UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL K. SZABO,

Petitioner,

v.

No. 94-2414

NATIONAL TRANSPORTATION SAFETY

BOARD; ADMINISTRATOR, FEDERAL

AVIATION ADMINISTRATION

Respondents.

On Petition for Review of an Order

of the Federal Aviation Administration.

(SE-12794)

Argued: November 1, 1995

Decided: February 5, 1996

Before ERVIN, Chief Judge, WILKINS, Circuit Judge, and

MICHAEL, Senior United States District Judge for the Western

District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Jay Fred Cohen, Baltimore, Maryland, for Petitioner.

Susan S. Caron, Enforcement Division, Office of the Chief Counsel,

FEDERAL AVIATION ADMINISTRATION, Washington, D.C., for

Respondents. ON BRIEF: Kathleen A. Yodice, Acting Manager,

Appellate Branch, Enforcement Division, Office of the Chief Coun-
sel, FEDERAL AVIATION ADMINISTRATION, Washington, D.C.,

for Respondents.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Petitioner Michael K. Szabo asks that we review an order of the

National Transportation Safety Board ("the Board") suspending for

thirty days his airman certificate. Finding no error, we affirm.

I.

On July 2, 1988, Marilyn Doncarlos landed her Mooney aircraft at

Bay Bridge Airport in Stevensville, Maryland. As she turned off the

runway on her "rollout," she noticed another aircraft, a Cherokee 180

operated by Szabo, approximately 300 feet behind her on the same

runway she was leaving. Believing that Szabo's landing his aircraft

so close to her aircraft violated Federal Aviation Administration

("FAA") safety regulations, Ms. Doncarlos reported the incident to

the Baltimore Flight Standards District Office.

An informal conference was held on the incident. Szabo maintains

that at this conference, the investigating inspector, Mr. Klipa, stated

that the FAA should drop the case against Szabo because there was

"nothing there." JA 179. Nonetheless, the FAA, on September 2,

1992, issued an order suspending Szabo's license for 60 days. Szabo

appealed the order to the Board. An Administrative Law Judge (ALJ)

conducted a hearing on the matter on June 4, 1993. Mr. Klipa was

scheduled to testify at the hearing before the ALJ. The Administrator

notified Szabo that Mr. Klipa would testify that in his judgment,

Szabo's operation was careless. However, on the day before the hearing, the Administrator informed Szabo that Mr. Klipa had a medical

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condition and could not be present at the hearing. The Administrator

told Szabo that Mr. Klipa's supervisor, Mr. Galo, would testify in Mr.

Klipa's absence essentially to the same effect. Szabo moved for a

continuance of the hearing on the grounds that Mr. Galo could not

testify about what Mr. Klipa had stated at the informal conference.

The ALJ denied the motion for a continuance.

The ALJ ultimately concluded that Szabo had landed his aircraft

approximately 300 feet behind Ms. Doncarlos' aircraft while her aircraft was still on its "rollout" off the runway. The ALJ found that this

conduct violated FAA safety regulations, specifically 14 C.F.R.

§§ 91.65(a) and 91.9 (1988).1 On appeal of the ALJ's decision, the

Board affirmed the ALJ's holding that Szabo violated§ 91.9, but it

overruled the ALJ's finding that Szabo violated§ 91.65(a). Accordingly, the Board reduced the length of the license suspension from 60

days to 30 days.

Szabo now appeals the Board's decision to this court. Szabo cites

two potential grounds for reversal of the Board's decision. First,

Szabo argues that there is not substantial evidence in the record to

support the Board's determination that Szabo violated § 91.9. Second,

Szabo argues that the Board abused its discretion in failing to find

reversible error for several alleged procedural gaffes at the trial stage.

II.

We must affirm the decision of the Board unless it is "arbitrary,

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

law." Hernandez v. Natl Transp. Safety Bd. , 15 F.3d 157, 158 (10th

Cir. 1994); 5 U.S.C. § 706(2)(A). The Board's findings of fact are

conclusive if supported by "substantial evidence." 49 U.S.C.App.

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1 These sections were recodified on August 18, 1989, effective August

18, 1990. Section 91.65(a), which became 14 C.F.R.§ 91.111(a), provides that "No person may operate an aircraft so close to another aircraft

as to create a collision hazard." Section 91.9, which became 14 C.F.R.

§ 91.13(a), provides that "No person may operate an aircraft in a careless

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

This opinion makes reference to the regulation sections that were in

effect on July 2, 1988, the date the regulatory violations occurred.

