Bennett v. National Transp. Safety Bd., No. 94-9543

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore SEYMOUR, Chief Judge and ANDERSON, Circuit Judge and SHADUR; SHADUR
Citation66 F.3d 1130
Decision Date26 September 1995
Docket NumberNo. 94-9543
PartiesJeffrey W. BENNETT, Petitioner, v. NATIONAL TRANSPORTATION SAFETY BOARD and Federal Aviation Administration, Respondents.

Page 1130

66 F.3d 1130
Jeffrey W. BENNETT, Petitioner,
v.
NATIONAL TRANSPORTATION SAFETY BOARD and Federal Aviation
Administration, Respondents.
No. 94-9543.
United States Court of Appeals,
Tenth Circuit.
Sept. 26, 1995.

Page 1132

J. Scott Hamilton, Louisville, CO, for petitioner.

James W. Tegtmeier, Attorney, Enforcement Division (Kathleen A. Yodice, Acting Manager, Appellate Branch, with him on the brief), Office of the Chief Counsel, Federal Aviation Administration, Washington, DC, for respondent Federal Aviation Administration.

Before SEYMOUR, Chief Judge and ANDERSON, Circuit Judge and SHADUR, Senior District Judge *.

SHADUR, Senior District Judge.

Jeffrey Bennett ("Bennett") appeals the suspension of his airline transport pilot certificate by the Federal Aviation Administration ("FAA"). 1 We exercise jurisdiction pursuant

Page 1133

to 49 U.S.C.App. Secs. 1486(a) and 1903(d) 2 and affirm.

Facts

For the most part we have drawn what follows from testimony credited by Administrative Law Judge ("ALJ") Patrick Geraghty in his September 10, 1992 Decision and Order following an evidentiary hearing ("Hearing"). On the few occasions where the full Board modified those findings, Board's version is adopted instead.

Bennett, a corporate pilot for Ames Construction, Inc. with 3,000 hours of flight time, holds an airline transport pilot certificate with type ratings in Boeing 737 and Cessna Citation 500 jets. On the evening of January 18, 1991 Bennett was the pilot in command of a Cessna Citation ("Citation") departing from Centennial Airport in Denver, Colorado under clear visibility conditions. Bennett's first officer Karim Berrada ("Berrada") was responsible for radio communications and navigation, though Bennett also wore a headset.

At about 6:30 p.m. the tower cleared the Citation to taxi to its runway, and a few minutes later air traffic controller ("Controller") John Barnewall ("Barnewall") issued Bennett clearance to take off and fly due south on the runway heading pending further instructions. While Berrada acknowledged that clearance over the radio, Bennett also heard the clearance and took off as authorized.

At the same time that Bennett was issued clearance for takeoff, a Cessna 172 (with Susan O'Malley ["Susan"] as pilot and her husband Theodore ["Theodore"] as passenger) had just completed a touch-and-go landing exercise on a parallel runway and was also climbing southbound. As the Citation climbed from its own runway, Controller Barnewall asked the Citation if it observed the smaller Cessna 172 ahead and to the right. Berrada acknowledged visual contact with the other airplane and pointed it out to Bennett.

Barnewall then instructed the Citation to wait until the Cessna 172 made a right turn before executing its own turn to head toward Denver:

Thank you after he turns crosswind south of him you can start a right turn and proceed direct to Denver VOR contact Denver departure have a nice flight.

Berrada acknowledged that direction immediately with the Citation's call sign, but Bennett did not hear the exchange due to radio trouble. 3 Berrada then simply told Bennett that the Citation had been cleared to execute the right turn. Bennett executed the turn without waiting for the Cessna 172 to change course, and the consequences of that turn are at issue here. 4

While everyone involved in the Hearing agreed that there was close visual contact between the Citation and the Cessna 172, they differed as to the physical proximity of the two aircraft. Barnewall testified that he could not estimate the horizontal separation of the two craft, but that in purely vertical terms the Citation flew approximately 150-200 feet above the Cessna 172 as the Citation made its turn. In written statements to the FAA Susan and Theodore (neither of whom testified at the Hearing) estimated 100-150 feet of vertical separation and no horizontal separation, noting that Theodore had felt compelled to take over control of the Cessna 172 from his wife and to initiate evasive maneuvers. Over a ten-second span at the

Page 1134

time of the incident, Theodore had made these comments by radio:

That was pretty close fella this is six two tango.

