PETITION TO ADOPT COMPREHENSIVE RULE
Comment -- After several years watching FAA lawyers sidestep the Administrative Procedure Act's requirement that the agency have a rule which warns pilots about license penalties, I decided to file a petition for rule making as a way to force the issue.
Consequently I prepared a petition incorporating a comprehensive rule that explained how the enforcement system works. It included, of course, both civil money penalties with right to jury trial, and license penalties which provide only an administrative hearing. By doing so it made it clear that FAA lawyers in any given case could choose either system, a fact ludicrous on its face. (See the Marsh Statement, where John Marsh admits you can only have a jury trial if the agency lawyer chooses to put you on the civil penalty track.)
I knew the lawyers could never allow a rule in the FARs that juxtaposed the two disparate systems of justice. I wondered what they'd do with it. They didn't disappoint me. Nothing! It was filed in January 1989, Regulatory Docket No. 25784. Their treatment of it was a key step in the continuing coverup you absolutely must read about, if you haven't already, in 75 Years of Coverup.
After arguing an enforcement case before the First Circuit in Boston, I stopped by FAA Headquarters on the way home to see what comments might have been made in response to the publication of my summary of the petition (which took a lawsuit to force them to do it). That summary was required by the FAA's own rules, FAR 11.25(c). The Docket file was on the desk of Peter Lynch, chief of the Enforcement Proceedings Branch of the Regulations and Enforcement Division. He handed me the file and I proceeded to the Regulatory Docket to review and copy some of the public comments received, which you can read here.
And then the Summary, which will give you a pretty good idea of what the complete petition contains. If you want a detailed look at what FAA lawyers have been deliberately keeping from you for three-quarters of a century, read the entire document. The only missing part is the civil penalty administrative hearing program later adopted by Congress.
Otherwise read the public comments, which follow; and the summary. From that you will get an idea of the scope of the proposal.
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General Aviation News & Flyer, 1st Issue April 1991
PUBLIC COMMENTS SUCH AS THESE MAY MAKE BUSEY SEE THE LIGHT
TUCSON, Arizona -- Let me refresh your memory. In January 1989, on behalf of 14 pilots from across the United States, we filed a petition which asked the FAA to publish as a Notice of Proposed Rule Making a comprehensive rule that details how its enforcement program works.
Bureaucracy works in mysterious ways. Ten months later, prompted by aviation subcommittee member Senator John McCain (R-Arizona), agency lawyers published in the Federal Register a 3.3-column-inch summary, notable for its brevity and misleading in the extreme because it left out the prime reason for the petition.
In its three-plus decades, the FAA has never had a rule that even hints it will suspend or revoke your license as a penalty for a safety violation. Remarkable? Yes, and even more so when you realize nothing in the Federal Aviation Act mentions such authority, either.
Recall that in early 1990 we sued to force the FAA to publish our summary. When the US district judge refused to stop depositions of Greg Walden, FAA chief counsel, and two retired FAA lawyers expert in enforcement matters, the agency capitulated, published our fully explanatory 54-inch summary and agreed to extend the comment period by 180 days.
Where's the petition now? Comment on whether it should be published ended Oct. 22, 1990. In early March I saw the file sitting on FAA lawyer Peter Lynch's desk. The FAA had written me earlier that only 175 persons had commented. But Lynch agreed that was wrong. For some the reason the docket clerk didn't list those who signed a form letter. The true total is 535!
Publishing the petition doesn't mean the agency has to adopt the proposed rule. So why are they dragging their feet? Maybe some FAA lawyers are hoping they can retire first.
Ever since I worked there 23 years ago, it's been my considered opinion that the administrator is totally dominated by agency lawyers. Maybe the public comments will help him see the light.
Robert J. Oliver, president, Westcor Aviation, Inc. of Scottsdale, Arizona: "The penalty must fit the crime. If drivers of automobiles were subjected to the harsh and heavy-handed enforcement policies that FAA certificate holders are, the public outcry would be overwhelming."
Daniel J. Mills of Gustavus, Alaska: "In effect the (short) summary cleverly written by the FAA so defuses the contention of the petitioners as to render it faceless in the eyes of those who would normally have a keen interest."
Charles Webber, editor of Soapbox: "Needless to say, the FAA will suffer from tremendous and deserved criticism if it squelches this petition without going to the NPRM stage." [Of course, it never has.]
James L. Malarsie, director of maintenance for Rocky Mountain Helicopters, Inc., Provo, Utah: "The foregoing petition is long overdue. . . . The public is entitled to know why it is guaranteed a jury trial when civil penalties are imposed for the violation of a regulation, but has no such guarantee when certificate suspension or revocation is the method of punishment . . .This petition is a sight for sore eyes."
Eric Barnum, president, Falcon Aeronautical, Inc., Millbury, Ohio: "I am continually appalled that the citizens of this country have continued to let the FAA operate its enforcement program with no knowledge as to how it works."
Richard W. Xifo, manage of flight operations, National Air Transportation Association: "The ability of an operator or airman to know the extent and type of penalty . . . is important . . .The publication and dissemination of this information will do much to assure violators that they are being treated fairly and consistently."
Jay C. White, president, California Aviation Council: "CAC recently collected the signatures of over 2,000 members and associates on a petition asking the Congress to intercede on their behalf on the enforcement issue . . . This issue will not go away if the petition is denied. Although the current administrator may have signaled a retreat from the Draconian enforcement policies of the present, future administrators may well elect to restore them if the root cause is not corrected."
Michael K. Moore, ATP, Dallas, Texas: "This has been a murky area and lack of clear understanding has led to recent speculation that the FAA's enforcement system is at best inconsistent and at worst vindictive."
Donald L. Hauck, Burnsville, Minnesota: "It seems that some of basic rights as citizens have been trampled by the agency in the past years."
Robert K. Watts, president, Capital Aviation Corporation, Bismarck, North Dakota: "I have been a pilot for over 50 years, and have over 50,000 hours . . . I have been an FBO owner and operator for over 40 years, and slowly but surely I am seeing the FAA making life miserable for all pilots by their attitudes of being judge, jury and executioner . . ."
Attorney Fred W. Kahler, East Norwich, New York: "As an attorney and pilot (former Naval aviator), I feel the agency's action as cop, judge and jury is completely at odds with our American system of justice and fair play."
O.V. Delle-Femine, national director, Aircraft Mechanics Fraternal Association: "This association strongly supports requiring the FAA to publish an accurate, comprehensive explanation on how the agency's enforcement program works . . ."
Clement F. Hoerner, Brier, Washington: "Drunk drivers have more rights . . ."
R.D. Horton, Troy, New York: "There are far too many cases lost because an airman is guilty until he proves himself innocent and he does not have the funds to present that proof. Or, his proves his innocence only to find deaf ears on the panel from the National Transportation Safety Board."
Robert N. Jacobsen, president, Wings of Alaska, Juneau: "The FAA needs to be held accountable for its enforcement policy. No branch of government should have complete unchecked power."
Alaska Governor Steve Cowper to 178 Alaska operators urging them to comment: "The petition's goal is to force out into the open serious questions concerning the legitimacy of FAA's enforcement program and to give aviation industry a chance to help shape policies that, as we've all seen recently, can actually put companies out of business."
Henry Duffy, president of the Air Line Pilots Association to this writer, June 15, 1989: "I find your proposal interesting and innovative. Certainly, if adopted, it would be beneficial to all pilots." (Note: no comment from ALPA in the docket.)
Want to keep FAA lawyers from burying the petition? Clip this article and send it directly to: Hon. James B. Busey, Administrator, Federal Aviation Administration, Washington DC 20591.
Editor's note: Lawrence B. Smith is an attorney based in Tucson, Arizona, who for the better part of 13 years has been fighting what he and others in aviation consider to be arrogance and unbridle abuse of power by the FAA.
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SUMMARY--PETITION FOR RULEMAKING
Subject: Creation of a comprehensive enforcement rule which fully explains that program.
Petitioners: Fourteen FAA certificate holders.
Prepared by: Lawrence B. Smith, Attorney, 3938 E. Grant Rd., Box 191, Tucson, Arizona; 602/326-0283.
Purpose: (1) To consolidate FARs 13.15 (civil penalty action) and 13.19 (certificate action) into a single rule, which will also incorporate related policies not found in either.
(2) To correctly state the law for civil penalties. The Federal Aviation Act of 1958 (FA Act) provides that any safety violator "shall be" subject to a civil penalty, with right to jury trial in district court. FAR 13.15 says he "is" subject to a civil penalty "if contemplated."
(3) To advise airmen that licenses may be suspended or revoked as punishment for safety violations. These comprise perhaps 95% of cases against pilots, yet FAR 13.19 says nothing of violations or penalties, it speaks only of reinspection of aircraft and reexamination of airmen.
(4) To explain that FAA may choose either civil penalty or certificate action and, once started, may shift to the other; that the FA Act provides no hearing in which to challenge use of the emergency power.
(5) In its 30 years, FAA has never involved the public in making enforcement policy. The NPRM will allow public comment on key issues: e.g., whether as much as 95% of pilot violations should suffer suspension, rather than a money fine.
Authority to impose certificate penalties is in doubt, the NPRM provides a means for legal challenge. The proposal does not add or change any policy, but states them as they are. The Administrative Conference of the U.S. (ACUS), an independent watchdog agency, has urged Congress to look into FAA's failure to tell the public how enforcement works.
Hazardous materials and aircraft registration matters should be treated separately and are not included. Nor is the new test program of in-house FAA civil penalty hearings; if made permanent, it can easily be worked into the final rule. Any omissions or inaccuracies in this proposal can be remedied in the final rule.
SUMMARY OF PROPOSED RULE
A. Two systems of justice
B. Choice of systems
C. How case initiated
D. Civil penalty action
E. Certificate action--qualifications
F. Certificate action--punitive sanctions
G. Certificate action--NTSB appeals
H. Shift in sanctions
I. Emergency power
J. Delegation of authority and restrictions
(A) FAA uses two separate systems of justice to punish safety violations:
(1) Civil penalty with right to jury trial in district court.
(2) Certificate suspension or revocation tried before NTSB law judge.
(3) Suspension and revocation also used for qualifications purposes.
(B) (1) In a violation case, FAA chooses either civil penalty or certificate action.
(2) May shift certificate action to money fine.
(3) May use both in same case, but seldom does.
