                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-5-2002

Ickes v. FAA
Precedential or Non-Precedential: Precedential

Docket No. 01-2897




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PRECEDENTIAL

       Filed August 5, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 01-2897

DON R. ICKES,
       Petitioner

v.

FEDERAL AVIATION ADMINISTRATION,
       Respondent

On Petition for Review From the
Federal Aviation Administration
(Admin. No. 01-030026)

Submitted Under Third Circuit LAR 34.1(a)
May 7, 2002

Before: SLOVITER, AMBRO and ROSENN, Circuit Ju dges

(Filed August 5, 2002)

OPINION OF THE COURT

PER CURIAM.

The petitioner, Don R. Ickes ("Ickes"), seeks review of an
Emergency Cease and Desist Order (the "Emergency Order")
issued by the respondent, the Federal Aviation
Administration (the "FAA"). The FAA issued the Emergency
Order to bring Ickes and his aircraft into compliance with
federal regulations and to prevent the flight of aircraft




during a weekend of fly-by demonstrations that Ickes
planned to conduct on his property in Osterburg,
Pennsylvania. Ickes claims that the FAA abused its
authority in issuing the Emergency Order because he flies
only ultralight vehicles, which, unlike aircraft, are not
subject to federal certification and registration
requirements. He also contends that the circumstances
surrounding his air show did not give rise to an emergency
so as to justify the issuance of a cease and desist order
with immediate effect. We hold that the FAA did not err in
subjecting Ickes and his aircraft to regulation or in
determining that his air show posed an exigent danger
warranting an immediate response. We will, therefore,
affirm the Emergency Order.

I.

Ickes resides in Osterburg, where he owns a thirty-eight
acre tract of land that he refers to as both "Ickes Airport"
and "Ickes Recreational Park." Ickes claims to be an
experienced aviator, and he has operated an airfield on the
Osterburg property since at least 1987. According to Ickes,
he uses the airfield solely for the recreational purpose of
flying ultralight vehicles. An "ultralight vehicle" is defined in
relevant part as one that

       (a) Is used or intended to be used for manned
       operation in the air by a single occupant; . . . and

       (e) If powered:

       (1) Weighs less than 254 pounds empty weight . . . ;

       (2) Has a fuel capacity not exceeding 5 U.S. gallons;
       [and]

       (3) Is not capable of more than 55 knots calibrated
       airspeed at full power in level flight. . . .

14 C.F.R. S 103.1 (2002). Unlike "aircraft," which can be
operated only if registered under 49 U.S.C. S 44103 (1997),
see 49 U.S.C. S 44101; 14 C.F.R. S 47.3, vehicles that meet
the definition of an ultralight presently are not required to
be registered or to bear markings of any type, are not
required to meet airworthiness certification standards, and

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their operators are not required to meet any aeronautical
knowledge, age, or experience requirements or to have
airman or medical certificates. 14 C.F.R. S 103.7.1 Ickes’
particular contention in this proceeding is that a two-seat
"Challenger II" airplane that he has flown from his property
for many years qualifies as an ultralight vehicle.

The FAA, however, has repeatedly cited Ickes for his
failure to register the Challenger II as an aircraft and for
other regulatory infractions. Specifically, on February 25,
1992, the FAA’s Eastern Regional Counsel assessed Ickes a
civil penalty of $3,000 after finding that he piloted the
Challenger II to and from Altoona-Blair County Airport (a
short distance from Ickes’ property) without an
airworthiness certificate, registration, or pilot certificate.
The FAA expressly found that the Challenger II must be
registered as an aircraft. Notably, Ickes did not seek agency
or judicial review of this order.

On May 6, 1999, the FAA’s Eastern Regional Counsel
then issued an emergency order to revoke Ickes’ Student
Pilot Certificate. Among other things, the FAA found that
Ickes operated the Challenger II on numerous occasions in
the latter half of 1998 in a manner that endangered life and
property on the ground, including flying too low and
without proper training for solo flight. The FAA concluded
that Ickes lacked the "degree of care, judgment, and
responsibility required of the holder of a Student Pilot
Certificate." Ickes again did not seek review of the FAA
order.

