                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              NOV 4 1999
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    DOUGLAS E. HAYNES,

                Petitioner,

    v.                                                    No. 98-9549
                                                        (No. SE-15007)
    FEDERAL AVIATION                                  (Petition for Review)
    ADMINISTRATION,

                Respondent.




                              ORDER AND JUDGMENT          *




Before EBEL , LUCERO , and MURPHY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Therefore,




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
petitioner’s motion for oral argument is denied, and the case is ordered submitted

without oral argument.

       Douglas E. Haynes petitions this court for review of the National

Transportation Safety Board’s (the Board) affirmance of the Federal Aviation

Administration’s (FAA’s) 180-day suspension of his private pilot certificate.   1



This court has jurisdiction pursuant to 49 U.S.C. § 1153(a), and we affirm.


                                      Background

       Mr. Haynes is the owner and operator of an entity known as Blue Ridge

Airlines. Under the Federal Aviation Regulations, Blue Ridge is not authorized to

use Beech Bonanza aircraft for its operations because this aircraft is not listed in

the airline’s FAA approved operating specifications. On November 9, 1996,

Mr. Haynes piloted a Beech Bonanza with three other persons on board from

Watkins, Colorado, to Hayes, Kansas.

       On August 15, 1997, following an FAA investigation of this flight, the FAA

issued an order suspending Mr. Haynes’ private pilot certificate for a period of

180 days. This action was a result of the FAA’s determination that in piloting the

November 9, 1996 flight, Mr. Haynes had violated certain Federal Aviation


1
       We note that although the Board acted in a quasi-judicial role in this case,
the administrator of the FAA ordered Mr. Haynes’ suspension and is, therefore,
the real party in interest. See Bennett v. NTSB , 66 F.3d 1130, 1133 n.1 (10th Cir.
1995).

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Regulations including: (1) acting as pilot-in-command on a Beech Bonanza

aircraft which was not authorized to be used for a Federal Aviation Regulation

Part 135 air carrier operation; (2) piloting this flight without having passed a

written or oral examination in the aircraft during the previous twelve months; (3)

piloting this flight without having passed a competency check in the Beech

Bonanza or equivalent aircraft during the previous twelve months; (4) piloting this

flight without a commercial pilot certificate; (5) piloting this flight without an

instrument rating or an airline transport pilot certificate with an airplane category

rating; (6) piloting this flight without having passed a flight check in the Beech

Bonanza aircraft during the previous twelve months; and (7) piloting this flight

without completing the initial or recurrent training phase of the appropriate

training program during the previous twelve months.           See Admin. R. at 9-10.

       Mr. Haynes appealed the FAA decision to the Board, which set a hearing

date for January 13, 1998. On December 23, 1997, Mr. Haynes requested a

continuance of the Board’s proceedings, stating that he could not attend the

January 13, 1998 hearing due to “personal legal restraint.”        Id. at 27. In an order

dated January 5, 1998, the administrative law judge (ALJ) denied Mr. Haynes’

request for a continuance, stating that Mr. Haynes had not established good cause

for a continuance.   See id. at 30. Mr. Haynes did not appear for the hearing, and




                                            -3-
after taking testimony, the ALJ affirmed the FAA’s suspension of Mr. Haynes’

license.


                                    Discussion

      In his petition for review, Mr. Haynes does not challenge the FAA’s

decision to suspend his license. Instead, his only argument is that the Board

abused its discretion in not granting him a continuance of the January 13, 1998

hearing.

      “With regard to informal adjudications, i.e., those not conducted on the

record after the opportunity for an agency hearing, ‘interested persons’ are entitled

to a ‘brief statement of the grounds for denial’ when an agency denies ‘a written

application, petition, or other request . . . made in connection with any agency

proceeding.”   Friends of the Bow v. Thompson   , 124 F.3d 1210, 1214 (10th Cir.

1997) (quoting 5 U.S.C. § 555(e)). When an interested person objects to the

agency action, we review the “decision only to determine whether it is arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law.”

Hernandez v. NTSB , 15 F.3d 157, 158 (10th Cir. 1994).

