts, arguments, offers of settlement, or proposals

“of adjustment Where time, the nature of the ‘proceeding,

and the public interest permit, and (2) -to the extent that

the parties are unable so to determine any controversy, by

consent, hearing, and decision upon notice and in confermity -

with sections 7 and 8. - ee oe ee

‘(e) SEPARATION oF Functions.—The same officers who

preside at the reception of evidence pursuant to section 7

shall make the recommended decision or initial decision

. required by section 8 except where such officers become un-

ae

-

da oe

"Appendix A

available to the agency. Save té thie extent required Nor

the disposition of ex parte matters as authorized ‘by Jaw,

_ no such officer shall consult any person or party on any fact

in issue unless upon notice.and opportunity for all parties

to participate; nor shall such officer’ be responsible to or

subject to the supervision or-direction of any officer, em- —

ployee, or agent engaged in the performance of investigative

or prosecuting functioys for any agengy. No officer, em-

ployee, or agent engaged in the performance of investiga-

tive or prosecuting functions for -any agency in any ease

shall, in that or a factually related case, participate’ or

advise in the decision, recommended decision, or agency

review pursuant to section 8 except as witness. or cuunsel

in public proceedings. . This subsection shall not apply in

determining applications for initial licenses or to proceed-

ings involving the validity or application of rates, facili-

ties, or practices of public utilities or carriers; nor shall it

_be applicable in any manner to the agency or any member

or. members of the body comprising the agency.

(d) Dectaratory Orpers.—The agency is authorizedgin

‘its sound discretion, with like effect as in the case of other

orders, to issue a declaratory order to terminate a con-

troversy or remove uncertainty.

: ‘ , 2 > a

Hearinos

ge *. [60 Stat. 241; 5 U. S. C. 1006) In hearings

which section + or 5 requires to be conducted pursuant to

| this section—

(a) Presmrxe Orricers.—There shall preside at the,

taking of evidence (1) the agency, (2) one or more members .

“oof the body which comprises the agency, or (3) one or more

_¢xaminers appointed as provided in this Act; but nothing”

in this Act shall be deemed to supersede the ecnduct of

specified classes of proceedings in whole or part by or

before boards or other offi¢ers specially provided for by or

a

®

6a oo —

Appendix A. °

designated pursuant to‘statute. The functions of all pre.

siding officers and of officers participating in decisions in

conformity with section 8 shall be. conducted in an im. -

partial manner. Any such officer may at any time with. —

draw if he deems himself disqualified ; and, upon the filing

‘n good faith of a’timely and’ sufficient affidavit of personal

vias or disqualification of any such officer, the agency shall

determine the matter as a part. of the record and decisior

in the case. j ek ere ,

(b) Hearine Powers.—Officers presiding at hearings

Shall-have authority, gubject to the published rules of the

agency.and within its powers, to (1) administer oaths and

affirmations, (2) issue subpoenas authorized by law, (3)

rule upon offers of proof and receive relevant evidence, (4)

take or cause depositions,to be taken whenever. the ends

of justice would be served thereby, (5) regulate the course

of the’ hearing, (6) hold conferences for the settlement or

‘simplification of the issues by consent of the parties, (7)

dispose of procedural requests or similar matters, (8) make

decisions or recommended decisions in conformity with

section 8, and (9) take any other action authorized by

agency rule consistent with this Act.

(c) Evience.—Except as statutes otherwise ,provide, 9

the proponent of a rule or order shall have the burden of

proof. Any oral or documentary evidence may be received,

but every agency shall as a matter of policy provide for

the exclusion of irrelevant, immaterial, or unduly repeti-

tious evidence and no sanction shall be imposed or rule or’

order be issued except upon consideration of the whole ree-

ord or such portions thgreof as may*be cited by any party

and as supported by and in accordance with the reliable

probative, and substantial evidence. Every party shall

have the right to present his case or defense by oral or

documentary evidence, to submit rebuttal evidence, and to

conduct such cross-examination as may be required for a |

full and true disclosure of the facts. In rule making’ or

fa

Appendix A

determining claims for money or benefits or applications

for initial licenses any agency may, where the interéat of

any party will not be prejudiced thereby, adopt procedures

- for the submission of all or part of the evidence in written

form. = |

(i) Recorv.—The transcript of testimony and exhibits,

‘gether with all papers and requests filed in the proceeding, |

shall constitute the exclusive record for decision in accord-

-ance with section 8 and, upon payment of lawfully pre-

scribed costs, shall be made available to the parties. Where -

any agency decision rests on official notice of a material

fact not appearing in the evidence in the reeord, any party

shail on timely request be afforded an opportunity to show

the contrary. . | |

‘

* € 7

Sanctions AND Powers |

Sec. 9. [60 Stat. 242; 5 U.S. C.-1008] In the exercise

of any power.or authority— :

. (a) Iy Genenat,—No sanction shall be imposed or sub-

stantive rule or order be issued except within jurisdiction

- delegated to the agency and as authorized by law. =

_ (b) Licenses.-—In any tase in which application is made

for a license required by law and agency, with due regard

to the rights or privileges of all the interested parties or

adversely affected persons and with reasonable dispatch, .

shall set and complete any proceedings required to be con-

ducted pursuant to sections 7 and 8 of this Act or other pro-

_ Ceedings required by law and shall make its decision, Ex-

_ cept in eases of willfulness or those in which public health,

interest or safety requires otherwise, no withdrawal, sus-

Pension, revocation,-or annulment of any licensé shall be

“lawful unless, prior to the institution of agency ‘proceed-

ings therefor, facts or conduct which may warrant such

actions. shall have been called..to the attention of the li-

censee by the agency in writing and the licensee shall have

been accorded opportunity to demonstrate or achieve com-

Sa 4

pA ppendix a

pliance with all lawful réquirements. In any case in which

the licensee has, in accordance with: agency rules, made

timely and sufficient application ‘for a renewal or a new’

license, no license with réference to any activity of a cor-

tinuing nature shall expire until such application shall have

been finally determined by the ageney-—-

JupiciaL Review

Sec. ‘10 [60 Stat. 243; 5 U. S.C. 1009) Except se far

as (1) statutes preclude judicial review or (2) agency ae-

tion is by law committed to ageney discretion—

‘(a) Rigut oF Review.—Any person’ suffering lega!

wrong because of any agency action, or adversely affected

or aggrieved by such action within the meaning ofsany

relevant statute, shall be entitled to judicial review thereof.

