                United States Court of Appeals
                    For the First Circuit
                                         

No. 92-2226

                       THOMAS D. HITE,

                         Petitioner,

                              v.

        NATIONAL TRANSPORTATION SAFETY BOARD, ET AL.,

                         Respondents.

                                         

              ON PETITION FOR REVIEW OF AN ORDER
         OF THE NATIONAL TRANSPORTATION SAFETY BOARD.

                                         

                            Before

                    Boudin, Circuit Judge,
                                         
               Campbell, Senior Circuit Judge,
                                             
                  and Stahl, Circuit Judge.
                                          

                                         

Lawrence B. Smith for petitioner.
                 

Harry  S.  Gold  with  whom  Peter  J.  Lynch  was  on  brief  for
                                             
respondents.

                                         

                        April 22, 1993
                                         

          STAHL, Circuit Judge.   Petitioner  Thomas D.  Hite
                              

("Hite")  appeals the National  Transportation Safety Board's

("NTSB")  decision to  uphold  an Administrative  Law Judge's

("ALJ") affirmance of  the Federal Aviation  Administration's

("FAA")   revocation  of   his  airman   certificate.     Our

jurisdiction is  premised  on  49  U.S.C. app.     1429(a).  

Finding Hite's appellate arguments without merit, we affirm.

                         Background1
                         Background
                                   

          On  February  4,  1989, Hite  was  the  pilot  of a

Spectrum Airlines  charter flight from  Hyannis to Nantucket,

Massachusetts.   Aboard the charter were  Hyannis High School

basketball players and  their coach, travelling to  a game in

Nantucket.  Shortly after takeoff, the plane (a Cessna 402B),

experienced  control  difficulty.    The nose  of  the  plane

suddenly  rose, bringing  the aircraft  to a  nearly vertical

                    

1.  Hite's  appellate  arguments  are  essentially  legal  in
nature,  rather than an attack on the factual findings of the
ALJ  or Board.  Indeed, his challenge to the previous factual
findings consists of little more than highlighting irrelevant
inconsistencies  in  certain  testimony.     It  is  not  our
function, however, to weigh evidence or evaluate credibility.
Hill  v. National  Transp. Safety  Bd., 886  F.2d  1275, 1278
                                      
(10th Cir. 1989).  Instead,  we "simply determine whether the
agency could fairly and reasonably find the facts as it did."
Chritton v. National  Transp. Safety Bd.,  888 F.2d 854,  856
                                        
(D.C.  Cir. 1989); see also  49 U.S.C. app.    1486(e) (court
                           
bound by factual findings if there is substantial evidentiary
support  in  the record).  Our review  of the  record reveals
nothing  unreasonable relative  to  fact finding  below.   As
such,  we  sketch the  factual  outline  consistent with  the
findings of the Board. 

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                              2

position.  Hite regained control of the plane and returned to

Hyannis without further incident.

          The FAA Administrator ("the Administrator") charged

that the above incident was due to Hite's misfeasance.  In an

order dated  June 23, 1989, the  Administrator revoked Hite's

airman's  (pilot's) certificate  after determining  that Hite

had  violated numerous Federal Aviation Regulations ("FAR").2

Hite appealed the revocation  order to the Board.   49 U.S.C.

app.   1429(a).  

          A hearing before ALJ Coffman was  held in Boston on

February  8-9, 1990.   The Administrator  presented testimony

from   two  passengers,   a  Hyannis   Airport   air  traffic

controller, an aircraft mechanic who examined the plane after

the  incident,  and a  FAA  aviation  safety inspector.    In

addition,   the   Administrator   presented  38   evidentiary

exhibits,  including statements by  passengers, parts  of the

aircraft, and documents concerning  the weight and balance of

the aircraft.  Petitioner testified, and introduced testimony

                    

2.  Specifically, Hite was  charged with violating FAR  91.9,
14  C.F.R.   91.9 (1989) (operating an aircraft in a careless
or  reckless  manner); FAR  91.31(a),  14  C.F.R.    91.31(a)
(1989)  (operating an  aircraft  without  complying with  the
operating limitations specified in the approved manual);  FAR
135.25(a)(2), 14  C.F.R.  135.25(a)(2) (1989)  (operating  an
aircraft  that  was not  airworthy);  and  FAR 135.65(b),  14
C.F.R.   135.65(b)  (1989) (failing, as pilot-in-command,  to
enter  or have  entered  in the  aircraft  maintenance log  a
mechanical irregularity  that came to his  attention during a
flight).  A charge of failing to report an accident or flight
control malfunction was dismissed.

