* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this

opinion should not be published and is not precedent except under

the limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-60778

Summary Calendar

 

RODGER M. ELLIS,

Petitioner,

versus

JANE F. GARVEY, ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION,

Respondent.

Petition for Review of an Order of the 

National Transportation Safety Board 

(SE-15361)

August 3, 1999

Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:

*

Rodger M. Ellis seeks review of the National Transportation

Safety Board’s (“the Board”) order to revoke his airman’s

certificate. The Board affirmed the judgment of an Administrative

Law Judge (“ALJ”) finding that Ellis’s actions violated 14 C.F.R.

§§ 91.111(a), 91.123(b), 91.129(i), and 91.13. Specifically, the

Board found that Mr. Ellis had operated his aircraft so close to

another aircraft as to create a collision hazard, operated his

aircraft contrary to air traffic control instructions, operated his

aircraft when appropriate clearance was not received from air
traffic control, and operated his aircraft in a careless or

reckless manner as to endanger the life or property of another.

Ellis contends that the Board erred in affirming the ALJ’s ruling

because (1) the air traffic controller (“ATC”) was operating

pursuant to improper procedures, and (2) there was no evidence of

actual endangerment.

In reviewing a decision by the National Transportation Safety

Board, “[w]e may consider only whether the agency’s findings and

conclusions were ‘arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law’ or ‘unsupported by

substantial evidence.’ “ Miranda v. National Transportation Safety

Board, 866 F.2d 805, 807 (5th Cir. 1989) (quoting 5 U.S.C. §

706(2). The scope of review, therefore, is narrow, and the

reviewing court may reverse only upon a finding of a clear error of

judgment. See id. 

Ellis first argues that he should not be penalized for

disregarding the ATC’s instructions because the ATC was acting

pursuant to improper procedures and phraseology. Although the

Fifth Circuit has not addressed whether an ATC’s errors may excuse

the actions of a pilot, other circuits have held that they cannot.

The District of Columbia Circuit has found that even when an ATC

acts improperly, a pilot still has a duty to receive and handle ATC

communications. See Jackson v. National Transportation Safety

Board, 114 F.3d 283, 287 (D.C. Cir. 1997). Similarly, the Eighth

Circuit has held that “even in the face of confusing or inadequate

instructions from the control tower, the pilot must, if he can,

assure the public safety by requesting clarification before he
proceeds.” Borden v. National Transportation Safety Board, 849

F.2d 319, 322 (8th Cir. 1988). In Borden, as in this case, the

petitioner argued not that the ATC lacked the authority to give the

instructions, but that he had used improper procedures. Id. The

evidence here shows that Ellis understood the ATC’s instructions

but decided to disregard them because he felt that the ATC was not

instructing him properly. Further, the Board found that none of

the ATC’s instructions to Ellis were inconsistent with the proper

exercise of the ATC’s authority. Even if the ATC had been acting

improperly, however, it would not excuse Ellis’ disregard of the

instructions. We therefore find no abuse of discretion by the

Board.

Ellis next contends that his certificate was improperly

revoked because there is no evidence of actual endangerment to

support the charge that he acted recklessly. The Board has held

that a finding of recklessness is comparable to a finding of gross

negligence. See Administrator v. Krueger, NTSB Order No. EA-4281,

1994 N.T.S.B. LEXIS 308, at *4 (Nov. 10, 1994). Further, even

potential endangerment can support a recklessness finding. See

Administrator v. Chason, N.T.S.B. Order No. EA-3528, 1992 N.T.S.B.

LEXIS 47, at *6 (Apr. 9, 1992). 

Although Ellis questions the whether the ATC was actually

fearful of a potential collision between Ellis’s aircraft and

another aircraft in the vicinity, the ALJ considered the testimony

to be credible and made a finding of recklessness. Credibility is

the province of the ALJ and not this Court. See Borden, 849 F.2d

at 321. The record reflects that the ATC advised Ellis of the
other aircraft and instructed him to continue on his downwind.

Ellis proceeded to disregard the ATC’s instructions and then land

his aircraft without clearance. We find that there is sufficient

evidence to support the ALJ’s finding of recklessness. 

AFFIRMED.