Unpublished Disposition, 909 F.2d 1489 (9th Cir. 1987)

No. 89-70182.

United States Court of Appeals, Ninth Circuit.

Before NELSON and TROTT, Circuit Judges, and ALBERT LEE STEPHENS,^**  Jr., District Judge.

MEMORANDUM^*** 

Petitioner seeks review of a National Transportation Safety Board (NTSB) Order suspending his commercial pilot's license for 90 days for entering restricted airspace and operating his aircraft in a careless manner so as to endanger the life or property of another. The suspension was appropriate, and the Order appealed from is affirmed.

FACTS and PROCEEDINGS BELOW

By Order dated March 4, 1987, the Federal Aviation Administrator suspended petitioner Edward L. Hohn's commercial pilot certificate for a period of 90 days. The Order alleged that, incident to the flight, Hohn penetrated Restricted Areas R-2515 and R-2524 and that both areas were active with military aircraft involved in live fire exercises. The Order further alleged that the Edwards Air Traffic Controller (ATC) instructed Hohn to proceed to a heading of 340 degrees to keep clear of the restricted areas, and that Hohn was told three times to exit the area, but failed to comply with the instructions. By reason of the facts alleged, the Order found that Hohn violated Federal Aviation Regulations 14 C.F.R. Sec. 91.95(a) (operating an aircraft in a restricted area), 14 C.F.R. Sec. 91.75(b) (operating an aircraft contrary to an air traffic control instruction in an area where air traffic is exercised), and 14 C.F.R. Sec. 91.9 (endangering the life or property of another).

Hohn appealed the Order on March 20, 1987, and the Administrator filed the Order as his complaint. A hearing was held on October 8, 1987, in Phoenix, Arizona, before Administrative Law Judge (ALJ) Patrick Geraghty. The Administrator presented the testimony of the ATC, and Hohn testified in his own behalf.

At the conclusion of the testimony, the ALJ issued an oral decision affirming the 90-day suspension order. The ALJ found that Hohn was simply further east than he thought he was and that there was no evidence of radar malfunction, and that he was convinced by the ATC's testimony. He recognized that the ATC's distances were estimates based on "eyeballing" the screen and were not plotted, but stated that all ambiguities were decided in favor of the complainant. The ALJ also found that Hohn intentionally disregarded the ATC's instructions, that the absence of actual conflict with aircraft in the restricted zone was merely fortuitous, and that there was a sufficient potential for endangerment to uphold the section 91.9 charge. The ALJ found that Hohn's violation-free history and lack of intent to enter the restricted areas were not mitigating and upheld the 90-day sanction.

Hohn appealed this decision to the full Board on October 22, 1987. The Board considered the appeal on the briefs and affirmed the Order. A stay of the Order was issued and Hohn's petition for review was filed with this court.

STANDARD OF REVIEW

Section 304(d) of the Independent Safety Board Act, 49 U.S.C. § 1903(d), provides that judicial review of an NTSB order shall be conducted in accordance with Chapter 7 of the Administrative Procedure Act (APA), 5 U.S.C. §§ 4701-4706. Under the APA, the reviewing court shall hold unlawful and set aside agency action that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. 5 U.S.C. § 706(2) (A).

The NTSB's findings of fact are conclusive when supported by substantial evidence in the record. Meik v. NTSB, 710 F.2d 584, 586 (9th Cir. 1983). Under the substantial evidence test, the court must determine whether " 'the agency ... could fairly and reasonably find the facts as it did.' " Western Air Lines Inc. v. CAB, 495 F.2d 145, 152 (D.C. Cir. 1974) (quoting Braniff Airways, Inc. v. CAB, 379 F.2d 453, 462 (D.C. Cir. 1967)). Moreover, " [a] conclusion may be supported by substantial evidence even though a plausible alternative interpretation of the evidence would support a contrary view." Id.

Purely legal issues are reviewed de novo by this court. Go Leasing, Inc. v. NTSB, 800 F.2d 1514, 1517 (9th Cir. 1986). Mixed questions of law and fact are reviewed under the clearly erroneous test when the nature of the inquiry required in applying the law to the facts is essentially factual. If the nature of the required inquiry focuses more on value judgments about the law and its policy underpinnings, the court independently reviews the determination of the trial judge. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.), cert. denied, 469 U.S. 824 (1984). When reviewing findings of fact that depend upon the credibility of witnesses, the court should give deference to the NTSB.

ANALYSIS

Hohn points to alleged inconsistencies in the ATC's testimony. The ALJ had all of the evidence before him, and determined that the ATC's testimony was more credible than Hohn's testimony. The ALJ noted that the ATC's locations were not plotted but based on "eyeballing" the location on his screen, and that he resolved all conflicts in favor of the Federal Aviation Administration. Hohn has presented no evidence that demonstrates that the ALJ's findings should be disturbed.

There is clearly substantial evidence based upon the testimony of the ATC to support the ALJ's determination that Hohn violated restricted airspace. The transcripts of the radio conversation between Hohn and the ATC demonstrate that Hohn did not follow the instructions given by the ATC. The ATC repeatedly told Hohn to fly a northerly course of 330-340 degrees, yet when the ATC requested Hohn's heading Hohn stated he was flying 070 (easterly). This evidence is sufficient to support the ALJ's determination that Hohn did not comply with the ATC's instructions.

Likewise, Hohn has presented no evidence to show that the ALJ's finding that he operated the aircraft in a reckless manner so as to endanger the life or property of another was not supported by the evidence. The ATC testified that the restricted areas that Hohn violated were used by military aircraft and missiles and that there were live fire exercises scheduled for the areas. The ALJ found the lack of military aircraft in the area at the time fortuitous, and held that the potential for endangerment was sufficient to uphold the violation. The NTSB cases cited by Hohn do not undermine the ALJ's conclusion that potential endangerment can support the violation.

Hohn's violation-free history does not provide a valid justification for reducing the 90-day sanction. See Administrator v. Mandel, 3 N.T.S.B. 1401, 1402 (1978). Hohn admitted that he knowingly violated the ATC's instructions. The NTSB found his violation deliberate. A violator's willfulness may justify upholding a sanction. See Administrator v. Dopp, N.T.S.B. Order No. EA-2019 (1984). The sanction imposed does not amount to an abuse of discretion.

CONCLUSION

Substantial evidence supports the decision made by the ALJ and affirmed by the NTSB. The factual issues Hohn attempts to argue on appeal are precisely those that were decided below, and this court must give deference to the agency's findings of fact. Hohn presents no evidence or arguments demonstrating that the NTSB's order is not supported by the evidence. Furthermore, the sanction is within the discretion of the NTSB. The cases cited by Hohn demonstrating that some violators of restricted airspace have received different penalties does not render the imposition of a 90-day suspension in this case an abuse of discretion.

The Order of the NTSB is

AFFIRMED.