Unpublished Disposition, 927 F.2d 609 (9th Cir. 1988)

MEMORANDUM^* 

Robert W. Fleischman petitions for review of an order by the National Transportation Safety Board ("Board") suspending his private pilot certificate for 40 days for (1) operating an aircraft in a careless manner so as to endanger the life or property of another; and (2) failing to keep required records of maintenance performed on the aircraft. He claims that the administrative proceedings violated his Fifth Amendment right against self-incrimination and his right to procedural due process, and that there was insufficient evidence to support the Administrative Law Judge's ("ALJ's") finding, affirmed by the Board, that petitioner was the pilot-in-command during the relevant flight. We conclude that the administrative proceedings did not violate the petitioner's constitutional rights in any way and that substantial evidence supports the ALJ's finding that petitioner was the pilot-in-command. We therefore deny the petition for review and affirm the Board's 40-day suspension of petitioner's private pilot certificate.

BACKGROUND

On June 21, 1986, the flight of a Cessna 210 aircraft owned by Mr. Fleischman terminated in a gear-up landing at Sky Harbor Airport in Henderson, Nevada; that is, whoever was piloting the aircraft forgot to lower the wheels prior to landing, so that the aircraft landed on its belly. There were no injuries as a result of the irregular landing. FAA Aviation Safety Inspector Donald Morgan was dispatched to investigate the incident. Inspector Morgan testified at the hearing before the ALJ that someone at the airport told him that Mr. Fleischman was the pilot of the aircraft. The inspector further testified that when he first spoke with the petitioner at the airport, Mr. Fleischman likewise indicated that he was the pilot-in-command of the flight and that two other persons whom he would not identify were with him on the flight. Inspector Morgan also testified in some detail as to Mr. Fleischman's initial explanation of the belly-up landing.

At the hearing Mr. Fleischman denied telling Inspector Morgan that he was pilot-in-command when the plane was landed improperly. He testified that he had taken the plane out that day to show it to a potential purchaser, and that the potential purchaser, "George," had been flying the plane during the relevant flight. Fleischman testified that he could not recall George's last name; that George had an accent; that George was accompanied by a "friend that ran around with him all the time" whose name he could not recall at all; that George had been seen frequently around the airport for two years prior to the incident but never again afterwards; and that he did not know whether George or his friend had valid private pilot certificates, but that he had seen George fly many times. Mr. Fleischman also testified that he had been unable to locate George and did not know anyone else who knew him.

During the course of investigating the irregular landing, Inspector Morgan also discovered that two components--the Brackett Air Filter and the Walker Engineering Oil Air Separator--had been added to the aircraft and that the required entries in the maintenance record were not present. In addition, there was no "Form 337" related to the work.¹  FAA maintenance inspector John Knoebber testified at the hearing that his review of Mr. Fleischman's records did not reveal the requisite entries pertaining to the two installations or a Form 337 citing the installations. Mr. Fleischman introduced a Form 337 at the hearing related to the two installations, but that form was dated November 21, 1986, subsequent to Mr. Fleischman's meeting with Mr. Knoebber for review of the maintenance records.

The FAA's first Notice of Proposed Certificate Action to Mr. Fleischman set out allegations related to the gear-up landing and generally alleged that petitioner's records were inadequate. In response, Mr. Fleischman made a timely request for an informal conference with a regional FAA attorney. Shortly thereafter the FAA sent its First Amendment to the Notice of Proposed Certificate Action, specifically setting out its allegations that Mr. Fleischman had no maintenance entries or Form 337 for the installation of the air filter and air/oil separator. FAA counsel travelled to Las Vegas in order to hold the requested informal conference with petitioner. However, when FAA counsel refused to allow tape recording of the conference, Mr. Fleischman declined to participate further and the conference was terminated. Following the aborted informal conference, the Administrator of the FAA ("Administrator") ordered on February 17, 1987 that the petitioner's private pilot certificate be suspended for sixty days. Petitioner appealed that order to the Board, thus triggering a hearing before an ALJ.

Just prior to the commencement of the hearing before the ALJ on January 26, 1988, counsel for Mr. Fleischman noticed the presence of two uniformed police officers and inquired about their purpose. Counsel for the Administrator indicated that he had requested that bailiffs be present and had secured the ALJ's permission to have them present because the Administrator's witnesses were apprehensive of the hearing going forward without bailiffs. Counsel for Mr. Fleischman then pointed out that Fleischman himself is a deputy constable who carries a badge, and asked the ALJ to excuse the bailiffs. The ALJ indicated that the officers would remain and that he would draw no inferences from the officers' presence in the hearing room.

