Herring v. Administrator, Federal Aviation Administration
| Decision Date | 03 June 1976 |
| Docket Number | No. 75-3218,75-3218 |
| Parties | William M. HERRING, Petitioner, v. ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION, and National Transportation Safety Board, Respondents. Summary Calendar. * |
| Court | U.S. Court of Appeals — Fifth Circuit |
William M. Herring, pro se.
Peter R. Laylin, Fed. Aviation Adm., Thomas G. Wilson, Atty., Rex E. Lee, Asst. Atty. Gen., Appellate Sec., Civil Div., Dept. of Justice, Washington, D. C., for respondents.
Petition for Review of an Order of the Federal Aviation Administration (Florida Case).
Before AINSWORTH, CLARK and RONEY, Circuit Judges.
Petitioner William M. Herring seeks reversal of a National Transportation Safety Board order suspending his commercial pilot's certificate for violation of Federal Aviation Regulations (FARs). The alleged violations stem from power failure Herring's plane suffered while he was checking out another pilot on the aircraft. The two pilots were practicing touch-and-go landings at Opa Locka Airport near Miami when the failure occurred. They made a safe emergency landing on a closed runway of the airport, and, according to two witnesses, added two gallons of automotive fuel obtained from a nearby gas station to enable the plane to taxi back to its parking area. The FAA Administrator brought charges against Herring for violating three FARs, 1 and requested a 90-day suspension. After an oral hearing, an Administrative Law Judge sustained the Administrator as to the preflight action and careless operation charges, but found that Herring did not violate the FAR covering non-flight operations and imposed a 45-day suspension.
The Administrator's theory of the case was that the power failure occurred because Herring conducted an inadequate preflight check that either failed to disclose a low-fuel condition or that did disclose a moderately low condition Herring negligently ignored. Herring's theory was that a combination of mechanical malfunction and fuel-gauge tampering, the latter by one of the Administrator's witnesses, caused the failure. Both sides presented witnesses to support their respective theories.
Upon an examination of the record, we conclude that the ALJ's findings are supported by substantial evidence and are not based on any erroneous legal theory. Under the applicable statute, 49 U.S.C. § 1486(e) (1970), and well-established principles of administrative law, the petition must be denied and the order affirmed.
Petitioner's pro se brief urges that by failing to examine the plane itself or the records of its owner immediately after the incident, the Administrator failed to adduce the best evidence of the true cause of the engine failure. This nomenclature raises two possibilities: first, petitioner has misunderstood the nature and applicability of the best evidence rule, or second, there is somewhere in the law of evidence or the rules of the agency a requirement that such an examination be made. The first possibility does not benefit the petitioner. "Best evidence" has no meaning in the present context. It applies only to the requirement that the terms of a writing be shown by production of the original document, unless the document is shown to be unavailable for reasons other than the serious fault of the proponent. See C. McCormick, Evidence §§ 229-30 (Cleary ed. 1972). As for the second possibility, we have examined the record...
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City of Pompano Beach v. F.A.A., 84-5331
...be conclusive." 49 U.S.C.App. Sec. 1486(e) (1982). See Blackwell v. Bond, 619 F.2d 372, 373 (5th Cir.1980); 11 Herring v. Administrator, FAA, 532 F.2d 1003, 1004 (5th Cir.1976); Stern v. Butterfield, 529 F.2d 407, 409 (5th Cir.1976). In reviewing administrative fact findings to determine wh......
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Dodson v. National Transp. Safety Bd.
...that there is in fact such substantial evidence. 4 Loomis v. McLucas, 553 F.2d 634, 636 (10th Cir. 1977); Herring v. Administrator, F. A. A., 532 F.2d 1003 (5th Cir. 1976) (per curiam). That part of the expert testimony which is in agreement and is uncontested, in our view, constitutes subs......
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Sorenson v. National Transp. Safety Bd., 81-1620
...not necessary to prove a violation of the regulations. The eyewitness accounts were sufficient. See also, Herring v. Administrator, Federal Aviation Admin., 532 F.2d 1003 (5th Cir.). Mr. Sorenson claims that the alphabet recital test administered at the airport should have been excluded fro......
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Loomis v. McLucas, 76-1110
...Law Judge's order and affirming the denial order made by the Administrator is supported by substantial evidence. Herring v. Administrator, F.A.A., 532 F.2d 1003 (5th Cir. 1976) and French v. Civil Aeronautics Board, 378 F.2d 468 (10th Cir. 1967). As indicated, our study of the record convin......