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§ 1486(e); North Carolina v. Fed. Aviation Adm., 957 F.2d 1125,

1128 (4th Cir. 1992). Substantial evidence is "`such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.'" NLRB v. Peninsula General Hospital Medical Center, 36 F.3d

1262, 1269 (4th Cir. 1994) (quoting Consolidated Edison Co. v.

NLRB, 305 U.S. 197, 229 (1938)).

In this case, substantial evidence supports the Board's finding that

Szabo violated § 91.9. Szabo himself appears to admit that the two

planes occupied the same runway simultaneously. JA 177. Moreover,

Ms. Doncarlos testified that she saw Szabo's plane 300 feet behind

her on the runway. The ALJ found Ms. Doncarlos "forthright and candid," and her testimony "not only . . . logical, and compelling, but

. . . persuasive." JA 160-161. Thus, the issue for the court is whether

there is "substantial evidence" to support the Board's conclusion that

landing a plane while another aircraft is still on its "roll-out" off the

runway constitutes operation of an aircraft "in a careless or reckless

manner so as to endanger the life or property of another." 14 C.F.R.

§ 91.9.

Szabo is hard-pressed to argue successfully that the Board's finding that such conduct is careless constitutes an abuse of the Board's

discretion. The Board noted that the maximum usable runway space

at the Bay Bridge Airport is about 2,000 feet in length by 60 feet in

width. JA 177. The Board determined that this is too small an area in

which to stop safely a plane that is loaded down with three passengers, as was Szabo's aircraft. Id. This court does not lightly discount

the Board's judgment. Indeed, the potential for an accident is selfevident. Moreover, the conclusion that landing an aircraft under such

conditions is careless comports with the Board's precedent. In

Administrator v. Magee, 2 NTSB 1364 (1975), the Board held that the

operator of an aircraft violated § 91.9 by touching down 150-300 feet

behind another aircraft. Finally, the Board concluded that even if

Szabo did not see Ms. Doncarlos' plane on the runway, he was still

careless because a proper scan would have revealed Ms. Doncarlos'

plane in the midst of its "rollout." JA 177. In short, there is substantial

evidence to support the Board's finding that "in either event there was

carelessness [by Szabo] -- either deficient scanning and planning of

the approach or poor judgment in deliberately landing too close

behind an aircraft on rollout." Id.

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III.

Szabo argues that the Board abused its discretion by failing to find

that the ALJ committed reversible error. Specifically, Szabo argues

the Administrator's last-minute switch of expert witnesses prejudiced

him because Szabo could not impeach Mr. Klipa with his alleged

statement at the informal conference that the FAA should drop its

case against Szabo because there was "nothing there." Szabo also

alleges that the switch was made in bad faith because Mr. Klipa was

in fact at work when the hearing was held and could have attended

the hearing.2 Moreover, Szabo argues that the ALJ erred in refusing

to allow Szabo to call the FAA's attorney to testify that Mr. Klipa was

indeed available to testify.

The Board concluded that the switch did not prejudice Szabo

because all of the Administrator's factual evidence was adduced

through Ms. Doncarlos. And the ALJ stated that the conclusions

drawn from those facts would not have been altered by testimony

indicating that Mr. Klipa made the alleged comment at the informal

conference. JA 180.

The Board did not abuse its discretion in ruling that the ALJ did

not commit reversible error. The record indicates that the Administrator informed Szabo of the flavor of Mr. Klipa's expected testimony.

JA 16. The actual testimony given by Mr. Galo was consistent with

Mr. Klipa's expected testimony. Thus, Szabo cannot argue that he

was surprised by Mr. Galo's testimony -- the usual form of prejudice

when a witness is presented to opposing counsel at the last moment.

Rather, Szabo argues that he was prejudiced by his inability to crossexamine Mr. Klipa. However, the ALJ concluded -- and the Board

agreed -- that even if Mr. Klipa had testified to all that Szabo

believes he would have testified to, the outcome of the hearing would

have been the same.

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2 At argument, counsel for Szabo made several representations to the

court concerning details of a telephone conversation counsel allegedly

had with Mr. Klipa prior to the hearing before the ALJ. We do not consider the statements allegedly made by Mr. Klipa in the course of this

telephone conversation since they are not part of the record.

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Given this fact, we conclude that if the ALJ committed any error,

it was harmless. Accordingly, the Board did not abuse its discretion

in upholding the rulings of the ALJ. We therefore affirm the Board's

decision.

AFFIRMED

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