Six two tango I'm seeing that myself I'm gonna make a little note of that.

Yeah I'm gonna file a mid air on that one--near miss.

And several minutes later this further transmittal emanated from the Cessna 172:

[W]e're going to file a ah near miss on that one he came over us about (unintelligible) feet.

Finally, Bennett conceded that he flew about 300 feet above the Cessna 172, though he contended that he never lost sight of the Cessna 172 during the turn and that there was never a collision hazard.

Procedural History

Shortly after the incident Theodore (a Boeing 737 captain) and Susan filed a near midair collision preliminary report with FAA. On November 20, 1991 the Administrator suspended Bennett's Airline Transport Pilot Certificate for violations of Federal Aviation Regulations, finding that on January 18, 1991:

1. In violation of 14 C.F.R. Sec. 91.111(a) 5 Bennett had passed so close to the Cessna 172 that he had created a collision hazard.

2. In violation of Reg. Sec. 91.123(b) 6 Bennett had operated an aircraft contrary to an ATC (air traffic control) instruction in an area in which air traffic control is exercised.

Bennett's suspension was to last 45 days.

On November 22, 1991 Bennett appealed FAA's order of suspension, and Board ultimately scheduled an ALJ hearing for September 10, 1992. After the Hearing 7 ALJ Geraghty found that Bennett had not heard the tower instructions as to the right turn and that Bennett's reliance on the instruction of his first officer in executing the turn was reasonable. Nevertheless the ALJ determined (1) that Bennett had not complied with the tower's instruction as to the execution of the Citation's right turn and (2) that Bennett had created a collision hazard when he brought the Citation within 200 feet of the Cessna 172. As for the latter finding, Berrada's instruction to execute the turn was cited by way of mitigation only--Bennett's duty to "see and avoid" the other traffic remained. While thus affirming FAA's order of suspension, the ALJ shortened the suspension to 30 days.

Bennett next appealed to the full Board, claiming that the O'Malleys' statements should not have been considered in their absence from the Hearing and that his reliance on Berrada's instruction to execute the right turn should be exculpatory. On April 15, 1994 Board held (1) that Bennett's confrontational rights were not violated by admission of the O'Malleys' written statements and (2) that Bennett could not escape responsibility for the incident by claiming that Berrada told him to execute the turn. Bennett now challenges Board's final order affirming the suspension of his certificate.

Bennett makes three arguments on this appeal. First, he argues for the first time that Board erred in applying a 500-foot separation requirement between aircraft. Second, he objects to Board's asserted reliance on the O'Malleys' "unsworn" written statements 8 when the O'Malleys were not present for cross-examination at the Hearing. Finally, he contends that Board should have found

Page 1135

his reliance on Berrada's instruction exculpatory.

500-Foot Separation "Requirement"

Bennett claims for the first time on appeal that Board erred in purportedly applying a requirement of a 500-foot separation between aircraft. Essentially (though he does not frame the issues in just this way) Bennett urges alternatively:

1. Reg. Sec. 91.111(a) does not establish a "sufficiently specific objective standard prescribing or proscribing a pilot's behavior" (Bennett Br. 10) so that a pilot may properly be held accountable for its violation.

2. Board injected an overly specific and objective component into an otherwise subjective regulatory standard when it adopted a 500-foot standard separation requirement.

We reject each argument as both tardy and unpersuasive.

As an initial matter, we have concluded after reviewing the record that the United States is correct in stating (its Br. 12 n. 4) that Bennett had failed to argue the claimed misapplication of Reg. Sec. 91.111(a) to the full Board, even though he had raised that issue at the Hearing (R. 76-79). Section 1486(e) says that no objection to a Board order "shall be considered by the court [of appeals]" in the first instance "unless there were reasonable grounds for failure" to urge the objection before Board--a provision that we have not labeled as a jurisdictional bar (see, e.g., French v. C.A.B., 378 F.2d 468, 471 (10th Cir.1967), although we note that the Ninth Circuit has more recently done so (see, e.g., Howard v. F.A.A., 17 F.3d 1213, 1216 (9th Cir.1994)). Whatever the appropriate label, well-established principles of appellate review entitle us to reject those newly-tendered contentions without addressing their merits. But because Reg. Sec. 91.111(a) articulates a provision of broad applicability, we spend a few moments on the shortcomings of Bennett's arguments.