The hearing then proceeded. Mr. Fleischman was compelled by the ALJ to respond to the FAA's requests for admissions despite his assertion of his Fifth Amendment right against self-incrimination. The ALJ found Mr. Fleischman's account of "George" piloting the aircraft to be inherently incredible, and found that Mr. Fleischman was the pilot-in-command during the gear-up landing. On that basis, the ALJ held that the petitioner had violated Federal Aviation Regulation ("FAR") section 91.9 by carelessly operating an aircraft so as to endanger the life or property of another. The ALJ also found that Fleischman had unintentionally failed to maintain the necessary records regarding installation of the two components and therefore found a technical violation of FAR sections 91.173(a) (2) (v) and 91.173(a) (1). The ALJ modified the Administrator's Order of Suspension, however, by reducing the duration of the suspension from 60 to 40 days. Petitioner appealed the decision of the ALJ to the Board on the same grounds that are presented in the present petition. The Board affirmed both the ALJ's decision and the Administrator's order, as modified by the ALJ's decision. Fleischman filed a timely petition for review. We have jurisdiction to review a final order of the National Transportation Safety Board pursuant to 49 U.S.C. app. Sec. 1486(a).

DISCUSSION

Four of the five claims raised by the petitioner involve only legal questions which we review de novo. We consider whether the ALJ's and Board's factual finding that the petitioner was pilot-in-command is supported by substantial evidence. The Board's factual findings are conclusive when supported by substantial evidence in the record. 49 U.S.C. app. Sec. 1486(e); Essery v. Dep't of Transp., 857 F.2d 1286, 1288 (9th Cir. 1988).

A. Petitioner's Fifth Amendment Claim.

At the hearing before the ALJ the Administrator moved to compel Mr. Fleischman to respond to the six written requests for admissions which he had previously refused to answer on the grounds that they might tend to incriminate him.²  The Supreme Court has long held that the privilege against self-incrimination extends to an individual called upon to answer official questions put to him in any proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings. Allen v. Illinois, 478 U.S. 364, 368 (1986). Thus, the privilege can properly be invoked in an FAA administrative hearing.

To invoke the Fifth Amendment privilege, the individual must be " 'confronted by substantial and "real," and not merely trifling or imaginary, hazards of incrimination.' " United States v. Paris, 827 F.2d 395, 398 (9th Cir. 1987) (quoting United States v. Apfelbaum, 445 U.S. 115, 128 (1980) (quoting Marchetti v. United States, 390 U.S. 39, 53 (1968))). The existence of such hazards is generally determined by "examination of the questions, their setting, and the peculiarities of the case." United States v. Neff, 615 F.2d 1235, 1240 (9th Cir.), cert. denied, 447 U.S. 925 (1980). Where the questions do not themselves suggest that the response would be incriminating in light of the setting, it becomes incumbent upon the individual invoking the right to show that answers to the questions might incriminate him or her. Id. "The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself--his say-so does not of itself establish the hazard of incrimination." Hoffman v. United States, 341 U.S. 479, 486 (1951).

In this case the questions themselves did not raise a danger of self-incrimination in light of the circumstances in which they were being asked, and the petitioner failed to make a showing that answering the questions might incriminate him. It is simply not clear, even at this stage of the proceedings, what petitioner is contending might subject him to criminal liability or what type of criminal liability he fears. Petitioner vaguely and confusedly asserted at the hearing before the ALJ that "he was designated in ... reports filed by the FAA to the effect that he was pilot in command of the aircraft [and] ... [a]ssuming he were not the pilot of that aircraft, there may be some criminal responsibility."³  On appeal, petitioner appears to reverse that logic, arguing that since he filed a report with the FAA and at hearing contended that he was not the pilot in command, he could be subject to liability for filing a false report if it was later determined that he was the pilot in command. Petitioner's vague allegations regarding the possibility of self-incrimination were and are too speculative and remote to support a refusal to answer based on the Fifth Amendment right against self-incrimination. We therefore affirm the decisions of the ALJ and the Board that petitioner was not entitled to invoke the Fifth Amendment.

Petitioner also attempted to invoke the Fifth Amendment privilege to refuse to testify altogether on the basis that the FAA suspension proceeding was itself criminal or quasi-criminal in nature. The ALJ rejected that argument on the grounds that suspension proceedings are regulatory and not criminal in nature and the Board in its order affirming the ALJ indicated that it has consistently held that its administrative proceedings are civil in nature. The only reported case considering the issue offers persuasive analysis in support of that position. See Roach v. National Transp. Safety Bd., 804 F.2d 1147, 1153 (10th Cir. 1986), cert. denied, 486 U.S. 1006 (1988) (holding that "Congress did not intend revocation or suspension of an airman's certificate to be a criminal penalty" and that proceedings related to revocation are neither criminal nor quasi-criminal in nature). We concur in the holding and analysis in Roach and reject the petitioner's contention that pilot suspension proceedings are per se quasi-criminal in nature so as to justify a wholesale refusal to testify on Fifth Amendment grounds.

