Specht v. Civil Aeronautics Board
| Decision Date | 29 April 1958 |
| Docket Number | No. 15903.,15903. |
| Parties | Leonard J. SPECHT, Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Roy K. Dietrich and William J. Burrell, Kansas City, Mo. (James T. Seigfreid and Dietrich, Tyler, Davis, Burrell & Dicus, Kansas City, Mo., were with them on the brief), for petitioner.
O. D. Ozment, Asst. Gen. Counsel, Litigation and Research, Civil Aeronautics Board, Washington, D. C. (Victor R. Hansen, Asst. Atty. Gen., Daniel M. Friedman, Atty., Dept. of Justice, Franklin M. Stone, Gen. Counsel, Civil Aeronautics Board, John H. Wanner, Associate Gen. Counsel, and William J. Dixon and Ulrich v. Hoffmann, Attys., Civil Aeronautics Board, Washington, D. C., were with him on the brief), for respondent.
George F. Archer, Chicago, Ill., for Air Line Pilots Association, International, Amicus Curiae.
Before GARDNER, Chief Judge, and VOGEL and VAN OOSTERHOUT, Circuit Judges.
Petitioner herein, Leonard J. Specht, seeks review of an order of the Civil Aeronautics Board which revoked his airline transport pilot rating. The effect of the Board's order was to require petitioner to cease flying as pilot in command. He is permitted to act as co-pilot and was issued such license. In the proceedings before the Civil Aeronautics Board, the Board found that the petitioner violated certain Civil Air Regulations. The original complaint charges that on January 29, 1957, Captain Specht, who was pilot in command of TWA Flight 19 Constellation operating between New York, N. Y., and St. Louis, Mo., while proceeding under instrument flight rules, failed to adhere to his air traffic control clearance to maintain 14,000 feet and climbed to 18,000 feet; that Captain Specht had been instructed by the air traffic control to maintain 14,000 feet on account of traffic at 16,000 feet; that the 16,000-foot level was occupied by Capital Airlines Flight 31 proceeding in the same direction; that Captain Specht climbed through the 16,000-foot level without clearance and despite advice that 16,000 feet was occupied. The complaint alleges that by his actions Captain Specht violated the following Civil Air Regulations: (a) § 60.19,1 in that he operated an aircraft contrary to air traffic control instructions in areas where air traffic control was being exercised; (b) § 60.21,2 in that he deviated from the provisions of an air traffic control clearance; (c) § 60.- 12,3 in that he operated an aircraft in a careless manner so as to endanger the lives and property of others. The complaint charges that Captain Specht "* * * by his actions as heretofore alleged, demonstrated a lack of the degree of responsibility, care and judgment required of the holder of an Airline Transport Pilot Certificate".
Captain Specht's answer was to the effect that the actions complained of "* * * were necessary and proper, and were taken only after the declaration of an emergency in accordance with his right and duty under Civil Air Regulations Part 40, Section 40.360 entitled `Emergency Declarations; Pilot-in-Command and Air Traffic Dispatcher', which said declaration of emergency by Respondent was acknowledged by Air Traffic Control."4,5 For an affirmative defense, Captain Specht alleged that he encountered an icing condition which in his best judgment imperiled his aircraft and the passengers and crew thereof and that in accordance with his right and duty he declared an emergency, left his assigned altitude of 14,000 feet and climbed to 18,000 feet.
In a hearing before an Examiner, petitioner was found to have violated the three Civil Air Regulations referred to and his airline transport rating was ordered suspended for a period of six months.6 The Administrator, seeking revocation rather than suspension, filed notice of appeal from the ruling of the Examiner because of the Examiner's failure to find lack of qualification to hold an airline transport pilot rating. Petitioner likewise appealed and the matter came on for hearing before the Civil Aeronautics Board. The Board reviewed the entire case, adopted the findings and conclusions of the Examiner except as modified and concluded:
"Upon consideration of the entire record and in view of all the foregoing we find respondent violated Sections 60.19, 60.21, and 60.12 of the Civil Air Regulations in the respects hereinabove set forth, that respondent lacks the qualifications required of the holder of an airline transport pilot certificate in the respects indicated above, and that such lack of qualifications constitutes cause which would presently justify the Administrator in refusing to issue to respondent a like certificate, and that the order of revocation set forth below is required in the interest of the public in the proper discharge of the Board\'s statutory duty to assure the highest degree of safety in air transportation."
Whereupon, petitioner's pilot rating was revoked. The findings of the Board were unanimous. Three of the members, constituting a majority, held that the Examiner's order of suspension should be cancelled and Captain Specht's airline transport rating revoked and so ordered; whereas, two concurring and dissenting members of the Board believed that suspension of Captain Specht's airline transport pilot rating for a reasonable time would constitute an appropriate remedial and corrective action.
The record indicates that on the flight in question the TWA Constellation captained by the petitioner took off from LaGuardia Airport, New York, at 9:55 a. m. on January 29, 1957, for St. Louis, Missouri, under instrument flight rules. Four minutes later, also under instrument flight rules, a Capital Viscount, a faster plane, left LaGuardia for Chicago. The two craft were to fly the same airway as far as Erie, Pennsylvania. Both had requested a flying altitude of 16,000 feet but were initially directed to fly at lower altitudes. TWA at 14,000 and Capital at 12,000 feet. Shortly after leaving LaGuardia Capital was authorized to fly at 16,000 feet and went to that altitude. Shortly thereafter, at 10:25 a. m. petitioner called TWA radio and asked the company to find out "why Capital F31 out after us and off after us was assigned our preferred altitude". At 10.27¼ a.m. petitioner asked the control tower for an altitude of 18,000 feet. He was advised that there was traffic above him and was asked if he could fly under visual flight rules, to which he gave a negative response. A transcript of the recorded conversations thereafter among the petitioner, as captain of TWA-19, the control tower and the captain of Capital-31, and which is not questioned, follows:
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