In late 1979, for a number of reasons, the income from my work with racehorses was running so low I had to find work, at least for a while, and confine my entrepreneurial efforts to evenings and weekends. One of the places I turned to was the United States General Accounting Office, an arm of Congress. I did so because the Comptroller General, Elmer Staats, as a young man, had gotten his first job in government, at the Bureau of the Budget, thanks to my father. And he opened the door.
Fortuitously, it turned out the GAO-FAA office had just initiated a look at the agency's enforcement program. They read my unfinished 700-page manuscript for a book about the utterly stupid, unfair cases against airmen I'd seen while working at the FAA in 1967-68 in the General Counsel's branch that had oversight over the entire enforcement program. Based on that they figured I might make a contribution, so I was hired as a six-months consultant. (The limit for any such contract.)
One of the first things I did was read 14 CFR part 13, which contains the agency's enforcement rules. It suddenly struck me there was nothing there, especially in FAR § 13.19, the suspension-revocation rule, which even hinted that certificate action could be used as a penalty for the violation of a safety rule. (It mentions only reinspection of aircraft and reexamination of airmen, obviously qualifications matters, nothing about penalties.) Why the lack of a rule didn't command my attention when I was working there, I don't know. I was certainly aware there was neither statute, nor legislative history to back up license penalties.
The only reason I can advance for this is that most lawyers in the hinterland with a general practice, especially back in the early 1960s, did not get involved in federal regulatory matters, and states had not yet begun the proliferation of agencies which led them to adopt their own administrative procedure acts.
So I immediately called Jeff Lubbers, head of research at the Administrative Conference of the United States, a tiny outfit that advised Congress and agencies about administrative law problems. (ACUS was Gingriched back in mid-90s.) This was due to another fortuitous circumstance: I'd met Jeff in 1979 when I learned a law classmate had been appointed ACUS chairman. I'd gone to see him about the FAA situation and thus met Jeff.) So I asked him to cite some cases which held that an accused had a due process right to know how he was going to be punished, if charged and found guilty.
Jeff said, Don't bother with that, read the Administrative Procedure Act! So I immediately left the 5th floor GAO office, in FAA headquarters, went up to the law library on the 9th; dug out the law books and started reading. And kicked myself for not having been aware of the APA back when I worked there. I gave that act and the cases annotated to it a thorough review, and realized this was where the FAA enforcement program was vulnerable. Or should have been, as I learned over the years - a later story.
As a result of my research, I prepared a detailed memorandum on the APA and the lack of any statute or rule concerning punitive administrative license penalties. Separately, I prepared the letter and memorandum with questions for the FAA Chief Counsel that follows. That office made no response. Several FAA lawyers, however, did come to a meeting with myself and two GAO officials. But they dodged any serious explanation of the questions the memo posed. Heading the group was Jonathan Howe, Deputy Chief Counsel (highest legal position a lawyer can reach within the FAA, the Chief is always a political appointee), Ed Faberman, Assistant Chief Counsel for Regulations and Enforcement, John Cassady, chief of the enforcement proceedings branch (who thereafter worked his way up to Deputy Chief Counsel for several years), and possibly one other.
I did accomplish one thing: With aforethought, I opened the meeting, looked Howe in the eye, and asked him: "Jonathan, how do you justify this important regulatory agency not having a rule that warns pilots and mechanics they can have their license suspended or revoked for the violation of a safety rule?" I'll never forget his reply: "Oh! Everyone knows how the system works, anyway!" This, fellow airmen, is the kind of lawyer who controls your fate at the FAA. And, as you'll learn from this website, a key reason why FAA and Justice Department lawyers have worked so hard to thwart my taking the depositions of FAA lawyers, present and past. They cannot possibly stand up to cross-examination by any lawyer who knows the system. (How else can a lawyer place in a court record an explanation of how the license penalty system works, when there is nothing in any official federal publication that explains it, without asking those who run it?) It also underscores the importance of the John Marsh Jr. statement you'll see, where he confirms there's no rule, there' no statute.
