*1
(five
marijuana
the United
witnesses
him
port
into
States.
had identified
as a con-
regular
spirator),
Flights were made on
basis and
could not have
standard
been
Therefore,
they
significant continuity
involved a
of met.
we hold
Crutchfield
Indeed, all
membership.
the individuals in-
properly
trial.
denied a new
flight (except Lock-
volved in the
DC-6
final
Lastly, appellant Crutchfield main
prior
art)
in one
had been involved
tains that
the district court erred in limit
flights.
factual
situation in
Unlike the
ing his time for
before
jury
summation
Durades,
(9th
United
v.
ment to a asking Administration
the witness in the investigation. to assist February memo was dated
The witness had testified at trial that he
had first been contacted defendants
on March 1980. Crutchfield contends possessed if he had this information he McHENRY, Petitioner, Clinton A. pointed could have the discrepancy out be-
tween the memo and witness’s testimo-
ny,
thereby
have
would
been able to Langhorne
BOND, Administrator,
M.
Fed-
discredit the witness.
Administration,
eral Aviation
and Na-
Transportation Safety Board,
tional
Re-
reject
We
this contention.
spondents.
not clear that the new evidence contradicts
testimony.
witness’s trial
Even if it
No. 80-5721.
did, newly
impeaching
discovered
evidence
Appeals,
United
States Court
does not justify a new trial under United
Eleventh Circuit.
Johnson,
(5th
States v.
States v.
1976). Johnson, under Additionally, material, must the be evidence but it produce
also likely must be acquittal
of the defendant. the overwhelming Given
nature against of the evidence Crutchfield *2 Schnabel, Powell,
Sanders, Rob- Joseph & McDermott, Powell, T. Wash- ert D. Mark C., ington, petitioner. for D. C., Kozma, D. for Washington,
Daniel S. curiae, Line Pilots Ass’n. amicus Air Atty., Moseley, E. Asst. U. S. Thomas Miami, Fla., respondents. MORGAN, HILL and KRAV-
Before ITCH, Judges. Circuit MORGAN, tests, Judge: including ducted various an isotope Circuit brain, electrocardiogram scan Appellant challenges an order of Na- electroencephalogram, all of pro which (NTSB) Safety Transportation tional Board gave duced normal results. also first-class airman medical which denied him history the doctors verbal medical proper Jurisdiction is certification descriptions past included of three similar pursuant to 49 §§ U.S.C. *3 experiences. day The McHenry next Association, International, Air Line Pilots hospital from the Tampa released and re support has filed an amicus curiae brief in home to he turned Miami where was admit appellant’s position. A full discussion of hospital ted to another for further examina hearing the facts and the administrative supervision Ray tion of Dr. under Lo necessary claims. to address various pez, neurologist. McHenry gave a Dr. Lo pez same history medical again and I past experiences. described the three similar McHenry pilot Clinton has been a for 39 After testing additional extensive and eval 28,000 years and has accumulated over uation, Lopez diagnosis Dr. a final rendered flight years hours of For the time. last 23 (TGA) of Transient Global Amnesia and he a captain has served as for Eastern recommended to McHenry Eastern that be Airlines. a flying In addition to as com- to full flying returned status in March of pilot, McHenry mercial in participated However, the Federal Aviation Ad aerobatic and has an contests established (FAA) appellant’s ministration appli denied reputation pi- international as an aerobatic following cation for recertification the Sep lot. He more has won aerobatic contests tember. a final received denial of any than in pilot United histo- States airman first-class medical certification from ry- in FAA October of Federal Aviation concluded that 24,1977, January On Administrator McHenry suffered a experienced had a “disturbance of strange illness which resulted in the revoca consciousness satisfactory explana without tion of his airman medical certification.1 contemplated tion of cause” by At 1:00 the morning, o’clock in while land 67.13(d)(2)(i)(b), therefore, a C.F.R.'