Haynes v. FAA ( 1999 )

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This order and judgment is not binding precedent, except under the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
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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...)
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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.
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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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