Wagner v. National Transp. Safety Bd.
| Decision Date | 19 June 1996 |
| Docket Number | No. 94-70121,94-70121 |
| Citation | 86 F.3d 928 |
| Parties | 96 Cal. Daily Op. Serv. 4395, 96 Daily Journal D.A.R. 7106 John Edward WAGNER, Petitioner, v. NATIONAL TRANSPORTATION SAFETY BOARD; Federal Aviation Administration, Respondents. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Edwin R. Collins, Harris & Reedhead, San Diego, California, for petitioner.
Edmund J. Averman, III, Federal Aviation Administration, Washington, D.C., for respondents.
Petition for Review of a Decision of the Federal Aviation Administration.
Before: BOOCHEVER, T.G. NELSON and KLEINFELD, Circuit Judges.
Mr. Wagner petitions for review of a National Transportation Safety Board (NTSB) decision suspending his pilot's certificate for ninety days. The main issue is whether a flight can be a "demonstration flight" under Part 91 of the FAA regulations, when a person flying the airplane is considering the purchase, but the paying customer does not know that it is a demonstration flight on which it does not enjoy all the protections of Part 135. We agree with the NTSB that the answer is no.
Sun World International regularly used Desert Airlines to fly its executives from one place to another. Mr. Wagner regularly acted as pilot, usually flying a type of airplane called a Beechcraft King Air. The evening before one such flight, the King Air had mechanical problems. A man named Frost was interested in selling a Learjet, and offered it to Desert Airlines for a free demonstration flight. Mr. Wagner had formerly been certified to fly Learjets, but had let his certification lapse because he was not flying them regularly. He had some interest in buying a Learjet. Mr. Frost, Desert, and Mr. Wagner arranged that the Learjet would be used as a substitute for the King Air, and that this would be a free demonstration flight. Mr. Wagner would fly as copilot.
Executives from Sun World had plans to travel on Desert Airlines the evening that Frost, Desert, and Mr. Wagner made the arrangements for the demonstration flight. Neither Sun World president Mr. Rinella nor the Sun World employee responsible for booking the flight knew anything about these arrangements. They thought they were chartering a commercial air taxi flight as usual. When Mr. Rinella got to the airport and saw the Learjet, he expressed surprise, and said he did not need a jet for the short flight. Mr. Yskamp, the head of Desert Airlines, and Mr. Wagner were there, but did not tell Mr. Rinella that this was a free demonstration flight to look over the Learjet. Instead, Mr. Rinella was told that he would be charged the same rate he usually paid for the King Air, because the King Air was not available:
Well, I heard at that time that the King Air was not available, this plane was being substituted but that the-not to be alarmed because the rate on the airplane would be identical to that for the King Air and that Desert Air was absorbing the difference.
....
I had no knowledge of the demonstration flight.
Subsequently, Desert Airlines sent Sun World an invoice for the flight. Mr. Rinella initially refused to pay it, because it did not have a date, and it listed the King Air aircraft instead of the Learjet. After Desert satisfied him that the amount was the same as he would have paid for the King Air, he authorized payment on the invoice to Desert Airlines. A copy of the invoice was not furnished to Mr. Wagner's counsel until the day before his hearing, although he had been advised that there was such an invoice. The evidence established without contradiction that neither Mr. Wagner nor Mr. Frost, the owner of the Learjet, charged or was paid for the flight. There is no explanation in the record of whether the FAA disciplined Desert Airlines, which arranged the flight with the passengers and billed them for it, or just Mr. Wagner, the unpaid copilot.
All of the facts cited above were supported by substantial evidence on the record as a whole, and none of them was contradicted. Thus, as far as the prospective seller of the Learjet was concerned, this was a demonstration flight at no charge so that Mr. Wagner could evaluate the plane for possible purchase, and determine whether his frequent customers would like it. But as far as Mr. Rinella and the Sun World employee who booked the flight knew, this was a commercial flight for which they would be billed. They knew nothing about its being a free test flight to demonstrate the airplane. Desert Airlines seems to have been of two minds, operating a free test flight so far as Mr. Frost, the Learjet's owner, and Mr. Wagner, the copilot and prospective purchaser, were concerned, but an ordinary commercial flight for hire with respect to its customer, Sun World International.
This is an Administrative Procedure Act review of a petition, so we "shall hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); Howard v. FAA, 17 F.3d 1213 (9th Cir.1994). Purely legal questions are reviewed de novo. Howard, 17 F.3d at 1215.
The Administrative Law Judge had required exchange of all exhibits fifteen days before trial. The attorney for the FAA did not obtain Desert Airlines' invoice to Sun World until a week before trial, Monday, March 16. A week earlier, she had told Mr. Wagner's lawyer that among the exhibits would be a copy of the invoice, but he did not fully understand what she was talking about, because he did not realize that Desert Airlines had sent an invoice. She told him that she would send it to him immediately as soon as she received it. She had the attorney's fax number.
The FAA's lawyer got the invoice in the late afternoon on Monday, March 16. She did not send it to Mr. Wagner's lawyer that afternoon. She was out of the office and did not have it sent Tuesday or Wednesday. She was back in the office Thursday, but did not cause the invoice to go out that day either. Instead, she sent it ordinary mail (not fax) on Friday, March 20. It got to Mr. Wagner's lawyer Monday, the day before the Tuesday hearing. Mr. Wagner objected to its admission as evidence, but the Administrative Law Judge let it in anyway. Mr. Wagner, however, did not seek a continuance to rebut the evidence. Mr. Wagner argues that admitting the invoice was arbitrary and capricious.
There appears to have been no good reason why the FAA's attorney could not have subpoenaed the invoice in plenty of time to produce it as required by the deadline in the prehearing order. Nor was there any apparent excuse for not faxing it to Mr. Wagner's lawyer during the week before the hearing, when she had it and he did not. As the case would look to the attorneys the week before the hearing, the invoice would likely be important, because it would prove that the flight had been for a charge, not for free.
But as the evidence came out at the hearing, and as the FAA decided the case, the invoice did not matter. We therefore need not decide...
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