FAA BLACKJACK

Comment -- After my stint in 1980 at GAO this was my first published article in an aviation journal. It highlights one of the great conundrums in FAA enforcement, one that underscores the program's illegitimacy: Against the pilot who is flying on a revoked license FAA can only bring a civil penalty action since he has no license to revoke, thus guaranteeing him his right to jury trial. (Since 1992, no longer true up to $50,000, but the NTSB hearing program itself raises serious constitutional issues.) On the other hand, had he a valid license FAA would usually go against that, providing only an NTSB administrative hearing, which deprives him of his right to jury where he would suffer only a money fine. A stiff fine might hurt, but it wouldn't cost him his job or wreck his career as license penalties often do. In conjunction with Blackjack be sure to read pages 78-82 of Emperor, with close attention to the footnotes.

FAA BLACKJACK

Lawrence B. Smith

Comm/Multi/Instr/CFI

Attorney

DCA (Washington DC)

Blackjack your passion? Might surprise you to learn that you don't have to visit Las Vegas or Atlantic City to indulge in a game of chance by that name. Just jump in you airplane, buzz off into the wild blue, and violate a Federal Aviation Regulation. Then you get to play the FAA version of blackjack. You won't find the rules according to Hoyle, and they play with a stacked deck.

LAST SUMMER FAA headquarters gave birth to a new enforcement handbook supposedly reflecting then Administrator Langhorne Bond's "get tough" policies. It made no real changes of substance, however, over previous editions and still contained a section labeled "Shift in Sanctions." That's where you can learn about FAA blackjack, although like so many FAA enforcement policies, it's not what's in print that gets you, but what is not.

FAA has two distinct forms of punishment it can inflict on those it finds in violation of safety regulations: certificate action, either suspension or revocation, or a civil money penalty. To pursue either of these, the Feds must follow two completely separate paths of justice, one administrative (certificate action), the other judicial (civil suit).

If the FAA is after your certificate, they'll first send you a "Notice of Proposed Certificate Action" in the mail. After you've had a chance to tell the FAA lawyer your side of the story, and if he doesn't withdraw the charges, he will follow that with an order that specifies the number of days your certificate will be suspended. This you may appeal to NTSB, where you'll get a trial before an Administrative Law Judge (ALJ). He can affirm the FAA order, reduce the penalty, or find you not guilty. Either side can appeal his decision to the full five-member Board; from there only the airman can appeal to a US Circuit Court of Appeals. The legal limit of a suspension or revocation is one year.

When the FAA wants to impose a civil penalty they'll start with a letter also. In it the Administrator's lawyer will tell you how much he thinks the fine ought to be. By law the Administrator can compromise civil penalties and is limited to $1000 per violation. If you can't bargain to a lower figure, or you refuse to pay at all, the FAA must turn the case over to a US Attorney who, if he feels like it (and often times he doesn't), will file a civil suit against you in Federal District Court. There, if you want, you can "demand" a jury trial.

The choice of which path to follow, certificate action or civil penalty, is entirely within FAA's discretion. This exercise of discretion is the root of the game I call FAA blackjack.

If the ALJ finds you deserve to be punished, he has no authority to do other than suspend or revoke your license. If you're found guilty in federal court, the judge may impose a money fine only. Unlike regular traffic and criminal courts, where the judge has a panoply of options such as fine, jail, traffic school, probation or community service, neither of these judges can substitute one form of penalty for the other. And there's the rub.

Only the FAA can do that. It claims authority for certificate actions from Section 609 of the Federal Aviation Act of 1958; civil penalties from Section 901. But nothing in the act addresses the problem of having two separate kinds of sanctions or empowers the FAA to switch from one to the other.

If a suspension will work a hardship on you--and FAA hands out 30, 60, 90 and 120 day suspensions like water-- because you need to fly an airplane for your business, or you're a professional pilot and will suffer an inordinate loss of income, how do you get your suspension shifted to a money fine?

Cry a lot. Act sincere. And hope the FAA lawyer doesn't have a headache, for he's the only one that can do it.

Seem strange? You bet. It means the lawyer who institutes and prosecutes the case has more power than the judge that tries it.

"But why," you ask, "would Congress authorize a bureaucrat to have more power than the judge?" Good question.

