Ferguson v. National Transp. Safety Bd., 81-7076
| Decision Date | 02 June 1982 |
| Docket Number | No. 81-7076,81-7076 |
| Citation | 678 F.2d 821 |
| Parties | Lowell G. FERGUSON, Petitioner, v. NATIONAL TRANSPORTATION SAFETY BOARD and Longhorne M. Bond, Administrator, Federal Aviation Administration, Respondents. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Roger D. Sandack, Sandack & Sandack, Salt Lake City, Utah, for petitioner.
James Sullivan, Los Angeles, Cal., for respondents.
Petition for Review from the Decision of the National Transportation Safety Board.
Before WRIGHT, ALARCON and REINHARDT, Circuit Judges.
Lowell G. Ferguson appeals the decision of the National Transportation Safety Board (NTSB) to suspend his Airline Transport Pilot Certificate for 60 days for violations of the Federal Aviation Regulations. Ferguson, the pilot-in-command of Western Airlines Flight 44, landed his aircraft without clearance at Buffalo, Wyoming, rather than at the scheduled stop at Sheridan, Wyoming. The NTSB adopted as its own the decision of the Administrative Law Judge (ALJ) affirming the order of suspension issued by the Administrator of the Federal Aviation Administration (FAA).
Ferguson now requests this court to vacate and set aside the order of the ALJ and the NTSB, or, in the alternative, to remand for further proceedings. Ferguson asserts an affirmative defense under the FAA/NASA Aviation Safety Reporting Program (ASRP Advisory Circular 00-46B), contending: (1) he was entitled to a waiver of punishment because his actions were "inadvertent and not deliberate;" (2) his conduct was not reckless within the meaning of Federal Aviation Regulation § 91.9 (14 C.F.R. § 91.9). Jurisdiction in the United States Court of Appeals for the Ninth Circuit is predicated upon 49 U.S.C. § 1486 (Federal Aviation Act of 1958), 49 U.S.C. § 1903 (Independent Safety Board Act of 1974), and 5 U.S.C. § 701 (Administrative Procedure Act).
In our view, this appeal presents two issues: first, whether the NTSB properly interpreted the phrase "inadvertent and not deliberate" in Advisory Circular 00-46B of the FAA Aviation Safety Reporting Program; and second, whether the NTSB was correct in affirming the ALJ's conclusion from the findings of fact that Ferguson's operation of Western Airlines Flight 44 was reckless within the meaning of Federal Aviation Regulation § 91.9.
We hold that the NTSB did not abuse its discretion in interpreting the Advisory Circular 00-46B. Neither the historical background nor the language of the circular indicates that reckless conduct can be considered "inadvertent and not deliberate" and thus, qualify for a waiver of punishment. We also conclude that the NTSB did not abuse its discretion in affirming the ALJ's conclusion that Ferguson's conduct was reckless. Although Ferguson did not knowingly land his aircraft at the wrong airport, he should have known that his conduct demonstrated a gross disregard for safety and created an actual danger to life and property. Accordingly, we affirm the decision of the NTSB.
Ferguson was pilot-in-command of Western Airlines Flight 44 from Los Angeles, California to seven locations, including Las Vegas, Nevada, Denver, Colorado, and Sheridan, Wyoming. Ferguson, with over 12,000 hours of flying experience, had never been found in violation of any Federal Aviation Regulations.
Flight 44 left Los Angeles on July 31, 1979. By the time the flight departed on the leg from Denver to Sheridan, it was 35 minutes behind schedule. The original flight plan would have taken the aircraft from the Denver Air Route Traffic Control Center to the Crazy Woman navigational facility for an instrument landing in Sheridan. Shortly before reaching Crazy Woman, however, control of flight 44 was transferred to Salt Lake Air Route Traffic Control Center (Salt Lake Center). Visibility was unrestricted, and Salt Lake Center offered flight 44 a direct clearance to Sheridan along airway victor 19, which passed directly over an airport in Buffalo, Wyoming. Flight 44 accepted the new plan in order to save time and fuel.
Ferguson handled radio communications as the flight approached Sheridan, and the first officer, James Bastiani, flew the aircraft. Neither Ferguson nor Bastiani had flown into Sheridan before, but each believed the other had. Ferguson reviewed the navigational chart, but failed to note that the Buffalo airport was directly under the aircraft's flight path.
At approximately 10:00 p. m. both Ferguson and Bastiani saw runway lights and commenced a visual approach to what they assumed was the Sheridan Airport. Ferguson did not use available radio navigation aids to make positive identification of the airport. During the approach, flight 44 maintained radio contact with the Sheridan Flight Service Station. Although the Air Traffic Controller in Sheridan informed flight 44 that another aircraft was on final approach, neither Ferguson nor Bastiani inquired further when they were unable to see the other aircraft. Although the airport at Sheridan was equipped with visual approach slope indicator (VASI) lights, Ferguson did not ask the Sheridan Flight Service Station why the runway before him was not so lighted. In spite of the fact that Ferguson was under an obligation to land the aircraft himself (Western Airlines Flight Operational Manual, P 5.1.2 B), First Officer Bastiani landed the Boeing 737. It was not until the aircraft's landing gear nose wheel sank in the turnoff pad beyond the runway that Ferguson realized that flight 44 had landed in Buffalo instead of Sheridan. The error was confirmed when the jeep that drove up to meet them bore "Piper" insignia rather than the expected Western Airlines logo.
