                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                JAN 12, 2009
                            No. 07-15607
                                                              THOMAS K. KAHN
                        Non-Argument Calendar
                                                                  CLERK
                      ________________________

                           NTSB No. SE-17459

ALVERO EDUARDO CORREDOR,


                                                                     Petitioner,

                                  versus

FEDERAL AVIATION ADMINISTRATION,

                                                                   Respondent.


                      ________________________

                  Petition for Review of a Decision of the
                      Federal Aviation Administration
                       _________________________

                            (January 12, 2009)

Before DUBINA, BLACK and PRYOR, Circuit Judges.

PER CURIAM:
       Petitioner Alvero Eduardo Corredor seeks judicial review of the National

Transportation Safety Board’s (NTSB) decision issued on October 5, 2007. The

NTSB affirmed an administrative law judge’s (ALJ) decision to sustain, in part,

the Federal Aviation Administration (FAA) suspension of Corredor’s Air

Transport Pilot (ATP) certificate. The ALJ reduced by half, from 180 days to 90

days, the length of the suspension imposed on Corredor by the FAA. Corredor

seeks review in this Court on two grounds: (1) the suspension of Corredor’s ATP

certificate denied Petitioner due process, and (2) the ALJ’s suspension was based

on arbitrary and capricious findings of fact. After careful review, we affirm the

order of the NTSB and deny Corredor’s petition.

       On July 8, 2007, the FAA issued an order suspending Petitioner Corredor’s

ATP certificate for 180 days. In the order the FAA alleged Corredor violated FAA

regulations by operating a small Cessna aircraft in military airspace and on the

runway of Homestead Air Reserve Base, Homestead, Florida. The FAA charged

Corredor with performing an unauthorized “touch and go”1 on the military

runway. Corredor defended on the ground he did not operate the aircraft until

after a Black Hawk helicopter intercepted the Cessna aircraft and ordered it to



       1
       In executing a “touch and go” the pilot lands the aircraft on the runway and then
immediately takes of again.

                                               2
land, which caused Ms. Ada Hernandez, the pilot-in-command, to panic and fail to

comply with the instructions of the military aircraft.

      Hernandez is a citizen and resident of Spain. She held a Spanish

commercial pilot certificate and had logged 170 hours of flying time. She was in

the United States seeking to build up her flight hours because it was less expensive

to fly in the United States than in Spain. Since she did not hold a United States

pilot certificate, she needed a pilot with a United States certificate to accompany

her in the rented aircraft. Corredor was the holder of an ATP certificate and had

logged more than 5,000 hours of flying experience.

      Hernandez and Corredor were acquaintances who had met approximately

three weeks prior to the incident. Hernandez persuaded Corredor to accompany

her on a flight to Homestead General Airport. They inadvertently ended up at

Homestead Air Reserve Base. Petitioner denies having any involvement in the

preflight preparations and claims to have been merely a passenger in the aircraft,

until the Black Hawk helicopter intercepted them. According to Hernandez, after

the first landing and before the Black Hawk helicopter arrived, Corredor offered to

teach her how he would land the aircraft and took control of the aircraft. Corredor

contends he operated the aircraft only after the Black Hawk helicopter arrived and

Hernandez panicked.

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      The FAA and Corredor agree the critical issue is when Corredor took

control of the aircraft. On November 28, 2006, the ALJ held an evidentiary

hearing and took testimony from four witnesses. Hernandez, a foreign citizen

residing in a foreign country, failed to appear at the hearing. The ALJ continued

the hearing until February 27, 2007, at which time Hernandez appeared and the

FAA concluded its case in chief. At the conclusion of all of the evidence, the ALJ

issued an oral initial decision affirming the FAA’s order of suspension, but

modifying the suspension of Petitioner Corredor’s ATP certificate for 90 days.

      The ALJ credited Hernandez’s testimony and determined Corredor assumed

responsibility and control of the flight as pilot-in-command after the first landing

at Homestead Air Reserve Base and before the Black Hawk helicopter arrived.

Corredor appealed the ALJ decision to the NTSB. On October 5, 2007, the NTSB

denied Corredor’s appeal and affirmed the ALJ’s initial decision. The NTSB

found no merit in Corredor’s arguments the ALJ denied him due process by

bifurcating the hearing or by editing the initial decision. The NTSB also found no

merit to Corredor’s argument the ALJ’s credibility determinations were arbitrary

and capricious.




