
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                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE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.                                         -2-            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.                                         -3-            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.                                         -4-                      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                                         -5-            "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                                         -6-            "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                                         -7-            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.                                         -9-
