Echo, Inc. v. Hinson

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.

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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)

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("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.

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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.

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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,

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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).

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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

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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).

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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.

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