
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1627                                     ECHO, INC.,                                     Petitioner,                                          v.           DAVID R. HINSON, ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION,                                     Respondent.                                 ____________________                          ON PETITION FOR REVIEW OF AN ORDER                     OF THE NATIONAL TRANSPORTATION SAFETY BOARD                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Coffin, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________            James  G. Goggin  with  whom Carl  E. Kandutsch  was on  brief for            ________________             __________________        petitioner.            James W. Tegtmeier with whom Kathleen A.  Yodice was on brief  for            __________________           ___________________        respondent.                                 ____________________                                   February 9, 1995                                 ____________________               COFFIN, Senior Circuit  Judge.  On  the evening of  November                       _____________________          19, 1993, an emergency  medical evacuation helicopter operated by          petitioner  Echo, Inc. (Echo) ran out of fuel, lost engine power,          and crashed into  Casco Bay  off the Maine  coast, killing  three          passengers.    The  Federal  Aviation  Administration  (the  FAA)          charged the pilot and Echo with violating several aviation safety          regulations   and   issued  emergency   orders   revoking  Echo's          certificate  to operate as an  air carrier, a  sanction upheld by          the  National  Transportation Safety  Board  (the  Board).   Echo          petitions for review.  We affirm.                                    I. Background                                       __________          A.   Facts               _____               Echo is a Maine  corporation established in 1985 by  John G.          Rafter, Jr.  to provide commercial flight  services by helicopter          in  the Portland area.   Rafter is Echo's  president, director of          operations, director of maintenance,  and chief pilot.   In 1993,          Rafter founded another  company, Airmed  Skycare, Inc.  (Airmed),          which was  devoted  exclusively to  emergency medical  services.1          Airmed  owned its  own helicopter for  air ambulance  flights and          employed flight nurses  and paramedics.  It  contracted with Echo          to  supply the  pilots for  its  flights.   In  the afternoon  of          November  19, 1993, Airmed received a call requesting that a burn          victim be flown from Ellsworth, Maine to  Portland for treatment.          With Rafter  as pilot,  and flying  under  Echo's certificate  to                                        ____________________               1   Rafter  was   also   Airmed's  president   and  majority          shareholder.                                         -2-          operate  as an air carrier, the helicopter took off from Portland          to Ellsworth.               The weather conditions at  the time of takeoff were,  in the          words  of  Echo, "marginal,"  because  of  fog  and  light  rain.          Nevertheless,  Rafter concluded  that  the flight  could be  made          safely under  Visual Flight Rules  (VFR), and he  took off.   The          trip to Ellsworth was successful.  The medical team picked up the          burn  victim,  and  the   helicopter  began  its  return  flight.          Approximately fifty miles northeast of Portland, however, weather          conditions deteriorated.   The helicopter, then  travelling at an          altitude of  approximately 800  feet, entered the  clouds; Rafter          was  no longer  able  to navigate  visually.   He  requested  and          received Instrument Flight Rules  (IFR) handling from air traffic          control at the Brunswick Naval Air Station,  which instructed him          to climb  above the clouds  to 3,000 feet.   Rafter climbed  to a          higher  altitude and  proceeded to  navigate by  the helicopter's          instruments.               It is  clear that,  under normal conditions,  neither Rafter          nor  the helicopter  was authorized  to operate  under IFR.   The          operations  specifications  on  Echo's  air  carrier  certificate          authorized  Echo  to  operate  on  "VFR  only."     Further,  the          helicopter did  not contain  all the  equipment required for  IFR          operation.  Finally, Rafter did  not have the recent  operational          experience  necessary for  IFR operation.   Echo  maintains that,          because of the emergency  situation caused by weather conditions,          operation under IFR was justified pursuant to 14 C.F.R.   91.3(b)                                         -3-          ("In an in-flight emergency requiring immediate action, the pilot          in  command may deviate from any rule  to the extent necessary to          meet that  emergency.").  Rafter  did not  declare an  emergency,          however,  or advise air traffic that he, Echo, and the helicopter          were all  unauthorized  to operate  under IFR,  conduct he  later          ascribed to "pilot ego."                 Not  having   been  advised   otherwise,  the  air   traffic          controller  treated  the  flight  as  normal  IFR  traffic.    At          approximately  8:15 p.m.,  after tracking  the flight  for thirty          minutes, Brunswick Naval  Air Station passed  it off to  Portland          Approach  Control.    Meanwhile,  at the  higher  elevation,  the          helicopter  was  encountering  strong headwinds  and  turbulence,          causing slower progress to  Portland than Rafter had anticipated.          Air traffic  in  Portland noticed  that  the helicopter  was  not          maintaining its  assigned course or altitude,  which Rafter later          attributed to the demands of piloting under IFR and in turbulence          when  the helicopter was not properly equipped for IFR operation.          Six or seven minutes  after contacting Portland Approach Control,          Rafter  noticed that  he was  running low  on fuel.   