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USCA1 Opinion
October 29, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1001
BRUCE F. CHAILLE,
Petitioner,
v.
NATIONAL TRANSPORTATION SAFETY BOARD,
Respondent.
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PETITION FOR REVIEW OF AN ORDER OF
NATIONAL TRANSPORTATION SAFETY BOARD
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Before
Selya, Boudin and Stahl,
Circuit Judges.
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Bruce F. Chaille on brief pro se.
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Peter J. Lynch, Manager, Susan S. Caron, Attorney, Federal
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Aviation Administration, and National Transportation Safety
Board, on brief for respondents.
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Per Curiam. Petitioner seeks review of an order
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of the National Transportation Safety Board ("NTSB")
reversing a decision by the Administrative Law Judge ("ALJ").
Petitioner contends that the NTSB's decision arbitrarily
disregarded its own precedent, and was inconsistent with
Federal Aviation Regulations. For the reasons that follow,
we affirm the NTSB's decision.
Petitioner, a licensed transport pilot, was
operating the controls of a DC-9 on September 29, 1987, as
second-in-command of Eastern Flight 603, when it landed at
William B. Hartsfield Atlanta International Airport. The
plane's captain was operating the radios at the time.
Although the aircraft was cleared by Air Traffic Control
("ATC") to land on Runway 26 left, petitioner instead landed
on Runway 26 right without seeking or receiving an amended
clearance. While no injuries were reported, testimony at the
subsequent hearing showed that the Eastern flight landed
perpendicular to, and "right by [the] nose" of Delta flight
657, which had been cleared to take off from Runway 26 right.
On October 18, 1988, the Administrator of the
Federal Aviation Administration ("Administrator") issued an
order suspending petitioner's pilot's certificate for twenty
days1 for violation of Federal Aviation Regulations
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1. The penalty was waived because petitioner had reported
the incident promptly through the Aviation Safety Reporting
Program, but the judgment remains on his record.
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("FAR"), 14 C.F.R. 91.9, 91.87(h) (1987).2 Petitioner
appealed the order to the NTSB and a hearing was held before
an Administrative Law Judge. The ALJ reversed the
Administrator's order, accepting petitioner's defense that he
had rightfully relied on the direction of the captain of the
aircraft. The Administrator appealed and the full board of
the NTSB reversed the ALJ's decision, affirming the
Administrator's suspension order.
At the hearing, the parties stipulated to most of
the operative facts, including the aircraft's clearance to
land on Runway 26 left, its acknowledgment of the clearance,
and its wrongful landing on Runway 26 right.3 The remaining
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2. 14 C.F.R. 91.9, 91.87 (1987) (currently 14 C.F.R.
91.13(a)), 91.129(h)) state in relevant part:
91.9 Careless or reckless operation.
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No person may operate an aircraft in a careless
or reckless manner so as to endanger the life or
property of another.
91.87 . . . .
(h) Clearances required. No person may, at any
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airport with an operating control tower, operate an
aircraft on a runway or taxiway, or takeoff or land
an aircraft, unless an appropriate clearance is
received from ATC . . .
3. The parties stipulated to the following facts relating to
clearance and acknowledgment for use of Runway 26 left
("26L"):
[1] [D]uring the approach, the terminal arrival
radar H (TAR-H) controller assigned the flight to
Runway 26L, and that Eastern 603 acknowledged the
transmission, [2] the arrival radar V (AR-V)
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issue was whether, in light of the evidence, petitioner
should be absolved of the violation by virtue of the Coleman
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doctrine. Administrator v. Coleman, 1 N.T.S.B. 229 (1968).
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In Coleman the NTSB held that a pilot at the controls had a
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right to rely on his copilot's confirmation of the pilot's
incorrect understanding of an ATC clearance.
At the time of the landing here, as we have said,
the captain of the aircraft was operating the radios.
Petitioner, at the controls, was also monitoring the radio
transmissions through an overhead speaker, in conformance
with FAA and airline safety procedures. The overhead speaker
was in working order and petitioner had no difficulty hearing
the transmissions. The ATC audiotape of the radioed
exchanges, stipulated by the parties to be accurate, reflects
that during the approach the plane was instructed four times
to land on Runway 26 left. Each of these instructions was
separately acknowledged by the captain, who twice repeated it
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controller cleared Eastern 603 for a visual
approach to Runway 26L and that the clearance was
acknowledged, [3] the ATL automated terminal
information system (ATIS) was transmitting
information that Runway 26L was the appropriate
runway in use for landing, and that the information
was received by Eastern 603, [4] the local tower
controller cleared Eastern 603 to land on Runway
26L and that Eastern 603 acknowledged the
clearance, [5] other aircraft landing at the time
were being cleared to land on Runway 26L.