(4) May suspend for lack of qualifications, and also use as punishment in same case.
(5) Administrator delegates enforcement authority.
(C) (1) Letter of investigation invites suspect to explain incident but does not tell him which regulation thought violated; explains that statements thus made may be used in later trial.
(2) Case initiated by civil penalty letter or notice of proposed certificate action; information solicited may be used in later trial.
(3) Accused has right to informal conference with FAA lawyer; information provided there will not be used in later trial.
(4) Accused has right to attorney, or other representative, but not required.
(5) Other options: turn in certificate and take punishment; ask order be issued to expedite appeal.
(6) Service by certified mail, or personally.
(7) Air Safety Reporting Program may provide penalty waiver.
(D) (1) FA Act, § 901, provides that "any person who violates any rule shall be subject to a civil penalty not to exceed $1,000" ($10,000 for air carriers).
(2) One incident may involve several rules at $1,000 each, or $1,000 for each day violation continues.
(3) Penalty may be compromised; payment not an admission of guilt; but letter placed in file.
(4) If not settled, case sent to U.S. Attorney, who may also try compromise. Even if FAA offered $200, suit is for $1,000. Have right to jury trial; penalty collected by civil procedures.
(E) (1) FA Act, § 609, authorizes suspension/revocation after reinspection and reexamination to assure qualifications continue to be met during lawful use of certificate.
(2) Suspension used where holder resists reexamination; issue on appeal is if FAA is reasonable.
(3) (a) Revocation used when FAA convinced holder lacks qualifications and problem cannot be corrected; issue is if holder meets requirements.
(b) Revocation used where repeated offenses show lack of "care, judgment and responsibility" required of any certificate holder. Mechanic's license, for instance, can be revoked, although violation unrelated to that certificate.
(4) One year limit, then holder can be reexamined and issued a similar certificate.
(5) Qualification issues, and penalty may be pursued in same case.
(6) May appeal to NTSB.
(F) (1) FAA interprets section 609 to authorize the Administrator to suspend or revoke solely as punishment anytime he declares it is in the interests of air safety and the public.
(2) One-year limit on length of a punitive suspension; if revoked, may apply after that to be reexamined. No such limit for operators.
(3) NTSB doesn't allow suspension penalty if notice issued more than six months from date of violation.
(4) Once suspension proposed, FAA won't increase it or upgrade to revocation, nor may NTSB.
(5) Prior offenses used to justify longer suspension, or to upgrade to revocation. No age limit on prior offense so used.
(6) FAA may use retroactive suspension orders where pilot or mechanic has already served company discipline, if equivalent.
(7) If person commits flying offense, but has no certificate, is subjected to civil penalty with right to jury trial; stop order placed on future application for pilot certificate.
(G) (1) Explains NTSB appeal procedure.
(2) On appeal, get automatic stay of FAA order, unless emergency power used.
(3)(a) Appeal is two-steps: trial by law judge, usually held in convenient city; no court costs; may use attorney, other person, or represent self.
(b) Either airman or FAA may appeal initial decision to full Board, which acts much like court of appeals.
(4) Only airman may appeal from NTSB to appeals court; must secure stay from Board, or court.
(5) Board does not revoke as punishment, only lack of qualifications; it recognizes lack of "care, judgment and responsibility" as qualifications matter, although no such FAR exists.
(6) Board admits evidence of prior certificate penalties without prior notice, to support more severe penalty.
(H) FAA may shift punitive certificate action to civil penalty if convinced penalty more severe than warranted, e.g., pilot flies for business or profession. If suspension settled by money fine, airman waives right to jury trial.
(I) (1) Section 609 authorizes emergency suspension and revocation for lack of regulatory qualifications. Power also used where repeated offenses indicate lack of "care, judgment and responsibility." Board has 60 days to dispose of case.
(2) Explains expedited Board procedure.
(3) Board considers only underlying charges, does not determine if emergency is justified. There is no recourse to use of that power, like the prompt hearing provided for a judicial temporary restraining orders.
(4) Emergency justified only if conduct indicates immediate danger of injury to person or property.
(J) (1) Administrator must specifically delegate enforcement authority.
(2) Lists officials to whom authority delegated.
(3) Regional counsels' authority restricted; significant cases must be coordinated with Hqs.
SUPPORTING ARGUMENTS
Foreword: Agency enforcement manuals are the source of most of those policies contained in the proposed rule which have heretofore never been published or promulgated. The arguments that FAA has no authority for suspension/revocation penalties are abstracted from Smith, FAA PUNITIVE CERTIFICATE SANCTIONS: THE EMPEROR WEARS NO CLOTHES; OR, HOW DO YOU PUNISH A PROPELLER?, 14 Transp. L.J. 59-100 (1985) ["Emperor"]. The Administrative Procedure Act (APA) requires that FAA promulgate (NPRM) the sort of policies incorporated into the proposed rule. FAA policy states "that the public interest is best served when regulatory affairs are open to the public to the fullest extent possible." FAA, in its 30 years has never allowed the public to participate in making enforcement policy or in promulgating the few rules contained in the Code of Federal Regulations (CFR).
A. Two systems of justice No FAA rule informs the public it can use two disparate tracks of justice: civil penalty with right to "demand" jury trial; suspension/revocation with one-man administrative hearing. Or that it claims the right to take away the citizen's right to jury trial.
B. Choice of systems Makes clear the consequences of having the two systems of justice.
C. How case initiated and options The suspect should know that FAA fails to tell him in the letter of investigation what rule they think he violated; that the response solicited will be used against him, but not what he says in an informal conference with an agency lawyer.
D. Civil penalty action FAA's civil penalty rule misrepresents the law: Section 901 says "any person who violates any rule shall be subject to a civil penalty"; FAR 13.15 says "a person is subject to . . . if . . . contemplated." Noting the statutory right to jury trial underscores FAA's claim it can deny the right to jury trial.
E. Certificate action--lack of qualifications Any comprehensive rule should spell out the dichotomy in certification action: (a) qualifications matters; (b) suspension/revocation penalties for violations. Alleging lack of "care, judgment and responsibility," rather than FAR qualification standards, is the basis for the vast majority of revocations, especially of operators, yet there is no such FAR. That is a violation of the APA. FAA officials once began but dropped a project to create such a rule, an admission they should have one.
F. Certificate action--punitive sanctions Need for a rule The FA Act doesn't even hint that suspension and revocation may be used for punitive purposes. FAA has never promulgated any such rule, though decades ago one did exist, but disappeared. Common sense dictates the agency should have a rule that tells pilots and mechanics their licenses are at risk for the violation of a safety regulation. Failure to do so violates the APA and is an absolute defense against such action.
Airmen should be told that once proposed FAA will not increase a suspension; that it factors in prior offenses so the airman is punished twice; for professional, FAA can tailor its order to match company discipline, retroactively, or in futuro.
Lack of authority Appeals courts have upheld the punitive certificate sanction power, but their decisions are based on a fundamental mistake of fact which renders them valueless as precedent: they hold that Congress authorized the system in 1938, when, in fact, it started in 1926. The only system of justice Congress has ever considered--or adopted--is the civil money fine with right to demand jury (in 1926, re-adopted in 1938 and 1958); no bill has ever been introduced to allow suspension penalties, no congressional hearings ever held on whether to add this second system of justice. Emperor traces this history in detail. It is contrary to common sense that Congress, having selected a system where one could "demand" jury trial, would turn right around and authorize the official who initiates the case to deny that right. The asserted power is based only on vague language about public interest and air safety in section 609, thus it is FAA which has created the sanction. This is an unconstitutional delegation of power and violates the APA: only Congress may create benefits or sanctions.
G. Certificate actions--NTSB appeals This information is vital to an overall understanding how the enforcement system works.
H. Shift in sanctions Need for a rule FAA officials claim the power to shift a suspension to a money fine; they've done it a thousand times. But they've never put this in a rule. Airmen should at least be told they can ask.
Lack of authority This power highlights the question: why are the vast majority of violation cases begun as certificate actions in the first place? FAA officials should have to explain what happens to the right to jury trial when they shift to a money fine, and could have used that system from the start.
I. Emergency power Need for a rule FAA has never had a rule for its emergency power, though the old CAA did. This is a violation of the APA. The power is draconian. FAA officials should have to explain in detail in an affidavit why there is an emergency. An alternate system could be devised to license the key officials already required by the FARs, then suspend or revoke them rather than shut down the entire operation and harm innocent employees, creditors, bankers, stockholders.
Power unconstitutional The power is an executive temporary restraining order (TRO); failure to provide a prompt hearing on whether the airman or operator is truly a threat to air safety violates due process. The NTSB only makes findings on the underlying charges, and that takes 60 days, which few operators can survive. Congress authorized the FAA to go to federal court, but it is easier for FAA lawyers to dictate a letter than sell the case to a U.S. Attorney and tough district judge.
J. Delegation of authority and restrictions It is customary for FAA to list in the FARs those officials to whom the Administrator's authority is delegated. Lately, this authority has been spread around. Airmen should know who makes the decisions.
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[FAA Reg. Dkt. 25784] PETITION FOR RULEMAKING
Subject: Creation of an integrated Federal Aviation Regulation in FAR Part 13 which will consolidate present FARs on certificate and civil penalty actions used against pilots, mechanics and other certificate holders, as well as incorporate many safety-violation enforcement policies not now contained in any rule, or even published in the Federal Register.
To: Administrator, Rules Docket (AGC-204), Federal Aviation Administration, 800 Independence Avenue SW, Washington DC 20591.
From: Undersigned petitioners, all holders of FAA certificates, and thus subject to enforcement procedures for violation of safety rules.
Prepared by: Lawrence B. Smith, Attorney, 3938 E. Grant Rd, #191, Tucson AZ 85712; 602/326-0283.
Authority: Administrative Procedure Act (APA), 5 USC § 553(e), 14 CFR § 11.25 (FAR 11.25).
Purpose: (1) To consolidate FARs 13.15 (civil penalty action) and 13.19 (certificate action), into a single comprehensive regulation. It will, among other things, include FAA's emergency policy and explain the relationship between civil penalty and punitive certificate action, that is, that agency officials, when initiating any safety-violation case may choose either track of justice, and once initiated, may shift from one to the other (usually suspension to a money fine).
