January 8, 1993       [NOT FOR PUBLICATION]

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                          

No. 92-2226

                         THOMAS D. HITE,

                           Petitioner,

                                v.

          NATIONAL TRANSPORTATION SAFETY BOARD, ET AL.,

                           Respondents.

                                          

                  ON MOTION FOR STAY OF AN ORDER

       OF THE NATIONAL TRANSPORTATION SAFETY BOARD, ET AL.

                                          

                              Before

                    Torruella, Cyr and Stahl,
                         Circuit Judges.
                                       

                                          

     Lawrence B. Smith on Motion for Stay, for petitioner.
                      
     Joseph A. Conte  on Response in  Opposition to  Petitioner's
                    
Motion for Stay, for respondents.

                                          

                                          

          Per  Curiam.   Petitioner  moves  for  a stay,  pending
                     

review,  of an order issued by the National Transportation Safety

Board ["NTSB"] affirming revocation  of his air transport pilot's

certificate.     We  conclude  that  petitioner   has  not  shown

sufficient reason for  such extraordinary relief, and  so we deny

the stay.

       Petitioner's  certificate was  initially  revoked  by  the

Federal  Aviation Administration  ["the Administrator"]  in June,

1989, following an incident in which an aircraft he was piloting,

carrying  a  number  of high  school  athletes  and their  coach,

experienced severe control difficulty and was forced to return to

its take-off point in Hyannis.   The Administrator attributed the

incident   to  petitioner's   misfeasance  and   recklessness  in

operating an  unairworthy aircraft  in violation  of a  number of

regulations.    The  Administrator  claimed that  the  plane  was

improperly loaded beyond  its weight and center of gravity limits

when, shortly before take-off, the plane's tail fell back and hit

the ground  sharply, causing  damage to  the  tail and  controls.

Allegedly petitioner was present when this  occurred, but he then

took  the  plane into  the air  without  testing the  controls or

correcting its out-of-balance condition. 

        Petitioner denied the charges.  He appealed to the  NTSB,

thus gaining an automatic  stay of the revocation order  under 49

U.S.C. app.   1429(a).  An evidentiary hearing was held before an

administrative  law judge  ["ALJ"], who credited  the passengers'

testimony over petitioner's version, finding sufficient proof for

all  but  one  of  the  violations  charged.  1  Petitioner  then

appealed to  the  full  Board,  which  reviewed  the  record  and

affirmed in an opinion issued August 10, 1992.  The Board ordered

revocation of  petitioner's certificate  to begin within  30 days

from the date of service of its order.

       The NTSB also denied  petitioner's subsequent motion for a

further  stay of  the revocation  order pending  this  appeal, in

accordance with the agency's long-standing practice in revocation

cases.   As explained by the NTSB, revocation, unlike suspension,

"is  based  on  the  conclusion  that  the  airman's  conduct  is

sufficiently  egregious   as  to   demonstrate  a  lack   of  the

qualifications required  of a certificate holder."  Administrator
                                                                 

v.  Hite,  N.T.S.B.  Order  EA-3701,  (Oct.  23,  1992)  (quoting
        

Administrator  v. Balestra,  N.T.S.B.  Order  EA-3065, 1990  NTSB
                          

LEXIS 3  (Jan. 9,  1990)).   Denial of  a stay  in such  cases is

premised  on  the belief  that  "aviation safety  and  the public

interest would  be compromised by permitting  an individual whose

conduct demonstrates  that he lacks the  necessary care, judgment

and  responsibility to  continue,  pending  judicial  review,  to

exercise  the privileges of a certificate he has been found unfit

to hold."   Administrator v. Haney, N.T.S.B.  Order EA-3357, 1991
                                  

                    

1.   On this motion we have not been provided with a copy  of the
hearing transcript nor  the ALJ's opinion, and so we  rely on the
description of the record in the Board's affirming decision.  The
one charge  which the  ALJ did  not find to  be supported  by the
evidence  was  that  petitioner  had not  promptly  reported  the
incident. 

                               -3-

NTSB  LEXIS  117  (July  16,  1991); see  also  Administrator  v.
                                                             

Palmersheim,  N.T.S.B. Order  EA-3421,  1991 NTSB  204 (Oct.  22,
           

1991); Administrator v. Damsky, 3 N.T.S.B. 557 (1977).
                              

       Petitioner urges  that (1) under the  Federal Aviation Act

(the "Act") he is entitled to an automatic stay of the NTSB order

during the pendency  of his appeal in this court,  and (2) in the

alternative,  this court  should  exercise  its equitable  powers

under Fed. R. App. P. 18, to grant a stay.

