Pike v. CAB

• Citation: 303 F.2d 353
• Decision Date: 16 May 1962
• Docket Number: No. 16740.,16740.
• Parties: David Paul PIKE, Petitioner, v. CIVIL AERONAUTICS BOARD and Najeeb E. Halaby, Administrator of the Federal Aviation Agency, Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

303 F.2d 353 (1962)

David Paul PIKE, Petitioner, v. CIVIL AERONAUTICS BOARD and Najeeb E. Halaby, Administrator of the Federal Aviation Agency, Respondents.

No. 16740.

United States Court of Appeals Eighth Circuit.

May 16, 1962.

Charles H. Baker, of Riddle, Baker & O'Herin, Malden, Mo., Veryl L. Riddle and Edward F. O'Herin, Malden, Mo., and also Langdon R. Jones and Robert H. Jones, Kennett, Mo., on the brief, for petitioner.

William L. Howard, Jr. Attorney, Civil Aeronautics Board, Washington, D. C., O. D. Ozment, Associate General Counsel, Litigation and Research, Washington, D. C., Lee Loevinger, Asst. Atty. Gen., Washington, D. C., Richard A. Solomon, Attorney, Dept. of Justice and

John H. Wanner, General Counsel, Civil Aeronautics Board, on the brief, for respondents.

Before VOGEL, VON OOSTERHOUT and BLACKMUN, Circuit Judges.

BLACKMUN, Circuit Judge.

David Paul Pike, a resident of Missouri and a holder of airman certificates, seeks review of an order of the Civil Aeronautics Board which revoked those certificates on the ground, essentially, that Pike was unqualified to hold them. Jurisdiction under § 1006 of the Federal Aviation Act of 1958, 49 U.S.C.A. § 1486, is established. The Board's order, with one member dissenting, vacated its examiner's ruling dismissing the complaint filed by the Administrator of the Federal Aviation Agency. We, in turn, reverse.

The question is whether Pike, although he was a certificated commercial pilot, violated the applicable statute and regulations by giving dual flight instruction to three students at a time when he, Pike, did not possess a flight instructor's certificate. There is no challenge here to the findings of fact which have been made and we are confronted with no problem of the sufficiency of the evidence to support those findings.

Pike, born in 1922, operates an airport at Caruthersville, Missouri, owns aircraft and hangars there, engages in crop dusting and charter flights, and is a pilot in the Air Force Reserve. He possesses flight time of over 12,000 hours, 4,400 of which were in military aircraft. At all times material here Pike has held an airman certificate with commercial pilot privileges and airplane single and multiengine land and instrument ratings. In December 1959 the Administrator issued to him, in addition, a limited flight instructor's certificate.

In October 1959, while Pike held his airman certificate but before he acquired his limited flight instructor's certificate, he was served with notice of charges by the Administrator. On January 12, 1960, after an informal hearing, the Administrator revoked Pike's airman certificate because of claimed violations of § 610(a) (2) of the Civil Aeronautics Act of 1938, as amended, and of § 610(a) (2) of the Federal Aviation Act of 1958, 49 U.S.C.A. § 560(a) (2) and § 1430(a) (2). Pike, pursuant to the provisions of § 609 of the 1958 Act, 49 U.S.C.A. § 1429, appealed to the Board; the Administrator then filed his complaint with the Board for affirmation of the order of revocation.

This complaint alleged among other things (a) that Pike, on about thirty stated occasions in the years 1955 to 1959, inclusive, gave dual flight instruction to Darrell A. Dugger, John M. Cantrell and William E. Morris, holders of student pilot certificates; (b) that on each of these occasions Pike did not hold an airman certificate authorizing him to serve in the capacity of a flight instructor; (c) that in so doing he was in violation of § 610(a) (2) of the applicable Act; (d) that because of these and other violations of the Acts and of the Civil Air Regulations, Pike had demonstrated a disregard for regulation and safety in air commerce so as to warrant, in the public interest, the revocation of his airman certificate; and (e) that the order of revocation of his certificate was accordingly issued. Pike's responsive pleadings contained a general denial and other defenses not pertinent on this appeal.

An examiner's hearing ensued. He found that Pike did give the flight instruction to the three students prior to his acquisition of a separate limited flight instructor's certificate. Pike had denied this but the examiner gave no credence to his testimony and actually noted a question as to his veracity. Nevertheless, the examiner dismissed the Administrator's complaint. He did so primarily on the grounds that the term "airman" is not defined by the statute to include "flight instructor"; that the statute's prohibition against one's serving as an airman in an uncertified capacity therefore did not apply to Pike's acts; and that the Regulations also did not prohibit Pike's flight instruction.