He  advised          Portland air  traffic and requested a  direct instrument approach          to runway 29.  Air traffic gave him top  priority, but it was too          late.  Rafter  soon reported  a loss  of fuel  pressure, and  the          engine  lost power.   About  eight miles  north of  Portland, the          helicopter crashed into Casco  Bay.  The burn patient,  paramedic          and nurse all died.  Rafter survived the crash.                                         -4-               This  was  not the  first  time Echo  had  violated aviation          safety regulations.   In 1987,  Echo was found  to have  employed          unqualified pilots, operated a helicopter with a litter  that had          not  been inspected  and approved,  and flown  over water  with a          helicopter  that was not equipped with pop-out floats.  For these          breaches,  Echo's  operating certificate  was  suspended for  270          days, 255 days of which were waived pending one year of operation          without violations.          B.   Procedural History               __________________               After the crash, the FAA accused Echo and Rafter of numerous          regulatory violations  and  issued emergency  orders  immediately          revoking  Rafter's  pilot  certificate  and  Echo's  air  carrier          certificate.     A   full  evidentiary   hearing  ensued.     The          Administrative  Law   Judge  (ALJ)   upheld  revocation  of   the          certificates, accepting certain of  the allegations of wrongdoing          but  rejecting others.2  Echo  and Rafter appealed  to the Board.          The Board reduced the  revocation of Rafter's pilot's certificate          to a  180-day suspension, principally based  on its determination          that  Rafter could  not be  faulted for  his initial  decision to          accept  the flight  despite  the weather  conditions.   Based  on          Rafter's  misconduct in  his  capacity as  the  manager of  Echo,          however, the Board  upheld the revocation  of Echo's air  carrier          certificate.                                        ____________________               2  Most notably, the ALJ rejected the allegation that Rafter          commenced the flight with insufficient fuel.                                         -5-               In particular,  the Board  found that the  emergency weather          conditions that  developed did not excuse  the various regulatory          violations caused by  the helicopter's sustained operation  under          IFR.   The Board acknowledged  that a pilot  may deviate from any          regulation to respond to an in-flight emergency, but "only to the          extent  required to meet that  emergency."  14  C.F.R.   91.3(b).          It found  that, once Rafter was  no longer able  to operate under          VFR, he should have  asked air traffic for assistance  in landing          as soon as possible.  Instead, without advising air traffic of an          emergency,  or  that  he,  his  aircraft,  and  his  company were          unauthorized  to  fly  under  IFR,  he  obtained  IFR  clearance,          accepted a higher altitude, and proceeded to fly  toward Portland          for another thirty minutes.   The Board found that Rafter, in his          capacity  as the manager  of Echo, had  thus displayed  a lack of          disposition to comply with safety regulations:               [A] serious operational misjudgment that may be excusable as               an   aberrant   occurrence   for   an   individual   becomes               indefensible when that pilot is, also, the person in control               of  a  carrier's  operations,   for  an  air  carrier  whose               management does  not  adhere unflinchingly  to all  relevant               operational  standards  does  not  meet  its  obligation  to               provide  the highest degree of  safety.  We  think that when               respondent Rafter,  with full knowledge that  neither he nor               his  aircraft should be operating under IFR, surreptitiously               chose to disregard,  contrary to numerous requirements,  his               company's operations specifications and manual by proceeding               with a  flight he  should have ended,  he demonstrated  that               respondent  Echo lacks  the compliance  disposition expected               and demanded of an air carrier.          Echo now challenges this order.                                    II. Discussion                                        __________               Initially, we  note that Board decisions  are given generous          deference  on review:  they must  be affirmed  unless "arbitrary,                                         -6-          capricious,  an   abuse  of  discretion,  or   otherwise  not  in          accordance with law."   5  U.S.C.   706(2)(A);  Hite v.  National                                                          ____     ________          Transp. Safety Bd., 991 F.2d  17, 20 (1st Cir. 1993).   Moreover,          __________________          "`the  strong policy concern for  public safety requires that the          Board   be  given  a   wide  range  of   discretion  in  imposing          sanctions.'"  Hite, 991  F.2d at 20 (quoting Johnson  v. National                        ____                           _______     ________          Transp. Safety Bd., 979 F.2d 618, 622 (7th Cir. 1992).          __________________               Echo claims that the Board abused its discretion by revoking          its  certificate  rather than  issuing  a  lesser sanction.    It          grounds  this  assertion  upon  the premise  that  revocation  is          allowed only when  an air carrier engages  in repeated, flagrant,          or deliberate regulatory violations.               We disagree.   At the relevant time, the statutory authority          to  revoke an air  carrier certificate was  found at  49 U.S.C.            1429(a), which provided simply  that if, after investigation, the          Secretary  of  Transportation  "determines  that  safety  in  air          commerce or air transportation  and the public interest requires,          [he]  may issue an  order . . .  revoking . .  . [an] air carrier          operating  certificate."3   As  guidelines for  implementing this          broad discretion, an FAA order states:               Revocation  of  a certificate  is  used  as a  remedial               measure,   when  the   certificate  holder   lacks  the               necessary  qualifications . . .  .  [It] is appropriate               whenever the certificate holder's  conduct demonstrates               a  lack  of  the   care,  judgment  and  responsibility               required of the holder of such a certificate.                                          ____________________               3  The  statute  was  revised in  1994  without  substantive          change.  It now appears at 49 U.S.C.   44709(b).                                         -7-          Compliance and Enforcement Program, FAA Order No. 2150.3A   206.b          __________________________________          (Feb.  21, 1992).  This standard has governed Board decisions for          some  time.   E.g.,  Administrator v.  Guy  Am. Airways,  Inc., 4                        ____   _____________     _______________________          N.T.S.B. 888, 892 (1983) ("Revocation is reserved for those cases          in which  putative conduct, whether  safety-related or otherwise,          demonstrates that  a certificate  holder no longer  possesses the          requisite  qualifications,  in  terms   of  care,  judgment   and          responsibility, necessary  for  continued certification.").    We          recognized this standard in Hite, 991 F.2d at 20.                                      ____               Echo  points to language in  a different section  of the FAA          order  and certain  caselaw  as support  for  its assertion  that          revocation is appropriate only upon a finding of a pervasive lack          of qualifications manifested by deliberate, repeated, or flagrant          regulatory  violations.    The  language it  notes,  however,  is          nothing  but a list of certain instances when revocation might be          appropriate;4  the standard itself is as set out above.  Further,                                        ____________________               4 Echo points to   206.b(4) of the FAA order, which states:               In cases  involving businesses, revocation should  be sought               whenever   there   is  a   demonstration   of   a  lack   of               qualifications.   Revocation would probably  be appropriate,               for example,  in  cases  involving  deliberate  or  flagrant               violations or the falsification of records.  Revocation also               would  probably  be  appropriate   in  cases  in  which  the               certificate  holder  has  committed  the  same   or  similar               violations  in the  recent  past, or  where the  certificate               holder no longer  has, or  does not obtain  in a  reasonable               time, the personnel or equipment to conduct its operation in               accordance with the [Act] or [federal aviation regulations].          We  agree  with the  Sixth  Circuit's  observation, made  in  the          context  of  a challenge  to  an air  carrier's  suspension, that          listing several instances warranting  a particular sanction "does          not imply  that other circumstances never  warrant" the sanction.          Connaire, Inc. v.  Secretary, United States Dep't of Transp., 887          ______________     _________________________________________                                         -8-          the  cases it cites  do not support  the existence of  the higher          standard.   For example, Carey v. Civil Aeronautics Bd., 275 F.2d                                   _____    _____________________          518,  522 (1st Cir.  1960), held  that conduct  even on  a single          flight may justify  revocation of an airman's certificate.  Other          cited  cases,  while  involving  egregious  misconduct,  do   not          establish that  such misconduct is a  prerequisite to revocation.          E.g.,  Administrator v.  Mikesell,  N.T.S.B.  Order  No.  EA-2788          ____   _____________     ________          (1988).               Echo's other arguments  are equally unavailing.   It sees an          abuse of discretion in the Board's finding that Rafter's  conduct          during the  flight was relevant  to his qualifications  to manage          the operations of  the company.  For support, it  points to a few          decisions involving operational  misconduct by managers  who also          had  airman's  certificates,  which   held  that,  based  on  the          particular facts,  sanctions should  relate to the  company's air          carrier certificate only.  E.g., Administrator v. Diaz-Saldana, 1                                     ____  _____________    ____________          N.T.S.B.   1599   (1972)   (inappropriate   to   suspend  airline          president's  airman certificate for  authorizing company's use of          an  unairworthy aircraft;  since he  had not  piloted any  of the          relevant flights, sanction should fall on company alone).               Here,  however, Rafter was pilot of  a particular flight and          simultaneously Echo's president, director of operations, director          of maintenance, and chief pilot.  Assume that a flight facing the          same  emergency  weather  conditions  radioed in  to  Rafter  for          guidance,  and  that Rafter,  on the  ground,  told the  pilot to                                        ____________________          F.2d 723, 727 (6th Cir. 1989).                                         -9-          request IFR  handling without  advising air traffic  control that          the aircraft,  the pilot,  and the  company were  each prohibited          from  flying under IFR.  Assume further that Rafter, knowing that          IFR  was forbidden  for these  reasons, ordered  that  the flight          continue  under  IFR  for a  full  thirty  minutes.   Under  such          circumstances, it would hardly  be an abuse of discretion  if the          Board were to conclude that  Echo showed a lack of  the requisite          "care,  judgment  and  responsibility  necessary   for  continued          certification."  So too we find no abuse of discretion  here, for          Rafter is  not excused from his managerial  misconduct because he          was piloting the flight at the time.               Affirmed.               _________                                         -10-