On January 25, 2001, the FAA’s Eastern Regional
Counsel assessed Ickes another civil penalty, this time for
$28,000, after finding that he operated the Challenger II
from October through November, 1998, without a
registration, proper markings, or an airworthiness
certificate. Once again, the FAA determined that Ickes’
_________________________________________________________________

1. Ultralights are, nevertheless, subject to various operating restrictions.
E.g., 14 C.F.R. S 103.9(a) ("No person may operate any ultralight vehicle
in a manner that creates a hazard to other persons or property"); 14
C.F.R. S 103.15 ("No person may operate an ultralight vehicle over any
congested area of a city, town, or settlement, or over any open air
assembly of persons.").

                                3


Challenger II -- which it found was capable of more than
50 knots calibrated airspeed at full power in level flight,
had an empty weight of 300 pounds, a 42-horsepower
engine, and a fuel capacity in excess of 5 gallons-- was an
aircraft. Ickes did not seek further review.

Finally, between February and May, 2001, the FAA
received reports, mainly from Ickes’ neighbors, that Ickes
continued to fly the Challenger II. The FAA then learned
that Ickes posted an advertisement on an Internet website
in which he invited the public to attend a gathering on his
property from June 29, 2001 through July 1, 2001. Ickes
billed the event as an "EAA Ultralight Chapter Gathering at
the Ickes Recreational Park." He promised fly-by
demonstrations as well as a "candy drop for children,"
"horseback riding," and "dirtbike trails and
demonstrations."

Upon learning of Ickes’ proposed air show, and noting
Ickes’ history of unlawful use of the Challenger II, the FAA
issued the Emergency Order on June 28, 2001, to preempt
Ickes’ use of aircraft during the event. In particular, the
FAA required in the Emergency Order that Ickes
immediately cease and desist from operating the Challenger
II or any other aircraft until such time as he obtains
airman, airworthiness, medical, and registration
certificates; affixes appropriate identification markings to
his aircraft; and submits the aircraft to an authorized
person for appropriate maintenance inspection and
approval for service prior to operation.

Ickes timely filed a petition for review of the Emergency
Order in this Court. We have jurisdiction pursuant to 49
U.S.C. S 46110(a).

II.

Ickes presents three main arguments for our review.
First, he maintains that the Commerce Clause does not give
Congress the power to regulate his Challenger II because it
never flies across state lines. Second, he asserts that his
Challenger II is an ultralight vehicle and that the FAA has
improperly treated it as an aircraft. Third, he claims that no
exigent circumstances existed to justify the FAA’s issuance

                                4


of a preemptive cease and desist order. We review his
constitutional claim first.

A.

Ickes argues that Congress lacked Commerce Clause
authority to regulate his operation of the Challenger II, as
he contends that his flights are purely an intrastate
recreational activity and do not affect interstate air
commerce or endanger air safety. The Supreme Court has
identified three broad areas of activity subject to regulation
under the Commerce Clause: (1) the use of the channels of
interstate commerce; (2) protection of the instrumentalities
of interstate commerce, or persons or things in interstate
commerce, even though the threat may come only from
intrastate activities; and (3) activities having a substantial
relation to interstate commerce. United States v. Lopez, 514
U.S. 549, 558-59 (1995); see also United States v. Morrison,
529 U.S. 598, 608-09 (2000). It is beyond dispute that
Congress’s power over interstate commerce includes the
power to regulate use of the nation’s navigable airspace,
which is a channel of interstate commerce. In addition,
because airplanes constitute instrumentalities of interstate
commerce, United States v. Bishop, 66 F.3d 569, 588 (3d
Cir. 1995), any threat to them, such as the one posed by
Ickes’ flights of his Challenger II, is properly subjected to
regulation even if the threat comes from a purely intrastate
activity. See id.; see also United States v. McHenry, 97 F.3d
125, 127 (6th Cir. 1997). Ickes’ constitutional challenge,
therefore, is without merit.

Ickes next asserts that his Challenger II is an ultralight
vehicle and that the FAA has improperly treated it as an
aircraft. He also claims that no exigent circumstances
existed to justify the FAA’s issuance of a preemptive cease
and desist order. We will address each of these arguments
in turn.

B.

