[00:00:00] Speaker 02: Case number 22-1047, Gerald E. Brown Petitioner versus Billy Nolan, Acting Administrator in Federal Aviation Administration. [00:00:08] Speaker 02: Ms. [00:00:09] Speaker 02: Candelario for the petitioner and Mr. Stevenson for the respondents. [00:00:13] Speaker 03: Good morning, Council. [00:00:15] Speaker 03: Ms. [00:00:15] Speaker 03: Candelario, please proceed when you're ready. [00:00:28] Speaker 05: Good morning, Your Honors. [00:00:29] Speaker 05: My name is Elizabeth Candelario. [00:00:31] Speaker 05: I'm here on behalf of the petitioner. [00:00:33] Speaker 05: I'd like to reserve three minutes for my rebuttal, if that's okay. [00:00:38] Speaker 05: So I'd just like to say the board's reasoning in this case is not supported by substantial evidence and should be vacated. [00:00:45] Speaker 05: We have credibility determinations in this case that are not supported by the actual evidence in the record. [00:00:51] Speaker 05: The determinations are neither reasonable nor reasonably explained. [00:00:55] Speaker 05: Therefore, they don't constitute substantial evidence to support the findings. [00:00:59] Speaker 05: But even if you were to accept that both Captain Moon and Mr. Zimmer are credible witnesses, the board's findings are nonetheless unsupported by substantial evidence and unreasonable. [00:01:11] Speaker 05: Because looking at substantial evidence, it's more than just the basis of the evidence that justifies the agency's decision. [00:01:18] Speaker 05: You should also take into account whatever the record detracts from it. [00:01:21] Speaker 05: So when you look at what was actually said, substantial evidence doesn't exist with any of these violations. [00:01:27] Speaker 05: So starting with 91.105, the requirements remain at a crew member station unless the absence is necessary. [00:01:35] Speaker 05: The logic of the town that Mr. Brown left the cockpit without any communication to the other crew members and without transfer of control via UPS procedures. [00:01:43] Speaker 05: And then the board upheld it because Mr. Brown admitted that he left the cockpit and then he left abruptly without following standard procedures. [00:01:50] Speaker 05: But these conclusions are unsupported because if you look at the testimony from all three parties, [00:01:55] Speaker 05: it's normal and appropriate for each of the members to go to that and get comfortable at the start of the flight. [00:02:02] Speaker 05: So there's no basis to find a violation simply because Mr. Brown left the cockpit. [00:02:08] Speaker 04: Can I ask you, Ms. [00:02:09] Speaker 04: Candelario, you argue that the FAA never actually established what the procedures are for transferring control. [00:02:17] Speaker 04: Do you dispute that the bare minimum is that there should be some [00:02:24] Speaker 04: recognition or acquiescence by the person who's expected to take over. [00:02:30] Speaker 04: So if Mr. Brown is leaving and he says, you know, even if it's something as simple as, you know, got this simmer or got this moon or, you know, whatever the, do you dispute that there is at a bare minimum such a requirement of an acquiescence or response? [00:02:46] Speaker 05: To be honest, your honor, I don't know what their mental requirement is because it hasn't been established. [00:02:52] Speaker 05: I don't think it's been shown that there's a certain procedure or certain wording that's used. [00:02:56] Speaker 05: But I think it has been shown that Mr. Brown did make a statement to notify them that he was leaving. [00:03:03] Speaker 05: Even Captain Moon said that Mr. Brown said, I've had enough of this. [00:03:09] Speaker 05: I'm out of here. [00:03:10] Speaker 05: And then, you know, he described the whole seat exchange with Mr. Zimmer and the law judge found as a finding of fact that Mr. Zimmer immediately assumed control of the first officer's duty station and took control of the aircraft. [00:03:25] Speaker 05: So. [00:03:25] Speaker 04: Is there anything from, as you read the record from which the board could have found that Mr. Brown received [00:03:36] Speaker 04: some acquiescence or recognition of the request to take? [00:03:42] Speaker 05: I mean, I think the fact that Mr. Zimmer immediately took the seat shows that he acquiesced. [00:03:49] Speaker 05: I don't recall if there was any specific words said by Mr. Zimmer or if that was brought out in the record. [00:03:57] Speaker 05: Just the fact that Mr. Brown said, I'm leaving, whether he said you've got this or I'm out of here. [00:04:04] Speaker 05: And then he switched seats with Mr. Zimmer. [00:04:06] Speaker 05: and Susan took control. [00:04:07] Speaker 