       (1) Argument for an Automatic Stay 
                                         

       Under   609 of the Act, 49 U.S.C. app.   1429(a), when the

Administrator  issues an order amending, modifying, suspending or

revoking a  certificate,2 the  certificate holder is  entitled to

notice, an opportunity to answer, be heard, and a right to review

by  the NTSB.3  During  these proceedings, there  is an automatic

stay  of the  effectiveness  of the  Administrator's  order.   An

exception   to  the  automatic  stay   is  allowed  only  if  the

Administrator  advises the NTSB  that an "emergency"  exists.  In

that event  the Administrator's order is  given immediate effect,

and  the  NTSB's review  is  expedited, requiring  the  agency to

finally dispose of the case within sixty days. 

                    

2.   Section 1429 is directed to the Secretary of Transportation,
but under  49 U.S.C.     106(g), all  duties  and powers  of  the
Secretary  relating to aviation safety are carried out by the FAA
Administrator. 

3.    The  NTSB treats  the initial  FAA  order much  as a  civil
complaint.   After  the  preliminaries, there  is an  evidentiary
hearing before an ALJ, and a right to review by the full Board.

                               -4-

       Petitioner perceives in the  design of   1429(a)  a unique

procedure extending to appeals to this court.  He argues that the

stay of the Administrator's  order, automatically imposed in most

cases pending an evidentiary hearing and review by the NTSB, also

automatically stays any final NTSB  order appealed to this court.

Petitioner gleans support for this reading of the Act in the lack

of  any direct statutory statement  as to how  the automatic stay

terminates, combined with the last  sentence of   1429(a),  which

allows for  judicial review of NTSB orders, "under the provisions

of    1486."4  According to  petitioner, this  means that  at the

agency level,    1429(a)  vests "exclusive power"  to "deny"  any

stay of the NTSB's  final orders in the Administrator,  who makes

the decision by declaring an "emergency" before the NTSB hearing.

     Petitioner   has   pointed   to   no  authority   for   this

interpretation, nor any direct evidence of Congressional purpose.

He  simply infers from the  absence of any  explicit statement to

the  contrary that the  NTSB has no  power to effectuate  its own

orders, even to  protect the public  interest and safety,  during

oft-times protracted appeals.  

                    

4.   Title 49  U.S.C. app.   1486 shifts to  this court exclusive
power  over  the orders  of the  NTSB  and Administrator  once an
appeal  is  filed. After  notice  to  the agency,  "interlocutory
relief  may be granted by  a stay" or  other appropriate mandate.
The procedure envisioned by  this section also seems inconsistent
with the  assumptions underlying petitioner's  argument about the
meaning of   1429(a). 

                               -5-

       We  reject petitioner's  counter-intuitive interpretation.

We read the statute, instead, as embracing traditional and common

understandings.    By imposing  an  automatic  stay during  fact-

finding,  the statute  preserves the  normal balance  between the

individual's due process  rights and the public  interest in most

cases, subject to the Administrator's "emergency" declaration and

an expedited hearing in exceptional circumstances.  Cf. Gallagher
                                                                 

v. NTSB, 953 F.2d  1214, 1224-25 (10th Cir. 1992) (  1429 creates
       

an extraordinary  class of  emergency order petitioners  who lose

the  usual procedural rights during the 60-day period in order to

protect the  public safety).  We  have no reason to  believe that

Congress  intended to denude the  NTSB of the  ability to protect

the public  interest in the larger number of cases, once the full

panoply of  procedural rights had  been accorded.   Other courts,

too, have assumed the NTSB's role in protecting the public.   Cf.
                                                                 

Grant  v.  NTSB,  959 F.2d  1483,  1485  (9th  Cir. 1992)  (since
               

predominant  purpose of     1429 is  to  promote air  safety,  in

emergency  cases  ways  must  be  sought  by  NTSB  to  vindicate

individual's right to fair  decisional process without  impairing

statute's mandate). 

       In accordance with usual  practice, the NTSB's final order

of   revocation,   following    a   fact-finding   hearing    and

administrative review is fully  effective on appeal unless stayed

by  that agency or this court.  See Administrative Procedure Act,
                                   

5 U.S.C.   705  (agency has authority to postpone  effective date

                               -6-

of its own order when "justice so requires"); Fed. R.  App. P. 18

(application for  a stay of agency  action must be  made in first

instance to agency).   

