Unpublished Disposition, 917 F.2d 27 (9th Cir. 1990)

No. 89-70445.

United States Court of Appeals, Ninth Circuit.

Before REINHARDT and CYNTHIA HOLCOMB HALL, Circuit Judges, and RE,^*  Chief Judge.

MEMORANDUM^** 

Petitioner Ronald G. Fisher petitions pro se for review of a decision of the National Transportation Safety Board (the Board) that upheld an order of the Federal Aviation Administration (FAA) that revoked Fisher's airframe and powerplant mechanic certificate and inspection authorization.

A hearing on the revocation was held before an administrative law judge (ALJ), who determined that Fisher had violated FAA regulations, and affirmed the revocation of Fisher's license. The decision of the ALJ was affirmed by the Board. On direct appeal to this court, Fisher alleges thirteen separate instances of error.

Fisher's first contention is that the ALJ erred in refusing to grant his motion for a continuance. In support of his argument, Fisher asserted that he "was advised one day before trial ... by the FAA Seattle Office that there would be no trial in this matter...." Fisher states that he suffered "prejudicial, unfair surprise" by the ALJ's refusal to grant the continuance. However, Fisher did not allege surprise or prejudice on the record at the hearing. Indeed, Fisher appeared at the hearing with his representative, Mr. Jorgenson, three witnesses, and documentary evidence. Only on appeal did Fisher allege that, because he expected the trial to be delayed, "we could only secure three of our 18 witnesses." Fisher does not indicate the expected content of the testimony of the missing witnesses. Hence, the ALJ did not err in denying the motion.

Fisher's second contention is that the ALJ erred in not dismissing the complaint because of the FAA's refusal to comply with his document entitled "Supeona [sic] Duces Tecum." The document, which was issued to five witnesses, directed each of them to appear for a deposition "and bring with you all documentation that you have generated in connection with this cause herein...." The FAA, through its counsel, directed the witnesses not to appear for the depositions. The rules of the Board permit a party once a petition for review has been filed, to take oral or written depositions of any person, without prior Board approval. See 49 CFR Sec. 821.19 (1990). The rules state, however, that " [i]n other respects, the taking of any deposition shall be in compliance with the provisions of section 1004 of the [Federal Aviation Act of 1958, codified at 49 U.S.C. app. Sec. 1484 (1982) ]." Id. Under 49 U.S.C. app. Sec. 1484(b), the Board has the power to issue subpoenas compelling the production of documents. Since Fisher's request sought the production of documents, it did not comply with the terms of 49 CFR Sec. 821.19, and therefore required Board approval. Accordingly, the ALJ did not err in not requiring the FAA to comply with Fisher's document.

Fisher's third contention is that, by his actions and demeanor, the ALJ who presided at the hearing demonstrated "bias" towards Fisher, and "should have disqualified himself." At the opening of the hearing, Fisher moved that the ALJ recuse himself. Fisher submitted two affidavits, one signed by him and one signed by Mr. Jorgenson, Fisher's representative, which stated that the ALJ was biased. The affidavits, however, contained no supporting facts. Furthermore, the ALJ stated on record that he had no personal knowledge of either Fisher or Jorgenson, and had no personal interest in the outcome of the case. In addition, the transcript of the hearing reveals no bias against Fisher on the part of the ALJ. It is clear that Fisher's allegations of bias or prejudice on the part of the ALJ are without merit. Hence, the ALJ did not err in denying Fisher's motion for disqualification.

Fisher's fourth contention is that the ALJ erred "in fail [ing] to dismiss the case under the 'Stale Complaint Rule,' " which provides that a party may move to dismiss a claim " [w]here the complaint states allegations of offenses which occurred more than 6 months prior to the Administrator's advising respondent as to reasons for proposed action...." 49 C.F.R. Sec. 821.33 (1989). However, pursuant to section 821.33(b) (2), the ALJ will conduct a hearing if the ALJ "deems that an issue of lack of qualification would be presented by any or all of the allegations...." In this case, the complaint clearly alleged that Fisher lacked "the degree of care, judgment, and responsibility required of the holder of a Mechanic Certificate and Inspection Authorization, and lack [ed] qualifications to hold these certificates." Hence, the ALJ did not err in determining that the stale complaint rule did not apply to this case.

Fisher's fifth contention is that the ALJ erred in not estopping the FAA from proceeding against him because, according to Fisher, the FAA had previously approved of the repairs and actions that are at issue in this case. However, the only support for Fisher's contention is the uncorroborated testimony of both Mr. Fisher and Mr. Jorgenson that the FAA had initially orally approved of Fisher's conduct.

