
USCA1 Opinion

	




          October 29, 1993      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-1001                                              BRUCE F. CHAILLE,                                     Petitioner,                                          v.                        NATIONAL TRANSPORTATION SAFETY BOARD,                                     Respondent.                                  __________________                          PETITION FOR REVIEW OF AN ORDER OF                         NATIONAL TRANSPORTATION SAFETY BOARD                                 ___________________                                        Before                               Selya, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ___________________               Bruce F. Chaille on brief pro se.               ________________               Peter J. Lynch,  Manager, Susan S. Caron,  Attorney, Federal               ______________            ______________          Aviation  Administration,  and   National  Transportation  Safety          Board, on brief for respondents.                                  __________________                                  __________________                      Per Curiam.    Petitioner seeks review of  an order                      __________            of  the   National  Transportation   Safety  Board   ("NTSB")            reversing a decision by the Administrative Law Judge ("ALJ").            Petitioner  contends  that  the NTSB's  decision  arbitrarily            disregarded  its  own precedent,  and  was inconsistent  with            Federal Aviation Regulations.   For the reasons  that follow,            we affirm the NTSB's decision.                          Petitioner,   a  licensed   transport  pilot,   was            operating the  controls of a  DC-9 on September 29,  1987, as            second-in-command  of Eastern Flight  603, when it  landed at            William  B. Hartsfield  Atlanta  International Airport.   The            plane's  captain  was  operating  the  radios  at  the  time.            Although  the aircraft  was cleared  by  Air Traffic  Control            ("ATC") to land on Runway 26 left, petitioner  instead landed            on Runway 26  right without seeking  or receiving an  amended            clearance.  While no injuries were reported, testimony at the            subsequent hearing  showed  that the  Eastern  flight  landed            perpendicular to, and "right  by [the] nose" of  Delta flight            657, which had been cleared to take off from Runway 26 right.                      On  October 18,  1988,  the  Administrator  of  the            Federal Aviation  Administration ("Administrator")  issued an            order suspending petitioner's  pilot's certificate for twenty            days1    for   violation  of  Federal  Aviation   Regulations                                            ____________________            1.  The penalty  was waived  because petitioner had  reported            the  incident promptly through  the Aviation Safety Reporting            Program, but the judgment remains on his record.                                         -2-            ("FAR"), 14  C.F.R.     91.9, 91.87(h)  (1987).2   Petitioner            appealed the order to  the NTSB and a hearing was held before            an   Administrative  Law  Judge.     The  ALJ   reversed  the            Administrator's order, accepting petitioner's defense that he            had rightfully relied on the  direction of the captain of the            aircraft.   The Administrator appealed  and the full board of            the  NTSB   reversed  the   ALJ's  decision,   affirming  the            Administrator's suspension order.                      At the hearing,  the parties stipulated to  most of            the  operative facts, including  the aircraft's  clearance to            land on Runway 26 left,  its acknowledgment of the clearance,            and its wrongful landing on  Runway 26 right.3  The remaining                                            ____________________            2.  14 C.F.R.     91.9, 91.87 (1987) (currently  14 C.F.R.               91.13(a)), 91.129(h)) state in relevant part:                    91.9  Careless or reckless operation.                          ______________________________                    No  person may operate an aircraft in a careless                 or  reckless manner so  as to endanger  the life or                 property of another.                     91.87 . . . .                    (h)  Clearances required.  No person may, at any                         ___________________                 airport with an operating control tower, operate an                 aircraft on a runway or taxiway, or takeoff or land                 an  aircraft, unless  an  appropriate clearance  is                 received from ATC . . .            3.  