Erickson v. National Transp. Safety Bd.

Decision Date26 March 1985
Docket NumberNo. 84-2083,84-2083
Citation758 F.2d 285
PartiesDavid John ERICKSON, Petitioner, v. NATIONAL TRANSPORTATION SAFETY BOARD, and Donald D. Engen, Administrator, Federal Aviation Administration, Respondents.
CourtU.S. Court of Appeals — Eighth Circuit

John P. Lommen, Minneapolis, Minn., for petitioner.

Vicki S. Leemon, Washington, D.C., for respondents.

Before ARNOLD, Circuit Judge, HENLEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

David John Erickson appeals a National Transportation Safety Board order affirming the revocation of his commercial pilot certificate by the Federal Aviation Administration. Erickson, in seeking an upgraded certificate, had submitted his pilot's logbook to the FAA. The FAA found that Erickson had made fraudulent and intentionally false entries in the logbook and revoked his certificate. Erickson successively appealed to the National Transportation Safety Board, resulting in a hearing before an administrative law judge, and then to the full NTSB, both appeals resulting in affirmance of the revocation. Erickson now argues that there was insufficient evidence to support the Board's finding that the logbook entries were intentionally false. We affirm the order of the NTSB affirming the order of revocation.

David John Erickson is a pilot who sought in 1982 to upgrade the commercial pilot certificate he held by adding an instrument rating. He passed a proficiency check and presented a logbook to show that he had the necessary 1200 hours of flight time. Douglas Solseth, an aviation safety inspector to whom the logbook was presented, after noticing an apparent error, examined the logbook in greater detail and cross-checked it with the crew and duty time sheets maintained by the owners of the aircraft in which Erickson had logged his flying time. 1 Solseth eventually determined that Erickson had falsified 292.7 of the 1245 hours he had logged. This determination led the FAA to revoke Erickson's commercial pilot certificate and to order that he could not apply for another certificate for one year following surrender of his certificate.

Erickson appealed the revocation, and a formal hearing was held before an administrative law judge of the NTSB. At that hearing Solseth's report that was the basis for the revocation was introduced into evidence. Solseth himself testified, essentially describing the discrepancies he found. The FAA had charged Erickson with false entries relating to five aircraft. The ALJ found, however, that the charges relating to two of these could not be sustained.

Of the remaining three groups of entries, the first involved a Cessna aircraft owned by Air Freight Express. Sara Wastvedt, one of Air Freight Express's pilots, testified for Erickson that he had accompanied her on several flights and actually had flown the plane while with her. Wastvedt also testified that on certain occasions Erickson was not paid by the company for the flights but flew only to log the flight time necessary to upgrade his certificate. The ALJ gave this testimony great credence, noted that on one occasion Erickson had logged time when the aircraft did not fly at all, and found 63.6 hours in the Cessna were falsely logged.

The second group of entries involved a Beechcraft King Air plane owned by North American Life and Casualty. A North American pilot, Ron Houle, with whom Erickson flew on occasion, had told Solseth while he was conducting his investigation that Erickson manipulated the controls of the Beech aircraft only on "deadhead" flights (i.e., flights on which neither freight nor passengers were carried). At the hearing Houle testified, with considerably less clarity, that Erickson was allowed to fly the craft with passengers on board "after he got some experience" on deadhead flights. Erickson, in contrast, testified that he had operated the aircraft on both deadhead and passenger-carrying flights starting with the first flight. The ALJ credited Erickson with a portion of the time logged on this aircraft but concluded that he had falsely logged 45.9 hours. The ALJ also found that Erickson had falsely logged 1.5 hours in a Mitsubishi aircraft.

Erickson appealed to the full NTSB. The Board adopted the ALJ's findings as to the Cessna aircraft, observing that even if Erickson were given credit for all "off duty" hours logged, he still "offered no reasonable explanation for logbook time which exceeded * * * the time reflected in Air Freight records for the same flights." David John Erickson, Order EA-2033 at 4, (July 25, 1984). The Board, noting that the ALJ had incorrectly calculated the number of falsely logged hours for the Beech aircraft, determined that "by our calculation based on corporate records and in light of Mr. Houle's testimony, it would appear that respondent's logbook contains perhaps as many as 50 falsely claimed hours of pilot time." Erickson, at 7. The Board did not address the finding of 1.5 hours falsely logged in the Mitsubishi plane.

