Pangburn v. CAB, 5990.

Decision Date14 December 1962
Docket NumberNo. 5990.,5990.
Citation311 F.2d 349
PartiesSheldon E. PANGBURN, Petitioner, v. CIVIL AERONAUTICS BOARD et al., Respondents.
CourtU.S. Court of Appeals — First Circuit

Lane McGovern, Boston, Mass., with whom John P. O'Brien, Arlington Heights, Ill., and Ropes & Gray, Boston, Mass., were on brief, for petitioner.

Robert L. Toomey, Attorney, Civil Aeronautics Bd., and James D. Hill, Deputy Gen. Counsel, Federal Aviation Agency, with whom Lee Loevinger, Asst. Atty. Gen., Lionel Kestenbaum and Arthur J. Murphy, Jr., Attys., Dept. of Justice, John H. Wanner, Gen. Counsel, Joseph B. Goldman, Deputy Gen. Counsel, O. D. Ozment, Assoc. Gen. Counsel, Litigation and Legislation, Civil Aeronautics Bd., Nathaniel H. Goodrich, Gen. Counsel, and John E. Marsh, Atty., Federal Aviation Agency, were on brief, for respondents.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

HARTIGAN, Circuit Judge.

This is a petition for review of an order of the Civil Aeronautics Boards issued pursuant to Section 609 of the Federal Aviation Act (49 U.S.C. § 1429), which affirmed an order of the Administrator of the Federal Aviation Agency suspending petitioner's Airline Transport Pilot Rating for a period of ninety days.

The incident giving rise to the suspension order was the crash at New York's La Guardia Airport on September 14, 1960, of an American Airlines Electra piloted by petitioner.

The petitioner was at the time of the accident and has since continued to be a senior airline pilot and the superintendent of flying for American Airlines at Boston.

Shortly after the crash the Board commenced an accident investigation pursuant to Section 701(a) of the Act (49 U.S.C. § 1441(a)). Under this section the Board has the duty of investigating accidents involving civil aircraft and making public reports setting forth "the facts, conditions, and circumstances relating to each accident and the probable cause thereof." Incident to this investigation, hearings were held by the Board on October 19, 20 and November 21, 1960.

Contemporaneously with these separate investigatory activities of the Board, the Administrator commenced proceedings against the petitioner under Section 609 of the Act.1 Six days after the accident petitioner was served with a Notice of Proposed Certificate Action, in which he was advised that the Administrator proposed to suspend his Airline Transport Pilot Rating for ninety days. On September 26, 1960 petitioner and his representative participated in an "informal" hearing in New York and gave their version of the crash. Thereafter, on September 28, 1960, the Administrator, finding that petitioner had "failed to exercise the degree of care, skill, judgment, and responsibility required of an airline transport pilot while operating an aircraft in scheduled air transportation" ordered the ninety days suspension.

In accordance with the provisions of Section 609, petitioner appealed to the Board from the Order of the Administrator and this appeal stayed the effectiveness of the suspension order. (49 U.S.C. § 1429).

A hearing before the Board's trial examiner was held on December 6-9, 1960. Subsequently, the hearing was briefly reopened on May 4, 1961. The examiner's Initial Decision was issued on August 30, 1961. In it he found that petitioner had been guilty of misjudgment in connection with the crash and affirmed the Administrator's order.

On March 9, 1961 after the December hearing — but before the examiner had rendered his decision — the petitioner, through counsel, wrote to the Board requesting that it defer issuance of its Accident Investigation Report (which was being independently conducted pursuant to Section 701(a)) until after the trial examiner and the Board itself had acted under Section 609. In the petitioner's words this action was prompted by a desire to avoid "the potentialities for prejudgment caused by the Board's having already made a publicly pronounced answer to the very same specific question (whether petitioner committed pilot error) that is the crux of the present proceeding." The Board denied this request. Some four months later, on August 28, 1961, the Board's Accident Report was released. This report, which determined that pilot error was the probable cause of the crash, antedated the trial examiner's decision by two days.

Thereafter, petitioner filed a notice of appeal to the full Board. In addition, on October 2, 1961 he filed a motion to reverse the order of the Administrator and to dismiss the complaint on the basis of "prejudgment." The Board rendered its Opinion and Order on March 15, 1962 denying the appeal and reaffirming "that safety in air transportation and the public interest require affirmance of the Administrator's order of suspension." The Board also denied petitioner's motion to dismiss the complaint, rejecting the argument that it had prejudged the case.

