Doe v. Department of Transportation, Fed. Aviation Admin.

• Decision Date: 16 July 1969
• Docket Number: No. 19183.,19183.
• Citation: 412 F.2d 674
• Parties: John DOE, Petitioner, v. DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION; William F. McKee, Administrator, Federal Aviation Administration, and National Transportation Safety Board (formerly Civil Aeronautics Board), Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

412 F.2d 674 (1969)

John DOE, Petitioner, v. DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION; William F. McKee, Administrator, Federal Aviation Administration, and National Transportation Safety Board (formerly Civil Aeronautics Board), Respondent.

No. 19183.

United States Court of Appeals Eighth Circuit.

July 16, 1969.

Joseph R. Schlozman, Kansas City, Mo., for petitioner and filed brief and reply brief.

Arthur R. Schor, Atty., National Transportation Safety Board, Washington, D. C., for respondent; Nathaniel H. Goodrich, Gen. Counsel and John E. Marsh, Atty., Federal Aviation Administration, and Edwin L. Weisl, Jr., Asst. Atty. Gen., and Morton Hollander, Chief, Appellate Section, Dept. of Justice, Washington, D. C., on the brief with Arthur R. Schor.

Before VAN OOSTERHOUT, Chief Judge, and BLACKMUN and LAY, Circuit Judges.

BLACKMUN, Circuit Judge.

The petitioner, born May 20, 1934, and for present purposes given the pseudonym of John Doe, petitions for review of an order of the National Transportation Safety Board (successor to the Civil Aeronautics Board). That order affirmed a trial examiner's decision and, specifically, the denial to the petitioner, by the Administrator of the Federal Aviation Administration, of an airman medical certificate.

The administrative remedies have been exhausted and the petition for review is appropriately here under § 1006 as amended, of the Federal Aviation Act of 1958, 49 U.S.C. § 1486.

The medical certificate desired by the petitioner is one of the third class (private pilot). Eligibility for this is prescribed by Part 67.17 of the Federal Aviation Regulations, 14 C.F.R. § 67.17. This reads in pertinent part as follows:

"Third-class medical certificate.

"(a) To be eligible for a third-class medical certificate, an applicant must meet the requirements of paragraphs (b) through (f) of this section.

* * * * * *

"(d) Nervous system:

"(1) No established medical history or clinical diagnosis of any of the following —

"(i) A character or behavior disorder that is severe enough to have repeatedly manifested itself by overt acts."

It is not now disputed that the petitioner has had homosexual episodes in the past. Neither is it disputed that he was convicted of the crime of sodomy in a Texas state court in June 1965 for an act performed July 29, 1964, with a male under the age of puberty.

The petitioner, however, urges upon us two propositions. The first is that, under the regulations quoted above, a character or behavior disorder, to be disqualifying, must be one existing at the time of the application or of the hearing, rather than at some time in the remote past, and that the evidence compels a finding that the applicant does not now suffer from such a disorder. The second is that, in any event, the findings as to the disqualifying disorder are not supported by substantial evidence.

The position of the Administration and the Board is that the regulation requires only an established medical history or clinical diagnosis of a character or behavior disorder severe enough to have repeatedly manifested itself by overt acts; that this applicant does have an established medical history and clinical diagnosis of that kind; that it is not necessary that the disorder be currently demonstrated, that is, at the time of the application or of the hearing; that, as a consequence, the applicant does not meet the standard prescribed by the regulation; and that he is disqualified from holding an airman medical certificate of any class.

The petitioner's testimony. The petitioner took the stand at the administrative hearing. He testified that since July 29, 1964, he has not had any type of homosexual activity; that at first he pleaded guilty "to this offense" (the Texas sodomy charge); that he did not force anyone to have homosexual relations with him; that at the present time he has no desire for such; that he had relations with women both before and after the conviction; that he sought help and was given advice after the conviction; that he started to fly on September 15, 1965; and that he has a fiancee. On cross examination he stated that in the Texas proceeding there was a change of his plea from guilty to not guilty, and an ensuing trial; that he had owned motorcycles; and that he was cited for speeding and an accident in 1956 and paid a fine.

The statute and the genesis of the regulation. The governing statute is the Federal Aviation Act of 1958, Pub.L. 85-726, 72 Stat. 731, as amended. Under it the Administrator of the Federal Aviation Administration "is empowered and it shall be his duty to promote safety of flight of civil aircraft in air commerce * * *." Section 601(a), 49 U.S.C. § 1421(a). Specifically, he is empowered to issue an airman certificate to any applicant who the Administrator finds, after investigation, "possesses proper qualifications for, and is physically able to perform the duties pertaining to, the position for which the airman certificate is sought". The certificate is issued upon such conditions "as the Administrator may determine to be necessary to assure safety in air commerce". Section 602(a) and (b), 49 U. S.C. § 1422(a) and (b). The Administrator is also empowered to issue such regulations as he shall deem necessary for the exercise and performance of his powers. Section 313(a), 49 U.S.C. § 1354(a).

