*

 This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

June 13, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CHRISTIAN GILBERT TONY

NADAL, 

Petitioner, No. 08-9520

v. (F.A.A. No. SE-17205)

FEDERAL AVIATION

ADMINISTRATION,

(N.T.S.B.)

Respondent.

 

ORDER AND JUDGMENT*

Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.

Petitioner appeals a National Transportation Safety Board order affirming

the sixty-day suspension of his pilot certificate for crossing a runway in violation

of air traffic control instructions to “hold short.” Petitioner argues that the NTSB

erred in affirming certain evidentiary and procedural rulings made by the

administrative law judge. Petitioner further argues that the NTSB erred in failing

to grant his petition for reconsideration, which raised several new claims of error

in the ALJ’s rulings.
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We review NTSB decisions to determine whether they were “arbitrary,

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

Hernandez v. Nat’l Transp. Safety Bd., 15 F.3d 157, 158 (10th Cir. 1994); see 5

U.S.C. § 706 (2000). “[T]he ultimate standard of review is a narrow one,” and we

are not empowered to substitute our judgment for that of the agency. Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971).

First, Petitioner argues that the ALJ erred in refusing to admit documents

describing the frequency of runway incursions at the runway that Petitioner

crossed in violation of air traffic control instructions. The ALJ concluded that

these documents were not relevant to whether this particular incursion occurred. 

In affirming this ruling, the NTSB concluded that these documents would not

have changed the outcome of the case in any event because they did not show that

Petitioner had not violated air traffic control instructions, nor did they excuse his

runway incursion. We see nothing arbitrary, capricious, or otherwise unsupported

by the law in this ruling. Although Petitioner argues that the frequency of other

incursions at this location suggests that contributory factors may have been at

play, we note that Petitioner never testified as to any confusion regarding, for

instance, the runway layout or the signs marking the intersection. We conclude

that the ALJ did not err in refusing to admit these documents.

Second, Petitioner argues that the ALJ erroneously excluded two FAA

witnesses from the sequestration order at the evidentiary hearing. As an initial
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matter, we note that the ALJ in fact allowed only one FAA witness to remain at

the hearing, and then only during Petitioner’s expert witness’ testimony. This

FAA witness only provided expert testimony in rebuttal to Petitioner’s expert, and

the ALJ partially excluded him from the sequestration order because Petitioner

had disclosed the identity of his expert witness after the deadline for such

disclosures and had not disclosed what his expert would testify to. In affirming

this ruling by the ALJ, the NTSB noted the broad discretion given to ALJs in such

matters. The NTSB further concluded that the ALJ’s ruling had not altered the

outcome of the case. Again, we see nothing arbitrary or capricious in this

decision.

Third, Petitioner argues that the ALJ erred in admitting a statement made

by Petitioner’s co-pilot to an FAA inspector. According to this statement, the copilot “indicated that while [Petitioner’s plane] was crossing [the runway] without

authorization, she questioned the Captain[’]s actions. She later said, she wished

she would have spoken[] up sooner and prevented the incident from occurring.” 

(R. at 346.) Petitioner argues that this evidence was irrelevant and constituted

unreliable hearsay. We agree with the NTSB that this evidence was relevant

because it tends to corroborate that Petitioner operated his aircraft contrary to an

air traffic control instruction. As to Petitioner’s hearsay objection, we note that

hearsay evidence is generally admissible in an administrative proceeding, see

Adm’r v. Howell, 1 N.T.S.B. 943, 944 n.10 (1970); Calhoun v. Bailar, 626 F.2d
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145, 148 (9th Cir. 1980), and we see nothing in the record that seriously calls into

question the reliability of this evidence.

Fourth, Petitioner argues that the ALJ improperly allowed an incomplete

hypothetical to be posed to Petitioner’s expert on cross examination. 

Specifically, as clarified by the ALJ, this question asked the expert what air

traffic controllers would expect a pilot to do if he were unable to comply with an

instruction. Without considering whether there was any error in the posing of this

hypothetical to the expert, the NTSB simply concluded that Petitioner had not

shown prejudicial error given the overwhelming evidence that Petitioner

committed the runway incursion. We see nothing arbitrary or capricious in this

decision. Moreover, in light of the expert’s previous testimony, we see no error

in the ALJ’s decision to allow this hypothetical.

Petitioner next argues that the NTSB erred in dismissing as untimely his

petition for reconsideration. A petition for rehearing or reconsideration before an

administrative agency is addressed to that agency’s own discretion. See United

States v. Pierce Auto Freight Lines, 327 U.S. 515, 535 (1946). “Denial of such a

petition should be overturned [on judicial review] only upon a showing of the

clearest abuse of discretion.” Duval Corp. v. Donovan, 650 F.2d 1051, 1054 (9th

Cir. 1981); see Pierce, 327 U.S. at 535. We conclude that the NTSB did not

clearly abuse its discretion by denying Petitioner’s request for an extension of

time and dismissing as untimely his late-filed petition for reconsideration. We
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therefore do not address the substantive issues raised for the first time in

Petitioner’s untimely petition for reconsideration.

Finally, Petitioner argues that he received ineffective assistance of counsel

at the evidentiary hearing before the ALJ. Ineffective assistance of counsel is not

normally a ground for relief in a civil case. See MacCuish v. United States, 844

F.2d 733, 735-36 (10th Cir. 1988). “[T]he only context in which courts have

recognized a constitutional right to effective assistance of counsel in civil

litigation is in immigration cases,” Nelson v. Boeing, 446 F.3d 1118, 1120 (10th

Cir. 2006). We see no reason to extend this right to FAA certification

proceedings.

We therefore AFFIRM the NTSB’s affirmance of the suspension of

Petitioner’s pilot certificate.

Entered for the Court

Monroe G. McKay

Circuit Judge