Hinson v. National Transp. Safety Bd., 94-1428

• Decision Date: 30 June 1995
• Docket Number: No. 94-1428,94-1428
• Citation: 57 F.3d 1144
• Parties: David R. HINSON, Administrator, Federal Aviation Administration, and Federal Aviation Administration, Petitioners, v. NATIONAL TRANSPORTATION SAFETY BOARD, and Richard A. Rolund, Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1144

57 F.3d 1144

313 U.S.App.D.C. 59

David R. HINSON, Administrator, Federal Aviation Administration, and Federal Aviation Administration, Petitioners, v. NATIONAL TRANSPORTATION SAFETY BOARD, and Richard A. Rolund Respondents.

No. 94-1428.

United States Court of Appeals District of Columbia Circuit.

Argued April 13, 1995.

Decided June 30, 1995.

On Petition for Review of an Order of the National Transportation Safety Board.

Susan S. Caron, Atty., Federal Aviation Admin. argued the cause for petitioners. With her on the briefs were Kathleen A. Yodice, Acting Manager, Appellate Branch, and Timothy P. Melcher, Atty., Federal Aviation Admin. Robert P. Vente, Counsel, Federal Aviation Admin., and E. Roy Hawkens, Atty., U.S. Dept. of Justice, entered appearances.

John J. Veth, Speiser, Krause, Madole & Cook, argued the cause for respondent Rolund. With him on the brief were Gerard R. Lear, Rina M. Goodman, Speiser, Krause, Madole & Lear, and John P. Burns, Laguna Niguel, CA.

Daniel D. Campbell, General Counsel, National Transp. Safety Bd., was on the brief for respondent National Transp. Safety Bd.

Before: EDWARDS, Chief Judge, WALD and HENDERSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

The Administrator of the Federal Aviation Administration ("FAA") petitions for review of an order by the National Transportation Safety Board ("NTSB" or "Board"), Administrator v. Rolund, NTSB Order No. EA-3991 (Oct. 14, 1993), reconsideration denied, NTSB Order No. EA-4123 (Apr. 8, 1994), reversing a 90-day suspension of Richard A. Rolund's airline transport pilot certificate. Because the FAA failed to raise the principal objections it argues to us before the NTSB, we are barred by 49 U.S.C. Sec. 1153(b)(4) from considering them on a petition for review. Accordingly, since the Board's findings are supported by substantial evidence in the record, the petition for review is denied.

I. BACKGROUND

A. Factual Background

On March 16, 1990, pilot Richard Rolund arrived at the Visalia, California airport at approximately 5:40 a.m. to prepare for his scheduled Wings West Airlines Flight # 5184 to Fresno. At approximately 5:45 a.m., Rolund obtained from the American Airlines Saber computer system a weather report for his flight route. The report did not include specific information on current weather conditions at Visalia, although it did include a weather forecast for the area. Rolund did not seek or obtain the official report on current weather conditions at Visalia, but instead relied on the Saber report and his own visual observations.

At 5:52 a.m., a certified weather observer at the Visalia airport reported ground visibility at 1 1/2 miles with drifting fog. At 6:18 a.m., a flight departed Visalia under instrument flight rule ("IFR") clearance, required whenever visibility is less than three miles. At 6:20 a.m., Rolund departed Visalia under visual flight rules ("VFR"), a procedure permitted by FAA regulations only when ground visibility is three miles or more. At 6:48 a.m., the certified weather observer at Visalia reported ground visibility at three miles with some fog and haze. Rolund later testified that at the time of the takeoff, based on his own observations, he believed ground visibility exceeded three miles.

As Rolund approached Fresno, he made contact with air traffic control, which (as verified by the transcript of the radio transmission) instructed him to remain at or above 2,500 feet as he entered Fresno airspace, and gave additional instructions concerning his approach to the runway. Rolund acknowledged and "read back" part of the instructions, but did not read back the altitude instruction. He descended to 2,100 feet. He testified later that he had not heard that portion of the air traffic control transmission instructing him to remain at or above 2,500 feet.

B. Procedural Background

On April 16, 1991, the Administrator of the FAA suspended Rolund's airline transport pilot certificate for 90 days, finding that Rolund had committed two safety violations during Wings West Flight # 5184 from Visalia to Fresno. First, the Administrator found that Rolund had departed Visalia using VFR when visibility was less than three miles, the minimum required for VFR operations in a "controlled area" under 14 C.F.R. Sec. 91.105(d)(1). Second, the Administrator found that, despite an air traffic control instruction to remain at or above 2,500 feet when entering Fresno airspace, Rolund had descended to 2,100 feet and in so doing violated 14 C.F.R. Sec. 91.75(b) which provides that "[e]xcept in an emergency, no person may, in an area in which air traffic control is exercised, operate an aircraft contrary to an [air traffic control] instruction." 14 C.F.R. Sec. 91.75(b) (1990). On October 16, 1991, after an administrative hearing, an NTSB administrative law judge ("ALJ") affirmed the Administrator's suspension order.

