Echo, Inc. v. FAA

• Court: Court of Appeals for the First Circuit
• Decided: February 9, 1995
• Docket: 94-1627
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

        No. 94-1627

                                     ECHO, INC.,

                                     Petitioner,

                                          v.

           DAVID R. HINSON, ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION,

                                     Respondent.

____________________

                          ON PETITION FOR REVIEW OF AN ORDER
                     OF THE NATIONAL TRANSPORTATION SAFETY BOARD
                                 ____________________

                                        Before

                                Torruella, Chief Judge,
                                           ___________
                            Coffin, Senior Circuit Judge,
                                    ____________________
                               and Cyr, Circuit Judge.
                                        _____________

                                 ____________________

            James  G. Goggin  with  whom Carl  E. Kandutsch  was on  brief for
            ________________             __________________
        petitioner.
            James W. Tegtmeier with whom Kathleen A.  Yodice was on brief  for
            __________________           ___________________
        respondent.

____________________

                                   February 9, 1995
                                 ____________________



COFFIN, Senior Circuit  Judge.  On  the evening of  November
                       _____________________

          19, 1993, an emergency  medical evacuation helicopter operated by

          petitioner  Echo, Inc. (Echo) ran out of fuel, lost engine power,

          and crashed into  Casco Bay  off the Maine  coast, killing  three

          passengers.    The  Federal  Aviation  Administration  (the  FAA)

          charged the pilot and Echo with violating several aviation safety

          regulations   and   issued  emergency   orders   revoking  Echo's

          certificate  to operate as an  air carrier, a  sanction upheld by

          the  National  Transportation Safety  Board  (the  Board).   Echo

          petitions for review.  We affirm.

                                    I. Background
                                       __________

          A.   Facts
               _____

               Echo is a Maine  corporation established in 1985 by  John G.

          Rafter, Jr.  to provide commercial flight  services by helicopter

          in  the Portland area.   Rafter is Echo's  president, director of

          operations, director of maintenance,  and chief pilot.   In 1993,

          Rafter founded another  company, Airmed  Skycare, Inc.  (Airmed),

          which was  devoted  exclusively to  emergency medical  services.1

          Airmed  owned its  own helicopter for  air ambulance  flights and

          employed flight nurses  and paramedics.  It  contracted with Echo

          to  supply the  pilots for  its  flights.   In  the afternoon  of

          November  19, 1993, Airmed received a call requesting that a burn

          victim be flown from Ellsworth, Maine to  Portland for treatment.

          With Rafter  as pilot,  and flying  under  Echo's certificate  to

                              
          ____________________

               1   Rafter  was   also   Airmed's  president   and  majority
          shareholder.

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operate  as an air carrier, the helicopter took off from Portland

          to Ellsworth.

               The weather conditions at  the time of takeoff were,  in the

          words  of  Echo, "marginal,"  because  of  fog  and  light  rain.

          Nevertheless,  Rafter concluded  that  the flight  could be  made

          safely under  Visual Flight Rules  (VFR), and he  took off.   The

          trip to Ellsworth was successful.  The medical team picked up the

          burn  victim,  and  the   helicopter  began  its  return  flight.

          Approximately fifty miles northeast of Portland, however, weather

          conditions deteriorated.   The helicopter, then  travelling at an

          altitude of  approximately 800  feet, entered the  clouds; Rafter

          was  no longer  able  to navigate  visually.   He  requested  and

          received Instrument Flight Rules  (IFR) handling from air traffic

          control at the Brunswick Naval Air Station,  which instructed him

          to climb  above the clouds  to 3,000 feet.   Rafter climbed  to a

          higher  altitude and  proceeded to  navigate by  the helicopter's

          instruments.