05: And then there was also the testimony that the plane was on autopilot. [00:04:11] Speaker 05: So there was never any kind of safety risks at that point in time with the switch. [00:04:18] Speaker 05: So at the evidence, the lack of any procedure that wasn't followed and the fact that everybody testified it was normal, Mr. Zimmer had already gone to the back. [00:04:27] Speaker 05: It was Ms. [00:04:27] Speaker 05: Brown's turn to go to the back. [00:04:29] Speaker 05: That violation just hasn't been proven by the FAA. [00:04:33] Speaker 05: And there's not substantial evidence to support the board's fight. [00:04:37] Speaker 05: And then we look at 121.5e where it says you cannot assault, threaten, intimidate, or interfere with a crew member in the performance of their duties aboard an aircraft. [00:04:47] Speaker 05: The FAA with that one alleged both that Mr. Brown threatened and that Mr. Brown interfered. [00:04:53] Speaker 05: Those were the specific allegations. [00:04:55] Speaker 05: So when you get interference allegation, the board found [00:04:59] Speaker 05: or I'm sorry, the L the larger town and the board of Mr. Brown's conduct interviewed with the captain's duties and caused him to miss a radio call. [00:05:08] Speaker 05: He said it was during the heated confrontation by Mr. Brown directed at the captain. [00:05:12] Speaker 05: And this is just once again, unsupported by the evidence that's in the record. [00:05:18] Speaker 05: But you know, the board and logic said that Mr. Zimmer was credible. [00:05:21] Speaker 05: And his testimony was that they, referring to Captain Moon and Mr. Brown, were talking about the takeoff, and so they missed a radio call. [00:05:30] Speaker 05: Similarly, in his incident report that he submitted, Mr. Simmer said they were still discussing takeoff. [00:05:36] Speaker 05: He says that Moon told Brown he just wanted him to acknowledge or apologize for the takeoff performance, and that's when ATC issued a radio call that they both missed. [00:05:46] Speaker 05: So it's undisputed that Captain Moon initiated the conversation. [00:05:51] Speaker 05: And then he continued the conversation and presented to Mr. Zimmer. [00:05:54] Speaker 05: He was talking about wanting Mr. Brown to acknowledge and apologize for the error at the time of the missed radio call. [00:06:00] Speaker 04: Did you say in your brief that the complaint did not allege intimidation or quote conduct, close quote, that threatened the captain? [00:06:08] Speaker 04: that the decision seems inappropriately to broaden the FAA's allegation. [00:06:13] Speaker 04: Can you say more what you mean by that? [00:06:15] Speaker 04: Sure. [00:06:16] Speaker 05: So the specific allegation that the FAA made was that Mr. Brown threatens the captain when he said that he would take matters outside the bar and handle them. [00:06:25] Speaker 05: So the specific allegation was that he made this statement and this statement was a threat. [00:06:33] Speaker 05: uh, law judge and the board's decision to talk about threatening conduct and intimidation, which just wasn't what was alleged by the FAA and its complaints. [00:06:43] Speaker 05: But even when you're looking at, you know, alleged threatening conduct and intimidation, there's really not any, any evidence of that either. [00:06:52] Speaker 05: I mean, all three witnesses testified. [00:06:54] Speaker 05: Mr. Brown stayed seated during the exchange. [00:06:57] Speaker 05: Uh, Captain Moon admitted and specifically said, you know, Mr. Brown didn't raise a fist. [00:07:01] Speaker 05: He didn't make any physical movement with his body or his shoulders or his arms to give any indication of physical violence. [00:07:09] Speaker 05: And they also claim to rely on testimony from Mr. Zimmer about facial expressions and body language, which just doesn't exist. [00:07:19] Speaker 05: Mr. Zimmer said that Mr. Brown just kind of said it when he made the statement about whatever the statement was about the bar and that Mr. Zimmer could not see facial expressions. [00:07:31] Speaker 05: So that just, I can't support the board's reasoning that Mr. Zimmer said the conduct was intimidating and Mr. Zimmer did not ever give that testimony. [00:07:43] Speaker 05: There was also, because it comes down to the FAA's allegation that these specific words were a threat, but there's not actually a finding as to what exactly was said. [00:07:53] Speaker 05: And I think this is a crucial flaw because there's a really big difference and a slight difference of phrase. [00:07:59] Speaker 05: It's happening when you testify [00:08:01] Speaker 05: using the phrase back at the bar refers to a