French v. CAB
| Decision Date | 19 May 1967 |
| Docket Number | No. 8818.,8818. |
| Citation | 378 F.2d 468 |
| Parties | T. Glen FRENCH, Petitioner, v. CIVIL AERONAUTICS BOARD and William F. McKee, Administrator, Federal Aviation Agency, Respondents. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Francis M. Pickel, Jr., Oklahoma City, Okl., for petitioner.
Nathaniel P. Breed, Jr., Atty., Civil Aeronautics Board (Donald F. Turner, Asst. Atty. Gen., Howard E. Shapiro, Atty., Department of Justice, Joseph B. Goldman, Gen. Counsel, Civil Aeronautics Board, O. D. Ozment, Deputy Gen. Counsel; Warren L. Sharfman, Associate Gen. Counsel, Litigation and Legislation, and Frederic B. Houghteling, Atty., Civil Aeronautics Board, on the brief), for respondents.
Before LEWIS, HILL and SETH, Circuit Judges.
The Administrator of the Federal Aviation Agency (hereinafter the Administrator) ordered a six-month suspension of the petitioner's authorization to act as an aircraft inspector for his failure to conduct inspections of two civil aircraft in accordance with inspection procedures established by the Administrator. Thereafter, a full evidentiary hearing was held before a hearing examiner of the Civil Aeronautics Board (hereinafter the Board). The hearing examiner affirmed the Administrator's six-month suspension, and the petitioner then sought review by the Board. The Board affirmed the decision of the hearing examiner, and the petitioner now seeks judicial review of the Board's final order under 49 U.S.C.A. § 1486(a).
Inspection deficiencies asserted against one of the aircraft, a Piper J-3C, were that the petitioner failed to operate the engine or make a compression check of the cylinders; that no compass correction card was in the aircraft; that certain instruments in the cockpit were not properly marked, and that bolts in the oil tank were too short. Inspection deficiencies asserted against the other aircraft, a Douglas DC-3, were that the petitioner failed to conduct a compression check of the engine cylinders, and failed to operate the landing gear through a retraction cycle by placing the aircraft on jacks.
The Administrator asserted that the petitioner certified the airworthiness of these two aircraft despite the foregoing deficiencies in inspection procedures, and thus failed to conduct the inspections in conformance with the methods promulgated by the Administrator. Thus the six-month suspension of the petitioner's Inspection Authorization was ordered by virtue of the Administrator's authority contained in 49 U.S.C.A. § 1429.
From preliminary findings that each inspection deficiency described above was present when the petitioner certified the airworthiness of the two aircraft involved, the hearing examiner found that the petitioner had not performed the periodic inspections in accordance with prescribed procedures. Although the petitioner has not expressly challenged the sufficiency of the evidence upon which the examiner's findings are based as a point for review, his brief nevertheless contains references to the sufficiency of the evidence.
Under 49 U.S.C.A. § 1486(e), judicial review of the Board's findings of fact is limited to determining whether the findings are supported by substantial evidence. Except for the finding concerning the missing compass correction card, we are satisfied from the record that substantial evidence supports the examiner's findings for all remaining inspection deficiencies. It is unnecessary to comment on the evidence pertaining to the missing compass correction card because, in our view, the six-month suspension was an appropriate exercise of the Administrator's discretion for the remaining inspection deficiencies which were established by substantial evidence.
The evidence proving the inspection deficiencies is for the most part undisputed, and may be summarized from the record for each deficiency. The Piper aircraft was reinspected by an FAA inspector thirteen days after the petitioner certified airworthiness. The FAA inspector testified that he was unable to see marks on the cockpit instruments which indicate to the pilot safe limits of engine operation. The inspector viewed the instruments from within the cabin and standing outside and looking in. The petitioner testified that the instruments were marked, but with a translucent substance. In any event they were not marked to conform with the Administrator's requirement that the marks be "clearly and easily visible." The FAA inspector testified that at least half the oil tank retaining bolts were too short for the fiber locking nuts and thus failed to meet the Administrator's minimum standards. The petitioner agreed that the bolts and nuts were marginal, but contended that it was a matter of opinion.
The petitioner admitted that the engine of the Piper aircraft was not operated and that no check was made of the cylinder compression. The petitioner advanced two reasons for omitting these required procedures: that the engine was recently overhauled and the required inspection procedures were unnecessary; or that he had relied on a Mr. Archer, who was helping with the inspection, to perform the engine and cylinder inspections. The Administrator's prescribed procedures however make no exception for recently overhauled engines, and the FAA inspector testified that proper engine operation and cylinder compression can be determined only by performing those specific inspection procedures. Moreover, if the petitioner did rely on Mr. Archer to perform the inspections, the petitioner as an authorized inspector had a responsibility to discover if the procedures were in fact performed before he certified airworthiness. Although the Board has not challenged delegation of inspection procedures, the petitioner cannot delegate his authority to certify airworthiness. The neglect and oversights of his helpers provide no excuse for the petitioner.
For the Douglas aircraft, the petitioner admitted that the landing gear was not operated through a retraction cycle by placing the plane on jacks. His reason for omitting this required procedure was...
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