(b) Form axp vENvE oF action.—The form of proceed-

ing for judicial review shall be any special statutory re-

view proceeding relevant to the ‘subject matter in any court

specified by statute or, in the absence or inadequacy there-

of, any applicable fotn of legal action (including actions

for declaratory judgménts or writs of prohibitory or man-

.datory injunction or hdbeas corpus) ‘in any court of- com-

petent jurisdiction. -Ageney actién shall be subject to ju- .

dicial review in civil or criminal proceedings for judicial

enforcement except to the extent that prior, adequate, and

exclusive opportunity for such review is provided by law.

(c) REVIEW ABLE acts.—Every agency action made r-

viewable by statute and every final ageney action for which

there is né other adequate remedy in any court shall be sub-

ject to‘judicial review.. Any preliminary, procedural, or

_ intermediate agency action or ruling not -directly. review-

able shall be subject to review upon the review of the final

agency action. Except as: otherwise expressly required by

statute, agency action otherwise final shall be final for the

purposes of this subsection whether or not there has beet

presented or determined any application for a declaratory

order, for any form of. recorsideration, or (unless the

-

4

9a

> Appendix A

agency .otherwisé requires by rulé and provides that the

action meanwhile shall be inoperative) for an appeal to

“superior agency authority.

(d) INtTERm™ RELIEF.—Pending judicial review any °

agency is authorized, where it finds that justice so requires,

to postpone the effective date-of any action taken by it--—

Upon such conditions as may be required and to the extent

necessary to prevent irreparable injury, every reviewing

court (including every court to which a case may be taken

on appeal from or upon application for.certiorari or other

writ to a reviewing court) is authorized to issue all néces-

sary and appropriate process to postpone the effective date

of any agency action or to preserve status or rights pend-

ing conclusion of the review proceedings. .

(e) Scope or rEview.—So far as necessary to decision

and where presented the reviewing court shall decide ail

relevant questions of law, interpret constitutional ‘and stat-

utory provisions, and determine the meaning or applica-

bility of the terms of any agency action. It shall (A) com-

pel agency.action unlawfully withheld or unreasonably de-

layed; and (B) hold unlawful and set aside agency action,

findings, and conclusions found to he ( 1) arbitrary, capri-

cious, an abuse of discretion, or otherwise not in aecord-

ance with law’; (2) contrary to -onstitutional right, power,

privilege, or immunity; (3) in exeess of statutory juris-

diction, authority, or limitations, or short of statutory

right; (4) without observance of procedure required by

law; (5) unsupported by substantial evidence in any case

subject fo the requirements 6f "section 7 and & or other-

Wise reviewed on the record of an ageney hearing provided

by statute; or (6) unwarranted by the facts to the extent

that the facts are subject to trial de novo by the reviewing

court. In making the foregoing determinations the court

shall review the whole record or such portions thereof as

may be cited by any party, and due account shall he taken

- Of.the rule ef prejudicial error.

|

~ 10a

Ap pendix A

FEDERAL AVIATION ACT OF 1958* |

72 Stat. 737 et seq.; 49 U.S. ©. 1301 et seq.

OTHER Powers axv Deties oF ADMINISTRATOR

1M. 8. f+. Gamepad

Sec, 313. [72 Stat: 752, 49 U. S- C. 1354] (a) The Ad-

ministrator is empowered to perform such acts, to condact

such investigations, to issue and amend such orders, and

to make and amend such general or special rules, regula-

tions, and procedures, pursuant ‘to and consistent with the

provisions of this Act, as he shall deem necessary to carry

out the provisi6ns of, and to éxercise and perform his pow-

ers and duties under, this Act... pt ee

&

* _»s.—¢—

~~ TITLE VI—SAFETY REGULATION OF CIVIL.

‘ AERONAUTICS

Genera Sarety Powers anp Duties - .

Minimum Standards; Rules “and Regulations

Sec. 601. [72 Stat. 775, 49 U.S.C. 1421] (a) The Ad-

ministrator is empowered and it shall be his duty to pro.,

mote safety of flight of civil aircraft in air commerce by

prescribing and revising: from time to time: fee

(1) Such minimum standards governing the design, ma: °

terials, workmanship, construction, and performance of

aircraft, aircraft engines, and propellers as may be tfe-

quired in the interest of safety;

(2) Such minirium standards governing appliances as

may pe required in the interest of safety;

(3) Reasonable’ rules and regulations and minimum

standards governing, in’ the interest of safety, (A) the in-

spection,’ servicing, and overhaul of aircraft, aircraft en-

gines, propeHers, and appliances; (B) the equipment and

facilities for such inspection, servicing, and overhaul: and

* As of February 15, 1959. .

lla

Appendix A

(C) in the discretion of the Administrator, the periods for

and the manner in, which such inspection, servicing, and

overhaul shall be made,,including provision for examina-

.tions and reports by properly qualified private persons —

whose examinations or reports the Administrator may ac-

cept in lieu of those made by its officers and employees ;

(4) Reasonable rales and regulations governing the re-

serve supply of aircraft, aircraft engines, propellers, ap-

pliances, and aircraft fuel and oil, required in the interest

of safety, including the reserve supply of aircraft fuel

and oil which shall be carried in flight ;

(5) Reasonable rules and regulations governing, in-the

interest of safety, the maximum hours or periods of serv-

ice of airmen, and other employees, of air carriers; and

(6) Such reasonable rules and regulations, or Minimum

_ Standards, goverriing other practices, methods, and proce-

dure, as the Administrator may find necessary to protide

adequately for national security and safety in air ecommerce.

Needs of Service To Be Considered: Classifica

Standards, ete.

(by In preseribing standardsy,, rules, and regulations,

and in issuing certificates under this title, the Adminis-

trator shall give full consideration to the duty resting upon

air carriers to perform their services with the highest pos-

sible degree of safety in the public interest and to any dif-

ferences between air transportation ‘and other air com- .

merce; and he shall make classifications of such standards, |

rules, regulations, and certificates appropriate*to the dif-

ferences between air transportation and other air com-

tion of

merce. The Administrator may authorize any aireraft,.

_aireraft engine, propeller, or appliance, for which an air-

eraft certificate authorizing use thereof in air transporta-

—_€ e

: | SP. oi EE iN

oe ppe ndiz A

= ‘ , .

tion has been issued, to be used in other air coniinerce with.

F out the issuance of a further certificate. The Administra.

tor shall exercise and perform his powers and duties under

this Act in such manner as will best tend to reducé or elim.

‘inate the possibility of, ‘or Tecurrence of, accidents in air

transportation, but shall not deem himself required té vive

preference to either air transportation or other air COM:

merce in the administration and enforcement of this title.

2

S./ Exemptions’

a

a

‘(c) The Administrator;from time to time may grant ex-

emptions*from the requirements of any rule or regulation

prescribed under this title if he finds that such action would:

be in the public interest. . fet.

