           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206
        ELECTRONIC CITATION: 2000 FED App. 0120P (6th Cir.)
                    File Name: 00a0120p.06


UNITED STATES COURT OF APPEALS
                  FOR THE SIXTH CIRCUIT
                    _________________


                                 ;
                                  
 EVAN P. SINGER,
                                  
                        Petitioner,
                                  
                                  
                                      No. 98-4252
            v.
                                  
                                   >
 JANE F. GARVEY,                  
                                  
                                  
 Administrator, Federal

                   Respondent. 
 Aviation Administration,
                                  
                                 1
    On Petition for Review of an Order of the National
               Transportation Safety Board.
                      No. SE-15331
                  Argued: September 14, 1999
                Decided and Filed: April 4, 2000
  Before: BATCHELDER and GILMAN, Circuit Judges;
              HOOD*, District Judge.




    *
     The Honorable Denise Page Hood, United States District Judge for
the Eastern District of Michigan, sitting by designation.

                                 1
2    Singer v. Garvey                            No. 98-4252

                    _________________
                         COUNSEL
ARGUED: Ames Davis, WALLER, LANSDEN, DORTCH
& DAVIS, Nashville, Tennessee, for Petitioner. James W.
Tegtmeier, OFFICE OF THE CHIEF COUNSEL, FEDERAL
AVIATION ADMINISTRATION, Washington, D.C., for
Respondent. ON BRIEF: Ames Davis, Kristin M. Coile,
WALLER, LANSDEN, DORTCH & DAVIS, Nashville,
Tennessee, for Petitioner. James W. Tegtmeier, OFFICE OF
THE CHIEF COUNSEL, FEDERAL AVIATION
ADMINISTRATION, Washington, D.C., for Respondent.
                    _________________
                        OPINION
                    _________________
  ALICE M. BATCHELDER, Circuit Judge. Evan Singer
petitions for review of an order of the National Transportation
Safety Board (“NTSB”) revoking his private pilot certificate
for cheating during a knowledge test in violation of FAA
Regulation 61.37(a)(6), 14 C.F.R. § 61.37(a)(6) (1999). For
the reasons set forth below, the petition for review is denied.
                              I.
  On June 18, 1998, Singer checked in at the Baker School of
Aeronautics in Nashville, Tennessee, to test for advanced
ground instructor training. The admissions coordinator and
testing administrator at the school, Diane Davio, provided
Singer with a copy of the testing center’s regulations. These
regulations provided that the use of written notes in the
testing area was prohibited and that personal items such as
notebooks were to remain stored out of reach of the examinee
during testing. Singer read and signed the regulations.
  Singer was then ushered into the testing area, a room that
contained a one-way mirror and windows on two walls. As
Singer began his examination, he was monitored by Davio
10    Singer v. Garvey                           No. 98-4252      No. 98-4252                            Singer v. Garvey      3

