886 F2d 334 Young v. Department of Transportation

886 F.2d 334

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Frederick E. YOUNG, Petitioner,
v.
DEPARTMENT OF TRANSPORTATION, National Transportation Safety
Board, Federal Aviation Administration, Respondents.

No. 88-7323.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 30, 1989.
Decided Sept. 19, 1989.
Argued and Submitted June 30, 1989

San Francisco, California

Before TANG, REINHARDT, and WIGGINS, Circuit Judges.


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1

MEMORANDUM*

2

Frederick E. Young seeks review of an order of the National Transportation Safety Board (NTSB) suspending his commercial pilot certificate for 30 days. The NTSB found that Young had operated his helicopter in an unsafe manner, thereby violating Federal Aviation Regulations (FAR) 91.9 and 91.79(a) and (d). 14 C.F.R. Secs. 91.9, 91.79(a), (d) (1988) (these regulations have not been amended since 1985 when the incident giving rise to this appeal occurred). Young contends that (1) the FAR's are unconstitutionally vague, (2) the NTSB administrative law judge (ALJ) committed prejudicial error by extensively questioning a witness, and (3) the NTSB findings are not supported by substantial evidence. We have jurisdiction under 49 U.S.C. app. Secs. 1486(a), 1903(d) (1982), and we affirm.

BACKGROUND

3

Young is an experienced helicopter pilot. In 1985 he was employed by a commercial helicopter firm, piloting a Hughes 500D model helicopter. On October 22, 1985, Young flew Walter Brown, a Pacific Gas & Electric Company employee, over Yuba City, California, to inspect power lines and substations in that area. The mission included inspection of a substation located at the intersection of Stafford Street and Forbes Avenue. The neighborhood contained a mix of light industrial and residential use.

4

Young concedes that he flew over this intersection at approximately 50-75 feet above ground level. Michael Bigler, driving in the area, stopped his truck in the street under the hovering helicopter and wrote down the helicopter's identification number. John Lush owned the shop located at the corner of Stafford and Forbes. He and a coworker went outside when they heard the noise of the helicopter. Like Bigler, they noticed that the helicopter was blowing debris from the street. Jack Anglin, an employee of the warehouse next door, also went outside when he heard the helicopter. These men observed the helicopter as it alternately hovered and moved slowly up the street. Bigler reported the incident to the Federal Aviation Administration (FAA).

5

Although Young contends that he hovered only once over the Stafford and Forbes intersection, he admits that his operation of the helicopter at that location fell within the shaded portion of the aircraft's "height-velocity curve." This curve depicts altitude and speed combinations. Operating within the shaded portion of the curve is potentially dangerous if the helicopter should lose power. An unpowered controlled descent after engine failure is called an autorotation. At a very low altitude, the pilot will not have time to restore power before the helicopter reaches the ground. If the helicopter does not land in a level attitude, there is a danger of the rotors hitting the ground and shredding. Autorotation is more difficult and potentially more dangerous if the pilot must maneuver around power lines, buildings, and other obstacles such as trees and cars, as well as people.

6

On July 22, 1986, the FAA Administrator suspended Young's commercial pilot certificate for 90 days based on Young's operation of the helicopter during the Yuba City mission. Young appealed the suspension and a hearing was held before a NTSB ALJ on March 12 and 13, 1987. The Administrator presented the testimony of witnesses Bigler, Lush, and Anglin, FAA investigator John Kelley, and experts Donald Armstrong and Dudley Mason. Young testified on his own behalf and also presented the testimony of Brown, the passenger on the flight, and experts Jonathan Long and Steven Sullivan. The ALJ found that (1) Young's helicopter hovered three times in the Stafford-Forbes area, operating at a dangerous altitude-speed combination, (2) two witnesses stood just outside their businesses while the helicopter moved through the area and a third witness stood beneath the helicopter while it hovered, (3) two cars were parked near one area where the helicopter hovered, and (4) Young was unaware of the people standing below the helicopter. The ALJ concluded that Young's operation of the helicopter violated the FAR's, but reduced the suspension from 90 to 30 days.1 On June 27, 1988, the NTSB affirmed the ALJ's order. Young timely petitions this court for review.