AIRMAN CERTIFICATES

Power to Issue Certificate

|. Sec. 602. [72 Stat. 776,49 USC, 1422] (a) The Admin-

istrator is empowered to issue airman certificates specity-

ing the capacity in Which the holders thereof ‘are author-

ized to serve as airmen in connection witlt aircraft.

: 7 Tssuance of Certificate ° :

(b) Any person may file with the Administrator an ap-

plication fer an airman certificate.” If the Administrator

finds, ‘after investigation, *that such PeETSON possesses

proper qualifications for, and is physically able to perform

the duties pertaining to, the position for which ‘the airman

certificate is sought, he shall issue such certificate, con-

taining such terms, conditions, and limitations as to dura-

tion thereof, periodic Or special examinations, tests of

physical fitness, and other matters as the Administrator

‘mnay determine to be nécessary to assure safety in air com-

“meree, Exeept in the ease of persons whose certificates

a

se

%

13a

-

s Appendix A 4

are, at the time of? denial, under order of SUspeision or

whose certHicates have been revoked within one year of the

date of sueh denial, any person whose application for the

issuance +» renewal of an airman certitieate is denied may

file with the Board a petition for review of the Adminis-

trator’ action. The Board shall thereupon assign such

petition for heating at-a place convenient to the appli-

cant’s plaee of residence o¢ employment. In the. conduet

oh such’ hearing and in determining whether the airman

meets the pertinent rules, regulations, ‘or standards, the

‘Board shall not be bound by findings ef fact of the Admin. -

istrator. At the conclusion of such hea ring, the Board shall

issue its decision as to whether the airman meets the per-

tinent rules, regulations, and standards and the Admin-

istrator shall be bound by such decision; Provided, That

the Administrator may, in his diseretion, prohibit or re-

‘trict the issuance of airman certificates to aliens, or may

make such issuance dependent on the terms of: reciprocal]

agreements entered into with foreien sovernments,

. Form and Recording of Certificate

(¢) Each certificate shall be numbered-and recorded by

the Administrator: shall state the name and address of,

and contain a description of. the person to whom the certifi-

cate is issued; and shall be entitled With the designation of

the class covered thereby. Certificates issued to all nilots

serving in-scheduled air transportation shall be designated

‘airline transport pilot’? of the proper Class. |

AIRCRAFT CERTIFICATES

Type Certificates : | 3

: ‘ < - ; : : ,

Sec. 603. [72 Stat. 776, 40 U.S. 0. 1425] (a)(1) The.

Administrator is empowered to issue tyzie certificates for

aireraft, aircraft engines, and propeliers: to specity in

l4a . , et

i A ppendie A

regulations the appliances for which the issuance of type

certificates is reasonably required in the interest of safety;

and to issue such certificates for appliances so specified.

(2). Any interested person may file with the Adminis.

trator an application for a type certificate for an aircraft,

aircraft engine, propeller, or appliance. specified in regu-

lations under paragraph (1) of this subsection. Upon re-

ceipt of an application, the Administrator shall make an

investigation thereof and may hold hearings thereon. The

Administrator shall make, or require the applicant to make,

such tests during manufacture and upon completion as the

Administrator deems reasonably necessary in the interest

of safety, including flight:tests and tests of raw materials

or any part or appurtenances of such ‘aircraft, aircraft

engine, prepeller, or appliance. If the Administrator finds

that such aircraft, aircraft engine, propeller, or appliance

is of proper design, material, specification,. construction,

and performance for safe operation; and meets the mini-

mum standards, rules, and regulations prescribed by the

: Administrator, he shall issue a type certificate therefor.

: _ The Administrator may prescribe in any such certificate

the duration thereof and such other terms, conditions, and

_ limitations as are required in the interest of safety. The:

Administrator may record: upon any certificate issued for

aircraft, aircraft engines, or propellers, a numerical deter- ©

mination of all of the essential factors, relative to the per-

‘formance of the aircraft, aircraft engine, or propeller for

which the certificate is banned

6

’

a ell

Production Certificate

(b) Upon application, and if it satisfactorily appears te

the Administrator that duplicates of any aircraft, aircraft

engine, propeller, or appliance for which‘a type certificate

has been issued. will conform to such certificate, the Ad-

ministrator shall issue a ‘production certificate authorizing

the production of duplicates of such aircraft, aircraft en-

a is

15a .

?

Appendix A

gines, propellers, or appliances. ‘The Administrator shall

make such inspection and may require such tests of any

aircraft, aircraft engine,. propeller, or appliance manutfac-

tured under a production certificate as may be necessary to

assure manufacture of each unit in eonformity with the -

type certificate or any amendment or modification thereof.

The Administrator may prescribe in any such production

certificate the duration thereof and such other terms, .con- | —

ditions, and limitations as are required in the interest of

safety.

Airworthiness ( ertificate

(c) The registered owner of. any aircraft may ‘file with

the Administrator an application for an airworthiness cer-

tificate for such aireraft. If the Administrator finds that

the aireraft conforms to the type certificate therefor, and,

after inspection, that the aircraft is in condition ‘for safe

operation, he shall issue an airworthiness certificate, The

Administrator may prescribe in such certificate the dura-

tion of such certificate, the type of service for which the

aircraft may be used, and such other terms, conditions, and |

limitations as are required in. the interest of safety. Each

such certificate shall be registered by the Administrator

and shall set forth such information as the Administr..tor

may deem advisable. The certificate number, er such other

individual designation ax may be required by the Adminis-

trator, shall be displayed upon each aireraft in accordance

with regulations _— by the Administrator.

Atm Carrrer emia CERTIFICATES

Power to Issue

Sec. 604. [72 Stat. 775, 49 U.S. C. F424) (a) The Ad-

‘ninistrator Is ahaconn to issue air carrier operating

certificates and to establish minimum safety standards for

‘the operation of the air carrier to whom any such certificate

vis issued.

16a

A ppendiz A

Issuance

_ (b) Any person desiring to operate as an air carrier

may file with the Administrator an application for an air

carrier operating certificate. If the Administrator finds, .

after investigation, that: such person is properly and ade.

quately equipped and able to conduct a safe operation in

-accordance with the requirements of this Act and the rules,

regu! ‘ations, andstandards prescribed thereunder, he shall

issue an air carrier operating certificate to such person.