Administrator v. Chaille, N.T.S.B. Order No. EA-3643, 1992
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NTSB LEXIS 176 at **2-3 (Aug. 12, 1992).
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verbatim. While petitioner initially testified that the he
did not personally overhear an ATC clearance for Runway 26
left, he later admitted that he did hear the correct
clearance, simultaneously with the Delta transmission, and
became alarmed. Background evidence showed that 98-99% of
all prior landings, and 100% of petitioner's prior landings
at the subject airport, had been on Runway 26 right, not
Runway 26 left. The ALJ summarized the relevant events as
follows:
Petitioner obviously, even though he was wrong,
through force of habit thought he was to land on 26
right. When he saw and heard the communication
relative to the Delta airliner that was waiting on
the taxiway on 26 right, and then heard they were
to land on 26 left, then [petitioner] queried [the]
Captain . . . as to where [they] were supposed to
land. The testimony is clear and unequivocal, the
Captain told him to land on 26 right which he, the
First Officer, proceeded to do.
Administrator v. Chaille, Dkt. No. SE 9696, N.T.S.B. Oral
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Initial Dec. at 151 (March 30, 1990).
The ALJ concluded that while the case was "close,"
under the circumstances petitioner should be given the
"benefit of the doubt" and excused from verifying the
clearance with [ATC].
Ordinarily I would buy that [petitioner should have
called ATC to verify the clearance], but here they
were well on their way to a few thousand feet above
the runway. And in addition to that, it is obvious
that the Eastern pilots had flown together on many
occasions. There was great admiration and respect
on the part of [petitioner] for [the] Captain . . .
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Chaille, N.T.S.B. Oral Initial Decision at 151.
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The NTSB, on the other hand, viewed the
applicability of Coleman differently:
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It is clear from Coleman and the cases that follow
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it that if the pilot not handling radio
communications does not hear or understand a
transmission, he may, in certain circumstances,
rely on the advice of the pilot working the radio
as to the transmission's content. However, the
Administrator argues correctly, we think, that this
should not be extended to situations where the
pilot who seeks to rely on the radio operator has
reason to doubt the accuracy of the advice he is
given by the other pilot.
. . . .
In the interest of safety, the degree of
confusion in the cockpit that necessarily results
when the pilot operating the controls has heard two
conflicting characterizations of the landing
clearance, should prompt a request for
clarification from ATC. Force of habit and respect
are not factors to be considered by a pilot
determining something as important as a landing
clearance.
Administrator v. Chaille, N.T.S.B. Order No. EA-3643, 1992
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NTSB LEXIS 176 at **4, 6 (Aug. 12, 1992).
Petitioner argues that the NTSB's failure to apply
the Coleman defense to the facts of his case was an arbitrary
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departure from its own prior holdings in Coleman and two
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later cases, Administrator v. Thomas, 3 N.T.S.B. 349 (1977),
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and Administrator v. Crawford, 1986 NTSB LEXIS 246 (May 8,
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1986). While the facts in each case are unique, petitioner
points out that, in all three cases, the NTSB determined that
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a pilot operating an aircraft had reasonably relied on the
officer operating the radio.
"Under our very narrow standard of review, we must
uphold the [NTSB's] decision if it is not `arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with the law.'" Hite v. NTSB, 991 F.2d 17, 20
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(1st Cir. 1993) (quoting 5 U.S.C. 706(2)(a)). "We must
defer to the wisdom of the agency provided its decision is
reasoned and rational, and even `uphold a decision of less
than ideal clarity if the agency's path may reasonably be
discerned.'" Chritton v. NTSB, 888 F.2d 854, 856 (D.C. Cir.
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1989) (quoting Bowman Transp. Inc. v. Arkansas-Best Freight
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System, Inc., 419 U.S. 281, 286 (1974)).
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Applying this standard, we think the NTSB
reasonably rejected petitioner's interpretation of the
agency's prior decisions. As respondent's brief contends,
the facts in each of the three cited cases differ in a
critical respect from those presented by petitioner's case.