(2) To correctly reflect the law on civil penalties. FAR 13.15 misstates it: e.g. "a person who violates any . . . regulation or order . . . is subject to a civil penalty"; "If a civil penalty is contemplated." Section 901 (49 USC § 1471) of the Federal Aviation Act of 1958 (FA Act) states that, "any person who violates . . . any rule, regulation or order . . . shall be subject to a civil penalty." Prior to 1962 the rule accurately repeated the statutory language, but that year was amended by FAA officials to reflect the present language--without following required APA public notice and comment procedures found in 5 USC § 553. The rule also fails to advise airmen of the § 903 (49 USC § 1473) mandate that civil penalty carries with it the right to "demand" jury trial in federal district court.
(3) To accurately reflect all of the certificate actions which FAA officials take pursuant to the FA Act, § 609 (49 USC § 1429(a)). Ninety-five percent of § 609 cases involve safety violations, yet neither it nor FAR 13.19, the suspension and revocation rule, speaks of violations, offenses, sanctions or penalties, they talk only of reinspection of aircraft and reexamination of airmen, qualifications matters. Since FAA officials interpret sectin 609 to authorize the Administrator to suspend or revoke strictly as punishment for safety violations, the rule should state this clearly so airmen can understand that their
licenses are at risk.
(4) To compel FAA to comply with APA notice and comment procedures in 5 USC § 553 which requires that "interested persons" be allowed to participate in agency promulgation of substantive enforcement policies. See also 14 CFR § 11.21. Neither FAR 13.15 or 13.19, nor any other enforcement rule in the agency's 30-year history, has ever been adopted pursuant to these procedures. FAA has neverhad any rule which warns pilots, mechanics or operators that their certificates are at risk for violations. In fact, since federal regulation of aviation began in 1926, when the punitive certificate sanction system was put into effect, the public has never had an opportunity to make any input into how it should work, either through congressional hearings or APA rulemaking procedures.
(5) To compel FAA, as is required by the APA, 5 USC § 553(b) and (c), to clearly set forth in a Notice of Proposed Rule Making (NPRM), and in the statement of the proposed rule as finally adopted, the legal basis for its punitive certificate sanction system. The authority for certificate penalties is open to serious question. FAA refusal to publish this NPRM in the Federal Register will provide a legal means to challenge that claim of power. Should the agency in fact publish it, its official statement can then be challenged because it will be impossible for FAA to detail when, where and how Congress gave an executive branch official the power to choose between two distinctly different forms of punishment, before the accused has even had a trial; and select the system of justice by which he will be tried, one-man administrative hearing before the National Transportation Safety Board, or trial in federal district court, thus determining whether he can ever exercise his right to a jury trial.
Nothing in the proposed rule adds to or changes any FAA enforcement policy; it simply codifies basic policies as they presently exist, many of which are not spelled out in any rule. The NPRM process, if followed, will allow the public to propose additions and changes.
All reference to hazardous materials violations, now mentioned in FAR 13.19, has been deleted. This subject arises under a separate statute which provides only for civil penalties and in any event is covered by FAR 13.16. It has little relevance to most common airmen safety infractions. FAA authority to impose certificate penalties for such is open to question. The agency should be required to spell out that authority in detail in a separate NPRM. Reference to aircraft registration has also been deleted, for similar reasons. Nor is the new temporary FAA test program of in-house hearings for civil penalties included (see 53 Fed. Reg. 34646 (1988)); reference to it, if it is made permanent after the end of 1989, can easily be worked into the final rule. But for the present proposal is it imperative that airmen and operators understand how the enforcement program has worked for more than six decades. Any omissions or inaccuracies in this proposal should be minor, and can easily be remedied in the final rule.
PROPOSED RULE
A. Two systems of justice
B. Choice of systems
C. How case initiated
D. Civil penalty action
E. Certificate action--lack of qualifications
F. Certificate action--punitive sanctions
G. Certificate action--NTSB appeals
H. Shift in sanctions
I. Emergency power
J. Delegation of authority and restrictions
A. Two systems of justice Legal action for the enforcement of certificate-holder qualifications standards, and non-criminal violations of relevant provisions of the Federal Aviation Act of 1958, as amended (FA Act), 49 U.S.C. §§ 1331, et seq., regulations or orders, is taken by the Administrator through two separate and independent systems or tracks of justice:
(1) Civil money fines Civil penalty actions, which may be compromised, or taken to trial in United States District Court with right to demand a jury, 49 U.S.C. §§ 1471 and 1473;
(2) Certificate action Certificate suspension or revocation actions, which are used for two separate purposes and tried before an administrative law judge of the National Transportation Safety Board, 49 U.S.C. § 1429(a):
(a) For lack of qualifications, or refusal to demonstrate same through reinspection or reexamination;
(b) As a punitive sanction, or alternative penalty to that of a civil money fine, for violation of law, regulations, or orders.
B. Choice of systems
(1) Initiating When initiating any legal action for violation of safety rules, the Administrator must choose between civil penalty or punitive certificate action.
(2) Shift in sanctions Having initiated certificate action, should the accused so request, or upon the Administrator's own initiative, in his sole discretion, the Administrator may drop that action upon payment of a compromise civil money fine; or allow a shift from a civil penalty to certificate suspension.
(3) Concurrent sanctions The Administrator may bring both a civil penalty action, and a punitive certificate action, for the same offense, although this is seldom done.
(4) Qualifications and punitive sanctions In certain cases, such as an aircraft accident, or the improper overhaul of an engine or other component by a mechanic, certificate action may combine both a challenge to the pilot's or mechanic's qualifications, as well as seek suspension or revocation as a penalty for any rules violations.
(5) Authority delegated Reference herein to the Administrator, and any authority exercised by him, includes the officials designated in Par. J, to whom he has specifically delegated authority as required by law to act in these matters in his name.
C. How case initiated and options
(1) Letter of Investigation When the Administrator receives information concerning an incident which indicates a possible violation of law, regulation or order, or that a person may lack the qualifications required to hold a given certificate, he sends a letter, usually signed by a field inspector, to the person involved. This letter does not specify the law, regulation or order thought to have been violated but informs the person that the matter is under investigation and describes as accurately as possible what the Administrator has learned about it; it also offers him or her an opportunity to discuss it in person and/or submit a written statement within ten days. That statement should contain all pertinent facts and any extenuating or mitigating circumstances which may have a bearing on the alleged incident, or alleged lack of qualifications. If the person does not respond within the ten days, or ask for and be granted additional time in which to do so, the inspector's report will be processed without benefit of the person's explanation. These oral or written statements may be used against the person making them in any later trial.
(2) Notification (a) Once the Administrator determines, after the investigation and consideration of any statements made or material offered by the person in response to the letter of investigation, that he lack qualifications, or that an offense was committed and that legal action, rather than the administrative action authorized by FAR 13.11, is required, he sends a formal letter to the person, usually under the signature of a regional counsel, or other official named in Par. J. If the Administrator has chosen to use the civil penalty track of justice, he sends a Civil Penalty Letter (CPL) stating the amount, if any, he will accept in compromise; if punitive certificate action, a Notice of Proposed Certificate Action (NOPCA) which proposes revocation of a named certificate, or suspension for a stated number of days. If only a lack of qualifications is involved, the NOPCA will propose a suspension until reinspection or reexamination is successfully completed, or revocation if there is a manifest lack of qualifications.
(b) Both CPL and NOPCA describe in detail with dates and places the acts or omissions alleged to have caused the offense, and designate the law, regulation or order the person is charged with violating. If a certificate holder's qualifications are involved, the NOPCA will give the reasons those qualifications are in doubt, and which require reexamination or reinspection, or why they are lacking. Both CPL and NOPCA invite the alleged violator to submit any oral or written material or other information in answer to the charges, explaining, mitigating or denying the violation or lack of qualification, or showing extenuating circumstances. In the case of a civil penalty, he may urge either that no amount would be proper, or that a lesser sum would be more fair and appropriate; with certificate action, he may urge that a proposed revocation is unwarranted, or that the proposed length of a suspension is too great; or, as more fully set forth in Par. H, he may ask that a punitive suspension be shifted to a money fine and present reasons why the certificate action is too harsh. If qualifications are involved, he may explain why he does not lack qualifications and why, if proposed, reexamination or reinspection would be unfair or not necessary. (Alternatively, he may wait and present this information at the informal conference referred to in subparapraph (3)). Information so presented is considered by FAA counsel in making a final determination as to probable liability for the offense, or other disposition of the case. It may be used in any subsequent trial against the person charged.
(3) Informal conference In either civil penalty or punitive certificate action, or where lack of qualifications is the issue, the person charged may request an opportunity to be heard in an informal conference with the FAA counsel handling the case. In certificate action cases, this conference is required by section 609(a). Although not legally required by section 901 for civil penalties, FAA counsel normally accomodates the request. Subject to time, geographical considerations and the public interest, the conference will be held in a place as convenient as possible for the person charged. There he may present the sort of information and material referred to in subparagraph (2)(b). The informality of the conference provides for full and open discussion of the case; it is not used as a means of getting additional evidence or admissions to prove the charges; and to protect its confidentiality, information or statements provided will not be used in any subsequent trial against the person charged.
(4) Right to an attorney Although not required, the person charged has at all times the right to be represented by an attorney, or other representative.
(5) Additional options Certificate action, whether proposed as a penalty for an offense under Title VI of the FA Act, or involving qualifications, affords the person charged two additional options: (a) He may admit the charges, and pursuant to instructions that accompany the NOPCA, surrender his certificate; (b) He may bypass the other options and request that the order proposed in the NOPCA be issued so that he may immediately appeal to the National Transportation Safety Board for a trial of the charges.
(6) Service of process and response time The CPL and NOPCA are normally served by certified mail and, if the accused is a certificate holder, sent to his address of record on file at the FAA records center in Oklahoma City, Oklahoma. They may also be served personally by inspectors or other agents of the Administrator. If the CPL or NOPCA is returned unaccepted or refused, or the person charged does not respond within 15 days from the date they are served by exercising one of the foregoing options, or ask and be granted additional time in which to do so, the Administrator issues the proposed revocation or suspension order; if civil penalty action, the case is forwarded to an appropriate United States Attorney for filing suit.