The parties stipulated to the following facts relating to            clearance  and acknowledgment  for  use  of  Runway  26  left            ("26L"):                              [1]  [D]uring the  approach,  the terminal  arrival                 radar H (TAR-H) controller  assigned the flight  to                 Runway  26L, and that  Eastern 603 acknowledged the                 transmission,  [2]  the   arrival  radar  V  (AR-V)                                         -3-            issue  was  whether,  in light  of  the  evidence, petitioner            should be absolved of the  violation by virtue of the Coleman                                                                  _______            doctrine.  Administrator  v. Coleman, 1 N.T.S.B.  229 (1968).                       _____________     _______            In Coleman  the NTSB held that a pilot  at the controls had a               _______            right to  rely on his  copilot's confirmation of  the pilot's            incorrect understanding of an ATC clearance.                         At the time  of the landing here, as  we have said,            the  captain  of  the  aircraft  was  operating  the  radios.            Petitioner,  at the controls,  was also monitoring  the radio            transmissions  through an  overhead  speaker, in  conformance            with FAA and airline safety procedures.  The overhead speaker            was in working order and petitioner had no difficulty hearing            the   transmissions.    The  ATC  audiotape  of  the  radioed            exchanges, stipulated by the parties to be accurate, reflects            that during the  approach the plane was instructed four times            to land  on Runway 26 left.   Each of these  instructions was            separately acknowledged by the captain, who twice repeated it                                            ____________________                 controller  cleared   Eastern  603  for   a  visual                 approach to Runway  26L and that the  clearance was                 acknowledged,  [3]   the  ATL   automated  terminal                 information   system   (ATIS)    was   transmitting                 information  that Runway  26L  was the  appropriate                 runway in use for landing, and that the information                 was  received by Eastern  603, [4] the  local tower                 controller cleared  Eastern 603 to  land on  Runway                 26L   and   that  Eastern   603   acknowledged  the                 clearance, [5] other  aircraft landing at  the time                 were being cleared to land on Runway 26L.               Administrator  v. Chaille, N.T.S.B.  Order No.  EA-3643, 1992            _____________     _______            NTSB LEXIS 176 at **2-3 (Aug. 12, 1992).                                         -4-            verbatim.    While petitioner initially testified that the he            did not  personally overhear an  ATC clearance for  Runway 26            left,  he  later  admitted  that  he  did  hear  the  correct            clearance,  simultaneously with  the Delta  transmission, and            became  alarmed.  Background  evidence showed that  98-99% of            all prior landings,  and 100% of petitioner's  prior landings            at  the subject  airport, had  been on  Runway 26  right, not            Runway 26  left.  The  ALJ summarized the relevant  events as            follows:                 Petitioner  obviously, even  though  he was  wrong,                 through force of habit thought he was to land on 26                 right.   When he  saw and  heard the  communication                 relative  to the Delta airliner that was waiting on                 the taxiway  on 26 right, and then  heard they were                 to land on 26 left, then [petitioner] queried [the]                 Captain . .  . as to where [they]  were supposed to                 land.   The testimony is clear and unequivocal, the                 Captain told him to land  on 26 right which he, the                 First Officer, proceeded to do.            Administrator v.  Chaille, Dkt.  No. SE  9696, N.T.S.B.  Oral            _____________     _______            Initial Dec. at 151 (March 30, 1990).                      The  ALJ concluded that while the case was "close,"            under  the  circumstances  petitioner  should  be  given  the            "benefit  of  the  doubt"  and  excused  from  verifying  the            clearance with [ATC].                  Ordinarily I would buy that [petitioner should have                 called  ATC to verify the clearance], but here they                 were well on their way to a few thousand feet above                 the runway.  And in addition to that, it is obvious                 that  the Eastern pilots had flown together on many                 occasions.  There was great admiration  and respect                 on the part of [petitioner] for [the] Captain . . .                                         -5-             Chaille, N.T.S.B. Oral Initial Decision at 151.             _______                      The   NTSB,   on  the   other   hand,   viewed  the            applicability of Coleman differently:                              _______                 It is clear from Coleman  and the cases that follow                                  _______                 it   that  if   the   pilot   not  handling   radio                 communications  does  not  hear  or  understand   a                 transmission,  he  may, in  certain  circumstances,                 rely  on the advice of  the pilot working the radio                 as to  the  transmission's content.   