                             NOT FOR PUBLICATION                         FILED
                      UNITED STATES COURT OF APPEALS                      JUN 23 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


 EITAN LEASCHAUER,                                No.     14-71167

              Petitioner,                         NTSB No. EA-5712

    v.                                            MEMORANDUM*

 FEDERAL AVIATION
 ADMINISTRATION; MICHAEL P.
 HUERTA, Administrator, FAA,

              Respondents.

                       On Petition for Review of an Order of the
                        National Transportation Safety Board

                              Submitted June 14, 2016**

Before:        BEA, WATFORD, and FRIEDLAND, Circuit Judges.

         Eitan Leaschauer petitions pro se from the National Transportation Safety

Board’s (“NTSB”) final order affirming the Federal Aviation Administration’s

(“FAA”) order suspending Leaschauer’s private pilot certificate for entering Class



         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
         **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
B airspace without clearance and flying without medical clearance. We have

jurisdiction under 49 U.S.C. § 1153. We review the NTSB’s final order under the

arbitrary and capricious standard. Gilbert v. NTSB, 80 F.3d 364, 368 (9th Cir.

1996). We deny the petition for review.

      The NTSB’s decision affirming the administrative law judge’s (“ALJ”)

partial summary judgment was not arbitrary or capricious because Leaschauer’s

answer conceded that the flight in question occurred during an interruption in his

medical certification, and that the recreational pilot accompanying Leaschauer was

not qualified to act as pilot-in-command. See Arrington v. Daniels, 516 F.3d

1106, 1112 (9th Cir. 2008) (arbitrary and capricious standard requires agency to

base decision on consideration of relevant factors and avoid clear error); 49 C.F.R.

§ 821.17 (setting forth summary judgment standard); 14 C.F.R. § 61.23(a)(3)(i)

(medical certificate required to exercise privileges of private pilot certificate).

      The NTSB’s denial of Leaschauer’s motion for summary judgment was not

arbitrary or capricious because Leascauer failed to establish that there were no

genuine disputes of material fact, particularly with respect to issues of credibility.

49 C.F.R. § 821.17 (setting forth summary judgment standard).

      The NTSB’s determinations that Leaschauer violated 14 C.F.R. §§ 91.13(a)

                                           2                                     14-71167
and 91.131(a)(1) were not arbitrary or capricious because substantial evidence

supported the NTSB’s finding that Leaschauer entered Class B airspace without

clearance from air traffic controllers. See Arrington, 516 F.3d at 1112; 49 U.S.C.

§ 1153(b)(3) (“Findings of fact by the Board, if supported by substantial evidence,

are conclusive.”); 14 C.F.R. § 91.13 (prohibiting careless or reckless aircraft

operation); id. § 91.131(a)(1) (clearance required to operate in Class B airspace).

      The NTSB’s decision to defer to the administrative law judge’s credibility

determinations was not arbitrary and capricious. See Andrzejewski v. FAA, 563

F.3d 796, 799 (9th Cir. 2009) (NTSB must defer to ALJ’s credibility findings

absent clear error or a compelling reason to do otherwise).

      The NTSB’s decision to strike Leaschauer’s sur-reply brief was not arbitrary

or capricious. See Arrington, 516 F.3d at 1112; 49 C.F.R. § 821.48(d) (petitioner

may not file documents responding to reply brief).

      The NTSB’s determination that the ALJ did not err by excluding

Leaschauer’s passenger witness was not an abuse of discretion because Leaschauer

moved to withdraw that witness in advance of his hearing.

      The NTSB’s denial of Leaschauer’s motion to disqualify the ALJ was not

arbitrary or capricious because Leaschauer failed to show that the ALJ had any

                                          3                                       14-71167
bias or prejudice from an extra-judicial source. See Adm’r v. Lackey, NTSB

Order. No. EA-5419 at 11 (2008) (setting forth standard).

      We reject as unsupported by the record Leaschauer’s contentions that he was

denied due process during the underlying proceedings.

      We reject as without merit Leaschauer’s contentions regarding misconduct

by the ALJ or NTSB.

      All pending motions and requests are denied.

      PETITION FOR REVIEW DENIED.




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