B. Petitioner's Due Process Claim Regarding the Bailiffs.

Petitioner next contends that the presence of the bailiffs at his hearing before the ALJ, and the FAA counsel's communication with the ALJ prior to the hearing regarding the acceptability of having the bailiffs present, impermissibly tainted the proceeding and impinged on his right to due process. While it would have been a better idea for the Administrator's counsel to have made a written request for bailiffs to be present, with appropriate notice to the petitioner of that request, communication with the ALJ on such a purely procedural matter is not prohibited by the relevant regulations. 49 C.F.R. Sec. 821.61(b). Under the circumstances presented here, the communication does not appear to have tainted the proceeding in any way and would not rise to the level of a due process violation.

Likewise, there is no evidence that the presence of the bailiffs restricted Mr. Fleischman's ability to present evidence or tainted the proceeding in any way. The hearing was not before a jury or laypersons who arguably would attach significance to the presence of bailiffs. The ALJ stated that he would draw no inference from the presence of the bailiffs and, absent any evidence to the contrary, there is no reason to doubt that statement.⁴  In addition, unlike shackles on a person accused of a violent crime, the presence of the bailiffs does not in and of itself suggest an answer to the question of whether Mr. Fleischman was piloting the plane or whether he properly kept maintenance records. Finally, as a matter of policy, it is untenable to prohibit bailiffs from being in a court or hearing room on the basis that their presence might bias the proceedings. Any slight risk of bias on that basis is outweighed by the interest in ensuring the safety of the tribunal and witnesses.

C. Petitioner's Claims Regarding the Informal Conference.

Petitioner requested and was granted the opportunity for an informal conference with FAA regional counsel. He forewent that opportunity when the FAA counsel would not permit him to tape record the conference. He now complains that the FAA's refusal to allow him to tape the conference, and the resulting termination of the conference because of his own refusal to participate absent such a recording, violated FAA regulations and denied him due process. He cites the case of Conner Airlines v. Administrator, NTSB Order No. EA-2335, reconsideration denied, NTSB Order No. EA-2379 (1986) (reversing an ALJ's finding of an FAR violation and five-day suspension order for failure to allow record inspection where the petitioner permitted access to the records but insisted on audio-and videotaping the inspection).

Connor Airlines is readily distinguishable from the case at hand. There, the petitioner had been sanctioned for a violation of Federal Aviation Regulations when there was no regulation expressly prohibiting the recording of inspections. The Board found that absent such an express requirement, there was no violation where the recording did not obstruct what was specifically required by the regulations, i.e., that petitioner provide access to his records for purposes of inspection. Here, no FAR violation was alleged on the basis of Mr. Fleischman's attempt to record the informal conference; rather, Mr. Fleischman forfeited one type of opportunity to be heard prior to the Administrator suspending his certificate.

While the petitioner does not cite a specific regulation which he claims the FAA violated, it appears that he refers to 14 C.F.R. Sec. 13.19(c), which provides in relevant part that:

Before issuing an order [amending, suspending, or revoking an airman certificate] ... the ... [Regional] Counsel ... advises the certificate holder of the charges or other reasons upon which the Administrator bases the proposed action and, except in an emergency, allows the holder to answer any charges and to be heard as to why the certificate should not be amended, suspended, or revoked. The holder may, by checking the appropriate box on the form that is sent to the holder with the notice of proposed certificate action, elect to--

(1) Admit the charges ...;

(2) Answer the charges in writing;

(3) Request that an order be issued ... so that the certificate holder may appeal to the ... Board ...; [or]

(4) Request an opportunity to be heard in an informal conference with the FAA counsel ...

The crux of the regulation--and the section of the Act on which it is based--is that the FAA cannot revoke a certificate prior to advising the holder of the charges and affording him or her an opportunity to be heard. 49 U.S.C. app. Sec. 1429(a); Oceanair of Florida v. National Transp. Safety Bd., 888 F.2d 767, 769 (11th Cir. 1989).⁵  The FAA clearly met the requirement that it give petitioner notice of the charges. It likewise gave him an adequate opportunity to be heard. It simply refused to allow Mr. Fleischman to dictate the terms on which such a hearing would take place. The FAA makes a persuasive argument that the purpose of the informal conference--"a forum for frank and informal discussion between the parties"--would be thwarted by the presence of a tape recorder at a settlement discussion.⁶  Moreover, because the Board has consistently taken the view that statements made at the informal conferences (which it characterizes as being in the nature of settlement negotiations) should not be admissible evidence at later hearings for any purpose, it is difficult to see how Mr. Fleischman would have been prejudiced by participating in an untaped conference. See Administrator v. Graf, NTSB Order No. EA-2547, slip op. at 3 (1987); Administrator v. Honan, NTSB Order No. EA-1803, slip op. at 6 (1982).