(7) Air safety reporting program In either civil penalty or punitive certificate action, if the holder has filed an Aviation Safety Report with NASA concerning the incident set forth in CPL or NOPCA, he may be entitled to waiver of any penalty. The Air Safety Reporting Program (ASRP) and conditions which must be met for waiver are set forth in FAA Advisory Circular, AC 00-46B, 6-15-79. Relevant excerpts are set forth in the instructions which accompany both CPL and NOPCA; if waiver is claimed, response is due within 15 days from service.
D. Civil penalty action
(1) Statutory authority Under section 901 of the FA Act "Any person who violates . . . any provision of [Titles III, V, VI, or XII of that Act], or any rule, regulation or order issued thereunder . . . shall be subject to a civil penalty of not to exceed $1,000 for each such violation . . . If such violation is a continuing one, each day of such violation shall constitute a separate offense. . . ." 49 U.S.C. § 1471(a)(1). "Any civil penalty may be compromised by the [Administrator]." 49 U.S.C. § 1471(a)(2).
(2) The letter--multiple violations Should the Administrator select civil penalty as the track of justice to use for a given violation, and consider it adviseable to try to effect a compromise settlement, he sends a letter, as more completely described in Par. C(2), to the person accused of the violation and offers to compromise the penalty, stating the amount he will accept. The person charged may respond as indicated in Par. C(2)(b). A single incident may involve the violation of more than one provision of the FA Act, safety regulation or order; or a violation may be a continuing one; up to $1,000 may be sought for each separate violation, or per violation per day, if continuing.
(3) Compromise Should the person charged with the violation offer to compromise for a specific amount, and it is acceptable to the Administrator, he shall send a certified check or money order for that amount, payable to the Federal Aviation Administration. He will thereafter be sent a letter that the payment is received in full settlement of the violation charged and that such settlement is not an admission that the person charged committed the violation; a copy of the settlement letter, however, is placed in the airman's file at Oklahoma City and may be considered in how any future case is handled. Any prior civil penalties, or punitive certificate sanctions for safety violations are considered by the Administrator in accepting a compromise offer.
(4) Civil suit Should the accused and the Administrator fail to agree on a settlement, or the accused wish to defend against the charges, the Administrator, should he determine to pursue the matter further, turns the case over to a United States Attorney who, should he accept it, may also compromise the amount, but if unable, files a civil suit against the person subject to the penalty, not for the amount the Administrator may have indicated he would accept in compromise, if any, but for the full $1,000 per violation and, if continuing, per day. 49 U.S.C. § 1473(b)(1). Trial of the offense is conducted in United State District Court and, subject to certain exceptions, generally in the district in which the person is found, 49 U.S.C. § 1473(a). Either the government or the person charged, if the value in controversy exceeds $20, may demand trial by jury of any issue of fact. 49 U.S.C. § 1473(b)(1). Should the jury determine a violation did occur as charged, the judge, not the jury, sets the amount of penalty.
The penalty, if not voluntarily paid, is collected through regular civil levy and execution procedures.
E. Certificate action--lack of qualifications
(1) Authority--reinspection and reexamination In order to assure that the qualifications and standards required for the issuance and possession of any certificate authorized by Title VI continue to be met during its lawful period of use, section 609 of the FA Act (49 U.S.C. app. § 1429(a)) provides that: "The [Administrator] may, from time to time, reinspect any civil aircraft, aircraft engine, propeller, appliance, air navigation facility or air agency, or may reexamine any civil airman. If, as a result of any such reinspection or reexamination, or if, as a result of any other investigation made by the [Administrator], he determines that safety in air commerce or air transportation and the public interest requires, the [Administrator] may issue an order amending, modifying, suspending, or revoking, in whole or in part, any type certificate, production certificate, airworthiness certificate, airman certificate, air carrier operating certificate, air navigation facility certificate (including airport operating certificates), or air agency certificate."
(2) Suspension Suspension of a certificate is used where there is evidence that the regulatory qualifications required to hold it are not being met and the holder resists voluntary reinspection or reexamination. It is suspended until the holder, through such reinspection or reexamination, or by other means acceptable to the Administrator, successfully demonstrates that he meets those qualifications. On appeal to the National Transportation Safety Board, the only issue considered is whether the Administrator's order is reasonable.
(3) Revocation (a) Revocation is used when the Administrator deems that the certificate holder presently lacks the qualifications required to hold it and that such deficiencies are incapable of immediate correction.
(b) Revocation is used in cases where the certificate holder has demonstrated by repeated offenses, or the seriousness of a single offense, an unwillingness or inability to comply with the principles of air safety, and lacks the care, judgment and responsibility required of any certificate holder. Where, for instance, the offenses are pilot air-safety violations, other certificates, such as, a mechanic's, are subject to revocation.
(4) One-year limit After revocation for lack of qualifications, the certificate holder, pursuant to section 602 (49 U.S.C. § 1422), may be reexamined after one year from date the Administrator's order is final, and if successful will be reissued a similar certificate or rating. Section 602 does not apply to operators' certificates.
(5) Joint action Qualifications actions, and punitive certificate actions may be pursued in the same enforcement case.
(6) Appeal to NTSB The certificate holder may appeal to the National Transportation Safety Board as explained in Par. G.
F. Certificate action--punitive sanctions
(1) Authority--interpretation of section 609 The Administrator, where no question of qualifications is involved, and for violations of the FA Act, and regulations or orders issued thereunder, may order the suspension or revocation of any certificate listed in section 609 (for the most part, pilot, mechanic or operator) as a punitive sanction, that is, an alternative penalty to that of a section 901 civil money fine. The Administrator interprets the section 609 language, "If . . . he determines that safety in air commerce or air transportation and the public interest requires, [he] may issue an order amending, modifying, suspending, or revoking, in whole or in part, any type certificate . . . airman certificate . . .," etc., as a grant of authority to so suspend or revoke.
(2) One-year limit Pursuant to section 602 (49 U.S.C. § 1422), punitive suspensions are limited to one year; any person holding a revoked certificate may apply after one year to be reexamined and, if successful, will regain a similar certificate. Section 602 does not apply to operators' certificates.
(3) Stale complaint rule National Transportation Safety Board rules provide that certificate suspension may not be used for punitive reasons where over six months has elapsed since the date of the alleged violation. (See 49 CFR 821.33).
(4) No increase once proposed The Administrator will not increase a proposed punitive suspension either in length, or by converting it to a revocation; nor may the National Transportation Safety Board do so.
(5) Prior offenses The Administrator may use any prior offense(s) committed by the accused as reason to make the length of a suspension greater that it might otherwise have been, or increase suspension to revocation. Their nature and age will be considered. There is no age limit on the prior offense so used.
(6) Retroactive orders The Administrative may make a suspension order retroactive where an air carrier pilot or mechanic, for instance, has been subjected to company discipline which the Administrator deems equivalent to that which he has ordered.
(7) No certificate The Administrator, where a person who commits an offense while flying an aircraft but has no pilot certificate, whether earlier revoked or never earned, will be subjected to a civil penalty; and a stop-order will be placed on file at the FAA records center in Oklahoma City, Oklahoma, so that any future application may be subjected to review before issuance to determine whether the offender has the care, judgment and responsibility required of any certificate holder.
G. Certificate actions--NTSB appeals
[Note: For the most part this paragraph is advisory, but it is necessary to an initial understanding of how FAA enforcement works. Reference should be made to NTSB rules found at 49 CFR pt 821, and the Federal Rules of Appellate Procedure.]
(1) Time limit The person charged in any certificate action, whether instituted for lack of qualifications or as a punitive sanction, may appeal to the National Transportation Safety Board within twenty (20) days from date of service upon him or her of the Administrator's final order. The notice of appeal may be in letter form, or telegram, and should give full name, address and phone number of the person charged, or his attorney or other representative, with case number, date, the FAA office issuing it, and should be addressed to the National Transportation Safety Board, Office of Administrative Law Judges, Washington, D.C. 20594. A copy of the notice of appeal should be provided to the issuing FAA office. The letter should be postmarked or telegram dated no later than the twentieth day.
(2) Stay of order Except in case of an emergency (see Par. I), filing of a notice of appeal with the NTSB automatically stays the effect of the Administrator's order until final termination of Board proceedings.
(3) Nature of NTSB appeal--two steps (a) The person charged (respondent) is first afforded a hearing (trial) before an administrative law judge who issues an Initial Decision. The hearing is usually held in a city convenient to the respondent; there are no court costs, and a copy of the hearing transcript is provided free of charge. The respondent may represent himself, use a licensed attorney, or select any other representative of his choosing. The hearing determines if the event charged actually occurred, whether the accused was responsible for it, and whether the acts complained of violated law or regulation; evidence of mitigation is accepted.
(b) Either the person charged, or the Administrator, may appeal all or part of the initial decision to the full five-member Board, which acts much like a court of appeals. Pursuant to section 609, the Board may amend, modify or reverse the Administrator's order, if it finds that safety in air commerce or air transportation and the public interest do not require its affirmation. The Board is not bound by any findings of fact of the Administrator.
(4) Further appeal--no automatic stay The person charged, but not the Administrator, may appeal the opinion and order of the Board to the United States Court of Appeals, either in the geographic circuit in which he resides, or has his principal place of business, or the District of Columbia. On such appeal the person charged must seek a further stay from the Board and, if denied there, may seek a stay from the appeals court.
(5) Revocation only for lack of qualifications The Board does not recognize the use of revocation as punishment, only for lack of regulatory qualifications.
(6) Prior violations The Administrator may introduce in Board hearings evidence of any prior punitive certificate sanction (but not civil penalty) to support a more severe penalty than the Board might otherwise award. No notice to the respondent is required that the Administrator intends to do so. There is no age limit on any prior violation so used.
(7) Shift in sanctions The Board has no authority to change a punitive suspension to a civil money fine.
H. Shift in sanctions The Administrator, having initiated an enforcement case on either the civil penalty track or the punitive certificate sanction track, may shift from one sanction to the other. Normally this is done only after request by the person charged. Ordinarily it is not FAA policy to withdraw one form of sanction and substitute the other (usually certificate shifted to civil penalty). It may, however, be appropriate, for example, when the proposed suspension would constitute a sanction much more severe than is warranted by the violation, such as, where a pilot uses his aircraft in business or a profession. If the Administrator agrees to the shift, the person charged presents a certified check in the amount agreed upon in settlement. The case is then closed under the authority of section 901 as if first initiated as a civil penalty. The section 903 right to jury trial which the person charged would otherwise have had a right to had the case been so instituted is necessarily waived.
