RELEVANT LAW

FA Act §609, Certificate Actions

[LICENSE PENALTIES]

49 U.S.C. app. § 1429(a) (1982)

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, [he] may issue an order amending, modifying, suspending, or revoking, in whole or in part, any * * * certificate * * * Any person whose certificate is affected by such an order * * * under this section may appeal * * * to the National Transportation Safety Board * * *

Comment -- This earlier codification of section 609 is used because it accurately restates what the Federal Aviation Act of 1958 itself says. The current codification, discussed in the Coverup section, has changed the language around, when there was no need to. Anyone can see: (1) there is absolutely no language here that so much as hints at a connection between sanctions for safety violations, such as, suspension or revocation of an airman's certificate; (2) anyone who can parse a sentence can see that "if, as a result of" is a condition subsequent to first reinspecting, reexamining or investigating, not a grant of power to do anything the Administrator feels like doing. The way to read it is see it as a grant of power to the Administrator not have to take action, "if" he feels it not to be in the public interest. This entire problem is covered in detail in Emperor.

One more thought. How absurd is it that FAA lawyers are claiming that Congress would spell out in plain English words that relate to qualifications matters, "reinspection," "reexamination" yet not use words like "sanction," "penalty," "violation," and so forth?

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Civil penalties

Section 901, 49 U.S.C. app. § 1471 (1982), reads (pertinent parts):

(a)(1) Any person who violates (A) any provision of [this 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 . . .

(2) Any civil penalty may be compromised by the [Administrator] . . .

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Section 903, 49 U.S.C. app. § 1473 (1982), reads (pertinent parts):

(a) District of offense or district of arrest

The trial of any offense under this chapter shall be in the district in which such offense is committed [etc.] . . .

(b) Procedure in respect of civil penalties

(1) Any civil penalty imposed or assessed under this chapter may be collected by proceedings in personam against the person subject to the penalty . . . Such proceedings shall conform as nearly as may be to civil suits in admiralty . . . [and] either party may demand trial by jury of any issue of fact, if the value in controversy exceeds $20, and the facts so tried shall not be reexamined other than in accordance with the rules of the common law.

Comment -- What could be plainer? Note that FAR § 13.15, the civil penalty rule, reads that "a" person "is subject to a civil penalty," for violations. Read The Coverup section.

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14 CFR. § 1.3(b)(1) (same cite in FARs): "Shall" is used in an imperative sense: . . . [Only when FAA lawyers determine it does not diminish the powers they claim.]

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KEY APA SECTIONS

5 U.S.C. § 551. Definitions

For the purpose of this subchapter--

(4) "rule" means the whole or part of an agency statement of general or particular applicability and future effect designed to implement, or prescribe law or policy . . .

(5) "rule making" means agency process for formulating, amending, or repealing a rule;

5 U.S.C. § 552. Public information; agency rules, opinions, orders, records and proceedings

(a) Each agency shall make available to the public information as follows:

(1) Each agency shall separately state and currently publish in the Federal Register for the guidance of the public--

. . .

(D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency; and

(E) each amendment, revision, or repeal of the foregoing.

Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published. . . . (emphasis added.)

5 U.S.C. § 558. Imposition of sanctions; determination of applications for licenses; suspension, revocation, and expiration of licenses

(a) This section applies, according to the provisions thereof, to the exercise of a power or authority.

(b) A sanction may not be imposed or a substantive rule or order issued except within jurisdiction delegated to the agency and as authorized by law.

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Notes: "Substantive" rules are those that have a substantial impact on the public, like taking away your airman certificate in which you have a legal property interest.

"Adopted as authorized by law" refers to the Notice Proposed Rule Making process, which is set out in 5 U.S.C. § 553.

The suspension or revocation of an airman certificate as a sanction for the violation of an air safety rule is both a statement of general policy and an interpretation of general applicability formulated and adopted by the FAA.

The FAA is authorized by law to seek civil penalties for the violation of air-safety rules, but not to administratively impose the sanction of certificate suspension or revocation. It is that simple.

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Here are what a few courts have said in applying the Administrative Procedure Act:

"The statute [5 U.S.C. § 552(a)(1)] clearly provides that no administrative action taken pursuant to unpublished procedures can be allowed to stand against a person adversely affected thereby." Northern California Power Agency v. Morton, 396 F.Supp. 1187, 1191 (D.D.C. 1975), affirmed 539 F.2d 243 (D.C. Cir. 1976).