Furthermore, the Supreme Court, in Schweiker v. Hansen, 450 U.S. 785 (1981), a case involving eligibility for Social Security benefits, held that the statement of an administrative official on a certain matter does not estop the administrative agency from later asserting a position contrary to that statement. The Schweiker Court noted that if the administrative officer's statement was held to estop the government from asserting a different position, then the government is put at risk that every error by a government agent will deprive the government of the benefits of its more thorough administrative procedures. See id. at 789-90. Similarly, in this case, even assuming that Fisher's allegations are true, the government should not be estopped from asserting that Fisher violated FAA regulations.

It is also relevant to note that this case involves matters of public safety. As noted by the FAA in its brief, "the public interest in enforcing safety regulations would be harmed by estopping the Government's prosecution--if, for argument's sake, Petitioner has shown that the FAA had made representations to him upon which he had relied." Hence, the ALJ did not err in concluding that the government was not estopped.

Fisher's sixth contention is that the ALJ erred by interfering with Fisher's defense by preventing Fisher from arguing that the conversion of the Astazou engine, the engine involved in this case, "was in common usage and FAA acceptance." During the hearing, Fisher argued that it was common practice to convert an engine different from the Astazou, and that such a conversion is similar to the conversion in this case. It is clear, however, that, as noted by the Board in its order affirming the ALJ's decision, " [t]he FAA's treatment of different engines is not relevant for the purpose of establishing a violation regarding the subject engine." Hence, the ALJ did not err in excluding this evidence.

Fisher's seventh contention is that the ALJ erred in accepting the testimony of the government's witness, David Gali, over the testimony of Fisher, and that the ALJ erred in restricting the cross-examination of Gali. The ALJ, however, permitted Fisher to impeach the credibility of Gali by cross-examining him as to his past drinking problem. The ALJ also allowed inquiry into whether Gali was testifying against Fisher in return for any promises of leniency by the FAA in the imposition of a penalty against Gali. Indeed, the fact that a penalty was imposed against Gali was brought out on direct examination. Furthermore, the ALJ's determination of credibility was based on his observation of the testimony and demeanor of the witness, and should be accorded great deference. See Dohmen-Ramirez v. Commodity Futures Trading Comm'n, 837 F.2d 847, 856 (9th Cir. 1988). Hence, the ALJ did not err.

Fisher's eighth contention is that the ALJ erred in not permitting Fisher to extract from Gali on cross-examination "the miniscule sanction given to Gali in return for his favorable testimony to the FAA...." The fact that Gali was penalized by the FAA, however, was brought out on direct examination. Furthermore, on cross-examination, Fisher was permitted to ask Gali about his relationship with Mr. Kuykendall, the FAA inspector, and whether he was "forced to testify because of Kuykendall [.]" When Gali denied this, Fisher was permitted to ask Gali whether he ever "admitted that in any way, shape or form that Kuykendall would seek additional sanctions against you [.]" Hence, Fisher's contention that the ALJ erred in excluding evidence of the sanctions against Gali is without merit.

Fisher's ninth contention is that the ALJ wrongfully prevented Fisher from introducing evidence on the actual cause of the helicopter crash which initiated the investigation, and on whether Fisher had asked any mechanic, other than Gali, to falsify records. This evidence, however, is not relevant to the charges against Fisher, since the complaint charged solely that Fisher lacked the necessary qualifications. Accordingly, the ALJ did not err in excluding it.

Fisher's tenth contention is a general assertion that the ALJ interfered with Fisher's cross-examination of the witnesses. In support of his contention, Fisher cites various instances in the record. An examination of these instances, however, indicates that, rather than interfering with Fisher's cross-examination, the ALJ only sought to rule on evidentiary objections, and effectively manage the trial. Hence, the ALJ did not err.

Fisher's eleventh contention is that the Board erred in not granting a new trial based on misconduct by FAA attorneys. In support of his contention, Fisher relies on many of the same points which he raised earlier in support of his other contentions. As previously noted, it is clear that these assertions are without merit, and that the Board did not err.

Fisher's final two contentions are that Mr. Jorgenson's testimony "was binding upon" the ALJ, and that there is "no reliable and substantial probative evidence" to support the ALJ's findings. Neither of these arguments, however, were made to the Board in Fisher's appeal of the ALJ's ruling. Pursuant to 49 U.S.C. app. Sec. 1486(e), upon judicial review of Board orders, the court shall not consider an objection "unless such objection shall have been urged before the Board or Secretary of Transportation or, if it was not so urged, unless there were reasonable grounds for failure to do so." Since Fisher neither alleges nor provides any reasonable grounds for the consideration of these arguments for the first time by this court, the court need not consider them.

CONCLUSION

Since Fisher's contentions are without merit, we conclude that the Board did not err in upholding the FAA's revocation of Fisher's airframe and powerplant mechanic certificate and inspection authorization.

AFFIRMED.