In the present case, the NTSB concluded that radio
transmissions which petitioner personally overheard provided
reason for him to question the accuracy of the captain's
statement. Petitioner therefore should have confirmed the
correct runway clearance with the controller. By contrast,
in Coleman and Thomas the pilot at the controls knew of no
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reason to doubt the accuracy of the clearance information
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relayed by the officer operating the radio. In Coleman the
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pilot incorrectly understood a single radio transmission
relating to altitude. He relied on his copilot's
confirmation, in circumstances where the practice was to
avoid further radio communication with departure control. In
Thomas, the pilot's reliance on a first officer's information
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provided an affirmative defense where, although the ATC
instruction was transmitted, it was not received or heard by
any of the three officers in the cockpit at the time.
Likewise, in Crawford, the pilot had no known reason to doubt
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that his first officer had accurately followed instructions
by relaying a crucial communication to the ATC. Thus, the
NTSB's decision here not to extend the Coleman affirmative
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defense to absolve a pilot who heard at least one of the four
correct transmissions but failed to follow through, was based
on a fair reading and distinction between this case and the
agency's own precedents.4
We also reject petitioner's argument that the
NTSB's decision arbitrarily imposed upon him an individual
burden of communication that violated other regulations, and
could not have been safely accomplished under the
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4. Respondent attached to its brief copies of several other
recent NTSB opinions where, in analogous circumstances, the
NTSB rejected a Coleman or similar defense, finding that the
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pilot's reliance on another officer or crew member was not
justified. While we need not discuss these other cases here,
we wish to acknowledge the thorough, careful and persuasive
analysis of the issues presented in respondent's brief.
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circumstances. The two regulations cited by petitioner are
inapposite. The first, 14 C.F.R. 121.533(e) (1987), is
inapplicable on its face. The other, 14 C.F.R. 91.3(a)
(1987), as interpreted by the NTSB, does not give the Captain
final authority to override an ATC clearance in the absence
of an in-flight emergency. Administrator v. Jesch, N.T.S.B.
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Order No. EA-3425, slip op. at 6 (1991). No in-flight
emergency or hazard was claimed here. Petitioner testified,
moreover, that when he heard the transmission that led him to
query the captain, he was ready to conduct a go-around,
presumably to prevent a wrong landing. In these
circumstances, the NTSB could fairly conclude that petitioner
had time to safely obtain a clarification from ATC.
The agency's interpretation of safety regulations
is entitled to a high degree of deference from this court.
Janka v. NTSB, 925 F.2d 1147, 1151 (9th Cir. 1991). Congress
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has delegated to the agency the responsibility to ensure
flight safety and avert preventable tragedies. Hite v. NTSB,
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991 F.2d at 20; Johnson v. NTSB, 979 F.2d 618, 623 (7th Cir.
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1992); Rochna v. NTSB, 929 F.2d 13, 14 (1st Cir.), cert.
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denied, 112 S. Ct. 305 (1991). This court cannot substitute
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its own judgment for that of the agency, especially where the
issue, the relative safety of a pilot's in-flight operations,
is peculiarly within the agency's expertise. We review only
to determine whether the NTSB's decision is "arbitrary,
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capricious, an abuse of discretion, or otherwise not in
accordance with the law." 5 U.S.C. 706; Hite, 991 F.2d at
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20. We see no abuse here.
Finally, there is no merit to petitioner's
contention that the NTSB mischaracterized both his hearing
testimony and the ALJ'S initial decision. Petitioner's
testimony contained inconsistencies, a circumstance mirrored
in the ALJ's oral summary of the evidence. The NTSB noted
the inconsistencies and, contrary to petitioner's
characterization, followed the ALJ's finding that, in effect,
petitioner's admissions were more credible than his denials.
Based on our own reading of the transcript, the NTSB's
characterization of the evidence was fair and reasonable; and
it was supported by substantial evidence. Agency factual
findings will not be disturbed on appeal so long as they rest
on substantial evidence. Throckmorton v. NTSB, 963 F.2d 441,
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443 (D.C. Cir. 1992); McCarthney v. Busey, 954 F.2d 1147,
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1153 (6th Cir. 1992); Janka, 925 F.2d at 1151; Chritton, 888
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F.2d at 856; cf. Chirino v. NTSB, 849 F.2d 1525, 1529-30
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(D.C. Cir. 1988) (upholding NTSB'S reversal of ALJ's
credibility determination as not arbitrary or capricious).
Accordingly, the petition for review is denied, and
the order below is affirmed.
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Document Info
Docket Number： 93-1001
Filed Date： 10/29/1993
Precedential Status： Precedential
Modified Date： 9/21/2015