Each air carrier operating certificate shall prescribe such

terms, conditions, and limitations as are reasonably neces-

sary to assure safety in air transportation, and. shall spe-

cify the points to and from which, and the Federal airways

over which, such person is authorized to operate as an air

raaniei under an air carrier oe certificate. ion

MAintTex ance OF Equirmet IN AIR TRANSPORTATION

Duty of Carriers and Airmen

Sec. 605. [72 Stat. 778, 49 U. S. C. 1425] (a) It shall be

the uty of each air carrier to make, or cause to be made,

such inspection, maintenance, overhaul, and«repair’ of all

- equipment used in air transportation as may be’ required

by this Act, or. the orders, rules, and regulations of the .

‘Administrator issued thereunder. And it shall be the duty

_ of every -person engaged in operating, inspecting, mait-

taining, or overhauling equipment to observe and comply

with the requirements of this Act relating thereto, and the -

. orders, rules, and regulations issued thereunder. |

Inspection

(b). The Administrator shall employ inspectors who

shall be charged with the duty (1) of making such inspec-

tions of aircraft, aircraft engines, propellers, and appl:

ances designed for use in air transportation, during manv-

facture, and while used by an air carrier in air transporta-

lla

Append ix A

tion, as may be necessary to enable the Administrator te

determin that such aircraft, aireraft engines, propellers, :

and appliances are in safe condition and are properly main-

tained for operation in air transportation ; and (2) of

advising and cooperating with each air carrier in the

inspection and‘ maintenance thereof by the air carrier,

Whenever any inspector shall, in the performance of his

duty, find that any aircraft, aircraft engine, propeller, or

appliance, used or intended to be used by any air carrier

in aby transportation, is not in condition for safe operation,

he shall so‘notify the carrier, in such form and manner as

‘the Administrator may prescribe; and, for a period of five

days thereafter, such aircraft, aircraftsengine, propeller,

or appliance shall not be used in air transportation, or in

such manner as to endanger air transportation, unless found

by the Adwinistrator’ or his inspector to be in condition

for safe operation.

.

Aim NAvication Faci.ity RATING

Sec. 606. [72 Stat. 779, 49 U.S. C. 1426] The Adminis-

trator is empowered to inspect, classify, and rate any air

navigation facility availahle for the use 6f civil aircraft,

as to its suitability for such use. The Administrator is

empowered to issue a certificate for any such air naviga-

tion facility..

Air Acexcy Ratine

See. 607. [72 Stat. 779, 49 UL S.C. 1427) The Adminis-

trafor is empowered si oper for the examination and

rating of (1) civilian schools giving instruction in flying or -

in the repair, alteration, maintenance, and overhaul of air-

craft, aircraft engines, propellers, and appliances, as to the

adequacy of the course of instruction, the suitability and

‘airworthiness of the equipment, and the competency of the

instructors; (2) repair stations or shgps for the repair,

alteration, maintenance, and overhaul of aircraft, aircraft

¢

18a.

Appendix A

engines, propellers, or appliances, as to the adequacy and

suitability of the equipment, facilities, and materials for, -

and methods of, repair, alteration, maintenance, and over-

haul of aircraft, aircraft engines, propellers, and appli-

ances, and the competency of thez¢ engaged in the work or

giving any instruction therein; and (3) such other air agen-

cies as may, in his opinion, be necessary in the interest of

the publie.: The Administrator is empowered: to issue cer-

tificates for such schools, repair stations, and other agencies.

Fors or APPLICATIONS

. Sec. 608. [72 Stat. 779, 49 U. S. C. 1428] Applications

for certifieates under this title shall be in such form, con-

tain such infc ‘mation, and be filed and served in such man-

ner as the Administrator may prescribe, and shall be under’

oath whenever the Adminstrator so -requires.

AMENDMENT, Suspension, aND Revocation or Cratiricates

Sec. 609. [72 Stat. 779, 49 U. SC. 1429] The Adminis.

trator may, from time to time, reinspect any civil aircraft,

aircraft engine, propeller, appliance, air navigation facility,

or air agency, or may reexamine any civil airman. If, as

a result of any such reinspection or. reexamination, or if,.

as a result of any other investigation made by the Ad-

ministrator, he determines that safety in air‘commerce or

air transportation and the public interest requires, the

Administrator may issue an order amending, modifying,

suspending, or revoking, 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.” .

Prior to amending, modifying, suspending, or revoking any

of the foregoing certificates, the Administrator shall advise .

the holder thereof as to.any charges or other reasons relied _

upon by the Administrator for his proposed action and,

except in cases of emergency, shall provide the holder of

ce

19a, -

Appendix A ? -

such a certificate an opportunity to answer any:charges and

be heard as to why such certificate should not be amended,

‘modified, suspended, or, revoked. Any person whose certifi-

eate is aff@eted by such an order of the Administrator, under

this section may appeal the Administrator’s order to the

Board and the Board may, after notice and hearing, amend,.

modify, or reverse, the Administrator’s order if jt finds that

safety in air commerce or air transportation and the public

. interest do not. require affirmation of: the Administrator’s

order. In the conduct of its hearings the Board ‘shall not

_ be bound by findings of fact of the Administrator. The

filing of an appeal with the Board shall stay the effective-~

ness of the Administrator’s order unless the Administrator

advises the Board that an emergency exists and safety in

air commerce or air transportation requires the immediate

effectiveness of ‘his order, which event thé order shall .

remain effective and the er shall finally dispose af the

appeal within sixty days éafter being so advised by the

Administrator. The person, substantially affected by the

Board’s order ‘may obtain judicial review. of said order,

_ under the provisions of section 1006, and the Administrator

shall be made a ‘party to such proceedings.

PROHIBITIONS

Violations of Title

Sec. 610. [72 Stat. 780, 49 U. S. C. 1430] (a) It shall

be unlawful—

(1) For any person to operate in air commerce any

civil aireraft for which there is not currently in effect an

airworthiness certificate, or in violation of the terms of any

such certificate ; < %

(2) For any person 1 to serve in any capacity as an air- (—

man in connection with any qivil aircraft, aircraft engine, ;

propeller or appliance used or. intended for use, in air

commerce w ithout an airman certificate authorizing him to

a : 20a

Appendix A

serve in such capacity, or in violation of any term, condi-

‘tion, or limitation thereof, or in violation of any order,

rule, or regulation issued under this title;

{3) For any person to employ for service in conneéction

--with any civil aircraft used in air commerce an airman

who does not have an airman certificate authorizing him

to serve in the capacity for which he is employed;

_, (4) For any person_to operate as an air carrier with-

out an air carrier operating certificate, or in violationsof

the terms of any such certificate;

. (5) For any ‘person to operate aircraft in air com-

merce in violation of any other rule, regulation, or certifi-

cate of the Administrator under this title; and

. (6) For any person to operate a seaplane or other air-

craft of United States fegistry upon the high seas in

contravention of the regulations proclaimed by the Presi!

dent pursuant to section 1 of the Act entitled ‘An Act

to authoriz@ the. President. to proclaim regulations for

preventing cdllisions at sea’’, approved October 11, 1951

(Public Law 172, Righty-second Congress; 65 Stat. 46);

and a rors

(7) For any person holding an air agency or production

certificate to violate any term, condition, or limitation

thereof, or to violate any order, rule, or regulation under

this title relating to the holder of such certificate.