§ ing passenger flight Tampa, an Eastern medical denial of certification was appropria experienced he pneumatic a severe head te.2 petition then filed for rapid ache by decompression caused with the review The case NTSB. was re accompanies aircraft descent. McHen judge ferred to an law administrative who ry relinquished plane control of the to his evidentiary hearings commenced on the Gibson, co-pilot, completed Randall who February matter in of 1979. landing. ground, McHenry Once on the again navigated of the plane, took control it During the proceedings before the admin- Thereafter, to the ramp, parked it. he law judge, McHenry argued istrative began experience period of amnesia experienced episode he had isolated hospi confusion. took him a Gibson TGA which satisfactory constitutes a medi- tal where the amnesia explanation continued for several cal meaning within the of 14 cardiologist hours. A neurologist 67.13(d)(2)(i)(b). and a The Administra- McHenry at hospital evaluated con responded tor had experi- 1. For an extensive discussion of airman process, (d) medical neurologic— certification see Air Delta Mental lines, States, F.Supp. Inc. v. United (N.D.Ga.1980). (2) Neurologic (i) history No established medical or clini- provides part: 2. 14 C.F.R. § 67.13 diagnosis following: cal of either (a) (b) eligible A To for be a first-class medical disturbance of conciousness without certificate, applicant satisfactory must meet the re- medical of the quirements (b) (f) paragraphs through cause. this section. memory. matters order to test his He disturbances of con- of four
enced a total ciousness, including questions the three perfectly. described answered all of her treating physicians, just McHenry to his The second incident occurred before an was not an isolated episode in 1971. After competition therefore aerobatic drink- coffee, of TGA. Administrator manifestation ing cups several unusual alternatively that even if argued suddenly realized he McHenry, he 24, 1977, January was an isolated illness of people the names of several unsure of TGA, diagnosis does episode of TGA acquaintances. around him who were casual explana- provide quiz then him He asked his son to in the meaning regulations. tion within the asked same fashion that he had his wife correctly years several earlier. answer- experts numerous Appellant presented questions, ed all of but still decided not hearing. Dr. and other witnesses fly competition. Finally, the third treating physician in Mi- Lopez, McHenry’s in 1975 and involved ami, Lopez occurred is a Board- testified first. *4 McHenry the maiden a experi- forgetting name of neurologist years with certified recently Lopez a widely recog- TGA as divorced woman. Dr. inter- ence. He described prets first documented all as syndrome, but rare three of these incidents medical- nized 1957, the victim to suffer insignificant memory which causes ly normal losses of of hours. period for a several total amnesia everyone. common ended, Lopez amnesia has Dr. After appellant The next on behalf of witness explained, is left as but the victim before Irving Fosberg, psychologist was Dr. a who during events the at- memory with no of psycholo- specialized at one time in aviation leaves the with no episode tack. The victim Dr. gy. Fosberg repeatedly examined that can damage impairment or be detected a McHenry administered over dozen Although the science. modern medical psychological pro- Each of the tests. tests triggering exact cause or mechanism of Fosberg duced normal results. Dr. describ- unknown, syndrome recurrences are rare is zealously precise person, a McHenry as a He according Lopez. Dr. has treated perfectionist prides himself his who on patients between 25 and 30 with a TGA memory. McHenry’s opinion, In his first diagnosis. Lopez’s It Dr. that opinion is episodes memory just three of loss were McHenry experienced episode isolated that, forgotten name temporarily or ad- January is opinion TGA on His dress, episode January on while the later experiences based on his own with TGA more, something an actual distur- victims, similarity the remarkable between Fosberg bance of Dr. consciousness. testi- McHenry’s symptoms and classic cases of thought that the three fied earlier literature, TGA as described and the experiences epi- were similar to later produce failure of scores of medical tests to they involved a sode because all failure any Dr. explanation. Lopez was also prized his memory. questioned pre- the reference about to three Dr. a Board-certified Taxay, Emil inter- vious amnesic incidents medical histo- medicine, specializing nist in aviation also ry by McHenry given to him and used as McHenry. Taxay testified Dr. on behalf of hearing. He explained evidence at the that estimated that he has examined several very anxious to McHenry was aid the doc- during thousand his career. pilots He de- tors any with relevant information. Ac- perfectionist scribed who cordingly, McHenry