Stern v. Butterfield

• Decision Date: 24 March 1976
• Docket Number: No. 75--1875,75--1875
• Citation: 529 F.2d 407
• Parties: Ray STERN, Petitioner, v. Alexander P. BUTTERFIELD, Administrator, Federal Aviation Administration, and National Transportation Safety Board, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 407

529 F.2d 407

Ray STERN, Petitioner, v. Alexander P. BUTTERFIELD, Administrator, Federal Aviation Administration, and National Transportation Safety Board, Respondents.

No. 75--1875.

United States Court of Appeals Fifth Circuit.

March 24, 1976.

Rehearing Denied April 19, 1976.

Morris I. Jaffe, Dallas, Tex., for petitioner.

Peter R. Laylin, Counsel, Office of the Chief Counsel, F.A.A., National Transportation Safety Bd., Leonard Schaitman, Karen K. Siegel, Mark N. Mutterperl, Appellate Sec., Civil Div., Dept. of Justice, Washington, D.C., for respondent.

Petition for Review of an Order of the Federal Aviation Administration (Texas Case).

Before WISDOM, GEWIN and AINSWORTH, Circuit Judges.

AINSWORTH, Circuit Judge:

Petitioner Ray Stern seeks review of an order issued by the National Transportation Safety Board ('N.T.S.B.' or 'Board') which revoked his pilot certificate. After carefully reviewing the record and considering the various arguments by petitioner, we conclude that the revocation order must be affirmed.

In a letter dated September 20, 1973, the Federal Aviation Administration notified Stern that it was investigating complaints that his aircraft had been violating various federal regulations governing acrobatic maneuvers. Stern replied in a letter dated September 25, denying only one of the allegations in the September 20 letter. After receiving a report of additional violations on September 23, the Administrator of the FAA, without further notice or a hearing, issued an emergency order dated September 28, 1973, revoking Stern's certificate. The revocation was based on findings that Stern had violated the following provisions of the Federal Aviation Regulations: 14 C.F.R. § 91.65(a)(1975) (operation of an aircraft so close to another aircraft as to create a collision hazard); 14 C.F.R. § 91.71(c)(1975) (operating an aircraft in acrobatic flight within a control zone); 14 C.F.R. § 91.71(d) (1975) (operation of an aircraft in acrobatic flight below an altitude of 1,500 feet above the surface); and 14 C.F.R. § 91.9 (1975) (operation of an aircraft in a careless or reckless manner so as to endanger the life or property of another).

Pursuant to the statutory review procedure, see 49 U.S.C. § 1429(a), Stern filed a petition with the N.T.S.B. for review of the revocation order. A hearing was held before an N.T.S.B. administrative law judge at the beginning of December 1973. Briefs were filed in February of 1974, and in a written decision dated May 20, 1974, the revocation was sustained. The Administrative law judge based his decision solely on violations that had occurred in August of 1973. Charges relating to the September 23 offenses were dismissed on the ground that Stern had received on notice of them prior to issuance of the revocation order. Subsequently, on November 25, 1974, the Board reversed that portion of the administrative law judge's decision which dismissed the charges stemming from the September 23 incident, holding that the controlling statutory provisions, 49 U.S.C. §§ 1429(a) and 1485(a), did not require notice when the Administrator had determined that an emergency existed. The case was remanded to the administrative law judge who thereupon entered findings that Stern had performed aerobatics within a control zone on September 23 and that his conduct at that time was careless and reckless. The law judge again sustained the revocation order, this time on the basis of both the August and the September occurrences. The final order of the Board adopting the findings thus augmented and sustaining the Administrator's order of revocation was issued on February 7, 1975.

The scope of our review on appeal is defined by 49 U.S.C. § 1486(e), which provides that '(t)he findings of fact by the Board or the Administrator, if supported by substantial evidence, shall be conclusive.' Petitioner maintains that the Board's order was not supported by substantial evidence, and should accordingly be reversed and set aside. His arguments in this regard, in that they challenge the weight attached to evidence adverse to his position or credibility choices made by the administrative law judge, misconceive the scope of our review under the substantial evidence test. As an appellate court reviewing an administrative order, it is not our function to reevaluate the weight of evidence or to reexamine credibility choices made by the finder of fact. See, e.g., Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456, 467 (1951); Air East, Inc. v. National Transportation Safety Board, 3 Cir., 1975, 512 F.2d 1227, cert. denied, 423 U.S. 863, 96 S.Ct. 122, 46 L.Ed.2d 92 (1975); Nadiak v. Civil Aeronautics Board, 5 Cir., 1962, 305 F.2d 588, 592, cert. denied, 372 U.S. 913, 83 S.Ct. 729, 9 L.Ed.2d 722 (1963).

In this case, the administrative law judge was careful to indicate the evidence he relied upon with regard to each violation. At the December hearing, Clifford L. Reavis, a flight instructor, testified that while he was giving flight instructions on August 21, 1973 in the vicinity of Air Park and Addison Airports, near Dallas, Texas, a red Pitts Airbank aircraft came out of a vertical dive and passed within 300 feet of the aircraft he was flying. Because of the safety hazard thus created, it was necessary for Reavis to seize control of the aircraft, which was being flown by his student. He also testified that he observed the Pitts performing acrobatic maneuvers at less than 1,500 feet above the surface and within the control zone surrounding Air Park. Reavis' student confirmed this testimony. An Air Traffic Controller at Addison Airport who received Reavis' report concerning the incident established that the aircraft in question was Stern's. Another flight instructor, Warren B. Maupin, testified that he had observed Stern's red and white Pitts Special performing aerobatics within the Addison Control Zone and executing rolls 1,100 feet above the Air Park runway on August 24, 1973. Maupin's testimony was corroborated by the student flying with him at the time. Friends of Stern testified to the contrary, but the administrative law judge resolved this conflict in he evidence against Stern. Maupin also testified that he saw a Pitts plane doing aerobatics in the control zone over Air Park on September 23, 1973, and that he had immediately reported this to the Addison Control Tower. Again, there was independent corroboration of Maupin's testimony. After landing on September 23, Stern learned that there had been a report of a Pitts Special doing aerobatics over Air Park. He confronted Maupin in his office at the Airport Flying School and threatened to sue Maupin if any difficulties resulted. Stern contends that evidence provided by Maupin should be discounted because it was prompted by this incident. This contention overlooks the fact that the violations had been reported before the confrontation in Maupin's office, and that Stern's actions there merely made it possible for Maupin to link Stern to the plane he had seen performing improper aerobatics. As the administrative law judge said with regard to this incident,

If the respondent had not confronted Maupin after the flight, it is doubtful that his identity would have become known. Both Maupin and Mrs. Humphries (the corroborating witness) appeared honest and forthright in this testimony. . . . The writer is convinced that the testimony of Maupin as to the location of the red Pitts Special on this date, as corroborated by Mr. Humphries, is completely credible.

In view of the testimony which has been outlined here and which substantiates the occurrence of the violations with which Stern was charged, we conclude that there was substantial evidence in the record to support revocation of his certificate.

Petitioner next contends that the revocation order was void because the Administrator failed to comply with statutory notice requirements of 49...