                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 08 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT

ALLEN WAYNE LACKEY,                              No. 08-72357

             Petitioner,                         FAA No. SE-17863

  v.

FEDERAL AVIATION
ADMINISTRATION,

             Respondent.



ALLEN WAYNE LACKEY,                              No. 08-73188

             Petitioner,                         FAA No. SE-17864

  v.

FEDERAL AVIATION
ADMINISTRATION,

             Respondent.



ALLEN WAYNE LACKEY,                              No. 08-74804

             Petitioner,                         FAA No. SE-18000



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
  v.

FEDERAL AVIATION
ADMINISTRATION,

             Respondent.



ALLEN WAYNE LACKEY,                            No. 09-70233

             Petitioner,                       FAA No. SE-18006

  v.
                                               MEMORANDUM *
FEDERAL AVIATION
ADMINISTRATION,

             Respondent.




                     On Petition for Review of an Order of the
                         Federal Aviation Administration

                             Argued October 9, 2009
                             Submitted July 8, 2010
                              Pasadena, California

Before: PREGERSON, REINHARDT, and WARDLAW, Circuit Judges.

       Allen Wayne Lackey (“Lackey”) appeals four separate National

Transportation Safety Board (“NTSB”) decisions, each upholding Federal Aviation

Administration (“FAA”) suspensions of his Commercial Pilot Certificate



                                        -2-
(“Certificate”). On October 9, 2009, we consolidated these appeals for all

purposes. We have jurisdiction under 49 U.S.C. §§ 1153, 44709(f) and 46110(a).

We affirm all four NTSB decisions.

                                Standard of Review

      We must uphold an agency action, such as a decision by the NTSB, unless it

is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with the law.” 5 U.S.C. § 706(2)(A); see also Mendenhall v. N.T.S.B., 92 F.3d 871,

874 (9th Cir. 1996) (“The Court of Appeals reviews the NTSB order in accordance

with the Administrative Procedure Act.”). Purely legal questions, however, may

be reviewed de novo. Janka v. Dept. of Transp., 925 F.2d 1147, 1149 (9th Cir.

1991); Kolek v. Engen, 869 F.2d 1281, 1284-1285 (9th Cir. 1989) (internal

citations omitted).

      We accord deference to NTSB findings of fact where those findings are

supported by substantial evidence in the record. Kolek, 869 F.2d at 1285. We

have previously held that errors in agency adjudicative proceedings are grounds for

reversal only if substantial and prejudicial. Janka, 925 F.2d at 1152.

          I. No. 09-70233 – 70 day suspension of Lackey’s Certificate

      On March 9, 2007, the FAA suspended Lackey’s Certificate for 90 days for

violations of Federal Aviation Regulations (“FAR”) 14 C.F.R. §§ 91.141, 91.103,


                                          -3-
and 91.13(a) based on his operation of a helicopter on a passenger-carrying flight

from Napa to San Francisco International Airport on April 21, 2006. Because the

President of the United States was visiting the area that day, a Notice to Airmen

prohibiting flights within a 30-mile radius of San Jose, California, had issued. On

March 5, 2008, an Administrative Law Judge (“ALJ”) affirmed the order of

suspension but reduced the suspension to 70 days. Lackey appealed to the NTSB,

which affirmed the ALJ’s decision upholding the FAA’s suspension of Lackey’s

Certificate on November 25, 2008.

      Lackey argues that: (1) the admission of two exhibits, C-1 and C-2,

amounted to prejudicial error; (2) the ALJ’s decision was not supported by

substantial evidence; and (3) the ALJ was biased against Lackey and abused his

discretion.

      The ALJ did not err in admitting exhibits C-1 and C-2, which contained

maps of the restricted airspace and data from radars tracking flights in the area.

The Administrative Procedure Act (“APA”) and the Rules of Practice in Air Safety

Proceedings (“ASP Rules”), which govern NTSB proceedings, grant ALJs wide

latitude in admitting all material and relevant evidence. See 5 U.S.C. § 556(d); 49

C.F.R. § 821.38. An ALJ may exclude evidence under the APA or the ASP Rules

where it is irrelevant, immaterial, or repetitious. See 5 U.S.C. § 556(d); 49 C.F.R.


