Fairness to pilots sought in FAA's enforcement process
AOPA is studying the National Transportation Safety Board’s proposed changes to its rules for how it conducts reviews of FAA orders grounding a pilot or seeking to impose a fine. Congress established the NTSB as an appeals court in such cases. The association will submit formal comments by April 9 on the rulemaking that could affect any pilot accused of violating a regulation.
AOPA, in the administration of the AOPA Legal Services Plan providing representation to hundreds of pilots, has found that the NTSB processes have not been as fair to pilots as they could be or as Congress intended. AOPA supports changes to the rules that make the process fairer. The association's efforts focus particularly on the common FAA practice of invoking emergency authority to ground a pilot immediately, before he or she has had a chance to defend against the FAA action.
In response to the aviation community concerns, in December 2010 the NTSB sought public comments through an advance notice of proposed rulemaking (ANPRM) on changing the Rules of Practice in Air Safety Proceedings and Implementing the Equal Access to Justice Act (EAJA) of 1980. Three main reasons for undertaking the action, it said, were to respond to parties' suggestions for changing the rules, to update outdated rules; and to accommodate prospective electronic filing and document availability.
AOPA, in comments submitted in February 2011, responded to a particular concern that under current rules, the NTSB, in reviewing the FAA's emergency determination, immediately grounding a pilot, must assume the truth of the FAA's allegations, which makes it virtually impossible to reverse the immediate grounding.
Under those rules, the FAA wins nearly 100 percent of the emergency challenges. AOPA wants the NTSB to get rid of the assumption and leave it up to an NTSB law judge to determine the legitimacy of the FAA's immediate grounding after hearing relevant arguments from the parties. “No presumption of a pilot’s guilt is either mandated or suggested in the intent of the statute that establishes NTSB review of such FAA determinations,” wrote AOPA Counsel Kathleen A. Yodice in AOPA’s response to the ANPRM. The 2012 NPRM does not propose changing that assumption, but it makes clear that the judge may consider additional evidence provided by the pilot.
AOPA also urged that the revised rules include a requirement for the FAA to make the results of its enforcement investigation available to a pilot at the time that the FAA gives notice that it intends to bring an enforcement action against a pilot so that the pilot can understand the charges being made against him or her and be able to appropriately respond. The NPRM takes these comments into account and proposes requiring the FAA to provide a copy of the evidence on which an emergency order is based at the time the order is served. Revised rules should also broaden pilots’ ability to recover certain fees and expenses incurred in successfully defending against enforcement actions, AOPA said, along with other suggestions.
February 16, 2012