debrief after a flight. [00:08:06] Speaker 05: So that's what Mr. Brown claims he said and what he meant. [00:08:10] Speaker 05: But even if you look at what Mr. Moon claimed was said, which was you talk to me that way again and you and I are going to meet outside the bar. [00:08:19] Speaker 05: That's first of all, not what the law judge stated as what was said. [00:08:24] Speaker 05: So I'm not sure where the logic language exactly comes from. [00:08:27] Speaker 05: It wasn't the exact language Mr. Moon used. [00:08:30] Speaker 05: It was a little bit more similar to Mr. Zimmer's statement, which he claimed it was something like, if Moon continues to talk to him that way again, Mr. Round would take matters out back behind the bar and handle them. [00:08:40] Speaker 05: And then Mr. Round, slightly different, but with a very different meaning, claimed he said, if you want to keep talking about this, let's do this outside the cockpit, back at the bar, not here. [00:08:48] Speaker 05: So we have outside the bar, back behind the bar, out behind the bar, or back at the bar. [00:08:54] Speaker 05: And it was not really an explicit finding as to what exact phrasing was used. [00:08:59] Speaker 05: Um, so to the extent of the logic, does it matter? [00:09:02] Speaker 03: I mean, they're all roughly around the same thing. [00:09:06] Speaker 05: Yeah. [00:09:06] Speaker 05: Well, it's Captain Moon in there, um, using the phrase to say, let's talk about something back in the bar means it's common term to use to say, let's talk about this in a debrief after the flight. [00:09:18] Speaker 05: So if that's what Mr. Brown said, that's in no way threatening. [00:09:21] Speaker 05: And I think Captain Moon even acknowledged that, that to use that phrase would just mean, let's talk about this later. [00:09:27] Speaker 05: there's nothing threatening about that. [00:09:28] Speaker 05: And there wasn't really a specific finding as to the terminology that was used in the phrase, which really needs to be done. [00:09:34] Speaker 04: It's a little bit like the question about the speed at which the aircraft was traveling when Brown did the lift off or the rotation. [00:09:49] Speaker 04: In the sense that I think the record does support the notion that Moon and Zimmer perceived it [00:09:56] Speaker 04: to be early. [00:09:58] Speaker 04: Do you think the record doesn't support the determination that Moon and Zimmer perceived Brown to be saying behind the bar, not let's go chat about this over a drink at a later time? [00:10:15] Speaker 05: I think it supports that Captain Moon certainly felt that way. [00:10:20] Speaker 05: Mr. Zimmer specifically said that [00:10:24] Speaker 05: You know, nothing was said to him, so he couldn't speak to whether or not it was a threat or what the words meant. [00:10:31] Speaker 05: But he said Captain Moon felt threatened. [00:10:34] Speaker 05: But I don't think that Captain Moon's feelings are sufficient to establish that Mr. Brown made a threat. [00:10:39] Speaker 05: There has to be some level of objective reasonableness in his feelings in order to hold Mr. Brown accountable for that. [00:10:49] Speaker 05: But even if you say that [00:10:52] Speaker 05: or accepted that Mr. Brown may have said exactly what Mr. Moon claimed, which was you talking that way again and you and I are gonna meet outside the bar. [00:11:01] Speaker 05: It doesn't really make any sense in the context because they're in a cockpit, there's no bar on the plane. [00:11:09] Speaker 05: So what he's claiming Mr. Brown said is, let's wait until we land and we leave the plane and then we're gonna go find a bar and fight it out. [00:11:18] Speaker 05: There was nothing to support the judge's conclusion that it was an imminent threat when you couple that with the fact that Mr. Brown didn't make any physically overt motions, didn't move as if he was going to hit him. [00:11:28] Speaker 05: Instead, he turned around and walked away. [00:11:30] Speaker 05: He left the cockpit. [00:11:32] Speaker 05: So under whatever language he used, he made it clear that we're going to resolve this after the flight, whether it was at a literal bar or just in a debrief. [00:11:42] Speaker 05: We're going to talk about this later. [00:11:43] Speaker 05: I'm leaving. [00:11:44] Speaker 05: And he left the cockpit. [00:11:45] Speaker 05: So there's just not evidence to support finding that those words alone were wrecked in any way that was going to endanger the safety of the flight or that was being issued against the captain in the performance of his duties on the aircraft. [00:12:00] Speaker 03: We, um, our lighting can be confusing, but, um, I think