In what amounts to a deprivation-of-due-process claim, Bennett complains that Reg. Sec. 91.111(a) fails to put pilots on notice of the conduct that it proscribes when it refers only to operation of an aircraft "so close to another aircraft as to create a collision hazard." We have impliedly disavowed that notion when we held in Hill v. N.T.S.B., 886 F.2d 1275, 1280 (10th Cir.1989) (emphasis in original) that FAA has authority to suspend a pilot's certificate under a similarly nonspecific statutory prohibition (Section 1429(a) coupled with Section 1301(4)) whenever the pilot creates a hazard to safety:

The potential for pilot conduct to endanger safety in interstate, overseas, or foreign air commerce is all that is necessary to support the FAA's order of suspension.

We now make that rejection explicit.

Doe v. C.A.B., 356 F.2d 699, 701 (10th Cir.1966) teaches...

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14 practice notes
  • St. Anthony Hosp. v. U.S. Dept. of H.H.S., No. 00-9529.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 28 Agosto 2002
    ...setting, see 42 C.F.R. § 1005.17(b), the Due Process Clause of the Fifth Amendment certainly does, Bennett v. Nat'l Transp. Safety Bd., 66 F.3d 1130, 1137 (10th Cir.1995). Under the Due Process Clause, hearsay evidence is not per se inadmissible. Id. at 1137. Nonetheless, the rule of prejud......
  • U.S. v. Rith, No. 97-4138
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 19 Enero 1999
    ...constitutional claim, review of the trial court's admission of the ATF certificate is de novo. See Bennett v. National Transp. Safety Bd., 66 F.3d 1130, 1136 (10th Cir.1995). The trial court's finding of reliability is also reviewed de novo. See United States v. Joe, 8 F.3d 1488, 1492 (10th......
  • U.S. v. Ailsworth, No. 94-40017-01-SAC.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • 18 Noviembre 1996
    ...Kelly v. Municipal Courts of Marion County, Indiana, 97 F.3d 902 (7th Cir.1996); Bennett v. National Transportation Safety Board, 66 F.3d 1130, 1137 (10th To some extent the evidence contained in Evans' written statements was cumulative to the evidence contained on the audio and video tapes......
  • Newton v. F.A.A., No. 05-9548.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 8 Agosto 2006
    ...we have held that we review issues of law, such as matters of statutory interpretation, de novo. See Bennett v. Nat'l Transp. Safety Bd., 66 F.3d 1130, 1136 (10th Cir.1995); see also 5 U.S.C. § 706; Kratt v. Garvey, 342 F.3d 475, 480 (6th Cir.2003) (de novo review of issues of law on appeal......
  • Request a trial to view additional results
13 cases
  • St. Anthony Hosp. v. U.S. Dept. of H.H.S., No. 00-9529.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 28 Agosto 2002
    ...setting, see 42 C.F.R. § 1005.17(b), the Due Process Clause of the Fifth Amendment certainly does, Bennett v. Nat'l Transp. Safety Bd., 66 F.3d 1130, 1137 (10th Cir.1995). Under the Due Process Clause, hearsay evidence is not per se inadmissible. Id. at 1137. Nonetheless, the rule of prejud......
  • U.S. v. Rith, No. 97-4138
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 19 Enero 1999
    ...constitutional claim, review of the trial court's admission of the ATF certificate is de novo. See Bennett v. National Transp. Safety Bd., 66 F.3d 1130, 1136 (10th Cir.1995). The trial court's finding of reliability is also reviewed de novo. See United States v. Joe, 8 F.3d 1488, 1492 (10th......
  • U.S. v. Ailsworth, No. 94-40017-01-SAC.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • 18 Noviembre 1996
    ...Kelly v. Municipal Courts of Marion County, Indiana, 97 F.3d 902 (7th Cir.1996); Bennett v. National Transportation Safety Board, 66 F.3d 1130, 1137 (10th To some extent the evidence contained in Evans' written statements was cumulative to the evidence contained on the audio and video tapes......
  • Newton v. F.A.A., No. 05-9548.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 8 Agosto 2006
    ...we have held that we review issues of law, such as matters of statutory interpretation, de novo. See Bennett v. Nat'l Transp. Safety Bd., 66 F.3d 1130, 1136 (10th Cir.1995); see also 5 U.S.C. § 706; Kratt v. Garvey, 342 F.3d 475, 480 (6th Cir.2003) (de novo review of issues of law on appeal......
  • Request a trial to view additional results

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