PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

D. J. COOPER,
Petitioner,

v.

DAVID R. HINSON, Administrator,
                                                                      No. 96-1617
Federal Aviation Administration;
NATIONAL TRANSPORTATION SAFETY
BOARD,
Respondents.

On Petition for Review of an Order of the
United States Department of Transportation.
(SE-13612)

Argued: January 30, 1997

Decided: April 3, 1997

Before HALL and ERVIN, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Petition for review denied by published opinion. Judge Ervin wrote
the opinion, in which Judge Hall and Senior Judge Butzner joined.

_________________________________________________________________

COUNSEL

ARGUED: Evans B. Jessee, Roanoke, Virginia, for Petitioner. Rob-
ert Paul Vente, Enforcement Division, Office of Chief Counsel, FED-
ERAL AVIATION ADMINISTRATION, Washington, D.C., for
Respondents. ON BRIEF: Kathleen A. Yodice, Acting Manager,
Appellate Branch, Enforcement Division, Office of Chief Counsel,
FEDERAL AVIATION ADMINISTRATION, Washington, D.C., for
Respondents.

_________________________________________________________________

OPINION

ERVIN, Circuit Judge:

Petitioner D.J. Cooper seeks review of an order suspending his
pilot certificate for 60 days. The National Transportation Safety
Board (Board), Respondent here,1 found that Cooper was the pilot in
command of a flight during which he operated an aircraft under
instrument flight rules without holding an instrument rating and
thereby endangered the lives of his passengers, in violation of two
Federal Aviation Regulations. We deny Cooper's petition for review.

I.

The basic facts are not generally in dispute. Cooper, William
Saker, and two passengers boarded a Piper Saratoga airplane for a
return flight to Roanoke, Virginia, from Atlantic City, New Jersey, on
January 24, 1993. Cooper, part owner of the airplane, has possessed
a private pilot's license since 1969, but he does not hold an instru-
ment rating or airplane transport pilot certificate. Saker, with more
than 60 years and 15,000 to 20,000 hours of flight time experience,
was rated for instrument flight rules (IFR), but his certification was
not current on the date of the flight, a fact that he never told Cooper.
Although the exact number is in dispute, Cooper and Saker had flown
together between 25 and 40 times.

As was their wont, Cooper took the left seat, Saker the right.2 At
the time of departure, weather reports and forecasts indicated condi-
tions were above visual flight rules (VFR) minima. However, as the
_________________________________________________________________
1 David R. Hinson, Administrator of the Federal Aviation Administra-
tion, is also Respondent pursuant to 49 U.S.C. § 44709.
2 The left seat is normally occupied by the pilot in command of the
flight.

                    2
plane neared Washington, D.C., the weather deteriorated to below
VFR minima. Cooper alleges that Saker instructed him to call air traf-
fic control (ATC) to obtain IFR clearance, which ATC granted. Coo-
per claims that had Saker not so advised him, he would have reversed
course. The plane hit severe turbulence as it approached Roanoke.
Cooper was unable to negotiate the instrument approach to the air-
port. He claims he implored Saker, "Help me. Help me." Br. of Pet'r
at 9. Saker testified that he believed Cooper was requesting help from
ATC, not from him. Br. of Resp't at 8-9. Saker did state prior to the
hearing in this matter, however, that had he understood Cooper to be
asking for his help, he would have taken over. Id. at 9. ATC subse-
quently told Cooper he could declare an emergency to obtain a prefer-
ential landing clearance, and Cooper declared the emergency. He
landed the plane safely, apparently without any help from Saker.

During its investigation of the incident, the Federal Aviation
Administration (FAA) determined that Cooper had logged the entire
flight as the pilot in command (PIC), including the two-hour portion
operated under IFR. See Suppl. App. at 10. Cooper claimed that this
was for insurance purposes only. He also did not reveal to the FAA
his later claim that Saker had manipulated the throttle at one point.

The FAA subsequently issued an order suspending Cooper's pilot
certificate for 120 days, charging him with violating two Federal Avi-
ation Regulations, 14 C.F.R. § 61.3(e)(1), 3 for acting as PIC under
IFR without the appropriate rating, and 14 C.F.R.§ 91.13(a),4 for
careless or reckless operation that could endanger the life or property
_________________________________________________________________
3 14 C.F.R. § 61.3(e) provides in pertinent part:

          Instrument Rating. No person may act as pilot in command of a
          civil aircraft under instrument flight rules, or in weather condi-
          tions less than the minimums prescribed for VFR flight unless--

         (1) In the case of an airplane, he holds an instrument rating or
         an airline transport pilot certificate with an airplane category
         rating on it; . . . .
4 14 C.F.R. § 91.13(a) provides:

          Aircraft operations for the purpose of air navigation. No person
          may operate an aircraft in a careless manner so as to endanger
          the life or property of another.

