963 F.2d 441 (D.C. Cir. 1992), 91-1184, Throckmorton v. National Transp. Safety Bd.

Docket Nº:91-1184.
Citation:963 F.2d 441
Party Name:Charles Andrew THROCKMORTON, Petitioner, v. NATIONAL TRANSPORTATION SAFETY BOARD, James Busey, Administrator Federal Aviation Administration, Respondents.
Case Date:May 05, 1992
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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963 F.2d 441 (D.C. Cir. 1992)

Charles Andrew THROCKMORTON, Petitioner,



Administrator Federal Aviation Administration, Respondents.

No. 91-1184.

United States Court of Appeals, District of Columbia Circuit.

May 5, 1992

       Argued Feb. 3, 1992.

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        On Petition for Review of an Order of the National Transportation Safety Board.

       Peter Axelrod, Tucson, Ariz., for petitioner.

       Joseph A. Conte, Washington, D.C., for respondents.

       Before EDWARDS, SILBERMAN and HENDERSON, Circuit Judges.

       Opinion for the court filed by Circuit Judge HENDERSON.

       KAREN LeCRAFT HENDERSON, Circuit Judge:

       Charles Andrew Throckmorton petitions for review of an order of the National Transportation Safety Board (NTSB) suspending Throckmorton's airline transport pilot certificate for ninety days. For the reasons set forth below, we deny the petition.

       The essential facts underlying Throckmorton's suspension are undisputed. On December 18, 1986, Throckmorton, an experienced licensed helicopter pilot, requested permission to make a "low pass" in his helicopter over the Colorado Springs, Colorado airport. Air Traffic Control (ATC) cleared him to pass over Runway 17, but instead he passed along a grassy strip between Taxiway Alpha and a civilian ramp, traveling at an altitude of 10-20 feet and a speed of approximately 150 m.p.h.

       On October 9, 1987, the Federal Aviation Administration (FAA) issued an order suspending Throckmorton's Airline Transport Pilot Certificate for ninety days, effective October 28, 1987, based on the foregoing facts and on the additional allegation that in making the pass Throckmorton "flew

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within close proximity to a Continental Airlines DC-9, an American Airlines B-727, and a Cessna 182 that were operating on the taxiway and ramp." The order charged Throckmorton with violating four Federal Aviation Regulations then in effect: 91.75(a) (requiring compliance with an ATC clearance), 1 91.65(a) (prohibiting operation of an aircraft "so close to another aircraft as to create a collision hazard"), 2 91.79(d) (establishing minimum altitudes for aircraft but exempting helicopter operation "if the operation is conducted without hazard to persons or property on the surface") 3 and 91.9 4 (prohibiting operation of aircraft "in a careless or reckless manner so as to endanger the life or property of another").

       Throckmorton appealed the suspension to the NTSB and a hearing was held before an administrative law judge (ALJ) on September 7, 1988. At the hearing Throckmorton admitted his flight path deviated from the clearance but alleged it was the "custom and practice" for a helicopter cleared to pass over a runway to fly instead over the grass parallel to the runway in order "to avoid the flow of fixed-wing traffic." Joint Appendix (JA) No. 6 at 13. He also denied passing dangerously close to other aircraft. At the close of the hearing, the ALJ issued an order affirming the FAA's decision regarding the violations but reducing the suspension from ninety to sixty days.

       Throckmorton appealed the ALJ's decision to the full NTSB and the FAA cross-appealed the sanction reduction. By opinion and order adopted October 23, 1990, the full NTSB affirmed the ALJ's decision except that it reinstated the FAA's original ninety-day suspension. Throckmorton now challenges the NTSB's order on the following grounds: (1) the findings of violations are not supported by substantial evidence; (2) the ALJ's conduct at the hearing deprived Throckmorton of due process, (3) the regulations at issue are unconstitutionally vague and (4) the NTSB acted improperly when it reinstated the original ninety-day suspension, setting aside the ALJ's thirty-

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day reduction. We find none of these grounds meritorious.

       First, Throckmorton asserts the ALJ's decision, upheld by the NTSB, that Throckmorton violated the four regulations is not supported by substantial evidence. In reviewing the NTSB's decision we are bound by section 10(e)(2)(A) of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), which requires that we set aside agency findings unsupported by substantial evidence. Chritton v. NTSB, 888 F.2d 854, 856 (D.C.Cir.1989) (citing 49 U.S.C.App. § 1903(d) and 5 U.S.C. § 706(2)(E)). "The substantial evidence test is a narrow standard of review" requiring only " 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Id. (quoting Refrigerated Transp. Co. v. ICC., 616 F.2d 748, 751 (5th Cir.1980)). Under this standard, our function is to determine only "whether 'the agency ... could fairly and reasonably find the facts as it did.' " Id. (quoting Western Air Lines, Inc. v. CAB, 495 F.2d 145, 152 (D.C.Cir.1974)). An agency conclusion " 'may be supported by substantial evidence even though a plausible alternative interpretation of the evidence would support a contrary view.' " Id. (quoting Western Air Lines, Inc., 495 F.2d at 152). We find the NTSB decision here supported by substantial evidence.

       Throckmorton has never disputed that his flight path deviated from the literal terms of his ATC clearance, but has consistently maintained that the deviation was pursuant to "custom and practice" and that it did not bring him within dangerous proximity of the other aircraft. At the hearing witnesses furnished conflicting testimony regarding each of Throckmorton's defenses. Throckmorton and two other witnesses denied that the helicopter approached dangerously close to the other aircraft, while three of the FAA's witnesses testified that it did. The ALJ reasonably resolved this conflict against Throckmorton, concluding that the FAA's witnesses were in better positions to observe the incident and that Throckmorton and the other two witnesses were not disinterested parties. The ALJ also rejected Throckmorton's testimony that the established custom or practice at the...

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