related episodes three overemphasized significance forgotten something. where he had memory. three losses of He also earlier first in 1964 and occurred involved McHen- diagnosis concurred in the of TGA for ry forgetting the address a house while McHenry’s episode January through en amnesic route to the house an unfamiliar opinion that neighborhood. is his incident bothered medically competent flying to resume as a McHenry and he returned home to his wife question pilot. and asked her to him various commercial about persons, Dr. including A number of other Stevens. He that people stated most son, would not McHenry’s eye- wife testified as remember the circumstances sur- rounding respect forgetfulness, they witnesses with to the nature and normal would episodes remember a more serious extent three earlier of mem- incident such as an amnesic disturbance of ory person epi- loss. Each described the con- sciousness. Dr. Accordingly, Stevens memory sodes as mere with which stated losses diagnose that he would not everyone is familiar. episode fourth as TGA because TGA charac- appear The last for McHenry witness to teristically is an isolated occurrence. He Fisher, professor Dr. Charles of neu- admitted, however, if it were not for rology University. Dr. Harvard Fisher previous the three episodes, McHenry’s ill- being one credits himself with of the first ness in 1977 pattern would fit the classic recognize doctors to TGA. He has treated TGA. He experts also testified some patients diagnosis TGA, over 75 with common, believe recurrence although he published and has numerous articles and believes recurrence rare. He carefully internationally subject. lectured on the He period followed 11 cases for a substantial examined several times in 1977 time, and patients experienced none of the opinion 1978. It is his Fisher, a recurrence. Unlike Dr. Ste- memory three earlier losses were medically vens believes that itself is rare. He insignificant diag- events. concurs in a agrees with Dr. underlying Fisher final nosis of TGA for the in Janu- cause of TGA is still unknown. ary underlying of 1977. The cause of TGA 12, 1979, On June the administrative law Fisher, according is still unknown to Dr. *5 judge issued an initial decision in favor of pain however he believes that severe from a appellant McHenry. He concluded that pneumatic may have headache acted as a McHenry experienced had one “disturbance triggering McHenry’s mechanism case. January 1977, consciousness” in uncommon, He stated that itself is not TGA episodes the three earlier were medi although of TGA are extremely recurrences cally insignificant events. Accordingly, he rare. He one has seen recurrence in the McHenry found that had suffered an isolat treated, dozens of he has TGA victims judge of TGA. The law then place years this recurrence ten took after precedent, followed Petition of Wed episode. the initial McHenry He considers dle, (1972), 1 in holding NTSB 1933 that a inbe excellent health. diagnosis provides a satisfactory only behalf of the witness on Admin- explanation for an isolated disturbance of Stevens, istrator was Dr. Harold a Board- Thereafter, consciousness. the Administra neurologist. certified Dr. Stevens has nev- tor filed a with appeal notice of the NTSB. er examined but has' reviewed all 12,1979, On December four NTSB members of the relevant records and was unanimously reversed administrative present throughout hearings. He be- judge’s law initial decision and affirmed experienced lieves that four denying Administrator’s order disturbances of consciousness. stated airman medical certification.3 Nine months perfectionist character later, the evenly same four NTSB members would cause him relate an accurate medi- petition divided over key several issues on a thus, history cal to a physician, and McHen- split reconsideration the case. A ry’s description episodes of three similar reconsideration, however, Board on is insuf very significant and should not be labeled ficient to original reverse the Board’s deci
mere memory. sion, losses of The fact appeals now to this specifically can recall epi- these court. He primarily origi claims that irrational, sodes of memory significant loss is also nal decision of the arbi- 3. There are five of the NTSB members but reconsideration of this case. participated original four decision and 1190 something more than a scintilla evi- by substantial supported
trary, and not
evidence,
something less than the
but
the Administra-
argues that
He also
dence.
