Rice v. National Transp. Safety Bd., 83-3677

• Decision Date: 10 October 1984
• Docket Number: No. 83-3677,83-3677
• Citation: 745 F.2d 1037
• Parties: Tracey Marie RICE, Petitioner, v. NATIONAL TRANSPORTATION SAFETY BOARD, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1037

745 F.2d 1037

Tracey Marie RICE, Petitioner, v. NATIONAL TRANSPORTATION SAFETY BOARD, Respondent.

No. 83-3677.

United States Court of Appeals Sixth Circuit.

Argued Aug. 31, 1984.

Decided Oct. 10, 1984.

Michael C. Murphy, argued, Troutman, Sanders, Lockerman & Ashmore, A. Lee Parks, Jr., Meals & Parks, Atlanta, Ga., for petitioner.

Darlene M. Freeman, Chief, Enforcement Proceedings Branch, AGC-250, Regulations & Enforcement Div., F.A.A., Mardi R. Thompson, argued, AGC-250, F.A.A., Washington, D.C., for respondent.

Before MERRITT, Circuit Judge, PHILLIPS, Senior Circuit Judge, and BERTELSMAN, District Judge. ^*

MERRITT, Circuit Judge.

In this aircraft pilot license suspension case, petitioner, Tracey Marie Rice, a commuter airline pilot, seeks review under section 1006 of the Federal Aviation Act of 1958, 49 U.S.C. Sec. 1486, of an order of the National Transportation Safety Board affirming an order of the Administrator of the Federal Aviation Administration. The Board affirmed the FAA order that the pilot's license be suspended for sixty (60) days for operating an aircraft in a careless manner so as to endanger the life or property of others in violation of 14 C.F.R. Sec. 91.9.

The basic factual issue in the case at the administrative level was whether the pilot negligently ran her medium-size, twin engine Cessna 402, Air Miami, commuter airliner off the runway during a daytime takeoff at Marathon in the Florida Keys--striking a runway light at the side of the runway and injuring a passenger in the process--or whether she nonnegligently struck an object on the runway during a normal takeoff. The essential factual issue at the administrative level was whether the pilot negligently ran the plane off the runway. The FAA Administrator concluded that she did negligently run the plane off the runway and issued a sixty (60) day suspension order. The Administrative Law Judge for the National Transportation Safety Board, after a full trial of the case on the merits, agreed and issued a written opinion rejecting the explanation of the accident given by the pilot and accepting the explanation of the accident given by other witnesses. The full Board then reviewed the proceedings and the opinion of its Administrative Law Judge, adopted his findings of fact, affirmed his decision and upheld the pilot's sixty-day suspension.

We review the Board's decision under the Administrative Procedure Act, 5 U.S.C. Sec. 551 et seq., and 49 U.S.C. Sec. 1486 providing for review of Transportation Safety Board decisions by the Courts of Appeals.

The pilot as petitioner raises three claims of error in the adjudicative process. She claims that the Administrative Law Judge and the Board erred in not placing the burden of proof on the FAA as required by section 556(d) of Title 5 U.S.C. ("the proponent of a rule or order has the burden of proof"); she also claims that the Administrative Law Judge and the Board erred in not making findings of fact on a material issue, in violation of Sec. 557(c) of Title 5, which requires that the factfinder in in an administrative proceeding make findings on "all material issues of fact," namely, whether the pilot left skid marks from the airplane tires on the runway. Finally, the pilot argues that the Administrative Law Judge and the Board erred in deferring to the FAA in respect to the sanction imposed. She argues that she was entitled to de novo review of the sixty day suspension sanction imposed under 49 U.S.C. Sec. 1429, which governs review by the Board of an order of the FAA affecting a pilot's license. ¹

The Administrative Law Judge of the Board, following the Board's previously established rule, conducted a de novo evidentiary hearing on the facts of the case. It heard a number of witnesses, including passengers on the flight in question, as well as expert witnesses and the pilot. The Administrative Law Judge found that the pilot attempted to take off with dew and condensation on the outside of the front windshield of the airplane, a condition which prevented a clear view of the runway and caused her to lose a clear perception of the center line of the runway. The Administrative Law Judge found that as a result of the actions during the takeoff roll, the pilot permitted the airplane to veer to the boundary of the runway and strike a runway light located just off the left edge of the runway. As a consequence of striking the runway light, a propellor tip sheared off, came through the fuselage of the aircraft and injured a passenger sitting in the co-pilot's seat. The pilot denied that there was dew or condensation on the windshield which clouded her vision; she further denied that the aircraft on its takeoff roll veered to the left striking the runway light at the edge of the runway. A clear issue of fact was joined, and there is substantial evidence, based on the differing versions of the facts presented by the witnesses, for the Administrative Law Judge to have found either way. The factual determination depended in major part on whose testimony the Administrative Law Judge chose to credit.

We have reviewed the record in the case, and we do not find that the Administrative Law Judge imposed the burden of proof on the pilot, rather than the FAA, in...