United States v. Harper

• Citation: 335 F. Supp. 904
• Decision Date: 04 February 1972
• Docket Number: Civ. A. No. 71-2850-W.
• Parties: UNITED STATES of America v. John M. HARPER.
• Court: U.S. District Court — District of Massachusetts

335 F. Supp. 904

UNITED STATES of America v. John M. HARPER.

Civ. A. No. 71-2850-W.

United States District Court, D. Massachusetts.

December 8, 1971.

Order February 4, 1972.

James N. Gabriel, U. S. Atty., Wayne B. Hollingsworth, Asst. U. S. Atty., for plaintiff.

Robert M. Murphy, Boston, Mass., for plaintiff.

OPINION

WYZANSKI, District Judge.

This is an action brought by the United States to obtain a mandatory injunction requiring Harper to surrender any airman certificate and any airman medical certificate now held by him. Jurisdiction is claimed under 49 U.S.C. § 1487(a) and 28 U.S.C. § 1345.

The Government's complaint proceeds on the basis that the Federal Aviation Administration, acting by an officer to whom authority was properly delegated, issued, pursuant to 49 U.S.C. §§ 1429 and 1485(a), a valid order to Harper directing him to surrender such certificates, that Harper has failed to comply with the order as required by 49 U.S.C. § 1485(c), and that this court, by virtue of 49 U.S.C. § 1487(a), has jurisdiction to enforce obedience to the administrative order.

On the Government's motion for immediate injunctive relief, this court held a hearing December 6, 1971. Without objection five exhibits were introduced at that hearing and both parties then rested. They agreed that this was all the evidence in the case, and that the court should enter a final judgment without any further hearing.

The administrative order sought to be enforced is said to be authorized by § 609 of the Federal Aviation Act of 1958, 72 Stat. 779, 49 U.S.C. § 1429 which, so far as relevant provides that:

"The Administrator may, from time to time * * * reexamine any civil airman. If, as a result of any such * * * reexamination, or if, as a result of any other investigation made by the Administrator, he determines that safety in air commerce or air transportation and the public interest requires, the Administrator may issue an order amending, modifying, suspending, or revoking, in whole or in part, any type certificate, production certificate, airworthiness certificate, airman certificate, air carrier operating certificate, air navigation facility certificate, or air agency certificate. Prior to amending, modifying, suspending, or revoking any of the foregoing certificates, the Administrator shall advise the holder thereof as to any charges or other reasons relied upon by the Administrator for his proposed action and, except in cases of emergency, shall provide the holder of such a certificate an opportunity to answer any charges and be heard as to why such certificate should not be amended, modified, suspended, or revoked. Any person whose certificate is affected by such an order of the Administrator under this section may appeal the Administrator's order to the Board and the Board may, after notice and hearing, amend, modify, or reverse the Administrator's order if it finds that safety in air commerce or air transportation and the public interest do not require affirmation of the Administrator's order. In the conduct of its hearings the Board shall not be bound by findings of fact of the Administrator. The filing of an appeal with the Board shall stay the effectiveness of the Administrator's order unless the Administrator advises the Board that an emergency exists and safety in air commerce or air transportation requires the immediate effectiveness of his order, in which event the order shall remain effective and the Board shall finally dispose of the appeal within sixty days after being so advised by the Administrator. The person substantially affected by the Board's order may obtain judicial review of said order under the provisions of section 1486 of this title, and the Administrator shall be made a party to such proceedings."

November 8, 1971, Markotic, Acting Chief, Special Projects and Appellate Branch, of the Federal Aviation Administration, Department of Transportation, issued an "Emergency Order of Revocation" addressed to Harper. The text of the order commences with 26 numbered paragraphs said to be "based on reports of investigation." The order then concludes as follows:

"By reason of the foregoing, the Administrator finds that safety in air commerce or air transportation and the public interest require the revocation of any airman certificate and any airman medical certificate held by you. Moreover, the Administrator finds that an emergency exists and safety in air commerce or air transportation and the public interest require the immediate effectiveness of this order.

NOW, THEREFORE, IT IS ORDERED, pursuant to the authority contained in Sections 609 and 1005(a) of the Federal Aviation Act of 1958, as amended, that the second class airman medical certificate issued to you on 31 May 1971 and any other airman medical certificate in your possession, your Airline Transport Pilot Certificate No. 48431, your Mechanic Certificate No. M-16488, your Ground Instructor Certificate No. 867-2-40, and any other airman certificate held by you be and hereby are revoked on an emergency basis, said revocation to be effective as of the date of this order. You are directed to surrender immediately the revoked certificates by mailing them to Matthew Z. Markotic, Acting Chief, Special Projects and Appellate Branch, Federal Aviation Administration, Office of the General Counsel, 800 Independence Ave. S. W., Washington, D. C. 20591."

The court assumes, as indeed the parties do, and as Exhibit 3 indicates, that the Administrator had delegated to Markotic the power to issue the order here sought to be enforced. But the critical question is whether, it being transparent that Markotic issued the order without giving Harper, as holder of certificates covered by the order, an opportunity to answer any charges and be heard as to why such certificate should not be revoked, and without giving him an opportunity to challenge the evidence turned up by Markotic in his investigation or to offer his own evidence, an enforcement of the order would deprive Harper of the due process of law guaranteed by the Fifth Amendment.

The Government correctly points out that § 609 of the...