               It is  clear that,  under normal conditions,  neither Rafter

          nor  the helicopter  was authorized  to operate  under IFR.   The

          operations  specifications  on  Echo's  air  carrier  certificate

          authorized  Echo  to  operate  on  "VFR  only."     Further,  the

          helicopter did  not contain  all the  equipment required for  IFR

          operation.  Finally, Rafter did  not have the recent  operational

          experience  necessary for  IFR operation.   Echo  maintains that,

          because of the emergency  situation caused by weather conditions,

          operation under IFR was justified pursuant to 14 C.F.R.   91.3(b)

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("In an in-flight emergency requiring immediate action, the pilot

          in  command may deviate from any rule  to the extent necessary to

          meet that  emergency.").  Rafter  did not  declare an  emergency,

          however,  or advise air traffic that he, Echo, and the helicopter

          were all  unauthorized  to operate  under IFR,  conduct he  later

          ascribed to "pilot ego."  

               Not  having   been  advised   otherwise,  the  air   traffic

          controller  treated  the  flight  as  normal  IFR  traffic.    At

          approximately  8:15 p.m.,  after tracking  the flight  for thirty

          minutes, Brunswick Naval  Air Station passed  it off to  Portland

          Approach  Control.    Meanwhile,  at the  higher  elevation,  the

          helicopter  was  encountering  strong headwinds  and  turbulence,

          causing slower progress to  Portland than Rafter had anticipated.

          Air traffic  in  Portland noticed  that  the helicopter  was  not

          maintaining its  assigned course or altitude,  which Rafter later

          attributed to the demands of piloting under IFR and in turbulence

          when  the helicopter was not properly equipped for IFR operation.

          Six or seven minutes  after contacting Portland Approach Control,

          Rafter  noticed that  he was  running low  on fuel.   He  advised

          Portland air  traffic and requested a  direct instrument approach

          to runway 29.  Air traffic gave him top  priority, but it was too

          late.  Rafter  soon reported  a loss  of fuel  pressure, and  the

          engine  lost power.   About  eight miles  north of  Portland, the

          helicopter crashed into Casco  Bay.  The burn patient,  paramedic

          and nurse all died.  Rafter survived the crash.

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This  was  not the  first  time Echo  had  violated aviation

          safety regulations.   In 1987,  Echo was found  to have  employed

          unqualified pilots, operated a helicopter with a litter  that had

          not  been inspected  and approved,  and flown  over water  with a

          helicopter  that was not equipped with pop-out floats.  For these

          breaches,  Echo's  operating certificate  was  suspended for  270

          days, 255 days of which were waived pending one year of operation

          without violations.

          B.   Procedural History
               __________________

               After the crash, the FAA accused Echo and Rafter of numerous

          regulatory violations  and  issued emergency  orders  immediately

          revoking  Rafter's  pilot  certificate  and  Echo's  air  carrier

          certificate.     A   full  evidentiary   hearing  ensued.     The

          Administrative  Law   Judge  (ALJ)   upheld  revocation  of   the

          certificates, accepting certain of  the allegations of wrongdoing

          but  rejecting others.2  Echo  and Rafter appealed  to the Board.

          The Board reduced the  revocation of Rafter's pilot's certificate

          to a  180-day suspension, principally based  on its determination

          that  Rafter could  not be  faulted for  his initial  decision to

          accept  the flight  despite  the weather  conditions.   Based  on

          Rafter's  misconduct in  his  capacity as  the  manager of  Echo,

          however, the Board  upheld the revocation  of Echo's air  carrier

          certificate.

____________________

               2  Most notably, the ALJ rejected the allegation that Rafter
          commenced the flight with insufficient fuel.

                                         -5-



In particular,  the Board  found that the  emergency weather

          conditions that  developed did not excuse  the various regulatory

          violations caused by  the helicopter's sustained operation  under

          IFR.   The Board acknowledged  that a pilot  may deviate from any

          regulation to respond to an in-flight emergency, but "only to the

          extent  required to meet that  emergency."  14  C.F.R.   91.3(b).

