United States of America, Plaintiff-appellee, v. Paul Patric Mcbride, Defendant-appellant, 788 F.2d 1429 (10th Cir. 1986)

This is an appeal from a district court judgment enforcing an order issued by the Federal Aviation Administration (FAA) on August 6, 1979, requiring defendant-appellant to surrender his airman's certificate for a 180 day suspension and assessing a $1,000 civil penalty for earlier noncompliance with the FAA's suspension order. 49 U.S.C. §§ 1487(a), 1471(a) (1), 1473(b) (1) & 1487(b). In a bench trial, the district court did not allow appellant to collaterally attack the FAA's order. Appellant contends that the order is void on both procedural and substantive grounds and, therefore, may not be enforced. We disagree and affirm.

By letter dated May 3, 1979, by certified mail, the FAA sent appellant notice of a proposed suspension of his airman's certificate for 180 days and until such time as appellant obtained a valid medical certificate. See 49 U.S.C. § 1429(a);¹  14 C.F.R. Sec. 13.19. The F.A.A. alleged that appellant had operated an aircraft: 1) without holding a valid medical certificate in violation of 14 C.F.R. Sec. 61.3(c), 2) without familiarizing himself before the flight with all available flight information including tower frequencies in violation of 14 C.F.R. Sec. 91.5, 3) without maintaining two-way radio communication with the tower in violation of 14 C.F.R. Sec. 91.87(b), 4) without receiving appropriate clearance for taxiing and takeoff from air traffic control in violation of 14 C.F.R. Sec. 91.87(h), 5) outside of basic VFR weather minimums by operating in a control zone beneath the ceiling when the ceiling was less than 1,000 feet in violation of 14 C.F.R. Sec. 91.105(c), 6) in a careless or reckless manner so as to endanger the life of another in violation of 14 C.F.R. Sec. 91.9, and also 7) failing to present his logbook when requested to do so in violation of 14 C.F.R. Sec. 61.51(d) (1).

The May 3, 1979, letter indicated that an order for suspension would issue unless appellant elected to proceed under a different option within 15 days from his receipt of the letter. 14 C.F.R. Sec. 13.19(c). This letter was returned to the FAA unclaimed by appellant.

On August 6, 1979, the FAA issued its order suspending appellant's private pilot certificate as of August 24, 1979, and for 180 days from the date of actual surrender. The order was sent by certified mail and was returned to the FAA unclaimed by appellant. On September 17, 1979, the FAA sent appellant, by certified mail, the suspension order and requested that he surrender his certificate. This letter was returned to the FAA unclaimed by appellant, however, the FAA resent the letter by regular mail on October 16, 1979, and it was not returned. Appellant acknowledges receipt of this letter. Record at vol. IV, p. 18.

The trial evidence indicates that appellant was later sent more information concerning the suspension order and he then appealed to the National Transportation Safety Board (NTSB). 49 C.F.R. Sec. 821.30; record at vol. II, plaintiff's trial exh. 5 & 6. In his notice of appeal to the NTSB received February 7, 1980, appellant requested that he not be sent certified mail.² 

The FAA filed its complaint before the NTSB with the NTSB administrative law judges (ALJ's) and sent a copy by certified mail to appellant. 49 C.F.R. Secs. 821.31 & 821.35. This letter was returned to the FAA unclaimed by appellant but remailed by regular mail on March 25, 1980. Appellant responded by letter dated April 18, 1980. In February 1981, the office of the ALJ sent appellant a preliminary notice of hearing setting the hearing on May 11, 1981, in Tulsa. In March 1981, the ALJ sent appellant the official notice of hearing which included the hearing location. 49 C.F.R. Sec. 821.37.

The initial decision of the ALJ affirmed the FAA's suspension order when appellant failed to appear at the hearing on May 11, 1981. 49 C.F.R. Secs. 821.35(b) (10) & 821.42. The next day appellant wrote the ALJ explaining that he was absent because he went to the United States Courthouse rather than the location contained in the notice of hearing. The ALJ suggested that the letter be docketed as an appeal to the full NTSB on May 18, 1981. See 49 U.S.C. § 1903(a) (9).

