Garvey v. Nat'l Transp. Safety Bd.
| Decision Date | 21 September 1999 |
| Docket Number | No. 98-1365,98-1365 |
| Citation | 190 F.3d 571 |
| Parties | (D.C. Cir. 1999) Jane F. Garvey, Administrator, Federal Aviation Administration, Petitioner v. National Transportation Safety Board and Richard Lee Merrell, Respondents |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
[Copyrighted Material Omitted]
On Petition for Review of Orders of the United States Department of Transportation
E. Roy Hawkens, Attorney, U.S. Department of Justice, argued the cause for petitioner. With him on the briefs were Frank W. Hunger, Assistant Attorney General at the time the briefs were filed, David W. Ogden, Acting Assistant Attorney General, Robert S. Greenspan, Attorney, and James W. Tegtmeier, Attorney, Federal Aviation Administration.
Clay Warner argued the cause for respondents. With him on the brief was James W. Johnson.
Before: Wald, Randolph and Garland, Circuit Judges.
The Federal Aviation Administration (FAA) issued an enforcement order to Captain Richard Merrell, a Northwest Airlines pilot whom the FAA determined had violated airline safety regulations. Merrell appealed to the National Transportation Safety Board (NTSB), which ruled in his favor and dismissed the FAA's order. The FAA petitions for review of that decision, arguing that the NTSB erroneously failed to defer to the FAA's reasonable interpretation of its own regulations. We grant the petition, reverse the NTSB, and remand for further proceedings consistent with this opinion.
The Federal Aviation Act, 49 U.S.C. §§ 40101 et seq., establishes a "split-enforcement" regime in which the FAA has regulatory and enforcement authority, while the NTSB acts as an impartial adjudicator. See Hinson v. NTSB, 57 F.3d 1144 1147 n.1 (D.C. Cir. 1995). We begin by setting forth the facts and procedural history of Captain Merrell's case, and then describe the nature of the split-enforcement regime in more detail.
The facts of the case are undisputed. On June 19, 1994, Merrell was the pilot-in-command of a commercial passenger plane, Northwest Flight 1024. After Flight 1024 took off in the heavily trafficked Los Angeles area, air traffic control (ATC) instructed it to climb to and maintain an altitude of 17,000 feet. Merrell correctly repeated, or "read back," this instruction to ATC. About a minute later, ATC transmitted an altitude clearance to another aircraft, American Airlines Flight 94, directing it to climb to and maintain an altitude of 23,000 feet. The American flight promptly and correctly acknowledged this clearance with its own "readback."
Merrell, however, mistakenly thought that the instruction to American was intended for his aircraft, so he also read the instruction back to ATC. Unfortunately, because Merrell made his read back at the same time as the American pilot, his transmission was blocked, or "stepped on." The ATC radio system can handle only one transmission at a time on any given frequency; when two transmissions overlap, both may become blocked or garbled, or the stronger signal alone may be heard (i.e., it may "step on" the weaker signal). ATC can often detect that a transmission has been stepped on because, unless the signals overlap completely, ATC will receive a portion of the stepped-on message, and because a loud buzzing noise usually accompanies the period of over lap. On rare occasions, however, two transmissions will overlap completely without creating an identifiable buzz. This appears to have happened in Merrell's case. His read back apparently coincided precisely with that of American Flight 94, and as a result his transmission was entirely blocked. ATC heard neither Merrell's read back nor any indication that it had occurred. And because ATC did not hear the erroneous read back, it could not correct Merrell's mistake.
Meanwhile Merrell, unaware that ATC had not received his transmission, proceeded to ascend toward 23,000 feet. As the Northwest flight rose from its assigned altitude, the ATC controller noticed the deviation and directed the aircraft to return to 17,000 feet. Before Merrell could comply, he had ascended to 18,200 feet and lost the standard safety separation required between commercial flights.