I. Emergency power
(1) Authority The Administrator may suspend or revoke any certificate on an emergency basis for lack of regulatory qualifications, and also because a single serious and critical safety violation or accumulation of such violations indicates the person charged lacks the care, judgment and responsibility required of any certificate holder. Section 609, when an appeal is filed with the Board, provides an automatic stay of any suspension or revocation order unless the Administrator "advises the National Transportation Safety Board that an emergency exists and safety in air commerce or air transportation requires the immediate effectiveness of his order, in which even the order shall remain effective and the [Board] shall finally dispose of the appeal within sixty days after being so advised by the [Administrator]."
(2) Procedure The person charged has ten days from service of the emergency order in which to file a notice of appeal with the Board's Office of Administrative Law Judges. It promptly schedules a hearing which is normally held within two weeks from receipt of the notice. (See 49 CFR §§ 821.54 to 821.57) The law judge issues an oral decision, and any notice of appeal from his Initial Decision must be filed within two days, opening brief within five days thereafter. The Board usually issues its opinion and order near the sixtieth day.
(3) Issues before the NTSB The Board considers only whether or not the charges contained in the complaint are valid; it does not consider whether there is in fact a threat to safety in air commerce or air transportation which justifies the immediate effectiveness of the Administrator's order. There is no recourse to the Administrator's use of the emergency power. The FA Act does not provide a prompt and separate hearing on that issue as would be the case with a temporary restraining order (TRO) issued pursuant to the Federal Rules of Civil Procedure, Rule 65(b).
(4) Criteria for issuance An emergency will be deemed to exist and suspension or revocation may be used as an emergency safety measure only in the event the condition or conduct of a certificate holder is such as to indicate immediate danger of injury to person or damage to property, and the immediate suspension or revocation of the certificate might reasonably be expected to avert such injury or damage. The emergency power is never used for punitive reasons.
J. Delegation of authority and restrictions
(1) Authority The Administrator, pursuant to section 302(f) (49 USC §§ 1342, 1343) defines the authority and duties of FAA officials "as shall be necessary to carry out the provisions of" the FA Act. Authority in section 609 and 901 safety enforcement matters is herewith delegated to the officials listed below.
(2) Officials The FAA officials who may sign, in the Administrator's name, notices of proposed certificate action, orders of suspension or revocation of a certificate listed in section 609, including emergency orders, and section 901 civil penalty letters, with concurrent authority to accept compromise settlements, are: Chief Counsel, Assistant Chief Counsel for Regulations and Enforcement, and the Regional Counsel concerned.
(3) Restrictions
(a) Initial action All significant initial legal enforcement actions (notices of proposed certificate action and initial civil penalty letters) must be coordinated with the Office of Chief Counsel prior to issuance. These include:
(i) All legal enforcement actions against holders of Part 121, 125, 135, 139 and 145 certificates.
(ii) All legal enforcement actions involving crewmembers and mechanics employed by Part 121, 125, or 135 certificate holders.
(b) Emergency action All emergency actions must be coordinated with the Office of Chief Counsel prior to issuance.
(c) Final disposition Final disposition of any significant enforcement action which substantially differs from the initial proposed action must be coordinated with the Office of Chief Counsel prior to execution. This includes, but is not limited to:
(i) Changing a proposed certificate revocation to a suspension.
(ii) Reducing the proposed period of suspension by more than 25 percent.
(iii) Changing a certificate action to a civil penalty action.
(iv) Changing a proposed civil penalty of $10,000 or more by reducing it more than 15 percent of the initially proposed amount.
(d) Referral to U.S. Attorney All referrals of significant legal enforcement actions to any U.S. Attorney must be coordinated with the Office of Chief Counsel prior to actual referral.
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ARGUMENTS IN SUPPORT OF PROPOSED RULE
Foreword: Frequent reference will be made here to FAA's current enforcement manual, in which the Foreword states: This order has been prepared to provide compliance and enforcement program and procedural guidance for all agency personnel. The order, which consolidates guidance material formerly contained in four separate orders, is designed as a ready reference for use at all levels of the agency in the investigation, reporting, and legal processing of enforcement cases. Any FAA employee involved in the compliance and enforcement program must read and become familiar with applicable provisions of this order.
/s/ Langhorne Bond
Administrator
Compliance and Enforcement Program, FAA Order 2150.3, Foreword at page i (1980) ["1980 Handbook"]. This manual, with one or two minor exceptions, did not add new policies or cancel or replace any contained in those it consolidated. Thus the public should be aware of those from whence most of its policies were drawn: Handbook for Handling Legal Aspects of FAA Enforcement Program, FAA Order 2150.2 (1968) ["Lawyers Handbook"]; Compliance and Enforcement, FAA Order 8030.7A (Consolidated Reprint 1977) ["Inspectors Handbook"]; Manual of Procedures, Bureau of Flight Standards, Federal Aviation Agency, Chapter 22 (1960) ["1960 Handbook"].
Some citations of authority will be to a law review article by Mr. Smith, who drafted this proposal: Smith, FAA PUNITIVE CERTIFICATE SANCTIONS: THE EMPEROR WEARS NO CLOTHES; OR, HOW DO YOU PUNISH A PROPELLER?, 14 Transp. L.J. 59-100 (1985) ["Emperor"]; see also Smith, FAA: Illegal disciplinarian?, Aviation Digest at 26, Sep. 1987, and Smith, FAA Blackjack, Professional Pilot Magazine at 91, Feb. 1981.
Critical to understanding why this proposal should be adopted are the mandates of the Administrative Procedure Act (APA). Senator Pat McCarran (McCarran Field, Las Vegas, Nevada), its sponsor and chairman of the Judiciary Committee, in its official legislative history, noted that
The Administrative Procedure Act is a strongly marked, long sought, and widely heralded advance in democratic government. . . . [I]t is a comprehensive charter of private liberty and a solemn undertaking of official fairness. . . . It enunciates and emphasizes . . . the ever essential declaration that this is a government of law rather than of men.
. . ..
The bill is an outline of minimum essential rights and procedures. Agencies may fill in details so long as they publish them. It affords private parties a means of knowing what their rights are and how they may protect them . . .
S. Rep. No. 248, 79th Cong., 2d Sess. III and 250 (1946) ["APA History"]. Two of the APA's foremost purposes were to require administrative agencies at minimum to inform the public of their policies and, if the policy had a substantial impact on the public, to invite its participation in their adoption through well-defined public notice and comment procedures.
Implementing these goals, the APA requires agencies to publish in the Federal Register, among others, "rules of procedure," "statements of general policy," and "interpretations of general applicability formulated and adopted by the agency." 5 USC § 552(a)(1). Should an agency fail to do this, it may not take "adverse" action against the person against whom it is applying the policy, or fail to make it available so that he may resort to it, that is, such failure is an absolute defense--a legislative exclusionary rule. Id. If the policy in question has a substantial impact, then the agency must publish a notice of proposed rulemaking (NPRM) in the Federal Register which, among other things, makes "reference to the legal authority under which the rule is proposed," its terms, and gives "interested persons" "an opportunity to participate in the rule making through submission of written data, views, or arguments . . ." 5 USC § 553. Failure to do this is an absolute defense to agency action. 5 USC § 706. Interestingly, FAA officials are counseled that:
A primary Congressional consideration underlying the Administrative Procedure Act is that a regulatory agency afford the public an opportunity to participate in its rulemaking processes. Both the letter and the spirit of the rulemaking provisions of this act shall be observed. FAA follows the principle that the public interest is best served when regulatory affairs are open to the public to the fullest extent possible.
FAA Rulemaking Policies, FAA Order 2100.13, ¶ 22.a at page 8 (1976). In 1981 Mr. Smith brought an action pro se in U. S. District Court in an effort to force FAA to adopt certain enforcement policies through APA procedures. The case was dismissed for lack of standing. On appeal to the U.S. Court of Appeals, D.C. Circuit, the government argued that Mr. Smith "has not exhausted administrative remedies available to him, for he has never petitioned for rulemaking with respect to the procedures set forth in the enforcement manual. See 14 C.F.R. § 11.25." Smith v. FAA Administrator, D.C. Cir., No. 82-1485 (1982), at page 15, note 8 [emphasis added]. Mr. John Cassady, present FAA Deputy Chief Counsel, was Of Counsel on the brief. This petition, of course, is precisely what Cassady was insisting upon.
"'[R]ule" means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency . . ." 5 USC § 551(4). We repeat, never in its 30-year history have agency officials adopted a single enforcement rule through public notice and comment, nor even published key policies in the Federal Register. In one case, these officials deliberately changed their civil penalty rule so that ever since it contradicts the statute on which it is based; the rule, by design, misrepresents the law.
The Administrative Conference of the United States (ACUS), an independent agency that monitors and reports on federal administrative law, in a report dated November 10, 1988, to Senator Dennis DeConcini (D. Ariz.), who sits on the Senate Judiciary Committee subcommittee on courts and administrative practice, has urged Congress to look at several FAA enforcement practices. DeConcini asked ACUS to review the work of Mr. Smith, author of Emperor. Jeffrey S. Lubbers, ACUS research director, told the Senator that "Mr. Smith seems to have tapped into a rather rich vein of discontent about the FAA's unwillingness to articulate and disseminate its policies in a meaningful way to affected parties. I would hope that this topic would also receive further consideration by Congress and the FAA."
The report questions the logic of having two different forums for the trial of the same offense: NTSB certificate hearings, and the soon to be, instead of federal court with jury, under the temporary test program approved by Congress, in-house FAA civil penalty administrative hearings. (FAA officials will first write the traffic ticket, decide whether to prosecute, act as prosecutor, then be judge and jury! And, of course, as this proposal is designed to show, FAA officials decide whether or not the accused ever gets a jury trial.)
FAA's congresssional charter may be found in the United States Code, 49 USC §§ 1301, et seq.; agency regulations, in the Code of Federal Regulations, 14 CFR pts 1-199.
A. Two systems of justice Neither in the Federal Register nor by rulemaking has FAA ever officially told the public of the claim that it is authorized to use two distinct and unrelated tracks of justice to enforce safety rules. See 1980 Handbook at 14-15. Nor has it made clear there is a dichotomy in the use of section 609 certificate actions:
(3) Suspension action is warranted in situations where a certificate holder resists reexamination or reinspection under Section 609 of the Federal Aviation Act, or the reexamination or reinspection is not satisfactorily accomplished within a reasonable length of time (see Chapter 8).
