NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 10 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRE AVIATION ADMINISTRATION and No. 15-71061
ROBERT C. MACE,
Petitioners, NTSB Docket No. SE-19109RM
NTSB Order No. EA-5722
v.
MEMORANDUM*
FEDERAL AVIATION
ADMINISTRATION,
Respondent.
On Petition for Review of a Decision of the
National Transportation Safety Board
Submitted April 7, 2017**
Pasadena, California
Before: CLIFTON and OWENS, Circuit Judges, and ANTOON,*** District Judge.
Petitioners TRE Aviation Administration and Robert C. Mace seek review of
the National Transportation Safety Board’s (NTSB) decision affirming the Federal
*
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).
***
The Honorable John Antoon II, United States District Judge for the
Middle District of Florida, sitting by designation.
Aviation Administration’s (FAA) order revoking the standard airworthiness
certificate of civil aircraft number N61PH. The parties are familiar with the facts,
and therefore we do not recount them here. We have jurisdiction pursuant to 49
U.S.C. §§ 1153(a), 44709(f), and 46110, and we deny the petition for review.
1. The administrative law judge did not err in allowing the testimony of
FAA aviation inspector Kenton Fenning. Fenning testified as a fact witness, and to
the extent some of Fenning’s testimony was opinion, it was lay opinion testimony
rather than expert opinion and therefore was permitted under Fed. R. Evid. 701.
Even if some of Fenning’s testimony constituted expert opinion and was
erroneously admitted as undisclosed expert testimony, that error did not prejudice
Petitioners and does not warrant reversal. See Calmat Co. v. U.S. Dep’t of Labor,
364 F.3d 1117, 1122 (9th Cir. 2004) (noting that to reverse based on an agency’s
evidentiary ruling, the court “must conclude both that the [agency] abused its
discretion and that the error was prejudicial”).
2. We reject Petitioners’ contention that they did not violate 14 C.F.R.
§§ 45.13(e) and 43.3 when they removed N61PH’s data plate and reattached it to a
fuselage from a different helicopter during what they refer to as “maintenance” or
“repair” of N61PH. It is undisputed that the current N61PH contains only a few
parts from the previous N61PH. We agree with the FAA and the NTSB that the
work performed on the helicopter cannot be characterized as “maintenance” or
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“repair” and that the aircraft on which the data plate was reinstalled is not the same
aircraft from which it was removed. The NTSB’s conclusion that N61PH lacks
qualification to hold a standard airworthiness certificate because the data plate
installed on it does not properly identify it is supported by substantial evidence and
in accordance with law.
PETITION DENIED.
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