CLARK, Circuit Judge.
This is a petition to review the order of respondent, Civil Aeronautics Board
(hereinafter referred to as the “Board”), made pursuant to section 609 of the Civil Aeronautics Act, as amended
(hereinafter referred to as the “Act”), which revoked the pilot certificate with airline transport pilot rating of .the petitioner, Charles R. Sisto, and provided that he should not thereafter be issued any pilot certificate or rating which would permit him to carry passengers for hire.
At the hearing from which the order now under consideration resulted, petitioner, although given an opportunity, failed to present any evidence in his own behalf and rested his case, relying on certain specific objections which we will discuss below. The examiner found against Sisto who thereupon assigned various errors to the proceedings and the examiner’s report and requested oral argument before the Board. Two members heard the argument, and thereafter three of the members, in a unanimous decision, issued the order now complained of. The essence of petitioner’s appeal is that he was denied a fair hearing in certain material respects.
The events out of which this proceeding arose involved an unexplained and sudden plunge of a commercial airliner while on a scheduled flight from Dallas, Texas, to Los Angeles, California. As a result of this near tragedy the Board instituted an investigation, and, because of the facts thus uncovered, a complaint was filed against petitioner wherein it was alleged that on or about October 8, 1947, Sisto, as captain in command of an American Airlines four engine Douglas DC-4, while on a scheduled flight, demonstrated a disregard for the principles of safety with respect to the operation of aircraft and a lack of discretion and good judgment necessary for the holder of an airman’s certificate with airline transport pilot rating, in that he carelessly or recklessly operated said aircraft, endangering the lives and property of others, contrary to the provisions of section 60.102
of the Civil Air Regulations, by engaging and then disengaging the gust lock mechanism thereby causing the plane to perform half an outside loop. The complaint, after further alleging that he failed to keep his seat belt fastened, contrary to regulations, prayed that his airman’s certificate with airline transport pilot rating be revoked or suspended.
Petitioner filed an answer which in effect amounted to a general denial and requested a hearing. On December S, 1947, he received notice that the hearing would be held on December 17, 1947. But on or about December 12, 1947, another notice dated December 9, 1947, was received changing the date to December 19, 1947. In the same envelope was a further notice that a motion would be made to amend the complaint in four respects at the commencement of the hearing. This notice contained a general statement of the na
ture of the 'amendments.
Nothing further transpired until December 19, 1947, when the case came on to be heard, and the aforementioned motion to amend the complaint was made. Petitioner objected to the amendments on the ground that, although according to the respondent’s regulations
he was entitled to have them at least fifteen days before hearings thereon,"he had had only seven days’ notice. He also objected on the ground that they were irrelevant and prejudicial. The amendments, however, were allowed. But only three of them, two setting out prior violations of regulations
and one alleging that petitioner failed to have the necessary medical certificate,
are complained of by Sisto.
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CLARK, Circuit Judge.
This is a petition to review the order of respondent, Civil Aeronautics Board
(hereinafter referred to as the “Board”), made pursuant to section 609 of the Civil Aeronautics Act, as amended
(hereinafter referred to as the “Act”), which revoked the pilot certificate with airline transport pilot rating of .the petitioner, Charles R. Sisto, and provided that he should not thereafter be issued any pilot certificate or rating which would permit him to carry passengers for hire.
At the hearing from which the order now under consideration resulted, petitioner, although given an opportunity, failed to present any evidence in his own behalf and rested his case, relying on certain specific objections which we will discuss below. The examiner found against Sisto who thereupon assigned various errors to the proceedings and the examiner’s report and requested oral argument before the Board. Two members heard the argument, and thereafter three of the members, in a unanimous decision, issued the order now complained of. The essence of petitioner’s appeal is that he was denied a fair hearing in certain material respects.
The events out of which this proceeding arose involved an unexplained and sudden plunge of a commercial airliner while on a scheduled flight from Dallas, Texas, to Los Angeles, California. As a result of this near tragedy the Board instituted an investigation, and, because of the facts thus uncovered, a complaint was filed against petitioner wherein it was alleged that on or about October 8, 1947, Sisto, as captain in command of an American Airlines four engine Douglas DC-4, while on a scheduled flight, demonstrated a disregard for the principles of safety with respect to the operation of aircraft and a lack of discretion and good judgment necessary for the holder of an airman’s certificate with airline transport pilot rating, in that he carelessly or recklessly operated said aircraft, endangering the lives and property of others, contrary to the provisions of section 60.102
of the Civil Air Regulations, by engaging and then disengaging the gust lock mechanism thereby causing the plane to perform half an outside loop. The complaint, after further alleging that he failed to keep his seat belt fastened, contrary to regulations, prayed that his airman’s certificate with airline transport pilot rating be revoked or suspended.
