Robinson v. National Transp. Safety Bd.

• Decision Date: 22 August 1994
• Docket Number: No. 94-1012,94-1012
• Citation: 28 F.3d 210
• Parties: James C. ROBINSON, Petitioner, v. NATIONAL TRANSPORTATION SAFETY BOARD, et al., Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 210

28 F.3d 210

307 U.S.App.D.C. 343

James C. ROBINSON, Petitioner, v. NATIONAL TRANSPORTATION SAFETY BOARD, et al., Respondents.

No. 94-1012.

United States Court of Appeals District of Columbia Circuit.

Argued May 17, 1994.

Decided July 15, 1994.

Rehearing Denied Aug. 22, 1994.

Mark T. McDermott, Washington, DC, argued the cause for petitioner. With him on the briefs was Peter J. Wiernicki, Washington, DC.

James W. Tegtmeier, Atty., Federal Aviation Admin., Washington, DC, argued the cause for respondents. With him on the brief was Peter J. Lynch, Manager, Appellate Branch, Federal Aviation Admin., Washington, DC.

Before: WILLIAMS, SENTELLE, and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

James C. Robinson petitions for review of the order of the National Transportation Safety Board affirming the emergency revocation by the Administrator of the Federal Aviation Administration of his airline transport pilot certificate. The revocation was based on Robinson's operation of a twin-engine helicopter with only one operable engine, in violation of Federal Aviation Regulations. Robinson maintains first, that the Administrator's emergency action was arbitrary and capricious, an abuse of discretion, and not in accordance with law, and second, that the Board's order upholding the decision of the Administrative Law Judge is similarly arbitrary and capricious and unsupported by substantial evidence. The first issue is moot. On the second issue, we remand the case to the Board to explain its finding that Robinson operated his helicopter with only one operable engine.

I.

On October 18, 1993, the Administrator of the Federal Aviation Administration (FAA) issued an Emergency Order revoking Robinson's airline transport pilot certificate because of the unsafe operation of his helicopter. The Emergency Order stated that on May 16, 1993, Robinson executed a takeoff under the power of a single engine and departed with only one operable engine, contrary to the pilot action called for in the helicopter's Aircraft Flight Manual. The Order recited that Robinson had violated four Federal Aviation Regulations--14 C.F.R. Secs. 91.7(a) & (b), 91.9(a), and 91.13(a) (1993)--and that by reason of his lack of care, judgment, and responsibility required of one holding an Airline Transport Pilot Certificate, an emergency existed requiring that the Order take effect immediately. Robinson appealed to the National Transportation Safety Board, and a hearing was held before an Administrative Law Judge (ALJ).

The undisputed evidence showed that at approximately 6:26 p.m. on May 26, 1993, Robinson landed the helicopter at the Wall Street Heliport in New York City to meet his passenger, Robert E. Brennan. Before takeoff, a chip light went on in the helicopter indicating a problem with one of the engines. After a takeoff was aborted, the passenger took off in another aircraft, and Robinson thereafter took off in his helicopter, landing at Allaire Airport around 8:30 p.m. Repair records showed that one of the helicopter's engines had experienced a chip light and loss of power.

The Administrator presented four witnesses to show that Robinson had taken off from the Wall Street Heliport with only one operable engine. ¹ John P. Licciardi, the senior airport operations agent at the Wall Street Heliport, testified that on May 26, Robinson parked the helicopter, shut it down, and entered the terminal building, where Licciardi informed Robinson that his passenger was on his way and that Robinson should start his aircraft. After observing Robinson start his helicopter, Licciardi informed Robinson that he could move the helicopter to the transient area in front of the terminal. According to Licciardi, Robinson said that because of trouble with engine number two he could not move the helicopter to the transient. Robinson then asked Licciardi to escort the passenger to the parking place. Once the passenger was on board the helicopter, Robinson attempted to take off. Licciardi testified that the helicopter "skidded around the heliport, rather than hover[ing] up off the ground," and it looked like Robinson was unable "to get lift." Licciardi characterized the maneuver in his heliport log entry at 7:07 p.m. as an "attempted ... single engine takeoff using the barge, to no avail," but he conceded that the statement in the logbook about the single engine takeoff was simply his own conclusion. Licciardi also admitted that his logbook entry that Robinson was going to attempt a second single engine takeoff was supposition on his part.