Exemption of Foreign Aircraft and Airmen

(b) Foreign aircraft and airmen serving in connection

therewith may, except with respect to the observance by

such airmen of the air traffic rules, be exempted from the

provisions of subsection (a) of this section, to the extent,

and uvon such terms and conditions, as may be prescribed

by the Administrator as being in the interest of the public.

Se e .

, 2la

Appendix A

JupiciaL Review or Orpers

Orders of Board and SNE: to Review

Sec, 1006. [72 Stat: 795, 49 U.S, C. 1486] (ay Any’

order, affirmative or negative, issued by mee Board or

Administrator under this Act, except any order in respect

of any foreign~air carrier subject to the approval of the

President as provided in section 801 of‘this Act, shall be

subject to review by the courts of appeals of the United

States or the United States. Court -of Appeals for the

District: of Columbia upon petition, filed within sixty days

after the entry of such order, by any person disclosing

a substantial interest in such order.’. After the expiration,

of said sixty days a petition may be ‘filed only by leave

of court upon a showing of reasonable gronnds for fdilure

to file the petition theretofore. tie) 6

Venue

(b) A petition under this section shall be filed in the

court for the circuit wherein the petitioner resides or has

his principal place of business or in the United States

Court of “Appeals for the Distriet.of Columbia,

Notice to Board or, Administrator; Filing of Transe Apt

(c) A copy of the petition shall, upon filing, be forth-

with transmitted .to the Board or Administrator by the

clerkM@f the court, and. the Board or Administrator shall

thereupon ceftify and file in the court a transeript of the

record, if any, upon which the order complained of was

entered. 7 . ; 7

Power of: Court j

(d) Upon transmittal of the petition to the Board or

Administfator, the-court shall have. exclusive jurisdiction

to affirm, modify, of set aside the order complained of,

4 waite or in part, and if need be, to order further pro-

S

22a

‘A ppendix A,

ceedings by the Board or Administrator. Upon good

cause shown, interlocutory relief may be granted by stay

of the order or by such mandatory or -other relief as may,

be appropriate; Provided, That no interloeutery -relicf

may be granted except upon at least five days’ notice to,

the Board or Administrator. _ ae

Findings of Fact Conclusive

(e) The findings of facts by the Board or Adminis:

trator, if supported by substantial evidence, shall be con-

_ elusive. No objection to an order.of the Board or Adminis-

trator shall be considered by the court unless such objection

shall have been urged before the Board cr Administrator »

or, if it was not so urged, unless there were reasonable

grounds for failtfre to do so. - ‘$

_

Certification or Certiorari

(f) The judgment and decree of the court affirming.

modifying, or sefting aside any such order of the Board

+ or Administrator shall be subject only to review by the

Supreme Court of the United States upon certification or

‘certiorari as provided in section 1254 of title 28, United

States Code. :

“ ° ° ry

. CIVIL AERONAUTICS ACT OF 1938 -

AMENDMENT, SucPENsIoN, aND Revocation oF CERTIFICATES -

Sec. 609. [52 Stat. 1011] The Authority [Adminis

trator] may, from time to time, reinspect any aircraft.

aircraft engine, propeller, appliance, airs. navigation

facility, or air agency’ may reexamine any airman, and,

after investigation, and upon notice and hearing, may alier.”

amend, modify, or {the Board may] suspend, in whole or

in part, any type, certificate, production certificate, air-

worthiness certificate, airman certificate, air carrier oper-

ating certificate, air navigation facility certificate, or air

agency certificate if the interest ‘of the public so requires.

or [the Board] may revoke, in Whole or in part, any such

g "« °

23a

A een A “

certificate for any cause which, at the time of. revocation,

would justify the Authority [administrator] in refusing to

issue té the holder of such certifieate-alike ec rtificate. Tu

~~ Cases ‘of emergency, any such certificate may ve suspended,

in whole‘or in part, for a period nat in excess of thirty days, |

without regard to any requirement as to notice and hearing.

The. Authority shall immediately give notice of such sus-

psnsion 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 additional period not in excess of thirty

days. A

CODE OF FEDERAL REGULATIONS *

) 14.¢. F. R. Part 20 (

Pinot axp Isstruetor Certiricates

—

APPLICABILITY | AND DEFINITIONS

§ 20.1. Applic ability of this part.* This paft preserihes

standard for the issuance of student, private, and com:

mercial pitot and. flight instructor «certificates and air-

craft and instrument ratings. Regulations for the issuance

of air line transport and lighter-than-air pilot certificates”.

are spécified in Parts 24 and 22, ne of this sub- >

chapter:

.

‘GENERAL

20.10 Application and issuance. (a) An application

‘ a a pilot certificate or any rating shall be made on a form _

furni:hed by the Administrator.

(b) A student, private, or commercial pilot ‘or flight

* lnsttuctor certificate with appropriate aircraft ratings shall

*As of December 31, 1956, except where otherwise expressl

indicated.

ein

~

>

24a

A ppendix Ay

be issued by the Administrator to an applicait who meets

the applicable requirements. Additional aircraft category, -

class, and type, ‘and instrumént ratings for which an li-

‘cant has been found qualified shall be issued in connection

with a pilot or flight instructor certificate. A pilot certifi

' eate with appropriate limitations shall be issued to an ap-

‘plicant who cannot comply with all the prescribed skill

requirements due to the special characteristics of the air-

craft used in the “flight test if he meets. all other require.

* ments for the issuance of the certificate‘sought.

(c) An applicant for a pilot ‘certificate who presents a

medical certificate issued under .the physical-deficiencies

' provision of Part 29 of this subchapter and meets all other

‘requirements for the isshance of the certificate sought shali

be issued a pilot certificate containing such operating limi-

tations as the Administrator may find are ‘eommensurate

with the physical deficiencies. spe om his medical cer-

tificate.

(d) The prescribed examinations and tests shall. be

given by a person designated by the Administrator.

STupDENT

$20.20 Age. 16 years is the minimum age for the is-

suance of a student pilot certificate. If an applicant is less

than 21: years of age and is not a regular or reserve met-

_ber of thé armed forges of the United States or enrolled in.

an established ROTC or other training program of- such

armed forces at the time of making application, he shall

submit with his application the written consent of either

parent or of his legal or natural guardian.