Petitioner filed an answer which in effect amounted to a general denial and requested a hearing. On December S, 1947, he received notice that the hearing would be held on December 17, 1947. But on or about December 12, 1947, another notice dated December 9, 1947, was received changing the date to December 19, 1947. In the same envelope was a further notice that a motion would be made to amend the complaint in four respects at the commencement of the hearing. This notice contained a general statement of the na
ture of the 'amendments.
Nothing further transpired until December 19, 1947, when the case came on to be heard, and the aforementioned motion to amend the complaint was made. Petitioner objected to the amendments on the ground that, although according to the respondent’s regulations
he was entitled to have them at least fifteen days before hearings thereon,"he had had only seven days’ notice. He also objected on the ground that they were irrelevant and prejudicial. The amendments, however, were allowed. But only three of them, two setting out prior violations of regulations
and one alleging that petitioner failed to have the necessary medical certificate,
are complained of by Sisto.
Petitioner argued before the Board and now urges here, as grounds for reversal, that the two amendments relating to his previous violations of safety rules should not have been admitted by the examiner because they were irrelevant and therefore their only purpose was to prejudice the examiner against petitioner. He also claims that, because of this prejudice he did not present his own case. This objection is based on a misconception of the nature of the hearing provided. It seems to be petitioner’s idea that, because respondent’s regulations provide for an assignment of errors to the examiner’s proceedings and a review thereof by the Board,
all the requisites of a full hearing must be satisfied at the examiner’s hearing. This is not the true concept. When there is an appeal to the Board, the findings, conclusions, and orders of the examiner are only tentative or interlocutory in nature.
And in such cases it is the orders of the Board which are final
and appealable.
Thus as long as the requirements of a full hearing are satisfied at some time prior to the issuance of a final order, there can be no complaint on that ground.
Therefore, the requirement that “no order shall issue except upon the consideration of the whole record * * * and as supported by and in accordance with reliable, probative and substantial evidence,”
must mean ithat where there is reliable, probative and substantial evidence, any findings, conclusions, and orders based thereon will be sustained even though unreliable, non-probative and unsubstantial evidence was allowed in by the examiner.
The admission of irrelevant or incompetent matter before an administrative agency does not constitute reversible error, if there is substantial evidence in the record to sustain the agency’s determination.
This being the case prejudice cannot be alleged to the admission of improper evidence unless it be shown that the Board relied on it. Now these amendments of which the petitioner complains were evidentiary in nature. Their purpose was to give notice of the fact that the Administrator would request the Board to take official notice of such facts and to consider them in determining the action to be taken under section 609 of the Act.
But the Board itself in its findings, conclusions and orders took no notice thereof and in no way relied on them or even mentioned them. It found substantial grounds
aliunde
for supporting its order. Assuming, therefore,
ar-
guendo,
that these amendments were improper and irrelevant, the petitioner still cannot predicate error on their admission. And even less can he claim prejudice when he cannot demonstrate it.
Since this is the case it is not necessary for us to consider the other errors assigned to the admission of these two amendments.
Petitioner also complains of the amendment, alleging that he failed to have the requisite medical certificate prior to and on the date of the accident,
on the ground that he received improper notice and was given no opportunity to reply thereto. Although he objected to its admissibility on the ground that he had received improper and inadequate notice, at no time during the course of the hearing did he request a continuance in order to answer the charges contained therein. He argues, however, that because the Civil Air Regulations provide that amendments may he made by either party as a matter of course at any time more than fifteen .days prior to the date of the hearing, and that after that time amendment shall be allowed at the discretion of the examiner but that in such case the examiner shall allow the party affected thereby a reasonable opportunity to reply thereto and to request a hearing ¡thereon,
it contemplates the furnishing of copies of substantial amendments more than fifteen days before taking evidence thereon in every case. A reading of the regulation clearly indicates that such was not contemplated, at least where the examiner is exercising his discretion in allowing them, as here. The regulation does not limit his discretion as to time by any express or implied provisions, and we cannot say from reading it''that such was contemplated. Petitioner, however,' ■ says that even so the examiner should have allowed a reasonable time to reply in accordance with the regulation; but it is well settled that the granting of a continuance is a matter resting within the discretion of a count,
and no abuse thereof can be urged unless' a request for a continuance is made.
But even assuming, as petitioner maintains, that the statute requires the examiner to grant a continuance on his own motion in order to give a party an opportunity to reply to an amendment, such a requirement in the absence of a more specific mandate could only operate in a case where he felt that the complaining party should be allowed time. Such were not the facts here. Ait least a week before the hearing petitioner had notice that this amendment was to be made. If indeed it was inadequate as petitioner claims because it failed to state the regulations alleged to have been violated or to include the important date of October 8, 1947, he still cannot complain now because he failed to take advantáge of his administrative remedy viz., make a motion for a more definite and certain statement.