      In his December 24, 1997 letter requesting that the Board reschedule his

hearing date, Mr. Haynes stated that he could not commit to the January 13, 1998

hearing date “[b]ecause of personal legal restraint.” Admin. R. at 27. He

requested a date after February 8, 1998, and provided a telephone number where

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he could be reached after that date.     See id. The FAA objected to a continuance,

stating that Mr. Haynes failed to state good cause for delaying the hearing and

advising the ALJ that the FAA had five witnesses who had already made

arrangements to be in Denver for the hearing on January 13, 1998.        See id. at 28.

       In denying his request, the ALJ agreed that Mr. Haynes had not established

adequate grounds for a continuance.       See id. at 30. In a letter of appeal received

by the Board on January 28, 1998, for the first time Mr. Haynes explained that he

was incarcerated in the Denver County Jail, where he was involved in a work

release program until February 1998. Mr. Haynes alleged that he had attempted to

reach the ALJ by telephone prior to the hearing. He contended that when he

finally contacted the ALJ on January 14, 1998, he learned that the hearing had

gone forward in his absence.     See id. at 156.

       In rejecting Mr. Haynes’ appeal, the Board expressed confusion regarding

Mr. Haynes’ continued allegation that the hearing had originally been set for

April 3, 1998. The Board’s order stated that the January 13 date was the only date

ever set by the Board for the hearing.   2
                                             See id. at 170 n.4. The ALJ acknowledged


2
       In his letter requesting a continuance, Mr. Haynes asked that the Board
“perhaps stick with the original date of this hearing or reschedul[e] to any day
after the 8th of February.” Admin. R. at 27. In his brief in support of his petition
for review, Mr. Haynes alleges that the Board originally set a hearing for April 3,
1998, and then “[o]ut of the clear blue sky,” rescheduled the hearing two months
earlier. Petitioner’s Br at 2. Contrary to Mr. Haynes’ allegation, the
                                                                         (continued...)

                                              -5-
receiving a fax from Mr. Haynes the morning of the hearing stating that he would

be unable to attend the hearing for “personal reasons.”     Id. at 7. Contrary to

Mr. Haynes’ allegations, the Board stated that Mr. Haynes’ letter of appeal was the

first indication given the Board that Mr. Haynes was incarcerated.     See id. at 171.

While acknowledging that this “could have been justification to seek a

continuance,” the Board found it was Mr. Haynes’ obligation to fully explain his

circumstances when he sought the continuance.        Id. Mr. Haynes not only failed to

explain his circumstances to the ALJ in his request for a continuance, he failed to

adequately explain when he received the ALJ’s denial by certified mail.

       The Board noted that its records indicate that attempts were made to return

all of Mr. Haynes’ telephone calls.   3
                                          This proved fruitless because Mr. Haynes

failed to supply the ALJ with a current telephone number where he could be

reached. Finally, the Board noted that Mr. Haynes had not challenged the ALJ’s

findings regarding the suspension of his license and therefore, had given the Board




2
 (...continued)
administrative record indicates that the case was assigned to an ALJ on November
6, 1997, see Admin. R. at 16, who then set a hearing for January 13, 1998,  see id.
at 17. The record contains no evidence of a prior hearing setting for April 3,
1998.
3
      The Board also noted that despite advice to the contrary, Mr. Haynes
continued to attempt to contact the ALJ through calls to OSHRC, the agency
whose courtroom was used for Mr. Haynes’ hearing.     See Admin. R. at 171 n.6.

                                             -6-
no reason to believe that the outcome would have been different if the continuance

had been granted and if Mr. Haynes had attended the hearing.    See id. at 172.



                                      Conclusion

      In conclusion, the Board determined that the ALJ had not abused his

discretion in denying Mr. Haynes’ request for a continuance. We agree. Mr.

Haynes’ reasons for seeking a continuance were too vague to put the ALJ on notice

that he was in jail. Moreover, he failed in his obligation to keep the Board

informed of a current telephone number where he could be reached.

      In its initial order of denial and its order denying appeal, the Board provided

sufficient and cogent reasons for its decision to deny Mr. Haynes a continuance.

Mr. Haynes has not adequately challenged those reasons in his petition for review.

Therefore, we determine that the Board’s decision was not arbitrary and capricious

or an abuse of discretion, and accordingly, the petition for review is DENIED and

the Board’s order is AFFIRMED.



                                                      Entered for the Court



                                                      David M. Ebel
                                                      Circuit Judge




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