Szabo v. FAA ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MICHAEL K. SZABO,
Petitioner,
v.
No. 94-2414
NATIONAL TRANSPORTATION SAFETY
BOARD; ADMINISTRATOR, FEDERAL
AVIATION ADMINISTRATION
Respondents.
On Petition for Review of an Order
of the Federal Aviation Administration.
(SE-12794)
Argued: November 1, 1995
Decided: February 5, 1996
Before ERVIN, Chief Judge, WILKINS, Circuit Judge, and
MICHAEL, Senior United States District Judge for the Western
District of Virginia, sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Jay Fred Cohen, Baltimore, Maryland, for Petitioner.
Susan S. Caron, Enforcement Division, Office of the Chief Counsel,
FEDERAL AVIATION ADMINISTRATION, Washington, D.C., for
Respondents. ON BRIEF: Kathleen A. Yodice, Acting Manager,
Appellate Branch, Enforcement Division, Office of the Chief Coun-
sel, FEDERAL AVIATION ADMINISTRATION, Washington, D.C.,
for Respondents.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Petitioner Michael K. Szabo asks that we review an order of the
National Transportation Safety Board ("the Board") suspending for
thirty days his airman certificate. Finding no error, we affirm.
I.
On July 2, 1988, Marilyn Doncarlos landed her Mooney aircraft at
Bay Bridge Airport in Stevensville, Maryland. As she turned off the
runway on her "rollout," she noticed another aircraft, a Cherokee 180
operated by Szabo, approximately 300 feet behind her on the same
runway she was leaving. Believing that Szabo's landing his aircraft
so close to her aircraft violated Federal Aviation Administration
("FAA") safety regulations, Ms. Doncarlos reported the incident to
the Baltimore Flight Standards District Office.
An informal conference was held on the incident. Szabo maintains
that at this conference, the investigating inspector, Mr. Klipa, stated
that the FAA should drop the case against Szabo because there was
"nothing there." JA 179. Nonetheless, the FAA, on September 2,
1992, issued an order suspending Szabo's license for 60 days. Szabo
appealed the order to the Board. An Administrative Law Judge (ALJ)
conducted a hearing on the matter on June 4, 1993. Mr. Klipa was
scheduled to testify at the hearing before the ALJ. The Administrator
notified Szabo that Mr. Klipa would testify that in his judgment,
Szabo's operation was careless. However, on the day before the hear-
ing, the Administrator informed Szabo that Mr. Klipa had a medical
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condition and could not be present at the hearing. The Administrator
told Szabo that Mr. Klipa's supervisor, Mr. Galo, would testify in Mr.
Klipa's absence essentially to the same effect. Szabo moved for a
continuance of the hearing on the grounds that Mr. Galo could not
testify about what Mr. Klipa had stated at the informal conference.
The ALJ denied the motion for a continuance.
The ALJ ultimately concluded that Szabo had landed his aircraft
approximately 300 feet behind Ms. Doncarlos' aircraft while her air-
craft was still on its "rollout" off the runway. The ALJ found that this
conduct violated FAA safety regulations, specifically 14 C.F.R.
§§ 91.65(a) and 91.9 (1988).1 On appeal of the ALJ's decision, the
Board affirmed the ALJ's holding that Szabo violated§ 91.9, but it
overruled the ALJ's finding that Szabo violated§ 91.65(a). Accord-
ingly, the Board reduced the length of the license suspension from 60
days to 30 days.
Szabo now appeals the Board's decision to this court. Szabo cites
two potential grounds for reversal of the Board's decision. First,
Szabo argues that there is not substantial evidence in the record to
support the Board's determination that Szabo violated § 91.9. Second,
Szabo argues that the Board abused its discretion in failing to find
reversible error for several alleged procedural gaffes at the trial stage.
II.
We must affirm the decision of the Board unless it is "arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with
law." Hernandez v. Natl Transp. Safety Bd. , 15 F.3d 157, 158 (10th
Cir. 1994); 5 U.S.C. § 706(2)(A). The Board's findings of fact are
conclusive if supported by "substantial evidence." 49 U.S.C.App.
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1 These sections were recodified on August 18, 1989, effective August
18, 1990. Section 91.65(a), which became 14 C.F.R.§ 91.111(a), pro-
vides that "No person may operate an aircraft so close to another aircraft
as to create a collision hazard." Section 91.9, which became 14 C.F.R.
§ 91.13(a), provides that "No person may operate an aircraft in a careless
or reckless manner so as to endanger the life or property of another."