Ickes insists that his Challenger II is an ultralight vehicle
notwithstanding the FAA’s repeated findings that it is
eligible for registration as an aircraft. He claims that the

                                5


vehicle qualifies as an "ultralight trainer" and that he is
authorized to use it for instructional purposes. He contends
that the plane was properly registered with Aero Sports
Connection ("ASC"), a nonprofit organization that supports
ultralight flying activities. The FAA granted ASC an
exemption from regulation in 1995 so that it could train
and then authorize individuals to give basic flight
instruction using two-seat aircraft (like the Challenger II)
that would otherwise exceed the weight and speed
specifications for ultralights. Ickes received instructor
certification under the ASC program, and the ASC issued
him an exemption to operate a two-seat aircraft for
instructional purposes. Thus, Ickes contends, the FAA
improperly determined that his Challenger II is an aircraft.

Our review of this purely factual question is limited. We
must accept the FAA’s finding as conclusive "if it is
supported by substantial evidence." 49 U.S.C.S 46110(c).
"Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion . . . taking into account whatever in the record
fairly detracts from its weight." Van Dyke v. NTSB, 286 F.3d
594, 597 (D.C. Cir. 2002) (quotation marks and citations
omitted); see also Penobscot Air Services v. FAA , 164 F.3d
713, 717-18 (1st Cir. 1999) (discussing the substantial
evidence standard).

It is undisputed that the Challenger II has two seats, and
that fact alone removes it from the ultralight category
because it is not "used or intended to be used for manned
operation in the air by a single occupant." 14 C.F.R.
S 103.1(a). Furthermore, Ickes does not dispute the FAA’s
finding (nor did he ever appeal or petition for review of the
findings in the earlier FAA proceedings) that his plane has
an empty weight of 300 pounds, a fuel capacity in excess of
5 gallons, and a potential cruise speed of approximately 56-
69 knots. See 14 C.F.R. S 103.1(e). Thus, based on its
physical characteristics, Ickes’ Challenger II is not an
ultralight.

As to the ASC exemption, the record reflects that Ickes’
authorization to conduct ultralight training using his
Challenger II expired on June 30, 2000, almost one year

                                6


before the FAA issued the Emergency Order.2 Ickes has
failed to show that he can claim a valid exemption
extending through the time when the Emergency Order was
issued. The only evidence Ickes cites from the relevant
period in 2001 are two letters, dated January 14, 2001 and
April 16, 2001, from Bob Enos, a basic flight instructor
certified by the United States Ultralight Association. The
Enos letters reflect that Ickes completed a written
examination demonstrating aeronautical knowledge for
flight in a "Challenger II Trainer." Enos also offered an
endorsement of Ickes’ ability to make safe solo flights in a
Challenger II for a period of 90 days from issuance of the
letters. Ickes seems to suggest that, because Enos
authorized him to make solo flights in a "Challenger II
Trainer," the vehicle qualified as an ultralight. Reply Br. at
14.

We find nothing in the Enos letters, however, that even
arguably exempts the Challenger II from regulation as an
aircraft. Although the letters referred to Ickes’ plane as a
"Challenger II Trainer," it is undisputed that the plane’s
physical and operational characteristics placed it outside
the ultralight category. Moreover, Ickes has produced no
evidence to show that he could claim the benefit of the ASC
exemption, or any other exemption from regulation, during
2001. As such, the record fails to support his assertion that
the Challenger II qualified as an ultralight trainer during
that time.

In sum, while Ickes has shown that his Challenger II
might have been properly deemed an ultralight trainer
when his ASC exemption was in effect, we find substantial
evidence to support the FAA’s determination that the
vehicle qualified as an aircraft when the FAA issued the
Emergency Order on June 28, 2001.
_________________________________________________________________

2. In fact, Ickes’ ASC exemption may have expired or been withdrawn as
early as October 5, 1998. Supplemental Appendix at 5. We will assume
June 30, 2000, was the expiration date for purposes of our analysis
here.

                                7


C.

Ickes next contends that his air show presented no
exigent circumstances, that the FAA’s treatment of the
situation as an emergency was an error in judgment, and
that the FAA abused its authority by issuing a cease and
desist order without providing him with notice and an
opportunity to be heard. According to Ickes, "[t]he
grievances feeding this controversy have been primarily
non-safety in nature and had accumulated [over] a one or
two[-]year period." Appellant’s Br. at 7. Ickes thus contends
that the FAA’s treatment of the situation as an emergency
was an error in judgment. We reject this contention.