                    3
of another. Upon appeal, an Administrative Law Judge (ALJ)
affirmed the FAA's order but modified the sanction to a 60-day sus-
pension. Upon further appeal, the Board affirmed the ALJ's decision.
The Board rejected Cooper's contention that Saker, and not he, was
the PIC based upon the relationship developed between the two over
many flights. Instead, the Board determined that sufficient evidence
supported the ALJ's conclusion that Cooper was the PIC since

          [Cooper] was the owner of the aircraft; he sat in the left seat;
          he handled the controls and radio communications; he
          decided the details of the flight; he had the power to return
          to more favorable weather conditions if he so chose; he
          logged the entire flight time in his logbook as PIC; there
          was no agreement between [Cooper] and his passenger, Bill
          Saker, that Mr. Saker would act as PIC and assume the ulti-
          mate responsibility for the flight; and [Cooper] unilaterally
          made the decision to declare an emergency.

Hinson v. Cooper, No. EA-4433, slip op. at 3-4 (N.T.S.B. Mar. 8,
1996). In addition, the Board found ample support for the ALJ's find-
ing that Cooper "operated an aircraft under IFR conditions when he
did not have an IFR rating and that this action was careless, poten-
tially endangering the lives and property of others." Id. at 5. This peti-
tion for review followed.

II.

The Administrator possessed jurisdiction to issue an order suspend-
ing Cooper's pilot certificate pursuant to 49 U.S.C.§ 44709(b). The
Board possessed jurisdiction to hear Cooper's appeals pursuant to 49
U.S.C. § 44709(d). We possess appellate jurisdiction pursuant to 49
U.S.C. § 1153(a).

The Board's factual findings are deemed conclusive if supported
by substantial evidence. 49 U.S.C. § 1153(b)(3). "The substantial evi-
dence test is a narrow standard of review. Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion." Chritton v. NTSB, 888 F.2d 854, 856 (D.C. Cir.
1989) (internal quotation marks and citation omitted). Once the find-
ings are determined to be supported by substantial evidence, the

                     4
reviewing court "must accept also the conclusions drawn therefrom
unless they are seen to be arbitrary or capricious, or to rest on prem-
ises that are deemed contrary to ascertainable legislative intent, or are
otherwise contrary to law." Western Air Lines, Inc. v. Civil Aeronau-
tics Bd., 495 F.2d 145, 152 (D.C. Cir. 1974) (stating standard under
predecessor statute, 49 U.S.C. § 1486(e)).

III.

Federal Aviation Regulations define the PIC as the"pilot responsi-
ble for the operation and safety of an aircraft during flight time." 14
C.F.R. § 1.1. The Board has found that this definition means that

          the pilot in command is not necessarily the pilot who physi-
          cally operates the controls or directs the course of a given
          flight. Rather, the pilot in command is the pilot who pos-
          sesses ultimate decisional authority for such control or
          direction whether or not actually exercised during the flight.

Administrator v. Jeffreys, 4 N.T.S.B. 681, 1982 WL 44916 at *2
(Dec. 27, 1982). The Board has looked to a number of factors as indi-
cia of responsibility for an aircraft's operation, including, inter alia,
actual manipulation of controls and radio, seating position, and own-
ership interests. Harris v. Rajaratnam, No. EA-3497, 1992 WL 40525
at *2 (N.T.S.B. Jan. 29, 1992).

In this case, Cooper's ownership is undisputed. There is also no
dispute that Cooper occupied the left seat, the position normally occu-
pied by the PIC. See Administrator v. McCormmach , 4 N.T.S.B.
1503, 1984 WL 62062 at *2 (June 28, 1984). While Cooper contends
that at one point Saker manipulated the throttle, despite having failed
to reveal this during the FAA's investigation, such an alleged manipu-
lation of the controls by Saker is not dispositive as to this factor. See
Administrator v. van Toornburg, 5 N.T.S.B. 1074, 1986 WL 82405
at *4 n.9 (Apr. 3, 1986) (finding that the charged pilot's "temporary
relinquishment of the controls because of his copilot's apparently
superior skills in executing an instrument approach does not demon-
strate that the [charged pilot] did not have the ultimate decisional
authority for the flight or that [the charged pilot's] exercise of that
authority to allow the copilot to complete the landing constituted an

                     5
abandonment of [the charged pilot's] decisional prerogatives"). More-
over, all radio communications were made by Cooper.

Instead, the thrust of Cooper's argument is that, although there was
no express agreement between Cooper and Saker as to who was PIC,
the basic tacit understanding between them, developed over dozens of
flights, was that Saker became PIC after the IFR conditions were
encountered, since Cooper knew he was not IFR rated and Saker held
out that he currently was. In support of his position, Cooper relies on
Rajaratnam. In that case, Rajaratnam owned the aircraft, sat in the left
seat, and manipulated the controls. He, however, held only a student
pilot certificate and believed that so long as he flew with a pilot who
possessed a higher rated certificate, then that copilot, knowing
Rajaratnam was only a student pilot, would automatically serve as
PIC since a student pilot cannot lawfully be the PIC with a passenger
on board. Although the Board found appealing Rajaratnam's argu-
ment that such a copilot must have implicitly accepted PIC responsi-
bility for the flight, it did not decide the case on that basis. See
Rajaratnam, 1992 WL 40525 at *2. Instead, the Board reversed the
revocation order on the ground that the copilot readily admitted that,
because he outranked Rajaratnam, he would have taken over com-
mand in the event of an emergency. The Board found this factor dis-
positive, for it "establishe[d] that while[Rajaratnam] may have been
the pilot in charge of the physical management of the aircraft, [this
copilot] was the pilot who possessed the ultimate responsibility for
the safety of the operation." Id. at *3.