Finally, the Board stated that it was

satisfied that the evidence supports the law judge's finding that certain logbook entries were intentionally false. * * * The Air Freight records which are required * * * raise an inference that the pilot time in respondent's logbook that is not supported by these records was false, and the law judge did not accept respondent's testimony that he flew all of the hours recorded in this logbook. In light of respondent's failure to convincingly explain away or reconcile all of the discrepancies between his logbook and the official corporate records and, in the case of * * * [the Beech aircraft], the conflict between his testimony and Mr. Houle as to whether respondent was the sole manipulator of the controls at all times on their flights together, we find no reason for disturbing the law judge's credibility assessment.

Erickson, at 8. Therefore, it affirmed the revocation of Erickson's certificate. Under 49 U.S.C. Sec. 1486(a) (1982), Erickson now appeals the order of the NTSB so affirming revocation.

Our role in review of cases decided by the National Transportation Safety Board is limited. "The findings of facts by the Board * * *, if supported by substantial evidence, shall be conclusive." 49 U.S.C. Sec. 1486(e). As we recently observed in Owens v. National Transportation Safety Board, 734 F.2d 396, 398 (8th Cir.1984):

[T]he Board's findings are not to be disturbed if supported by substantial evidence on the record as a whole. Stix v Bond, 569 F.2d 1029, 1031 (8th Cir.1978), Doe v. Department of Transportation, 412 F.2d 674, 677 (8th Cir.1969). We must determine whether the Agency 'could fairly and reasonably find the facts as it di .' Western Airlines, Inc. v. CAB, 495 F.2d 145, 152 (D.C.Cir.1974), quoting Braniff Airways, Inc. v. CAB, 379 F.2d 453, 462 (D.C.Cir.1967).

In the present case Erickson was found to have violated 14 C.F.R. Sec. 61.59(a)(2) (1983), which provides that "[N]o person may make or cause to be made * * * [a]ny fraudulent or intentionally false entry in any logbook, record, or report that is required to be kept, made, or used, to show compliance with any requirement for the issuance, or exercise of the privileges, or any certificate or rating under this part." He argues on appeal that the evidence was insufficient to support this finding. As the Ninth Circuit pointed out in Hart v. McLucas, 535 F.2d 516, 519 (9th Cir.1976), the regulation proscribes "two overlapping, but nevertheless separate offenses, one involving fraud, the other involving 'intentional' falsity"--offenses to which three elements are common: falsity, materiality and knowledge. Erickson does not argue that the disputed entries were immaterial. Thus, the particular question we are faced with is whether the evidence in the case was sufficient to justify the finding that Erickson knowingly made false entries in his logbook.

As Erickson points out, the burden of proving that he so acted lay upon the Federal Aviation Administration. 49 C.F.R. Sec. 821.32 (1984). However, while the FAA bears this ultimate burden of persuasion, the burden of producing evidence may shift once a prima facie case has been established. See Newman v. Shaffer, 494 F.2d 1219, 1220 (2d Cir.1974) (absence of logbook entries made out prima facie case of failure to inspect and shifted burden of going forward with the evidence); Walters v. McLucas, 597 F.2d 1230, 1232 (9th Cir.), cert. denied, 444 U.S. 932, 100 S.Ct. 277, 62 L.Ed.2d 190 (1979). In addition, the Board's inference from circumstantial evidence that Erickson knowingly made false entries was not an impermissible step if supported by substantial evidence. See Western Airlines, Inc. v. Civil Aeronautics Board, 495 F.2d 145, 152 (D.C.Cir.1974) (reviewing court must accept agency's conclusions if findings supporting them are in turn supported by substantial evidence); see also Scripps-Howard Radio v. Federal Communications Commission, 189 F.2d 677, 681 (D.C.Cir.) (in agency's decision, ultimate facts as found must appear as rational inferences from findings of basic facts), (quoting Johnston Broadcasting Co. v. Federal Communications Commission, 175 F.2d 351, 357 (D.C.Cir.1949)), cert. denied, 342 U.S. 830, 72 S.Ct. 55, 96 L.Ed. 628 (1951). Further, since 14 C.F.R. Sec. 61.59(a)(2) has been interpreted in light of traditional common law definitions of fraud and misrepresentation, see Hart, 535 F.2d at 519, we also observe that it has long been held that the element of knowledge in such cases may be inferred from circumstantial...

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