(4) Suspension may be used for punitive purposes where the nature of the violation warrants it, except in cases where over six months have elapsed since the date of the alleged violation. (See 49 CFR 821.33, NTSB Rules of Practice). The withdrawal of the privileges of certificate is a natural, equitable, and just consequence of the abuse of such privileges.
1980 Handbook, ¶ 205.b.(3) & (4) at page 15. If FAA officials can spell out in their handbook the difference between qualifications matters, and punitive actions, why not in a rule where the public has official notice of it? Answer: it would draw attention to the fact they claim--but never openly state--that they can take away the citizen's right to jury trial. Such a claim, of course, assails the most fundamental precepts of our system of jurisprudence and democracy: one either has a right to jury, or he doesn't.
B. Choice of systems This paragraph compliments and makes more clear the consequences of paragraph A.
C. How case initiated and options (1) Any concept of fairness requires that the person being investigated be told what rule he may have violated. It is official policy he not be:
[S]pecific sections of the Federal Aviation Regulations should not be cited unless specific regulatory reference is needed to accurately identify the incident. If the facts and circumstance are adequately presented, the letter of investigation need only state that those facts and circumstances, if correct, indicate that there may have been a violation of the Federal Avation Regulations.
1980 Handbook, ¶ 402.c.(2) at page 45.
Fairness also requires that having solicited his statement the airman be told the agency can and will, if necessary, use it against him in a trial. In a 1980 meeting attended by Mr. Smith, then a GAO consultant, two U.S. General Accounting Office officials, and DeWitte T. Lawson, Western-Pacific Regional Counsel, Mr. Lawson allowed as how if "we didn't get the letter response from the airman we wouldn't be able to prove half our cases." For reference to this meeting, see Emperor at 83 n. 128.
(2) Certificate holders should be told in detail how the enforcement system works, and that their response to the FAA lawyer's letter also may be used against them in trial.
(3) The informal conference can serve a useful purpose, and the airman should be told up front that what he says there will not be used against him so he can opt for that procedure rather than prejudice himself with a written response. See 1980 Handbook, ¶ 1203.d.(3) at page 170 ("[The informal conference] is not used as a means of getting additional evidence or admissions to prove the charges in the enforcement action.").
(7) The Air Safety Reporting Program, which provides waiver of penalty under certain conditions, should be an integral part of any full-disclosure enforcement rule. FAA officials have promulgated (without public participation) a rule which provides that the ASRP-NASA report will not be used in any enforcement action. See FAR 91.57. It is indeed peculiar that this was placed in Part 91, Air Traffic and General Operating Rules, rather than the general enforcement rules in Part 13. See 1980 Handbook, Fig. 12-9 at pages 216-17.
D. Civil penalty action Since 1926, when federal regulation of aviation began, the civil penalty statutes have always provided, as the FA Act does today, that "any person who violates any rule, regulation or order shall be subject to a civil penalty." See Air Commerce Act of 1926, § 11(b), 44 Stat. 568, 574 (repealed 1938), Civil Aeronautics Act of 1938, §§ 901 & 903 (Safety and Postal Offenses), 52 Stat. 973, 1015, 1017 (repealed 1958), Federal Aviation Act of 1958, Pub. L. No. 85-726, § 901, 72 Stat. 732, 783 (codified as 49 USC § 1471). Until 1962, the Federal Aviation Agency's civil penalty rule faithfully used the "any person shall be" language. 14 CFR § 408.23 (1962). That year, FAA officials took advantage of the publication (twice) in the Federal Register of their entire set of enforcement rules, which was done only for the purpose of giving them new codification numbers. They changed "any person" to "a person," "shall be" to "is subject to," and added "if a civil penalty is contemplated." All of this was done in violation of APA publication and/or rulemaking requirements: no statement was made in the Federal Register notices that the changes were being made, much less, any explanation given as to why. See 27 Fed. Reg. 5694 (Thursday, June 14, 1962), and 27 Fed. Reg. 9586 (Friday, September 28, 1962); compare 24 Fed. Reg. 10 (1959).
Since 1962, FAR 13.15, the civil penalty rule, has misrepresented the law. Clearly this was done to imply that agency officials had a choice to do something else--the rule doesn't say what--when initiating a safety-violation case, and to avoid having to explain how they could bring a certificate action for the same violation when the rule said "shall be subject to a civil penalty."
Adding that either party "may demand trial by jury" is information that should be upfront in any civil penalty rule. But it will also underscore for those regulated by the FAA that agency officials do in fact claim they have sole discretion to determine when and if an airman can ever exercise his right to jury in a violation case.
E. Certificate action--lack of qualifications (1) As indicated in regard to ¶ A, the 1980 Handbook, ¶ 205.b.(3) & (4) at page 15, distinguishes between the two separate uses (the dichotomy) of section 609. It would be anomalous if the proposed rule failed to do so.
(3)(b) This is the "care, judgment and responsibility" rule, usually invoked because of a history of offenses, multiple violations found during a single inspection, say, of an air-taxi operator, or a serious, single infraction, like flying under the influence of alcohol, reckless flying, and so forth. The problem is that it has never been adopted through APA rulemaking procedures, nor even published in the Federal Register. It will obviously promote air safety to have pilots and operators well aware of the risk. Most often it is used to support emergency revocation which, in the case of an operator, will usually bankrupt the business, or cause an individual to lose his job, even if they later defeat the underlying charges.
Interestingly, FAA officials at one time agreed there should be such a rule. In a 1971 memorandum, General Counsel George U. Carneal, Jr., told the Deputy Administrator:
[T]he regulatory proposals are progressing satisfactorily. . . . The project dealing with compliance disposition [a euphemism for repeated offenses] has been restructured and returned to Flight Standards for further work. We will by this project require willingness or "compliance disposition" as a prerequisite [for section 602 certificate applications] and continuing element of qualifications [under section 609] for all FAA certificate holders.
FAA Memorandum (Oct. 18, 1971); see Emperor at 92 n. 180. Even more interesting is the fact that the Civil Aeronautics Board (CAB), to whose quasi-judicial enforcement duties NTSB succeeded in 1966, in 1964 ruled squarely that the FAA could not impose the care-judgment rule because it had never been lawfully adopted. In overturning FAA denial of a student pilot application because the person had a bad record (previous revocation), the CAB said:
[I]t does not follow that the administrator may apply such standards to applicants where he has not prescribed [them] . . . in the Regulations. . . . [I]t is our view that applicants for certificates are entitled to have notice of the eligibility requirements which they must meet. . . .
Petition of Sichel, 39 CAB 975, 976 (1964); see Emperor at 91. This is precisely what the APA commands, and the CAB cited that Act as authority for reversing FAA. Id.
The Carneal project evidently was buried after he left the agency and never completed. Both FAA and NTSB ignore Sichel, and continue to apply the care-judgment rule even though that violates the APA.
F. Certificate action--punitive sanctions
THE NEED FOR A RULE
(1) No statute, no rule, contains language that so much as hints that pilot, mechanic or operator licenses may be suspended or revoked as a punitive sanction for the violation of safety rules. Since 1926, seminal year of federal regulation of aviation, this has always been true of the aviation statutes. A rule, however, did once exist, 1926 to 1940:
Pilots' and mechanics' licenses will be suspended or revoked for (A) Violating any provision of the air commerce act of 1926 or these regulations. . . . (F) Violating air traffic rules.
Department of Commerce, Air Commerce Regulations § 74(a), (f) (1926). Codified in the seminal edition of the Code of Federal Regulations, 14 CFR §§ 20.37, 20,37110, 20.46, 20.463, 21.27110 (1938), this rule disappeared in 1940, see 14 CFR pt. 20 (1941)), and was never replaced. Emperor at 61 and 85 explains why.
Since common sense dictates the agency should have such a rule, the great puzzlement is why, in its 30 years, FAA officials have never adopted one. As just seen, their enforcement manual distinguishes between qualifications matters and punitive sanctions, 1980 Handbook, ¶ 205.b.(3) & (4) at page 15, but their certificate suspension rule, FAR 13.19, speaks only of qualifications. The agency has recognized the dichotomy--qualifications vs. punishment--from the beginning: "[V]iolation of any rule, regulation or order issued by the Administrator is punishable either by certificate or civil penalty action." Manual of Procedures 22, Bureau of Flight Standards, Federal Aviation Agency .0 Enforcement Authority (1960). And years later, the dichotomy was explained:
200. GENERAL Although the reexamination of certificated airmen and reinspection of certified aircraft, aircraft components and appliances, air navigation facilities and air agencies do not involve enforcement in the strict sense of "punishment of offenses," they are considered in this handbook because the objective and the procedures are identical with those applicable to enforcement matters.
201. AUTHORITY Under Section 609 of the Federal Aviation Act of 1958, the Administrator is authorized to "reinspect any aircraft, aircraft engine, propeller, appliance, air navigation facility or agency," and "to reexamine any airman" at any time. . . .
Inspectors Handbook at 141.
Lack of a rule is even more curious because this punitive interpretation of section 609, when attacked, has been upheld by courts of appeal: Wilson v. C.A.B., 244 F.2d 773 (D.C. Cir.), cert. denied, 355 U.S. 870 (1957); Hard v. Civil Aeronautics Board, 248 F.2d 761 (7th Cir.), cert. denied, 355 U.S. 960 (1957); Pangburn v. Civil Aeronautics Board, 311 F.2d 349 (1st Cir. 1962) [these three hereafter sometimes referred to as the Triad]; see also Go Leasing v. NTSB, 800 F.2d 1514 (9th Cir.); and Komjathy v. NTSB, 832 F.2d 1294 (D.C. Cir.); cert. denied, ____ U.S. ____ , 108 S.Ct. 2825, 100 L.Ed. 926, 56 U.S.L.W. 3848 (1988). Wilson was the touchstone, the rest have simply followed its lead. We address Wilson below.