                                          -4-
§ 821.38. Exhibits C-1 and C-2 were relevant and material to the key issue of

whether Lackey was inside the Temporary Flight Restricted Area (“TFR”). Even if

the ALJ erred in admitting the exhibits, the error was not prejudicial because ample

other evidence, including the testimony of three witnesses, supports the finding

that Lackey operated his helicopter within the TFR. See Phoenix Eng’g and

Supply, Inc. v. Universal Elec. Co., Inc., 104 F.3d 1137, 1142 (9th Cir. 1997) (a

prejudicial error is one which affects the substantial rights of the party raising the

issue).

          The NTSB’s decision is supported by substantial evidence. Here, the ALJ

and the NTSB made the same ultimate finding of fact – that Lackey had entered the

TFR on April 21, 2006, without permission. This finding of fact is supported by

substantial evidence, including the testimony of three witnesses.

          Nor was the ALJ biased. Judicial bias is established where “a reasonable

person with knowledge of all the facts would conclude that the judge’s impartiality

might reasonably be questioned.” In re Manoa Finance Co., Inc., 781 F.2d 1370,

1372-73 (9th Cir.1986) (discussing the standard for impartiality for a federal

judge). The bias must result from an extrajudicial source rather than from what the

judge learned from his participation in the case. Id. at 1373. Where a respondent

alleges that the ALJ was biased but fails to support his arguments with any


                                           -5-
foundation, the NTSB rejects such assertions. Nickl, N.T.S.B. Order No. EA-

5287, 2007 WL 1590950, at *3-4 (NTSB, May 29, 2007). Under the ASP Rules,

an ALJ has the power to examine witnesses. 49 C.F.R. § 821.35(b)(8).

       Although the ALJ interrupted the questioning and posed his own questions

to the witnesses on several occasions, he was consistent in his treatment of both

Lackey’s counsel and counsel for the FAA. The ALJ asked questions to clarify the

witness’s testimony when it was confusing and did not err in asking Lackey’s

counsel to explain the basis of his evidentiary objections during the hearing.

Further, no bias or prejudice stemmed from an “extrajudicial source.”

      II. No. 08-72357 – 110 day suspension of Lackey’s Certificate

      On October 6, 2005, the FAA suspended Lackey’s Certificate for 150 days

for violations of FAR 14 C.F.R. §§ 135.299(a), 135.293(a), 135.293(b), and

91.13(a) by operating five passenger carrying flights on July 17, 22, 24, and 25, in

2005. Lackey appealed the FAA’s suspension order to an ALJ, which granted the

FAA’s motion for summary judgment and affirmed the order of suspension but

reduced the suspension to 110 days. On December 31, 2007, the NTSB affirmed

the ALJ’s decision.

      Lackey argues that: (1) the ALJ erred in granting summary judgment to the

FAA because the FAA failed to support its motion for summary judgment with


                                         -6-
affidavits or other admissible evidence; and (2) the ALJ erred in ruling on the issue

of sanctions at summary judgment because there were disputed facts.

      The ALJ did not err in granting summary judgment to the FAA. According

to both the ASP Rules and the Federal Rules of Civil Procedure (“FRCP”), the

FAA was not required to support its motion for summary judgment with affidavits

or other admissible evidence. Both Lackey and the FAA agree that the FRCP are

instructive in NTSB proceedings. See Kizer, N.T.S.B. Order No. EA 5339, 2007

WL 4178487, at *2 (NTSB, Nov. 19, 2007) (adopting FRCP standards for

summary judgment and the federal case law interpreting those rules).

      FRCP 56(a) and (b) state that both the party claiming relief and the party

against whom relief is sought may move “with or without supporting affidavits, for

summary judgment on all or part of the claim.” Fed. R. Civ. P. 56(a),(b) (emphasis

added). The ASP Rules provide that “[a] party may file a motion for summary

judgment on the basis that the pleadings and other supporting documentation

establish that there are no material issues of fact to be resolved and that party is

entitled to judgment as a matter of law.” 49 C.F.R. § 821.17(d). Because neither

the ASP Rules nor the FRCP require a party moving for summary judgment to

submit additional documents in support of its motion, the ALJ did not err in

granting summary judgment to the FAA.


