U.S. v. Frontier Airlines, Inc.

• Decision Date: 14 October 1977
• Docket Number: No. 76-1524,76-1524
• Citation: 563 F.2d 1008
• Parties: UNITED STATES of America and Daniel J. Peterson, Regional Counsel, Federal Aviation Administration, Rocky Mountain Region, Appellees, v FRONTIER AIRLINES, INC. and A.L. Feldman, President, Frontier Airlines, Inc., Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1008

563 F2d 1008

UNITED STATES of America and Daniel J. Peterson, Regional Counsel, Federal Aviation Administration, Rocky Mountain Region, Appellees, v FRONTIER AIRLINES, INC. and A.L. Feldman, President Frontier Airlines, Inc., Appellants.

No. 76-1524.

United States Court of Appeals, Tenth Circuit.

Argued Aug. 5, 1977.

Decided Oct. 14, 1977.

Raymond J. Turner, Denver, Colo., of Dawson, Nagel, Sherman & Howard, Denver, Colo. (Barbara J. Kelley, Denver, Colo., with him on the brief), for appellants.

Barbara L. Herwig, Atty., Appellate Sec., Civ.Div., Dept. of Justice, Washington, D.C. (Rex E. Lee, Asst. Atty.Gen., Washington, D.C., James L. Treece, U.S. Atty., Denver, Colo., Ronald R. Glancz, Atty., Appellate Sec., Civ.Div., Dept. of Justice, John E. Marsh and Pery A. Kupietz, Attys., Federal Aviation Administration Washington, D.C., with her on the brief), for appellees.

Before SETH, HOLLOWAY and BARRETT, Circuit Judges.

SETH, Circuit Judge.

This action began with an application by the Federal Aviation Agency to enforce a subpoena duces tecum. 49 U.S.C. Secs. 1354 and 1484(c). The subpoena was directed to Frontier Airlines and its president. It sought to require the production of the tapes from a flight data recorder which was used on a Frontier plane on a specified flight. The tapes were sought in connection with an investigation by the FAA of possible violations of Federal Aviation Regulations. There was no accident or other incident which caused a termination of the flight.

The trial court enforced the subpoena as sought by the FAA. Frontier has taken this appeal.

The record shows that the FAA received a report from a Yellowstone National Park employee that a Frontier plane had flown close to Mount Sheridan. This complaint was made known to Frontier, and it was requested to provide detailed data as to the particular flight. This was so provided. The FAA also requested the tapes from the flight recorder, but Frontier refused to furnish them. The company, as the reason for refusal, stated that the flight recorder data was for accident investigation and not for administrative investigations relating to compliance with general flight regulations.

The FAA notified the pilot that it was contemplated that his flying certificate would be suspended for forty-five days. The FAA repeated its request for the recorder tapes, but Frontier refused and the FAA then sought to have the subpoena enforced by the United States District Court. An order of investigation had issued.

The challenge to the subpoena is on the ground that the regulation upon which the subpoena is based or sought does not authorize the FAA to use the data for the purpose it intends. It is urged that the regulation contemplates the installation of a flight recorder, and the use of the data it develops, for purposes different from that for which the data is here sought to be used. Frontier thus urges that the regulations permit the data to be used only for accident investigations. The FAA argues that a regulation as to its general authority to investigate controls, and this would permit the data to be used in a nonaccident investigation.

It is apparent that there are imposed limitations on the subpoena power of administrative agencies. See Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614. The court must determine whether the agency is acting within its authority, and as to this the agency has the burden to so demonstrate. United States v. Powell, 379 U.S. 48, 85 S.Ct. 248, 13 L.Ed.2d 112; Securities & Exchange Comm'n v. Brigadoon Scotch Distributing Co., 480 F.2d 1047 (2d Cir.). The second element which must be shown is that the data sought is "reasonably relevant" to the inquiry. United States v. Morton Salt Co., 338 U.S. k632, 70 S.Ct. 357, 94 L.Ed. 401.

We have held on several occasions that the agencies here concerned have broad authority. French v. CAB, 378 F.2d 468 (10th Cir.); Doe v. CAB, 356 F.2d 699 (10th Cir.). See also Moton v. Dow, 525 F.2d 1302 (10th Cir.), but nevertheless when challenged, the scope of authority of the agency must be established.

