One of the basic rights we retain as citizens of the United States is the right to a fair and impartial trial before any penalty can be imposed. If the judge or jury rules in favor of either party, the loser has the right to appeal the verdict to an independent higher body, all the way to the Supreme Court. Imagine that right of appeal being changed so that if the prosecution wins, you must appeal to the prosecutor. Or worse yet, if you win, the prosecutor can appeal the verdict back to himself. This isn't fiction. These are the rules being examined right now by Congress in the controversial FAA Civil Penalties Assessment Demonstration Program.
There is not a pilot among us, yours truly included, who, while flying on instruments, distracted by tuning a radio or looking at a map, hasn't busted an altitude by a few hundred feet. It happens to us all, with or without highly sophisticated warning devices to prevent such an occurrence. In this very-innocent-sounding case, the FAA can charge you with a violation of the Federal Aviation Regulations, even though it might be a first-time, inadvertent action. The FAA can impose a fine — a civil penalty — for the violation, in spite of the fact that there was no accident involved or any compromise to safety. The fine could be up to $1,000 for each charge against you, and experience has shown that each incident usually involves two or more charges.
If you challenge the FAA's decision in a civil penalty case, current FAA enforcement procedures route your case through the Department of Transportation (the FAA's boss) and ultimately back to the FAA administrator. Therefore, the final decision will be made by the head of the FAA, the same agency that brought the case against you in the first place. Hence, the prosecutor — and judge — in the original trial becomes the jury for your appeal.
Here's the present status: AOPA wants to reform the demonstration program by transferring civil penalty appeals to the National Transportation Safety Board — the pilot community knows it as a respected and independent government agency. The FAA wants Congress to renew the program without any of the reforms advocated by AOPA and others in the aviation community.
The demonstration program ends July 31; Congress must act soon. Over the past few months, your association has been in direct communication with members of Congress on this issue. I've personally heard compromise positions from both politicians and the FAA. But after giving these alternative proposals considerable thought and discussion, AOPA must answer an emphatic no. The time for compromise has passed, and the program must be reformed.
Two years ago, key leaders in Congress asked AOPA to compromise, and we did. Part of the compromise was that the Administrative Conference of the United States (ACUS) would objectively review the program and offer a recommendation to Congress. That review is complete, and ACUS has recommended that pilot and flight engineer cases be transferred to the NTSB. Your association feels it is now incumbent upon Congress to follow this objective recommendation, especially because it ordered the ACUS study.
The objective review parallels AOPA's own position on the program. Throughout the debate on the civil penalties program, AOPA's consistent opinion has been that the adjudicatory functions should be transferred from the DOT to NTSB. Here's why:
Appeals from the FAA's decisions in certificate action cases come before NTSB administrative law judges. This has been the case for many years, and a well-established body of law has been developed by the NTSB. But appeals from FAA civil penalties decisions are currently routed through DOT and back to the FAA administrator. This makes no sense because there are now two administrative forums in which the FAA may bring enforcement cases against pilots — cases involving precisely the same factual issues and questions of law. Conflicts are unavoidable. So is the practice known by lawyers as "forum shopping," where an FAA enforcement attorney will bring his or her case in the forum where the most favorable result is likely — favorable for the FAA, of course.
Furthermore, the program as it is currently structured makes the FAA and DOT the prosecutor, judge, jury, and final decision-maker in administrative appeals of civil penalty cases. In contrast, the NTSB would serve as an objective forum for civil penalty appeals, with its established rules of procedure and a consistent body of law.
We strongly believe that the ACUS recommendations, ordered by Congress, should stand. Pilot and flight engineer cases should be transferred to the NTSB.
This is an issue where AOPA needs your direct help, and we need it now to reform FAA enforcement practices. A proposal to renew the existing, unfair program is currently before the House and Senate aviation subcommittees, and your elected representatives will soon be asked to vote on it — within days, in fact.
Please write to both of your U.S. senators and also the member of Congress who represents your district in the House of Representatives (if there is any question on the latter, call our D.C. office at 202/479-4050). Send your letters to: Representative [name], U.S. House of Representatives, Washington, D.C. 20515 and Senator [name], United States Senate, Washington, D.C. 20510. Tell them that the current program is unfair and that you want Congress to reform the Civil Penalty Demonstration Program by transferring appeals to the NTSB. Explain that as a pilot, you're not against strict FAA enforcement policies, but moving enforcement-decision appeals to the NTSB will help ensure that pilots subject to those policies will be treated fairly.
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