you're in your rebuttable time, but we will give you, we will give you a little bit of rebuttal time. [00:12:06] Speaker 03: Let me make sure my colleagues have further questions for you, but thank you, Ms. [00:12:11] Speaker 03: Candelaria. [00:12:12] Speaker 03: Mr. Stevenson, we're from you now. [00:12:18] Speaker 01: Thank you, Your Honor. [00:12:20] Speaker 01: May it please the court, for students on behalf of the Federal Aviation Administration and its administrator. [00:12:26] Speaker 01: I think it's important to remember that everything that we are talking about in this space is occurring in the cockpit of an aircraft, of a United Parcel Service MD-11, as it is ascending above 18,000 feet. [00:12:39] Speaker 01: This is a small enclosed space where, you know, space is tight, safety is important, and [00:12:48] Speaker 01: The captain of the aircraft, the pilot and commander of the aircraft, Captain Moon, chose to initiate a safety-related conversation with one of his fellow crew members after 18,000 feet. [00:12:59] Speaker 01: So the sterile cockpit rule did not apply at that point and actually permitted such a conversation. [00:13:06] Speaker 01: The petitioner here, Brown, did not respond well to this attempted discussion of the issues that occurred during the takeoff. [00:13:16] Speaker 01: The consistent testimony of both Captain Moon and the International Relief Officer, Sven Zimmer, was that Mr. Brown did not take it well, that this conversation stretched on, that he became angry, that his tone became elevated, that it became confrontational, that a radio call was missed. [00:13:40] Speaker 01: at that shortly after that point in time is when Mr. Brown makes this statement about how they should take this out but behind the goal. [00:13:51] Speaker 01: The international release officer, Zimmer, he described that. [00:13:54] Speaker 01: His perception of that was the suggestion that those two, Brown and Moon, would need to duke it out, that they'd need to have a fight to resolve this. [00:14:03] Speaker 01: Captain Moon, who was next to Mr. Brown, Zimmer, as he testifies, is behind Mr. Brown. [00:14:12] Speaker 01: He's not able to see his face, although we can hear the tone of his voice. [00:14:15] Speaker 01: Captain Moon, who is able to look [00:14:17] Speaker 01: Mr Brown in the face testified that he was afraid that Brown's just going to punch him right there in the cockpit. [00:14:25] Speaker 01: And then Brown gets up, he says, screw this or words to that effect, and he leaves the cockpit. [00:14:33] Speaker 01: And at that point in time, when he leaves the cockpit, he is the flying pilot. [00:14:38] Speaker 01: That means that he is the person who is responsible for the controls. [00:14:43] Speaker 01: I acknowledge that the autopilot was turned on, but there is a reason why we don't just turn on autopilots and then not worry about whether or not there's a crew on the aircraft. [00:14:53] Speaker 01: Aviation could be very unforgiving of mistakes and does not give you a lot of time to respond. [00:14:59] Speaker 01: And that's why it's important that there is always one person [00:15:02] Speaker 01: that everybody and everybody knows who that one person is who has the control. [00:15:07] Speaker 01: So if something goes wrong, that person is the one who's going to be grabbing the wheel and taking whatever the appropriate action is. [00:15:15] Speaker 04: And there's always a second person in the cockpit. [00:15:17] Speaker 04: Wouldn't Moon by default be the person having the controls if let's say Zimmer were ill in the back? [00:15:26] Speaker 01: So there are two sets of controls there. [00:15:30] Speaker 01: Captain Moon was sitting at the other one. [00:15:34] Speaker 01: So I mean, we can speculate that had something happened after Mr. Brown left the seat and before Zimmer moved into that seat that Captain Moon would have attempted. [00:15:44] Speaker 04: Like a bird flies into the engine and the plane isn't operating properly. [00:15:49] Speaker 01: Captain Moon is not going to sit there and be like, well, I'm not the assigned flying pilot, so I'm not going to do anything. [00:15:56] Speaker 01: You know, we have a regulation that says that you can't just leave that duty station and there is a, you know, if you're the flying pilot and you want to get out, you need to make sure that someone else is the flying pilot before you do that. [00:16:11] Speaker 01: And that's where the whole positive transfer of control thing is. [00:16:14] Speaker 01: It's making it, you need to make it clear to someone else and the rest of the crew that you want to transfer the controls and you need that