Sims v. National Transp. Safety Bd., 80-1331

• Decision Date: 26 October 1981
• Docket Number: No. 80-1331,80-1331
• Citation: 662 F.2d 668
• Parties: George L. SIMS and James M. McGhee, Petitioners, v. NATIONAL TRANSPORTATION SAFETY BOARD, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 668

662 F.2d 668

George L. SIMS and James M. McGhee, Petitioners, v. NATIONAL TRANSPORTATION SAFETY BOARD, Respondent.

No. 80-1331.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted Oct. 2, 1980.

Decided Oct. 26, 1981.

J. Scott Hamilton, Hamilton & Hill, P. C., Denver, Colo. (Stan M. Connally, Denver, Colo., with him on the brief), for petitioners.

Susan J. Herdina, Atty., Civ. Div., Dept. of Justice, Washington, D. C. (Alice Daniel, Asst. Atty. Gen. and Barbara J. Herwig, Atty., Civ. Div., Dept. of Justice, Washington, D. C., with her on the brief), for respondent.

Before SETH, DOYLE, and SEYMOUR, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

This case pertains to alleged violations of regulations during a flight from Bozeman, Montana to Salt Lake City, Utah. The petitioners George L. Sims and James M. McGhee are Frontier Airlines pilots. Sims, on the flight here in question, was acting as the pilot in command, and McGhee was acting as second in command of the aircraft, a Boeing 737-200. They were charged with executing a pass less than 1,000 feet from the peak of Grand Teton Mountain on January 31, 1976. Flight 22 is a regularly scheduled passenger flight from Kalispell, Montana to Salt Lake City, Utah, with intermediate stops in Missoula and Bozeman, Montana. Sanctions were imposed against both respondents by their company and also by the National Transportation Safety Board. They seek review of the validity of the sanctions imposed by the Board.

This case has been before this court previously. The prior proceedings involved appeal by the pilots of a reversal and remand of a dismissal of charges by the Administrative Law Judge. The direction was that there was to be a full hearing. The proceedings had been aborted by the Administrative Law Judge, who had dismissed on the grounds of violation of due process. This court in that case ruled that the controversy was not ripe for determination. A complete hearing was held by the Administrative Law Judge following remand. A subsequent determination by the National Transportation Safety Board followed.

The problem revolves around the deviation by the pilots from the usual route from Bozeman to Salt Lake City. Frontier has regulations and specifications which require planes of the size of the one which was being flown on Flight 22 to fly under instrument flight rules, or IFR, at all en route times. Here, however, the pilot on Flight 22 requested permission from the Salt Lake air traffic controllers to amend his flight plan so as to go over Yellowstone and the Grand Tetons. The reason for the change was in order to give the passengers a scenic view, allegedly a policy of Frontier. In any event, the air traffic controller in Salt Lake gave clearance to take the requested heading and to fly the visual flight rules, VFR, to 17,000 feet, then commence instrument flight rules, IFR, to flight level 31,000 feet. However, Flight 22 leveled off at 11,000 feet and stayed at that level on visual flight rules for 15 to 20 minutes. After passing over Yellowstone National Park the flight approached the Grand Teton. It made a banking turn near the mountain and then hit severe mountain wave turbulence. The turbulence caused food trays and articles to be tossed around in the cabin, and caused injury to two flight attendants and one passenger.

Based on the deviation from the specified route and incidental violations, the petitioners were charged with violating several sections of the Federal Aviation Regulations (FAR):

(a) Section 91.9, by operating the aircraft in a careless or reckless manner so as to endanger the lives and property of others. 14 C.F.R. 91.9.

(b) Section 121.555(a) and (b), by operating the aircraft in scheduled air transportation over a route not specified in Frontier Airlines' specifications, and other than in accord with limitations in such operations and specifications. 14 C.F.R. 121.555(a) and (b).

(c) Section 121.657(a) and (c), by operating an aircraft under IFR in a designated mountain area at an altitude less than 2,000 feet above the highest obstacle within the horizontal distance of five miles from the center of the intended course when such operation is not necessary for take-off or landing. 14 C.F.R. 121.657(a) and (c).