evidence;
“possibility
weight of the
to the NTSB
appeal
tor’s notice
conclusions from
drawing two inconsistent
initial de-
filed,
therefore the
untimely
prevent
an adminis
the evidence does
judge is
law
the administrative
cision of
sup
findings
being
reasons,
agency’s
we
trative
following
binding. For the
Consolo v.
claim,
by substantial evidence.”
ported
the first
appellant on
agree with
Commission,
607,
383 U.S.
Federal Maritime
the latter.
disagree on
1018, 1026,
620,
TGA. predict agency are in turn used to future Even the Ad- agree this conclusion. with witness, Stevens, way in that the doc- action much the same stat- sole ministrator’s in is used the courts. were trine stare decisis episodes earlier the three that if in- agency A settled course of action also medically insignificant disregarded agency pursuing poli- sures is fit the that events, later would then the Atchison, by Congress. cies committed to it of TGA. Record at 307-8. pattern classical Topeka, Ry. Fe Co. v. & Sante Board only The Dr. Stevens hesitated reason 2374, Trade, 800, 807, 2367, 93 episode as that 412 U.S. S.Ct. diagnose the later TGA was once, (1973). 37 characteristically only occurs L.Ed.2d 350 three suffered he believes then, is, presumption at least a There of consciousness. Rec- earlier disturbances [congressional] policies that will be those Therefore, since we have al- ord at 297. carried if the settled rule is out best ready that suffered determined presumption this flows adhered to. From consciousness, we disturbance of one its agency’s duty explain departure epi- this must now conclude isolated prior agency may from norms. The flat- sode was a manifestation of TGA. There norms, ly repudiate deciding, those for support any no other conclusion. evidence example, changed circumstances they longer mean in required remaining question analysis congressional order policy. to effectuate satisfactory whether TGA constitutes it may Or narrow the zone which some for the of an explanation medical cause applied appears rule will be because it In isolated disturbance consciousness. discriminating that a more invocation of 1972, it was a determined that congressional poli- the rule will best serve Weddle, explanation. medical cy. ground .. . Whatever for the In its decision norms, however, departure prior it 1979, case the Board concluded that Wed- clearly must be set forth so that incorrectly dle decided and that TGA reviewing may understand the court basis a satisfactory explanation agency’s action. . . . the cause of disturbance consciousness. problems We Board’s have several with the (citations Id. at at 2375 omit- 93 S.Ct. issue. action on this ted). principle corollary This is a to the requirement agency ex- sufficiently that an may re agency An administrative plain basis for its decision and articulate during adjudica verse prior and rationale used in its deci- standards INS, tive proceeding. Ka Fund Chan v. sion: 1981). F.2d 248 “An administra principle fundamental reasoned tive with agency concerned furtherance . [agency] embodied in . . de- public rigid is not interest bound to cisions least three serves at interrelated precedent.” adherence New Castle purposes: enabling give the court CAB, County Airport Commission v. proper review to the administrative de- (D.C.Cir.1966), F.2d cert. denied sub. termination; keep helping to the admin- CAB, Transportation nom. Board of agency proper authority within istrative U.S. 87 S.Ct. L.Ed.2d 991 discretion, as helping as well to avoid mean, (1967). however, This does not prevent arbitrary, discriminatory, agency may precedent its abandon own agency; action irrational explanation. without reason or “An aggrieved person informing the *8 prior must either conform to its norms and grounds the administrative so of action reason explain depar decisions or the for its plan that he can his course of action precedent.” Mississippi ture such Val from review). seeking judicial of (including the ley FERC, Gas 659 F.2d 506 Co. Force, 1981). Agencies adjudi Secy, of the Air 591 commonly use Matlovich v. (D.C.Cir.1978). proceedings cative standards F.2d In other formulate words, an ex- risk requirements the that tare can be made. In’Petition of Mose ly, (1975), petitioner ade- departure precedent, its and NTSB 1824 the suf plain decision, the rationale of its fered a quately explain disturbance of consciousness be prerequisites judicial finding to a that cause of a hemorrhage. subarachnoid The agency’s arbitrary underlying action is not and ca- cause of the an subarachnoid hem orrhage