verification back [00:16:23] Speaker 01: from them. [00:16:24] Speaker 04: What's the best authority for your statement that you need that verification back? [00:16:28] Speaker 04: Is there some dispute about whether this is anywhere in the record? [00:16:32] Speaker 01: Oh, both Captain Moon and Zimmer testified about that. [00:16:39] Speaker 01: I mean, they talked about what the ideal transfer of control would be if you talk about altitude and heading, but they also both specifically said that you had to have [00:16:47] Speaker 01: that, you know, words along the lines of, you know, you've got the controls, yes, I've got the controls, or the wheel or the stick or the yoke, you know, depending on what the terminology is. [00:16:57] Speaker 01: I mean, obviously, we don't have a regulation that specifies some precise terminology there. [00:17:02] Speaker 01: And that's, like, Zimmer's testimony about that in particular is in the Joint Appendix at page 126, I believe. [00:17:17] Speaker 01: At that point in time, Brown gets up and he leaves the cockpit. [00:17:24] Speaker 01: And especially if you look at Zimmer's testimony, as you can see, at this point, he is angry. [00:17:31] Speaker 01: He comes across to the other people in the cockpit as emotionally unstable. [00:17:35] Speaker 01: Zimmer? [00:17:38] Speaker 01: That Mr. Brown comes across as emotionally unstable. [00:17:42] Speaker 01: But especially, I think the testimony of Mr. Zimmer [00:17:47] Speaker 01: particularly illustrative on this, when you see what they do and what they talk about, they being Zimmer and Moon, when Mr. Brown leaves the cockpit, right? [00:17:57] Speaker 01: It's not like he leaves the cockpit and then they're just, okay, well, he's not here anymore, so we're not worried about it. [00:18:04] Speaker 01: They don't know what's going to happen next. [00:18:06] Speaker 01: We hear, we have the benefit of hindsight. [00:18:09] Speaker 01: We know that, thankfully, nothing else happened on the flight. [00:18:12] Speaker 01: There were no more incidents, but they didn't know that at the time. [00:18:15] Speaker 01: They were aware of some personal things that were going on with Mr. Brown. [00:18:20] Speaker 01: They were aware of other situations in the past where something worse had happened. [00:18:25] Speaker 01: Moon takes the step of hiding the crash axe that's in the aircraft. [00:18:30] Speaker 01: Moon is, yes. [00:18:32] Speaker 04: Let me ask you, if this is just sort of testing the record and the limits of your position, if it were the case that Moon is just somehow [00:18:44] Speaker 04: other reasons, has a grudge against Brown, and really doesn't care for him, doesn't think that he thinks he's a bit of a loose cannon, but really doesn't have a reason, and just overreacts, overreacts here. [00:19:02] Speaker 04: If this is overreaction, then we see Zimmer, who is very aware of the hierarchy and reacting appropriately within that. [00:19:14] Speaker 04: And therefore, it's clear Moon seemed to feel threatened. [00:19:18] Speaker 04: And a lot of his descriptions are in relation to what he thinks Moon is experiencing. [00:19:23] Speaker 04: And if it were the case that it's really just blown out of proportion by Moon, what in the record, in your view, just shows that that's just not at all what was going on here? [00:19:38] Speaker 04: In other words, in response to Ms. [00:19:41] Speaker 04: Candelario's [00:19:42] Speaker 04: position that his his he may have felt threatened, but it wasn't reasonable. [00:19:46] Speaker 04: Under the circumstances. [00:19:48] Speaker 01: Sure. [00:19:49] Speaker 01: If we wanted to just we want to set aside what Captain Moon said and just look at what Mr Zimmer said. [00:19:55] Speaker 01: Opposing counsel is correct in that frequently Zimmer talks about how Moon was feeling threatened. [00:20:02] Speaker 01: But Zimmer also specifically talks about it as a threatening situation. [00:20:08] Speaker 01: And indeed Zimmer, the point in time where he notes that I didn't feel threatened by the threat to have a fight because that wasn't directed at me. [00:20:19] Speaker 01: But then when Brown [00:20:21] Speaker 01: I guess up and you know marches out of the cockpit at that point you really start to see the research specifically talking about how he feels threatened at that point because that's the point where they that you know that he's observed this you know that he's heard the tone of voice he's observed what he sees to be you know emotional instability on the part of Mister Brown and they don't know [00:20:46] Speaker 01: What is going to happen next moon and Zimmer and this is Zimmer's testimony