Pilot Counsel:

True colors: The FAA and NTSB

March 1, 2008

AOPA’s General Counsel John S. Yodice began writing a column for AOPA Pilot in 1970.

So, you are proud and pleased that, after considerable effort and expense, you have successfully passed the tests for a pilot certificate or advanced rating. All of us remember those happy occasions. Fortunately, many of us did not have the experience of one pilot that turned his pride and pleasure into anger and resentment at the twin bureaucracies that combined to deprive him of his hard-earned commercial pilot certificate.

Our pilot was an innocent bystander of a dispute between the FAA and one of its designated pilot examiners (DPE). The FAA became suspicious that a particular DPE had conducted some incomplete practical examinations. The FAA ultimately terminated the DPE’s designation. But, because the FAA felt that there could be some uncertainty relating to the examinations conducted by this DPE before his termination, including the one administered to our pilot, the FAA advised our pilot that a reexamination of his qualifications was necessary. This came as an unpleasant surprise. He felt that he had already stood a complete examination by an FAA examiner in good standing at the time, and established his qualifications to hold a commercial pilot certificate. He conceded that the FAA has a right to request a checkride under appropriate circumstances, however he felt that the FAA’s justification in this case was insufficient.

The FAA would hear none of it. Since the pilot did not present himself for reexamination, the FAA exercised its extraordinary emergency power by issuing an order suspending his pilot certificate immediately, and until he completed the reexamination. By law, this power should have been exercised only if safety required the immediate effectiveness of the order. (In the ordinary non-emergency case, the filing of an appeal allows the pilot to continue to exercise the privileges of his/her certificate while the appeal is being considered.) The pilot was becoming more agitated. It escaped him as to how this matter could be contrived to be an emergency since the FAA had taken about a year to file anything. Nevertheless, he was grounded, immediately, and before he could appeal and put the FAA to its proof. The pilot duly complied with the order by surrendering his certificate to the FAA. He then appealed the FAA action to the NTSB requesting a hearing on the matter, as was his right.

The Federal Aviation Act guarantees to this pilot “an opportunity for a hearing.” So does the Administrative Procedure Act. The board, in the conduct of this appeal, never mentioned, much less discussed, these provisions. Rather the board combined with the FAA (well represented by expert counsel), to deprive the pilot of a hearing using technical procedural provisions against this pilot who decided to represent himself (without counsel).

It is necessary to understand what this unrepresented pilot was facing. Instead of allowing the hearing that is required by these acts, the FAA made a legally technical “motion for judgment on the pleadings or, in the alternative, for summary judgment.” These are procedures that are provided by the board’s rules of practice that are very similar to the rules that govern the procedures in the courts of law. According to the board, it strictly applies its procedural rules, and “lack of counsel does not excuse failure to follow rules.”

The FAA motion is applicable under the rules if there are no material issues of fact to be resolved at a hearing. In making the motion, the FAA was relying on another board rule that required the pilot to file an answer to the FAA’s allegations. The pilot, representing himself, objected to the FAA motions, saying that he did answer the FAA’s allegations, and he objected to the FAA’s assertion that there were no material facts to be presented at a hearing. The pilot asked to “simply have a hearing and get to the bottom of all of this.” A judge of the NTSB, to whom the case was assigned, over the pilot’s objection, granted the FAA motion. According to the judge, the pilot’s objection, although denying the FAA allegations, technically did “not rise to the level of” an answer. So, the result was no hearing, and a perfunctory approval of the FAA order of suspension.

An appeal of the law judge’s actions may be taken to the full five-member board. The pilot appealed. The board, in a long dissertation of how this unrepresented pilot failed to follow the technical rules, especially the requirement for a more formal answer, affirmed the judge’s grant of the motion. In his appeal documents the pilot prophetically asked, “is the NTSB only the rubber stamp of the FAA?”

The board, commenting without the same strictness, said: “We are not unmindful that, in the case before us, the [FAA] administrator filed the complaint on November 9, 2007, which was the Friday before a federal holiday on Monday, November 12, 2007. Therefore, the case manager in the Office of Administrative Law Judges was not able to send the docketing notice, stressing the importance of filing a timely answer and including additional instructions for filing an answer, until Tuesday, November 13, 2007. The case manager sent this letter via overnight mail, but respondent [the pilot] would not have received it until the next day, November 14, 2007, the day his answer was due.” Mutuality?

The FAA and NTSB, despite their many good people, regrettably bound into the bureaucratic technicalities, continue to display their true colors.

John S. Yodice