       Petitioner's  related argument  that he  is entitled  to a

stay  because the  NTSB did  not publish  a rule  in the  Code of

Federal Regulations  stating the  agency's authority to  stay its

own  orders,  is also  specious.    Publication  in  the  Federal

Register  is  not  required  where  the  practice,  as  here,  is

traditional,  longstanding,  and  follows  the  course of  events

clearly contemplated in the  Administrative Procedure Act and the

Federal Aviation  Act.  See  Rochna v.  NTSB, 929 F.2d  13, 15-16
                                            

(1st Cir.), cert. denied, 112 S. Ct. 305 (1991).   Petitioner had
                        

actual  notice  of  the  policy  and  full  opportunity  to  take

advantage  of it,  which he  in fact  did, by  moving for  a stay

before the  NTSB.  Thus there is  no plausible due process claim.

Rochna, 929 F.2d at 16. 5  
      

       (2) Argument for a Stay under Fed. R. App. P. 18
                                                       

       Petitioner also  fails to make an adequate showing for the

extraordinary  remedy of a stay pending appeal under Fed. R. App.

P.  18.6  Motions for  a stay of an  agency order are governed by

                    

5.      This  is  the  same  argument  we  addressed  in  Rochna.
                                                                 
Petitioner's counsel here also represented the petitioner in that
case, and in other cases cited therein, where the courts rejected
the same argument in identical fashion.   

6.   Petitioner does not urge upon us the  authority of 49 U.S.C.
app.   1486, although it expressly provides parallel authority to
this court  to stay NTSB orders  for "good cause shown".   As the
factors considered would  be the same as  under Rule 18,  in this

                               -7-

the  same considerations  as motions  for an  injunction pendente

lite.  9 James  W. Moore,  et. al.,  Moore's Federal  Practice,  

218.02[2]  at 18-5 (2nd Ed. 1992); Cuomo v. United States Nuclear
                                                                 

Regulatory Comm'n, 772 F.2d  972, 978 (D.C. Cir. 1985);  see also
                                                                 

Conservation Law Found., Inc.  v. Andrus, 617 F.2d 296  (1st Cir.
                                        

1979) (preliminary  injunction); Providence  Journal v.  FBI, 595
                                                            

F.2d  889 (1st Cir. 1979) (stay of  district court order).  It is

the  moving party's burden to demonstrate the  need for a stay in

light of (1) the likelihood  that the movant will prevail on  the

merits of the appeal;  (2) the likelihood he will  be irreparably

injured  absent  a stay;  (3) the  possibility  of harm  to other

persons  interested  in  the  proceedings;  and  (4)  the  public

interest.  Cuomo, 772 F.2d at 974; Washington Metro. Area Transit
                                                                 

Comm'n  v.  Holiday Tours,  Inc., 559  F.2d  841, 843  (D.C. Cir.
                                

1977); Eastern Air  Lines, Inc., 261  F.2d at 830.   The relative
                               

weight assigned to  each factor necessarily  varies from case  to

case.  Cuomo, 772 F.2d at 974. 
            

       The public's  interest in  air safety  is  of obvious  and

paramount importance in this  case.  Petitioner ingenuously urges

that safety is not in issue, however, because the Administrator's

                    

case there appears  to be no practical reason  to prefer one over
the other.  See Eastern Air Lines, Inc. v. Civil Aeronautics Bd.,
                                                                
261 F.2d 830 (2d  Cir. 1958) (citing factors, denying  stay under
predecessor  version of  Act,); Air  Line Pilots  Ass'n Int'l  v.
                                                             
Civil  Aeronautics  Bd., 215  F.2d  122 (2d  Cir.  1954) (denying
                       
interlocutory stay of implementation of special air regulation). 

                               -8-

choice not to  use his  emergency power  to suspend  petitioner's

certificate  in advance of the NTSB review "certified" that there

was  no risk  to  the public.    This reasoning  exaggerates  and

distorts  the  meaning of  the  Administrator's early  processing

decision.  Especially in a case  where the facts are in  dispute,

if  any   relevant  inference  can   later  be  drawn   from  the

Administrator's   processing  choice,   it  is   only  that   the

Administrator  chose not to  implement his order  until the facts

had been fully aired before the NTSB.  