The punitive certificate sanction policy is quite obviously a "statement of general policy"; and, since section 609 says naught of violations, it is clearly an "interpretation of general applicability formulated and adopted by the agency." Although required by the APA, 5 USC § 552(a)(1), it has never been published in the Federal Register. That failure is an absolute defense to any enforcement action. Id. It is, to say the least, "substantive," and therefore should be promulgated through the APA public notice and comment procedures (NPRM) required by 5 USC § 553. Again, that failure is an absolute defense. Id. § 706. Thus the entire certificate penalty program is subject to collapse any time an appeals court should choose to rule on these issues. None has yet done so. The way to cure the problem and prevent that is to adopt the proposed rule. If FAA has the authority it claims, why would it not do so? It is unfair and misleading for FAR 13.19 to speak only of qualifications, but not of violations. Why are FAA officials so reticent to use that word? When drafting then Administrator Langhorne Bond's famous "get tough" enforcement policy, FAA lawyers used "violation" 28 times. See FAA Order 1000.9C (Apr. 26, 1979).
(4) It is only fair that certificate holders be told up front that the proposed suspension cannot be increased by FAA. It will promote freer discussion at the informal conference. Lawyers Handbook, ¶ 23.e. at page 38. Section 609, by inference, limits NTSB: the Board may only review FAA orders, if it ordered 30 days, NTSB cannot impose 60 because that is not what the agency ordered.
(5) By noting in an NPRM that prior offenses can be and often are factored into the current proposed suspension, the public will be alerted to comment on whether, as with auto violations, there should be an age limit for their use; also, whether the accused should be notified that they will be so that he may come to the NTSB hearing prepared to show the prior offense shouldn't be considered, or was of a minor character. This warning was in fact given under the CAA and CAB. See 14 CFR §§ 30l.5 and 301.26 (1956); Emperor at 93 n. 182. It is only fair that the accused pilot, mechanic or operator, before deciding whether to accept or contest a certificate sanction, be aware that if he doesn't contest it the record of it may be used in any later violation case. Some might think it anomalous that having already served one penalty for a violation, the airman should be penalized for it once more. "The sanction serves as punishment for the particular violation . . . In selecting the sanction, consideration should be given to various factors: (3) Past violation history . . ." 1980 Handbook, ¶ 206.a.(3) at page 17. A second and similar offense often draws a stiffer penalty, but it should it not be done, if at all, in a structured system which the public has had a part in creating?
(6) All those professional pilots who are subject to company discipline, should be aware that FAA officials can take this into consideration and order a suspension that confroms retroactively, or in futuro, to avoid double or extra-harsh punishment.
LACK OF AUTHORITY
Introduction There are three basic arguments against FAA's claim of authority to order suspension and revocation penalties: (1) There is no evidence Congress has ever considered or intended such a thing, and providing two disparate systems of justice for the same offense doesn't make sense; (2) The cases which uphold it are based on a fundamental mistake of fact and therefore valueless as precedent; (3) Language about public interest and air safety is an unconstitutional basis for sanctions and violates the APA. (Note: Emperor covers arguments one and two in depth.)
(1) Never intended--makes no sense Legislative history is the key. Federal regulation of aviation has been governed by three acts: (a) the Air Commerce Act of 1926 (1926 Act), the thrust of which was to regulate aviation; (b) the Civil Aeronautics Act of 1938 (1938 Act), the thrust of which was economic regulation and subsidization of airlines; and (c) the Federal Aviation Act of 1958 (1958 Act), the thrust of which was to shift safety regulatory authority from the CAB, especially air traffic control which had been divided between civil and military with disastrous results, and concentrate it into the hands of a regulatory "Czar" heading an independent agency. In 1966, FAA lost its independence and became a modality in the new Department of Transportation (DOT). The agency today is a continuum from the original 1926 Department of Commerce Aeronautics Branch.
In the seminal year of 1926 Congress did exactly what one would expect, it chose an enforcement system: civil administrative penalties for violations of air traffic and other rules, with either government or accused having the right to demand jury trial in federal court (or waive that and opt for just the judge). Civil Aeronautics, Legislative History of the Air Commerce Act of 1926, at 59 (1928) [hereafter 1926 History]; see Air Commerce Act of 1926, ch. 344, § 11(b), 44 Stat. 568, 574 [hereafter 1926 Act]. The House chose criminal penalties, fines of up to $500 and/or 90 days in jail. 1926 History at 45. It was the Senate's version, patterned after marine navigation laws, which won out in conference committee. Id. at 51; see Emperor at 67.
At no time in 1926--or since--has Congress ever considered use of certificate suspensions and revocations as penalties for safety violations, or a one-man administrative hearing the forum in which to try them. No such legislative history exists. No congressman has ever introduced such a bill; no committee hearings have ever been held on such issues.
The 1938 and 1958 civil penalty statutes simply repeated 1926's "shall be" subject to a civil money penalty and right to "demand" jury trial. Right to jury is fundamental to our democracy, it is hardly a "right" if someone can take it away; the money fine, for several millenia, especially in non-criminal cases, has been the civilized method of punishment.
Once one understands that this history is unassailable, in order to assert there is authority for punitive certificate sanctions, one necessarily contends that Congress:
(a) Having carefully selected civil money fines with right to jury, would turn right around and give the executive branch official who initiates the case--much less, anyone--the absolute power to set in concrete right at the start, before the accused has even had a trial and been found guilty, the kind of punishment he will suffer, and determine whether or not he can ever exercise his right to "demand" a jury. And do this without a shred of legislative history to support it.
(b) Would additionally give that official, and not the federal judge or administrative law judge who could tailor the punishment to fit the "crime," the sole and absolute power to shift from one form of punishment to the other--usually done to alleviate the harsh effects of a suspension by payment of a money fine.
(c) Would be so inept at drafting legislation that it would use terms like "reinspection" and "reexamination," knowing full well that they dealt with qualifications matters, but fail to say anything about offenses, violations, regulations, sanctions or penalties.
(2) Supporting cases based on erroneous premise Wilson v. CAB, is the touchstone case supporting so-called "deterrent" sanctions. Those which followed trace their authority back to it. (The word "penalty" is carefully avoided in the Triad cases.) Each is based on the false premise that Congress authorized them in 1938 through vague language about public interest, when in fact their use actually began in 1926. Since the issue is what Congress intended, the 1938 Act could have no relevance, unless it somehow modified or clarified it, which it did not, thus any argument must be conducted in the time-frame of 1926. Emperor at 69. Even though they're aware of this, agency lawyers continue to cite the Triad as authority; they do this even in the face of FAA's own official history which shows that punitive suspensions and revocation started in the 1920s. See N. Komons, BONFIRES TO BEACONS, FEDERAL CIVIL AVIATION POLICY UNDER THE AIR COMMERCE ACT 1926-1938, AT 107-08 (1978). Emperor at 69-70.
In fact, the government lawyers in Wilson never claimed the authority came from 1938 Act, but from the 1926 Act, and all that Congress was doing in 1938 was passing the system through as it had been since that year. Moreover, the 1926 Act contained no "public interest" language, so that could not possibly have been the source of power. Emperor at 69-77. It is simply fact that neither today's FAA officials nor their predecessors have ever claimed in any official document, memorandum, brief, etc., that in 1938 or 1958 Congress considered, then decided to authorize government aviation officials to suspend or revoke anytime they thought it to be in the public interest.
(3) Unconstitutional delegation of power Even if such intent could be assumed on the part of Congress, the section 609 language about public interest, on its face, is an unconstitutional delegation of power. It is a broad discretionary power obviously leaving to the Administrator the choice of what it may be used for. In fact, this is precisely what the CAB argued in Wilson: that in 1926, the act which originated the authority, because it did not specify them, Congress left the purposes for which he could suspend and revoke certificates to the Secretary of Commerce's discretion. Emperor at 76. Thus punitive certificate sanctions have always been the creation of the executive branch. It is well-established by the Supreme Court that Congress may not constitutionally delegate its power to create benefits or sanctions. See United States v. Eaton, 144 U.S. 677 (1892), and United States v. Grimaud, 220 U.S. 506 (1910).
This principle is enunciated in the APA: "A sanction may not be imposed . . . except within the jurisdiction delegated to the agency and as authorized by law." 5 USC § 558(b) [emphasis added]. Noting earlier that this section codifies constitutional law, its legislative history provides:
[It] means that agencies may not undertake anything which statutes or other adequate sources of authority (such as treaties) do not authorize them to do. Where these sources are specific in the authority granted no additional authority may be assumed. . . . Sanctions in the way of penalties or relief must be identified and authorized by law, and where authorized they must in any case apply in the factual situation presented.
S. Rep. No. 248, 79th Cong., 2d Sess. 274 (1946). What could be more clear? The FA Act is specific about the authority granted for penalties: civil-money fines with right to jury trial. Nothing in it identifies suspension or revocation as a penalty or sanction for the violation of a safety regulation. Although section 558 was raised in Go Leasing and Komjathy, neither appeals court ever explained where in the FA Act punitive certificate sanctions are identified. (The issue was neither raised nor addressed in the Triad.)
G. Certificate actions--NTSB appeals
This information is vital to an overall understanding of FAA enforcement. It is only fair that the airman or operator be aware of it right at the start so that he can make informed choices about his options. The attitude of FAA officials on this:
One regional counsel, when asked why FAA has never prepared a booklet that explains the system in layman's terms, and especially one that explains the NTSB hearing process, underscored the reason for the omission. "If we told pilots how easy it was to go to trial at NTSB, we would be swamped with trials."
Emperor at 83.
H. Shift in sanctions
NEED FOR A RULE
Shifting sanctions--usually suspension to a money fine--has been policy since 1926, and still is:
Shift in sanctions Ordinarily it will not be FAA policy to withdraw one remedy, after it has been commenced, to pursue another, although circumstances may arise in which such action is appropriate. An example where such action would be appropriate is when counsel has commenced certificate action against a pilot and thereafter learns that the pilot uses an aircraft in business or a profession and that the proposed suspension would constitute a sanction much more severe than is warranted by the violation. Contrary situations will also occur. [Civil penalty shifted to certificate--very rare.]
1980 Handbook, ¶ 1202.a.(4) at page 163. Is it not grossly unfair to fail to tell all airmen they may at least ask whether they can switch from certificate action to a money fine, rather than leave the matter to chance? Suspension can cost thousands in wages, loss of job, ruin career chances, and inconvenience employers, especially smaller operators. In 1980 37% of civil penalty settlements were cases that began as certificate actions; of those shifted, 92% were professional pilots or mechanics. Average suspension proposed was 53 days, average cash settlement, $340.00. Obviously, even at a modest wage of $1,500 per month, suspension would have caused a loss of more than $2,500. (Civil penalty limit for individuals: $1,000.) See Emperor at 79 n. 115; and esp. pp. 98-99.