The parties do not agree upon the scope of the regulations. It is apparent that the wording of the two regulations concerned, the one specifically on flight recorders, and the one on general authority to investigate, do not specifically and expressly meet the issue. The FAA urges that its authority is derived from the general regulation, not restricted by the specific regulation. The wording of each of the two regulations when taken separately is relative clear, but the relationship of one to the other is not. One is specific on a narrow subject, while the other is in the most general terms.

The general inspection regulation is 14 C.F.R. Sec. 121.81(a):

"Each certificate holder shall allow the administrator, at any time or place, to make any inspections or tests to determine its compliance with the Federal Aviation Act of 1958, Federal Aviation Regulations, its operating certificate and operations specifications, or its eligibility to continue to hold its certificate."

The specific regulation as to fight recorders, 14 C.F.R. Sec. 121.343(a), read in part:

"(a) No person may operate a large airplane that is certificated for operations above 25,000 feet altitude or is turbine engine powered, unless it is equipped with one or more approved flight recorders that record data from which the following information may be determined within the ranges, accuracies, and recording intervals specified in Appendix B of this part--..."

This regulation continues to prescribe the data which the recorder must be capable of gathering, (1) and (2)(b), and that the recorder be operated continuously while the plane is in motion. Other technical requirements follow. Also of importance is (c), that the data be kept until the airplane has been operated twenty-five hours of section 1221.359(a) time, and that certain erasures may be made. Subparagraph (d) is quoted hereinafter.

Thus the regulations are clear as to what each purports to cover, but again, no relationship between them is indicated. Thus with this apparent complete independence on the face of the two, we must look elsewhere for an answer to their interaction if there be any.

We should so consider the Basis and Purpose Statement in the regulation as to flight recorders. 14 C.F.R. Sec. 121.343. This should be done both standing alone, and as tested against the notice of intended rule-making to determine its scope and its relationship to the general regulation, 14 C.F.R. Sec. 121.81(a), and to others on the same general subject. See Burlington Northern, Inc. v. ICC, 149 U.S.App.D.C. 176, 462 F.2d 280. The Basis and Purpose Statement was published with the 1957 amendment to section 121.343 on august 9, 1957, at 22 Fed.Reg. 6379. The Statement of Purpose is rather lengthy and is quite specific. It recites that a choice was made as to which aircraft would be required to have flight recorders. The Statement then reads in part (22 Fed.Reg. 6380):

"The Board is of the opinion, however, that in the case of large airplanes certified for use in air transportation above 25,000 feet altitude, a flight recorder should be required for accident investigation purposes and for use in analyzing various incidents, such as extreme vertical accelerations due to turbulence which may occur from time to time in flight but which do not result in accidents, in order to take appropriate precautionary or remedial action. Such airplanes will be operating under conditions with respect to which little operational experience directly applicable to civil transportation exists and the recorder intelligence involving these higher altitudes ... will help materially in making a more accurate determination of the cause of accidents of such aircraft."

The Board also stated that a recording device of sufficient reliability was available, and that it should be used in large aircraft certified for use above 25,000 feet. Reliability was related to the "objectives" of the device. "Objectives" was defined as:

"...[F]or accident investigation purposes and for use in analyzing various incidents, such as extreme vertical accelerations due to turbulence which may occur from time to time in flight but which do not result in accidents, in order to take appropriate precautionary or remedial action."

The statement does not say expressly that the data not be used for other than accident investigations nor does it say that it be Only used for accident investigations. The Statement however must be taken to refer expressly and only to accident investigations and turbulence studies.

The regulation was amended in 1959 to provide a period of retention of the tapes. This period of time will be further referred to herein. The Statement of Basis and Purpose with the amendment in part read (24 Fed.Reg. 8090):

"In promulgating this regulation, the period of time for retention of the recorder tapes was not included in the rule as it was assumed that air-carriers would retain these records for a sufficient length of time for the investigation of accidents and incidents which may have occurred during the time of flight."

Notice of proposed rulemaking to amend the regulation again was published on January 22, 1969 (34 Fed.Reg. 941). This notice gave particular attention to the technical capabilities of the recorders, but again as these factors related to accident investigation, and to provide that the data recorded for a period of time before the accident be retained. It was also to consider means to prevent destruction of the tapes in the event of an accident and retrieval under certain difficult conditions. In any event, the notices were directed to the relationship between the data and accident investigation. The regulation was so amended in 1970, and of course a Basis and Purpose Statement was included (35 Fed.Reg.13191). This Statement generally followed...