Evan P. Singer v. JANE F. GARVEY , Administrator, Federal Aviation Administration

*The Honorable Denise Page Hood, United States District Judge for
the Eastern District of Michigan, sitting by designation.
1
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. S INGER,
Petitioner,
v.
J ANE F. GARVEY ,
Administrator, Federal
Aviation Administration,
Respondent.
;>

1
No. 98-4252
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.

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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

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10 Singer v. Garvey No. 98-4252
2. “Authorized”
Finally, Singer contends that the notes were not
unauthorized materials. Singer maintains that the only
portion of the notes that related to questions on the
examination were weight and balance formulae. Because
FAA Order 8080.6A allows examinees to use weight and
balance formulae that are permanently inscribed on aids
otherwise permitted during examinations, Singer continues,
the information on the notes was “authorized” within the
meaning of 14 C.F.R. § 61.37(a)(6).
This argument is unavailing. While the FAA Order may
authorize weight and balance formulae that are permanently
inscribed on fundamental flight planning equipment, it makes
no allowance for such information in the form of written
notes. Perhaps more to the point, sufficient testimony was
developed during the hearing to support the NTSB’s rational
conclusion that the notes contained information other than the
weight and balance formulae that could have aided Singer
during the examination. The NTSB therefore did not act
arbitrarily or capriciously in disregarding the ALJ’s finding
that the information on the notes was authorized.
III.
For the foregoing reasons, the petition for review is denied.
No. 98-4252 Singer v. Garvey 3
and another proctor, Kara Moore, from the windows ten to
fifteen feet to his left. Davio and Moore noticed that Singer
frequently looked around during the examination. Because of
this furtive behavior, the proctors focused their attention on
Singer, observing him about ninety-eight percent of the time.
As Singer neared the end of his examination, another
examinee entered the testing area. The newcomer was
proctored by the school’s maintenance instructor, Becky
Duncan, who was stationed behind a window about ten feet
away from Singer. Like the other two proctors, Duncan noted
that Singer was looking around the testing room. Duncan
observed that Singer focused on the other two proctors, and,
at a moment when they were conferring on a question of
paperwork, she saw Singer take a paper in his left hand and
put it into his front left pocket. Duncan would later be unable
to identify the color of the paper.
After witnessing Singer’s act, Duncan summoned Moore to
a back office. At this point, Davio turned around and saw
Singer removing his left hand from his left front pocket.
Duncan then explained what she had seen to Davio and
Moore. Moore approached Singer after he had finished his
exam and asked him to empty his pockets. From his left front
pocket, Singer produced two small yellow sheets of paper and
one green sheet. These notes contained a variety of aviation
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

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4 Singer v. Garvey No. 98-4252
a different test—the commercial pilot written examination.
Singer introduced records of practice tests he had taken for
this examination and correlated the notes to specific questions
on the practice tests. He denied ever having taken the notes
out of his pocket during the advanced ground instructor
training examination. Singer’s flight instructor testified that
Singer was in the habit of making study notes of the kind
found in his pocket on June 18, 1998.
At the conclusion of the hearing, the ALJ reversed the
Administrator’s order of revocation. The ALJ initially noted
that the Administrator had the burden of establishing her
allegations by a preponderance of the evidence. Observing
that the evidence in this case was circumstantial, however, the
ALJ went on to cite Administrator v. Hart, 3 NTSB 24, 26
(1977), for the proposition that circumstantial evidence on a
particular point must be so convincing as to override any
reasonable explanation to the contrary. The ALJ found that
the Administrator’s circumstantial evidence on the use of
unauthorized materials was not sufficient to overcome the
reasonable explanation for the presence of the notes in
Singer’s pocket. In so finding, the ALJ addressed the key
piece of circumstantial evidence in the case, Duncan’s
testimony. Duncan “really didn’t see anything,” the ALJ
stated. “She just saw this movement toward the pocket. She
says it was paper, doesn’t know what kind of paper it was.
That really doesn’t show use.” The ALJ indicated that the
Administrator could have proved use by producing Singer’s
exam answers and correlating them with the information on
the notes.
The Administrator appealed to the NTSB. The NTSB
reversed, holding that the ALJ had employed an incorrect
standard of proof. The Hart case, the NTSB pointed out, had
involved circumstantial proof of intent in a false statement
action. Because intent was not an element of the offense with
which Singer was charged, the NTSB continued, Hart was not
applicable, and the correct burden of proof was therefore the
usual preponderance of the evidence standard. The NTSB
found that the Administrator had shown that it was more
No. 98-4252 Singer v. Garvey 9
case, has no application to violations of 14 C.F.R.
§ 61.37(a)(6). False statement cases typically involve a
delicate determination whether the accused acted intentionally
or only negligently; where circumstantial evidence is used to
prove the defendant’s scienter, a higher standard of proof is
appropriate. This is not so where the defendant stands
accused of using unauthorized materials during an
examination. In such cases, the accused’s actions speak for
themselves; intent is not an element of the offense of cheating
on a knowledge examination. The NTSB could therefore
reasonably hold that use of unauthorized materials could be
proved by a preponderance of circumstantial evidence.
The NTSB also correctly observed that the ALJ had applied
an unduly limited definition of “use” of unauthorized
materials. Although Singer maintains that the NTSB
misconstrued the ALJ’s findings in this regard, the ALJ did in
fact ask whether there was a correlation between the
information on the notes and Singer’s answers on the
examination—an inquiry which suggests that a defendant
must derive a benefit from unauthorized materials in order to
have “used” them. The NTSB’s contrary interpretation of its
regulation—that a prohibited use is “any effort to obtain help
from an unauthorized source of information or assistance,
whether successful or otherwise”— is entitled to deference.
See Borregard v. NTSB, 46 F.3d 944, 945 (9th Cir. 1995).
The NTSB’s construction of the term “use” is both reasonable
and consistent with NTSB precedent, see, e.g., Administrator
v. DeSilva, No. SE-11297, 1993 WL 657746, at *4 (NTSB
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
disturbed by this court.
In conclusion, the NTSB did not act arbitrarily or
capriciously in rejecting the ALJ’s legal conclusion that
Singer’s conduct did not amount to use of the notes. The
NTSB’s decision reflects its determination that the ALJ
applied the wrong standard of proof and an incorrect
definition of the term “use.” That determination is rational
and in accordance with law.