; ‘ * ee ; :

§ 20.22 Physical standards. An applicant shall hold at

least a valid third class medical certificate issued in ac-

cordance with the physical standards prescribed i in Hart 2 29

of this subchapter.

25a .

Appendix A

' Private

$20.30 Age. 17 years is the minimum age for the is-

suance of a private pilot certificate.

§ 20.32 Physical standards. An applicant shall hold at

least a valid third class medical certificate issued in accord-

ance with the physical stz-ndards prescribed in Part 29 of

this sabchapter. :

e e e

COMMERCIAL * ‘

§20.40° Age. 18 years is the minimum age for the: is-

suance of a commercial pilot certificate. . ,

§ 20.42 Physical standards. An applicant shall hold at

least a valid second class medical certificate issued in ac-

cordance with the physical standards prescribed in Part

29 of this subchapter.

° a) e

e

>; . 4C. FL R. PART 21

Airtine Transport Pinot Ratixe

% * #* ;

$21.1: Provision for issuance. ‘Pursuant to:the provi-

sions.of the Civil Aeronautics Act of 1938, as amended, em-

powering the Administrator of 4‘ivil Aeronautics to issue

airman certificates specifying the capacity in which, the

holders thereof are authorized to serve’as airmen in con-

nection with aircraft, and requiring the Civil Aeronautics

Board to preseribe such reasonable rules and regulations

governing practices, methods, and proceedures as the Board

‘may find necessary to provide adequately for safety in.

* ar-commerce, airline transport pilots will be rated as to

- 26a

. Appendix A

competence in accordance with the provisions of-the regu-

lations in this part. °

§ 21.5 Definitions. As used in this part, terms are de-

fined as follows:

Category. A category is a broad classification ‘of uir-

craft with distinet, configuration and operating character-

istics such as airplane, rotorcraft, or glider.

Class. A class is a classification of aircraft within a |

category differentiating between single-engine, and multi-

engine and land and water configurations.

Flight time. Flight time is the total time from the mo-

ment the aircraft first moves under its own power for the

purpose of flight until the moment: it comes to rest at the —

end of the flight (block to block).

Maximum certificated take-off weight. Maxitmuny cer-

tificated take-off weight is the maximum take-off weight

authorized by the terms of the mi sess cer-

tificate.

Night. Night is the time between the tities of evening

civil twilight and the beginning of morning civil twilight

as published in the American Air Almanac converted té

local time ‘for the locality concerned. |

* Note: The American Air Almanac containing the end-

ing of evening twilight and, the beginning of morning twi-

light tables m@&y be obtained from the Superintendent of

Documents, Government Printing Office, Washinzton 29,

D.C. Information is also available concerning such tables

in the offices of the Civil Aeronautics Administration or the

United States Weather Bureau.

Pilot in.command, A pilot in command is the pilot, re-

sponsible for the operation and safety of the aireraft dur-

ing the time ‘défined as flight time. aa

27a

A ppendix A

Solo flight time. Solo flight time is flight time during

which the pilot is the sole occupant of the aircraft.

Type. Type is a specific classification of aircraft hav-

ing the same basic design including all modifications there- °

‘to except those modifications which result in a change in

handling or flight characteristics.

Minimym ReQuIREMENTS

§21.9 Eligibility. To be eligible-for an airline trans-

port pilot competency rating, an applicant shall comply

with the minimum requirements set.forth in § 21.10-21.18.

§21.10 Age. 23 years is the minimum age for the is-

suance of an airline transport pilot: rating.

§ 21.11 Character. Applicant shall be of good moral

ae

< - :

§24.12 Citizenship. An applicant for a pilot certifi-

a with an airline transport pilot rating may be a citizen

of any country or a person without nationality.

$21.13 Education. (a) Applicant shall be able to read,

write, and understand the English language, and shall be

able to speak the English language without accent or im-

pediment of speech which would interfere with two-way

radio conversation ; and

(b) Shall be a high school graduate or what is deemed

by the Administrator to be its equivalent from the appli-

cant’s showing of: general experience and aeronautical ex-

perience, knowledge, and skill.

§ 21.14 Physical condition. Applicant shall meet. the

sertieal standards of the First Class prescribed in Part

29 of this subchapter.

28a

Anpeéendix A

= $21.15 Aeronautical knowledge. Applicant shall be

familiar: with and Shail accomplish a satisfactory written

examination on: ;

(a) The provisions of Parts 1, 21, 27, 40, and 60 of this

subchapter, together with such parts of the provision: of

Parts 4a and 4b of this subchapter as are pertinent to the

‘operations of air carrier aircraft.

(b) The fundamentals of air navigation and the use of

formulas and of instruments and other investigational aids,

both in aircraft and on the ground, whith are deemed nec-

essary for the navigation of aireraft by instruments.

ec) The general system of weather collection and dis-

semination.

(d) Weather map, weather forecast, ‘and weather se-

quence abbreviations, Symbols, and nomenclature.

(e) Elementary meteorology, including modern know!-

edge of the eyclones as associated with fronts.

(f ) Cloud forms.

(¢) Department of ‘Commerce Weather — (lreu-

lar N, Instructions for Airway Meteorological Service, aud

all amendments thereto.

(h) Weather conditions, including ieing conditions and,

upper-air winds, affecting aeronautical activities.

(1) Air havigation facilities in use on the civil airways,

including rotating beacons, course lights, radio ranges.

and radio marker beacons.

(j) Data obtained from airplane weather observations

and meteorological data reported from observations made

by pilots engaged ‘in air carrier flights. b ;

Ak) The influence of terrain upon meteorological condt-

tions and developments, and the relation thereof to alr

carrier flight operations.

; | 29a

Appendix A

(1) Radio communication procedure as applied to air-

craft operation.

(m) The basie principles of loading and weight distri-

bution an@ its effect on flight characteristies.

§21.15-1 Written examination (CAA yolicies which

apply to’ § 21:15)—(a) Eligibility. The-airline transport:

oe

pilot rating written examination will be given to any person

who meets the eligibility requirements of %¢ 21.9 through

21.14 and 21.16.

(b) Contents. The examination consists of four see-

tions: (1) Civil Air Regulations, (2) meteorology, (3)

radio navigation, and (4) radio operations and procedures ;

each of which is graded separately. A minimum grade of

70 pereent is required to pass each section.