"Any agency regulation that so directly affects preexisting legal rights or obligations . . . indeed, that is 'of such a nature that knowledge of it is needed to keep the outside interests informed of the agency's requirements in respect of any subject within its competence,' is within the publication requirement [of the APA]." Appalachian Power Co. v. Train, 566 F.2d 451, 455 (4th Cir. 1977).

"Any claim of exemption from APA rulemaking requirements 'will be narrowly construed and only reluctantly countenanced.' [Citing cases]" Environmental Defense Fund, Inc. v. Gorsuch, 713 F.2d 802, 816 (D.C. Cir. 1983).

"The reviewing court shall--hold unlawful and set aside agency action . . . found to be-- . . . not in accordance with law." Id. § 706(2)(A); Aiken v. Obledo, 442 F.Supp. 628, 650, (D.C. Calif. 1977).

"The purpose of requiring a statement of the basis and purpose is to enable courts, which have the duty to exercise review, to be aware of the legal and factual framework underlying the agency's action." Am. Standard, Inc. v. U.S., 602 F.2d 256, 269 (U.S.Ct. of Claims 1979).

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PURPOSE OF THE ADMINISTRATIVE PROCEDURE ACT

Senator Pat McCarran (McCarran Field, Las Vegas), sponsor of that Act, and Chairman of the Committee on the Judiciary, called it:

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. . . .a bill which to my mind and to the mind of the bar of America is one of the most important measures that has been presented to the Congress of the United States in its history. . . .a bill of rights for the hundreds of thousands of Americans whose affairs are controlled or regulated in one way or another by agencies of the federal government. . . .

S. Rep. No. 248, 79th Cong. 2d Sess. at III, 297 and 298 (1946).

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The FAA Administrator counsels his officials that:

A primary Congressional consideration underlying the Administrative Procedure Act is that a regulatory agency afford the public an opportunity to participate in its rule-making 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. (Emphasis added.)

FAA Rulemaking Policies, FAA Order 2100.13, § 22.a. at page 8 (1976).

Note: Keep in mind Senator McCarran's statement, this FAA order, and the plain language of the APA, as you read 75 Years of Coverup.

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A DIFFERENT STANDARD OF JUSTICE FOR AIRSAFETY CASES

If one were to tell a federal judge there is a different standard of justice for cases involving air safety, he or she would no doubt take serious umbrage at the remark. Determine the truth of it for yourself.

Wilson -- In the touchstone case that upheld suspension of a pilot's license for safety violations, the District of Columbia Circuit ended its extraordinarily short opinion (barely a page in the Federal Reporter): "The most cogent of reasons--air safety--supports the administrative practice here under attack." Wilson v. Civil Aeronautics Board, 244 F.2d. 773 (D.C.Cir. 1957). And remember, the only basis for the conclusion that the CAA (soon to become FAA) had authority for "disciplinary" and "deterrent" sanctions was based on vague language about public interest and air safety in section 609. All cases that follow Wilson cite it for authority, or can be traced back to it. No case has ever come up with any different theory of what Congress intended, in order to support punitive certificate sanctions.

Nadiak -- "The public--including judges who fly--has a vital interest in air safety." Nadiak v. CAB, 305 F.2d 588, 595 (5th Cir. 1972).

Canfield -- When confronted with an FAA regulation that on its face is a Bill of Attainder, and certain due process issues, the Fifth Circuit made it clear there is indeed a different standard: "[W]e find that the administrative proceedings met all necessary due

process requirements, especially when considered in the light of the obvious public safety concerns involved in air traffic regulations. Accordingly, we affirm the order of the NTSB." Canfield Aviation v. NTSB, 854 F.2d 745, 746 (5th Cir. 1988) (emphasis added).

This case happened to be one of my own, and it had absolutely nothing to do with "air traffic regulations."

Landy -- Introducing his partial dissent against the FAA in a large civil penalty case, one circuit judge summed up the problem nicely: "Because air safety ranks somewhere in the pecking order between motherhood and the American flag, it would be easy to concur fully in the majority opinion." F.A.A. v. Landy, 705 F.2d 624, 637 (2nd Cir. 1983).

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