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                              3

from   Spectrum  Aviation's   director  of   maintenance  and

Nantucket  station agent, as well as two Spectrum pilots, one

of  whom was  near  petitioner's plane  at  the time  of  the

incident, and a FAA aviation safety inspector who once worked

for Spectrum.

          Testimony  indicated that  it  is  critical to  the

stability  of a Cessna 402B that the weight of passengers and

baggage  be  towards  the  front of  the  plane.   Passengers

testified that in past  flights they were routinely asked  to

provide  their weights,  were given  assigned seats  based on

their weights, and gave their luggage to airline personnel to

load in the plane's nose compartment.  Prior to the flight in

question, however, nobody  compiled the passengers'  weights,

at Hite's direction  baggage was  loaded in the  rear of  the

plane's passenger section,  and passengers were not  assigned

seats.

          After  the  passengers  were  seated,  as  Hite was

boarding, the plane tilted backward, causing the tail section

to strike the tarmac.   Hite and three passengers got off the

plane, allowing it  to level  off again.   Hite examined  the

plane, and then reboarded  with the three passengers.   At no

time did he reassign anybody's seat.

          The  Hyannis air traffic  controller testified that

he noticed the plane having difficulty ascending, and thought

that  it would not clear 50-foot tall trees located 5000 feet

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                              4

from the  end of the  runway.  A  team member  testified that

about ten  seconds  after  takeoff,  with  the  plane  at  an

altitude  of 200 to 400 feet, the plane's nose tilted steeply

upward at an angle of 45 degrees or more.  He  then saw a red

light  illuminate  and  heard  a  buzzer,  followed  by  Hite

shouting  an expletive and ordering everyone  in the plane to

move forward.   Everyone complied, with  those seated in  the

rear "sardined up  in the  front."  Meanwhile,  as the  plane

tilted back, Hite was having trouble with the controls, which

appeared  to  be stuck.   After  the passenger  movement, the

plane  levelled  off  and  Hite,  without  further  incident,

returned  to  the  Hyannis  airport.   According  to  another

witness,  Hite  said after  the  flight  that the  passengers

survived only because their youth and agility enabled them to

quickly move to the front of the plane.  Had they been older,

Hite said, according  to the testimony,  they would not  have

survived.    Hite  doesn't   dispute  the  magnitude  of  the

situation.   Indeed,  his  appellate brief  suggests that  he

should  "have  gotten  a  medal"  for  his  handling  of  the

situation.

          The Administrator's expert testified that the plane

struck  the  ground because  Hite  overloaded  the plane  and

improperly  distributed  the  weight  of  the passengers  and

baggage.    Further  testimony  indicated  that  the  plane's

striking the ground bent a piece of the internal frame of the

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                              5

tail, which in  turn caused  damage to  the plane's  elevator

control,  which would affect  the plane's ability  to move up

and down in flight.3

          At the  conclusion of the two-day  hearing, the ALJ

issued   an  oral   decision   and   order,   affirming   the

Administrator's revocation order.  Pursuant to 49 U.S.C. app.

  1429(a)  and 49  C.F.R.    821.47, petitioner appealed  the

ALJ's  decision  to  the  full  Board.   After  both  parties

submitted  briefs, the  Board, on  August 25, 1992,  issued a

written opinion and order affirming the orders of the ALJ and

FAA.  This appeal followed.

                          Discussion
                                    

          Petitioner  raises two arguments on appeal, neither

of  which merits  more  than brevis  discussion.   First,  he
                                   

argues that the FAA has revoked his certificate  for punitive

purposes,   in  contravention   of   Board   decisions   that

countenance  revocation  only  when  a  certificate  holder's

actions indicate  a  lack  of  qualifications  necessary  for

certification.  He supports this argument by relying on a FAA

internal  handbook that was superseded in 1988.  The relevant
                                                             

handbook  unequivocally   states  that  "[r]evocation   of  a

                    

3.  Hite  argued that  he was  unaware of  the fact  that the
plane  struck the tarmac; that  he loaded the  baggage in the
front of the  plane; and that the  misplacement of passengers
was their own doing, in that they had  already boarded by the
time  he had  arrived.   The  ALJ resolved  these credibility
issues  adversely to Hite, who has provided us with no reason
to disturb the ALJ's findings.  See supra note 1.
                                         

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                              6

certificate  is   used  as  a  remedial   measure,  when  the

certificate holder lacks the necessary qualifications to hold

the certificate."  Handbook for Handling Legal Aspects of FAA
                                                             

Enforcement Program, FAA Order 2150.3A at   206(b) (Dec.  14,
                   

1988).  Paragraph 206(b)(1)  indicates that "[r]evocation  is

appropriate  whenever the  certificate holder  demonstrates a

lack  of care,  judgment and  responsibility required  of the

holder of  such  a certificate."    Examined in  this  light,

Hite's argument obviously fails.

