Unpublished Disposition, 894 F.2d 409 (9th Cir. 1985)

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US Court of Appeals for the Ninth Circuit - 894 F.2d 409 (9th Cir. 1985)

Robert E. MIKESELL, Petitioner,v.DEPARTMENT OF TRANSPORTATION, NATIONAL TRANSPORTATION SAFETYBOARD; Federal Aviation Administration, Respondents.

No. 88-7363.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 30, 1989.Decided Jan. 23, 1990.

Before TANG, REINHARDT and WIGGINS, Circuit Judges.


MEMORANDUM* 

Robert E. Mikesell seeks review of a National Transportation Safety Board (NTSB) order revoking his airline transport pilot certificate for violations of Federal Aviation Administration (FAA) regulations during a flight he piloted. Mikesell contends that (1) the NTSB misinterpreted the applicable regulations; (2) the NTSB administrative law judge (ALJ) was biased against him and failed to consider all the relevant evidence; (3) the sanction imposed against him is excessive; (4) the FAA prejudiced his defense by intentionally delaying this action against him; and (5) the ALJ wrongfully applied collateral estoppel to prevent his litigating facts contained in paragraphs three through eleven of the NTSB order.

Mikesell was the president, sole shareholder, and chief pilot of Indian Wells Airlines, a small commuter airline operating flights between Inyokern, California and Los Angeles, California. This case arises out of a flight Mikesell piloted from Los Angeles to Inyokern on January 28, 1985. In another case arising out of the same flight, the NTSB upheld the FAA's revocation of the airline's air taxi commercial operator's certificate. See Administrator v. Indian Wells Airlines, Inc., NTSB Order No. EA-2159. The FAA subsequently revoked Mikesell's airline transport pilot certificate. The ALJ and the NTSB affirmed the revocation order. Mikesell petitions for review of that order. We have jurisdiction under 49 U.S.C.App. Secs. 1486(a), 1903(d) (1982).

The standard for judicial review of an NTSB order is governed by Chapter 7 of the Administrative Procedure Act. 49 U.S.C.App. Sec. 1903(d) (1982). We must uphold NTSB decisions unless they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," or "unsupported by substantial evidence." 5 U.S.C. § 706(2) (A), (E) (1982); see Kolek v. Engen, 869 F.2d 1281, 1285 (9th Cir. 1989); Ferguson v. NTSB, 678 F.2d 821, 825 (9th Cir. 1982). Substantial evidence is such relevant evidence as a reasonable mind might "accept as adequate to support a conclusion." ASARCO, Inc. v. OSHA, 746 F.2d 483, 490 (9th Cir. 1982).

A. THE ISSUE OF NTSB'S INTERPRETATION OF APPLICABLE FEDERAL AVIATION REGULATIONS

Mikesell claims the NTSB erred in interpreting Federal Aviation Regulation (FAR) 135.103 to require consultation of current weather information. Federal Aviation Regulation, 14 CFR Sec. 135.103 (1988). FAR 135.103 sets forth the exception to the general rule which prohibits flying in Instrument Flight Rule (IFR) conditions without a second in command. Federal Aviation Regulation, 14 CFR Sec. 135.101. FAR 135.103(a) states that:

A takeoff may be conducted under IFR conditions if the weather reports or forecasts, or any combination of them, indicate that the weather along the planned route of flight allows flight under [Visual Flight Rules] VFR within fifteen minutes flying time, at normal cruise speed, from the takeoff airport.

Federal Aviation Regulation, 14 CFR Sec. 135.103(a).

Mikesell claims that the regulation does not explicitly require verification of the weather along the planned route of flight with current weather reports or forecasts. The NTSB dismissed this argument. We find no abuse of discretion in the NTSB order. It is a reasonable interpretation of FAR 135.103(a) to require current weather reports or forecasts. Moreover, the regulatory scheme of the Federal Aviation Regulations requires use of current reports or forecasts. See Federal Aviation Regulations, 14 CFR Sec. 135.219 (prohibiting IFR takeoffs unless the latest weather reports or forecasts indicate the destination airport is above IFR minimums; 14 CFR Sec. 135.225(a) (2) (prohibiting an IFR approach unless the latest weather report indicates the field is above IFR minimums).

Mikesell also argues that the NTSB erred in interpreting FAR 135.103(a) to require pilots to be out of IFR within fifteen minutes after takeoff. Mikesell contends that the regulation merely requires a pilot's reasonable foresight analysis that he would be in VFR within fifteen minutes. The NTSB rejected Mikesell's argument. The ALJ noted that a reasonable and prudent pilot who had obtained the proper updates of weather would have foreseen that he would not have cleared IFR conditions within fifteen minutes of takeoff. We find that the NTSB did not abuse its discretion in concluding that Mikesell's failure to obtain current weather reports invalidated his foresight analysis.

In addition, Mikesell claims the FAA misinterpreted FAR 135.213(a) which states:

Whenever a person operating an aircraft under this part is required to use a weather report or forecast, that person shall use that of the U.S. National Weather Service, a source approved by the U.S. National Weather Service, or a source approved by the Administrator. However, for operations under VFR, the pilot in command may, if such a report is not available, use weather information based on that pilot's own observations or on those of other persons competent to supply appropriate observations.

