*1 849 employment employment authorization be if unreasonable for the would the would be of an government prosecuted working to erase all violations had him authorization At the time the INS immigrant’s during period status. the of the authorization. Far authorization, it has employment reassuring issues the legal from him that he was a asylum fully the alien’s alien, reviewed not even Bazargan the had INS served with an simply it application, but has determined to order to show cause he should not be INS does not Because the be non-frivolous. deported nonimmigrant for violations of his employment to interpret the authorization purchased student F-l status before he had status with have effect on alien’s Likewise, Agent the firearms. Gudmestad anything ability respect to other than his to Bazargan orally had also advised employment during pendency engage in illegally present him INS considered case, agree court of his we with the district United due to violation of States his student Immigration Judge employ- that the and the Accordingly, Bazargan’s status. claim that effect of authorization did not have the ment believing he misled into INS converting Bazargan legal back into a alien. “legally purposes he was here” for the purchasing firearms is without merit.

Last, Bazargan’s argu consider an that if we find that he had become ment judgment The of the district court is af illegal possessed the time he alien at firmed. firearms, “entrapment by doctrine of es- precludes prosecution on the sec toppel” his Bazargan 922(g)(5) charge. contends

tion him govérnment had issued because permitting him employment authorization expired it stay in the States until

to United 1991, 7,May government entrapped

on believing lawfully residing in

him into he was charged the time the United States at Petitioner, SMITH, John M. offense. v. by estop- entrapment The defense “ NATIONAL TRANSPORTATION pel ‘applies an official tells the defen when BOARD, SAFETY legal and the dant that certain conduct ” Respondent. believes the official.’ United defendant (8th Long, 1270-71 v. 977 F.2d States No. 92-3201. Austin, Cir.1992), v. quoting United States Appeals, United States Court of (8th Cir.1990). We have 915 F.2d Eighth Circuit. Supreme nor Court “[n]either noted whether this Court has decided equitable 17, 1993. March Submitted estoppel apply against the Government can May 1993. Decided INS, immigration Wellington eases.” v. (8th Cir.1983). If 710 F.2d “es- cases,

toppel immigration it is available only if the can be invoked ” Welling misconduct.’

guilty of ‘affirmative

ton, 710 F.2d 1360. “entrapment by estoppel”

The defense of Bazargan’s application

has no to case. At no represent Bazargan that

time did INS nonimmigrant past failure to maintain his

his forgiven by

F-l student status was the em- only

ployment The situation authorization. conceivably Bazargan make a which estoppel respect to the

colorable claim with

I. BACKGROUND 1, 1987, Smith, experienced On October an pilot previously flying with a unblemished record, Rapids left Cedar for Des Moines. trip Smith had made this on numerous occa- past. sions Rapids The Cedar air in. traffic controller issued Smith altitude of 8,000 feet, and, repeating after the instruc- tion, plane 8,000 Smith leveled his feet. instructing After heading Smith to alter his (which did), Rapids he the Cedar air traffic change frequency controller told Smith to his Chicago to the Center.

Each Chicago controller in the Center is assigned a different flying sector. Smith was in encompassed large the sector that por- Iowa, Moines, Waterloo, including tion of Des Ottumwa, Rapids. and day Cedar On the question, (meaning this sector was saturated usual) it had more air traffic than because inoperative Waterloo’s radar was and Chica- go handling Center was the takeoffs and landings in Waterloo. sector,

Within each there are two control- lers. One posi- controller works at the radar tion and the other controller works at the position. position manual The radar commu- sector, nicates with the aircraft in the while position the manual primarily communicates ground positions with in the sector. In addi- Konchar, Iowa, Rapids, Robert Cedar ar- tion, necessary, when the manual controller (Robert Konchar, gued E. Mark J. Herzber- assists the radar controller. The communi- brief), ger D. and Paul Gamez on the for by cations made both controllers are record- petitioner. however, separately; the manual control- Butcher, DC, Washington, Clarence ar- ler’s will record communications (Allan gued H. Horowitz and Clarence C. by made the radar controller whenever the Butcher, Jr., brief), respondent. on the for manual controller communicating is not with anyone. BOWMAN, Judge, Before Circuit FLOYD day question, position On the radar GIBSON, Judge, R. Senior Circuit and for the sector which flying Smith was ARNOLD, MORRIS SHEPPARD Circuit Zibolski, Kraig manned a trainee. He Judge. being supervised by the manual control- ler, Chester Calhoun. Smith claims he re- GIBSON, R. FLOYD Senior Circuit ceived an instruction from Zibolski to de- Judge. 4,000 scend to feet. After acknowledging petitions John Smith for instruction, review repeating began Smith (“the Transportation Safety National comply Board’s Upon with it. reaching an altitude of Board”) 5,200 request attorney feet, denial- of his a near miss alarm1 sounded in fees. We reverse the Board’s Chicago order. sounded, Center. After the alarm 1. A near miss when there occurs is less than aircraft. 1,000 feet, direction, between two or more and, 4,000 complied in what can be scend to feet and had contacted Smith with