           Hite also argues for greater consideration of  his

otherwise  stellar   record.     The   Board,  however,   has

consistently held that "conduct on a single flight, generally

in   the  form   of  recklessness   or  gross   (or  extreme)

carelessness,   is   considered  sufficiently   egregious  to

demonstrate  a  lack of  qualifications."    Administrator v.
                                                          

Wingo, 4 N.T.S.B. 1304, 1305 (1984).  Moreover, the "Board is
     

not constrained  to impose  serious sanctions on  pilots only

when tragedy  occurs.  Congress  has delegated to  the agency

wide   discretion  to   take  reasonable   action   to  avert

preventable tragedies."   Johnson v. National  Transp. Safety
                                                             

Bd., 979 F.2d 618, 623 (7th Cir. 1992).  
   

          Under our  very narrow standard of  review, we must

uphold  the  Board's  decision   if  it  is  not  "arbitrary,

capricious,  an  abuse of  discretion,  or  otherwise not  in

accordance  with law."  5 U.S.C.   706(2)(A).  Moreover, "the

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                              7

strong  policy concern  for public  safety requires  that the

Board be  given  a  wide  range  of  discretion  in  imposing

sanctions."  Johnson, 979 F.2d at 622.  Given the danger into
                    

which Hite placed his  passengers, we cannot say that  it was

an  abuse  of  discretion  to  conclude  that  this  incident

demonstrated Hite's lack of care, judgment, or responsibility

to hold an airman's certificate.4

          Hite's  second  argument  requires less  discussion

than  the first.    Essentially, he  asserts  that the  FAA's

failure to publish, in the Code of Federal Regulations, after

public notice and comment,  a rule authorizing the revocation

of   an  airman's   certificate   is  a   violation  of   the

Administrative Procedures Act, 5 U.S.C.    552(a)(1) and 553.

Such failure,  Hite's argument goes, constitutes  an absolute

bar to the FAA's revocation.

          This is not  the first time Hite's counsel has made

this argument, either in this circuit, see Rochna v. National
                                                             

Transp. Safety Bd., 929 F.2d 13 (1st Cir.), cert. denied, 112
                                                        

                    

4.  Hite  also asserts that  the FAA's later  failure to veto
Spectrum's appointment of him  as Director of Operations, and
the  FAA's decision to issue  an Air Taxi  Certificate to his
company, somehow  undermines the conclusion that  he lacks an
airman's  qualifications.    This  argument  borders  on  the
specious.   The  FAA  revoked Hite's  certificate  to fly  an
                                                         
aircraft.   Whether he is Spectrum's  Director of Operations,
or   President  of  Meridien   Airlines--to  which  the  taxi
certificate was  issued--he is still prohibited  from flying.
                                                            
In  a nutshell, these two FAA decisions are irrelevant to the
matter at hand.

                             -8-
                              8

S.  Ct.  305 (1991),5  or others.    See Tearney  v. National
                                                             

Transp. Safety Bd.,  868 F.2d 1451 (5th Cir.),  cert. denied,
                                                            

493 U.S. 937 (1989); Komjathy v. National Transp. Safety Bd.,
                                                            

832 F.2d 1294  (D.C. Cir. 1987)  (per curiam), cert.  denied,
                                                            

486  U.S. 1057  (1988).   Each prior  assertion has  met with

rejection.     In  addition,  one  district   court  recently

sanctioned Hite's counsel under  Fed. R. Civ. P. Rule  11 for

advancing   this   oft-rejected  theory   without  reasonable

"argument  that  the  Second  Circuit  would   receive  these

arguments with any more favor . . . ."  See Knipe v. Skinner,
                                                            

No.  91-CV-1338, 1993 U.S.  Dist. Lexis 2203  at *3 (N.D.N.Y.

Feb. 20, 1993) (finding Rule 11 violation); see also Knipe v.
                                                          

Skinner, No. 91-CV-1338, 1993 U.S. Dist. Lexis 3702 (N.D.N.Y.
       

March 20, 1993) (assessing  sanction at $9,000).  As  we have

been  given no reason to  depart from this  unbroken chain of

authority, further discussion of this issue is unnecessary. 

          The decision of the NTSB is affirmed.
                                      affirmed
                                              

                    

5.  Hite's  appellate brief  makes no  mention of  this First
Circuit  precedent.    However,  we find  that  while  Rochna
                                                             
addressed  a  case  of  suspension, and  this  case  involves
revocation,  such variance is of  no moment.   In both cases,
Hite relies  on  the  same  rationale  to  attack  the  FAA's
sanction.  

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