Johnson v. National Transp. Safety Bd.

• Decision Date: 13 November 1992
• Docket Number: No. 91-3295,91-3295
• Citation: 979 F.2d 618
• Parties: Robert K. JOHNSON, Petitioner, v. NATIONAL TRANSPORTATION SAFETY BOARD, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 618

979 F.2d 618

Robert K. JOHNSON, Petitioner, v. NATIONAL TRANSPORTATION SAFETY BOARD, Respondent.

No. 91-3295.

United States Court of Appeals Seventh Circuit.

Argued May 29, 1992.

Decided Nov. 13, 1992.

David Mathews (argued), Carmell, Charone, Widmer, Mathews & Moss, Chicago, Ill., Warren Kaston, Milwaukee, Wis., for petitioner Robert K. Johnson.

Dina Clayborn, Peter J. Lynch, Kathleen A. Yodice (argued), F.A.A., Washington, D.C., Jeanette B. Daubaras, F.A.A., Des Plaines, Ill., Harry S. Gold, F.A.A., Enforcement Proceedings Branch, Washington, D.C., for respondent National Transp. Safety Bd.

Before CUDAHY, EASTERBROOK and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Appellant Robert Keith Johnson was the pilot-in-command of a USAir express flight from Dayton to Cincinnati. The copilot on that flight, who flew the plane during the entire flight, had a blood alcohol level of .14 about an hour after the plane had landed. Consequently, the Administrator of the Federal Aviation Administration (FAA) revoked Mr. Johnson's commercial pilot certificate. After a hearing to determine Mr. Johnson's accountability under the Federal Aviation Regulations, the Administrative Law Judge (ALJ) modified the Administrator's order by reducing the penalty from revocation to a four-month certificate suspension. On review, the National Transportation Safety Board (NTSB) reinstated the original revocation of Mr. Johnson's pilot certificate; Mr. Johnson then filed this petition for review. Because we determine that there is substantial evidence on the record to support the Board's findings of fact and that the penalty imposed was not arbitrary and capricious, we affirm.

I BACKGROUND

A. Facts

On March 7, 1991, Robert Keith Johnson was the commanding pilot of a USAir express flight from Dayton to Cincinnati. The flight was Mr. Johnson's third of the evening and his scheduled copilot for that flight was James Hoskins. Ron Williams, a station agent working that evening, testified that, while Mr. Hoskins was completing necessary cargo forms for the flight, he noticed liquor on Mr. Hoskins' breath. Tr. 27, R. 200. When he allegedly smelled the alcohol, Mr. Williams was outdoors at the bottom of the aircraft stairs. Mr. Williams filed a report with the airline detailing what he had observed. The aircraft departed on schedule, apparently before Mr. Williams' report was channeled to persons with authority to act upon it. Concerning the smell, Mr. Williams later testified that he "was able to tell what it was. It wasn't overbearing, but it was the scent of alcohol." Tr. 30, R. 203.

The flight was carrying five passengers in addition to the crew. As commanding pilot, Mr. Johnson assigned Mr. Hoskins to fly the aircraft during the thirty-minute flight. The aircraft landed in Cincinnati, on schedule and without incident. Because of Mr. Williams' report, two airport police were on hand in Cincinnati to administer alcohol detection tests to Mr. Johnson and Mr. Hoskins. One of the officers testified that, upon entering the room where Mr. Hoskins and Mr. Johnson were waiting, he "[i]mmediately ... noticed the odor of alcoholic beverages." Tr. 104, R. 277. The officer further testified that the smell of alcoholic beverages was "very evident on ... [Mr. Hoskins'] breath ... [and that his] eyes were watery and diluted." Tr. 114, R. 287. The second officer testified that he "noticed a strong odor of alcohol." Tr. 139, R. 312. The officers administered several field sobriety tests to Mr. Hoskins and Mr. Johnson. Mr. Hoskins was unable to count backwards from thirty-nine, recite the alphabet, or balance while walking heel-to-toe. He was able to stand successfully on one foot for thirty seconds. Mr. Johnson successfully completed all of the tests administered. Finally, the officers administered a preliminary breath test. Mr. Johnson's breath test registered 0.00 percent alcohol. Mr. Hoskins' breath test registered 0.14 percent alcohol. ¹

B. Agency Proceedings

On May 21, 1991, the Administrator of the FAA issued an emergency order revoking Mr. Johnson's commercial pilot certificate. ² Mr. Johnson was charged with violating §§ 91.13(a) and 91.17(b) of the Federal § 91.13 Careless or reckless operations.

                Aviation Regulations.   Sections 91.13(a) and 91.17(b) provide
                

(a) No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.

§ 91.17 Alcohol and Drugs.