Calhoun “unprofessional” and . charitably described as that order. language, what he “colorful” asked Smith findings bench, delivered from the doing him to maintain an and ordered (ALJ) judge administrative law determined feet. altitude *3 that Smith had received the instruction to investigated by The incident was Ward descend and therefore had not committed primarily Huston. Huston relied on state- any violations when he descended. FAA The by Zibolski and and a ments made Calhoun Board, appeal filed a notice of with the but tape tape recording of the manual side. A of it; subsequently, later withdrew Smith filed and, the radar side was filled with static attorney’s a motion for fees under 5 U.S.C. consequently, The manual side did useless. 504(a)(1) (1988). § granted The ALJ Smith’s alleged had not record the command Smith request, stating pertinent part in that by report been made Zibolski.2 Huston’s the fact I mere that did not believe the copy tape the manual were forward- and testimony ipso controllers’ not does facto Wood, who, reviewing to Thomas after the mean that the FAA’s decision to take ac- information, report response and solicited against. substantially [Smith] tion was not Upon receiving response, from Smith. However, justified. in taken combination license be Wood recommended Smith’s appearance tap- with the controllers’ in the suspended sixty days for his violations of incident, ing right room after the the fact (b) 91.75(a) (1987) (prohibit- §§ 14 C.F.R. & static, tape nothing that the was' but radar in- ing deviation from air traffic controller’s belligerent unprofessional and tenor of structions), (prohibiting § or 91.9 careless Mr. Calhoun’s communications with 61.3(c) aircraft), § operation reckless all lead to the obvious and ineluct- [Smith] (requiring pilots to have a current medical they trying able conclusion that were certificate).3 by constructing cover their a sce- tracks at the Both Huston and Wood testified point away nario that would from hearing. They that it administrative testified wrongdoing part giving on their extremely proceed in a such was rare to case 4,000 foot amended clearance. fact, tape; as this without the radar side 70-EAJA-SE-9242, Busey, slip No. Smith v. neither of them could recall such occasion. 1990) (Feb. (ALJ’s op. at 5 Initial Deci that, at the time he recom- Wood testified Granting Application sion and Order for At suspended, mended that Smith’s license be torney .Expenses). Fees and Other The tape not manual would he was aware the Board, appealed FAA this decision to the only if record the radar side’s transmissions granted appeal which and reversed the talking manual side was not on the radio. petitioned then for review in ALJ. Smith

Additionally, neither Huston nor was Wood this court. question aware that the sector was satu-

