                               UNITED STATES COURT OF APPEALS
                                        TENTH CIRCUIT
                                Byron White United States Courthouse
                                         1823 Stout Street
                                      Denver, Colorado 80257
                                          (303) 844-3157

Patrick J. Fisher, Jr.                                                              Jane B. Howell
       Clerk                                                                       Chief Deputy Clerk



                                           September 10, 2001


        TO: ALL RECIPIENTS OF THE ORDER AND JUDGMENT

        RE: 00-9500, Barrie v. FAA
            Filed on August 10, 2001

                Please note the following corrections to the order and judgment:

                1.       On page 5, footnote 4 is renumbered as footnote 1

                2.       On page 6, footnote 5 is renumbered as footnote 2.

        A copy of the corrected order and judgment is attached to this memorandum.

                                                        Sincerely,
                                                        Patrick Fisher, Clerk of Court

                                                        By:

                                                              Deputy Clerk




        encl.
                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                         AUG 10 2001
                                TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk


JON R. BARRIE,

          Petitioner,
                                                      No. 00-9500
v.                                             (FAA Case No. 98NM070038)
                                               (NTSB Docket No. SE-15159)
FEDERAL AVIATION                                  (Petition for Review)
ADMINISTRATION,

          Respondent.




                            ORDER AND JUDGMENT *


Before HENRY, MURPHY, Circuit Judges, VAN BEBBER **


I. INTRODUCTION

      The Federal Aviation Administration (FAA) suspended Jon R. Barrie’s pilot

certificate for ninety days for violating the agency’s regulations. Barrie appealed

the suspension, and an administrative law judge on the National Transportation


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
        Honorable G. Thomas Van Bebber, Chief Judge, United States District
Court for the District of Kansas, sitting by designation.
Safety Board (NTSB) granted summary judgment to the FAA and reduced the

suspension to sixty days. The full board affirmed this decision. Barrie appeals

the FAA’s suspension and the NTSB’s grant of summary judgment. This court

affirms the FAA’s order of suspension and the NTSB’s final order.

II. BACKGROUND

      In November 1997, Barrie served as pilot-in-command on a flight from

Billings, Montana to Provo, Utah. The aircraft Barrie piloted was authorized for

single-pilot operations. Bill Distefano, a licensed airframe and powerplant

mechanic and private pilot with a single-engine land rating, accompanied Barrie

on the flight. Due to the aircraft’s condition, the FAA issued a special flight

permit which authorized the flight to Provo where it could be repaired. The

permit limited occupancy of the aircraft “to the pilot, essential flight crew and

personal baggage.”

      Prior to the aircraft’s departure from Billings, two FAA inspectors observed

Barrie, Distefano, and a mechanic reconfiguring the aircraft for the flight. The

inspectors captured the reconfiguration on videotape. Although the investigators

suspected that Barrie might violate the special flight permit by permitting

unauthorized passengers on the aircraft, at no time did they discuss their concerns

with Barrie or Distefano.




                                         -2-
      In February 1998, Barrie was notified of the FAA’s decision to suspend his

Airline Transport Pilot Certificate. The FAA charged Barrie with transporting an

unauthorized passenger, Bill Distefano, in violation of the special flight permit.

By not complying with the requirements of the special flight permit, Barrie

violated FAA regulations section 91.7(a), operation of a civil aircraft in

unairworthy condition, and section 91.9(a), operation of a civil aircraft without

complying with the operating limitations for the aircraft. Accordingly, the FAA

suspended Barrie’s pilot certificate for ninety days. Barrie appealed the FAA’s

order of suspension to the NTSB. Discovery commenced shortly thereafter.

      In June 1998, the FAA filed a motion for summary judgment, which was

supported by affidavits of the two inspectors who had observed Barrie in Billings

on the day of the flight. Barrie filed a memorandum in opposition to the motion

for summary judgment along with a personal affidavit in support of his

submission. Barrie also filed a cross-motion for summary judgment and the

affidavit of Bill Distefano.

      In August 1998, Administrative Law Judge Geraghty (“ALJ”) granted the

FAA’s motion for summary judgment and denied Barrie’s cross-motion for

summary judgment. The ALJ also modified the period of suspension from ninety

days to sixty days. Barrie appealed the decision to the entire NTSB. In

November 1999, the NTSB affirmed the ALJ’s order. Pursuant to 49 U.S.C. §§


                                         -3-
1153(a) and 46110(a), Barrie appealed the FAA’s order of suspension and the

NTSB’s final order to this court.