(c) Substitution of credit. An applicant may be cred-

ited with the successful completion of the meteorology sec-

tion of the airline transport pilot rating written examina-

tion if he possesses a currently valid flight navigator’s cer-

tificate or an instrument rating or if, vithin the last 2

‘Years he has successfully comipleted the meteorology section

of either the flight navigator or instrument rating exam-

ination. An applicant may be eredited with successful com-

pletion of the radio navigation section of the airline -trans-

port pilot examination, if he possesses: a currently valid

flight navigator’s certificate or if, within the last 2 vears,

he has successfully completed the air navigation section of

the flight navigator examination. If, however, the appli-

‘ant has previously taken the airline transport pilot exam-

ination and failed to pass these seetions, he may not sub-

stitute such credit for the written examination.

(d) Examination procedures. ~The examination: con-

sisting of the four sections mentioned in ‘paragraph. (b) of.

this section should be completed within one 6-hour session,

except that the supervising agent may, at his’ discretion

30a

Appendix A.

allow extra time in special circumstances. No examination

may be started unless’sufficient time remains to complete the

examination before the end of regular office hours.

(e) Report of grades. A report of grades received,

Form ACA-578A, will be mailed direct to the applicant.

Form ACA-578A will be accepted within a period of 24

months from the date of the examination as evidence of

the applicant’s having successfully completed the know!-

edge requirements for an airline transport pilot rating. A

“Form ACA-o78A, acceptable on September 1, 1996, will he

accepted by the Administrator until September 1, 1%5>.

_Ewxceptioy : Form ACA-S78A_ will be accepted by the

Administrator from an applicant during the applicant’

period of employment with an air carrier or operator, pro

vided the applicant has been continuously employed since

taking the examination, as a pilot with an air carrier or

operator,-and during this period of employment actively

participates in a pilot traihing program condueted by the

air cerrier or operator. |

21.16 Avronautical erpericnee. An applicant for an

airline transport pilot rating shall hold a valid commer:

cial pilot rating, or equivalent as determined by the Ad

ministrator, and shall meet the following ae wonsatical UX:

perience requirements :

(a) Ay plicant shall have had at least 250 hours of fligh"

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

pilot actually performing the duties and funetions of 2

pilot in command under the surveillance of the pilot in

command, or any-combination thereof. Of this time, al

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 paragraph

(b) of this section.

ola

-Appendiz A

_ (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 imme-

diately preceding the date of application; >

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

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

(4) 7d hours shall have been instrument time under ac-

tual or simulated instrument conditions of which not less

than 50 hours shall have been in actual flight.

(c) An applicant who meets the requirements of para-

graph (a) of this section with other than 200 hours, of

pilot-in-command time. shall ‘have his certificate appropri-

ately endorsed: by the Administrator in accordance with

Article 39 of the Convention on International Civil Avia-

tion. At such time as. the holder of a certificate so *en-

dorsed submits reliable documentary evidence ‘to the Ad-

ministrator that he has met the requirements of paragraph

(a) of this section, taking into account only time as pilot in

command, he shall be reissued a certificate without such

endorsement. |

Note: By the terms of Article 40 of the Convention on

International Civil Aviation, no person having a certificate

endorsed in accordance with the foregoing provision may

‘participate in international navigation as pilot in command

except with the permission of the State or States whose

territory is entered.

§21.16-1: Aeronautical experience (CAA rules which

“apply to & 21.16). (a) The following shall be considered

to hold the equivalent of a United States Commercial Pilot

Rating Certificate:

(1) Pilots of the U. S. armed services whose military

experience qualifies them for commercial certificates under

© 20.00 (b) of this subchapter. | -

. .

~

- 82a

Appendiz A

(2) Holders of foreign airline transport pilot or com-

‘mercial pilot licenses without limitations issued by mem-

ber states of ICAO.

‘(b) The holding of the equivalent of a commercial pi-

lot rating shall permit the holder thereof to meet the re-

quirements of. §§ 21.17 (a) (1) through (7) and 21.18 (}).

§21.16-2 Evidence of flight experience (CAA policies

which apply to.§ 21.16). (a) Flight experience required by

§ 21.16 sheuld be substantiated by a logbook maintained in

actordance With the requirements of § 43.43 of this sub-

chapter. - : iL :

© 91.16-3 Copilot expe rience’ (CAA policte s which aap

ply to § 21.16.(a)). A eopilot employed by a certificated

air carrier may credit ‘tas copilot actually performing the

duties and functions of a pilot-in-ecommand under the sur-

veillanee of the pilot-in-command”* that time during which

he performs all the functions of the pilot-in-command ' in-

cluding landings and takeoffs, en route flying, low ap-

prdaches, and ground functions.

(a) Flight time credited in this manner is subject to

the provisions of § 43.44 (b) (2) of this subchapter.

(b) .The actual flight time should be récorded and certi-

fied by the pilot-in-command tinder whose supervision the

functions were accomplished.

§ 21.17 Aeronautical skill. (a) Applicant shall demon-

strate satisfactorily his ability to pilot aircraft in normal

1 An air carrier should determine that a copilot has had sufficient

time and experience and has demonstrated his ability to perform

efficiently the duties of a copilot before permitting him to perform

. the functions of a pilot-in-command for the purpose of logging “pilot~

in-command time.” :

33a

Appendix A

take-offs, turns, landings, and the following maneuvers (the

maneuvers in subparagraphs (6) and (7) of this paragraph

shall be performed in an aircraft satisfactory to the examin-

: ing inspector of the Administrator) :

(1) From 3,500 feet, with engine fhrottled, a 360° turn

and a lending in normal landing attitude. _—-.

(2) From 2,500 feet, with engine throttled, a 180° turn

and a landing in normal landing attitude.

>

(3) A series of three shallow and three steep figure 8

turns and one 720° steep power turn in each direction. Dur-

ing these maneuvers, the pilot shall. not gain or lose more:

than 200 feet of altitude. . -

(4) A spiral in one dire¢tion from 3,500 feet, or higher,

with enginer throttled, and_a landing in normal landing,

attitude.

' (5) Subparagraphs (1) through (4) of this paragraph

shall be applicable when the flight tests are conducted in

aireraft of a gross weight in excess of 10,000 pounds: other- |

wise the pilot shall be required to demonstrate his aeronau-

tical skill in accordan¢e with § 20.45 of this subchapter.

(6) Emergency maneuvers such as simulated foreed

landings, spirals, side slips and climbing turns, and ré-

‘covery from stalls, maneuvers in multiengine equipment

_ with anthorized load with one engine inoperative, if rating

is sought on such equipment, and such other maneuvers as

the examining inspector of the Administrator may deem

necessary to demonstrate the competence of the applicant.

«)(?) A right-hand and a left-hand spin, each of at least

two full turns, with not to exceed 10 degrees error.