This policy is a "statement of general policy"; since neither section 609 nor 901 speaks of the other, or of shifts, it is also an "interpretation of general applicability formulated and adopted by the agency." It has never been published in the Federal Register. That failure is an absolute defense to an enforcement action. 5 USC § 552(a)(1). Obviously it is "substantive," and should be promulgated through APA public notice and comment procedures (NPRM). 5 USC < 553. Again, that failure is an absolute defense. Id. < 706. No court has yet ruled on this issue. The way to cure the problem is to adopt the proposed rule. Common sense requires it. If FAA officials have the authority, why would they not?
LACK OF AUTHORITY
The real question, is why the great majority of violation cases are initiated as certificate actions in the first place, especially against professionals, or businessmen who use private aircraft for transportation. As seen, no language in 1926, '38 or '58 hints at authority to operate two disparate tracks of justice, much less shift back and forth between them. Starting a case against an airline, commuter or air-taxi pilot, knowing full well a suspension will likely cost him thousands of dollars, thus backing him into a corner so he'll be happy to pay a money fine, is called "blackjacking," so described as early as 1954 by the CAA general counsel. See Emperor at 79-80 notes 113-115; see also Smith, FAA Blackjack, PROFESSIONAL PILOT, Feb. 1981, at 91. Why do FAA officials engage in blackjacking? See Emperor at 81.
FAA lawyers fail to tell the accused, when allowing a shift, that he is being forced to waive his right to jury trial--which avoids having to explain it. Had they used the civil penalty track to begin with, he would've been in a position to say, "I didn't do it, I won't pay, sue me," and then to "demand" jury trial. Shouldn't these officials have to explain how they are able to deny him that right when allowing him to settle the case that way? To compel them to do so, is a major purpose of this proposal.
I. Emergency power
NEED FOR A RULE
In its three decades FAA has never promulgated a rule on the use of its emergency power. FAR 13.19 merely adverts to it. A rule did once exist, however, under the old CAA. 14 CFR § 408.25 (1952). (Some language in this proposal was adapted from it.) The public should be told what the criteria are for declaring an emergency, and have a say in what those should be. The Supreme Court has said:
The Administrative Procedure Act was adopted to provide, inter alia, that administrative policies affecting individual rights and obligations be promulgated pursuant to certain stated procedures so as to avoid the inherently arbitrary nature of unpublished ad hoc determinations.
Morton v. Ruiz, 415 U.S. 199, 231-32 (1974). All FAA determinations of emergency are ad hoc.
The power is draconian. It puts the pilot out of his job, it puts the operator into bankruptcy. To accomplish this all FAA counsel need do is dictate a form letter to his secretary and sign it. All he need say is that "he has determined that safety in air commerce and the public interest require the immediate revocation" of the certificate. He need not explain under oath in an affidavit how the person or business is a threat to air safety. Even if the operator defeats revocation (extremely rare), he won't have a decision from the NTSB for 60 days. Few can survive that. And if he does defeat it, the Board will just reduce it to several months of suspension--a pyrrhic victory.
Rarely is action taken overnight after recognizing there may be a serious problem; it may take a week or two or much more to develop. It usually happens after a special inspection that dredges up from years-old records a list of claimed violations. Often the problems are corrected before the emergency is declared, or readily correctible. The revocation order will assert that because of the alleged violations the pilot or operator "lacks the care, judgment and responsibility required of any certificate holder," and therefore the qualifications to hold it. As already noted, the problem with this is that FAA officials, in violation of the APA, have never promulgated any such rule, although they once initiated a project to do so.
The vital issues which this NPRM will allow the aviation public to address are:
(1) Shouldn't the officials who claim there is an emergency be required to sign under oath an affidavit specifying in detail why the pilot or operator is an immediate threat to air safety, whether the alleged problems have been corrected and, if they can't be, explain why not?
(2) Shouldn't there be a prompt judicial hearing, strictly on whether the certificate holder is truly a threat to air safety, and whether he can keep his act together in the future?
(3) Shouldn't the power be limited to specific top-level officials who can be held strictly responsible if abused?
(4) Shouldn't other and more sensible procedures be used: license key personnel, such as, director of operations, director of maintenance, chief pilot, and so forth, then suspend, revoke or put them on probation, rather than destroy the entire business?
The present system is grossly unfair in that FAA officials employ a double standard between large carriers and the smaller operator. Almost without exception it is the little guy who is shut down. See Higdon, FAA enforcement--A double standard?, AIR TRANSPORT WORLD, Jun. 1986, at 78.
Provincetown Boston Airlines (PBA) is probably the biggest emergency shutdown ever--but FAA ran in more than two dozen inspectors to quickly recertify it. It jeopardized some 1200 employees, helped precipitate the company into Chapter 11 bankruptcy, and later it was 24 hours from being closed forever but for its purchase by a larger carrier. Yet it is well known that FAA officials were seeking to force out a few individuals in top management, including the president. This could have been accomplished with a key-personnel licensing system. Forcing replacement of a company president, or director of maintenance is far more humane than destroying an ongoing business. What about employees with families to support? General creditors? Stockholders? Bankers? Aircraft leasing firms?
AN UNCONSTITUTIONAL POWER
The NTSB has long held the position that it is not authorized to determine if a true emergency exists, but may only make findings on the underlying charges. See South Pacific Island Airways, Inc., NTSB Order EA-2526 at 3, n. 4, May 26, 1987, SE-8089. The certificate holder is thus denied any immediate hearing strictly on the issue of whether he or the operation truly is such a threat to air safety that being shut down is the only solution pending a final determination of the charges. As indicated, even if the operator defeats revocation, or gets it reduced to a suspension, the victory is pyrrhic, because few can survive the sixty days.
The eminent jurist, the late United States District Judge Wyzanski, saw that the section 609 emergency order denying the otherwise automatic stay "might be regarded as analogous to a judicial temporary restraining order issued ex parte in an emergency." United States v. Harper, 335 F.Supp. 904, 906 (D. Mass. 1972). Such a TRO brings with it the right to an immediate hearing. See Federal Rules of Civil Procedure, Rule 65(b). While recognizing that sometimes genuine emergencies do occur, this rule makes certain that the subject of the TRO gets a hearing within ten days, if not sooner. Is it fundamental that parties whose rights are to be affected are entitled to be heard. Matthews v. Eldridge, 424 U.S. 319 (1976). On its face, then, the section 609 procedure, for failure to provide a hearing is unconstitutional.
Judge Wysanski explained:
The right of a person to be heard before he is deprived of his property by governmental action is the most elementary, fundamental, and comprehensive of the rights guaranteed by the due process clause of the Fifth Amendment. [Citing cases] . . . Such a guarantee may be validly limited only under the most compelling circumstances and then generally only for the briefest of periods. . . .
335 F.Supp. at 906-07. The Ninth Circuit has held that because the FA Act, § 1006, 49 USC § 1486, provides that final FAA (and NTSB) orders may be appealed to a circuit court of appeal, this complies with due process in an emergency. See Go Leasing, Inc. v. NTSB, 800 F.2d 1514 (9th Cir. 1986), and Nevada Airlines v. Bond, 622 F.2d 1017 (9th Cir. 1980).
That position is totally without merit. Circuit courts are not constituted to conduct open hearings with witnesses, afford discovery, issue subpoenas, etc. To learn of this procedure a lawyer would have to read extensively in case-reporter books, rather than plain language in a statute or rule, such as, Rule 65(b). Moreover, the Ninth Court's decision has no force in any of the other eleven geographical circuits; and there isn't the slightest evidence Congress ever intended section 1006 for that purpose. To the contrary, it gave FAA explicit power in section 1007, 49 USC § 1487 (incorporated in FAR 13.25), to go to district court, the federal trial court, and gave it a broad spectrum of power to enforce the FA Act, even including punitive damages. There the certificate holder would be afforded the protection of Rule 65(b), and thus given an immediate hearing. Moreover, the judge, if appropriate, with his civil contempt powers, could be flexible and impose conditions which would allow the operator to stay in business but ameliorate safety concerns and protect the public.
But herein lies the real problem. Congress, evidently without any real thought to its implications, gave the FAA two different paths to follow in an emergency. To go the federal court route, FAA lawyers must first "sell" their case to an overworked United States Attorney, then, of course, to the judge himself. District judges would be extremely cautious and require affidavits and other proof of necessity before shutting down a going business, or putting a person out of his job. But on the other hand, to invoke section 609, all the FAA lawyer has to do is dictate and sign a form letter, serve it on the holder, and send a separate letter to the NTSB declaring the emergency.
Which course of action is his obvious choice?
J. Delegation of authority and restrictions
FAA customarily places in the FARs the titles of those officials to whom the Administrator has delegated his enforcement authority. Recently, however, the chief counsel has modified these powers by internal memorandum. The aviation public should know specifically who all the officials are who make the decisions which often have such a drastic impact. Much of this paragraph is drawn from a memorandum of former chief counsel E. Tazewell Ellett, dated March 10, 1986, which limited the authority of regional counsel and required Washington approval of certain enforcement actions.
Respectfully submitted,
Lawrence B. Smith
Attorney at Law
PETITIONERS
Steven J. Wolff, ATP, Supplemental carrier Captain.
Dale Haralson, Pvt lic., attorney, owns Cessna 421-C.
Burton J. Kinerk, Pvt lic., attorney, owns Cessna 182RG.
Carter Morey, Pvt lic., attorney, owns Cessna P210.
Barney J. Tearney, ATP, Southwest Airlines Captain.
Ronald L. Hauck, ATP, Pres., a/c sales & operations company.
Dudley P. Tenney, ATR, USAir Captain, ALPA member.
Robert L. Wantland, Comm lic., A&E & AI, 21 years FBO.
Robert E. McKernan, President, FBO.
Ronald J. Clark, ATP, former Part 121 & 125 operator.
Patricia J. McKernan, Pvt license.
Steven Stanton, ATP, air-taxi pilot.
Carlisle M. Vereen, Jr., Comm license.
Clyde Staneck, Comm lic., pilot with suppl. air carrier.
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