Chritton v. National Transp. Safety Bd., 88-1123

Decision Date27 October 1989
Docket NumberNo. 88-1123,88-1123
Citation888 F.2d 854
PartiesWilliam Roy CHRITTON, Jr., Petitioner, v. NATIONAL TRANSPORTATION SAFETY BOARD, Samuel K. Skinner, Secretary of Transportation, and T. Allan McArtor, Administrator, Federal Aviation Administration, Respondents.
CourtU.S. Court of Appeals — District of Columbia Circuit

James E. Cooling, with whom Paul Kingsolver was on the brief for petitioner.

Karen R. Bury, Atty., F.A.A., for respondents. Peter J. Lynch, Atty., F.A.A., also entered an appearance for respondents.

Before MIKVA and RUTH BADER GINSBURG, Circuit Judges, and HOGAN, * District Judge.

Opinion for the Court filed by District Judge HOGAN.

THOMAS F. HOGAN, District Judge:

Petitioner William Roy Chritton, Jr., an emergency medical evacuation helicopter pilot, crashed in bad weather by hitting a power line while he was transporting an accident victim. Petitioner seeks review of an order of the National Transportation Safety Board ("NTSB" or "Board"), affirming an order of the Federal Aviation Administration ("FAA"), which suspended his commercial pilot certificate for twenty days because of the crash. Petitioner contends

on appeal that the agency improperly found him in violation of Federal Aviation Regulations and arbitrarily rejected his "emergency" defense. For the reasons set forth below, we affirm.

I. BACKGROUND

Mr. Chritton is a professional pilot and a founder and chief helicopter pilot of Air Evac EMS, Inc., a private emergency medical service operating out of Ozark Medical Center in West Plains, Missouri. The incident giving rise to this appeal occurred on October 31, 1985, when Mr. Chritton, conducting an air ambulance flight, attempted to transport a seriously-injured accident victim and a paramedic from the Ozark Medical Center to a hospital in Springfield, Missouri, under adverse weather conditions. Concerned about the weather, Mr. Chritton chose a flight course following Interstate Highway 60 at low altitude in order to maintain reference to ground lights and to retain access to ground transportation to nearby hospitals. Before reaching Springfield, he encountered Cedar Gap Hill, the highest elevation on Highway 60. At Cedar Gap Hill, visibility in the fog became so poor that Mr. Chritton decided to turn around and take the patient to a hospital in Mansfield, a city he had just passed. In making the 180-degree turn, the helicopter hit power lines that paralleled the highway and crashed on the highway median strip. Mr. Chritton and the paramedic sustained injuries as a result of the crash. The patient was found dead at the scene.

On July 21, 1986, the FAA issued an order suspending Mr. Chritton's commercial pilot certificate for sixty days for violations of Federal Aviation Regulations ("FAR"), 14 C.F.R. Secs. 91.79(a), 91.79(d), 91.9, and 91.105(b). 1 Mr. Chritton appealed the order to the NTSB, requesting a hearing. An evidentiary hearing was held before NTSB administrative law judge ("ALJ") Thomas W. Reilly on January 6, 1987. Eleven witnesses appeared. 2

At the conclusion of the FAA's case in chief, Judge Reilly dismissed the charged violations of FAR sections 91.79(a) and 91.105(b). At the conclusion of all the evidence, Judge Reilly affirmed the Administrator's order regarding violations of FAR sections 91.79(d) and 91.9, rejected Mr.

                Chritton's "emergency defense" under FAR section 91.3(b) 3, and reduced the sanction to a twenty-day suspension.  Mr. Chritton then appealed from Judge Reilly's initial decision to the full NTSB.  On December 21, 1987, the NTSB issued an opinion and order denying Mr. Chritton's appeal and affirming Judge Reilly's initial decision.  Mr. Chritton now seeks review of the NTSB's decision pursuant to 49 U.S.C.App. Secs. 1486(a) and 1903(d) (1982). 4   The Board's order has been stayed pending disposition of this appeal
                
II. DISCUSSION

In reviewing the decision of the NTSB, we are bound by the provisions of the APA. Under 49 U.S.C.App. Sec. 1903(d) and 5 U.S.C. Sec. 706(2)(E), the reviewing court shall set aside agency findings unsupported by substantial evidence. The substantial evidence test is a narrow standard of review. Substantial evidence is " 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Refrigerated Transport Co., Inc. v. I.C.C., 616 F.2d 748, 751 (5th Cir.1980) (quoting Chem-Haulers, Inc. v. United States, 536 F.2d 610, 617 (5th Cir.1976)). Under the substantial evidence test, the court must determine whether " 'the agency ... could fairly and reasonably find the facts as it did.' " Western Air Line, Inc. v. C.A.B., 495 F.2d 145, 152 (D.C.Cir.1974) (quoting Braniff Airways, Inc. v. C.A.B., 379 F.2d 453, 462 (1967)). Thus, a "conclusion may be supported by substantial evidence even though a plausible alternative interpretation of the evidence would support a contrary view." Id.