In this petition for review petitioner challenges the action of the Board on three grounds. First, he argues that the Board's findings of pilot negligence are unclear, inconsistent and unsupported. Next, he contends that the record will not permit a finding that his suspension is required by "safety in air commerce or air transportation" — the statutory standard for the type of action taken here. Finally, petitioner contends that the Board's order violated fundamental due process considerations because of the asserted dangers of "prejudgment" stemming from the Board's combined investigatory and adjudicatory functions.

We shall consider these contentions seriatim. As noted previously, petitioner was at the controls of the aircraft when it struck the top of a dyke and crashed while making a landing at La Guardia Airport during the course of a scheduled flight from Boston to St. Louis via New York City. After a routine flight from Boston, in excellent weather, the aircraft had been cleared to land by the La Guardia control tower and was making its final approach. What next transpired is described in the examiner's Initial Decision, and is not disputed by petitioner:

"* * * At 0900:47, the main gear of the aircraft contacted the top of a dyke bounding the southeast border of the airport on Flushing Bay. This dyke is constructed of dirt and when originally built extended 15 feet above mean sea level. On its landward side, it is 7.98 feet above the level of Runway 31 and is 163.4 feet from the threshold of Runway 31. The aircraft struck the dyke in an approximately level wing attitude, although there is evidence to the effect that the left wing was slightly down. As indicated by the photographs in evidence, the left main gear failed to clear the top of the dyke by approximately one and one-half feet and the right main gear by approximately one foot. The left main gear separated from the aircraft on contact with the airport surface and the left wing tore off at the fuselage shortly thereafter. The aircraft slowly rolled over to an inverted position and came to rest on its back off the left side of the runway, with its direction reversed. Although the aircraft immediately burst into flames and was totally destroyed, the passengers and the crew were evacuated without serious injury."

The fundamental question here is the reason why the airplane crashed into the dyke while landing.

Petitioner raises no question of a mechanical malfunctioning of the aircraft.

In his Order of Suspension, the Administrator found that the cause of the crash resided in the fact that in executing his approach petitioner had permitted the aircraft "to descend to an altitude which was insufficient to permit it to clear the dyke" and thus caused the aircraft to collide with the dyke. In sum, the Administrator charged negligence.

Petitioner denied that the crash resulted from negligence. Rather, he contended that the aircraft collided with the dyke due to an unforeseeable downdraft or thermal "sink" which caused the left wing to drop and the aircraft to settle. He contended that this drop occurred such a short time before reaching the dyke that he was unable to take corrective action.

In his Initial Decision, the trial examiner concluded, after an exhaustive review of the evidence, that "No settling of a magnitude not correctable by a pilot of petitioner's skill occurred. * * *" This finding was sustained on the appeal to the Board which found that "no significant settling of the aircraft occurred." We perceive no need of an additional elucidation of the evidence on this point by us and we believe that the record abundantly supports the conclusion of the trial examiner and the Board.

After rejecting this asserted defense, the examiner found two acts of misjudgment on petitioner's part. Initially he determined that: "In the execution of a skillful, precisely planned approach * * * requiring minimum clearance over the dyke, petitioner misjudged his actual clearance." Secondly, he concluded that: "The failure to provide maneuvering space for slight deviations in his intended flight path, caused by not unusual air disturbances over an obstacle, which were known to him and therefore plainly foreseeable, must be considered an act of misjudgment also."

On appeal, the Board sustained the examiner in the following language:

"* * * As we view the record, with the elimination of the probability of the unavoidable and unexpected settling contended for by respondent, the evidence indicates either (1) a last-minute mistake in judgment on respondent\'s part as to his actual clearance, or (2) a mistake in judgment through failure to provide in the planning of the approach sufficient `maneuvering space for slight deviations in his respondent\'s intended flight path * * *\' which were known to and foreseeable by respondent. The evidence establishes that either of these two acts of misjudgment occurred, and we find it unnecessary to determine which was the crucial factor * * *" (emphasis supplied)

The basis of petitioner's attack on...

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