                      UNITED STATES COURT OF APPEALS
                           For the Fifth Circuit

                       ___________________________

                               No. 95-60085
                             Summary Calendar
                       ___________________________


                           FORESTTEN G. CHERRY,

                                                                     Petitioner,

                                    VERSUS


               NATIONAL TRANSPORTATION SAFETY BOARD and
                   FEDERAL AVIATION ADMINISTRATION,

                                                                  Respondents.

         ___________________________________________________

           Appeal from the United States of America National
                      Transportation Safety Board
                            (NTSB EA-13279)
         ____________________________________________________

                         January 9, 1996
Before JOLLY, DAVIS, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     Pursuant    to   49   U.S.C.   §§   44709(f)     and    46110(a)   (1994),1

appellant    seeks    review   of   an   order   of    the    NTSB   suspending

respondent's private pilot certificate for 30 days.               We affirm.

     Cherry's primary challenge on appeal is that the NTSB acted

arbitrarily and capriciously in reversing the ALJ's findings based

on a credibility determination.           This Court will set aside an

action by the NTSB if it is "arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law."                5 U.S.C. §


     *
      Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
     1
      Formerly 49 U.S.C. §§ 1429(a) and 1486(a).
706(2)(A); Miranda v. N.T.S.B., 866 F.2d 805 (5th Cir. 1989).                      The

Board has plenary review of an ALJ's ruling and is the ultimate

finder of fact, even as to credibility.                 Chirino v. NTSB, 849 F.2d

1525, 1532 (D.C.Cir. 1988)            But, the Board's own policies dictate

that an ALJ's credibility determination will not be disturbed

unless the ALJ acted arbitrarily and capriciously, there exists a

compelling reason to overturn or a clear error, the testimony is

inherently incredible, or the decision is not supported by the

weight of the evidence.          See Chirino, at 1530.

      In this case, the Board found that the ALJ's decision was

"fatally flawed" by an error of fact that two flights had occurred.

The two flights in the original complaint referred to the flight to

the farm and the flight from the farm -- not two separate flights

to   the       farm.    The   determination        of     this    case   rested   on   a

credibility determination of two witnesses, Ms. Cherry and Mr.

Davis,         the   caretaker   of   the       horses,     of    the    circumstances

surrounding the takeoff of the helicopter.                       The ALJ essentially

rejected Mr. Davis' testimony on the basis that Ms. Cherry would

have not flown back a second time if his version were correct.2


           2
         After hearing all the testimony, the ALJ believed Ms.
Cherry's version and reasoned:

      Sort of as a factor that turns this around for me and not
      really turns it around, the Administrator has the burden of
      establishing these allegations by [a] preponderance of the
      evidence. And preponderance of the evidence means . . . that
      evidence which seems more probably true than not true. And if
      Mr. Davis had advised these folks that they had injured some
      horses with the noise of the helicopter, that there was a
      continuing problem, that they shouldn't takeoff or that they
      had better go talk to the owners, because they are responsible
      for it, they wouldn't have flown back that day. Like I said,
      there hasn't been any testimony except an admission that they
      did come back a second time. And you know, I am convinced

                                            2
     Thus the Board made a reasonable conclusion based on the

record and found a compelling reason, a clear error, to overturn

the ALJ's credibility ruling.         The Board did not act arbitrarily

and capriciously or outside its own policy.           We affirm its action.

     Ms. Cherry also contends that the NTSB erred in finding that

the takeoff of the helicopter was in violation of FAR 91.13(a).

"As long as the findings of fact of the Board are supported by

substantial evidence, they must be affirmed." Woolsey v. NTSB, 993

F.2d 516, 521 n.16 (5th Cir. 1993); King v. NTSB, 766 F.2d 200, 203

(5th Cir. 1985).   However, when the Board has rejected credibility

determinations   of   the   ALJ,    the    Court   subjects   the   record    to

particular   scrutiny.      "Review       is   heightened   not   because    the

standard differs but because evidence supporting a conclusion is

likely to be less substantial when the ALJ's conclusion differs

from that of the agency."          Pennzoil Co. v. FERC, 789 F.2d 1128,

1135 (5th Cir. 1986); Ward v. NLRB, 462 F.2d 8, 12 (5th Cir. 1972).

     In this case, even though the Board found from the ALJ's oral

decision that he credited Ms. Cherry's testimony over Mr. Davis

because he believed she had flown back a second time, the Board's



that there was [not] a problem, or they wouldn't come back that
second time. So, I don't find that there was careless or reckless
operation when the aircraft took off.

     Also, later the ALJ stated that the Administrator had not
established carelessness and recklessness by a preponderance of the
evidence and dismissed the suspension, and again reasoned:

     But I believe that if that problem [the injured horse], even
     after it was identified, had not been solved, these folks
     would not have flown back over there that day. And so I think
     the Administrator's evidence has not established by a
     preponderance of the evidence, reckless and careless
     operation.

                                      3
own credibility assessment must be supported by evidence in the

record.

     The Board found that Ms. Cherry was, or should have been, on

notice after the landing that there were horses in the area, horses

had been injured upon her landing, and horses could be spooked by

helicopter operations.    The Board concluded that Ms. Cherry should

have investigated before takeoff.        The Board believed Mr. Davis'

testimony,   finding    his   actions    more   reasonable    under   the

circumstances and his testimony corroborated by others. Ms. Kurtz,

an independent bystander, reported that the horses were spooked by

the landing of the helicopter.         The injuries to the horses were

corroborated by the horse owner and vet bills.          Ms. Cherry had

testified to knowing of at least one injured horse.            Given Ms.

Cherry's part in injuring the horses, the Board found unlikely Ms.

Cherry's testimony that Mr. Davis would cheerfully invite her to

return and tell her it was fine for her to leave.            The Board's

finding is supported by substantial record evidence.         The order of

the NTSB is therefore

     AFFIRMED.




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