This opinion makes reference to the regulation sections that were in
effect on July 2, 1988, the date the regulatory violations occurred.
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§ 1486(e); North Carolina v. Fed. Aviation Adm., 957 F.2d 1125,
1128 (4th Cir. 1992). Substantial evidence is "`such relevant evidence
as a reasonable mind might accept as adequate to support a conclu-
sion.'" NLRB v. Peninsula General Hospital Medical Center, 36 F.3d
1262, 1269 (4th Cir. 1994) (quoting Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)).
In this case, substantial evidence supports the Board's finding that
Szabo violated § 91.9. Szabo himself appears to admit that the two
planes occupied the same runway simultaneously. JA 177. Moreover,
Ms. Doncarlos testified that she saw Szabo's plane 300 feet behind
her on the runway. The ALJ found Ms. Doncarlos "forthright and can-
did," and her testimony "not only . . . logical, and compelling, but
. . . persuasive." JA 160-161. Thus, the issue for the court is whether
there is "substantial evidence" to support the Board's conclusion that
landing a plane while another aircraft is still on its "roll-out" off the
runway constitutes operation of an aircraft "in a careless or reckless
manner so as to endanger the life or property of another." 14 C.F.R.
§ 91.9.
Szabo is hard-pressed to argue successfully that the Board's find-
ing that such conduct is careless constitutes an abuse of the Board's
discretion. The Board noted that the maximum usable runway space
at the Bay Bridge Airport is about 2,000 feet in length by 60 feet in
width. JA 177. The Board determined that this is too small an area in
which to stop safely a plane that is loaded down with three passen-
gers, as was Szabo's aircraft. Id. This court does not lightly discount
the Board's judgment. Indeed, the potential for an accident is self-
evident. Moreover, the conclusion that landing an aircraft under such
conditions is careless comports with the Board's precedent. In
Administrator v. Magee, 2 NTSB 1364 (1975), the Board held that the
operator of an aircraft violated § 91.9 by touching down 150-300 feet
behind another aircraft. Finally, the Board concluded that even if
Szabo did not see Ms. Doncarlos' plane on the runway, he was still
careless because a proper scan would have revealed Ms. Doncarlos'
plane in the midst of its "rollout." JA 177. In short, there is substantial
evidence to support the Board's finding that "in either event there was
carelessness [by Szabo] -- either deficient scanning and planning of
the approach or poor judgment in deliberately landing too close
behind an aircraft on rollout." Id.
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III.
Szabo argues that the Board abused its discretion by failing to find
that the ALJ committed reversible error. Specifically, Szabo argues
the Administrator's last-minute switch of expert witnesses prejudiced
him because Szabo could not impeach Mr. Klipa with his alleged
statement at the informal conference that the FAA should drop its
case against Szabo because there was "nothing there." Szabo also
alleges that the switch was made in bad faith because Mr. Klipa was
in fact at work when the hearing was held and could have attended
the hearing.2 Moreover, Szabo argues that the ALJ erred in refusing
to allow Szabo to call the FAA's attorney to testify that Mr. Klipa was
indeed available to testify.
The Board concluded that the switch did not prejudice Szabo
because all of the Administrator's factual evidence was adduced
through Ms. Doncarlos. And the ALJ stated that the conclusions
drawn from those facts would not have been altered by testimony
indicating that Mr. Klipa made the alleged comment at the informal
conference. JA 180.
The Board did not abuse its discretion in ruling that the ALJ did
not commit reversible error. The record indicates that the Administra-
tor informed Szabo of the flavor of Mr. Klipa's expected testimony.
JA 16. The actual testimony given by Mr. Galo was consistent with
Mr. Klipa's expected testimony. Thus, Szabo cannot argue that he
was surprised by Mr. Galo's testimony -- the usual form of prejudice
when a witness is presented to opposing counsel at the last moment.
Rather, Szabo argues that he was prejudiced by his inability to cross-
examine Mr. Klipa. However, the ALJ concluded -- and the Board
agreed -- that even if Mr. Klipa had testified to all that Szabo
believes he would have testified to, the outcome of the hearing would
have been the same.
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2 At argument, counsel for Szabo made several representations to the
court concerning details of a telephone conversation counsel allegedly
had with Mr. Klipa prior to the hearing before the ALJ. We do not con-
sider the statements allegedly made by Mr. Klipa in the course of this
telephone conversation since they are not part of the record.
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Given this fact, we conclude that if the ALJ committed any error,
it was harmless. Accordingly, the Board did not abuse its discretion
in upholding the rulings of the ALJ. We therefore affirm the Board's
decision.
AFFIRMED
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