As you'll also learn, Howe's failure to respond to the memo was just more facet in a coverup of the lack of FAA authority for license penalties, a coverup that has been going on since 1926 -- three-quarters of a century!
The GAO never followed up, and dropped the project. The main reason was that Tom Reese had the majority counsel for the House Aviation Subcommittee come over and discuss enforcement with him. I wasn't told of the meeting until after it had taken place. That lawyer just spouted the three cases that were on the books saying the FAA had authority because of the vague language about public interest and air safety contained in the Federal Aviation Act of 1958, section 609. Those cases, of course, are based on a fundamental error of fact, which renders them invalid, if only for that reason. Since I wasn't invited to the meeting, I couldn't pin him down on the Administrative Procedure Act. Moreover, any lawyer who believes that Congress would authorize draconian penalties like license suspension, and do it through vague language about public interest and air safety, is tragically deficient in his or her knowledge of the law and how government works.
This experience at GAO, and seeing how difficult it was to get anyone to come to grips with the simple legal propositions involved, is what led me to write my law review article, Emperor. It follows this section, and is a must read.
(Facsimile)
UNITED STATES GENERAL ACCOUNTING OFFICE
WASHINGTON, D.C. 20548
COMMUNITY AND ECONOMIC
DEVELOPMENT DIVISION JUNE 6, 1980
Mr. Clark Onstad
Chief Counsel
Federal Aviation Administration
Washington, D.C.
Dear Mr. Onstad:
As an aid to the study we are conducting of FAA enforcement, early
this year we hired Lawrence Smith as a consultant to do a
legal/practical analysis of that system.. We are now at a point with his
review where it would be helpful to talk to you and key members of
your staff connected with enforcement. We have in mind Mssrs.
Faberman, Marsh, and Cassady. We'd like to meet the last week of
this month.
Mr. Smith has raised fundamental questions about the Agency's
statutory authority for the certificate portion of its enforcement
program, the manner in which it is conducted, and whether the
Agency is following the mandates of the Administrative Procedure
Act. So if your schedule does not permit you to meet with us, perhaps
we can count on Mr. Howe. For your information enclosed is a list,
prepared by Mr. Smith, of the major topics and questions we would
like to discuss.
Present at the meeting, besides Mr. Smith, will be Gregg Fisher of
my staff and Geraldine Rubar of the GAO's Office of General
Counsel. We will call your office to firm up a date and time.
Sincerely yours,
s/Thomas D. Reese
Group Director
Enclosure
UNITED STATES GOVERNMENT GENERAL ACCOUNTING OFFICE
Memorandum
TO : Thomas D. Reese, Group Director, CED/AVIA JUN 8 1980
FROM: Lawrence B. Smith, Legal consultant
SUBJECT: Proposed meeting with FAA Chief Counsel
In any meeting with Mr. Onstad and his staff regarding FAA enforcement, I suggest we cover the following topics and questions:
1. Why does the FAA not provide a booklet to airmen that explains in layman language how the enforcement system works?
2. How the system works, giving particular attention to the dichotomy inherent in the use of Sec. 609, qualifications/punishment; discretion in selecting both the type and amount of punishment; discretion in switching from one type of sanction to another. (In 1951, CAA General Counsel R.E. Elwell ordered that switching from a certificate action to a civil penalty be done only in "unusual circumstances" after a "complete report of the facts" to and approval by Washington because of "unfavorable public reaction" and "the withdrawal of one remedy to pursue another is criticized as 'black jacking."' A survey of the public docket indicates switching is the rule now rather than the exception. Why is it any less "black jacking" today than 30 years ago? Manual of Procedure, p.65, 1951.)
3. The roadblock that U.S. Attorneys seem to create for civil penalties and what might be done about it.
4. Is there a legal reason why the agency cannot put a civil penalty on an airman's record for future consideration?
5. Is there a legal reason why the agency cannot direct an airman to undertake specific training in lieu of being retested or reexamined?
6. What are the legal/policy reasons against using a system of citations and fixed money penalties (which could immediately be paid like forfeiture of collateral) against individual airmen?