Note: The requirements of subparagraphs (1)-(7) of

this paragraphs and of § 21.18(b) may be met by the hold-

ing of a valid commercial rating.

ae |

- 7

_ Appendix A

- (b) Applicant .shall accomplish satisfactorily. a flight

test, solely by instruments, with respect to the following:

(1) Straight level flight for a given period of time.

(2) Moderate seaaed during 180° and 360° turns in

both directions.

(3) Minimum glides and simu climbs, and ap-

proaches to stalled attitudes of flight. .

(4) Climbing turns. | aa

(5) Stalls, skids, slips and spirals, and banks in exces:

of 45°, and recovery from the &

Nore:' ‘The requirements gare (1)-(5) of

‘this paragraph may be met by the holding of a valid instru-

ment rating.

(6) Such other maneuvers as the examining inspee efor

deems necessary. P

(7) A practical demonstration, while in flight or ander

simulated conditions, of estimating arriyal time, —

into account speed, wind, and drift.

§ 21.17-1 - Aeronautical ‘skill (CAA policies which ap-

ply to § 21.17). (a) An applicant will satisfactorily demon-

strate the following maneuvers to an Aviation Safety Agent

or a designated &irline transport pilot examiner by means”

~ of a flight check.? Tiis flight check may not be taken until

the written exainination has been satisfactorily completed .

anc the applicant has complied with the requirements of

21.31. ‘6

2 The examiner of agent will determine the order in which the

maneuvers are to be accomplished. See Appendix A for detailed

information relating to the. xequi:ed maneuvers. Appendix A no

filed with Federal Register Division.

s

35a

> Appendix A

(b) The following list of maneuvers will be ‘specifically

required for airiine transport rating in multiengine air-

craft:

Equipment examination (oral).

Preflight check.

Taxiing, or sailing and ee

Runups.

Takeoffs. : ‘

_Climbs and climbing turns.*

Maneuvering at slow speed.

Approaches to stalls.

Airport traffic pattern.

Landifig technique. |

Cross-wind takeoff and landing.

Traffic control procedure.

Steep turns (instruments only). a

Timed turns.®

Recovery from unusual attitudes.

Use of radio equipment.

Oriegtation.

Beam bracketing.

Cone (station) identification. -_

Instruntent approach procedures.

Missed approach procedures.

Use of directional radio.

‘Rapid descent and pull-up.

Engine(s) out procedure. _ F ,

_ Maneuvering with engine(s) out.

Maneuvering for landing at weather minimums.

Takeoff and landing with engine(s) failure.

Emergencies.

Smoothness and eoordination. °

a udgment.

* Not required if applicant holds instrument rating.

36a

Appendix A

-(e) The following list of- maneuvers will be ssiiiliiile

required for airline transport pilot rating in single-engine

aircraft : 4

Equipment examination (oral).”

a Preflight check. ?

Taxiing, or sailing and docking.

Runup. ,

_ Takeoffs. rere

Climbs and climbing turns.*

Maneuvering at slow speed,

Stalls.

Airport traffic pattern.

Accuracy approaches and spot landings.

Landing technique.

-Cross-wind takeoff and landing.

_ Traffic control procedures.

Steep turns (instument only).

Timed turns.®

Recovery from unusual attitudes.

_ Use of. radio equipment. .

- Orientation.

Beam bracketing.

Cone (station) identification. -

Instrument approach procedures.

. Missed approach procedures.

Use of- directional radio.

Rapid descent and pull-up.

4 Maneuvering for oe at weather minimums.

' Emergencies.

Smoothness and coordination. ite

J er.

.

3 Not required if applicant holds instrument rating.

37a

oe —— A

(a) The following list. of maneuvers will be specifically

* required of ATR multiengine pilots who fe a ply for addi-

tional type ratings:

Equipment examidation (oral).

Preflight check. __

Taxiiing, or sailing and docking.

Runups.

Takeoffs. _

Maneuvering at slow speed. .

Approaches -to stalls. ,

Airport traffic pattern. A

Landing *echnique.

9 Cross-wind takeoff and. landing.

Traffie control procedures.

Steep turns (instrument only).

Recovery from unusual attitudes.

Use of radio equipment.

Missed approach procedures.

Rapid descent and pull-up. —

Engine(s) out procedure.

Maneuvering with engine(s) oute

Maneuvering for landing at weather minimums.

Takeoff and landing ween engine(s s) failure.

Emergencies. :

Smoothness and coordination. ,

Judgment.

$21.18 Radio skill. (a) An_appiicant- shall. der.on-

strate his ability to interpret International Morse Code

signals, and shall accomplish a sati§factory flight. test iri a

hooded at with respect to’ the following:

(1) Tuning radio.

38a

Appendix A

(2) Orientation. Such orientation shall include the. use

‘of the radio direction finder with sufficient tests to deter-

mine the ability of the pilot to:

° (i). Home on a radio station.

(ii) Determine whether the aireraft | is » heading toyard %

or away from the station.

(iii) Obtain accurate fixes by the use of radio compass.

(3) Following radio range.

(4) Locating cone of silence.

(5) Letting-down-through on the range by the approved

instrument approach procedure for the — airport

used in comma with the test.

— (6) Such other’ maneuvers as the examining inspector

deems necessary.

_ (b) Such maneuvers as are necessary to demonstrate

competence to satisfactorily pilot an aircraft from _—

control seat. None of the maneuvers provided for in § 21,17

and this section shall be disregarded, but any such maneuv*r

may be modified by the examining inspector of the Admin. .

istrator to such extent as may be necessary for reasonable

and safe operation of the aircraft used in the particular

maneuver. Such inspector will report any such modifica-

tion to the Administrator in writing. ©

ArrLiNz£ Transport Pitot CoMpeTency CERTIFICATE

§ 21.20 Aircraft rating. The aircraft which the appli-

cant is deemed competent to pilot shall be prescribed. in .

his certificate by category and class, and type if the air-

craft has a maximum certificated take-off weight of more

‘than 12,500 Ibs. and, in the case of unconventional airplanes.

. such descripition as is appropriate to define clearly the com-

39a io

\

Appendix A

petence of the applicant. Competence to pilot aircraft shall )

‘be demonstrated in aircraft of the category and ‘class and,

if appropriate, the type for which the rating is sought.

§ 21.20-1 Air¢graft rating (CAA policies which apply to

§ 21.20(a))¢ Flight test maneuvers as outlined in § 21.17-1

td): will be used in determining competency of airline trans-

port pilots for aircraf

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Petition for Writ of Certiorari — Air Line Pilots Ass'n, International v. Quesada · 366 U.S. 962 | Frix