Contrary to Ickes’ suggestion that "[t]he grievances
feeding this controversy have been primarily non-safety in
nature," Appellant’s Br. at 7, the FAA’s concerns were
almost exclusively safety-related. Ickes’ decision to conduct
a public air show at which he intended to fly his Challenger
II -- an aircraft that had not been properly registered or
inspected in compliance with federal law -- raised an
indisputable safety concern for the people who would
attend the show, for anyone or anything on the ground
within the potential flight range of that aircraft, and for any
aircraft that might pass through the airspace surrounding
Ickes’ property. The record reveals that a low-level federal
airway, identified as V469, passes immediately north of
Osterburg, and a number of additional airways are within
several miles of Osterburg, as are Altoona-Blair County
Airport and Johnstown-Cambria County Airport, both of
which receive commercial air traffic.

Moreover, Ickes had a history of endangering life and
property on the ground, as evidenced by the FAA’s finding
in 1999 that he operated the Challenger II in a reckless
manner on numerous occasions. Ickes never sought review
of that agency finding, and in fact he never formally
challenged any of the numerous infractions cited in the
FAA’s prior orders against him. Given this record, safety
was undoubtedly the FAA’s predominant concern in
treating the situation here as an emergency.

As to the FAA’s authority to respond to an emergency,
Congress has conferred broad power upon the FAA

                                8


Administrator to conduct investigations and to issue orders
that the Administrator "considers necessary" to carry out
the FAA’s mandate. 49 U.S.C. S 40113(a). Moreover, the
Administrator has the express power to act quickly and
decisively in response to perceived air safety emergencies:

       When the Administrator is of the opinion that an
       emergency exists related to safety in air commerce and
       requires immediate action, the Administrator, on the
       initiative of the Administrator or on complaint, may
       prescribe regulations and issue orders immediately to
       meet the emergency, with or without notice and
       without regard to this part and subchapter II of
       chapter 5 of title 5. The Administrator shall begin a
       proceeding immediately about an emergency under this
       subsection and give preference, when practicable, to
       the proceeding.

49 U.S.C. S 46105(c). As the language of S 46105(c)
suggests, the Administrator holds "broad discretion to
decide when public safety concerns warrant emergency
action on his [or her] part." Blackman v. Busey, 938 F.2d
659, 663 (6th Cir. 1991).

In view of this broad discretion, our standard of review
when assessing an FAA response to a perceived emergency
is appropriately deferential: we ask only whether the finding
of an emergency " ‘was a "clear error of judgment" lacking
any rational basis in fact.’ " Id. (quoting Nevada Airlines,
Inc. v. Bond, 622 F.2d 1017, 1021 (9th Cir. 1980)). The
present record reveals no clear error of judgment. The FAA
duly noted the inherent public danger posed by those who
operate aircraft unlawfully in this country. Ickes, moreover,
had a verified history of unlawful operation of the
Challenger II, the FAA had received reports in early 2001
that he continued making such flights, and Ickes’
advertisement over the Internet invited the public to gather
on his property for a weekend of fly-by demonstrations. It
is undisputed that the demonstrations were to include the
Challenger II, an aircraft that Ickes failed to have certified
as airworthy or inspected by an authorized mechanic.

Ickes also did not hold a valid pilot certificate or airman
medical certificate. The FAA thus had concrete information
                                9


as to specific dates on which Ickes planned to conduct
unlawful flights of an aircraft, and it had a limited time in
which to stop those flights so as to protect the safety of the
people and property that could be harmed by Ickes’
malfeasance. We conclude that Ickes’ air show posed an
undeniable exigent danger. We see no clear error of
judgment in the FAA’s invocation of its broad powers under
S 46105(c) in an attempt to stop his unlawful flights.

Ickes complains that he was deprived of notice and an
opportunity for a hearing before the FAA issued the
Emergency Order. While FAA regulations ordinarily
contemplate prior notice before the agency will issue a
cease and desist order, an exception is understandably
provided in the case of an emergency. See 14 C.F.R.
S 13.20(b) ("Unless the Administrator determines that an
emergency exists and safety in air commerce requires the
immediate issuance of an order under this section, the
person subject to the order shall be provided with notice
prior to issuance."). Given that the FAA committed no error
in deeming Ickes’ air show an emergency that required an
immediate response, the agency certainly did not err in
foregoing prior notice pursuant to 14 C.F.R. S 13.20(b).

III.

For these reasons, we will affirm the FAA’s June 28,
2001, Emergency Cease and Desist Order.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                10