7. How will the new laundry list solve the chronic and perpetual problem of lack of uniformity in sanctions?
9. What prevents the agency from setting penalties on the high side in order to leave room for compromise?
10. The agency is openly critical of NTSB ALJ's for reducing penalties, but what does the agency do to apprise the Board of the penalties it metes out and which are not appealed?
11. Is there any information system on this between regions?
12. What is the FAA's statutory basis for suspending or revoking an airman's certificate as punishment for violation of a safety regulation?
13. Put it another way: If one were to give a copy of the FAA Act of '58 to a class of first year law students and ask, what would they reply is the method Congress prescribed for punishing airmen who violate safety regulations?
14. The counterpart question is: What language in either the Act or the Federal Aviation Regulations tells the airman his license is at risk for a violation of a regulation?
15. Sec. 901 commands in razor sharp language that "Any person who violates a safety regulation shall be subject to a civil penalty." Note, this does not say "some" persons, it does not say "might be," "may be," or "can be" subject to a civil penalty, yet this is precisely the way the agency interprets that section. Why?
16. Sec. 903 provides that the airman, if he wants a trial of the violation charges against him, may "demand trial by jury of any issue of fact." It is entirely within the discretion of FAA regional counsel, subject only to general guidelines and coordination with Flight Standards, to choose whether to send a violation case down the certificate track of administrative justice with a Notice of Proposed Certificate Action, or to send it down the 901-903 civil penalty track of judicial justice with a civil penalty letter. So when the FAA lawyer sends the case down the certificate track the practical effect of that decision is to deny the airman the opportunity of ever "demanding" a jury trial. Is this, or is it not, a correct interpretation of the facts?
The Administrative Procedure Act requires that each agency publish in the Federal Register, rules of procedure, substantive rules of general applicability, statements of general policy or interpretations of general applicability. If the matter is substantive it should be adopted as a rule in accordance with formal procedures. FAA ORDER 2100.13, FAA RULEMAKING POLICIES, Sec.33.b.3., provides:
The Office of the Chief Counsel is responsible for: . . . Reviewing internal directives and advisory circulars to assure they are neither used for nor have the effect of regulations and are consistent with the regulations.
So the questions as to each of the following is: Why is the matter or procedure not substantive (and therefore not required to be made into a rule)? And, if not a rule, why should it not be published in the Federal Register as a statement of general policy or interpretation of general applicability?
18. The FAA has no rule that tells an airman he can have a certificate suspended or revoked because of a violation of the FAR's, yet this is the greater part of the enforcement program.
19. In setting the size of a penalty for an offense the FAA lawyer will consider prior violations and possibly increase it over what it otherwise would have been; he will seek revocation, in his judgment, if the airman, because of his violation history, shows he lacks a "compliance disposition" and therefore the qualifications to hold his certificate. This is an ad hoc point system. There is no rule on what a compliance disposition is nor one that warns an airman that prior violations can be used against him. At one time the FAA started a project to write a rule about a compliance disposition but dropped it.
20. The FAA will order revocation as punishment for "serious" violations yet NTSB policy is that the Board will revoke only for a lack of qualifications. Since the Board itself has published no rule on this, but relies only on case precedent, the airman is left in the dark and
21. The FAA has no rules for the use of its emergency power, yet the lawyers' handbook lays out criteria and standards for it use, admonishes that it not be used for punitive purposes, meaning that perhaps it has and certainly could well be. Why should these matters not be in rules so that the public can protect itself from possible abuse?
22. Since the agency exercises complete discretion over which track, administrative/certificate, judicial/civil penalty, it will place an enforcement action on, why is the public not entitled to know that such discretion exists, what the standards are for selection, and why one man is punished with a civil penalty, the other with a certificate action?
23. The FAA lawyer has discretion to switch from one form of sanction to the other, yet the public is not told this option exists nor what the standards are for doing it. Why not?
24. The FAA says a civil penalty and certificate action will normally not be imposed for the same violation? Why is this not a rule? What is the statutory authority for imposing both?