Singer v. Garvey

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