Greve v. CAB

• Decision Date: 06 June 1967
• Docket Number: No. 20678.,20678.
• Citation: 378 F.2d 651
• Parties: Richard GREVE, Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

378 F.2d 651 (1967)

Richard GREVE, Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent.

No. 20678.

United States Court of Appeals Ninth Circuit.

June 6, 1967.

Walter P. Christensen, San Diego, Cal., for appellant.

Donald F. Turner, Asst. Atty. Gen., Howard E. Shapiro, Atty., Civil Div., Dept. of Justice; Joseph B. Goldman, Gen. Counsel, O. D. Ozment, Deputy Gen. Counsel, Robert L. Toomey, Associate Gen. Counsel, Warren L. Sharfman, Associate Gen. Counsel, Frederic D. Houghteling, Paul D. Gerber, Attys., C. A. B.; Nathaniel H. Goodrich, Gen. Counsel, F. A. A., Washington, D. C., for appellees.

Before BARNES and JERTBERG, Circuit Judges, and HALBERT, District Judge.

JERTBERG, Circuit Judge:

Petitioner seeks review of a Civil Aeronautics Board order which affirmed an emergency order of the Administrator of the Federal Aviation Agency, revoking his second class airman medical certificate.¹ The revocation was based upon petitioner's medical disqualification under the Federal Aviation Regulations, §§ 67.15(f) (2) (i) and 67.17(f) (2) (i), in that petitioner had recurrent episodes of paroxysmal arrhythmia (auricular fibrillation), a disorder of the heart, which in the Administrator's judgment rendered him unable safely to exercise the privileges of his airman's certificate.

On August 20, 1964, petitioner was issued a second class medical certificate pursuant to § 67.15 of the Federal Aviation Regulations. This section lists standards which must be met by the airman to qualify for a second class medical certificate. The list includes standards of visual and aural acuity and sets forth certain medical conditions which are disqualifying. The regulation concludes with a section which covers general medical conditions, as follows:

"(f) General medical condition:

* * * * * *

"(2) No other organic, functional, or structural disease, defect, or limitation that the Civil Air Surgeon finds —

"(i) Makes the applicant unable to safely perform the duties or exercise the privileges of the airman certificate that he holds or for which he is applying;

* * * * * *

and the findings are based on the case history and appropriate, qualified, medical judgment relating to the condition involved."

On March 18, 1965, the Administrator issued an emergency order,² revoking that medical certificate on the grounds above stated.

Petitioner appealed this revocation to the Civil Aeronautics Board, and an evidentiary hearing was held before a Board Examiner. At the opening of the hearing petitioner was informed by counsel for the Federal Aviation Agency that one of the issues to be determined at the hearing was "whether or not you have paroxysmal arrhythmia", to which petitioner replied: "I have had recurrent episodes; I will have to stipulate to that because I reported that, I can do nothing but that. * * *."

The only witness offered by the Administrator was Dr. Edwin E. Westura, an expert cardiologist of the Office of Aviation Medicine of the Federal Aviation Agency.

In connection with this testimony there was offered by the Administrator and received into evidence two documents which were a part of the petitioner's medical record on file with the Federal Aviation Agency. One document is a written statement of the Head of Cardiology, San Diego Naval Hospital, Dr. W. F. Myers, setting forth the medical history of petitioner's heart condition. This written statement is dated December 30, 1964. The letter, in substance, states:

That the author of the letter had seen petitioner in consultation on several occasions over the preceding 23 months; visits had been of a routine nature with regard to periodic cardiovascular check ups because of the history of arrhythmia; that petitioner admitted to some recurrent transient episodes of paroxysmal atrial fibrillation during the period of time; that he had been free of any episodes which would incapacitate him from the performance of normal activities, such as driving an automobile, working, or engaging in either indoor or outdoor sports; that there had been no symptoms to suggest any significant reduction of blood flow to the central nervous system; that although paroxysmal atrial fibrillation was noted during a portion of the first electrocardiogram taken in the clinic, no arrhythmia had been detected on either physical examination or electrocardiographic study in the ensuing 23 months; that petitioner is not currently on a maintenance dosage of any medication; that trials of several medications, including Digitalis, and several forms of Quinidine, had been used in the past but without definite or consistent effect; that since none of these medications had resulted in abolition of the arrhythmia, and because the episodes had become significantly less frequent by history, they are not incapacitating; there has been no residual cardiac impairment, there is no evidence of any underlying organic heart disease, and because petitioner prefers not to take medication unless specifically indicated for definite therapeutic value, and because he had been able to quickly and adequately control the brief episodes of paroxysmal arrhythmia by physical relaxation and a modified Valsalva maneuver, maintenance dosage of medication was not considered indicated at the present time; that petitioner had been aware of the episodes of atrial fibrillation for many months only as they manifest themselves by palpitation.

The other document is an undated written statement by petitioner which, in substance, states:

That petitioner's annual physical examination in November of 1958 uncovered some auricular fibrillation; that he was hospitalized for a few days, then became an out-patient; that after many tests and observation, all of which ruled out heart disease, petitioner appeared before a Special Board of Flight Surgeons and was declared fit for actual control of aircraft in Service Group I. That it was after the appearance before the Board that petitioner had two attacks that made him feel uncomfortable and lightheaded for a duration of about one hour each; that petitioner voluntarily gave up flying and that he had another similar episode in September, 1960; that since then any little episodes can be fully controlled by Digitalis; that petitioner never had any fibrillation while flying; that the condition is improving, mostly because of a sedentary life and some dieting; that most episodes now are of a few seconds duration and are mostly "irregularity", like that called to the attention of the examining physician; that petitioner is certain that he can fly without danger to himself or others and that he is by nature cautious and responsible and understands his problem.

The record discloses that Dr. Westura is a specialist in internal medicine and cardiology and is a member of the faculty of the Georgetown University School of Medicine, and executive officer of the Department of Medicine and a member of the Division of Cardiology of the Georgetown University Hospital. He became employed by the Federal Aviation Agency in July of 1964 as Chief of the Cardiovascular Laboratory at the Georgetown Clinical Research Unit in Washington, D. C., and later assumed the duties of Medical Officer for the Office of Aviation Medicine at the Federal Aviation Agency Headquarters in Washington, D. C. His duties involve two main areas. One is certification of airmen and the second is research in cardiovascular disease as pertains to the problems of civilian...