DocketNumber： 96-1551
Filed Date： 12/24/1996
Status： Precedential
Modified Date： 9/21/2015
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
____________________
No. 96-1551
CANDACE A. QUINN,
Petitioner,
v.
DAVID R. HINSON, Administrator,
FEDERAL AVIATION ADMINISTRATION,
Respondent.
____________________
ON PETITION FOR REVIEW OF AN ORDER
OF THE NATIONAL TRANSPORTATION SAFETY BOARD
____________________
Before
Boudin, Circuit Judge, _____________
Aldrich, Senior Circuit Judge, ____________________
and Lynch, Circuit Judge. _____________
____________________
Thomas C. Halloran on brief for petitioner. __________________
Robert P. Vente and Kathleen Yodice, Acting Manager, Appellate ________________ _______________
Branch, Office of the Chief Counsel, Federal Aviation Administration,
on brief for respondent.
____________________
December 19, 1996
____________________
ALDRICH, Senior Circuit Judge. Candace A. Quinn _____________________
(hereinafter petitioner), seeks review of the National
Transportation Safety Board's affirmance of an order of the
Federal Aviation Administration ("FAA"), suspending her
commercial pilot's license for forty-five days. We affirm.
I. Background __________
A. Facts _____
Petitioner is a certified flight instructor
employed by a fixed base operator at the Beverly,
Massachusetts airport. In addition to flight instruction
duties, she flies a daily morning Metro Traffic Reporting
flight. On the day in question, she performed her regular
traffic flight. Later that morning, her employer asked her
to make a ferry flight to Lawrence, Massachusetts,
approximately twelve miles northwest, in a plane she had
never operated. Petitioner did not hesitate because she was
"just used to going up [t]here and not having any problems
. . . ."
Shortly after her departure from Beverly,
petitioner contacted Lawrence Automatic Terminal Information
Service ("ATIS") and was informed that the weather was
suitable for flying under Visual Flight Rules ("VFR").1 A
____________________
1. Visual Flight Rules, see 14 C.F.R. 91.151-159, govern ___
procedures for flight in "VFR" conditions. In general, VFR
conditions are those where the pilot can see minimum required
distances and utilize visual navigation techniques.
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few minutes later, she tried to contact Lawrence Air Traffic
Control ("ATC") and found both radios inoperative. At about
the same time, she noticed snow showers to the north in the
direction of Lawrence airport. Unable to make contact with
Lawrence ATC she ultimately turned away from the weather.
It appears that at this point petitioner had lost
track of where she was. Instead of heading back toward
Beverly, she testified that she "didn't know the exact
heading [she] took but it must have been a heading of south
. . . ." While on this southerly heading, she steadily
descended, watched for traffic, worked on her radios and
tried to "calm" herself.
Petitioner eventually managed to establish radio
contact with Lawrence ATC and was "shocked" to learn she was
twenty miles south of her intended flight path -- at an
elevation of only 700 feet, three miles north of Logan
Airport -- thus flying in Class B controlled airspace2
without authorization. At the urgent request of a Logan air
traffic controller, Lawrence ATC radioed petitioner to
contact Logan ATC which then provided her with vectors back
to Lawrence. As a result of this unauthorized foray into
Class B air space, Logan controllers were forced to shut down
____________________
2. Class B controlled airspace surrounds the nation's
busiest airports. It generally ranges from the surface to
altitudes as high as 10,000 feet and requires Air Traffic
Control clearance before entry.
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runways, delay departing flights and divert arriving flights
on final approach. The written record does not reflect that
petitioner ever informed Lawrence ATC or Logan controllers of
her radio problems.3
After landing at Lawrence, petitioner contacted the
Boston Terminal Radar Approach Control ("TRACON") Area
Manager. When asked what happened, she replied:
I got kind of discombobulated
because I entered a snow shower and none
of my radios seemed to be working. I was
getting wrong information . . . I ran
into a little bit of difficulty . . . I
got disoriented. I have an instrument
rating . . . [b]ut I'm not current . . .
I'm actually a certified flight
instructor and this is the scary part
. . . I just . . . got disoriented and I
guess I thought I knew where I was going
and then when I found out that I didn't
have the runway or airport in sight then
I knew I had a problem . . . if anyone
had told me it would happen to me I would
never [have] believed it . . . I'm
probably going to be in very big trouble.
Three weeks later, petitioner submitted a written report to
the Logan FAA Flight Standards Field Office in which she
acknowledged that "perhaps [she] could have done more to
prevent incurring Boston's airspace." With the burden being
on her, this was an understatement.
____________________
3. Petitioner did testify that after making contact with
Lawrence Air Traffic Control, she reported her radio
problems. She also testified that she told Logan controllers
of her avionics difficulties. However, neither transcript of
tapes routinely kept by both authorities contained any
confirmation of this.
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B. Procedural History __________________
On March 29, 1994, the FAA issued the final amended
order suspending petitioner's commercial pilot certificate.