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8 Singer v. Garvey No. 98-4252
B. Findings of Law
Singer does not seriously challenge the NTSB’s purely
legal conclusions regarding the correct burden of proof and
the meaning of the term “use” in 14 C.F.R. § 61.37(a)(6). He
does complain, however, that the NTSB arbitrarily rejected
the ALJ’s mixed factual and legal finding that his conduct did
not amount to “use” of the notes. Similarly, Singer contends
that the information on the notes was “authorized” within the
meaning of the regulation. Neither of these arguments has
merit.
1. “Use”
The NTSB adequately explained why it rejected the ALJ’s
conclusion that the testimony at the hearing “really doesn’t
show use.” The NTSB determined that the ALJ had
mistakenly applied the evidentiary standard from
Administrator v. Hart, 3 NTSB 24, 26 (1977), and that he had
also applied an unduly limited definition of the term “use.”
This determination is reasoned and reflects attentive
consideration of the ALJ’s decision. See Dodson v. NTSB,
644 F.2d 647, 650-51 (7th Cir. 1981).
The ALJ cited the Hart case for the proposition that the
FAA’s circumstantial proof must be “so compelling that no
other determination is reasonably possible.” Unlike this case,
however, Hart was the product of a remand to the NTSB to
make a factual finding as to a flight instructor’s scienter at the
time he made false entries in student pilot logbooks. Singer
contends that application of the Hart standard in this case was
appropriate because he could not have violated a regulation
against using unauthorized material without intending to use
those materials. He also suggests (seemingly contradictorily)
that the ALJ properly adopted the preponderance of the
evidence standard early in his decision.
As an initial matter, it is clear that the ALJ employed the
elevated Hart standard—he so affirmed during a colloquy
with the FAA’s attorney after rendering his decision. The
NTSB could rationally conclude that Hart, a false statement
No. 98-4252 Singer v. Garvey 5
likely true than not that Singer had handled the notes in the
testing area. This action, the NTSB concluded, constituted
“use.” Taking issue with the ALJ’s suggestion that the
Administrator should have demonstrated a correlation
between Singer’s answers and the information on the notes,
the NTSB wrote: “We think the unauthorized material was
effectively ‘used’ when respondent, by having the notes in his
hand outside of his pocket, engaged in conduct that created
the potential for improper reliance on them.”
Before this court, Singer argues that no substantial evidence
supports the NTSB’s determination that he used unauthorized
materials during the Advanced Ground Instructor
examination. In particular, he contends that the NTSB
arbitrarily disregarded a credibility determination that the ALJ
made with regard to Becky Duncan’s testimony. Singer also
argues that the NTSB arbitrarily ignored a negative inference
that the ALJ drew against the Administrator on the basis of
certain discovery issues. We address these contentions in
turn.
II.
The NTSB held that Singer violated 14 C.F.R.
§ 61.37(a)(6), which provides: “An applicant for a
knowledge test may not . . . [u]se any material or aid during
the period that the test is being given, unless specifically
authorized to do so by the Administrator . . . .” This court
may set aside agency action only if it finds it to be arbitrary,
capricious, an abuse of discretion, or, where there has been a
hearing, the agency action is unsupported by substantial
evidence. Blackman v. Busey, 938 F.2d 659, 661 (6th Cir.
1991). Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion. Id.
The NTSB has plenary review authority with respect to ALJ
decision making. McCarthney v. Busey, 954 F.2d 1147, 1154
(6th Cir. 1992). Where the NTSB reverses its ALJ, this
court’s role is limited to determining whether those factors
which influenced the ALJ should have required the NTSB to