          It found  that, once Rafter was  no longer able  to operate under

          VFR, he should have  asked air traffic for assistance  in landing

          as soon as possible.  Instead, without advising air traffic of an

          emergency,  or  that  he,  his  aircraft,  and  his  company were

          unauthorized  to  fly  under  IFR,  he  obtained  IFR  clearance,

          accepted a higher altitude, and proceeded to fly  toward Portland

          for another thirty minutes.   The Board found that Rafter, in his

          capacity  as the manager  of Echo, had  thus displayed  a lack of

          disposition to comply with safety regulations:

               [A] serious operational misjudgment that may be excusable as
               an   aberrant   occurrence   for   an   individual   becomes
               indefensible when that pilot is, also, the person in control
               of  a  carrier's  operations,   for  an  air  carrier  whose
               management does  not  adhere unflinchingly  to all  relevant
               operational  standards  does  not  meet  its  obligation  to
               provide  the highest degree of  safety.  We  think that when
               respondent Rafter,  with full knowledge that  neither he nor
               his  aircraft should be operating under IFR, surreptitiously
               chose to disregard,  contrary to numerous requirements,  his
               company's operations specifications and manual by proceeding
               with a  flight he  should have ended,  he demonstrated  that
               respondent  Echo lacks  the compliance  disposition expected
               and demanded of an air carrier.

          Echo now challenges this order.

                                    II. Discussion
                                        __________

               Initially, we  note that Board decisions  are given generous

          deference  on review:  they must  be affirmed  unless "arbitrary,

                                         -6-



capricious,  an   abuse  of  discretion,  or   otherwise  not  in

          accordance with law."   5  U.S.C.   706(2)(A);  Hite v.  National
                                                          ____     ________

          Transp. Safety Bd., 991 F.2d  17, 20 (1st Cir. 1993).   Moreover,
          __________________

          "`the  strong policy concern for  public safety requires that the

          Board   be  given  a   wide  range  of   discretion  in  imposing

          sanctions.'"  Hite, 991  F.2d at 20 (quoting Johnson  v. National
                        ____                           _______     ________

          Transp. Safety Bd., 979 F.2d 618, 622 (7th Cir. 1992).
          __________________

               Echo claims that the Board abused its discretion by revoking

          its  certificate  rather than  issuing  a  lesser sanction.    It

          grounds  this  assertion  upon  the premise  that  revocation  is

          allowed only when  an air carrier engages  in repeated, flagrant,

          or deliberate regulatory violations.

               We disagree.   At the relevant time, the statutory authority

          to  revoke an air  carrier certificate was  found at  49 U.S.C.  

          1429(a), which provided simply  that if, after investigation, the

          Secretary  of  Transportation  "determines  that  safety  in  air

          commerce or air transportation  and the public interest requires,

          [he]  may issue an  order . . .  revoking . .  . [an] air carrier

          operating  certificate."3   As  guidelines for  implementing this

          broad discretion, an FAA order states:

               Revocation  of  a certificate  is  used  as a  remedial
               measure,   when  the   certificate  holder   lacks  the
               necessary  qualifications . . .  .  [It] is appropriate
               whenever the certificate holder's  conduct demonstrates
               a  lack  of  the   care,  judgment  and  responsibility
               required of the holder of such a certificate.  

____________________

               3  The  statute  was  revised in  1994  without  substantive
          change.  It now appears at 49 U.S.C.   44709(b).

                                         -7-



Compliance and Enforcement Program, FAA Order No. 2150.3A   206.b
          __________________________________

          (Feb.  21, 1992).  This standard has governed Board decisions for

          some  time.   E.g.,  Administrator v.  Guy  Am. Airways,  Inc., 4
                        ____   _____________     _______________________

          N.T.S.B. 888, 892 (1983) ("Revocation is reserved for those cases

          in which  putative conduct, whether  safety-related or otherwise,

          demonstrates that  a certificate  holder no longer  possesses the

          requisite  qualifications,  in  terms   of  care,  judgment   and

          responsibility, necessary  for  continued certification.").    We

          recognized this standard in Hite, 991 F.2d at 20.
                                      ____