On November 28, 1979 the Administrator of the FAA issued an order of suspension of Ferguson's Airline Transport Pilot certificate for 60 days. The order was subsequently filed as the Administrator's complaint, and charged Ferguson with violation of four sections of the Federal Aviation Regulations: (1) § 91.75(a) (14 C.F.R. § 91.75, deviating from an air traffic control clearance; (2) § 121.590(a) (14 C.F.R. § 121.590), landing at an airport not certificated under part 139 of the Federal Aviation Regulations; (3) § 121.555(b) (14 C.F.R. § 121.555), landing at an airport not listed in the Western Airlines Operations Specifications; and (4) § 91.9 (14 C.F.R. § 91.9), operating an aircraft in a careless or reckless manner so as to endanger the life or property of another.
An evidentiary hearing was held before an ALJ on June 4, 1980. The ALJ concluded that the evidence in the record supported a finding that Ferguson had violated the sections of the Federal Aviation Regulations as charged. The Administrator's 60-day suspension of Ferguson's Airline Transport Pilot Certificate was affirmed by the ALJ.
Ferguson filed a timely notice of appeal, and on December 9, 1980 the NTSB affirmed the 60-day suspension. On January 7, 1981, Ferguson filed a motion to stay the order with the NTSB. The motion was granted on January 8, 1981, and the order of submission was stayed pending the disposition of the case by this court.
Our review of the NTSB decision is limited by the standards set forth in the Administrative Procedure Act, 5 U.S.C. § 706(2). Unless the decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law," 5 U.S.C. § 706(2)(A), or "unsupported by substantial evidence," 5 U.S.C. § 706(2)(E), we must affirm. Furthermore, we must give deference to an administrative agency's interpretation of its own regulations. Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965); Sierra Pacific Power Co. v. EPA, 647 F.2d 60, 65 (9th Cir. 1981); see also, Bellwood General Hospital v. Schweiker, 673 F.2d 1043 at 1044 (1982) ()
It is important to note that in this case Ferguson's conduct is not in dispute. Rather, it is the agency's conclusions drawn from the conduct that are at issue. Ferguson failed to: (1) familiarize himself with the navigational chart depicting the Buffalo airport; (2) land the aircraft himself, as required by Western Airlines Flight Operational Manual (P 5.1.2 B); (3) use navigational aids such as the VOR/DME, 1 the Instrument Landing System (ILS, 2 and the Monarch low frequency beacon associated with the ILS 3 to identify the airport; and (4) note visual indications that he was landing at the wrong airport.
The NTSB, affirming the FAA's interpretation of the scope of Advisory Circular 00-46B, determined that Ferguson was not entitled to a waiver of punishment under the "inadvertent and not deliberate" provision of the circular. The NTSB also concluded from the findings of fact that Ferguson's conduct was reckless within the meaning of Federal Aviation Regulation § 91.9 (14 C.F.R. § 91.9). Because both issues in this case center on agency interpretations of regulations and conclusions drawn from findings of fact, this court will review the decision of the NTSB under the abuse of discretion standard, giving deference to the agency's interpretation of its own regulations. Udall, 380 U.S. at 16, 85 S.Ct. at 801; Sierra Pacific Power Co., 647 F.2d at 65.
We first consider Ferguson's claim that he is entitled to a waiver of punishment under the terms of Advisory Circular 00-46B, which was issued on June 15, 1979, and was in effect at the time flight 44 landed at the Buffalo Airport. Unlike the two preceding Advisory Circulars (issued in 1975 and 1976), 00-46B does not include an express exclusion of reckless conduct from the scope of immunity. It does, however, provide for a waiver of punishment if the violation was "inadvertent and not deliberate."
Ferguson contends that the...
To continue reading
Request your trial
-
Roach v. National Transp. Safety Bd.
...the breadth of the regulation, and its application here did not violate his due process rights. IV Citing Ferguson v. National Transportation Safety Board, 678 F.2d 821 (9th Cir.1982), Roach claims that to support a finding that he operated his aircraft "in a careless or reckless manner so ......
- Bail Bonds by Marvin Nelson, Inc. v. C.I.R.
-
Boeta v. Fed. Aviation Admin.
...he relied upon was valid.Unlike the majority, I believe this NTSB conclusion is consistent with Ferguson v. National Transportation Safety Board , 678 F.2d 821 (9th Cir. 1982), in which the United States Court of Appeals for the Ninth Circuit defined an “inadvertent act” as “one that is not......
-
Wardell v. Department of Transp., Nat. Transp. Safety Bd.
...otherwise not in accordance with the law," or "unsupported by substantial evidence." 5 U.S.C. Sec. 706(2)(A); see also Ferguson v. NTSB, 678 F.2d 821, 825 (9th Cir.1982). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." ......