April 1, 2003
By John S. Yodice
This case is unusual and interesting to pilots for several reasons. First and foremost, it gives us an opportunity to look at an unusual law that mandates a lifetime revocation of a pilot's FAA certificate for certain drug offenses.
Second, it shows us how the law was applied in a pretty interesting case. It also has an unusual procedural quirk because the National Transportation Safety Board deadlocked on the appeal of the case. Lastly we talk about a different case in which the FAA refused the request of the governor of Oklahoma to waive a lifetime revocation.
We don't see many lifetime revocations of a pilot's FAA certificate. Often when the FAA revokes an airman certificate, regulations allow the pilot to reapply for the certificate and ratings as early as one year after the revocation. This law is different. It doesn't allow the FAA that discretion, except in one narrow instance.
The statute is complicated and not easy to paraphrase. As much as I hate to impose "legalese" on you, in this instance I need to do it. I will quote the relevant parts of the statute. It has two parts that are very similar. One deals with conviction of a drug offense, and the other part applies whether there is a conviction or not.
Here is the "conviction" part: "The administrator of the FAA shall issue an order revoking an airman certificate ... after an individual is convicted, under a law of the United States or a state related to a controlled substance (except a law related to simple possession of a controlled substance), of an offense punishable by death or imprisonment for more than one year if the administrator finds that (a) an aircraft was used to commit, or facilitate the commission of, the offense; and (b) the individual served as an airman, or was on the aircraft, in connection with committing, or facilitating the commission of, the offense."
The second part is similar but doesn't need a conviction: "The administrator shall issue an order revoking an airman certificate issued an individual ... if the administrator finds that (a) the individual knowingly carried out an activity punishable, under a law of the United States or a state related to a controlled substance (except a law related to simple possession of a controlled substance), by death or imprisonment for more than one year; (b) an aircraft was used to carry out or facilitate the activity; and (c) the individual served as an airman, or was on the aircraft, in connection with carrying out, or facilitating the carrying out of, the activity."
A couple of things to note. Simple possession of an illegal drug does not trigger the lifetime revocation. Another thing, a criminal conviction is not necessary to trigger the statute. And, the statute requires some aircraft involvement, though, as we will see, it doesn't need to be much. Lastly, remember that there are other FARs dealing with drugs that don't carry a lifetime revocation but still could lead to the more conventional certificate revocation or suspension. For example, FAR 91.19(a) that prohibits carrying illegal drugs on board an aircraft.
The narrow instance that I mentioned earlier, in which the FAA does have some discretion, is if a law enforcement official asks the FAA to waive the lifetime revocation, and the FAA decides that the waiver will facilitate law enforcement efforts.
That's the lifetime certificate revocation law.
Here is a 2002 case that involved a pilot with a major airline who was charged by the FAA with violating the statute. The only aircraft involvement is that the pilot flew as a passenger on Northwest Airlines to Japan. In clearing Japanese customs, he was searched. Customs found six "Ecstasy" tablets in a film canister in his pants pocket. Based on this evidence he was prosecuted and convicted of violating the Japanese drug laws. He was sentenced (what the sentence was is not stated in the report of the case), but his sentence was suspended and he was deported to the United States. He did spend 48 days in Japanese solitary confinement.
Based on this conviction, the FAA then revoked all of his FAA certificates and ratings for violation of the statute. This included his airline transport pilot certificate, flight instructor certificate, flight engineer certificate, and his first class airman certificate. He appealed the lifetime revocations to the NTSB. There was a trial-type hearing before an administrative law judge of the NTSB. The judge sustained the violation. However, the law judge reduced the sanction from permanent revocation to a revocation of 18 months — over the objection of the FAA that the law judge lacked the authority to do so. No doubt the law judge took into account these mitigating factors: No prior offenses and an absolutely clean and exemplary record. The pilot admitted a serious lapse of judgment. That lapse was in consenting to his girlfriend's request to bring her some Ecstasy pills (the law judge called it "an extremely small quantity"). I would guess that is why this was not a simple possession case, but rather one of intent to distribute, which the law judge said was "a bit of a stretch." Nevertheless, he intended to bring the pills to his girlfriend. The judge also considered that while the Ecstasy tablets were a controlled substance, they were a nonnarcotic controlled substance. The judge considered that the lifetime revocation was based on a foreign conviction, making it a case of first impression. All in all, the judge thought an 18-month revocation was an appropriate sanction.
Both the FAA and the pilot were dissatisfied with the judge's decision. They both appealed to the full board.
Here is the procedural quirk. On appeal to the full board, it deadlocked. The board usually consists of five members appointed by the president and confirmed by the United States Senate. Only four members were available to decide this case. The words of the board's decision describe the quirk best. "On consideration of the issues presented in the parties' briefs, the board finds itself unable to reach a majority decision on either appeal. The initial decision [of the law judge] will thus become the law of the case, without binding effect on the board in future proceedings." A very unusual procedural result.
I earlier said that the FAA administrator has the authority to waive the lifetime revocation requirement if so requested by a law enforcement officer, and if the waiver will facilitate law enforcement efforts. Another actual case illustrates this waiver authority. An airman was convicted of the crime of conspiracy to import a controlled substance, based on his guilty plea. The conspiracy involved the use of an aircraft. The FAA issued an order revoking his airman certificate. The governor of Oklahoma sent a letter to the FAA administrator asking that the certificate not be revoked. The governor said that the airman was from a family that he knew and respected, that the airman had been gainfully employed as a pilot for a medical flight service for the past three years, and that the airman had no criminal record or public safety violations during the past three years. The letter continued that the governor would be grateful if the lifetime revocation requirement was waived, as allowed in the statute. According to the FAA administrator, the letter did not address law enforcement matters, the second prong of the waiver provision. The FAA administrator refused. On appeal to the NTSB, in a 1992 case, the board ruled that it did not have jurisdiction to review the administrator's waiver authority.
In summary, then, we have an unusual but important statute, two interesting actual cases interpreting it, and a very unusual deadlock of the National Transportation Safety Board.
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