The order found petitioner guilty of three violations of
Federal Aviation Regulations ("FAR"), 14 C.F.R. 1.1 et __
seq. Specifically, she was charged with operating her ____
aircraft within Class B airspace without authorization, see ___
14 C.F.R. 91.131(a)(1), and over a congested area of a city
below an altitude of 1,000 feet. See 14 C.F.R. 91.119(b). ___
She was also charged with operating her aircraft carelessly
or recklessly so as to endanger the life or property of
another. See 14 C.F.R. 91.13(a). ___
Petitioner filed a notice of appeal with the
National Transportation Safety Board ("NTSB"), pursuant to 49
C.F.R. Part 821, Subpart I. A hearing was held on August 29,
1995, before an Administrative Law Judge ("ALJ"), who
affirmed the FAA order in its entirety. Petitioner then
filed a notice of appeal with the full NTSB which denied the
appeal and upheld the ALJ's decision. We have jurisdiction
under 49 U.S.C. 1153.
II. Discussion __________
Under the Administrative Procedure Act ("APA"), 5
U.S.C. 706(2)(A), we are required to give NTSB decisions
"generous deference on review," Echo, Inc. v. Hinson, 48 F.3d __________ ______
8, 11 (1st Cir. 1995), affirming unless the decision was
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"arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with the law." Id. (citation omitted). We ___
accept factual conclusions by the NTSB if they are supported
by substantial evidence, Twomey v. Nat'l Transp. Safety Bd., ______ ________________________
821 F.2d 63, 67 n.5 (1st Cir. 1987); 49 U.S.C. 1153(b)(3),
while reviewing questions of law de novo.
Petitioner does not dispute that she committed
multiple FAR violations, maintaining, instead, that she was
excused from compliance under 14 C.F.R. 91.3(b), which
provides that "[i]n an in flight emergency requiring
immediate action, the pilot in command may deviate from any
rule of this part to the extent required to meet that
emergency." The NTSB and the ALJ considered this affirmative
defense and rejected its application because the emergency
was of petitioner's own making. We agree. See, e.g., ___ ____
Chritton v. Nat'l Transp. Safety Bd., 888 F.2d 854, 861 (D.C. ________ ________________________
Cir. 1989) (emergency defense rejected where pilot
encountered deteriorating weather conditions and failed to
execute a 180 degree turn). It is beyond dispute that upon
encountering snow showers in her path, petitioner could
simply have turned around and returned to Beverly airport.
Instead, she panicked and blundered into classified airspace,
endangering many lives, including her own.
Petitioner contends that contrary to the
requirements of the APA, the ALJ's decision did not contain a
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"recitation of factual evidence" nor "an analysis thereof to
support the ultimate findings of fact which support the
conclusions of law." See 5 U.S.C. 557(c). The ALJ, ___
however, specifically found that petitioner was "confused and
disoriented" and stated:
[I]f there was an emergency --
Respondent's counsel says there was an
emergency -- it was an emergency of her
own making and she certainly didn't tell
anyone during, before or afterwards that
such an emergency existed . . . I do not
find there was an emergency, really, as
such on the part of the pilot.
While this passage is not included in the ALJ's formal
recitation of findings of fact and conclusions of law, we
find it to be adequately articulated and providing sufficient
support for the rejection of the emergency defense.
Petitioner also maintains that the findings of
material fact by the ALJ and upheld by the NTSB are not
supported by substantial evidence as required under 5 U.S.C.
706(2)(E). Substantial evidence is "such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion." Chritton, 888 F.2d at 856 (citations omitted). ________
Under the substantial evidence test, we "determine whether
the agency . . . could fairly and reasonably find the facts
as it did." Id. (citations omitted). "An agency conclusion ___
may be supported by substantial evidence even though a
plausible alternative interpretation of the evidence would
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support a contrary view." Throckmorton v. Nat'l Transp. ____________ ______________
SafetyBd., 963F.2d 441,444 (D.C.Cir. 1992)(citation omitted). _________
After a close review of the record, we hold that
the findings of the ALJ are supported by substantial
evidence. First, as regards the rejection of the emergency
defense, there was testimony by an FAA expert which
established that petitioner should not have attempted to fix
her radios if doing so would result in a loss of ground
reference points. Radios are not required for aircraft
flying in VFR conditions during the day. See 14 C.F.R. ___
91.205(b). Moreover, the expert witness testified that
even if petitioner had lost sight of her ground reference
points and therefore could not engage in "dead reckoning,"4
she still had use of her magnetic compass or her directional
gyroscope which would have alerted her that she was turning
south toward Logan.
Substantial evidence supports the threshold of
findings of FAR violations. Petitioner in her testimony
admitted her ultimate conclusion that she "was probably
headed south while . . . trying to fix the radio," that she
was "probably" within three miles of Logan when contact was
made and that she "kept descending thinking it was going to
get better." She should have known immediately. Although
____________________
4. "Dead reckoning" is a basic navigational method using
compass, time, distance and headings.
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she couldn't remember going as low as 700 feet, the FAA
introduced a radar plot confirming the low altitude. We need
go no further. The decision of the NTSB is affirmed.
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