is that moon and Zimmer talk about. [00:20:53] Speaker 01: For example, whether or not to just turn the aircraft around and land back in Sydney and one of the at least part of the reason why they didn't do that is because they didn't know what Mr Brown would do right. [00:21:05] Speaker 01: He would immediately know that the aircraft was descending. [00:21:08] Speaker 01: He would immediately know that. [00:21:12] Speaker 01: And he would immediately know that there was going to be problems for him when the aircraft landed on the ground. [00:21:16] Speaker 01: And he didn't know what he was going to do. [00:21:18] Speaker 04: A couple of times you refer to Zimmer as if Zimmer testified that he thought Brown was emotionally unstable. [00:21:26] Speaker 04: I didn't see that terminology in the record. [00:21:29] Speaker 04: Where is the evidence that you think most squarely presents that observation or that kind of observation on Mr. Zimmer's part? [00:21:40] Speaker 01: So just looking in the joint appendix from around pages 147 through 151. [00:21:46] Speaker 01: This is there's some it's partial testimony. [00:21:50] Speaker 01: Some of it was objected to. [00:21:52] Speaker 01: So it's but there is there's testimony about having had a conversation with Mr. Brown. [00:21:58] Speaker 01: The implication is that perhaps Mr. Brown was having some was going through a divorce and losing his kids and losing his house and and that [00:22:06] Speaker 01: Mr. Zimmer had previously discussed that with Mr. Brown. [00:22:09] Speaker 04: Which is all excluded from the record. [00:22:13] Speaker 01: Well, some of the questions were objected to and there were not answers. [00:22:19] Speaker 01: Some of it was included. [00:22:21] Speaker 01: So I would not be able to point out precisely which phrases were excluded or not. [00:22:31] Speaker 01: But that there is some testimony about that in the record. [00:22:37] Speaker 01: that forms part of the basis presumers concern about further escalation. [00:22:44] Speaker 01: I see that I am in red, so I will of course answer any additional questions if your honors have any. [00:22:51] Speaker 00: I've got a question. [00:22:51] Speaker 00: I don't know if they still teach this in law school, but I remember in torts we were told if [00:22:59] Speaker 00: If someone said if I were 20 years younger, I'd flat you that that was still an assault. [00:23:06] Speaker 00: It may have been a conditional assault, but it was an assault. [00:23:09] Speaker 00: And it certainly wasn't thousands of feet up in the air. [00:23:12] Speaker 00: I don't see how this is anything but an assault. [00:23:17] Speaker 00: A conditional one. [00:23:24] Speaker 01: Yes, and the regulation in question 121580 does also prohibit assault because it separately prohibits, because it references both threats and assaults. [00:23:34] Speaker 01: We usually speak of it in terms of threats if there was not physical contact, but certainly the regulation also prohibits assault, and I would agree with Your Honor that even the conditional statement that I am going to physically assault you late, I'm going to take a physical action against you later does violate it. [00:23:53] Speaker 03: Can I just ask one factual question? [00:23:55] Speaker 03: I'm not suggesting that this is at the center of the case, but since I have an FA lawyer before me, I'll just ask it. [00:24:01] Speaker 03: I guess I was surprised that the flight recorders work. [00:24:04] Speaker 03: I know there's two different types. [00:24:06] Speaker 03: I was surprised that they work such that they can only capture the last 30 minutes. [00:24:11] Speaker 03: Is there a technological cap? [00:24:14] Speaker 03: Why is that? [00:24:16] Speaker 03: Why aren't there recorders that just capture the entire flight? [00:24:21] Speaker 01: There's a combination of technology and regulations. [00:24:24] Speaker 01: I mean, it would be possible to technologically install a larger recorder. [00:24:28] Speaker 01: The regulations, depending on when the aircraft was manufactured or updated, there's a requirement for at least what the cockpit voice recorder has to include. [00:24:39] Speaker 01: The record in this case does not say specifically what the time was at 30 minutes or was it 60 minutes, but yes, Your Honor, [00:24:48] Speaker 01: cockpit voice recorder in this aircraft, we know had some limited amount of storage capacity. [00:24:52] Speaker 01: And if you don't disable the cockpit voice recorder, then it just automatically goes and writes over in order to ensure that if the aircraft crashes, there's something for the NTSB and the FAA to find and try to figure