     2.   “Authorized”                                            and another proctor, Kara Moore, from the windows ten to
                                                                  fifteen feet to his left. Davio and Moore noticed that Singer
  Finally, Singer contends that the notes were not                frequently looked around during the examination. Because of
unauthorized materials. Singer maintains that the only            this furtive behavior, the proctors focused their attention on
portion of the notes that related to questions on the             Singer, observing him about ninety-eight percent of the time.
examination were weight and balance formulae. Because
FAA Order 8080.6A allows examinees to use weight and                As Singer neared the end of his examination, another
balance formulae that are permanently inscribed on aids           examinee entered the testing area. The newcomer was
otherwise permitted during examinations, Singer continues,        proctored by the school’s maintenance instructor, Becky
the information on the notes was “authorized” within the          Duncan, who was stationed behind a window about ten feet
meaning of 14 C.F.R. § 61.37(a)(6).                               away from Singer. Like the other two proctors, Duncan noted
                                                                  that Singer was looking around the testing room. Duncan
  This argument is unavailing. While the FAA Order may            observed that Singer focused on the other two proctors, and,
authorize weight and balance formulae that are permanently        at a moment when they were conferring on a question of
inscribed on fundamental flight planning equipment, it makes      paperwork, she saw Singer take a paper in his left hand and
no allowance for such information in the form of written          put it into his front left pocket. Duncan would later be unable
notes. Perhaps more to the point, sufficient testimony was        to identify the color of the paper.
developed during the hearing to support the NTSB’s rational
conclusion that the notes contained information other than the      After witnessing Singer’s act, Duncan summoned Moore to
weight and balance formulae that could have aided Singer          a back office. At this point, Davio turned around and saw
during the examination. The NTSB therefore did not act            Singer removing his left hand from his left front pocket.
arbitrarily or capriciously in disregarding the ALJ’s finding     Duncan then explained what she had seen to Davio and
that the information on the notes was authorized.                 Moore. Moore approached Singer after he had finished his
                                                                  exam and asked him to empty his pockets. From his left front
                             III.                                 pocket, Singer produced two small yellow sheets of paper and
                                                                  one green sheet. These notes contained a variety of aviation
  For the foregoing reasons, the petition for review is denied.   information, at least some of which would have been useful
                                                                  on the exam.
                                                                    This incident was reported to the Federal Aviation
                                                                  Administration (“FAA”), and on July 10, 1998, the
                                                                  Administrator issued an Emergency Order pursuant to 49
                                                                  U.S.C. §§ 44709 and 46105, revoking Singer’s private pilot
                                                                  certificate. Singer appealed to the NTSB. The Administrator
                                                                  re-filed a copy of the Order as her complaint, which Singer
                                                                  answered. On August 20, 1998, an Administrative Law Judge
                                                                  (“ALJ”) of the NTSB conducted a hearing.
                                                                    At the hearing, Singer admitted that he had mistakenly
                                                                  brought the notes into the exam. He explained, however, that
                                                                  he had created the notes earlier in the week while studying for
4    Singer v. Garvey                            No. 98-4252      No. 98-4252                            Singer v. Garvey      9

a different test—the commercial pilot written examination.        case, has no application to violations of 14 C.F.R.
Singer introduced records of practice tests he had taken for      § 61.37(a)(6). False statement cases typically involve a
this examination and correlated the notes to specific questions   delicate determination whether the accused acted intentionally
on the practice tests. He denied ever having taken the notes      or only negligently; where circumstantial evidence is used to
out of his pocket during the advanced ground instructor           prove the defendant’s scienter, a higher standard of proof is
training examination. Singer’s flight instructor testified that   appropriate. This is not so where the defendant stands
Singer was in the habit of making study notes of the kind         accused of using unauthorized materials during an
found in his pocket on June 18, 1998.                             examination. In such cases, the accused’s actions speak for
                                                                  themselves; intent is not an element of the offense of cheating
   At the conclusion of the hearing, the ALJ reversed the         on a knowledge examination. The NTSB could therefore
Administrator’s order of revocation. The ALJ initially noted      reasonably hold that use of unauthorized materials could be
that the Administrator had the burden of establishing her         proved by a preponderance of circumstantial evidence.
allegations by a preponderance of the evidence. Observing
that the evidence in this case was circumstantial, however, the      The NTSB also correctly observed that the ALJ had applied
ALJ went on to cite Administrator v. Hart, 3 NTSB 24, 26          an unduly limited definition of “use” of unauthorized
(1977), for the proposition that circumstantial evidence on a     materials. Although Singer maintains that the NTSB
particular point must be so convincing as to override any         misconstrued the ALJ’s findings in this regard, the ALJ did in
reasonable explanation to the contrary. The ALJ found that        fact ask whether there was a correlation between the
the Administrator’s circumstantial evidence on the use of         information on the notes and Singer’s answers on the
unauthorized materials was not sufficient to overcome the         examination—an inquiry which suggests that a defendant
reasonable explanation for the presence of the notes in           must derive a benefit from unauthorized materials in order to
Singer’s pocket. In so finding, the ALJ addressed the key         have “used” them. The NTSB’s contrary interpretation of its
piece of circumstantial evidence in the case, Duncan’s            regulation—that a prohibited use is “any effort to obtain help
testimony. Duncan “really didn’t see anything,” the ALJ           from an unauthorized source of information or assistance,
stated. “She just saw this movement toward the pocket. She        whether successful or otherwise”— is entitled to deference.
says it was paper, doesn’t know what kind of paper it was.        See Borregard v. NTSB, 46 F.3d 944, 945 (9th Cir. 1995).
That really doesn’t show use.” The ALJ indicated that the         The NTSB’s construction of the term “use” is both reasonable
Administrator could have proved use by producing Singer’s         and consistent with NTSB precedent, see, e.g., Administrator
exam answers and correlating them with the information on         v. DeSilva, No. SE-11297, 1993 WL 657746, at *4 (NTSB
the notes.                                                        May 5, 1993); Del Balzo v. Thompson, No. SE-11495, 1993
                                                                  WL 128059, at *2 n.7 (NTSB Apr. 6, 1993), and will not be
   The Administrator appealed to the NTSB. The NTSB               disturbed by this court.
reversed, holding that the ALJ had employed an incorrect
standard of proof. The Hart case, the NTSB pointed out, had         In conclusion, the NTSB did not act arbitrarily or
involved circumstantial proof of intent in a false statement      capriciously in rejecting the ALJ’s legal conclusion that
action. Because intent was not an element of the offense with     Singer’s conduct did not amount to use of the notes. The
which Singer was charged, the NTSB continued, Hart was not        NTSB’s decision reflects its determination that the ALJ
applicable, and the correct burden of proof was therefore the     applied the wrong standard of proof and an incorrect
usual preponderance of the evidence standard. The NTSB            definition of the term “use.” That determination is rational
found that the Administrator had shown that it was more           and in accordance with law.
8     Singer v. Garvey                              No. 98-4252      No. 98-4252                             Singer v. Garvey      5

