USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1627
ECHO, INC.,
Petitioner,
v.
DAVID R. HINSON, ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION,
Respondent.
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ON PETITION FOR REVIEW OF AN ORDER
OF THE NATIONAL TRANSPORTATION SAFETY BOARD
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Before
Torruella, Chief Judge,
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Coffin, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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James G. Goggin with whom Carl E. Kandutsch was on brief for
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petitioner.
James W. Tegtmeier with whom Kathleen A. Yodice was on brief for
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respondent.
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February 9, 1995
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COFFIN, Senior Circuit Judge. On the evening of November
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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
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A. Facts
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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
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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
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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.
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2 Most notably, the ALJ rejected the allegation that Rafter
commenced the flight with insufficient fuel.
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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
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Initially, we note that Board decisions are given generous
deference on review: they must be affirmed unless "arbitrary,
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capricious, an abuse of discretion, or otherwise not in
accordance with law." 5 U.S.C. 706(2)(A); Hite v. National
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Transp. Safety Bd., 991 F.2d 17, 20 (1st Cir. 1993). Moreover,
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"`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
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Transp. Safety Bd., 979 F.2d 618, 622 (7th Cir. 1992).
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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.
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3 The statute was revised in 1994 without substantive
change. It now appears at 49 U.S.C. 44709(b).
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Compliance and Enforcement Program, FAA Order No. 2150.3A 206.b
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(Feb. 21, 1992). This standard has governed Board decisions for
some time. E.g., Administrator v. Guy Am. Airways, Inc., 4
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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.
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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,
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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
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the cases it cites do not support the existence of the higher
standard. For example, Carey v. Civil Aeronautics Bd., 275 F.2d
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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
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(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
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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
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F.2d 723, 727 (6th Cir. 1989).
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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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