               Echo  points to language in  a different section  of the FAA

          order  and certain  caselaw  as support  for  its assertion  that

          revocation is appropriate only upon a finding of a pervasive lack

          of qualifications manifested by deliberate, repeated, or flagrant

          regulatory  violations.    The  language it  notes,  however,  is

          nothing  but a list of certain instances when revocation might be

          appropriate;4  the standard itself is as set out above.  Further,
                              
          ____________________

               4 Echo points to   206.b(4) of the FAA order, which states:

               In cases  involving businesses, revocation should  be sought
               whenever   there   is  a   demonstration   of   a  lack   of
               qualifications.   Revocation would probably  be appropriate,
               for example,  in  cases  involving  deliberate  or  flagrant
               violations or the falsification of records.  Revocation also
               would  probably  be  appropriate   in  cases  in  which  the
               certificate  holder  has  committed  the  same   or  similar
               violations  in the  recent  past, or  where the  certificate
               holder no longer  has, or  does not obtain  in a  reasonable
               time, the personnel or equipment to conduct its operation in
               accordance with the [Act] or [federal aviation regulations].

          We  agree  with the  Sixth  Circuit's  observation, made  in  the
          context  of  a challenge  to  an air  carrier's  suspension, that
          listing several instances warranting  a particular sanction "does
          not imply  that other circumstances never  warrant" the sanction.
          Connaire, Inc. v.  Secretary, United States Dep't of Transp., 887
          ______________     _________________________________________

                                         -8-



the  cases it cites  do not support  the existence of  the higher

          standard.   For example, Carey v. Civil Aeronautics Bd., 275 F.2d
                                   _____    _____________________

          518,  522 (1st Cir.  1960), held  that conduct  even on  a single

          flight may justify  revocation of an airman's certificate.  Other

          cited  cases,  while  involving  egregious  misconduct,  do   not

          establish that  such misconduct is a  prerequisite to revocation.

          E.g.,  Administrator v.  Mikesell,  N.T.S.B.  Order  No.  EA-2788
          ____   _____________     ________

          (1988).

               Echo's other arguments  are equally unavailing.   It sees an

          abuse of discretion in the Board's finding that Rafter's  conduct

          during the  flight was relevant  to his qualifications  to manage

          the operations of  the company.  For support, it  points to a few

          decisions involving operational  misconduct by managers  who also

          had  airman's  certificates,  which   held  that,  based  on  the

          particular facts,  sanctions should  relate to the  company's air

          carrier certificate only.  E.g., Administrator v. Diaz-Saldana, 1
                                     ____  _____________    ____________

          N.T.S.B.   1599   (1972)   (inappropriate   to   suspend  airline

          president's  airman certificate for  authorizing company's use of

          an  unairworthy aircraft;  since he  had not  piloted any  of the

          relevant flights, sanction should fall on company alone).

               Here,  however, Rafter was pilot of  a particular flight and

          simultaneously Echo's president, director of operations, director

          of maintenance, and chief pilot.  Assume that a flight facing the

          same  emergency  weather  conditions  radioed in  to  Rafter  for

          guidance,  and  that Rafter,  on the  ground,  told the  pilot to
                              
          ____________________

          F.2d 723, 727 (6th Cir. 1989).

                                         -9-



request IFR  handling without  advising air traffic  control that

          the aircraft,  the pilot,  and the  company were  each prohibited

          from  flying under IFR.  Assume further that Rafter, knowing that

          IFR  was forbidden  for these  reasons, ordered  that  the flight

          continue  under  IFR  for a  full  thirty  minutes.   Under  such

          circumstances, it would hardly  be an abuse of discretion  if the

          Board were to conclude that  Echo showed a lack of  the requisite

          "care,  judgment  and  responsibility  necessary   for  continued

          certification."  So too we find no abuse of discretion  here, for

          Rafter is  not excused from his managerial  misconduct because he

          was piloting the flight at the time.

               Affirmed.
               _________

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