rated. Zibolski and Calhoun also testified II. DISCUSSION was instructed to de- and denied Smith prevailing party, was enti As a Smith addition, scend to feet. Zibolski attorney tled to an award of fees unless “the relieved, being he and testified after agency substantially justi position of the Calhoun went to the room where the record- special ... make an fied or circumstances ing equipment re- was located. The record 504(a)(1) (1988). unjust.” § award they U.S.C. explanation no as to did this. veals agency’s position was substan explained Whether Smith testified his defense and by tially justified examining had an instruction to de- is determined that he received tape. problem latter violation was included because 2. There was no with the manual 3. This renewing Therefore, days was two late in his medical Smith the fact that the command was not imposed No because of certificate. sanction 1) tape on the manual means either recorded violation, and the Board does not contend this 2) made or command was never Calhoun being prevents "pre- Smith from this violation communicating with someone at the time Zibol- 504(a)(1) § vailing party” required by as 5 U.S.C. ski ordered Smith to descend. charge plays no inclusion of this .The role in our decision. pres- inexplicable with static. The Id. was filled as a whole. record administrative ALJ, Board, great concern is a matter of and not ence of static of the The decision subject to our and Zibolski fact that Calhoun agency given decision is the final 504(a)(3), modify opportu- can first review, tape § and we room at their went to the id. only “the if we find evi- nity. there was no the Board’s decision The Board insists of fees and other an award failure to make this statement is tampering, but dence unsupported by substantial expenses ... was given there was meaningful particularly 504(c)(2). § Id. evidence.” any reason for the static-filled evidence of no investigators the FAA tape .and no indication (cid:127) supported position is government’s The to cause happened had tried to find out what “justified to a if it is evidence substantial peculiar a most occur- they knew to be what per: satisfy a reasonable degree that Moreover, was under rence. Underwood, *4 487 U.S. Pierce son.” v. FAA, not the management and control of the 2541, 2550, 490 565, 101 L.Ed.2d 108 S.Ct. words, pilot. govern “[t]he in other Stated that there is a reason ... show ment must the record as a whole After viewing alleged in the the facts in truth for able basis reasonability, the follow- through lens of a reasonable ba there exists pleadings; that 1) presented: ing combination of facts theory propounds; and it sis in law for inexplicably present, were biased witnesses reasonably support alleged will the facts that alone, designed to piece equipment with a of v. theory States legal advanced.” United 2) said, equip- exactly record what was 1481, Beef, 726 F.2d Boned Boxes of memory in the failed for the first time ment (10th Cir.), denied sub nom. Jar cert. 1487 3) FAA not inspectors, FAA did of the States, Feedlots, boe-Lackey Inc. v. United worthy conjunction of these events deem the 825, 105, 49 105 83 L.Ed.2d U.S. S.Ct. 469 Additionally, per- any investigation. (cited Pierce, (1984) approval in 487 with giving to the responsible for commands son at 2551 and Iowa 108 S.Ct. U.S. trainee, working a pilots was a who was Distrib., Labor Re Express Inc. v. National fact that the trainee sector. The saturated (8th Cir.), Bd., 739 F.2d 1308 lations highly working in sector is a saturated denied, 105 S.Ct. 469 U.S. cert. credibility, yet the to the controllers’ relevant (1984)). examining the L.Ed.2d 704 After. deciding responsible for what to do people record, not believe there was we do entire never knew the sector about the incident reasonably support evidence to substantial short, as a whole the record saturated. alleged by FAA in this case. the facts that, strong suspicion gives a as stat- rise to circumstances, it would most Under ALJ, “something ‘wrong in the agency to governmental for a reasonable be Smith, Denmark,’” No. 70-EAJA- state employees. rely of its on the statements SE-9242, 5.,5 slip op. at but the FAA chose to when, case, in this true even as This is simply facts and failed to dis- ignore certain in the outc employees have a vested interest Consequently, hold there is others. we cover However, in the case does not fit ome.4 this support to not substantial evidence Chicago category of “most circumstances.” that the FAA’s decision to Board’s decision designed spe device Center had solely on the statements of proceed based cifically record the conversations between to substantially justi- Zibolski and Calhoun was unique pilots. This case was controllers and fied. testify that, according the FAA officials hearing, no case of ing at the administrative III. CONCLUSION prosecuted type had ever been without this prose- that the FAA’s The Board’s decision recording being available as evidence. that justified substantially case was still, nobody cution of Stranger knows Hamlet, I, ("Something act sc. iv is rotten error to 5. See could have attributed the 4. The FAA (cid:127) Denmark.”). Presumably, pilot it or the controllers. either in the state of (and, particu- a controller is not favorable for lar, controller-in-training) blamed for a to be near-miss. charged responsibilities important not been with Because there has reversed. directly safety affect the and welfare of the the ALJ’s calculations were argument flawed, travelling public. conscientiously I adopt monetary figures and cannot her join holding. attorney’s fees in payment of Smith’s order $16,828.58 expenses in the the amount of respectfully I therefore dissent. $3,738.44, a total award of amount of $20,562.02. ARNOLD, Circuit

MORRIS SHEPPARD

Judge, dissenting. America, STATES of result, respect, in order to reach its UNITED With Plaintiff-Appellee, conspiracy from en the court constructs tirely equivocal facts and then faults the v. doing for not the same. Elec ELLIOTT, Defendant-Appellant. David fails, and, if it equipment even were

tronic No. 92-2434. experience humanity the common Appeals, United States Court of did, explanation of how it the court offers no Eighth Circuit. Mr. Zibolski and Mr. Calhoun could have *5 appear tape. on a possibly caused static to Nov. Submitted 1992. (If erased, nothing, not a is it contains May Decided 1993. static.) is, moreover, It a infer reasonable Rehearing Rehearing Banc En pre rarely prosecutions one sees ence that Denied June 1993. senting these of circumstances because kinds Appeal these kinds of circumstances themselves Motion to Dismiss are unusual. The court also finds it somehow Denied June 1993. suspicious that Mr. Zibolski and Mr. Calhoun

repaired to the room where the equipment immediately was located after the .

material events in But this behavior is issue

completely entirely consistent with an inno motive, namely,

cent evi desire secure support dence that will what one knows to be '

true. task, of'course,

It our to decide Calhoun,in

whether Mr. Zibolski and Mr. fact plan up

contrived a to cover their own errors. gov to decide is whether the

What have substantially justified

ernment in believ

ing they prosecuting did not and in Mr. today recognizes, As court

Smith. itself question

our whether “justified degree satisfy to a that could ” Underwood, person.

reasonable Pierce v. 552, 108 2541, 101 L.Ed.2d 490

487 U.S. S.Ct. today, in What the court holds es

sence, is that no reasonable fact-finder

conclude that Mr. Zibolski and Mr. Calhoun against

had not contrived case Mr. Smith.

It seems manifest to me that reasonable

persons question. could differ over that today

The result the court reaches

puts agency an unreasonable burden on an