NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 23 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EITAN LEASCHAUER, No. 14-72214
Petitioner, NTSB No. EA-5723
v.
MEMORANDUM*
MICHAEL P. HUERTA, Administrator,
FAA,
Respondent.
On Petition for Review of an Order of the
National Transportation Safety Board
Submitted June 14, 2016**
Before: BEA, WATFORD, and FRIEDLAND, Circuit Judges.
Eitan Leaschauer petitions pro se from the National Transportation Safety
Board’s (“NTSB”) final order suspending his pilot’s license for sixty days as a
punitive measure. We have jurisdiction under 49 U.S.C. § 1153. We review the
NTSB’s final order under the arbitrary and capricious standard. Gilbert v. NTSB,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
80 F.3d 364, 368 (9th Cir. 1996). We deny the petition for review.
The administrative law judge (“ALJ”) held that the Federal Aviation
Administration (“FAA”) was entitled to summary judgment on the basis of issue
preclusion, based upon the ALJ’s order in a prior action, Adm’r v. Leaschauer,
NTSB Order No. EA-5680 (2013). See Supplemental Excerpts of
Record, Leaschauer v. NTSB, et al., No. 13-73818 (9th Cir. Feb. 24, 2014) (ECF
No. 14-2 at 36-44) (ALJ order). We exercise our discretion and take judicial
notice of the ALJ’s oral initial decision and order in that case. See Trigueros v.
Adams, 658 F.3d 983, 987 (9th Cir. 2011) (judicial notice may be taken of
“proceedings in other courts, both within and without the federal judicial system, if
those proceedings have a direct relation to matters at issue”).
The NTSB’s determination that issue preclusion applied to the 14 C.F.R.
§§ 91.129(i), 91.13(a), and 91.13(a) charges was not arbitrary or capricious
because the ALJ in EA-5680 specifically found that Leaschauer took off from an
airport with a control tower without receiving clearance, and that Leaschauer failed
to contact the control tower despite being instructed to do so by an air traffic
controller. See Arrington v. Daniels, 516 F.3d 1106, 1112 (9th Cir. 2008)
(arbitrary and capricious standard requires agency to base decision on
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consideration of relevant factors and avoid clear error); Adm’r v. Forrette, NTSB
Order No. EA-5524 (2010) (setting forth preclusion analysis); 49 C.F.R. § 821.17
(setting forth summary judgment standard).
We reject Leaschauer’s contention that the NTSB erred in applying issue
preclusion because Leaschauer was appealing NTSB Order No. EA-5680 to this
court, as “the preclusive effects of a lower court judgment cannot be suspended
simply by taking an appeal that remains undecided.” Robi v. Five Platters, Inc.,
838 F.2d 318, 327 (9th Cir. 1988).
All pending motions and requests are denied.
PETITION FOR REVIEW DENIED.
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