a pricious. We find that the NTSB has not was unknown but dis “possibly qualifying held, this requirement despite met either in case. defect.” The Board cause, underlying the unknown that ac merely below stated: “The cepted diagnosis medical would allow con acceptance now that its of Board believes sideration of future risk under a di more satisfactory explanation TGA as a medical rectly applicable regulation.7 Therefore, in in that case was error. More- [Weddle] previously we believe the Board has inter over, acceptance we now believe that of our preted “satisfactory medical representation that a recurrence is so cause” medically to mean a accepted unlikely present future was no risk diagnosis will analy which allow a reliable not correct conclusion.” 700. Record at sis of future risk. We are not certain if reasoning reaching The Board’s this will Board continue this approach, or in the (1) McHenry conclusion is twofold: failed to require proof future biological direct and establish the eause his disturbance of medical causation.8 If the Board has ’aban consciousness; (2) and he failed to establish the approach Mosely doned adopted that it will not recur. at Record 700. The standard, they a new say should as much only Board determined that “TGA” is explain what motivated shift. descriptive term and that the actual under- lying syndrome cause unknown. The Board also based its decision aon testimony finding All of the supports medical that prove failed TGA however, past, conclusion. In the the Board “little has or no likelihood recurrence.” proof has held that of the underlying cause We believe that this sup conclusion is not of a ported by disturbance of consciousness is not Every substantial evidence.9 necessary if can diag- expert hearing, the disturbance be at including medically phenomenon, witness, nosed as a accepted Stevens, Administrator’s Dr. testi accordingly, analysis fu- reliable fied that he believes rarely TGA recurs.10 regulation 7. In alternative of these “other” be Mosely, can dis- reports clearly 67.17(d)(2)(ii). § In agrees case, counted. Dr. Stevens since apparently regulation analogous be would 14 C.F.R. he also believes recurrences are rare. 67.13(d)(2)(ii), “[The provides part: Moreover, we are as to puzzled why no disorder, other convulsive applicant has] Administrator chose to so little evi- present neurological consciousness, disturbance or dence in of his case. He one support used Surgeon (a) condition that the Federal Air finds following witness two incon- support makes unable applicant safely perform sistent First, propositions: McHenry could the duties ... of the airman certificate that he have suffered TGA because TGA occurs only (b) holds ... or be may reasonably expected once and suffered four distur- within ... him years make unable bances consciousness. Record 297. at those duties....” perform standards Second, is not a medical ex- burden of under this section are different proof because it is to recur. Record planation likely than the standards burden of under proof at 307-8. 67.13(d)(2)(i)(fo). 14 C.F.R. § 8. We make this point because there are many In its decision, stated Board that illnesses that can cause a disturbance of con- strong Stevens testified there is likeli- hypoglycemia, sciousness, such as cancer and hood recurrence. Record at 699. sim- This recognized which are widely and have familiar is not true. In 1974, Dr. Stevens wrote in ply characteristics, predictable for which “Prognosis reference to TGA victims: is excel- underlying cause is unknown. lent, recurrences rare.” Stevens and Aldeman, Transient Amnesia, Global 43 Medical Annals 9. The evidence to the contrary (1974). of the District of Columbia statement Dr. Stevens some doctors still supports statement. Record at have recurrences. reported frequent Record 308. However, there was substantia- tion of this claim. Dr. Fisher testified all *9 821.8) a no- parties (pursuant § acknowledged that the Board The oral days after an appeal within tice of TGA are agreed recurrences experts rendered or has been initial decision logical it is “we believe rare, but continued been an order has decision or rare, written diagnoses are that, since conclude served. Record at are rare.” histories documented is also not conclusion” “logical Filing 700. This can be accom- 821.47. 