General Aviation News, Oct. 2001

Atlantic Flyer, Oct. 2001

CAN YOU BEAT THE RAP?

Lawrence B. Smith

License suspension pending for a safety violation? Surprisingly, the Administrative Procedure Act (APA) provides two absolute defenses: (1) the FAA may not impose such a sanction unless "authorized by law," 5 USC 558(b); (2) it also must have a rule in the FARs that tells you that your license can be suspended for a safety violation. Should it fail to have one, you "may not ... be adversely affected by" the policy, 5 USC 552(a)(1).

Given that FAA has neither a law in the United States Code, nor rule in the Code of Federal Regulations (FARs) that hints they may take your license for a safety violation, why haven't legal challenges been successful? Because there are cases --but no statute -- that say FAA has authority for "disciplinary sanctions," i.e., certificate penalties. They are a crutch the courts can lean on if your lawsuit threatens FAA authority. They will focus on that, and ignore the lack of a rule even though you raised it. Not what I'd call the kind of judicial conduct we should be able to expect from our federal courts.

(To understand why those cases lack validity, read my law review article, "Emperor," on my Web site, faajustice.com.)

What's the problem? Without doing what I suggest, you'll run into two roadblocks: the NTSB, despite its members being sworn to uphold the Constitution, has said neither issue is its concern. No matter how clear the facts and law, the courts, because air safety is involved, as noted, will cite the cases referred to, and won't let you develop a record to show why they have no validity; nor will they even acknowledge the lack-of-rule issue.

So how do you get around the problem? Raise only the rule issue, do not make authority an issue, concede it if you must. Having authority, however, does not excuse an agency's failure to promulgate a rule. There's a clear statute for civil penalties -- been there since 1926 -- so why do FAA lawyers have a civil penalty rule but not one for license penalties?

To make your challenge, do two things: (1) In your NTSB hearing, file a motion to dismiss based solely on lack of a rule, no matter the stage of proceedings. That will protect your record for a petition for review to a court of appeals. (2) Most importantly, file a complaint in federal court for declaratory and injunctive relief on the single issue of lack of a rule. Ask it to declare the FAA in violation of the APA, and to issue a preliminary injunction prohibiting the Administrator from suspending your license until it renders its final decision.

The secret to success? When you file, ask the court to immediately allow depositions of FAA lawyers. Justice Dept. lawyers who handle the case in federal court will holler, but the courts will only rarely deny your right to do so, since otherwise you can't prepare for the hearing on the preliminary injunction. The FAA officials you depose will have to admit there's no rule, or make fools of themselves with double-talk. Even though lack of a rule is obvious in the FARs, use depositions. Such a formal record right out of the lawyers' mouths will lock the case up tight. There are other things that will assure success, but not enough space to explain them here.

With that kind of testimony the trial court will have a hard time doing other than ruling the FAA cannot take "adverse" action against you, as the APA mandates. Even though you didn't raise the authority issue, government lawyers will likely act as if you had and blow a lot of smoke about it. That's their usual ploy in order to provide the courts a way to sidestep the rule issue. Which is why getting the depositions is so important.

Take look at the "Marsh Statement" on faajustice.com. A veteran FAA lawyer, John Marsh is an expert's expert on enforcement. He admits under oath there's neither statute nor rule for license penalties; moreover, he admits the incredible fact that you only get a civil penalty and your right to jury trial if the FAA lawyer chooses to put your case on that track, rather than suspend your license.

Take his deposition first, and that of the new chief counsel. I predict that the minute you get permission to do so, FAA lawyers will offer to drop the case, if you'll drop your court action. They are scared to death of an adverse court decision that would reverberate throughout the aviation community.

It would be most unwise to settle. Once you have the depositions, you've won. Think about next time you get violated, if you did drop out, you'll wish you hadn't. And think of your fellow airmen, who'll benefit from the major precedent you'll set. More than 100,000 pilots have had their licenses suspended or revoked for violations, in spite of neither statute nor rule. Think about it.

Remember, the reason FAA lawyers haven't promulgated a rule is that it would open up the issue of authority, and they have neither the courage nor ability to try to explain why they do not have one. It would expose their decades long coverup. In fact there was an rule from 1926 to 1939. How would they explain that? Its disappearance in 1940 was a major step in that coverup. Read about that, and more, in Emperor.

Mr. Smith may be reached at: lbsmithaty@aol.com (preferable); or 520/326-0283.

* * * * *