out. [00:25:08] Speaker 04: All right. [00:25:08] Speaker 04: I just had one question. [00:25:09] Speaker 04: Mr. Brown says that the, that Visser's investigation was procedurally flawed and cites to FAA guidance that he says [00:25:18] Speaker 04: instructs that investigative personnel interview all witnesses with information about an apparent violation, including normally the apparent violator. [00:25:27] Speaker 04: And yet Mr. Windsor did not do that here. [00:25:32] Speaker 04: Why is that appropriate? [00:25:35] Speaker 04: And why didn't he? [00:25:37] Speaker 01: Well, in this particular case, and the record does not go into detail on this, but I note that, and this is in the Joint Appendix Act, [00:25:48] Speaker 01: I think 198 to 200. [00:25:50] Speaker 01: You can see there were statements that had already been made by Captain Brown and by Mr. Zimmer. [00:25:57] Speaker 01: And I might, I apologize. [00:26:00] Speaker 01: Let me, that is, I'm sorry, that's 298 to 300, my apologies. [00:26:07] Speaker 01: And so those are statements that those two individuals made immediately after the flight to UPS. [00:26:13] Speaker 01: So the FAA inspector, when he's [00:26:17] Speaker 01: First, have this is already had those statements in the normal course of investigation. [00:26:21] Speaker 01: This case was not issued as an emergency. [00:26:24] Speaker 01: In the normal course of investigation, a letter of investigation is sent to the subject of the investigation. [00:26:31] Speaker 01: He doesn't have to come and talk to us. [00:26:33] Speaker 01: We don't compel people. [00:26:35] Speaker 01: We don't hold it against them. [00:26:37] Speaker 01: But also, because this was issued as a notice, there was the opportunity for Mr. Brown to have an informal conference, which is for him to come in and talk with the FAA after the issuance of a notice, but before an order. [00:26:50] Speaker 04: Uh, and then what's the authority for that? [00:26:54] Speaker 01: So that he could have come in and had an informal conference. [00:26:59] Speaker 01: Uh, there, uh, in, in the early part of part 13, I, I apologize. [00:27:04] Speaker 01: I don't remember the exact citation. [00:27:06] Speaker 01: Uh, it's within the 13 point 14, 15, 17, um, range that it references what people's options are and responding to a notice of proposed certificate action. [00:27:17] Speaker 01: But, but even if, [00:27:18] Speaker 01: There was something, there had been something deficient in the investigation, even if there was some FAA policy, which was not that the investigator is required to go talk to every single possible witness. [00:27:31] Speaker 01: That does not change whether or not there was substantial evidence to support the NTSB's finding, because by the time the administrative law judge and the NTSB are making their decisions, everyone has been hurt. [00:27:43] Speaker 01: It's not just false statements. [00:27:45] Speaker 01: Mr. Brown testified, there was the opportunity for cross-examination. [00:27:49] Speaker 01: Mr. Zimmer testified, and there was the opportunity for cross-examination. [00:27:52] Speaker 01: And of course, I'm sorry, Captain Moon testified that there was opportunity for cross-examination. [00:27:57] Speaker 01: And of course, Mr. Brown got to testify in his own behalf. [00:28:00] Speaker 01: And so the judge had the opportunity to hear everything that Mr. Brown wanted to say, even if Mr. Brown feels like the FAA made more of an effort to talk to him prior to issuing the order. [00:28:14] Speaker 03: Thank you, council. [00:28:15] Speaker 03: Let me make sure my colleagues don't have additional questions for you. [00:28:18] Speaker 03: Thank you, Mr. Thank you. [00:28:21] Speaker 03: Ms. [00:28:22] Speaker 03: Candelaria, we'll give you two minutes for rebuttal. [00:28:30] Speaker 05: Thank you. [00:28:31] Speaker 05: A few things I'd like to point out when you were talking about the [00:28:38] Speaker 05: leaving the cockpit and assuming control and the testimonies that were given by Moon and Zimmer about what has to be done. [00:28:46] Speaker 05: And the specific testimony that was cited to on page 126 of the joint appendix where Mr. Zimmer said, you have the controls. [00:28:53] Speaker 05: And then someone else would acknowledge, I have the controls. [00:28:55] Speaker 05: I mean, nothing more there was established other than that there needs to be some kind of acknowledgement that the one person's leaving and the other person is taking over. [00:29:06] Speaker 05: And I just [00:29:07] Speaker 05: That was done here. [00:29:09] Speaker 05: Nothing has been proven that was specifically needed to be