The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 4, 2002 Decided April 23, 2002
No. 01-1202
Andrew W. Van Dyke,
Petitioner
v.
National Transportation Safety Board and
Federal Aviation Administration,
Respondents
On Petition for Review of an Order of the
United States Department of Transportation
Mark T. McDermott argued the cause for petitioner. With
him on the briefs was Peter J. Wiernicki.
Robert P. Vente, Counsel, Federal Aviation Administration,
argued the cause for respondents. With him on the brief was
Peter J. Lynch, Assistant Chief Counsel, Federal Aviation
Administration.
Before: Edwards and Randolph, Circuit Judges, and
Williams, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge: This is a petition for judicial
review of an order of the National Transportation Safety
Board affirming the decision of an administrative law judge to
suspend Andrew W. Van Dyke's commercial pilot license for
45 days on a charge brought by the Federal Aviation Admin-
istration. The question is whether there is "substantial evi-
dence" in the record to support the Board's order. See 49
U.S.C. s 46110(c).
On April 25, 1998, the date of the incident for which he was
suspended, Van Dyke worked for Sky's the Limit, Inc., a sky-
diving company operating out of the Orange County Airport,
in Montgomery, New York, some 50 miles north of New York
City. He piloted a Beechcraft King Air in and out of the
airport, dropping off one group of skydivers and picking up a
new group throughout the day. At 6:15 p.m., as Van Dyke
was making his descent to the airport, a regional air traffic
controller instructed him to change course and approach the
airport from the south. The traffic controller wanted Van
Dyke to avoid heavy traffic departing from Stewart Interna-
tional Airport, seven miles to the east. What happened next
is the crux of the dispute between Van Dyke and the Federal
Aviation Administration.
Because there is no air traffic control tower at the Orange
County Airport, FAA regulations require approaching pilots
to make all turns in the same direction. 14 C.F.R.
s 91.126(b). The usual path is left-hand turns only. The
"preferred method" is for the pilot to approach the pattern on
a course 45 degrees to the downwind leg and join the pattern
at midfield. The pilot then flies parallel to the runway. Once
past the end of the runway, the pilot turns to the left. This is
the "base leg." The pilot turns left again, into the wind, and
lands. Figure 1 illustrates the standard FAA landing pat-
tern.
Figure 1 not available electronically.
The runway Van Dyke approached at Orange County Air-
port has a different rule: all turns must be made to the right
(to avoid planes from nearby Stewart International Airport).
Markings, visible from the sky, indicate this. This landing
pattern is illustrated in Figure 2.
Figure 2 not available electronically.
In testimony before the ALJ, Bucky Gorton, the operations
supervisor at the airport on April 25, 1998, said that while he
was in the airport office he received a radio call from Van
Dyke announcing that he was entering a left downwind
pattern for landing. Gorton radioed back that this Orange
County runway was right traffic, not left. Gorton said Van
Dyke responded that the regional air traffic controller had
told him to enter a left traffic pattern. Gorton repeated that
all turns must be made to the right. Gorton then looked out
of his office window, and saw a King Air flying on a left
downwind leg. See Figure 3. The plane passed out of
Gorton's sight, traveling to the east, and he saw nothing more
until the plane landed. Gorton did not see the plane make
any turns.
Van Dyke testified that he radioed to announce that he was
on an extended left base to land at the airport, which would
have required only that he turn left onto the runway. When
Gorton said the plane could not land this way, Van Dyke flew
past the runway and made several right turns to bring the
plane down. See Figure 3. Jeffrey Hawke, another company
pilot on the flight, confirmed Van Dyke's version. The owner
of "Sky's the Limit," Jeffrey Root, saw the plane fly north
across the field, as Van Dyke claims. This is segment 1 of
Van Dyke's path. See Figure 3. Root was then distracted.
When he looked up, he saw the plane turn right from the base
leg into its final approach. This is segment 3 and segment 4.
Figure 3 not available electronically.
The ALJ concluded that Van Dyke "entered a high left-
hand pattern," and therefore found him in violation of three
FAA regulations. The first, 14 C.F.R. s 91.126(b), requires
pilots in Class G airspace - when approaching an airport
without a control tower - to make all turns to the left unless
the airport specifies otherwise. The second, 14 C.F.R.
s 91.127(a), applies the same condition to those operating in
Class E airspace, like the Orange County Airport. The third,
14 C.F.R. s 91.13, forbids operating an aircraft in a "careless
or reckless manner," which Van Dyke allegedly did by mak-
ing left-hand turns.
The Board, in affirming the ALJ, put its decision on the
basis that the ALJ believed Gorton's version of events and
disbelieved the version put forward by Van Dyke and the
other two witnesses. Gorton's story, the Board wrote, pro-
vided "adequate circumstantial proof that respondent had
operated contrary to the regulations cited in the Administra-
tor's complaint" by making "left turns."
Substantial evidence is "such relevant evidence as a reason-
able mind might accept as adequate to support a conclusion"
(Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)),
taking "into account whatever in the record fairly detracts
from its weight" (Universal Camera Corp. v. NLRB, 340 U.S.
474, 488 (1951)). See Lindsay v. Nat'l Transp. Safety Bd., 47
F.3d 1209, 1213 (D.C. Cir. 1995). No such evidence supports
the Board's conclusion here. The airport manager, Gorton,
did not see Van Dyke's plane making any turns. The Board
nevertheless thought Gorton's testimony carried the day be-
cause he "did observe the landing that followed the left
downwind." But Gorton's observations are entirely consis-
tent with Van Dyke's making only right turns, as Van Dyke
said he did, by crossing over the runway and making right
turns until he turned right again into the downwind leg of the
landing pattern.
One can imagine another theory to support the Board's
conclusion. The ALJ might have concluded, in light of Van
Dyke's demeanor, "not only that the witness' testimony is not
true, but that the truth is the opposite of his story," Dyer v.
MacDougall, 201 F.2d 265, 268-69 (2d Cir. 1952). Perhaps
the Board had this in mind when it stated that the ALJ had
rejected not only Van Dyke's testimony, but also the testimo-
ny of Hawke and Root, on the basis of their lack of credibility.
We need not decide whether this court would affirm a sanc-
tion on this ground. See United States v. Zeigler, 994 F.2d
845 (D.C. Cir. 1993). The ALJ made no such credibility
determinations. Rather than finding Van Dyke not credible,
the ALJ stated in his opinion, delivered orally, "I have no
reason to doubt the veracity of [Van Dyke] but as I said
earlier, nor can I doubt the veracity of [Gorton and the FAA's
expert witness]." Gorton and Van Dyke gave contradictory
accounts on some matters other than the direction of turns so
we cannot understand what the ALJ had in mind. As to
Root, the ALJ never mentioned his testimony confirming Van
Dyke's account. Contrary to the Board, the ALJ thus did not
impugn Van Dyke's credibility or that of his supporting
witnesses.
An expert witness for the FAA devoted some of his testi-
mony to explaining why the landing pattern described by Van
Dyke - with all turns made to the right - was dangerous.
This may be so, but Van Dyke was prosecuted for making left
turns in his landing pattern and thereby flying recklessly.
The government has defended the Board's decision on that
ground alone. Brief for Respondents at 16-17. That is the
reasoning the Board put forward in its opinion. If there is no
substantial evidence to support the Board's reasoning - and
there is none here - its order must be vacated. See SEC v.
Chenery Corp., 332 U.S. 194, 196 (1947).
Vacated.