In addition, pursuant to 5 U.S.C. Sec. 706(2)(A), the reviewing court shall hold unlawful agency action found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. Under this standard, the Court must "consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.... Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). Thus, when reviewing an agency decision under the "arbitrary and capricious" standard, we must defer to the wisdom of the agency, provided its decision is reasoned and rational, and even "uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned." Bowman Transportation Inc. v. Arkansas-Best Freight Systems Inc., 419 U.S. 281, 286, 95 S.Ct. 438, 441, 442, 42 L.Ed.2d 447 (1974) (citing Colorado Interstate Gas Co. v. F.P.C., 324 U.S. 581, 595, 65 S.Ct. 829, 836, 89 L.Ed. 1206 (1945)).

In his petition for review, Mr. Chritton challenges the action of the Board on two grounds. First, he argues that the Board's findings of pilot negligence, and the resultant findings of violations of FAR sections 91.79(d) and 91.9, are unsupported by substantial evidence. Second, petitioner claims that the NTSB's rejection of Mr. Chritton's "emergency defense" under FAR section 91.3(b) to his alleged violations of FAR sections 91.79(d) and 91.9 was arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with the law. We address petitioner's claims seriatim.

A. NTSB's Finding of Pilot Negligence

The NTSB's finding of pilot negligence was based principally on its conclusion that both the existence of the power lines and the adverse weather conditions that Mr. Chritton encountered were "foreseeable." The Board adopted the ALJ's factual findings and agreed that there was "no merit in [Mr. Chritton's] contention that the striking of power lines by the helicopter was an unforeseeable event." Administrator v. Chritton, NTSB Order No. SE-7639, slip op. at 6 (1987) (hereinafter "NTSB Opinion"). The Board also agreed with the ALJ that Mr. Chritton "had weather information, in the form of current reported weather observations, sufficient to apprise him that there would be fog and obscuration along the route to Springfield." Id., slip op. at 7.

The Board reasoned as follows:

[Mr. Chritton's] helicopter finally came to rest on ... a section clearly marked by the presence of power lines. We also note that the altitude for the quadrangle within which the accident occurred is marked at 3700 feet and the area surrounding the accident site has numerous altitude markers. In short, the power lines and altitudes are clearly delineated on the chart, which, respondent testified, he was using (Tr. p. 314). The Board concurs in the law judge's determination that, although [Mr. Chritton] could not tell the height of the power lines depicted on the chart, and he could not see the power line because, being night, it was dark, and, as forecast, it was foggy, it was incumbent upon [Mr. Chritton] to fly high enough to avoid obstructions that would otherwise be there for him to see in daylight and with unobstructed visibility. In short, the law judge found that a prudent pilot would have foreseen the possibility that the power lines marked on the chart would require him to maintain an altitude significantly higher than the surrounding terrain because the power lines would not be visible in darkness and obscuration.

Secondly, the Board agrees with the law judge that [Mr. Chritton's] inability or failure to obtain the latest weather forecast at 6:06 p.m., on his second request for weather information, was not crucial because the current reported weather observations, given at 5:12 p.m. and at 6:06 p.m., were both below the forecasted conditions. The Administrator points out that the reported weather conditions (which had not changed for at least two successive hourly reports), were well below the amended forecast....

We also note, as did the law judge, that it appears that the fogging of respondent's helicopter bubble, which had also occurred earlier in the flight, was a factor that contributed to his loss of visibility.... Moreover, respondent testified that he knows what a temperature-dew point ratio of 47?-46? signifies and that it was his opinion, from the two current weather observations he obtained, that weather conditions were deteriorating.... As it turned out, at the time of the crash, it was dark, there was rain and drizzle, the bubble had fogged over, and respondent found himself in a sloping bank of clouds ..., not unforeseeable on the basis of the two recent weather observations he had obtained.

NTSB Opinion, slip op. at 6-8 (emphasis added).

The Board's...

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