AOPA urges stronger appeals protections

January 2, 2013

The NTSB’s rulemaking to implement the new Pilot’s Bill of Rights doesn’t go as far as the PBR intends in protecting pilots’ rights, AOPA wrote in response to the rule Dec. 17.

The Pilot’s Bill of Rights, enacted in 2012, is intended to make enforcement actions and appeals fairer to pilots, among other protections such as reviews of the notam system and medical certification. However, the NTSB procedural and evidence rules published Oct. 16, AOPA wrote, don’t change much for pilots appealing an FAA enforcement action to the NTSB.

The NTSB’s rule, which took effect immediately, tries to address the Pilot’s Bill of Rights’ requirement to conduct appeal proceedings “to the extent practicable” in accordance with the Federal Rules of Civil Procedure and Federal Rules of Evidence that apply in federal courts. Using these rules is supposed to level the playing field for private attorneys, who are often unfamiliar with the less formal appeals process that has previously been used when the FAA suspends, revokes, or denies a pilot or medical certificate. AOPA has argued that the less restrictive administrative rules that have been used for evidence and procedure favor FAA attorneys, who routinely practice before the NTSB.

In comments to the general counsel of the board, AOPA counsel Kathy Yodice said the NTSB’s take on evidence runs counter to the language and intent of the law. “It is clear that the intent of the PBR (Pilot’s Bill of Rights) is to change the Board’s former rules on evidence, otherwise the legislation and the change are meaningless,” she wrote. The NTSB’s application of the Pilot’s Bill of Rights subordinates the rules that apply to federal courts by applying them only when they are inconsistent with the very general requirements of the Administrative Procedures Act, she said. In AOPA’s experience, the NTSB has generally accepted virtually all evidence, she said; the NTSB’s application of the Pilot’s Bill of Rights could be interpreted to essentially change nothing in the way evidence is handled in NTSB hearings.