Rolund appealed to the Board, which reversed the ALJ and dismissed the complaint. With regard to the VFR takeoff, the Board said that although the official 5:52 a.m. weather report for Visalia provided some evidence of weather conditions at 6:20 a.m., it was not conclusive, and given conflicting testimony concerning actual weather conditions, the FAA had not carried its burden of showing by a preponderance of the evidence that visibility was less than three miles at the time of Rolund's departure. The Board noted that the weather was improving rapidly during this period, and even the official observer acknowledged that conditions had changed "sometime in between" his 5:52 a.m. report and his next observation at 6:48 a.m., when visibility was three miles.

The Board also accepted Rolund's explanation that he had not heard that part of the air traffic control instruction directing him to remain at or above 2,500 feet. The Board said it would not hold Rolund to a "strict liability" standard for failure to read back and comply with an instruction he had not heard, and that under the circumstances it would find no violation of Sec. 91.75(b). The Board suggested that, since Rolund had not "read back" that part of the instruction concerning altitude, the "best course would have been for Fresno [air traffic control] ... to have clarified the matter" by repeating the instruction.

The FAA petitioned for reconsideration on grounds that the Board's decision was not supported by the weight of evidence, was contrary to the Board's own precedents on both counts, and was inconsistent with sound aviation safety policy. The Board denied reconsideration. The FAA now petitions for review, ¹ contending the Board failed to defer to the FAA's reasonable interpretations of its own regulations, as required by law.

II. ANALYSIS

A. Visibility at Takeoff

1. Deference to FAA's Interpretations

Under 14 C.F.R. Sec. 91.105(d)(1), a pilot may not take off from a "controlled area" under VFR unless "ground visibility" is at least three miles. Another regulation, 14 C.F.R. Sec. 1.1, defines "ground visibility" as "prevailing horizontal visibility near the earth's surface as reported by the United States National Weather Service or an accredited observer." A third provision states that if ground visibility is unreported, a pilot may rely on her own observations of flight visibility. 14 C.F.R. Sec. 91.105(d)(2).

Reading these provisions together, the FAA says the term "ground visibility" as used in Sec. 91.105(d)(1) means "ground visibility" as defined in Sec. 1.1, i.e., visibility "as reported by ... an accredited observer." Furthermore, the FAA argues, the authorization for a pilot to rely on her own observations if ground visibility is unreported carries the negative implication that if ground visibility is officially reported, the pilot must rely on the official report. Consequently, the FAA interprets the regulations to require a pilot to obtain and rely on an official report of ground visibility if it is available, and to make ground visibility "as reported by ... an accredited observer" conclusive in determining whether a VFR take-off is permitted. In this case, the FAA says, ground visibility was indeed reported by an official observer, and since the latest available official report showed ground visibility under three miles, that report conclusively establishes that a VFR take-off was impermissible at the time Rolund departed from Visalia. The FAA contends that the Board's decision to the contrary was based on a "novel interpretation" of FAA regulations, rather than the FAA's reasonable interpretation of its own regulations.

The FAA next cites 49 U.S.C. Sec. 44709(d)(3), which provides that "[w]hen conducting a hearing under this subsection, the Board ... is bound by all validly adopted interpretations of laws and regulations the Administrator carries out ... unless the Board finds an interpretation is arbitrary, capricious, or otherwise not according to law." In this case, the Board did not find the FAA's interpretation arbitrary, capricious, or contrary to law, and therefore by the terms of the statute should have been bound by that interpretation, provided it was "validly adopted." ²

Whatever its merits, the FAA's argument concerning the binding effect of its interpretation of its own regulations was never clearly raised in the proceedings below. The Administrator initially cited Rolund for a violation of Sec. 91.105(d)(1) on the basis of a factual finding that the weather was below minimum for VFR operations at the time of his takeoff from Visalia, relying on the official weather report as the best evidence of ground visibility. The ALJ affirmed, on the same factual basis. At the Board proceeding, the FAA once again relied on the factual grounds for the alleged violation, contending that "a preponderance of reliable, probative, and substantial evidence" supported the ALJ's determination that visibility was below minimum for VFR operations. At no time, however, did the...