Case study

TAKE THE case of Harry Faulkner, an Alaskan bush pilot charged with overloading his Cessna with too many people on an air taxi departure from Bethel AK. An accident occurred during the flight, and Alaska regional counsel Don Boberick ordered Faulkner's commercial ticket suspended for 60 days.

Later Boberick wrote Faulkner to acknowledge "receipt of your money order . . . in the amount of $1000, submitted by you as an offer in compromise of your alleged violations . . . [It] is hereby accepted in full settlement of the penalties which you may have incurred under Section 901(a) . . . [The] Order of Suspension . .. has been withdrawn effective this date." Note this statutory shell game: Faulkner was originally charged with a Section 609 violation, suddenly it became a Section 901 case.

Boberick, in his order of withdrawal, told why he let Faulkner switch to a civil penalty: ". . . your attorney of record advised that a 60 day suspension of your Commercial Pilot Certificate would render an air taxi business owned and operated by you insolvent."

Note the hypocrisy here: Faulkner did not offer to compromise, the FAA lawyer put his price on the case, and it was take it or leave it. He held all the cards and dealt, and the suspension was withdrawn only when he had Faukner's money in hand.

And it matters not that Faukner may well have deserved a stiff penalty. The FAA alleged he was 150 Ibs overweight, though not out of balance, and carrying two more passengers than he had seat belts for. It was not claimed this caused or contributed to the accident, which took place two miles from the airport, but those passengers were by law entitled to a safety belt in case of just such an occurrence.

Congress intended that the airman in the civil penalty compromise process have some bargaining power--the government is usually reluctant to spend time trying a case it can reasonably settle, or risk losing a weak one. But by holding the threat of a suspension over Faulkner's head, Boberick left him with little to bargain with, even though under American justice one is presumed innocent until proven guilty.

Which brings up an interesting question, one the FAA will never be able to give you a straight answer to: Section 903 provides that the person subject to a civil penalty may demand trial by jury. Boberick could just as easily started Faulkner's case off as a civil penalty; that would then have guaranteed his right to jury trial. By deciding to take the suspension/revocation path Boberick effectively blocked Faulkner's statutory right (if not constitutional) to demand a jury trial. Yet we find Boberick later allowing him to pay a money penalty, as if it had been a civil case all along. What happened to his right to jury trial?

Previous policy

IN A 1951 directive, R E Elwell, general counsel for the Civil Aeronautics Administration (FAA's precursor) instructed his lawyers that they could not switch penalties without permission from Washington. He pointed out "there has been unfavorable public reaction to the few instances in which the Civil Aeronautics Administration has taken such action . . . the withdrawal of one remedy to pursue another is criticized.... The only way to assure the public of [our] good faith is to treat the sending of a letter . . . as an election to pursue that remedy and that remedy only." Elwell conceded that "under unusual circumstances" it might be necessary to deviate from this policy.

FAA's enforcement handbook reiterates this, leading one to believe that such penalty switches are used sparingly today. "Ordinarily," it says, "it will not be FAA policy to withdraw one remedy . . . to pursue another."

This is not the truth, and FAA lawyers know it.

Take a look at the FAA's public enforcement docket. The practice of switching, which coincidentally is also known as blackjacking, is rampant. Some regions--and they haven't had

to get Washington's permission for two decades--use it so frequently it is fair to suspect they are deliberately starting cases off as certificate actions, cases that could have just as easily been started as civil penalties, in order to give themselves leverage with which to make certain the case is forced to settlement and never tried.

There's even a Catch 22 to all this. FAA policy is to limit switches "to situations in which the violator requests such action." But FAA has never published any booklet that explains the enforcement system in layman terms; it has promulgated no FAR that tells you such switches can be made or criteria that would determine who is eligible to switch and who is not. Its handbook, 200 pages, complex, written for internal use, is available only by special request--if you happen to know it exists. And it either misrepresents or leaves unsaid key policies.

So how would you ever know enough to ask? The fact is that many people don't; and the FAA lawyer usually does not volunteer the information. If he happens to hear you complain about how hard the suspension is going to hit you and you gain his sympathy, he might. But for that to happen you must first take advantage of his offer to attend an informal conference, which you might not be able to do for any number of legitimate reasons. So being given the privilege to switch your sanction is often a matter of chance.