49 C.F.R. § serve and cannot by the evidence the supported delivery, and by personal mail or plished The decision. filing the Board’s is establishing for the date of as basis method into TGA of research depth filing: amount and the method of dependent on hearing. the issue not a debated was the Board be filed with Documents to testified at the Moreover, who three doctors with the of Adminis- shall be filed Office aggregate of over hearing have treated Transporta- Judges, Law National trative testified victims. Stevens 100 TGA Board, Washington, D. C. Safety tion reported many as 200 cases that as delivery by mail and by personal or Therefore, at 815. Record literature. the date of deemed to be filed on shall be in the record of evidence small amount the date as personal delivery or on actual conclusion. contrary to the Board’s may postmark, as the case shown on be. reason for primary We believe 821.7(a). The failure to file a entire on this 49 C.F.R. § evidence supporting
lack of initial appeal results in the timely notice of of whether TGA is that the issue question 821.- becoming final. 49 C.F.R. explana- decision satisfactory medical constitutes a con- 43. isolated disturbance tion for an argued by properly was never sciousness case, law the administrative In this not sub- did parties. The Administrator in favor of judge’s initial decision support evidence to mit substantial Therefore, June was served on willing are not reasoning. We Board’s per- 22 to had until June the Administrator however, substantial and state, that there is place in the mail a notice sonally deliver or McHen- support
compelling evidence ap- The notice of appeal to the NTSB. above, we are ry’s position. As discussed was dated by Administrator peal filed the Board has standard uncertain of what certifi- accompanied by a June 22 and was we cannot consider signator repre- used and service in which the cate of clearly estab- until a standard placed evidence the document sented reasons, and in the inter- For these 22. The Ad- lished. mail on June United States issue safety, ministrator, however, we remand this a franked public est of used proceedings envelope before NTSB. which received government for further by parties to intro- was received opportunity postmark, for both and the notice Thus, there is no evidence will facilitate on June 27. duce additional the NTSB no- guarantee that way objectively resolution of the issue. June 22. actually mailed on tice was Ill Ad McHenry moved to strike the address Finally, we must untimely appeal ministrator’s notice ap- notice of claim that the Administrator’s language of argued plain that the filed. He untimely peal filed. 821.7(a) two methods dictates 49 C.F.R. § practice provide that an rules of appeal: establishing timely notice of is initiat- appeal judge’s from a law within delivering the notice (1) personally served; simple appeal by filing of a notice days after the initial decision a written initial deci- days appeal within 10 after (2) notice of placing or having post sion is served: it mail United States deci the initial days within 10 after judge’s law marked party may appeal from a A claimed that filing sion is served. initial decision order or from the timely establish a upon the Administrator failed serving with the Board
1195 filing since he did not use either method the McHenry’s ease, relevant factors in in the provided regulation. cluding by in re- the the certifications Adminis staff, trator’s jected concluded the argument this denied notice timely was filed. We believe this is a rea motion: interpretation sonable the regulations of inequitable penalize the would be to [I]t and affirm the Board’s decision.11 by restricting proof Administrator the mailing to postmark, the date of McHenry alternatively claims that government applied using the not mail Administrator has acted in bad faith. Rather, primarily pieces envelope. franked the rea- relies on two more circum prove stantial evidence the notice approach, sonable and the most one in First, mailed on not June 22. in 1979 keeping spirit the with of the Board’s the FAA Chief office Counsel’s and the Rules, accept, filing, is to as the date of Judges NTSB Office Administrative Law mailing, or the date the on given date were in building, only located the same one by the document filed the Administrator floor from each other. claims and on the certificate of service attached highly that it is unlikely that it would take to that document. days United States mail five to deliver argues Record at 672. now a document from one floor another floor improperly promulgated the Board a new building. of the same Unfortunately, we regulation reaching its on this say days cannot that five anis unreasonable issue. He contends 49 C.F.R. 821.