However,  the                 Administrator argues correctly, we think, that this                 should  not be  extended  to situations  where  the                 pilot who seeks to  rely on the radio operator  has                 reason to  doubt the accuracy  of the advice  he is                 given by  the other pilot.                      .  .  .  .                      In  the  interest  of  safety,  the  degree of                 confusion in  the cockpit that  necessarily results                 when the pilot operating the controls has heard two                 conflicting   characterizations   of   the  landing                 clearance,    should   prompt    a   request    for                 clarification from ATC.  Force of habit and respect                 are  not  factors  to  be  considered  by  a  pilot                 determining  something as  important  as a  landing                 clearance.            Administrator v. Chaille,  N.T.S.B. Order  No. EA-3643,  1992            _____________    _______            NTSB LEXIS 176 at **4, 6 (Aug. 12, 1992).                       Petitioner argues that the NTSB's failure to  apply            the Coleman defense to the facts of his case was an arbitrary                _______            departure  from its  own prior  holdings in  Coleman and  two                                                         _______            later  cases, Administrator v. Thomas, 3 N.T.S.B. 349 (1977),                          _____________    ______            and Administrator  v. Crawford, 1986  NTSB LEXIS 246  (May 8,                _____________     ________            1986).  While  the facts in each case  are unique, petitioner            points out that, in all three cases, the NTSB determined that                                         -6-            a  pilot operating an  aircraft had reasonably  relied on the            officer operating the radio.                       "Under  our very narrow standard of review, we must            uphold  the  [NTSB's]  decision  if  it  is  not  `arbitrary,            capricious,  an  abuse  of discretion,  or  otherwise  not in            accordance with  the law.'"   Hite v. NTSB,  991 F.2d  17, 20                                          ____    ____            (1st Cir.  1993) (quoting  5 U.S.C.    706(2)(a)).   "We must            defer to  the wisdom of  the agency provided its  decision is            reasoned and rational,  and even `uphold  a decision of  less            than ideal  clarity if  the agency's path  may reasonably  be            discerned.'"  Chritton v. NTSB,  888 F.2d 854, 856 (D.C. Cir.                          ________    ____            1989) (quoting Bowman  Transp. Inc. v.  Arkansas-Best Freight                           ____________________     _____________________            System, Inc., 419 U.S. 281, 286 (1974)).              ____________                      Applying   this  standard,   we   think  the   NTSB            reasonably  rejected   petitioner's  interpretation   of  the            agency's prior decisions.   As  respondent's brief  contends,            the  facts in  each  of the  three  cited cases  differ in  a            critical respect  from those presented  by petitioner's case.            In   the  present  case,   the  NTSB  concluded   that  radio            transmissions which petitioner  personally overheard provided            reason for  him to  question  the accuracy  of the  captain's            statement.   Petitioner therefore  should have  confirmed the            correct runway clearance  with the controller.   By contrast,            in Coleman and Thomas  the pilot at the  controls knew of  no               _______     ______            reason to  doubt the  accuracy of  the clearance  information                                         -7-            relayed by the  officer operating the radio.   In Coleman the                                                              _______            pilot incorrectly  understood  a  single  radio  transmission            relating  to   altitude.     He  relied   on  his   copilot's            confirmation,  in circumstances  where  the practice  was  to            avoid further radio communication with departure control.  In            Thomas, the pilot's reliance on a first officer's information            ______            provided  an  affirmative  defense where,  although  the  ATC            instruction was  transmitted, it was not received or heard by            any  of  the three  officers  in  the  cockpit at  the  time.            Likewise, in Crawford, the pilot had no known reason to doubt                         ________            that his  first officer had  accurately followed instructions            by relaying  a crucial communication  to the ATC.   