The FAA violated neither its own regulations nor the petitioner's due process rights by refusing to allow him to tape record the informal conference.

D. Sufficiency of Evidence that Petitioner Was Pilot-in-Command.

The Board's factual findings are conclusive when supported by substantial evidence in the record. 49 U.S.C. app. Sec. 1486(e); Essery, 857 F.2d at 1288. Substantial evidence means more than a mere scintilla but less than a preponderance; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Desrosiers v. Secretary, 846 F.2d 573, 576 (9th Cir. 1988). Although deferential to the agency, the substantial evidence standard requires the appellate court to review the administrative record as a whole, weighing the evidence that supports the agency's determination as well as the evidence that detracts from it. Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).

The petitioner contends that there is not substantial evidence in the record to support the ALJ's and Board's finding that he was the pilot-in-command at the time of the gear-up landing. The petitioner was the owner of the plane and the only passenger in the aircraft known to be the holder of a pilot's license. In addition, the ALJ found credible Inspector Morgan's testimony that Mr. Fleischman admitted being the pilot-in-command of the flight when the inspector first questioned him following the landing. The inspector's credibility was bolstered by his detailed account of Mr. Fleischman's initial explanation of why he had forgotten to lower the landing gear. At the same time, Mr. Fleischman offered the highly implausible story that he turned the controls of his plane over to a man whose last name he did not know, whom he did not know to have a pilot's license, and who has since vanished without a trace despite having frequented the airport prior to the incident.⁷  The ALJ, who had the opportunity to observe both witnesses' demeanor, believed the inspector and found Mr. Fleischman's version of the facts incredible. This circuit has recognized that the factual findings of the ALJ who heard the testimony and observed the demeanor of the witnesses should be accorded great deference. Dohmen-Ramirez v. Commodities Futures Trading Comm'n, 837 F.2d 847, 856 (9th Cir. 1988).

Even where evidence of pilot identity is entirely circumstantial that does not defeat a finding that the evidence is substantial. See Owens v. National Transp. Safety Bd., 734 F.2d 396, 398 (8th Cir. 1984) (circumstantial evidence satisfies the substantial evidence requirement and may be used to prove pilot identity). The Board has recognized that

evidence bearing on pilot identity questions is generally within the knowledge of the ... [petitioner]. Therefore, circumstantial evidence that the ... [petitioner] was in the plane and the absence of any evidence that another passenger held a valid pilot's license, has been held sufficient to sustain a prima facie case. The burden of going forward with evidence to show that someone else acted as pilot then rests with the ... [petitioner].

Administrator v. Starr, 3 N.T.S.B. 2962, 2964 (1980). Petitioner clearly has not met that burden in this case.

Here the evidence is not merely circumstantial. There was credible testimony by an FAA inspector that the petitioner at one time admitted being the pilot-in-command. Reviewing the entire record, it appears that the ALJ's and Board's decisions are supported by more than substantial evidence--whether or not the burden is shifted to the petitioner under the holding in Starr.

E. The Failure to Strike Factual Allegations Regarding Form 337.

Lastly, the petitioner contends that the ALJ erred by failing to strike from the complaint factual allegations that a Form 337 had not been executed related to the two component installations. He also appears to contend that, since it is not a violation for an aircraft owner not to have such forms, the violation based on his inadequate maintenance records must be reversed. This argument is without merit. While Mr. Fleischman is correct that aircraft owners are not required to have a Form 337, they are required either to have an appropriate entry in the maintenance records or a Form 337. The complaint, in addition to alleging failure to execute a Form 337, stated that there was no appropriate entry in the aircraft's maintenance records, and the ALJ likewise found a violation on the basis that petitioner had failed to ensure that proper entries were made in the maintenance records.

While the ALJ properly could have stricken the allegation regarding Form 337, he was not required to do so. Furthermore, even if it were an error, it was without consequence. It is clear that the ALJ understood that from the perspective of an aircraft owner's obligation to maintain records, a Form 337 provided an alternative to a proper record entry, not a separate and independent requirement. Moreover, the ALJ took the view that Mr. Fleischman's records violations were "technical" rather than intentional in nature and reduced the period of suspension on that basis. There was thus no prejudice to the petitioner from the retention in the complaint of factual allegations regarding the absence of a Form 337.

AFFIRMED.