Pilot Counsel:

NTSB: An impartial forum for pilots?

August 3, 2009

Under the Federal Aviation Act, the National Transportation Safety Board functions as a court of appeals for pilots when the FAA has suspended or revoked a pilot or medical certificate. In our increasingly complex airspace system and the more intensive regulation of our flying activities, no pilot is immune. This appellate function is given to the NTSB because it is independent of the FAA, and presumably able to provide a fair and impartial forum for the hearing of such appeals. Under the Act, an appealing pilot is entitled to “an opportunity for a hearing.” It also provides that an FAA order of suspension or revocation must be reversed if the NTSB finds after a hearing that “safety in air commerce or air transportation and the public interest do not require affirmation of the order.”

Decisions of the current NTSB cause us to question its fairness and impartiality in pilot appeals. Many of these decisions have been reported in this column, one as recently as last month ( “Pilot Counsel: No ‘Statute of Limitations,’” July AOPA Pilot). Here is another case that raises doubts.

The FAA ordered the suspension of a private pilot’s certificate for 30 days for piloting a Piper Cherokee 140 into the Washington, D.C., Air Defense Identification Zone (now the “Special Flight Rules Area”). The FAA said that the pilot failed to comply with the special security procedures of the relevant notam, and was “careless or reckless” in the operation. The pilot appealed the order of suspension to the NTSB. He filed an answer to the FAA’s order admitting the inadvertent incursion, but defending that “the special procedures required pursuant to FDC notam 7/0206 are unique, complex, and ambiguous.” (To prove the pilot’s point, although it never came up in the case, there have been thousands of such inadvertent incursions, as opposed to very few, if any, intentional ones.) He also adamantly denied that he was “careless or reckless” in his operation.

The result of the appeal to the NTSB was that the pilot was denied a hearing to contest the FAA charges; he was denied a waiver of the suspension even though he timely filed a report with NASA under the Aviation Safety Reporting Program ( “Pilot Counsel: ASRP,” June AOPA Pilot); and he wound up with a “careless or reckless” violation on his public FAA airman record.

This result was achieved by a series of procedural, regulatory, and policy interpretations by the NTSB, all one-sided. To start with, the NTSB has a procedural rule allowing summary judgment, i.e., no hearing, if there are no factual issues to be heard. (In my experience the only party routinely granted summary judgment is the FAA, never the pilot.) Based on the pilot’s admission that he inadvertently entered the ADIZ, the FAA moved for summary judgment, and the board granted the motion. What the FAA and the board ignored in denying a hearing were the three issues raised by the pilot: one, that he was not “careless or reckless;” two, that “the special procedures required pursuant to FDC notam 7/0206 are unique, complex, and ambiguous;” and three, that he was entitled to a waiver under ASRP.

The FAA has a catchall regulation, FAR 91.13(a), that provides: “No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.” In a one-sided interpretation, the NTSB has written out of the rule the required element of proof that life or property has been endangered. The pilot was never afforded the opportunity to prove that there was no danger to anyone or anything. In another one-sided interpretation of the same rule, the board held that the “careless or reckless” part of the charge is merely “residual” to the ADIZ incursion charge and therefore does not warrant a hearing.

The board rejected, without serious discussion, the pilot’s defense that the security procedures are unique, complex, and ambiguous. Apparently the board could not bring itself to acknowledge that there could be something wrong with a rule that is unintentionally violated by thousands of otherwise law-abiding and safety-conscious pilots.

The pilot timely filed a report with NASA under ASRP that should have entitled him to a waiver of the 30-day suspension. Most pilots charged with inadvertent incursions have been granted waivers. The board, although conceding that the pilot raised this issue in his reply to the FAA’s motion for summary judgment, denied that this was an issue for hearing because, technically, the pilot did not raise it in his answer. Merely raising it in a different pleading filed with the board was not sufficient.

Notice that every one of these issues, without exception, went against the pilot and in favor of the FAA, all without granting the pilot the hearing, which the Act contemplates, to put on his side of the case. This case would not be so remarkable if it stood alone, and not in context with the many other cases we have seen, many of which we have reported, in which the NTSB one-sidedly seems to favor the FAA and disfavor pilots.

The pilot was never afforded the opportunity to prove that there was no danger to anyone or anything.

John S. Yodice has served as legal counsel for AOPA for more than 40 years.

John S. Yodice