On July 15, 1981, appellant received a letter from the General Counsel of the NTSB informing him that although his May 12, 1981, letter to the ALJ had been docketed as an appeal from the initial decision of the ALJ, he was to advise by July 30, 1981, whether the letter should be treated as a notice of appeal and whether he intended to submit a brief. See 49 C.F.R. Secs. 821.47 & 821.48. The letter warned that a failure to timely respond would result in the closing of the appeal file.³  Appellant, who is a practicing lawyer, took no further action based on a telephone conversation with an unidentified staff person in Washington, D.C. Record at vol. IV, p. 26. In August 1981, the NTSB General Counsel returned appellant's file to the NTSB so that the appeal could be closed. On August 19, 1981, the NTSB entered its final order denying the appeal and making final the FAA's suspension order of August 6, 1979.

The present enforcement action was filed February 19, 1982, by the government and appellant was served personally on March 31, 1982. Default judgment was entered against appellant on April 27, 1982; it was later set aside on October 19, 1982. The judgment enforcing the FAA's order and assessing a $1,000 civil penalty was entered May 27, 1983. Appellant timely appealed.

Appellant also sought review of the NTSB's final order of August 19, 1981, by seeking permission to file an appeal out of time with this Court. Under 49 U.S.C. § 1486(a),⁴  and absent reasonable grounds for not timely filing, appellant had 60 days from the date of entry of the NTSB's August 19, 1981, order to appeal. Appellant's motion for leave to file an untimely appeal was filed July 8, 1983, almost two years after the NTSB order, and was denied by a two-judge panel of this Court. McBride v. N.T.S.B., Misc. No. 83-8041 (10th Cir. Aug. 9, 1983).

Appellant contends that the FAA's suspension order is void for lack of due process and unenforceable. He maintains that under 49 U.S.C. § 1429(a), supra note 1, he was entitled to be advised of the charges and given an opportunity to answer them. The district court decided not to allow inquiry into the procedural or substantive merits of the suspension order and it is this decision appellant now contests.

The trial judge correctly recognized that the FAA's suspension order was not subject to collateral attack in district court. Gaunce v. deVincentis, 708 F.2d 1290, 1292-94 (7th Cir.), cert. denied, 464 U.S. 978, 104 S. Ct. 417, 78 L. Ed. 2d 354 (1983); Carey v. O'Donnell, 506 F.2d 107, 110-11 (D.C. Cir. 1974), cert. denied, 419 U.S. 1110, 95 S. Ct. 783, 42 L. Ed. 2d 806 (1975). Congress has provided that judicial review of orders of the FAA and NTSB shall be by direct appeal exclusively to the courts of appeals. 49 U.S.C. §§ 1486(a) & (d);⁵  Nevada Airlines, Inc. v. Bond, 622 F.2d 1017, 1020 (9th Cir. 1980); City of Rochester v. Bond, 603 F.2d 927, 934-35 (D.C. Cir. 1979). Even though appellant's claims are of constitutional dimension, they could have been addressed had he followed the statutory procedure for review of the suspension order. 49 U.S.C. §§ 1429(a) & 1486(a) & 49 C.F.R. Secs. 821.30 to 821.50; Robinson v. Dow, 522 F.2d 855, 858 (6th Cir. 1975). The sixty day time period for appealing the NTSB's order affirming the FAA's suspension order had long since expired when this Court denied appellant's motion for leave to file an untimely appeal. See Northwest Airlines v. F.A.A., 675 F.2d 1303, 1306 (D.C. Cir. 1982). From this it follows that the district court was without jurisdiction to consider appellant's collateral attack on the suspension order. Kesinger v. Universal Airlines, Inc., 474 F.2d 1127, 1131-32 (6th Cir. 1973).

We have reviewed the record and conclude that the district court's enforcement of the suspension order was proper, 49 U.S.C. § 1487, and that the finding of a single civil violation under 49 U.S.C. § 1471(a) (1) is supported by sufficient evidence. See Fed. R. Civ. P. 52(a); F.A.A. v. Landy, 705 F.2d 624, 628 (2d Cir.), cert. denied, 469 U.S. 895, 104 S. Ct. 243, 78 L. Ed. 2d 232 (1983) (clearly erroneous standard).

AFFIRMED.