FAA Legal Reorganization is an Effective Mechanism of a New Compliance Policy Now

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A recent flurry of important, perhaps more aptly “landmark,” FAA documents signaled a new era in FAA compliance policy. The messages of FAA Order 8000.373, Compliance Philosophy, FAA Order 2150.3B, FAA Compliance and Enforcement Program and FAA Order N8900.323 are that there is a shift from Enforcement to compliance or from civil penalties to collaborative solutions or from certificate actions to interdependence. As encouraging as these declarations are, there is some doubt as to whether the field would follow these pronouncements from Washington.

At a recent Aviation Law Conference, a significant reorganization by Reginald Govan, the Chief Counsel, was described by Cynthia Dominik. This little heralded change could provide an immediate, effective mechanism to assure national implementation of the new Compliance Philosophy.

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As of July 27, 2015 AGC-300, the Enforcement Division headed by Peter Lynch has a direct relationship between Headquarters and the field attorneys. The Washington offices still house the Appellate Practice and the Special Enforcement Practice. Now, however, Ms. Dominik is designated as a Deputy to Mr. Lynch to lead five teams of capable counsel located in a variety of offices. The Team Managers and lawyers of this new group reside in the field; they include:

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The NE, SO, MW, SW and WP cadres will be the only lawyers who will be involved in enforcement/compliance cases. The Regional Counsel Offices (7 in number) used to include these cases in their generalist portfolio; the lawyers remaining in the regional offices will handle all of the other legal assignments.

Cindy and her five Team Managers will be solely responsible for the legal analyses and decisions for these cases for the future. [They will have the pleasure of figuring out how to meet the Inhofe Pilots Bill of Rights I {and likely PoBR II}]. This new centralized approach will contribute to a uniform application of Order 8000.373 and N 8900.323. While field investigators have been reluctant to follow the guidance of John Allen in 2012 and even earlier in the Enforcement Evaluation Tool, every legal action will be reviewed by these new legal teams and a comparable Flight Standards group of experts.

Old practices (e.g. informal conferences, LOIs, NOCPs, etc.) will continue as in the past—just with a slightly different attitude. The past process of assigning cases based on allegations within a region will be replaced by allocation to those with some expertise and/or their comparative workloads. Otherwise, this new structure and the two new statements of compliance policies are the only substantive changes.

One of the most frequent and perhaps oldest complaints about the FAA has been the inconsistency in interpretation of the FARs. An ARC was established to identify methods in which a specific regulation will be read in the same way whether the question was asked in North Carolina and in South Dakota. The group proffered an electronic library in which the answers would be recorded and subsequent questions will conform to the “precedent.” The creation of the software and the training of the thousands of interpreters will take time. The centralization of enforcement decisions should help move toward standardization.

One of the lawyers in the audience mentioned a recent meeting at which AGC-1 was alleged to say that one of the consequences of the concentration of the analyses in the Dominik filter would be that there would be “no negotiation” after that centralized, careful review. The Chief Counsel was not present; so the hearsay rule was invoked. A violation of another rule of evidence was involved when one of the audience “hypothesized” that what Mr. Govan meant that after the respondent had an opportunity to be heard—any written materials and/or informal conference—then the no negotiation rule might attach. Another cogent comment mentioned that informal conferences would be a discussion of corrective actions proposed by the certificate holder rather than a debate over the dollars of the CP.

For the many who may have been concerned that the new compliance policy might be subverted by the non-believers in the field, the Govan/Lynch/Dominik straight lining of enforcement appears to be an immediate and powerful mechanism to achieve these lofty goals.

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