Part 67 of the Federal Aviation Regulations was codified August 5, 1962. It had been preceded by Part 29 of the Civil Air Regulations. The portion, which is pertinent here, was promulgated by amendment effective October 15, 1959. 24 Fed.Reg. 7309. It resulted from a study, made through congressionally appropriated funds, and recommendations by the Flight Safety Foundation, Inc., a nonprofit organization. See the Preamble to Part 29 of the Civil Air Regulations, 24 Fed.Reg. 7309. The Foundation, after consultation with recognized psychiatrists familiar with the requirements of aviation, recommended that persons "with a history of an established diagnosis of psychosis, severe psychoneurosis, severe personality abnormality, epilepsy, chronic alcoholism or drug addiction" be disqualified for any class of medical certificate. The recommendation was "based on the medical fact that none of these * * * conditions can be so precisely studied in the individual as to provide assurance that they will not interfere with the safe piloting of aircraft." It went on to say, "In reality, the likelihood of occurrence of partially or totally incapacitating states directly attributable to these conditions is so great, and the ability to provide acceptable medical assurance of non-occurrence of such states in any given individual is so inadequate, that these conditions existing in airmen constitute a definite hazard to safety in flight."

The Foundation's report classified disqualifying psychiatric disorders into broad categories. Among them was "personality pattern disturbance." As to this, the preamble recites:

"Persons with personality pattern disturbances suffer from severe personality abnormalities in the clinical sense. Such disturbances are classified by the Foundation to include pathological personalities, immaturity reactions, chronic alcoholism and drug addiction. * * *

"Pathological personalities and persons with immaturity reactions suffer from defects in the development or structure of the personality and in the pattern of behavior. Medically, such defects are termed `character and behavior disorders\' and ordinarily are not subject to eradication by treatment. One type of these disorders is further characterized by persistent non-conformity with respect to the accepted ethical, moral or social codes of behavior, usually resulting in abnormal conflict with other persons, groups of persons or disciplinary and regulatory systems. Where there has been repeated evidence of such non-conformity, persons suffering from these disorders are not considered capable of functioning adequately under the controls necessary for the safe performance of airman duties.

"The amended standards therefore disqualify such persons when the existence of the character or behavior disorder has been determined by established medical history or clinical diagnosis and, in addition, it has repeatedly manifested itself in non-conformity to accepted ethical, moral or social codes of behavior."

We note:

1. The Act has an emphasis on safety and we have so recognized. Pike v. CAB, 303 F.2d 353, 355-356 (8 Cir. 1962). See Nadiak v. CAB, 305 F.2d 588, 590-591 n. 1 (5 Cir.1962), cert. denied, 372 U.S. 913, 83 S.Ct. 729, 9 L.Ed. 2d 722.

2. The applicant has the burden of proof of demonstrating error in the denial of the certificate he requests under § 602, 49 U.S.C. § 1422. Carrington v. CAB, 337 F.2d 913, 914 (4 Cir. 1964), cert. denied, 381 U.S. 927, 85 S. Ct. 1565, 14 L.Ed.2d 686.

3. Our standard on review is whether the findings of fact are supported by substantial evidence. If so, the Board's findings are conclusive upon us. Section 1006(e) of the Act, 49 U.S. C. § 1486(e). Nebraska Dep't of Aeronautics v. CAB, 298 F.2d 286, 293 (8 Cir.1962); Specht v. CAB, 254 F.2d 905, 913, 78 A.L.R.2d 1135 (8 Cir.1958); City of Pontiac v. CAB, 361 F.2d 810, 814 (6 Cir.1966); Sabinske v. CAB, 346 F.2d 142, 144 (5 Cir.1965); Nadiak v. CAB, supra, 305 F.2d at 592. And we have construed essentially identical language in the Social Security Act, 42 U. S.C. § 405(g), as requiring more than a mere scintilla of evidence, namely, such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, and that it be based on the record as a whole. Celebrezze v. Bolas, 316 F.2d 498, 501 (8 Cir.1963); Brasher v. Celebrezze, 340 F.2d 413, 414 (8 Cir. 1965); Easttam v. Secretary, 364 F.2d 509, 511 (8 Cir.1966).

4. The weight and credibility of testimony is for the Board. Specht v. CAB, supra, 254 F.2d at 913; Nadiak v. CAB, supra, 305 F.2d at 592.

5. The regulation in question...