                                                                           FILED
                             NOT FOR PUBLICATION                            JUN 21 2013

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




                             FOR THE NINTH CIRCUIT

JOHN WAYNE FERGUSON,                             No. 11-72569

               Petitioner,                       NTSB-1 No. EA-5590

  v.
                                                 MEMORANDUM *
FEDERAL AVIATION
ADMINISTRATION,

               Respondent.



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

                              Submitted June 3, 2013 **
                                Pasadena, California

Before:        KOZINSKI, Chief Judge, GOULD and N.R. SMITH, Circuit
               Judges.

       1. The record shows that the charter company for which Ferguson piloted

three flights designated those flights as “charter” in its maintenance log and was

paid for the time period in which Ferguson flew. And Ferguson doesn’t argue that


          *
          This disposition isn’t appropriate for publication and isn’t precedent
except as provided by 9th Cir. R. 36-3.
          **
          The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                                                                    page 2

he shared a common purpose with his passengers. Therefore, even if we disregard

the FAA inspector’s testimony, the NTSB’s determination that Ferguson piloted

commercial flights “logically arise[s]” from the facts in this case. Meik v. NTSB,

710 F.2d 584, 586 (9th Cir. 1983).

      2. Ferguson fails to demonstrate that the ALJ showed bias stemming from

an extra-judicial source or “‘a deep-seated favoritism or antagonism that would

make fair judgment impossible.’” Miller v. Commodities Futures Trading

Comm’n, 197 F.3d 1227, 1235 (9th Cir. 1999) (quoting Liteky v. United States,

510 U.S. 540, 555 (1994)). Ferguson’s argument that the NTSB is an outlier in not

providing for automatic reassignment on remand is meritless. See Eolas Techs.,

Inc. v. Microsoft Corp., 457 F.3d 1279, 1283 (Fed. Cir. 2006) (noting Seventh

Circuit is “unique” in making automatic reassignment on remand for new trial “the

norm”).

      3. The NTSB did not err in ordering additional cross-examination, rather

than a new hearing, on remand. While a vacated decision has no legal effect, U.S.

Bancorp Mortg. Co. v. Bonner Mall P’Ship, 513 U.S. 18, 22–23 (1994), it doesn’t

follow that vacatur requires a new trial in all instances; it frequently doesn’t.


      PETITION DENIED.
