Air East, Inc. v. National Transportation Safety Board

• Decision Date: 22 May 1975
• Docket Number: Nos. 74-1542 and 74-1914,s. 74-1542 and 74-1914
• Citation: 512 F.2d 1227
• Parties: AIR EAST, INC., d/b/a Allegheny Commuter, et al., Petitioners, v. NATIONAL TRANSPORTATION SAFETY BOARD and Alexander P. Butterfield, Administrator of the Federal Aviation Administration, Respondents. to 74-1918.
• Court: U.S. Court of Appeals — Third Circuit

Page 1227

512 F.2d 1227

AIR EAST, INC., d/b/a Allegheny Commuter, et al., Petitioners, v. NATIONAL TRANSPORTATION SAFETY BOARD and Alexander P Butterfield, Administrator of the Federal Aviation Administration, Respondents.

Nos. 74-1542 and 74-1914 to 74-1918.

United States Court of Appeals, Third Circuit.

Argued Feb. 7, 1975.

Decided March 13, 1975.

As Amended May 22, 1975.

Walter E. Rutherford, Haight, Gardner, Poor & Havens, New York City, for petitioners.

Carla A. Hills, Asst. Atty. Gen., New York City, William Kanter, Anthony J. Steinmeyer, Morton Hollander, Appellate Section, Civ.Div., Dept. of Justice, Washington, D. C., for respondents.

Before ADAMS, ROSENN and WEIS, Circuit Judges.

OPINION OF THE COURT

WEIS, Circuit Judge.

In legislating on air travel safety, Congress has recognized that the duty of air carriers is to perform their services "with the highest possible degree of safety in the public interest," 49 U.S.C. § 1421(b). With that standard as a backdrop, we consider these appeals from the revocations of certification of an air taxi line, several of its pilots, and its chief mechanic. A review of the record establishes to our satisfaction that the action of the National Transportation Safety Board is supported by substantial evidence, and we affirm.

Air East is a commuter airline authorized to furnish passenger and mail delivery service to a number of communities in western and central Pennsylvania, including Pittsburgh, Johnstown, Altoona, Bradford, and DuBois. It was certified by the Federal Aviation Administration (F.A.A.) on August 29, 1969. Petitioners Charles Allan McKinney, James A. Tallent, and Jeffrey H. Wilkinson were senior pilots with Air East who held pilot's licenses issued by the F.A.A. ¹ Additional petitioners are Air East (Repair Station), a separate corporation which operated an aircraft repair facility in Johnstown pursuant to a certificate issued on August 21, 1970, and Thomas Reddecliff, an F.A.A. certified mechanic who supervised the repair station operations.

Air East operated without mishap until the evening of January 6, 1974, when a flight originating in Pittsburgh crashed on its approach to the runway in Johnstown, killing twelve of the occupants. Although there had been prior anonymous complaints to the federal authorities about some of Air East's practices, the crash precipitated a general investigation ² of the carrier's operation in addition to the inquiry specifically directed to the cause of the accident. ³ During the period from January 18, to March 4, 1974, the F.A.A. interviewed a number of witnesses, deposed twenty-five persons, including present and former Air East employees, and examined the company records of aircraft maintenance and pilots' operations. On March 7, 1974, the Administrator issued an "emergency" order revoking the air taxi certificate held by Air East d/b/a Allegheny Commuter, the repair station certificate, the pilot certificates of McKinney, Tallent, and Wilkinson, and the mechanic certificate of Reddecliff. ⁴

Petitioners immediately filed an appeal, and on March 21, 1974, a hearing commenced before an administrative law judge of the National Transportation Safety Board (N.T.S.B.). After twenty-five days of testimony and argument, on April 24, 1974 the administrative law judge issued his oral decision, sustaining the revocation. The Board affirmed in an opinion issued on May 10, 1974, ⁵ and petitioners appealed to this court. 49 U.S.C. § 1486.

Petitioners were charged with the improper operation of aircraft, including inter alia :

1. allowing overloaded plans to take off;

2. permitting planes to fly without certain instruments being in proper working order;

3. permitting planes to fly after improper repairs;

4. flying below minimum approach altitudes;

5. using approaches to the airports at Johnstown and Altoona which were not approved by the F.A.A.;

6. deviating from assigned altitudes without permission; and

7. operating without current weather reports.