       On appeal, Barrie raises three issues: (1) the NTSB erred in ruling that the

special flight permit did not authorize Distefano’s presence aboard the flight; (2)

the safety inspectors violated federal law and FAA policy, thereby invalidating

the suspension of Barrie’s pilot certificate; and (3) the procedures followed by the

NTSB deprived Barrie of due process and violated his Seventh Amendment right

to a jury trial.

III. DISCUSSION

       In reviewing NTSB decisions, this court must determine whether they are

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law.” Hernandez v. Nat’l Transp. Safety Bd., 15 F.3d 157, 158 (10th Cir. 1994).

Pure legal conclusions are reviewed de novo. See Pinney v. Nat’l Transp. Safety

Bd., 993 F.2d 201, 203-04 (10th Cir. 1993).

A. Essential Flight Crew

       Barrie claims he was deprived of due process because the special flight

permit failed to give him notice of the conduct expected by the FAA. Barrie’s

claim turns on the definition of “essential flight crew.” The special flight permit

limited the occupancy of the aircraft to “the pilot, essential flight crew and

personal baggage.” The Code of Federal Regulations defines the phrase


                                         -4-
“flightcrew member” as “a pilot, flight engineer, or flight navigator assigned to

duty in an aircraft during flight time.” 14 C.F.R. § 1.1. Barrie argues that the

phrase “essential flight crew” includes a broader category of people than the

category of people contemplated by the phrase “flightcrew member” and that

Distefano qualified as “essential flight crew.” 1

      In his decision, the ALJ rejected Barrie’s interpretation of the phrase

“essential flight crew.” The ALJ determined that the word “essential” simply

limited the phrase “flight crew” and restricted the category of people authorized

to occupy the aircraft to those individuals who were either pilots, flight engineers,

or flight navigators whose presence aboard the flight was indispensable to

accomplish the flight. The ALJ concluded that Distefano did not qualify as

essential flight crew, and therefore granted summary judgment on the issue of

Barrie’s violations of the FAA regulations. The NTSB affirmed the ALJ’s

decision.

      This court defers to the NTSB’s interpretation of a statute or regulation if

the interpretation is “not clearly contrary to the ‘plain and sensible meaning’ of

the statute or regulation . . . and such interpretation involves an area within the

particular expertise of the agency.” Hill v. Nat’l Tranps. Safety Bd., 886 F.2d



      1
        Barrie does not argue that Distefano falls under the regulatory definition
of “flightcrew member.”

                                          -5-
1275, 1278 (10th Cir. 1989) (citations omitted). Barrie provides this court with

no compelling reason to disagree with the NTSB’s interpretation of “essential

flight crew,” nor any persuasive evidence that he had no notice of the conduct

expected by the FAA. Thus, this court holds that Barrie was not deprived of his

due process.

B. Inspectors’ Alleged Violations of Federal Law and FAA Policies

      Barrie challenges the suspension of his pilot certificate from another angle.

He claims the inspectors failed to comply with federal law and FAA policy and

that this failure precludes suspension of his pilot certificate. Specifically, Barrie

asserts the inspectors failed to: (1) advise and cooperate with him during their

inspection of the aircraft in violation of 49 U.S.C. § 44713(b); (2) take

appropriate steps to prevent a potential regulatory violation in contravention of

FAA Order 2150.3A; and (3) immediately notify Barrie that the aircraft was not

in safe operating condition in violation of FAA Order 8300.10 and FAA Order

8400.10. 2 He further argues the inspectors conducted a “stake-out” and allowed

Barrie to violate the FAA regulations in contravention of FAA Order 8700.1.

This court need not decide whether the inspectors violated federal law or FAA

policy because neither 49 U.S.C. § 44713(b) nor the FAA policies conferred a


      2
       This court agrees with the FAA that by not raising the 8400.10 violation
below Barrie waives it on appeal. See City of Stilwell, Okla. v. Ozarks Rural
Elec. Coop. Corp., 166 F.3d 1064, 1073 (10th Cir. 1999).

                                          -6-
right upon Barrie that would warrant a reversal of the suspension of his pilot

certificate.

       To support his argument, Barrie relies on the Supreme Court’s decision in

United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954). Accardi

stands for the proposition that an agency must adhere to its own rules and

regulations when an individual’s due process interests are implicated. See 347

U.S. at 266-68. This court has indicated that the Accardi holding applies to

regulations that exist to protect the rights of those regulated by the agency. See

Rosenberg v. Comm’r, 450 F.2d 529, 532 (10th Cir. 1971); United States v.

Lockyer, 448 F.2d 417, 420-21 (10th Cir. 1971). Thus, Accardi would apply in

this case if the federal law and FAA policies in question existed to protect the

rights of aircraft operators.