                                          4
      For a timely filed petition for review of an order of the NTSB, this Court

has “exclusive jurisdiction to affirm, amend, modify, or set aside any part of the

order and may order the [NTSB] to conduct further proceedings.” 49 U.S.C. §

1153(b)(1), (3); see also 49 U.S.C. §§ 44709(f), 46110. “We uphold a decision

by the NTSB unless it is ‘arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law,’ or the challenged decision is ‘contrary to

constitutional right, power, privilege, or immunity.’ ” Zukas v. Hinson, 124 F.3d

1407, 1409 (11th Cir. 1997) (quoting 5 U.S.C. § 706(2)(A), (B)). “[W]hen

reviewing an agency decision under the ‘arbitrary and capricious’ standard, we

must defer to the wisdom of the agency provided [its] decision is reasoned and

rational.” McHenry v. Bond, 668 F.2d 1185, 1190 (11th Cir. 1982). “Findings of

fact by the [NTSB], if supported by substantial evidence, are conclusive.” 49

U.S.C. § 1153(b)(3); see also 49 U.S.C. § 46110(c).

      Corredor raises two arguments on appeal: he was denied due process at his

hearing before the ALJ and the ALJ erred in finding Corredor operated the

aircraft. Corredor’s alleged denial of due process is two-fold. First, the ALJ

bifurcated and continued the hearing when Hernandez failed to appear. Second,

the ALJ made post-hearing edits to the oral initial decision transcript.




                                          5
      The evidentiary hearing before the ALJ was scheduled for a two-day

hearing on November 28 and 29, 2006. Hernandez failed to appear on November

28, 2006, and Corredor objected to permitting her to testify by telephone. The

ALJ decided to bifurcate the hearing to allow the parties sufficient time to secure

Hernandez’s future presence or to take her deposition. Corredor argues the ALJ’s

decision to continue the hearing from November 29, 2006 to February 27, 2007

severely prejudiced his case and forced him to abandon part of his case because he

could not afford to pay for an expert for the second day of the hearing.

      The ALJ has the power “[t]o regulate the conduct of hearings[.]” 49 C.F.R.

§ 821.35 (b)(6). Corredor was on notice the evidentiary hearing before the ALJ

was scheduled for two days. The record also indicated Corredor’s counsel was

informed the day before the hearing Hernandez would not be present at the

hearing. Moreover, Corredor’s expert did not testify on the first day of the

hearing. On appeal to the NTSB, the Board found the ALJ did not abuse his

discretion in deciding to bifurcate the hearing. On review of Corredor’s argument

and the record, we find no error in the NTSB’s conclusion.

      Corredor’s second alleged due process violation centers around the ALJ’s

edits to the transcript of his oral initial decision. Corredor argues the changes

were not merely typographical edits, but were substantive changes, which denied

                                          6
him due process by causing him to confront two different initial decisions. On

appeal to the NTSB, the Board found the changes to the oral initial decision,

namely whether Corredor provided a false Social Security number during the

investigation of events at Homestead Air Reserve Base, were “not critical to the

outcome of this case.” On careful review of the record, again we find no error in

the NTSB’s conclusion.

      Corredor also challenges the ALJ’s factual determinations, namely crediting

Hernandez’s version of events. Corredor argues crediting Hernandez’s testimony

over his own testimony was clearly erroneous because her testimony over the

intervening years had not been consistent. The ALJ found Hernandez’s testimony

on the critical issue consistent: Corredor took control of the aircraft for the

purpose of showing her how he lands an aircraft. The ALJ did not credit

Corredor’s testimony he took control of the aircraft because Hernandez panicked

when the Black Hawk helicopter arrived. The NTSB found nothing arbitrary or

capricious about the ALJ crediting Hernandez’s testimony over Corredor’s. On its

own review, the NTSB agreed with the ALJ’s credibility determination. We have

reviewed the record and find the NTSB conclusion was not arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with law. Moreover, we




                                           7
find the credibility determinations by the NTSB are supported by substantial

evidence.

      Petitioner Corredor petitioned for review of the NTSB final order affirming

the ALJ’s decision to suspend Petitioner’s ATP certificate for 90 days. Corredor’s

challenges to the NTSB order are unavailing. We affirm the order of the NTSB

and deny Corredor’s petition for review.

      AFFIRMED, PETITION DENIED.




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