                                ___________

                                No. 95-1240
                                ___________

Robert A. Thomas,               *
                                *
               Petitioner,      *
                                *        Petition for Review of an Order
     v.                         *        of the National Transportation
                                *        Safety Board.
David R. Hinson, Administrator, *
Federal Aviation Administration,*

                                     *
               Respondent.           *
                                ___________

                    Submitted:    September 15, 1995

                       Filed:     January 26, 1996
                                ___________

Before FAGG, MAGILL, and MURPHY, Circuit Judges.
                           ___________


FAGG, Circuit Judge.


     Robert A. Thomas petitions for review of a National
Transportation Safety Board (NTSB) order suspending his airplane
pilot certificate for fifteen days. We deny Thomas's petition for
review.


     After taking a prospective buyer on a demonstrative flight,
Thomas, the president of a St. Louis air carrier company, and Guin,
a company employee, piloted the aircraft back to St. Louis. The
aircraft required only one pilot, but both Thomas and Guin were in
the cockpit piloting the plane.     According to Thomas's written
statement to the Federal Aviation Administration (FAA), Guin was
the flying pilot, manipulating the plane's controls, and Thomas was
the nonflying pilot, communicating with air traffic control,
calling the checklist and altitudes, setting the flaps, and looking
for the runway. On the approach to the airport, Guin stated he was
lowering the gear and moved the gear handle. Thomas saw the handle
was in the down position, but did not check the gear-down indicator
light to make sure the gear had actually been lowered. When the
plane was near landing, Thomas noticed the gear-down indicator
light was not illuminated, and directed Guin to "go around" rather
than land the plane.     A gear-up landing was avoided, but the
aircraft's propellers scraped the runway. After pulling up and
circling the airport again, the plane landed safely.


     The FAA later suspended both Guin's and Thomas's pilots
certificates for violating 14 C.F.R. § 91.13(a), which states, "No
person may operate an aircraft in a careless or reckless manner so
as to endanger the life or property of another." Guin settled his
case, and after a hearing, an administrative law judge (ALJ)
affirmed the FAA's suspension order against Thomas.      The NTSB
affirmed.


     In this petition for review, Thomas contends 14 C.F.R.
§ 91.13(a) is unconstitutionally vague and ambiguous as applied to
him. Thomas argues there are no duties or responsibilities for
acts or omissions of a second pilot on a single-pilot aircraft, and
thus, Thomas had no notice of a duty to verify that Guin had
lowered the landing gear and that his failure to do so would
violate § 91.13(a).


     A regulation is unconstitutionally vague if it fails to give
a person of ordinary intelligence a reasonable opportunity to know
what is prohibited. Grayned v. City of Rockford, 408 U.S. 104, 108
(1972); see Throckmorton v. National Transp. Safety Bd., 963 F.2d
441, 444-45 (D.C. Cir. 1992) (requiring reasonable degree of
certainty about prohibited conduct). In this case, the regulation
was clear enough to give Thomas notice that any careless conduct on
his part was prohibited. Section 91.13(a) does not limit its reach
to a pilot-in-command or a pilot who manipulates the flight
controls. Administrator v. Bischoff, 2 N.T.S.B. 1013, 1014, 1974

                               -2-
WL 19276, at *2 (Sept. 13, 1974). Instead, the regulation applies
to any person who operates an aircraft, and Thomas does not
challenge the ALJ's finding that he was actively involved in the
aircraft's operation, see 14 C.F.R. § 1.1 (defining "operate" as
using aircraft for air navigation). The NTSB has rationally held
the regulation applies to any operator who participates in,
authorizes, or permits the prohibited careless operation.
Bischoff, 2 N.T.S.B. at 1015, 1974 WL 19276, at *2. Here, the NTSB
could reasonably infer that Thomas participated in careless
operation of the airplane. See id.


     Thomas also argues that even if this was a two-pilot
operation, he was entitled to rely on Guin's statement that he had
lowered the landing gear.     Thomas did not raise this argument
before the NTSB, however, so we need not consider it. 49 U.S.C.A.
§§ 1153(b)(4), 46110(d) (West 1995).     We think the argument is
meritless, anyway. Contrary to Thomas's assertion, Guin did not
"confirm" he lowered the gear, but merely stated he was lowering it
as he moved the gear handle. In fact, Guin testified that he did
not verify that the gear was lowered by checking the gear-down
indicator light because standard operating procedure required
Thomas, the nonflying pilot, to make the verification. The record
also contradicts Thomas's assertion that he relied on Guin's
statement. For these reasons, the reliance cases cited by Thomas
are distinguishable from the facts of this case.


     In sum, because Thomas was actively involved in the airplane's
operation, he had a clear duty under § 91.13(a) not to operate the
airplane in a way that would endanger the life or property of
another. We thus deny Thomas's petition for review.




                               -3-
A true copy.


     Attest:


          CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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