Ellis v. FAA ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-60778
Summary Calendar
RODGER M. ELLIS,
Petitioner,
versus
JANE F. GARVEY, ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION,
Respondent.
Petition for Review of an Order of the
National Transportation Safety Board
(SE-15361)
August 3, 1999
Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.
*
PER CURIAM:
Rodger M. Ellis seeks review of the National Transportation
Safety Board’s (“the Board”) order to revoke his airman’s
certificate. The Board affirmed the judgment of an Administrative
Law Judge (“ALJ”) finding that Ellis’s actions violated 14 C.F.R.
§§ 91.111(a), 91.123(b), 91.129(i), and 91.13. Specifically, the
Board found that Mr. Ellis had operated his aircraft so close to
another aircraft as to create a collision hazard, operated his
aircraft contrary to air traffic control instructions, operated his
aircraft when appropriate clearance was not received from air
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
traffic control, and operated his aircraft in a careless or
reckless manner as to endanger the life or property of another.
Ellis contends that the Board erred in affirming the ALJ’s ruling
because (1) the air traffic controller (“ATC”) was operating
pursuant to improper procedures, and (2) there was no evidence of
actual endangerment.
In reviewing a decision by the National Transportation Safety
Board, “[w]e may consider only whether the agency’s findings and
conclusions were ‘arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law’ or ‘unsupported by
substantial evidence.’ “ Miranda v. National Transportation Safety
Board, 866 F.2d 805, 807 (5th Cir. 1989) (quoting 5 U.S.C. §
706(2). The scope of review, therefore, is narrow, and the
reviewing court may reverse only upon a finding of a clear error of
judgment. See id.Ellis first argues that he should not be penalized for
disregarding the ATC’s instructions because the ATC was acting
pursuant to improper procedures and phraseology. Although the
Fifth Circuit has not addressed whether an ATC’s errors may excuse
the actions of a pilot, other circuits have held that they cannot.
The District of Columbia Circuit has found that even when an ATC
acts improperly, a pilot still has a duty to receive and handle ATC
communications. See Jackson v. National Transportation Safety
Board, 114 F.3d 283, 287 (D.C. Cir. 1997). Similarly, the Eighth
Circuit has held that “even in the face of confusing or inadequate
instructions from the control tower, the pilot must, if he can,
assure the public safety by requesting clarification before he
proceeds.” Borden v. National Transportation Safety Board, 849
F.2d 319, 322 (8th Cir. 1988). In Borden, as in this case, the
petitioner argued not that the ATC lacked the authority to give the
instructions, but that he had used improper procedures. Id. The
evidence here shows that Ellis understood the ATC’s instructions
but decided to disregard them because he felt that the ATC was not
instructing him properly. Further, the Board found that none of
the ATC’s instructions to Ellis were inconsistent with the proper
exercise of the ATC’s authority. Even if the ATC had been acting
improperly, however, it would not excuse Ellis’ disregard of the
instructions. We therefore find no abuse of discretion by the
Board.
Ellis next contends that his certificate was improperly
revoked because there is no evidence of actual endangerment to
support the charge that he acted recklessly. The Board has held
that a finding of recklessness is comparable to a finding of gross
negligence. See Administrator v. Krueger, NTSB Order No. EA-4281,
1994 N.T.S.B. LEXIS 308, at *4 (Nov. 10, 1994). Further, even
potential endangerment can support a recklessness finding. See
Administrator v. Chason, N.T.S.B. Order No. EA-3528, 1992 N.T.S.B.
LEXIS 47, at *6 (Apr. 9, 1992).
Although Ellis questions the whether the ATC was actually
fearful of a potential collision between Ellis’s aircraft and
another aircraft in the vicinity, the ALJ considered the testimony
to be credible and made a finding of recklessness. Credibility is
the province of the ALJ and not this Court. See Borden, 849 F.2d
at 321. The record reflects that the ATC advised Ellis of the
other aircraft and instructed him to continue on his downwind.
Ellis proceeded to disregard the ATC’s instructions and then land
his aircraft without clearance. We find that there is sufficient
evidence to support the ALJ’s finding of recklessness.
AFFIRMED.