(b) Except in an emergency, no pilot of a civil aircraft may allow a person who appears to be intoxicated or who demonstrates by manner or physical indications that the individual is under the influence of drugs (except a medical patient under proper care) to be carried in that aircraft.

14 C.F.R. §§ 91.13(a) & 91.17(b) (1992). Mr. Johnson appealed the Administrator's order and a hearing was held before ALJ Joyce Capp, on July 1, 1991. The ALJ issued an order modifying the Administrator's order by dismissing the § 91.17(b) charge and reducing Mr. Johnson's penalty to a four-month certificate suspension. Specifically, the ALJ found that there was not sufficient evidence to establish that Mr. Johnson was aware that Mr. Hoskins had been drinking. ³ Nonetheless, the ALJ concluded that given the evidence presented, Mr. Johnson's failure to notice and report Mr. Hoskins' drinking before turning the controls of the aircraft over "showed the poorest of judgement." ALJ Oral Initial Decision and Order, at 7 (July 1, 1991). Accordingly, she found a license sanction appropriate. However, she reduced the revocation to suspension because she believed Mr. Johnson was less culpable than Mr. Hoskins and should receive a lesser sanction. Both Mr. Johnson and the Administrator filed appeals of the ALJ's decision to the full Board. On August 8, 1991, the Board issued an opinion affirming both the emergency order of revocation and the ALJ's decision, except for the penalty reduction, which it reversed. Consequently, the original revocation of Mr. Johnson's pilot certificate was reinstated.

II ANALYSIS

A. Standard of Review

Our review of the decision of the National Transportation Safety Board is narrow. We shall uphold its decision if it is not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A) (1988); see Janka v. Department of Transp., 925 F.2d 1147, 1149 (9th Cir.1991); Essery v. Department of Transp., 857 F.2d 1286, 1288 (9th Cir.1988); Aman v. FAA, 856 F.2d 946, 951 (7th Cir.1988). Section 1006(e) of the FAA provides that the FAA's "findings of facts ..., if supported by substantial evidence, shall be conclusive." 49 U.S.C. § 1486(e) (1988) (emphasis supplied); accord Janka, 925 F.2d at 1151. We do not weigh the evidence or evaluate the witnesses' credibility. Hill v. National Transp. Safety Bd., 886 F.2d 1275, 1278 (10th Cir.1989). Rather, our task is simply to determine whether the agency could fairly and reasonably find the facts as it did. Chritton v. National Transp. Safety Bd., 888 F.2d 854, 856 (D.C.Cir.1989). Additionally, we note that, as the agency charged with administering the Act, the FAA is "entitled to substantial deference." Aman v. FAA, 856 F.2d 946, 952 (7th Cir.1988) (citing United States v. Rutherford, 442 U.S. 544, 553, 99 S.Ct. 2470, 2475-76, 61 L.Ed.2d 68 (1979)). In Consolo v. Federal Maritime Commission, 383 U.S. 607, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966), the Supreme Court provided guidance for applying these standards in the administrative agency context:

[S]ubstantial evidence [is] "such evidence as a reasonable mind might accept as adequate to support a conclusion." ... This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence ....

These policies are particularly important when a court is asked to review an agency's fashioning of discretionary relief.... By giving the agency discretionary power to fashion remedies, Congress places a premium upon agency expertise, and, for the sake of uniformity, it is usually better to minimize the opportunity for reviewing courts to substitute their discretion for that of the agency.

Id. at 619-21, 86 S.Ct. at 1026-27 (citations omitted). With these legal standards in mind, we proceed to the substance of Mr. Johnson's appeal.

B. Findings of the Agency

1.

Mr. Johnson initially argues that, because the FAA exonerated him from section 91.17(b), which specifically proscribes a pilot from carrying any person on the aircraft who appears intoxicated, it was an abuse of discretion simultaneously to find that his conduct was careless enough to support the revocation of his pilot certificate under what he characterizes as the more general provisions of section 91.13(a). Mr. Johnson submits that "[i]t is unreasonable, and contrary to the intent of the FAA as expressed in its own regulations, to construe a general prohibition of misconduct to include conduct that is specifically addressed by other regulations." Mr. Johnson cites no authority supporting this theory and we cannot accept his assertion that the agency's discretion is cabined in such a manner. The two sections address significantly different situations. Section 91.17(b) prohibits a pilot from transporting a person who appears intoxicated. The Board affirmed the ALJ's dismissal of this charge because the record did not support the allegation that Copilot Hoskins appeared to be intoxicated. By contrast, section 91.13(a) places a much different obligation on the pilot. It requires that he not operate the aircraft in a careless or reckless manner. This "general" obligation, the Board quite reasonably concluded, encompasses the obligation of the pilot-in-command to notice the physical manifestations of members of the crew that might indicate they are unfit to carry out their duties. This obligation...