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6 Singer v. Garvey No. 98-4252
reach a decision different from the one that it did. See id.
The NTSB’s weighing of the facts and factors which it
determines upon review, based upon substantial evidence, is
not to be disturbed by this court even if we feel that a
different result might be indicated. Id. “ ‘It does not matter
that other reasonable conclusions are theoretically possible’
(or even desirable from our standpoint).” Id. (quoting
Blackman, 938 F.2d at 662).
A. Findings of Fact
Substantial evidence supports the NTSB’s factual finding
that Singer took the notes out of his pocket during the
examination. All three proctors observed Singer acting in a
furtive manner. Duncan saw him move a paper to his left
front pocket; Davio saw him remove his hand from that same
pocket immediately afterward. The quality of this evidence
is not much diminished by the fact that Moore and Davio did
not personally witness Singer handling the notes. Moore
testified that at the time of the incident she was helping Davio
with a question on some paperwork, which suggests that these
proctors’ attention was divided. Taking this body of evidence
as a whole, the NTSB could reasonably conclude that Singer
had the notes in his hand outside of his pocket during the
exam.
Singer nevertheless contends that in arriving at this
conclusion, the NTSB arbitrarily reversed a credibility finding
of the ALJ. Singer urges that the ALJ’s statement that
Duncan “really didn’t see anything” constituted a credibility
determination that Duncan did not see papers in Singer’s
hand. Because it is the NTSB’s policy not to disturb a
credibility finding “unless there is a compelling reason or the
finding was clearly erroneous,” Chirino v. NTSB, 849 F.2d
1525, 1530 (D.C. Cir. 1988), Singer argues, the NTSB broke
its own rules when it relied on Duncan’s testimony without
supplying some sort of justification.
Singer is mistaken. When the NTSB denied a motion for
reconsideration made by Singer, it specifically addressed the
ALJ’s statement regarding Duncan’s testimony, and
No. 98-4252 Singer v. Garvey 7
concluded that it did not amount to a credibility finding.
What is more, the NTSB’s reading of the ALJ’s statement is
persuasive. Duncan testified that she saw Singer take his left
hand and stick notes into his front left pocket, but admitted
upon cross examination that she could not describe the color
of the paper. The ALJ essentially reiterated this testimony in
his statement: “She just saw this movement toward the
pocket. She says it was paper, doesn’t know what kind of
paper it was.” The ALJ did not suggest that Duncan did not
see what she claimed to have seen. Rather, he concluded that,
“That really doesn’t show use.” From this statement, it is
apparent that the ALJ was making a legal conclusion—that
Duncan’s testimony did not suffice to establish “use” within
the meaning of 14 C.F.R. § 61.37(a)(6). The ALJ did not
render a credibility determination.
As a final factual matter, Singer argues that the NTSB
arbitrarily disregarded a negative inference that the ALJ drew
on the basis that the FAA failed to videotape the examination
and failed to produce Singer’s examination answers during
discovery. A reading of the ALJ’s opinion, however, reveals
no such inference. In any event, a negative inference against
the FAA would not have been warranted. FAA procedures do
not require that examinations be videotaped. See Conduct of
Airmen Knowledge Tests Via the Computer Medium, FAA
Order 8080.6A, ch. 5-9(a) (December 1994). Moreover, 49
C.F.R. § 821.19(d) (1999) provides that an ALJ may draw a
negative inference against a party who fails to comply with an
order compelling discovery. In this case, the ALJ did not
issue an order compelling production of Singer’s examination
answers, so an adverse inference on this basis would not have
been appropriate.
In sum, substantial evidence supports the NTSB’s factual
findings. The ALJ did not render a credibility determination
with regard to the testimony of Becky Duncan, nor did he
draw an adverse inference against the FAA on evidentiary
grounds. Accordingly, the NTSB did not err in concluding
that Singer had taken the notes out of his pocket during the
examination.

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