The particular charges are in accordance with the regulations which are cited. Undoubtedly the pilot and co-pilot were in good faith in deciding to take the scenic flight. At the same time, they did recognize that a hazard existed, because it was announced by the captain that the passengers could anticipate that there would be turbulence, but that the scenic view would be worth the turbulence which could be anticipated. The Salt Lake air traffic controllers were aware that Flight 22 had not climbed directly to its 31,000 foot flight level, but did not contact the plane. An ATC witness stated that it is common for pilots to take the scenic route over Yellowstone.

The Administrator suspended the pilots' airline transport certificates for 90 days in the case of Captain Sims, and 60 days in the case of McGhee. The two pilots appealed and after going through all the procedures, the sanctions were reduced to 40 and 20 days.

Upon the remand, the Administrative Law Judge had found violation of only two of the charged violations, and further commented that the violations were innocuous, and in furtherance of Frontier's avowed policy of providing passengers with as scenic a flight as possible. The Administrative Law Judge imposed no sanctions. One of the pilots had already been suspended by his company for ten days and the other had received a letter of reprimand which was put in his employment file. These company sanctions are, of course, collateral to the present proceedings.

All parties appealed to the Board and the Board found guilt of an additional violation for which it imposed the 40 and 20 day sanctions.

The contentions which are advanced on this present appeal are for the most part alleged trial errors. These are described as follows:

1. That the National Transportation Safety Board erred in foreclosing petitioners from exercising pretrial discovery.

2. That the National Transportation Safety Board erroneously overruled the Administrative Law Judge's ruling that the witness Hill, an air traffic controller, could testify on behalf of the petitioners.

3. That the National Transportation Safety Board improperly reversed the Administrative Law Judge's dismissal of the proceedings.

4. That the Board erred in denying the pilots' appeal of the second initial decision in the order of the Administrative Law Judge, when the Judge found a violation therein which was not supported by his findings of fact.

5. That the Board erred in granting the Administrator's appeal to the second initial decision and order of the Administrative Law Judge, and in so doing invaded the exclusive province of the trier of the facts.

6. That the Board erred in imposing sanctions which were not justified by the facts.

The court will treat most of the matters which are advanced in the brief in the order in which they are set forth. However, some of the points will not be addressed.

I.

Did the National Transportation Safety Board Erroneously

Prevent Petitionersfrom Obtaining Pretrial Discovery?

This is said to be a violation of the Constitution, as well as the Regulations.

The question as to whether there was an error on the part of the Board in denying discovery is treated by petitioners by citation of authorities that are general in character. They do not point out the evidence that was sought, the importance of it or the prejudice that was suffered as a result of the denial of the request. Nor do they discuss the fact that the request for discovery was made immediately after the case was set for trial. They had ample time to obtain discovery; there was plenty of opportunity, for a long period prior to the trial, to demand the discovery. Moreover, there is not the slightest effort to show that they were prejudiced by the failure to provide the discovery. Also, the discovery was requested, from what we have seen, in the broadest of terms. They were actually demanding that the Board make a search that was properly theirs to make. We can see no violation either of the Constitution or an abuse of discretion in denying the discovery. The hearing was a lengthy one and the facts were considered in great detail.

It is important to call attention to the fact that the petitioners were seeking a continuance simultaneously with their request for discovery. Their request for a continuance was based on the fact that they needed pretrial discovery. At the same time, there was no allegation that the F.A.A. or any other party would be unable to comply with the depositions or interrogatories which the pilots sought. It also appears that the F.A.A. had notified Sims and McGhee as far back as November of the previous year that it was prepared for the hearing, but no discovery requests were made by petitioners until February 23rd. There were other motions filed between that time and the time that the trial commenced. The F.A.A. had subpoenaed ten persons and had arranged for their attendance at the hearing. A continuance would have inconvenienced these people.

Professor Kenneth Culp Davis, in the 1978 Supplement to his Administrative Law Treatise, 1st Edition, clarifies this present question very considerably. Professor Davis calls attention to the Seventh Circuit's decision in Silverman v. Commodity Futures Trading Commission, 549 F.2d 28, 33 (7th Cir. 1977), which states, "There is no basic constitutional right to pretrial discovery in administrative proceedings," the APA does not provide for discovery, and the Federal Rules of Civil Procedure do not apply to an agency. Silverman upheld an order despite the denial of discovery. Professor Davis says that the Silverman holding clearly embodies the general law.

In the discussion...