Federal Aviation Regulation, 14 CFR Sec. 135.213(a) (emphasis added).

Mikesell claims he satisfied FAR 135.213(a) by obtaining a weather description from his weather reservationist at Inyokern. The FAA's rejection of Mikesell's argument is entirely reasonable. The regulation unequivocally states that a pilot may use alternative sources of weather information only when U.S. National Weather reports or sources approved by the U.S. National Weather Service are unavailable. Mikesell did have access to these reports at flight time and his failure to use them constitutes a violation of FAR 135.213(a). We need not consider whether Mikesell's reservationist comes within the definition of a "competent source" pursuant to FAR 135.213(a).

B. THE ISSUE OF THE ALJ'S ALLEGED BIAS AND FAILURE TO CONSIDER ALL RELEVANT EVIDENCE

Mikesell alleges bias against him on the part of both Judge Davis in the Indian Wells case, and Judge Geraghty, the ALJ in the instant case. We will not consider the issue of Judge Davis' alleged bias, since that would require an appeal of the now closed case of Indian Wells.

Judicial bias is established where "a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned." In Re Manoa Finance Co., Inc., 781 F.2d 1370, 1372-73 (9th Cir. 1986); Sakellar v. Lockheed Missiles and Space Co., 765 F.2d 1453, 1457 (9th Cir. 1985). Petitioner must prove that the bias resulted from an extrajudicial source rather than from what the judge learned from his participation in the case. In Re Manoa Finance Co., 781 F.2d at 1373; Matter of Beverly Hills Bancorp, 752 F.2d 1334, 1341 (9th Cir. 1984).

Mikesell seeks to establish bias by Judge Geraghty's refusal to reopen the Indian Wells case. Furthermore, Mikesell argues that Judge Geraghty demonstrated bias by remarking that certain issues were established as a matter of law. Mikesell has failed to prove that Judge Geraghty based his opinion on matter extrinsic to the issues presented in litigation. Judges' remarks which merely express his opinion on a point of law do not show personal bias or prejudice. Sakellar v. Lockheed Missiles and Space Co., 765 F.2d 1453, 1457 (9th Cir. 1985). We find no bias on the part of Judge Geraghty.

Furthermore, Mikesell claims that the ALJ failed to consider all relevant evidence and testimony in holding that he violated FAR 135.203(a) (1). Federal Aviation Regulation, 14 CFR 135.203(a) (1). FAR 135.203(a) (1) generally prohibits flying below 500 feet during daytime under VFR rules. Under the arbitrary and capricious review standard we give great deference to the administrative court below. Sufficient evidence existed to find a violation of FAR 135.203(a) (1). Such evidence included witness statements that Mikesell flew below 500 feet in VFR and admissions by Mikesell himself that he flew below 500 feet in VFR. We uphold the NTSB findings below.

Mikesell claims that revocation of his pilot certificate served as an excessive sanction in light of the NTSB's earlier revocation of his company's operating certificate based on the same conduct. He cites Administrator v. Diaz-Saldana, 1 NTSB 1599 (1972). However, Diaz-Saldana poses a different issue than the instant case. In Diaz-Saldana, the defendant did not pilot both flights giving rise to the enforcement action against the company's license and the pilot's license. The issue at bar here is similar to Administrator v. Denham, NTSB Order No. EA-2752 (1988). Denham held that the action taken against an airline owned by respondent is separate and distinct from an action taken against respondent's pilot certificate. We find that the NTSB did not abuse its discretion in allowing sanctions to issue against both Mikesell and Mikesell's airline.

D. THE ISSUE OF ALLEGED DELIBERATE DELAY BY THE ADMINISTRATOR AND ALLEGED SUBSEQUENT PREJUDICE

Mikesell alleges the FAA "unreasonably delayed" bringing the instant case against him. Mikesell claims this delay prejudiced his defense by leading him to believe that the FAA would take no further action against him following the Indian Wells decision. Thus, Mikesell argues, he did not appeal the Indian Wells decision. This argument borders on the frivolous. Mikesell's violations occurred on January 28, 1985. The notice of proposed certificate action against his pilot certificate was issued on June 14, 1985, well within the six month time limit for suspension actions. 49 C.F.R. Sec. 821.33 (1988). Moreover, the notice of proposed certificate action against Mikesell's pilot certificate was issued before the time to appeal the Indian Wells case had expired. The responsibility for Mikesell's appeal, or lack of it, rests with Mikesell.

E. THE ALLEGED WRONGFUL APPLICATION OF COLLATERAL ESTOPPEL

Mikesell claims that the ALJ wrongfully collaterally estopped him from litigating the facts contained in paragraphs three through eleven of the NTSB order. Collateral estoppel cannot apply when the party subject to its constraints "did not have a 'full and fair opportunity' to litigate that issue in the earlier case." Allen v. McCurry, 449 U.S. 90, 95 (1980). Application of collateral estoppel to issues decided in Indian Wells to the instant case would be improper. Mikesell's pilot certificate was not at issue and Mikesell was not a named party. However, when Mikesell appealed the ALJ's application of collateral estoppel to the instant case to the NTSB board, the board recognized the ALJ's error and remanded the case for further evidence. Mikesell's claim of wrongful application of collateral estoppel against him has no basis.

CONCLUSION

The judgment of the National Transportation Safety Board is AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3