    B. Findings of Law                                               likely true than not that Singer had handled the notes in the
                                                                     testing area. This action, the NTSB concluded, constituted
  Singer does not seriously challenge the NTSB’s purely              “use.” Taking issue with the ALJ’s suggestion that the
legal conclusions regarding the correct burden of proof and          Administrator should have demonstrated a correlation
the meaning of the term “use” in 14 C.F.R. § 61.37(a)(6). He         between Singer’s answers and the information on the notes,
does complain, however, that the NTSB arbitrarily rejected           the NTSB wrote: “We think the unauthorized material was
the ALJ’s mixed factual and legal finding that his conduct did       effectively ‘used’ when respondent, by having the notes in his
not amount to “use” of the notes. Similarly, Singer contends         hand outside of his pocket, engaged in conduct that created
that the information on the notes was “authorized” within the        the potential for improper reliance on them.”
meaning of the regulation. Neither of these arguments has
merit.                                                                 Before this court, Singer argues that no substantial evidence
                                                                     supports the NTSB’s determination that he used unauthorized
     1.   “Use”                                                      materials during the Advanced Ground Instructor
                                                                     examination. In particular, he contends that the NTSB
  The NTSB adequately explained why it rejected the ALJ’s            arbitrarily disregarded a credibility determination that the ALJ
conclusion that the testimony at the hearing “really doesn’t         made with regard to Becky Duncan’s testimony. Singer also
show use.” The NTSB determined that the ALJ had                      argues that the NTSB arbitrarily ignored a negative inference
mistakenly applied the evidentiary standard from                     that the ALJ drew against the Administrator on the basis of
Administrator v. Hart, 3 NTSB 24, 26 (1977), and that he had         certain discovery issues. We address these contentions in
also applied an unduly limited definition of the term “use.”         turn.
This determination is reasoned and reflects attentive
consideration of the ALJ’s decision. See Dodson v. NTSB,                                           II.
644 F.2d 647, 650-51 (7th Cir. 1981).
                                                                       The NTSB held that Singer violated 14 C.F.R.
  The ALJ cited the Hart case for the proposition that the           § 61.37(a)(6), which provides: “An applicant for a
FAA’s circumstantial proof must be “so compelling that no            knowledge test may not . . . [u]se any material or aid during
other determination is reasonably possible.” Unlike this case,       the period that the test is being given, unless specifically
however, Hart was the product of a remand to the NTSB to             authorized to do so by the Administrator . . . .” This court
make a factual finding as to a flight instructor’s scienter at the   may set aside agency action only if it finds it to be arbitrary,
time he made false entries in student pilot logbooks. Singer         capricious, an abuse of discretion, or, where there has been a
contends that application of the Hart standard in this case was      hearing, the agency action is unsupported by substantial
appropriate because he could not have violated a regulation          evidence. Blackman v. Busey, 938 F.2d 659, 661 (6th Cir.
against using unauthorized material without intending to use         1991). Substantial evidence is such relevant evidence as a
those materials. He also suggests (seemingly contradictorily)        reasonable mind might accept as adequate to support a
that the ALJ properly adopted the preponderance of the               conclusion. Id.
evidence standard early in his decision.
                                                                       The NTSB has plenary review authority with respect to ALJ
  As an initial matter, it is clear that the ALJ employed the        decision making. McCarthney v. Busey, 954 F.2d 1147, 1154
elevated Hart standard—he so affirmed during a colloquy              (6th Cir. 1992). Where the NTSB reverses its ALJ, this
with the FAA’s attorney after rendering his decision. The            court’s role is limited to determining whether those factors
NTSB could rationally conclude that Hart, a false statement          which influenced the ALJ should have required the NTSB to
6     Singer v. Garvey                            No. 98-4252      No. 98-4252                           Singer v. Garvey      7

