*Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

 

1Formerly 49 U.S.C. §§ 1429(a) and 1486(a).

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

___________________________

No. 95-60085 

Summary Calendar

___________________________

FORESTTEN G. CHERRY,

Petitioner,

VERSUS

NATIONAL TRANSPORTATION SAFETY BOARD and

FEDERAL AVIATION ADMINISTRATION,

Respondents.

___________________________________________________

Appeal from the United States of America National

Transportation Safety Board

(NTSB EA-13279)

____________________________________________________

January 9, 1996

Before JOLLY, DAVIS, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Pursuant to 49 U.S.C. §§ 44709(f) and 46110(a) (1994),1

appellant seeks review of an order of the NTSB suspending

respondent's private pilot certificate for 30 days. We affirm.

Cherry's primary challenge on appeal is that the NTSB acted

arbitrarily and capriciously in reversing the ALJ's findings based

on a credibility determination. This Court will set aside an

action by the NTSB if it is "arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law." 5 U.S.C. §
 

2 After hearing all the testimony, the ALJ believed Ms.

Cherry's version and reasoned:

 

Sort of as a factor that turns this around for me and not

really turns it around, the Administrator has the burden of

establishing these allegations by [a] preponderance of the

evidence. And preponderance of the evidence means . . . that

evidence which seems more probably true than not true. And if

Mr. Davis had advised these folks that they had injured some

horses with the noise of the helicopter, that there was a

continuing problem, that they shouldn't takeoff or that they

had better go talk to the owners, because they are responsible

for it, they wouldn't have flown back that day. Like I said,

there hasn't been any testimony except an admission that they

did come back a second time. And you know, I am convinced

2

706(2)(A); Miranda v. N.T.S.B., 866 F.2d 805 (5th Cir. 1989). The

Board has plenary review of an ALJ's ruling and is the ultimate

finder of fact, even as to credibility. Chirino v. NTSB, 849 F.2d

1525, 1532 (D.C.Cir. 1988) But, the Board's own policies dictate

that an ALJ's credibility determination will not be disturbed

unless the ALJ acted arbitrarily and capriciously, there exists a

compelling reason to overturn or a clear error, the testimony is

inherently incredible, or the decision is not supported by the

weight of the evidence. See Chirino, at 1530. 

In this case, the Board found that the ALJ's decision was

"fatally flawed" by an error of fact that two flights had occurred.

The two flights in the original complaint referred to the flight to

the farm and the flight from the farm -- not two separate flights

to the farm. The determination of this case rested on a

credibility determination of two witnesses, Ms. Cherry and Mr.

Davis, the caretaker of the horses, of the circumstances

surrounding the takeoff of the helicopter. The ALJ essentially

rejected Mr. Davis' testimony on the basis that Ms. Cherry would

have not flown back a second time if his version were correct.2 
that there was [not] a problem, or they wouldn't come back that

second time. So, I don't find that there was careless or reckless

operation when the aircraft took off.

Also, later the ALJ stated that the Administrator had not

established carelessness and recklessness by a preponderance of the

evidence and dismissed the suspension, and again reasoned: 

But I believe that if that problem [the injured horse], even

after it was identified, had not been solved, these folks

would not have flown back over there that day. And so I think

the Administrator's evidence has not established by a

preponderance of the evidence, reckless and careless

operation.

3

Thus the Board made a reasonable conclusion based on the

record and found a compelling reason, a clear error, to overturn

the ALJ's credibility ruling. The Board did not act arbitrarily

and capriciously or outside its own policy. We affirm its action.

Ms. Cherry also contends that the NTSB erred in finding that

the takeoff of the helicopter was in violation of FAR 91.13(a).

"As long as the findings of fact of the Board are supported by

substantial evidence, they must be affirmed." Woolsey v. NTSB, 993

F.2d 516, 521 n.16 (5th Cir. 1993); King v. NTSB, 766 F.2d 200, 203

(5th Cir. 1985). However, when the Board has rejected credibility

determinations of the ALJ, the Court subjects the record to

particular scrutiny. "Review is heightened not because the

standard differs but because evidence supporting a conclusion is

likely to be less substantial when the ALJ's conclusion differs

from that of the agency." Pennzoil Co. v. FERC, 789 F.2d 1128,

1135 (5th Cir. 1986); Ward v. NLRB, 462 F.2d 8, 12 (5th Cir. 1972).

In this case, even though the Board found from the ALJ's oral

decision that he credited Ms. Cherry's testimony over Mr. Davis

because he believed she had flown back a second time, the Board's
4

own credibility assessment must be supported by evidence in the

record.

The Board found that Ms. Cherry was, or should have been, on

notice after the landing that there were horses in the area, horses

had been injured upon her landing, and horses could be spooked by

helicopter operations. The Board concluded that Ms. Cherry should

have investigated before takeoff. The Board believed Mr. Davis'

testimony, finding his actions more reasonable under the

circumstances and his testimony corroborated by others. Ms. Kurtz,

an independent bystander, reported that the horses were spooked by

the landing of the helicopter. The injuries to the horses were

corroborated by the horse owner and vet bills. Ms. Cherry had

testified to knowing of at least one injured horse. Given Ms.

Cherry's part in injuring the horses, the Board found unlikely Ms.

Cherry's testimony that Mr. Davis would cheerfully invite her to

return and tell her it was fine for her to leave. The Board's

finding is supported by substantial record evidence. The order of

the NTSB is therefore 

AFFIRMED.