                                                                            F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            AUG 16 1999
                              FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    CHARLES R. HOLT,

                Petitioner,

    v.                                                   No. 98-9544
                                                      Petition for Review
    FEDERAL AVIATION                                     (No. 0090-0)
    ADMINISTRATION,

                Respondent.




                              ORDER AND JUDGMENT          *




Before PORFILIO , BARRETT , and HENRY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Petitioner Charles R. Holt, proceeding pro se, appeals the decision of the

Federal Aviation Administration (FAA) not to renew his certificate of authority to

serve as a designated engineering representative (DER) for the FAA. We exercise

jurisdiction to review the FAA’s decision pursuant to 49 U.S.C. § 46110 and

affirm.

       Petitioner was a DER under the FAA’s authority to delegate to qualified

private persons matters relating to examining, inspecting and testing aircraft.     See

49 U.S.C. § 44702(d); 14 C.F.R. § 183.1. The authority to act as a DER is

authorized yearly, see 14 C.F.R. § 183.15(b), and may be terminated “at any time

for any reason the [FAA] considers appropriate,” 49 U.S.C. § 44702(d)(2);         see 14

C.F.R. § 183.15(d)(6). The FAA decided not to renew petitioner’s authority to

act as a DER which expired in March of 1998. He appeals that decision, claiming

the reasons for denying renewal did not justify the decision and the FAA failed to

follow its own procedures in denying renewal.

       In reviewing the FAA’s decision, the agency’s “[f]indings of fact . . ., if

supported by substantial evidence, are conclusive.” 49 U.S.C. §46110(c).

Substantial evidence “means more than a mere scintilla but less than the weight of

the evidence and refers to relevant evidence which reasonably supports a

conclusion.” Board of County Comm’rs v. Isaac         , 18 F.3d 1492, 1496 (10th Cir.

1994). This court will consider the entire record to determine whether the FAA


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had a rational basis for its conclusion.   See id. The FAA’s “statutory

interpretation and the application of law must withstand an arbitrary and

capricious standard of review.”      Id.

       Petitioner asserts that the FAA violated its own rules by failing to follow

the procedures set forth in FAA Order 8110.37B for terminating his DER

designation. Petitioner complains that the FAA failed to comply with the

provisions of Order 8110.37B as follows: (1) it failed to send the notice of

nonrenewal at least thirty days before the intended effective date, (2) it did not

indicate in the “remarks” section the actions necessary or contact petitioner to

resolve the problems, (3) it did not identify the method of resolution agreed upon

by the evaluator and petitioner, (4) it failed to contact petitioner regarding serious

problems until after his renewal date had passed, (5) it failed to cite handbook

guidelines when giving reasons not to renew, and (6) it did not inform him of an

opportunity to request a hearing with the second level supervisor. Petitioner was

informed of serious problems by letter dated October 1, 1997, well before his

renewal date of March 31, 1998. As for the remaining alleged procedural

deficiencies, our review of Order 8110.37B reveals that the procedures petitioner

claims were not followed in his case were discretionary on the part of the FAA.

See, e.g. , Respondent’s Brief, Attach., Order 8110.37B at 39-40 (reasons     should

cite handbook guidelines; notice     should be sent thirty days in advance;


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reconsideration can take the form of informal hearing at manager’s office ).

Therefore, the FAA did not violate its own rules in deciding not to renew

petitioner’s DER certification.   See Hoyl v. Babbitt , 129 F.3d 1377, 1386 (10th

Cir. 1997) (agency’s rule providing for hearing was purely discretionary; denial of

hearing did not violate rule).

       To the extent petitioner alleges his procedural due process rights were

violated, 1 we examine whether he was afforded notice and an opportunity to be

heard prior to the decision not to renew his DER certification, or if there were

adequate post-termination procedures to determine whether the decision was

based on reasonable grounds.      See Hennigh v. City of Shawnee    , 155 F.3d 1249,

1256 (10th Cir. 1998). The record reflects that petitioner responded to the FAA’s

complaints both in writing and in person at a meeting held May 15, 1998.

Furthermore, he appealed the initial decision to the second-level supervisor. On

these facts, we conclude that petitioner was not denied any procedural due process

rights he may have had.

       We turn to petitioner’s allegation that the reasons for the FAA’s decision

not to renew his DER certification were insufficient. He challenges the following

factual findings: (1) He failed to correct concerns expressed by various Flight


1
        We assume without deciding that he had a property interest in his
certification as a DER that would implicate a right to procedural due process.      See
Meder v. City of Oklahoma City , 869 F.2d 553, 554 (10th Cir. 1989).

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Standards District Offices about his approvals for projects, despite many

conversations with the FAA in which he was asked to correct these problems.

Petitioner responds that he answered the inquiries, and in one incident, the onus

was on the applicant, not on petitioner, to come forward with information. (2) He

was directed to obtain prior authorization before participating in repair and

alteration approvals, but he thereafter submitted an approval without obtaining

prior FAA authorization. Petitioner claims he misunderstood that the directive

applied even to existing projects. (3) He failed to comply with the FAA’s

requests that he correct problems with his approvals. Petitioner claims he has

been presented with no documentation indicating that he failed to comply. (4) He

was requested to develop an operating procedure for each data approval, for

which the FAA offered its assistance, but petitioner did not ask for assistance or

develop the procedure. Petitioner admits that he did not develop the procedure,

but he asserts this was merely a suggestion, not a requirement. (5) He argued

with FAA personnel. Petitioner responds that he did not question the judgment or

authority of any FAA engineer, although he did challenge the requirement to

approve work by aircraft serial number.

      We conclude that the facts underlying the FAA’s decision are supported by

substantial evidence. In charges two, four and five above, petitioner candidly

admits there is a factual basis for each finding, even though he disputes the


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FAA’s characterization of his behavior. The FAA’s detailed account of the

various problems referred to in charges one and three are challenged but not

rebutted by petitioner. Therefore, we conclude that substantial evidence supports

the FAA’s findings of fact. The FAA acted within its authority granted by 49

U.S.C. § 44702(d)(2) and 14 C.F.R. § 183.15(d)(6), to terminate petitioner’s DER

certification.

      We have carefully reviewed the record, as well as the arguments advanced

by the parties. Based on the record and the applicable law, we conclude that

substantial evidence supports the FAA’s decision not to renew petitioner’s DER

certification and, further, that the decision was neither arbitrary nor capricious.

      The final order of the FAA denying renewal of petitioner’s designated

engineering representative certificate of authorization is AFFIRMED. The

mandate shall issue forthwith.



                                                     Entered for the Court



                                                     Robert H. Henry
                                                     Circuit Judge




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