reach a decision different from the one that it did. See id.       concluded that it did not amount to a credibility finding.
The NTSB’s weighing of the facts and factors which it              What is more, the NTSB’s reading of the ALJ’s statement is
determines upon review, based upon substantial evidence, is        persuasive. Duncan testified that she saw Singer take his left
not to be disturbed by this court even if we feel that a           hand and stick notes into his front left pocket, but admitted
different result might be indicated. Id. “ ‘It does not matter     upon cross examination that she could not describe the color
that other reasonable conclusions are theoretically possible’      of the paper. The ALJ essentially reiterated this testimony in
(or even desirable from our standpoint).” Id. (quoting             his statement: “She just saw this movement toward the
Blackman, 938 F.2d at 662).                                        pocket. She says it was paper, doesn’t know what kind of
                                                                   paper it was.” The ALJ did not suggest that Duncan did not
    A. Findings of Fact                                            see what she claimed to have seen. Rather, he concluded that,
                                                                   “That really doesn’t show use.” From this statement, it is
   Substantial evidence supports the NTSB’s factual finding        apparent that the ALJ was making a legal conclusion—that
that Singer took the notes out of his pocket during the            Duncan’s testimony did not suffice to establish “use” within
examination. All three proctors observed Singer acting in a        the meaning of 14 C.F.R. § 61.37(a)(6). The ALJ did not
furtive manner. Duncan saw him move a paper to his left            render a credibility determination.
front pocket; Davio saw him remove his hand from that same
pocket immediately afterward. The quality of this evidence            As a final factual matter, Singer argues that the NTSB
is not much diminished by the fact that Moore and Davio did        arbitrarily disregarded a negative inference that the ALJ drew
not personally witness Singer handling the notes. Moore            on the basis that the FAA failed to videotape the examination
testified that at the time of the incident she was helping Davio   and failed to produce Singer’s examination answers during
with a question on some paperwork, which suggests that these       discovery. A reading of the ALJ’s opinion, however, reveals
proctors’ attention was divided. Taking this body of evidence      no such inference. In any event, a negative inference against
as a whole, the NTSB could reasonably conclude that Singer         the FAA would not have been warranted. FAA procedures do
had the notes in his hand outside of his pocket during the         not require that examinations be videotaped. See Conduct of
exam.                                                              Airmen Knowledge Tests Via the Computer Medium, FAA
                                                                   Order 8080.6A, ch. 5-9(a) (December 1994). Moreover, 49
   Singer nevertheless contends that in arriving at this           C.F.R. § 821.19(d) (1999) provides that an ALJ may draw a
conclusion, the NTSB arbitrarily reversed a credibility finding    negative inference against a party who fails to comply with an
of the ALJ. Singer urges that the ALJ’s statement that             order compelling discovery. In this case, the ALJ did not
Duncan “really didn’t see anything” constituted a credibility      issue an order compelling production of Singer’s examination
determination that Duncan did not see papers in Singer’s           answers, so an adverse inference on this basis would not have
hand. Because it is the NTSB’s policy not to disturb a             been appropriate.
credibility finding “unless there is a compelling reason or the
finding was clearly erroneous,” Chirino v. NTSB, 849 F.2d             In sum, substantial evidence supports the NTSB’s factual
1525, 1530 (D.C. Cir. 1988), Singer argues, the NTSB broke         findings. The ALJ did not render a credibility determination
its own rules when it relied on Duncan’s testimony without         with regard to the testimony of Becky Duncan, nor did he
supplying some sort of justification.                              draw an adverse inference against the FAA on evidentiary
                                                                   grounds. Accordingly, the NTSB did not err in concluding
  Singer is mistaken. When the NTSB denied a motion for            that Singer had taken the notes out of his pocket during the
reconsideration made by Singer, it specifically addressed the      examination.
ALJ’s statement regarding Duncan’s testimony, and
