Howard v. F.A.A., 91-70735

Decision Date01 March 1994
Docket NumberNo. 91-70735,91-70735
PartiesDennis HOWARD, Petitioner, v. FEDERAL AVIATION ADMINISTRATION; National Transportation Safety Board, Respondents.
CourtU.S. Court of Appeals — Ninth Circuit

J. Scott Hamilton, Louisville, Colorado, for petitioner.

Kathleen A. Yodice, Federal Aviation Administration, Washington, D.C., for respondents.

Petition to Review a Decision of the Federal Aviation Administration.

Before: FERGUSON, CANBY and BRUNETTI, Circuit Judges.

OPINION

BRUNETTI, Circuit Judge:

Petitioner Dennis F. Howard ("Petitioner") seeks review of the order of the National Transportation Safety Board (NTSB) affirming the decision of the Administrative Law Judge (ALJ), which affirmed and modified the FAA administrator's decision temporarily suspending Howard's commercial pilot certificate. We have jurisdiction under 49 U.S.C.App. Sec. 1486(a) (1988), and we deny the petition for review.

Facts and Proceedings Below

On March 23, 1987, Petitioner landed a Bell B206 helicopter at Dubois-Jefferson county airport in Pennsylvania. The airport was operating under Instrument Flight Rules (IFR) when Petitioner arrived. Instrument Flight Rules prevail when weather conditions make approach via Visual Flight Rules (VFR) unsafe.

Although the IFR beacon was on when Petitioner made his approach, 1 he nevertheless landed under VFR without obtaining a clearance from air traffic control. Both parties agree that Petitioner did not make radio contact with the flight service specialist on duty (Mr. Roger Whitney), although Petitioner claims he attempted to make such contact at least three times but received no response.

The parties do not dispute that the Dubois-Jefferson airport lies within a 24-hour control zone. Further, Mr. Whitney's periodic weather reports taken before and after the landing recorded his observation of the conditions as 2 1/2 miles visibility with fog and an estimated ceiling of 700 feet (25 minutes before the landing) to 800 feet (35 minutes after the landing). Petitioner disputed Mr. Whitney's assessment of the conditions, recalling that during his flight he encountered "good VFR weather, three miles, a thousand feet, at least."

In connection with this landing, Petitioner was charged with violating three Federal Aviation Regulations (FAR): section 91.105(c), 2 in that he operated an aircraft, under VFR, within a control zone beneath the ceiling when the ceiling was less than 1000 feet; section 91.105(d)(1), 3 in that he landed an aircraft, or entered the traffic pattern of an airport, under VFR, within a control zone when the ground visibility was not at least three statute miles; and section 91.9, in that he operated an aircraft in a careless or reckless manner endangering the life or property of others. 4

Petitioner appealed the administrator's 60-day suspension order to the NTSB. After a hearing, the ALJ found that Petitioner had violated sections 91.105(c), 91.015(d)(1), and 91.9, but modified the suspension period from 60 days to 40 days. Petitioner appealed the ALJ's decision to the full Board, which affirmed the ALJ's decision and 40-day suspension. He then filed a petition for reconsideration of the Board's order, which petition was denied.

Petitioner is now before this court on his petition for review of the decision of the NTSB.

Standard of Review

Our review of an order of the NTSB "shall be conducted in accordance with the provisions of chapter 7 of title 5," (the Administrative Procedure Act (APA)). 49 U.S.C.App. Sec. 1903(d) (1988). Under the APA, a reviewing court "shall hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. Sec. 706(2)(A) (1988). The Board's factual findings, however, are conclusive if supported by "substantial evidence" in the record. 49 U.S.C.App. Sec. 1486(e) (1988); Essery v. Department of Transportation, 857 F.2d 1286, 1288 (9th Cir.1988). Purely legal questions are reviewed de novo. Janka v. Department of Transportation, 925 F.2d 1147, 1149 (9th Cir.1991).

Discussion
I.

Petitioner first argues that the Board's ruling can be set aside because its factual findings are not supported by "substantial evidence" of record. Petitioner asserts two challenges to the Board's findings in this appeal. First, with respect to the violation of section 91.105(c), he disputes that the flight ceiling was less than 1000 feet at the time of his landing. Second, Petitioner challenges the determination that ground visibility at the airport was reported to be less than three statute miles at that time, for purposes of section 91.105(d)(1).