said. [00:29:12] Speaker 05: It's more of a formality that he just, he didn't follow a formal procedure, but there was no formal procedure. [00:29:18] Speaker 05: Um, when talking about, you know, what makes the conclusion reasonable that Mr. Moon made up, you know, issued a threat. [00:29:30] Speaker 05: Um, and there was talk about Zimmer saying it was a threatening situation and you know, what was discussed once Mr. Brown left the cockpit. [00:29:37] Speaker 05: But Mr. Zimmer never said that the statement was a threat and that he saw Mr. Brown as a threat other than when he was talking about takeoff, which, you know, wasn't alleged in the complaint. [00:29:48] Speaker 05: The logic said that conduct wasn't reasonable. [00:29:51] Speaker 05: So Mr. Zimmer's concern about Mr. Brown having been a threat because of his unsafe takeout takeoff isn't relevant to the threat that was alleged here. [00:30:01] Speaker 05: And as far as what he was concerned about, Mr. Zimmer's testimony consistently shows that he was concerned because Captain Moon and Mr. Brown weren't getting along. [00:30:09] Speaker 05: It wasn't about Mr. Brown's behavior. [00:30:11] Speaker 05: And then they go on to talk about the other incidents that have happened. [00:30:18] Speaker 04: And I think you need to contend with where Zimmer observes that [00:30:27] Speaker 04: uh brown as I think he said went from zero to a hundred and he said you know in a matter of seconds and in my head I was going whoa that's a quick elevation what would be the next level and I don't think he's talking about the elevation of the plane I think he's talking about the escalation emotionally [00:30:47] Speaker 04: He says he went from 0 to 100 for a legit question, meaning Moon's question to him. [00:30:53] Speaker 04: And so he said he could have said, oh, my bad, whatever. [00:31:01] Speaker 04: But it was more the fact that he couldn't even have a conversation. [00:31:06] Speaker 04: And to Zimmer's observation seemed really angry that that's [00:31:13] Speaker 04: It is an observation of something that made it seem like Brown was just in rake. [00:31:18] Speaker 05: Yeah. [00:31:19] Speaker 05: Well, a couple points in response to that, Your Honor, is that that's also kind of contrary to Zimmer's other statement that this whole conversation lasted two to three minutes and then it was a back and forth and that the voices weren't elevated until the very end. [00:31:32] Speaker 05: So he kind of completes the beginning and the end of the conversation. [00:31:35] Speaker 05: and suddenly says it was, you know, in a matter of seconds when he had previously testified that the conversation started and it was like two to three minutes later that Mr. Brown or Captain Moon became elevated. [00:31:47] Speaker 05: And then this was also in response to being questioned about, you know, what were your concerns that justified you and Captain Moon deciding to violate the regulations. [00:32:00] Speaker 05: So it's also put in a slightly different light because he's responding to, [00:32:05] Speaker 05: defending his actions. [00:32:06] Speaker 05: You know, they indisputably did not take the required rest periods because they, Captain Moon decided to keep Mr. Brown out of the cockpit. [00:32:14] Speaker 05: So he's kind of defending that action here and pointing out that yes, Mr. Brown became elevated. [00:32:20] Speaker 05: But even if you accept that, I'm sorry, that's also where the takeoff performance comes into play because basically Moon and Zimmer have both said that, you know, Mr. Brown should have just said, oh yeah, you're right. [00:32:31] Speaker 05: I made a mistake. [00:32:32] Speaker 05: I'm sorry. [00:32:32] Speaker 05: And this would have all gone away. [00:32:35] Speaker 05: So Mr. Brown is being faulted for something that he has maintained that he didn't do and that he attempted to present expert testimony on to prove that he didn't do. [00:32:45] Speaker 05: So I would say his defensiveness was reasonable. [00:32:49] Speaker 05: He's being accused of a serious safety violation when he knows there was nothing unsafe about his takeoff. [00:32:57] Speaker 05: So he refused to concede and he later admitted that he shouldn't have told Captain Moon [00:33:04] Speaker 05: what to do or that he was wrong, but he also wasn't going to admit to a safety violation that did not occur at that time. [00:33:14] Speaker 03: And I'm sorry, I'm out of time, but let me make sure my colleagues don't have additional questions for you. [00:33:18] Speaker 03: Thank you, counsel. [00:33:19] Speaker 03: Thank you to both counsel. [00:33:21] Speaker 03: We'll take this case under submission.