Three FAA investigators testified based on their review of records, personal interviews, and knowledge of the helicopter's chip light system. Anthony B. Winton, an FAA aviation safety inspector, opined on the basis of Licciardi's testimony about his own observations, that Robinson's attempted Wall Street takeoff was "indicative of an under-power takeoff, i.e., the running takeoff profile, and that there was a problem with the engine." He further opined, however, that "the engine may have been in idle power or completely shut down." Winton had no information whether the chip light was on or off at the time of the takeoff, and he agreed that it was possible that Robinson could have extinguished the chip light before taking off, and that somewhere between Wall Street and the Allaire Airport Robinson could have experienced a second chip light, taken appropriate action, and landed as soon as possible at Allaire. But, based on the other investigators' testimony, Winton concluded that because particles and not fuzz were in the oil system "the chip light most likely stayed on at Wall Street." ² In Winton's opinion, Robinson's conduct in taking off with a single engine was surprising and foolhardy.

Robinson presented four witnesses, including himself. One witness testified consistently with the FAA witnesses about the safety of flying the helicopter once the chip light was powered off, ³ and two witnesses--Robert E. Brennan (the passenger) and John H. Ford (president and director of maintenance at Raco Helicopters)--corroborated Robinson's testimony that both engines were operable when he took off. Brennan, in addition to describing the attempted running takeoff and what Robinson had told him, testified that Robinson had both engines running, that the levers for both engines were up, and that there was no chip light problem while he was in the helicopter at the Wall Street Heliport. Ford testified that when Robinson landed the helicopter at Allaire Airport on May 26th, Robinson informed Ford that he had experienced a problem with one of the engines, that his chip light had come on, and that he had shut down the engine. Ford opened the cowling, and from the outside the engine looked normal. However, Ford explained, he was unable to identify which part of the engine was incurring the metal or chip problem because "the engine was a bit too warm to be playing with it. So, I elected not to do that at that time. * * * It was too warm to be handling." He further explained that a non-functioning engine would not generate heat and that the fire walls between the helicopter's two engines prevented any heat transfer from one engine to the other. Upon disassembling the engine the following day, Ford discovered that the oil separator's shaft had sheared; he testified that as a result of the structure and manner in which the unit was manufactured, metal particles were present in large quantities in the lubricating oil. ⁴

Robinson testified that he had full power available at all times on May 26th until he was about a mile away from Allaire Airport. He admitted that he experienced a chip light illumination for his number two engine while at the Wall Street Heliport, but he testified that the light went out after he pushed the chip pulse, making the aircraft safe to fly. Thereafter, according to Robinson, he attempted a running takeoff with his passenger on board because the helicopter was too heavy with fuel to fly if one of his engines failed. By attempting a running takeoff, Robinson thought that he would be able to stay safely outside of the "height velocity envelope." However, the unsuccessful running takeoff indicated that he would not be able to do so and, because he knew it would take some time to burn off enough fuel to be outside the height velocity envelope, he requested another helicopter to take his passenger. Once Robinson had burned off enough fuel, he took off, using a running takeoff with reduced power to simulate a single-engine takeoff in order to verify that he would have sufficient power in the event of another engine problem. Robinson claimed that he simulated the single-engine operation only during the early portion of the takeoff and switched to normal two-engine power for the takeoff itself. He testified that the chip light did not come on until about a mile away from Allaire Airport, when the engine started to spool down. Robinson secured the engine and landed on the taxi at the Allaire Airport with only the number one engine running. According to Robinson, the number two engine was inoperative for about two minutes during the flight from the Wall Street Heliport.

The ALJ upheld the Administrator's emergency order of revocation. While commenting that the Administrator's case was "far from being airtight," the ALJ concluded in an oral decision and order that the Administrator was not arbitrary and capricious in instituting the Emergency Order of Revocation and had sustained his burden of proof. The ALJ found that Robinson took off under the power of a single engine and that departing with only one operable engine contravened the pilot action that is called for in the aircraft flight manual. The ALJ also found that "safety and air commerce and air transportation and the public interest ... require the affirmation of the Administrator's Emergency Order of...