While the FAA is responsible for promulgating rules (e.g., the federal aviation regulations) and enforcing them, the NTSB acts as a neutral arbiter to provide pilots and other airmen with an ostensibly unbiased review of the FAA’s enforcement decisions. In the legal world, we call this type of arrangement a split enforcement scheme—and we should be thankful it exists. Most agencies operate under the unitary model whereby rulemaking, enforcement, and adjudicative powers are all the responsibility of a single agency.
While our split enforcement scheme allows the NTSB to review FAA enforcement decisions against airmen, the NTSB must accord a certain amount of deference to FAA interpretations of the FARs. For many years, the NTSB was required by statute to strictly defer to all validly adopted interpretations of laws and regulations and all written policy guidance relating to the sanctions to be imposed unless determined by the NTSB to be arbitrary, capricious, or otherwise not in accordance with the law. As you can imagine, it was rare for the NTSB to overrule an FAA interpretation because of this high standard—particularly regarding a sanction determination. Fortunately, the Pilot’s Bill of Rights, passed in 2012, struck this standard of strict deference from the statute and a new age dawned—or so we thought.
Prior to the Pilot’s Bill of Rights, the U.S. Supreme Court issued an opinion in Martin v. Occupational Safety and Health Review Commission and determined that, in a similar split enforcement scheme, the agency with adjudicative power must give deference to all consistent and reasonable interpretations of the enforcing agency’s rules. For less formal interpretations such as agency enforcement guidelines, something less than Martin’s consistent and reasonable standard applies.
The NTSB was quick to adopt the ruling in Martin, even reaffirming Martin after the Pilot’s Bill of Rights was made law, which effectively nullified any striking of the deference standard for FAA interpretations of the FARs. However, the NTSB adopted a new standard regarding the FAA’s reliance on its sanction guidelines whereby the NTSB could overturn an FAA sanction if the facts and circumstances adduced at the hearing, and considering all aggravating and mitigating factors, reveal that the FAA’s choice of sanction is unreasonable.
For example, in the case of a positive drug test of a mechanic who did not hold a medical certificate, the FAA attempted to revoke the airman’s mechanic certificate based on the FAA’s sanction policy, which indicates that performing a safety-sensitive function with a prohibited drug in your system is a single act generally warranting revocation. The NTSB, however, disagreed that revocation is warranted in every such circumstance. In this case, the NTSB considered as a mitigating factor the airman’s satisfactory completion of the return to duty process and reduced the sanction to a 180-day suspension. The NTSB, citing to the holding in Martin, explained it does not owe absolute deference to the FAA’s choice of sanction and may overturn unreasonable sanction determinations if warranted by the facts and circumstances.
Unfortunately, it appears the NTSB’s ability to review the FAA’s sanction determination was upended in a recent ruling from the U.S. Court of Appeals for the District of Columbia Circuit. In Pham v. NTSB, et. al, involving an airman who was charged by the FAA with refusing a required pre-employment drug test by leaving a testing facility without producing a sufficient specimen, a three-judge panel ruled that the NTSB must defer to the FAA’s choice of sanction in certificate enforcement actions (in this case, revocation) unless the sanction “is unwarranted in law or is without justification in fact.” In coming to this conclusion, the court inexplicably cited a Supreme Court case from 1946—predating both the holding in Martin and the Pilot’s Bill of Rights by more than 50 years.
While a petition for rehearing was pending at the time this article was written, it seems that the court of appeals just handed the FAA virtually unfettered authority to issue egregious sanctions for even minor FAR violations. After all, it would be difficult to show a sanction is unwarranted in law when the FAA has the statutory authority to amend, modify, suspend, or revoke any airman certificate if, in the FAA’s opinion, safety in air commerce or air transportation and the public interest requires that action. Similarly, proving a sanction is not justified in fact may be impossible if the FAA followed its written sanction policy, which is subject to change at the whim of the FAA.
In the case of a showdown between the FAA and the NTSB regarding sanction determinations, the FAA now has all the power.