Quinn v. Pena

Opinion

USCA1 Opinion

[NOT FOR PUBLICATION]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.



                                         -8-



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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