Michael L. Holmes, Petitioner, v. National Transportation Safety Board; Federal Aviationadministration, Respondents, 9 F.3d 1551 (9th Cir. 1993)

MEMORANDUM^** 

Michael L. Holmes appeals from an order of the National Transportation Safety Board ("NTSB") suspending his airline transport pilot certificate for 60 days. We have jurisdiction under 49 U.S.C. app. § 1486, and we affirm.

The Federal Aviation Administration initially suspended Holmes' pilot certificate for 180 days because it found that Holmes had operated a helicopter in violation of Federal Aviation Regulations ("FAR"). After Holmes appealed to the NTSB, the suspension period was reduced to 60 days. The NTSB administrative law judge ("ALJ") held an evidentiary hearing and concluded that the record supported the following findings:

... that the Jet Ranger [helicopter] operated (a) below an altitude which, if a power unit had failed, would have allowed an emergency landing without undue hazard to persons or property on the surface [in violation of FAR § 91.79(a) ]; (b) at such a low altitude as to create a hazard to persons or property on the surface [in violation of FAR § 91.79(d) ]; and (c) in a careless manner so as to endanger the life or property of another [in violation of FAR § 91.9].

The ALJ's decision was subsequently affirmed by the full board of the NTSB.

A decision of an administrative agency will be overturned only if " 'arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with law.' " Essery v. Department of Transp., 857 F.2d 1286, 1288 (9th Cir. 1988) (quoting 5 U.S.C. § 706(2) (A)). An agency's factual findings are conclusive if supported by substantial evidence. Id. We generally defer to an ALJ's credibility determinations "unless they are 'inherently incredible or patently unreasonable.' " Photo-Sonics, Inc. v. NLRB, 678 F.2d 121, 123 (9th Cir. 1982) (quoting NLRB v. Anthony Co., 557 F.2d 692, 695 (9th Cir. 1977)).

Holmes admits that he operated a helicopter in Northern California during the period of January 12 through January 16, 1987. Several witnesses in various parts of Northern California testified that they were disturbed by a low-flying helicopter during that same time period. One witness correctly identified the helicopter's identification number, and others remembered a number similar to that displayed on the helicopter. An inspector from the Federal Aviation Administration testified that it was his opinion, based on the witnesses' observations, that Holmes' operation of the helicopter was unsafe and violated aviation regulations because he operated within the manufacturer's "height-velocity curve."

Holmes contends that the evidence relied upon by the NTSB was unreliable because several of the witnesses gave conflicting testimony, most could not correctly identify the helicopter's identification number, and because one witness had filed a lawsuit against Holmes. However, the ALJ had the opportunity to observe the demeanor of the witnesses and determined that they were more credible than Holmes. This determination was not "patently unreasonable." See Photo-Sonics, 678 F.2d at 123. The discrepancies in the witnesses' accounts and their inability to correctly recall the helicopter's identification number are easily understandable in light of the brief and frightening nature of the incidents they described.

We conclude that the NTSB's order was supported by substantial evidence and was not arbitrary or capricious.

AFFIRMED.