While there are a number of important similarities between
Rajaratnam and the instant case, the Board rejected Cooper's argu-
ment and distinguished Rajaratnam. In particular, three important fac-
tors, not present in Rajaratnam, warranted the finding that Cooper
was the PIC. First, Rajaratnam did not log his flight time as PIC,
whereas Cooper logged the entire 3 hour 20 minute flight as PIC,
including the 2 hours under IFR conditions. See Cooper, No.
EA-4433, slip op. at 4. Second, Rajaratnam's copilot testified he
would have taken over in an emergency, and, at least on some of their
previous flights together, he had expressly agreed to be PIC. Saker
was never asked what he would have done in an emergency, and Coo-
per admits that he and Saker had no express agreement as to who
would be PIC. See id. at 4-5. Finally, when Cooper did encounter dif-

                    6
ficulty, he unilaterally declared an emergency. Saker did not assume
command of the airplane. See id. at 5.

The Board adopted the ALJ's findings that the two most critical
factors in determining that Cooper was the PIC were Cooper's own
log book entry, which directly contradicts Cooper's claim that Saker
was PIC, and Cooper's unilateral decision to declare an emergency,
a decision that only the PIC can make. See id. at 3; J.A. at 460-61.
Substantial evidence plainly supports these findings. See Chritton v.
NTSB, 888 F.2d 854, 856 (D.C. Cir. 1989) (stating substantial evi-
dence standard). And it was certainly not arbitrary or capricious for
the Board, in agreement with the ALJ, to conclude that Saker did not
possess the ultimate decisional authority and that Cooper did. See
Cooper, No. EA-4433, slip op. at 5; Western Air Lines, Inc. v. Civil
Aeronautics Bd., 495 F.2d 145, 152 (D.C. Cir. 1974) (stating that
once the findings are determined to be supported by substantial evi-
dence, the reviewing court "must accept also the conclusions drawn
therefrom unless they are seen to be arbitrary or capricious, or to rest
on premises that are deemed contrary to ascertainable legislative
intent, or are otherwise contrary to law"). We, therefore, see no basis
to overturn the Board's conclusion that Cooper was the PIC on the
flight in question.5

Cooper further contends that even if he is found to be the PIC, in
these circumstances, with Saker aboard, he was not reckless or care-
less so as to endanger the life or property of another within the mean-
ing of 14 C.F.R. § 91.13(a). He provides no authority to support his
position, however. Instead, it is well-established that "potential endan-
germent" is sufficient to sustain a violation of§ 91.13(a). See, e.g.,
Hinson v. Evanko, No. EA-4221, 1994 WL 409525 at *4 & n.11
(N.T.S.B. July 19, 1994) (citing cases). Indeed, the Board has repeat-
edly found that a non-instrument rated pilot's operation of an aircraft
in IFR conditions is careless, creating the potential for endangerment,
_________________________________________________________________
5 Cooper's additional reliance on Hinson v. Thomas, No. EA-4309
(N.T.S.B. Jan. 4, 1995), is misplaced. In Thomas both the pilot and copi-
lot were held accountable and sanctioned. Thomas , at 4-5 & 5 n.6.
Whether Saker was, or should be, sanctioned for his role in this matter
is not before us. The sanction against Cooper stems from his own behav-
ior.

                     7
within the meaning of the regulation. See Administrator v. Feldman,
6 N.T.S.B. 1000, 1989 WL 267659 at *1 & n.5 (Apr. 7, 1989);
Administrator v. Ragland, 7 N.T.S.B. 1068, 1991 WL 321206 at *2
(July 16, 1991). Cooper found himself in difficulties under IFR condi-
tions. He unilaterally declared an emergency. As in Ragland, Cooper
thus placed his passengers in a situation he could not safely resolve
without ATC intervention, thereby potentially endangering those pas-
sengers. Substantial evidence supports the Board's finding that Coo-
per violated § 91.13(a).

IV.

For the foregoing reasons, substantial evidence supports all of the
Board's findings in this case. We therefore deny the petition for review.6

PETITION DENIED
_________________________________________________________________
6 We cannot let this case pass without offering this comment. At oral
argument, Cooper's counsel informed us that Cooper is a "determined
man." We were also informed, however, that Cooper's pilot certificate
was, at that time, temporarily suspended for a medical condition. We do
not fathom why Cooper did not drop this petition for review and accept
his 60-day suspension while he could not fly for medical reasons any-
way. We fail to see the logic of a determination that blinds one to one's
best interests as well as one that needlessly wastes judicial resources over
a slap on the wrist to boot.

                    8