On the appeal to the Board, however, its majority held that both the statute and the Regulations barred Pike's instruction. In so doing they stated, "Apparently there has not been a direct ruling on this question under the current framework of the regulations". Member Gilliland, in dissent, emphasized that the majority's decision did not rest on the ground that Pike endangered anyone or lacked qualification to perform the acts complained of but merely on the ground that he had not been formally authorized at the time to perform those acts. He noted that since December 18, 1959, Pike has had his limited flight instructor's certificate.

The case thus basically concerns only the construction of the statute and the interpretation of the Regulations. We look initially at these.

The Civil Aeronautics Act of 1938, 52 Stat. 973, 49 U.S.C.A. §§ 401-681, and the Federal Aviation Act of 1958, 72 Stat. 731, 49 U.S.C.A. §§ 1301-1542, which supplanted the 1938 Act, clearly embody a comprehensive scheme for the regulation of the safety aspects of aviation. See Nebraska Department of Aeronautics v. C. A. B., 8 Cir., 1962, 298 F.2d 286, 291; Lee v. C. A. B., 1955, 96 U.S. App.D.C. 299, 225 F.2d 950, 951; Air Lines Pilots Ass'n International v. Quesada, 2 Cir., 1960, 276 F.2d 892, 894, 897, cert. den. 366 U.S. 962, 81 S.Ct. 1923, 6 L.Ed.2d 1254. This is evident from a review of §§ 601-610 and 701-702 of the 1938 Act, as amended, 49 U.S.C.A. §§ 551-560 and 581-582, and of §§ 601-610 and 701-703 of the 1958 Act, 49 U.S.C.A. §§ 1421-1430 and 1441-1443. In particular, § 601(a) (6)¹ of each Act confers upon the Administrator (or, under the 1938 Act, upon the Board) general rule-making authority governing practices as may be found "necessary to provide adequately for * * * safety in air commerce". Then § 602(a)² empowers the Administrator "to issue airman certificates specifying the capacity in which the holders thereof are authorized to serve as airmen in connection with aircraft"; § 602(b)³ authorizes the issuance of a certificate if the Administrator finds that the applicant possesses "proper qualifications" therefor; § 610 (a) (2)⁴ declares it unlawful

"For any person to serve in any capacity as an airman in connection with any civil aircraft, * * * in air commerce without an airman certificate authorizing him to serve in such capacity, or in violation of any term, condition, or limitation thereof, or in violation of any order, rule, or regulation issued under this subchapter; * * *"

and § 609⁵ authorizes, under certain conditions, the issuance of an order suspending or revoking any type of certificate, including an airman certificate. § 102(b) and (e), § 103(a) and (c) and § 307(c) of the 1958 Act,⁶ and § 2(b) and (e) of the 1938 Act⁷ are other statutory provisions emphasizing safety. § 901⁸ provides for a civil penalty of not to exceed $1,000 for each violation of the statute. Except for those specified in § 902,⁹ not applicable here, there are no criminal penalties for safety violations.

Pursuant to the rulemaking authority granted by § 601 of the 1938 Act, the Board did in fact issue safety regulations for airman licenses. These were adopted by the Administrator in 1958 when he assumed the safety rulemaking function and have been continued without substantial change pertinent to the present proceeding. The Board and the Administrator in their brief concede that the Regulations do not expressly forbid unlicensed instruction. Yet the Regulations do seek to spell out, with respect to a flight instructor's certificate, the "proper qualifications" mentioned by § 602(b). A flight instructor is defined to be "a certificated pilot authorized by the Civil Air Regulations to give flight instruction". One is not to pilot a civil aircraft without "appropriate ratings issued by the Administrator". An applicant obtains a limited flight instructor's certificate by demonstrating his ability properly to instruct students and by showing his familiarity with the methods and procedures set forth in the Flight Instruction Manual. A limited flight instructor's duties and responsibilities include the examination of the student pilot to determine his competency to make solo flights and solo cross-country flights, the entering of appropriate indorsements on the student pilot certificate, the signing of the student's log book for each period of flight instruction, and the maintenance of his own records of flight instruction time and indorsements entered. The student, in applying for a private pilot certificate, must present a reliable log book record and his student certificate appropriately indorsed by a certified instructor. Upon meeting certain requirements, including a satisfactory one year probationary period, a limited flight instructor is entitled to a regular certificate. There are specified limitations, too, in flight instruction as to aircraft category, hours of instruction per day and per week, and the like. 14 C.F.R. 20.5, 20.16, 20.23-4, 20.34, 20.130-8, 43.40, and 43.64.¹⁰

We state initially that we entertain no doubt whatever that the Administrator has the power, in view of his broad rulemaking authority under the Act and the statute's emphasis on safety, to prescribe that dual flight instruction shall be given only by a certified commercial pilot...