Double jeopardy

DELVE DEEPER into FAA's enforcement system and you'll find other paradoxes, and more questions than answers. The new handbook asserts, as did Elwell in his 1951 directive, that "as a matter of law an election to impose one sanction is not a bar to a concurrent proceeding to impose another: However, such action has the appearance of 'double jeopardy' and, in the usual situation, it is not necessary. . . ."

The agency would have been better off to have left this unsaid, but the claim has been around so long in enforcement handbooks that perhaps it seemed innocuous. It is a truly astounding assertion. FAA is saying that Congress would authorize a system that could be used to force you to defend yourself in two entirely different forums, one administrative, the other judicial, at the same time for the same offense. That is called double jeopardy and is contrary to our most basic legal principles.

But here's the kicker. What they are really asserting is that Congress has authorized a system in which the government could prosecute you in federal court where the jury could find you not guilty, and at the same time prosecute you before NTSB where the ALJ could find you guilty and take your license away as punishment for that exact same violation.

Look at this one: why would Congress, in razor sharp language, provide that any person who commits a violation of a safety regulation may demand a jury trial, then turn right around and authorize an FAA official to deny that right by the simple expedient of prosecuting the case as a certificate action?

As a matter of public policy why would Congress authorize a system so rigid the judge has no power to switch from a very severe form of penalty, suspension or revocation, to the accepted and normal money fine, yet give that power to the prosecutor alone ?

Those of us who have studied FAA enforcement and its legislative history know that Congress never has authorized the use of certificate suspensions or revocations as an additional and alternative method of punishment to that of a civil money penalty for the violation of a safety regulation.

New legislation

THE LACK of a quick, accessible and inexpensive forum, or "traffic court" is one of the reasons FAA asked Congress last year to authorize NTSB to hear civil penalty cases alongside certificate actions. This request was tacked on to one asking for higher civil penalty limits and the criminalization of all knowing and willful violations of certain safety regulations.

Don't be mislead into thinking this was some sort of magnanimous gesture towards justice on FAA's part. Because of the proliferation of federal regulations and civil penalty programs to enforce them, it is now government policy to provide a "traffic court" for each agency's programs. Federal courts are too expensive, time consuming and already overloaded.

When this legislation (HR7488) went to hearing last June before Representative Glenn M Anderson's (D-CA) House Aviation Subcommittee, NTSB asked that it be given the power to switch a certificate suspension to a civil money penalty.

Now all of us with more than an eighth grade education can understand that this was good common sense. It would align NTSB--and FAA enforcement cases--with the way every traffic and criminal system of justice in the country works. It would give the airman his trial first and the judge the flexibility to mete out the appropriate form of punishment.

But FAA officials strongly opposed this suggestion. Why? It would gravely dilute their power. It is especially true that for professional pilots, to whom any suspension is a threat to their livelihood, FAA lawyers chose certificate actions in order to maintain the leverage they need to control any civil penalty settlement and to prevent any trial, NTSB or federal court. It also assures harsh punishment when the FAA lawyer, in his judgment, thinks it to be deserved and that a civil penalty would not be stiff enough. If the ALJ were able to make the switch to a money fine, pilots would take their chances with him and thumb their noses at the FAA lawyer.

One reason FAA lawyers and inspectors use certificate actions so much is they are deathly afraid, should they start the case off as a civil penalty, that the local US Attorney might refuse to take it because other, more serious cases have priority, which would let the offending pilot get off scot free. FAA has even worked out an arrangement with the Justice Department so they can bypass the US Attorney--almost always the government's lawyer in court whatever agency involved-- should he balk, and go directly to court to file suit. But that takes special permission and more paperwork, so is a real pain for FAA.

Moreover, once the government gets a judgment, so what? You can't be put in jail for refusing to pay it. Like any other civil judgment, to collect it, the US Marshall must find and levy on your assets.

Final verdict

BUT THE stunning irony of the whole system as it stands now is that the pilot who is a real bad guy, who flies on a revoked license, for instance, is better off than the man who plays by the rules but commits an inadvertent violation. If one holds no certificate the FAA has nothing they can suspend as punishment, so FAA lawyers must ask a US Attorney to sue him for a civil penalty. Thus they have no way to blackjack him, and he can have his jury!

If you wonder why an enforcement system like this exists, I suggest you ask your congressman. It needs a thorough overhaul.

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