- or unbelievable amount time for the 7(a) has been amended to allow the estab- United States mail complete process. timely lishment appeal of a notice of Second, McHenry claims that the FAA at through representations appeal- torney signed who of appeal notice ing party, objective instead means have problem might should known this de receipt. postmark such as a or date of We velop prepared since document was on agree. cannot We do interpret not the tenth and permissible day, final establishing Board’s decision as rule. a new accordingly he should have hand delivered Instead, we believe that the Board was notice We recog NTSB office. simply interpreting regulations ap- nize that this would have been admirable plying them to the facts of A this case. effort, it is required expected. not or reviewing agency’s court must defer to an is not negligent unreasonable or for an at decision if the has made reasona- torney appeal mail a notice of on the ble interpretation regulations. of its own day, allow, tenth as the regulations without Crimen, Harris, Homan Inc. postmark. & F.2d concern over a 626 Absent other evi dence, 1980). Here, (5th we cannot Cir. inter- find that Administra tor or his staff preted has falsified documents 821.7(a) and 821.47 as §§ acted in bad faith. clearly personal requiring delivery or mail- ing appeal of a notice ten day within a IV period. postmark, however, A not an For the reasons discussed sections II requirement proof absolute mailing opinion, and III of this the order of the day period. within the ten Postmarks part, NTSB is affirmed in and reversed and illegible government often franked in part remanded proceedings for further postmarked. mail is frequently There- consistent with our findings. fore, cases, these Board can look to other factors to determine PART, whether no- AFFIRMED IN REVERSED tice timely filed. The Board considered AND REMANDED IN PART. policy extremely important, on Board’s decision this issue is also lieve this if not essential, long standing pre policy agency charged protecting consistent with its to an with ferring public physical danger. to determine case on the rather merits See NLRB v. See, procedural technicality. e.g., Co., than on a Monsanto Chemical F.2d of'Mosely, (1975); 1953). Petition NTSB 1833 Peti Mixon, (1975). tion of 2 NTSB 1442 We be- view, it was rea- arbitrary capricious; or dissenting: Judge,
HILL, Circuit soned and rational. I dissent. Respectfully, Board. AFFIRM the I should *11 Amnesia) does (Temporary Global cause, or an purport to be descriptive of what merely It of a cause. expert witnesses All experienced.
has been loss temporary cause of that the
agree There- unknown. memory —amnesia—is to find authorized fore the Board indeed, a “dis- had, experienced satisfac- without of consciousness turbance Secretary DONOVAN, Raymond J. (14 C.F.R. the cause” explanation of tory Labor, Department of United States 67.13(d)(2)(i)(b)). § Appellee, Plaintiff-Appellant-Cross Wed- Petition of judge followed The law had, (1972), which aston- dle, 1 DILLINGHAM, Dillingham, term me, descriptive found H. ishing to H. C. C. Amnesia, Mathis, III, the cause Admin- National Temporary Global W. Lamar Inc., Inc., Control, unknown, istrators, to have constituted Time which is Appellants. Defendants-Appellees-Cross loss of explanation for con- reviewed appeal, the Board On sciousness. No. 80-7879. so, the doing In Weddle. and overruled Appeals, United Court of States re- its somewhat belated Board announced Eleventh Circuit. descriptive only a that TGA is alization me, that is a term, To cause unknown. Feb. its rationale satisfactory explanation of Opinion Rehearing Rehearing on En prior precedent. departing from Banc April Mosely, 2 Petition of In of consciousness
(1975), the cause of loss hemorrhage. It
was known —subarachnoid hemorrhage the cause of
is a fact that known, but, of con- where loss
was not to the caused a blow
sciousness has been struck
head, necessary to know who it isn’t
the blow. may
It be may be 67.13(d)(2)(i)(b) is ill advised. prognosis that medically acceptable be substituted will occur should
recurrence the result regulation, that the
for it. Were different, but it isn’t. might
here be Safety Transportation
The National pass- heavy responsibility in given
Board is en- fitness to continue to
ing upon To a operation of aircraft.
gage in the McHenry’s obvious
professional Capt. the loss of certi- accomplishments,
skills and tragic not so tragedy,
fication is a grant. The Board’s
might be the ill advised not, my
decision in this hard case