Morton v. Dow

• Citation: 525 F.2d 1302
• Decision Date: 08 September 1975
• Docket Number: No. 75--1088,75--1088
• Parties: James D. MORTON, Jr., Petitioner, v. James E. DOW, Acting Administrator, Federal Aviation Administration, and National Transportation Safety Board, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1302

525 F.2d 1302

James D. MORTON, Jr., Petitioner, v. James E. DOW, Acting Administrator, Federal Aviation

Administration, and National Transportation Safety

Board, Respondents.

No. 75--1088.

United States Court of Appeals, Tenth Circuit.

Argued May 22, 1975.

Decided Sept. 8, 1975.

Rehearing Denied Oct. 21, 1975.

L. B. Ullstrom, Denver, Colo., for petitioner.

Karen K. Siegel, Atty., App. Section, Civ. Div., Dept. of Justice (Rex E. Lee, Asst. Atty. Gen., and Robert E. Kopp, Atty., App. Section, Civ. Div., Dept. of Justice, on the brief), for respondents.

Before MURRAH, BARRETT and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

This is a review of a decision of the Federal Aviation Administrator revoking the petitioner Morton's airworthiness certificate for what purported to be a rebuilt Bell Helicopter, Model 205A--1. This review is pursuant to 49 U.S.C. §§ 1429 and 1486.

An aircraft belonging to Arizona Helicopters, Inc. crashed and was totally destroyed on August 14, 1972. Little was salvaged except the log book and the identification plate. These, however, were used to build a new helicopter, and for the obtaining of a new registration number. This latter was changed from N2236W to N6208N.

Meanwhile, on August 23, 1973, Arizona Helicopters had conveyed the salvage together with the new number to petitioner. It was Morton who constructed the new aircraft and affixed the log book and identification plate of the destroyed one.

Based on a previous airworthiness certificate, Morton contacted an FAA employee and showed him a copy of the 1969 airworthiness certificate together with the change in registration number. He represented that he had lost his original airworthiness certificate and asked the employee to issue him a replacement. All of this was without mentioning that the helicopter bearing No. N2236W had been destroyed. The employee, who had known Morton previously, issued the replacement certificate without further ado.

After it had been in service for two months, Bell Helicopters learned of it and made a complaint to FAA. The FAA in turn on February 28, 1974, issued an emergency order of revocation of the airworthiness certificate for the aircraft. As a result, Morton was unable to fly the helicopter from that time on.

In March 1974, notice of appeal was filed to the National Transportation Safety Board seeking review of the revocation order. Morton waived the emergency procedures in order to serve personal convenience. Thereupon, the Administrative Law Judge denied motions for discovery and clarification of the emergency order. The matter came to trial on November 18, 1974, and at the conclusion of that trial, on November 22, 1974, the Administrative Law Judge issued an oral decision affirming the emergency order. His decision was appealed to the National Transportation Safety Board, and on March 27, 1975, the Board affirmed the emergency order.

The action of the FAA, the Administrative Law Judge and the National Transportation Safety Board did not proceed on the basis that a deception had been pertetrated on the FAA in order to get that body to issue a replacement airworthiness certificate. Why, we do not

know. It would seem simple to so proceed. One would suppose that implicit in an application of this sort would be that the aircraft is the identical one which had been originally certificated. Once it became apparent that it was not, it would seem that the action taken on the false assumption could be easily undone as void or at least voidable. There is no need, however, to clear up this mystery because the government agency continued the fiction by the simple expedient of ruling that the aircraft for which an airworthiness certificate had been issued did not comply with the type certificate for a Bell Helicopter Model 205A--1.

I.

49 U.S.C. § 1423 vests in the Administrator of the FAA power to issue type certificates for aircraft. This certificate pertains to the design of the aircraft and once a general design is type certificated, all other craft built according to that design are entitled to type certificates. An applicant can obtain a type certificate if the aircraft design complies with the airworthiness requirements of 14 C.F.R. Parts 23--35 and a test shows that it is safe. The type certificate includes the design, the operating limitations, the certified data sheet and the FAA regulations. These are effective until suspended, revoked or otherwise terminated, and are freely transferable provided notice is given to the FAA. 14 C.F.R. § 21.47. Some modifications to an aircraft compel the issuance of a new type certificate. Other 'major changes' require only a supplemental type certificate. 14 C.F.R. §§ 21.113--21.119.

As noted, the Administrator's determination that the craft conforms to its type certificate, plus his determination that the aircraft is in a safe condition entitles it to an airworthiness certificate. 49 U.S.C. § 1423(c). A new aircraft is, of course, entitled to the type certificate without exception. 14 C.F.R. § 21.83, but other aircraft are not entitled to an airworthiness certificate unless the owner presents evidence as set forth in the regulations. See 14 C.F.R. § 21.181(1). Once issued, however, the airworthiness certificate continues as long as maintenance, preventive maintenance and alterations are performed in accordance with the regulations. 14 C.F.R. § 21.181(1). An airworthiness certificate is transferred with the craft. 14 C.F.R. § 21.179.

Morton's contentions are:

First, that the procedures that we have outlined violate his constitutional rights--deprive him of due process of law and are contrary to the Administrative Procedure Act;

Second, that at the trial the complaint was insufficient, the evidence was irrelevant and was also insufficient to support the findings;

Third, that the Administrator was estopped to revoke his airworthiness certificate;

Fourth, that the Administrative Law Judge was obligated to furnish an opportunity to eliminate the non-conformance of the helicopter with the type certificate.

We have considered the various aspects of the due process arguments and conclude that they are wholly without merit. We see nothing invalid in the authority given in 49 U.S.C. § 1429 to the Administrator to revoke an airworthiness certificate in an emergency and without a hearing. Thus, it has been held that agencies can take emergency action where danger to the public is present. ¹ Inherent in an aircraft is danger The validity of § 1429 has been upheld. See Air East, Inc. v. National Transportation Safety Bd., 512 F.2d 1227 (3rd Cir. 1975). In holding that the emergency order was justified, the court recognized that the FAA should not wait until there has been a fatal crash. It is sufficient here that the craft does not meet the airworthiness criteria of the statute and regulations. ²

if it does not meet prescribed standards. This helicopter, though purporting to be a Bell 205A--1, was not such an aircraft. We are not able to say that the Administrator did not have sufficient grounds to summarily suspend the certificate. To be sure, the burden on Morton was substantial, but when placed on the scale opposite the possibility of grave harm to the public, the latter prevails. It seems to us that Morton took this risk when he built the aircraft and represented it as a Bell 205A--1, presumably in order to escape inspection. Thus, the emergency order was no surprise. Indeed, he had been given notice by letter dated December 10, 1974, and the order was issued on February 28, 1974.

Nor do we see merit in Morton's contention that he was entitled to a hearing and determination of the validity of the Administrator's findings that an emergency existed. He had hoped to have the order suspended so that he could use the aircraft during the hearing process. It was held by the Administrative Law Judge that the Board lacked authority to investigate the validity of the determination that an emergency existed; that it was limited to determining the sufficiency of the evidence to support revocation of the airworthiness certificate.

Congress recognized that the decision must be determined quickly by persons with expertise in aviation matters. Thus, it did not regard this as the kind of case in which judicial review should follow since the reviewing authority would have little knowledge of the subject matter in any event. On the other hand, a certificate holder is entitled under the law to have the Board review the emergency orders within 60 days. This is adequate due process.

We have also considered his additional due process argument that § 1429's provisions regarding the hearing on the merits do not give enough time. We see no unfairness in this in view of the emergency character of the proceedings. Nor do we see merit in his...