DISCUSSION

7

An order of the NTSB may be set aside if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," "contrary to constitutional right," or "unsupported by substantial evidence." 5 U.S.C. Sec. 706(2)(A), (B), and (E) (1982); see also Corey v. NTSB, 822 F.2d 9, 10 (2d Cir.1987) (per curiam). The NTSB's factual findings are conclusive when supported by substantial evidence in the record. Meik v. NTSB, 710 F.2d 584, 586 (9th Cir.1983) (per curiam). Purely legal issues are reviewed de novo. Go Leasing, Inc. v. NTSB, 800 F.2d 1514, 1517 (9th Cir.1986).


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8

The ALJ found that Young's conduct violated 14 C.F.R. Secs. 91.9 and 91.79(a) and (d). Section 91.9 states that "[n]o person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another." Section 91.79 states that no one may operate an aircraft below:

9

(a) [a]n altitude allowing, if a power unit fails, an emergency landing without undue hazard to persons and property on the surface.

10

.............................................................

11

...................

12

* * *

13

(d) Helicopters. Helicopters may be operated at less than the minimums prescribed in paragraph (b) or (c) of this section if the operation is conducted without hazard to persons or property on the surface.

14

The ALJ concluded that Young's helicopter operated below an altitude allowing a safe emergency landing, at such a low altitude as to create a hazard to persons or property on the ground, and in such a careless manner as to endanger the life or property of another. ER, Oral Initial Decision and Order at 485.

15

Young contends that sections 91.79(a) and (d) are unconstitutionally vague. He argues that the mere fact that experienced pilots disagree as to whether his operation of the helicopter violated the regulations proves that they are unconstitutionally vague. "A statute is not unconstitutionally vague if it gives fair warning of the proscribed conduct." Daily v. Bond, 623 F.2d 624, 626 (9th Cir.1980). A vagueness problem can be cured by case law clarifying the enactment. See id. at 626.

16

We do not find these regulations to be impermissibly vague. A regulation prohibiting unsafe practices cannot possibly define the precise circumstances of every conceivable violation.2 Section 91.79(a) was drafted to accommodate the many factors that must be evaluated to determine whether a pilot can land safely in the event of a power failure, including the location of the landing and the altitude and speed of the flight. Section 91.79(d) is violated only if the operation of the helicopter at a certain altitude creates a hazard. Administrator v. Reynolds, NTSB Order No. EA-1770 (1982). The NTSB has held that the risk of injury to people and property caused by dust and debris blown about by rotor blade downwash is a sufficient hazard to constitute a violation of section 91.79(d). Id. We conclude that sections 91.79(a) and (d) give pilots "fair warning" of the proscribed conduct and therefore are not unconstitutionally vague.

17

Young contends that the ALJ denied him a fair hearing by conducting an extensive examination of James Kelley, an FAA investigator. Our review of the record convinces us that the ALJ did not exceed his proper role and that his conduct does not constitute reversible error. An ALJ may interrogate witnesses in order to clarify the record or his own understanding of the testimony. See 49 C.F.R. Sec. 821.35(b)(3) (1988); see also Administrator v. Winslow, NTSB Order No. EA-2628 (1987).

18

Young contends that his experts were better qualified to render an opinion than were the experts of the FAA and therefore substantial evidence does not support the findings in this case. Young does not deny that testimony by the FAA experts supports the findings, rather he contends that this testimony cannot be given any weight. A review of the credentials of the experts, however, indicates that all are experienced helicopter pilots and well qualified to render an opinion. In affirming the ALJ's order, the NTSB found that the testimony of the FAA experts "was more consistent with the facts and generally more cogent and persuasive as to the hazards created than the expert testimony provided by [Young's] witnesses." ER, NTSB Opinion and Order at 11. We cannot say that this finding was clearly erroneous. Substantial evidence supports the findings in this case.

CONCLUSION

19

The order of the NTSB is AFFIRMED.

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

The ALJ reduced the suspension, in part, because power line inspections were routinely conducted in this manner and thus Young was merely following a general practice in his operation of the helicopter

2

Young contends that the NTSB has interpreted sections 91.79(a) and (d) to require only that a pilot exercise his own good faith subjective judgment in operating the aircraft and that this standard is constitutionally defective. Young, however, misconstrues the case cited. In Administrator v. Reynolds, NTSB Order No. EA-1770 (1982), the NTSB did not hold that a pilot exercising good faith subjective judgment does not violate section 91.9. Rather the NTSB applied a reasonably prudent pilot standard to determine whether a violation occurred. Id. Since "subjective good faith judgment" is not the standard under sections 91.79(a) or (d), Young's vagueness argument fails on that ground