There was no error in the admission of this amendment.
Further error is assigned in claiming that the findings are not supported 'by substantial evidence because there is no direct evidence that the petitioner
disengaged
the gust lock, as alleged in the complaint, and stated in the Board’s findings. Petitioner, however, admits that he engaged the gust lock, and it is the opinion of this court that the gist of the offense was the engaging, not the disengaging.
The gust lock is a device designed to lock the control surfaces of an aeroplane while it is on the ground in order to prevent damage from buffeting by the winds or other causes. It locks and holds the ailerons, elevators, and rudders in a neutral position thereby rendering it impossible to manipulate those surfaces.
Under no circumstances is it supposed to be used while the plane is in the air,
and for anyone to do so while the ship is in flight demonstrates a reckless disregard for the principles of safety and for the lives and property of others.
A narration of the instant accident can best 'illustrate what may happen when a gust lock is engaged while a plane is in flight.
The aircraft had started into a gradual climb. Beck, the trainee pilot, was at the controls being checked out on his first flight in this type of plane. Logan, the co-pilot, was in his seat. Sisto, who was captain in command, was in a jump seat just behind and to the right of the pilot’s-seat. Beck following normal procedure in such cases sought to compensate for the climb by adjusting the trim tabs.
These trim tabs operate in exactly the opposite way from the control surfaces,'that is to say, when the pilot wants to bring the nose of the plane down he adjusts the trim tabs so they turn up. This in turn forces the main control surfaces down thus leveling off the ship. But the gust lock was engaged, and, therefore, they operated as auxiliary elevators, causing the plane to climb even more steeply, until the gust lock was disengaged and freedom of movement was restored to the control surfaces. As soon as this happened the trim tabs resumed their normal .function, and the re-suit was a sudden sharp nosing over of the aircraft and 'thereafter a precipitous dive earthward. Luckily, when the plane went into its dive, Beck and Sisto who did not have their seat belts fastened, on being thrown to the ceiling of the ship along with the forty-nine passengers and two stewardesses, struck the controls which feathered the propellors on three engines thereby reducing the power of the dive so that Logan' whose seat belt was securely fastened was able to bring the plane under control after a drop of several thousand feet.
Obviously, it is immaterial to the offense charged that the gust lock might have been disengaged by someone other than the petitioner. Any reasonable man under similar circumstances, on discovering that the gust lock was engaged while the plane was in flight, would immediately disengage it. That is a foreseeable factor and not an efficient intervening cause which wo.uld relieve petitioner from the consequences of his act.
The proximate cause of the accident was the engaging of the gust lock. Therefore, it is not necessary for this court to discuss whether or not there was substantial evidence to support the finding that Sisto disengaged it. It is immaterial whether or not he did so. The allegation in the complaint and the finding of fact in this respect are unnecessary to the ultimate conclusion that Sisto lacked the requisite discretion to hold a pilot’s certificate, and we hold that even if the record was in fact devoid of any evidence on the matter, it is harmless error.
Finally petitioner contends that the order of the Board is void for lack of jurisdiction due to the -fact that a statutory quorum did not hear oral argument. The
statute provides that “three members shall constitute a quorum of the Board.”
It further provides that
“
* * * In all cases heard by an examiner or a single member the Board shall hear or receive argument on request of either party.”
Only two members were present at oral argument, a fact which was brought to petitioner’s attention at the time but to which no objection was made. Petitioner now argues that the word “hear” means that in order that the quorum requirement be satisfied, there must be actual presence of at least three members at the presentation of oral argument when it is requested. He further argues that the word “receive” applies only to those arguments which are submitted on brief where no oral discussion is requested. We do not so construe the Act. In the plain words of the statute the Board may “hear
or
receive” argument. This does not bind them to do it in any particular manner. They may do it in either one of the two ways stated, viz., hear it or receive it. If a quorum does not hear, the quorum requirement may still be met by having the requisite additional number receive. The record demonstrates that this is exactly what was done in this case before final decision was made. A quorum either heard or received argument either by being physically present or by reading the record and transcript. The statutory requirement was satisfied. Petitioner cannot complain of this practice.
A careful reading of the record brings us to the conclusion that petitioner was afforded a full and fair hearing. There is no evidence on his behalf in the record. If he had an explanation he should have made it. He did not, and the record as it now stands presents a clear case for support of the administrative action taken.
Petition dismissed.
Circuit Judge PRETTYMAN concurs in the result.