       Aside from  the public safety  issue, petitioner's  claims

under  the  remaining   factors  are  not  convincing.     As  to

irreparable  harm to  petitioner and  harm to  others, petitioner

relies solely  upon his  counsel's affidavit, which  advises that

petitioner's only  source of support is  a "one-man, one-aircraft

on-demand air-taxi  service."  This service,  counsel states, was

put together by a  "small group of businessmen, who  require air-

transportation  from time to  time, with the  specific purpose of

having  [petitioner] as their pilot."  Even giving full credit to

this  recitation   as  an   accurate  depiction  of   the  facts,

nevertheless we do not understand how denial of a stay will cause

petitioner  or  his  unnamed  business  associates  "irreparable"

injury. "The key word in this consideration is irreparable.  Mere
                                                          

injuries, however substantial ... are not enough."  Wisconsin Gas
                                                                 

Co.  v. Federal Energy Regulatory Comm'n, 758 F.2d 669 (D.C. Cir.
                                        

                               -9-

1985) (quoting Virginia Petroleum Jobbers Ass'n  v. FPC, 259 F.2d
                                                       

921, 925 (D.C. Cir. 1958)). 

       We do  not doubt  that economic dislocation  may accompany

revocation of petitioner's certificate, perhaps necessitating the

hiring of a substitute  pilot.  And we can  imagine circumstances

in which some  of the loss will not be  readily compensable.  But

this   is  not  the  type  of  injury  which  would  justify  the

extraordinary appellate intervention  requested here,  especially

in  the absence of  any showing  of a  high probability  of later

success  on  the  merits  of  this appeal.    Compare  Providence
                                                                 

Journal,  595 F.2d at 889 (where failure to stay district court's
       

disclosure  order would so utterly  destroy the status  quo as to

render  any  later appeal  moot, but  grant  of stay  would cause

relatively  slight harm,  appellants need  not show  an "absolute

probability of success"). 

       Petitioner presents  here only one of  the legal arguments

which he  says will lead to  sucess on the merits  of his appeal.

He says that revocation  of his certificate was improper  because

it   was  imposed  as  a  "punishment,"  and  not  for  "lack  of

qualification" to hold the  certificate. "Lack of qualification,"

is  the  standard  which  the  Board  uses  in  determining  when

revocation is  appropriate to insure "safety in  air commerce ...

and the  public interest."  Proud v.  Civil Aeronautics  Bd., 357
                                                            

F.2d 221, 224 (7th Cir. 1966). 

                               -10-

      As  we  understand  it  on this  abbreviated  review,  this

argument  too,  may  misapprehend   the  relative  roles  of  the

Administrator  and NTSB  and the  means each  uses to  effect the

regulatory  purpose.7   But whatever the  legal merit,  the scant

record before us  does not support petitioner's  statement of the

issue.   Instead, the initial  FAA order recites  that because of

the listed  safety violations  the Administrator  "has determined

that safety in air  commerce ... and the public  interest require

the revocation."  And the NTSB expressly held  that denial of the

requested stay was predicated on the conclusion that petitioner's

conduct  demonstrated "a lack of the qualifications required of a

certificate holder." 

                    

7.     The agencies  are generally  accorded broad  discretion to
choose  the  proper  remedy  to effect  the  regulatory  purpose,
unconstrained  by the  semantical  quibbling  which  petitioner's
argument may  suggest.  See, e.g.,  Hill v. NTSB,  886 F.2d 1275,
                                                
1281 (10th Cir. 1989) (the Act gives the FAA "broad discretion to
choose between ... section 609 certificate action and section 901
civil money damages," quoting  from Go Leasing Inc. v.  NTSB, 800
                                                            
F.2d 1514 (9th Cir. 1986)); Twomey v. NTSB, 821 F.2d 63 (1st Cir.
                                          
1987)  (FAA's  emergency order  revoking pilot's  certificate for
material misstatement  of fact was  not an  abuse of  discretion,
since  FAA was entitled to  conclude that there  was a connection
between  the  pilot's falsehood  and  danger  to public  safety);
Proud, 357  F.2d at 224   (agency  is given  broad discretion  to
     
choose among certificate remedies); Pangburn v. Civil Aeronautics
                                                                 
Bd., 311 F.2d  349, 354-55 (1st  Cir. 1962) (agency's  consistent
   
exercise   of   its  broad   discretionary  authority   to  order
certificate suspensions as  a "sanction" under 1938  Act need not
be  changed  because  of  language  in  1958  Act  providing  for
certificate suspension or revocation  if required by "safety" and
"public  interest," since  deterrent  suspensions also  serve the
stated purposes).

                               -11-

       In sum, petitioner has not demonstrated sufficient grounds

for a stay of the NTSB order pending appeal, and so his motion is

denied.
       

                               -12-
