Unpublished Disposition, 927 F.2d 609 (9th Cir. 1991)

MEMORANDUM^* 

After Hembree landed her aircraft on a closed runway, the Administrator of the FAA issued an order suspending Hembree's flight instructor certificate for 120 days. Hembree appealed to the National Transportation Safety Board (NTSB). An NTSB Administrative Law Judge found Hembree in violation of several Federal Aviation Regulations for landing her aircraft on a closed runway, for flying without a current medical certificate, and for failing to present her pilot's and medical certificates upon the demand of a representative of the Administrator. The ALJ reduced Hembree's suspension period from 120 days to 60 days because of mitigating circumstances, namely that Hembree depended solely upon her certificate for her livelihood.

Hembree and the Administrator appealed to the National Transportation Safety Board. Among other things, Hembree alleged that she did not receive a fair hearing because the ALJ was biased. The NTSB determined that Hembree had received a fair hearing and reinstated the 120 day suspension, finding that Hembree's defiance following landing outweighed any possible mitigation. Hembree appeals the NTSB decision.

We affirm the NTSB's determination that the ALJ was not biased. Hembree emphasizes a comment by the ALJ to the effect that the ALJ did not see how anyone could mistake the meaning of a large "X" laid out at the end of a closed runway. The ALJ made it clear, however, that he was not referring particularly to Hembree's case, and that he would decide Hembree's case on the evidence of record. Hembree has not demonstrated that the ALJ was improperly predisposed against her. We also find no impropriety in the ALJ's questioning of a witness regarding the location of barricades on or near the closed runway.

We also reject Hembree's contention that the NTSB abused its discretion in reinstating the Administrator's sanction of a 120-day suspension after the ALJ had reduced it to a 60-day suspension. Relying on our decision in Essery v. Dep't of Transportation, 857 F.2d 1286, 1290-93 (9th Cir. 1988), Hembree contends that her 120-day suspension is much more severe than that imposed in earlier like cases, and that it therefore violates the policy of uniformity of sanctions. See id. at 1291. The problem with Hembree's argument is that she has shown no comparable case involving the same combination of violations, and we have found none. Respondent has, however, cited cases imposing sanctions of 45 days suspension for landing on a wrong runway, Administrator v. Herring, 2 NTSB 1180 (1974), and 15 days for flying without a medical certificate, Administrator v. Elstad, 3 NTSB 3354 (1981). Respondents have also cited one initial decision where 30 days was added to a period of suspension for the offense of failing to produce a certificate on request. Engen v. Osborne, NTSB Docket No. SE-6543 (1985).

We have previously emphasized that perfect uniformity of sanctions is impossible because the facts of each violation differ. See Winslow v. NTSB, 885 F.2d 615, 619 (9th Cir. 1989) (citing Administrator v. Pearson, 3 NTSB 3837, 3838 (1981) (NTSB Order No. EA-1662)). Here the closed runway had heavy equipment on it. Hembree was acting as an instructor at the time, and the Board was entitled to take that exemplary role into consideration, particularly with regard to Hembree's defiance of the FAA representative. Taking Hembree's status as an instructor into account, and assessing the nature of her three violations, we cannot say that the NTSB decision was "arbitrary or capricious or an abuse of its broad discretion," which is the standard we must apply. See Winslow, 885 F.2d at 618. The fact that Hembree's suspension was at the "high end of the scale" does not render it invalid. Id. Nor is the Board required to reduce the sanction, as the ALJ did, because Hembree's livelihood depends upon flying. While economic impact is a factor to be considered in imposing sanctions, we cannot require the Board to give it controlling effect. Id. at 617 n. 2

AFFIRMED.