On November 3, 1995, the FAA issued an enforcement order against Merrell. The order alleged that Merrell had violated FAA safety regulations by, inter alia, (1) "operat[ing] an aircraft contrary to an ATC instruction in an area in which air traffic control is exercised," in violation of 14 C.F.R. § 91.123(b); and (2) "operat[ing] an aircraft according to a clearance or instruction that had been issued to the pilot of another aircraft for radar air traffic control purposes," in violation of 14 C.F.R. § 91.123(e). Joint Appendix (J.A.) at 7.1
Merrell appealed the FAA's order to the NTSB. At the outset of the proceedings, the FAA agreed that because Merrell had filed a timely incident report pursuant to the FAA Aviation Safety Reporting Program, it would waive any sanction for the alleged violations. See J.A. at 11. It sought affirmance of its enforcement order, however, arguing that Merrell had deviated from clearly transmitted ATC instructions, that this mistake was due to his own carelessness rather than to ATC error, and that the deviation therefore constituted a regulatory violation. The Administrative Law Judge (ALJ) agreed and affirmed the order. The ALJ found, based on both the recording and the transcript of the radio communications, that the ATC transmission to American Flight 94 had been clear and that the instruction to climb to 23,000 feet had plainly not been intended for Merrell's aircraft. Id. at 14-15. Indeed, after Merrell listened to the tape, he conceded that he had simply "misheard" the instruction. See id. at 18-19; NTSB Record (R.) at 145. The ALJ concluded that the fact that Merrell's read back was stepped on did not absolve "Captain Merrell of his responsibility to hear that [the] initial clearance" was for another flight. J.A. at 26. He explained that: Id. at 27.Accordingly, the ALJ held that Merrell "was in regulatory violation as alleged." Id.
Merrell appealed the ALJ's decision to the Board. He argued that under NTSB precedent, a pilot cannot be held responsible for an inadvertent deviation caused by ATC error. His had been such a deviation, he contended, because he had taken actions which, but for ATC, would have kept him from leaving his assigned altitude. He reasoned that because ATC controllers are required to correct erroneous read backs,2 his construction of ATC's silence as tacit confirmation had been reasonable and justified. In response, the FAA again argued that because the primary cause of the deviation had been Merrell's misperception of a clear instruction, his actions had violated the safety regulations. The FAA maintained that this outcome was consistent with Board precedent which, it contended, absolves pilots only when "ATC error is the initiating or primary cause of the deviation." R. at 321.
The NTSB accepted Merrell's arguments and dismissed the enforcement order. It found that Merrell had made only "an error of perception," and that there was "no evidence in the record ... that [he] ... was performing his duties in a careless or otherwise unprofessional manner." J.A. at 34. A "perception mistake," the Board said, does not always result from "a failure of attention," and therefore "careless inattention ... will not be automatically assumed in every case" in which a pilot mishears ATC instructions. Id. Moreover, there was no "failure of procedure" on Merrell's part, as he had "made a full read back so that the opportunity was there, absent the squelched transmission, for ATC to correct his error." Id. at 35.
The FAA then petitioned the Board for reconsideration of its decision. R. at 360-81. The agency argued that the Federal Aviation Act requires the Board to defer to the FAA's reasonable interpretation of its own safety regulations. In the FAA's view, 14 C.F.R. § 91.123 obligates pilots "to listen, hear, and comply with all ATC instructions except in an emergency." Id. at 366; see id. at 362. "Inattention, carelessness, or an unexplained misunderstanding," it said, "do not excuse a deviation from a clearly transmitted clearance or instruction." Id. at 367. "When there is an 'error of perception' resulting in a deviation, inattentiveness or carelessness are imputed in the absence of some reasonable explanation for the failure to comply with the ATC clearance." Id. According to the FAA, reasonable explanations include events such as "radio malfunction" or a controller error that precipitates a misunderstanding, but "[t]o excuse [Merrell's] deviation in these circumstances as an acceptable, though unexplained, 'error of perception' " would be inconsistent with the agency's construction of § 91.123. Id. at 36869; see id. at 369, 371. Moreover, the FAA argued that the Board's decision would have a "profound" negative effect on air safety: "Under the decision, airmen can claim, without further proof, that they did not hear or that they misperceived safety crucial instructions as a means to avoid responsibility for noncompliance or erroneous compliance with ATC clearances and instructions." Id. at 374.
The Board denied the petition for reconsideration. Although it acknowledged its "general obligation to defer to the FAA's validly adopted interpretation of its regulations," the Board considered itself under no such obligation in this case because "the FAA cites no rule it has adopted that stands for the proposition the FAA urges here." J.A. at 38. The Board further noted that the FAA offered "no evidence of any policy guidance written by the FAA,...
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