                                           -7-
      The ALJ did not err in ruling on the issue of sanctions at summary judgment

because there were no disputed facts. Because Lackey admitted to three of his four

alleged FAR violations, the only possible dispute was whether Lackey violated

FAR 91.13. Because Lackey admitted to other operational violations, he violated

FAR 91.13 as a legal matter. See Seyb, N.T.S.B. Order No. EA-5024, 2003 WL

554658, at *2 (NTSB, Feb. 25, 2003) (“charge of carelessness or recklessness

under § 91.13(a) is proven when an operational violation has been charged and

proven.”).

      Lackey’s operational violations were charged and proven. Because Lackey

admitted to all material facts necessary to establish violations of FAR 135.299(a),

135.293(a), and 135.293(b), Lackey’s violation of FAR 91.13 is legally established

and the NTSB did not err by affirming the ALJ’s decision. Lackey also failed to

raise the issue of sanctions as a disputed fact. See Doll, N.T.S.B. Order No. EA-

3439, 1991 WL 321329, at *2 (NTSB, Oct 29, 1991) (explaining that a “general

denial of the facts” is insufficient to defeat a motion for summary judgment).

       Further, the NTSB did not err in upholding the ALJ’s decision affirming

and modifying the suspension period at the summary judgment stage. See, e.g.,

Barrie, N.T.S.B. Order No. EA 4801, 1999 WL 1044437 (NTSB, Nov. 2, 1999)




                                         -8-
(upholding an ALJ decision where the ALJ modified the suspension from 90 to 60

days under summary judgment).

      III. No. 08-73188 – 150 day suspension of Lackey’s Certificate

      On October 12, 2006, the FAA suspended Lackey’s Certificate for 150 days,

alleging that Lackey had: (1) flown without a FAA-approved flight manual on

board; (2) failed to comply with two airworthiness directives; (3) transported two

passengers who were not essential flight crew; (4) operated an aircraft not in

airworthy condition; and (5) operated the aircraft in a way that was careless or

reckless so as to endanger the life or property of another. The ALJ found that

Lackey violated 14 C.F.R. §§ 91.7, 91.9, 91.9(b)(1), and 91.13(a), and ordered a

120-day suspension. The NTSB affirmed.

      The ALJ did not commit prejudicial error by limiting Lackey’s cross-

examination of the FAA witness based on the parol evidence rule. While the ALJ

erred by relying on the parol evidence rule, Lackey was able to adequately question

the FAA witness’s credibility during cross-examination, and thus was not

prejudiced. See Chevron U.S.A. Inc. v. El-Khoury, 285 F.3d 1159, 1165 (9th Cir.

2002) (citing Chavez v. Dir., Office of Workers Comp. Programs, 961 F.2d 1409,

1413 (9th Cir. 1992)). The ALJ found the FAA witness credible when he testified

that he could not and did not waive the Flight Manual requirement and discredited


                                         -9-
Lackey’s testimony that the FAA witness had given him permission to fly without

a Flight Manual.

      Nor did the ALJ commit prejudicial error by limiting Lackey’s cross-

examination of the FAA witness on the term “essential flight crew.” Even if the

ALJ erred by relying on the parol evidence rule, the ALJ’s determination that

Lackey flew with individuals aboard who were not “essential flight crew” was

based on substantial evidence in the record. The ALJ did not commit prejudicial

error by refusing to allow Lackey to pose a hypothetical question to the FAA

witness.

      The ALJ did not err in finding that Airworthiness Directive 72-19-01

applied to the Bell helicopter Lackey was piloting. “Findings of fact made by the

[NTSB] are conclusive when supported by substantial evidence in the record.”