Derelictions in record keeping were also alleged, including failing to prepare accurate weight manifests and computations of centers of gravity before take-off; falsifying records concerning flight checks given to pilots; falsifying records designating the supervisory mechanic responsible for repair of aircraft; and failing to enter mechanical deficiencies in the log. It was also charged that there were instances in which aircraft were put into service after improper repairs. ⁶

Petitioners contend that:

1. the emergency revocation of the licenses without a prior hearing was a denial of due process;

2. the hearing which was granted denied due process;

3. the charges were not supported by probative and substantial evidence; and

4. the sanctions were excessive. ⁷

I. THE EMERGENCY REVOCATION DID NOT VIOLATE DUE PROCESS

This investigation began on January 18, 1974, and during the following six weeks, F.A.A. officials interviewed present and former employees of Air East. Several potential witnesses were reluctant to have their roles made public, and they preferred that the investigators meet them privately at the witnesses' homes during nonbusiness hours. Some of the witnesses had experienced personal differences with the Air East management; some were hesitant to involve friends in the inquiry; several were themselves guilty of violations which might expose them to possible sanctions; and others, still employed by Air East, did not wish to incur the animosity of management. The preliminary investigation, therefore, was not open but was somewhat covert.

However, the F.A.A. did issue subpoenas to Air East for the production of records, and on February 19, 1974, an investigator deposed Reddecliff in the presence of his attorney. While the petitioners did not know all that was transpiring, certainly they were aware that a much broader investigation was underway than that focusing solely on the accident of January 6, 1974.

Petitioners assert that the Administrator's decision to revoke the certificates on an emergency basis denied them the opportunity for a hearing before being deprived of their livelihood. Unquestionably, as a result of the loss of certification, Air East was put out of business, and the pilots could not pursue their customary occupations without their licenses.

But under 49 U.S.C. § 1429(a), emergency revocation has an effect limited in time to a period of sixty days. While no hearing is required before revocation, the statute provides that an appeal by the licensee must be decided within sixty days. If the hearing establishes that the Administrator's action was not justified, the licenses can be restored immediately. Thus, while the action is termed an "emergency revocation," it is for all intents and purposes a suspension for sixty days or less. We point this out, not to invoke a de minimis concept, but to demonstrate that the statutory procedure does afford a prompt adjudication after revocation. ⁸ We do recognize that the suspension of a business for sixty days or a forced unemployment for that period is a grave matter which should not be treated lightly.

Due process is flexible and must be analyzed in the context of its application. What is reasonable in one situation where there is time to pursue a leisurely and reflective study of the circumstances may be impractical and dangerous to life itself in another situation. Here, the stakes were high indeed-a threat to the lives of passengers who entrusted themselves to an air carrier which they had every right to assume was in compliance with the strict regulations of a specialized government agency. Even though the loss of the privilege of operating aircraft, albeit temporary, is critical to those who are certified, that hardship is outweighed by the disaster that could befall the passengers.

When the balancing of the public interest in safety against a licensee's right to a hearing before revocation involves factors such as we have here, no extensive discussion of authority is necessary. We need only remark that in this instance we are not concerned with such relatively less critical problems as the desirability of the collection of a judgment by an individual against the holder of a driver's license, ⁹ or the possible difficulty of recoupment when a welfare payment is erroneously made. ¹⁰ Indeed, here the consequences of inaction may be even worse than where the seizure of misbranded food products before hearing has been sustained, ¹¹ or where the justification for summary action was prevention of a bank failure. ¹² And surely, if the summary seizure of property to collect taxes meets constitutional standards, ¹³ there can be no doubt of the result where the threat to life is real. See also Aircrane, Inc. v. Butterfield, 369 F.Supp. 598 (E.D.Pa.1974).

We do not mean to imply that an agency like the F.A.A. is to be given carte blanche to exercise its power arbitrarily and capriciously. If these were only minor violations of a bookkeeping or technical nature or more serious charges of dubious authenticity, obviously different considerations would apply. But here, the accusations went to grave wrongdoing which jeopardized public safety and were supported by statements of apparently knowledgeable individuals.

Petitioners complain that, since the Administrator took six weeks to collect evidence and review it before ex parte revocation, the lack of urgency was patent. But that argument cuts another way as well. It demonstrates that the revocations were not hasty or ill-considered and took place only after serious efforts had been made to establish the validity of the charges. Once the Administrator concluded that irreparable harm could result at any time, withdrawals of operating privileges were justified, if not demanded, by the public interest. The reality of the safety hazard was sufficiently established by the preliminary investigation to justify the emergency procedures utilized here.

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