Thus, the            NTSB's  decision here not  to extend the  Coleman affirmative                                                      _______            defense to absolve a pilot who heard at least one of the four            correct transmissions but failed to follow through, was based            on a fair  reading and distinction between this  case and the            agency's own precedents.4                        We  also  reject  petitioner's  argument  that  the            NTSB's  decision arbitrarily  imposed upon him  an individual            burden of  communication that violated other regulations, and            could   not  have   been   safely   accomplished  under   the                                            ____________________            4.  Respondent  attached to its brief copies of several other            recent NTSB  opinions where, in analogous  circumstances, the            NTSB rejected a Coleman or similar defense, finding  that the                            _______            pilot's  reliance on another  officer or crew  member was not            justified.  While we need not discuss these other cases here,            we wish to  acknowledge the thorough, careful  and persuasive            analysis of the issues presented in respondent's brief.                                              -8-            circumstances.  The  two regulations cited by  petitioner are            inapposite.   The first,  14 C.F.R.    121.533(e)  (1987), is            inapplicable  on its face.    The other,  14 C.F.R.   91.3(a)            (1987), as interpreted by the NTSB, does not give the Captain            final  authority to override an ATC  clearance in the absence            of  an in-flight emergency.  Administrator v. Jesch, N.T.S.B.                                         _____________    _____            Order  No. EA-3425,  slip  op.  at 6  (1991).   No  in-flight            emergency  or hazard was claimed here.  Petitioner testified,            moreover, that when he heard the transmission that led him to            query the  captain,  he was  ready  to conduct  a  go-around,            presumably   to  prevent   a  wrong   landing.     In   these            circumstances, the NTSB could fairly conclude that petitioner            had time to safely obtain a clarification from ATC.                      The agency's  interpretation of  safety regulations            is entitled  to a high  degree of deference from  this court.            Janka v. NTSB, 925 F.2d 1147, 1151 (9th Cir. 1991).  Congress            _____    ____            has  delegated to  the agency  the  responsibility to  ensure            flight safety and avert preventable tragedies.  Hite v. NTSB,                                                            ____    ____            991 F.2d at 20; Johnson v. NTSB, 979 F.2d 618, 623  (7th Cir.                            _______    ____            1992);  Rochna v.  NTSB, 929  F.2d 13,  14 (1st  Cir.), cert.                    ______     ____                                 _____            denied, 112 S. Ct. 305  (1991).  This court cannot substitute            ______            its own judgment for that of the agency, especially where the            issue, the relative safety of a pilot's in-flight operations,            is peculiarly within  the agency's expertise.  We review only            to  determine  whether  the  NTSB's  decision  is "arbitrary,                                         -9-            capricious,  an  abuse  of discretion,  or  otherwise  not in            accordance with the law."  5 U.S.C.   706;  Hite, 991 F.2d at                                                        ____            20.  We see no abuse here.                      Finally,   there  is   no  merit   to  petitioner's            contention  that the  NTSB mischaracterized both  his hearing            testimony  and the  ALJ'S  initial  decision.    Petitioner's            testimony contained inconsistencies,  a circumstance mirrored            in the  ALJ's oral summary of  the evidence.  The  NTSB noted            the   inconsistencies    and,   contrary    to   petitioner's            characterization, followed the ALJ's finding that, in effect,            petitioner's admissions were more credible than his  denials.            Based  on our  own  reading  of  the transcript,  the  NTSB's            characterization of the evidence was fair and reasonable; and            it was  supported by  substantial evidence.   Agency  factual            findings will not be disturbed on appeal so long as they rest            on substantial evidence.  Throckmorton v. NTSB, 963 F.2d 441,                                      ____________    ____            443  (D.C. Cir.  1992); McCarthney  v. Busey, 954  F.2d 1147,                                    __________     _____            1153 (6th Cir. 1992);  Janka, 925 F.2d at 1151; Chritton, 888                                   _____                    ________            F.2d  at 856;  cf. Chirino  v. NTSB,  849 F.2d  1525, 1529-30                           ___ _______     ____            (D.C.  Cir.  1988)  (upholding   NTSB'S  reversal  of   ALJ's            credibility determination as not arbitrary or capricious).                      Accordingly, the petition for review is denied, and            the order below is affirmed.                               ________                                         -10-