       The case presently before this court, however, is distinguishable from

Accardi and its progeny. Without deciding whether 49 U.S.C. § 44713(b) and the

FAA orders on which Barrie relies apply to the inspectors in this case, it is

apparent that none exist to protect the rights of aircraft operators. The federal

statute on which Barry relies, 49 U.S.C. § 44713(b), describes the duties of safety

inspectors. The provision provides that the FAA Administrator shall employ

inspectors to inspect aircrafts for safety purposes and to advise and cooperate




                                          -7-
with air carriers during the inspections. See 49 U.S.C. § 44713(b). The statute

affords aircraft operators no procedural protections or substantive rights.

      Similarly, the FAA orders do not provide aircraft operators with any rights;

the orders exist as guides to inspectors. FAA Order 2150.3A describes the

“authority[,] responsibilities, policies, guidelines, procedures, objectives, and

legal aspects of the Federal Aviation Administration’s Compliance and

Enforcement Program.” FAA Order 2150.3A, Ch. 1, ¶ 100 (1988). The purpose

of the order is to aid inspectors in carrying out FAA policies. See id. Both FAA

Order 8300.10 and FAA Order 8700.1 are inspectors’ handbooks. FAA Order

8300.10, the Airworthiness Inspector’s Handbook, “directs the activities and

provides guidance for Airworthiness Aviation Safety Inspectors.” Vol. 1, at 1-1

(1992). FAA Order 8700.1, the General Aviation Operations Inspector’s

Handbook, directs the activities and provides guidance for General Aviation

Operations Inspectors. See Vol. 1, at 1-1 (1991). The stated purpose of both

handbooks is simply to provide guidance to inspectors. Unlike other cases in

which Accardi applies, these three orders do not purport to provide aircraft

operators with any procedural or substantive rights. See e.g., Rosenberg, 450

F.2d at 532 (distinguishing case from First Circuit decision applying Accardi in

which agency guideline served to protect the constitutional rights of taxpayers).




                                          -8-
      In his brief, Barrie points to no right that federal law or FAA orders

conferred upon him. The authority most certainly did not endow Barrie with a

right to be notified of a potential violation of the FAA regulations. Thus, even if

the inspectors violated the law and policies in question, the violations do not bear

on the propriety of Barrie’s suspended pilot certificate.

C. Due Process and Right to Jury Trial

      Barrie claims the absence of a hearing on the motions for summary

judgment deprived him of due process. Summary judgment may be granted “if

the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c). A party’s right to a hearing may be satisfied by a

court’s review of documentary evidence. See Geear v. Boulder Cmty. Hosp., 844

F.2d 764, 766 (10th Cir. 1988). Prior to the NTSB’s grant of summary judgment,

Barrie had the opportunity to refute the facts alleged by the FAA and to raise

issues of material fact in his submissions to the NTSB. His failure to do so led

the NTSB to rule that Distefano was not essential flight crew as a matter of law

and that there were no issues of material fact regarding Barrie’s violations of the

FAA regulations. This court finds no error in the procedures followed by the




                                          -9-
NTSB and therefore concludes that Barrie was not deprived of his right to due

process.

      Barrie further argues that his Seventh Amendment right to a jury trial was

violated. Although Barrie agreed to drop this issue at oral argument, it is worth

noting that this court has previously concluded that “[a]dministrative proceedings

regarding suspension of a pilot certificate involve the special expertise of the

FAA and are not suits at common law for which a jury trial is required.” Hill, 886

F.2d at 1282.

IV. CONCLUSION

      For the reasons stated above, this court AFFIRMS the FAA’s order of

suspension and the NTSB’s final adjudicative order.



                                                     Entered for the Court



                                                     Michael R. Murphy
                                                     Circuit Judge




                                         -10-
No. 00-9500, Barrie v. FAA

HENRY, J., concurring.

      I join this opinion, but not without some indigestion. My discomfort comes

not from my brethren’s correct exposition of the law, but from the action--or

rather, the inaction--of the FAA in this case.

      Although the opinion correctly states our required deference, and although I

acknowledge that deference is especially important in the regulation of aircraft

vis-a-vis the FAA, it seems strange that the investigators here (1) never informed

Mr. Barrie of their concerns about Mr. Distefano accompanying him, and (2) they

happened to have a video camera ready to film.

      One wonders if this entire matter could have been prevented by a simple

cautionary word from the Aviation Safety inspectors here. See FAA Compliance

and Enforcement Program, FAA Order 2150.3A, p. 13 ¶ 203(a) (“In any situation

where Aviation Safety Inspectors identify a potential violation they should take

appropriate steps to prevent it [including] notify[ing] the air carrier . . . .”).