A review for "substantial evidence" is one undertaken with some deference. Under this standard, a finding will not be disturbed if supported by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938); California v. F.E.R.C., 966 F.2d 1541, 1551 (9th Cir.1992). The evidence before the Board easily meets this standard.

A. Flight Ceiling

We cannot reach Petitioner's first argument because he did not raise the claim below. Under the code, "No objection to an order of the Board or Secretary of Transportation shall be considered by the court unless such objection shall have been urged before the Board or Secretary of Transportation or, if it was not so urged, unless there were reasonable grounds for failure to do so." 49 U.S.C.App. Sec. 1486(e). In the proceeding appealed from, Petitioner did not challenge the evidence presented to establish that flight conditions were below 1000 feet/three miles. 5 Neither does he offer any grounds for failure to propound this argument before the Board. Because Petitioner failed either to raise this issue in the NTSB proceeding or to justify that forbearance, he has defaulted on this argument, and we are deprived of jurisdiction to address this claim. See Reid v. Engen, 765 F.2d 1457, 1462 (9th Cir.1985).

B. Reported Visibility

Petitioner also argues that substantial evidence does not support the Board's finding "that ground visibility at the airport was reported to be less than three statute miles" at the time of his landing, under section 91.105(d). (Petitioner's emphasis). 6 Petitioner's claim turns not on what the official visibility actually was, but rather on whether that figure was "reported." Petitioner claims the visibility was not "reported" as it was not shown by substantial evidence that it was communicated to anyone. Because the ground visibility was "not reported," he continues, section 91.105(d)(2) controls, and makes "flight visibility," rather than "ground visibility" the relevant factor. 7 This argument fails, for two reasons.

First, as recognized by the Board, Petitioner distorts section 91.105(d)'s reference to "reported ground visibility" beyond recognition. Without citation to any authority, Petitioner argues that the periodic weather observations made and recorded by the Flight Service Specialist are not "reported"--and therefore 14 C.F.R. Sec. 91.105(d)(1) is without effect--until those observations are actually communicated to someone.

As the Board noted, "[t]here is no support in logic or Board precedent for the [Petitioner's] suggestion that the probative value of the official airport weather is somehow dependent on whether it has been transmitted in some manner to a pilot." Indeed, the Board regularly looks to the airport watchman's log to ascertain the weather conditions supporting a violation of FAR provisions. See, e.g., Administrator v. Bradway, 1 N.T.S.B. 145, 1967 WL 6262, at * 6 (Dec. 29, 1967).

The proper inquiry is whether the information that the ground visibility was below VFR minimums was existent and available to Petitioner when he made his approach. Substantial evidence exists in the record that it was, through the weather information network, via the rotating airport beacon, and through radio contact with the tower. 8

Petitioner's argument on this ground also fails for a second reason. Even were we to accept the argument that no reported ground visibility obtains absent a "communication," there exists sufficient evidence in the record to support a finding that the ground visibility was "reported" even under that definition. Before the ALJ, Whitney testified that he put the completed weather observation forms "on to the teletype." This testimony would be sufficient to support a reasonable mind in concluding that the reports were actually communicated. Therefore, even if actual communication were required, the Board's decision should nonetheless stand.

II.

Petitioner next argues that the NTSB's action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, in light of "conflicting board precedent." Petitioner did not raise this issue in his hearing before the ALJ or in his appeal of that decision to the full Board. This argument first appears in the Petition for Reconsideration and Modification of the Board's order. Because failure to raise an issue below is jurisdictional in the face of an express provision such as Sec. 1486(e), see Reid, 765 F.2d at 1462, we must first decide whether Petitioner has defaulted on this argument by failing timely to press it before the Board.

In Monahan v. United States, 354 F.2d 306 (Ct.Cl.1965), the U.S. Court of Claims held in an analogous setting before the Civil Service Commission that the petitioner did adequately exhaust his administrative remedies, even though his principal argument was raised for the first time in his "petition to the Commissioners to reopen and reconsider the decisions of the lower echelons." Id. at 308. Exhaustion was satisfied, concluded the court, since the Commissioners appeared to have passed upon the merits of the new claim.

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