Janka, 925 F.2d at 1149 (citing 49 U.S.C. App. § 1486(e)). Substantial evidence

supports the ALJ’s determination that the Airworthiness Directive applied to

Lackey’s helicopter and that he violated it. The Airworthiness Directive listed the

Bell helicopter model that Lackey was piloting. Lackey did not provide evidence

to support his claim that certain helicopter components had been replaced,

removing it from the directive.




                                        -10-
      The ALJ’s determination that the FAA witness’s interpretation of an engine

“start” was corroborated by the Flight Manual’s instructions and is supported by

substantial evidence.

      Lackey also appeals the admission into evidence of a DVD showing the

helicopter on the morning of September 22, 2005. In air safety proceedings, “all

material and relevant evidence should be admitted, but the law judge may exclude

unduly repetitious evidence.” 49 C.F.R. § 821.38; 5 U.S.C. § 556(d). The DVD

was relevant to the proceedings. With respect to the ALJ’s decision to view the

DVD off-record, Lackey did not object during the proceedings, and does not

explain how he was prejudiced by the procedure. The NTSB did not abuse its

discretion in upholding the ALJ’s admission of the DVD. The ALJ did not abuse

its discretion by denying Lackey’s motion for a continuance. The “bare-bones”

motion did not state with particularity the grounds for the relief requested and was

untimely, and Lackey had not made sufficient efforts to secure his witness.

      IV. No. 08-74804 – 90 day suspension of Lackey’s Certificate

      On March 9, 2007, the FAA suspended Lackey’s Certificate for 90 days for

(1) departing without a takeoff or departure clearance while operating as a pilot on

a passenger-carrying flight from Napa County Airport; (2) failing to establish and

maintain two-way radio communications with the control tower while operating in


                                         -11-
Class D airspace; and (3) operating the helicopter under Visual Flight Rules in

weather conditions below those prescribed by regulations. The ALJ found

violations of 14 C.F.R. §§ 91.123(c)(2)(i), 91.129(i), 91.155(a), and 91.13(a), and

affirmed the 90-day suspension. The NTSB affirmed.

      The ALJ did not abuse its discretion by admitting the audio cassette tape of

ATC communications at the Napa County Tower on the day of the events

underlying this suspension. First, Lackey failed to object to the admission of the

tape. Second, the ALJ’s determination that the recording was accurate is supported

by substantial evidence. Third, the foundation laid by FAA witness Shannon was

proper, and Lackey points to no evidence showing the tape was unreliable or

inaccurate.

      Nor did the ALJ give undue weight to the tape recording. The ALJ relied as

well on the testimony of FAA witness Shannon and the meteorological equipment

data. Finally, as the NTSB observed, even without the tape, the evidence would

have been sufficient to substantiate the charged violations.

      The ALJ did not err by limiting cross-examination regarding the accuracy of

the meteorological equipment used to measure the cloud ceiling. The ALJ spoke

twice during the cross-examination in response to evidentiary objections, and his

resolution of those objections was proper. Lackey has not shown that the ALJ was


                                         -12-
biased by any extrajudicial source, nor any extreme behavior indicating the ALJ’s

inability to render a fair judgment. See In re Manoa, 781 F.2d 1370 at 1373;

Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 1999). The NTSB did not abuse

its discretion by upholding the ALJ’s evidentiary rulings.

      We reject Lackey’s argument that the ALJ’s decision was not supported by

reliable, probative, and substantial evidence. Last, Lackey also failed to show that

the ALJ abused his discretion in finding Shannon’s testimony more credible than

Lackey’s. “[C]redibility determinations are ‘within the exclusive providence of the

law judge,’ unless the law judge has made the determinations ‘in an arbitrary or

capricious manner.’” Nickl, 2007 WL 1590950, at *2. The ALJ acted within his

discretion when he evaluated the relative credibility of Shannon’s and Lackey’s

testimony and found Shannon’s testimony more credible and reliable.

      Because substantial evidence supported the ALJ’s decision, the NTSB did

not err in upholding the ALJ.

                                 CONCLUSION

      All four NTSB decisions are AFFIRMED.

AFFIRMED.




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