Chaille v. NTSB

Opinion

USCA1 Opinion

October 29, 1993      [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ___________________

No. 93-1001

BRUCE F. CHAILLE,

                                     Petitioner,

                                          v.

                        NATIONAL TRANSPORTATION SAFETY BOARD,

                                     Respondent.

__________________

                          PETITION FOR REVIEW OF AN ORDER OF
                         NATIONAL TRANSPORTATION SAFETY BOARD

___________________

                                        Before

                               Selya, Boudin and Stahl,
                                   Circuit Judges.
                                   ______________

                                 ___________________

               Bruce F. Chaille on brief pro se.
               ________________
               Peter J. Lynch,  Manager, Susan S. Caron,  Attorney, Federal
               ______________            ______________
          Aviation  Administration,  and   National  Transportation  Safety
          Board, on brief for respondents.

__________________

                                  __________________

Per Curiam.    Petitioner seeks review of  an order
                      __________

            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

____________________

            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.

                                         -2-

("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

____________________

            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. 
                         ______________________________

                    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
                         ___________________
                 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)

                                         -3-

issue  was  whether,  in light  of  the  evidence, petitioner

            should be absolved of the  violation by virtue of the Coleman
                                                                  _______

            doctrine.  Administrator  v. Coleman, 1 N.T.S.B.  229 (1968).
                       _____________     _______

            In Coleman  the NTSB held that a pilot  at the controls had a
               _______

            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

____________________

                 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
            _____________     _______
            NTSB LEXIS 176 at **2-3 (Aug. 12, 1992).

                                         -4-

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
            _____________     _______

            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.
             _______

                      The   NTSB,   on  the   other   hand,   viewed  the

            applicability of Coleman differently: 
                             _______

                 It is clear from Coleman  and the cases that follow
                                  _______
                 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
            _____________    _______

            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
                _______

            departure  from its  own prior  holdings in  Coleman and  two
                                                         _______

            later  cases, Administrator v. Thomas, 3 N.T.S.B. 349 (1977),
                          _____________    ______

            and Administrator  v. Crawford, 1986  NTSB LEXIS 246  (May 8,
                _____________     ________

            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
                                          ____    ____

            (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.
                          ________    ____

            1989) (quoting Bowman  Transp. Inc. v.  Arkansas-Best Freight
                           ____________________     _____________________

            System, Inc., 419 U.S. 281, 286 (1974)).  
            ____________

                      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
               _______     ______

            reason to  doubt the  accuracy of  the clearance  information

-7-

relayed by the  officer operating the radio.   In Coleman the
                                                              _______

            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
            ______

            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
                         ________

            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
                                                      _______

            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

____________________

            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
                            _______
            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.     

                                         -8-

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.
                                         _____________    _____

            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
            _____    ____

            has  delegated to  the agency  the  responsibility to  ensure

            flight safety and avert preventable tragedies.  Hite v. NTSB,
                                                            ____    ____

            991 F.2d at 20; Johnson v. NTSB, 979 F.2d 618, 623  (7th Cir.
                            _______    ____

            1992);  Rochna v.  NTSB, 929  F.2d 13,  14 (1st  Cir.), cert.
                    ______     ____                                 _____

            denied, 112 S. Ct. 305  (1991).  This court cannot substitute
            ______

            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,

-9-

capricious,  an  abuse  of discretion,  or  otherwise  not in

            accordance with the law."  5 U.S.C.   706;  Hite, 991 F.2d at
                                                        ____

            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,
                                      ____________    ____

            443  (D.C. Cir.  1992); McCarthney  v. Busey, 954  F.2d 1147,
                                    __________     _____

            1153 (6th Cir. 1992);  Janka, 925 F.2d at 1151; Chritton, 888
                                   _____                    ________

            F.2d  at 856;  cf. Chirino  v. NTSB,  849 F.2d  1525, 1529-30
                           ___ _______     ____

            (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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