NTSB’s REFUSAL TO REVERSE ASSUMPTION OF FAA’s FACTS IS LIKELY TARGET OF NEXT INHOFE CORRECTION OF WRONGS

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ARTICLE: NBAA “Disappointed” In Safety Board Action

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The NTSB adjudicates disputes between the FAA and a variety of certificate holders in cases which that authority has been suspended, modified or revoked. Historically in all of its oversight functions, the Board appears to have relished questioning the agency’s actions.

In that context, it is not surprising that aviation groups sought to have the NTSB reconsider its rule, in emergency actions of the FAA, which compelled the review to accept the allegations to be true and accurate. NBAA, AOPA, EAA, NATA and ALPA requested that the Board drop that rule which favors the FAA.

Surprisingly, the NTSB (PDF) rejected the request, citing that its staff resources were inadequate to make a de novo review of the facts in the time constraints of an emergency appeal. For an adjudicatory body that is supposed to bring some fairness to the process that is quite a statement! In essence, the NTSB is saying “Sorry, but we do not have the right number of people to make sure of the facts when an adverse decision will immediately, and perhaps permanently, destroy your livelihood.”

What makes this stance even more bizarre is to contrast the NTSB’s policy stance with the recently enacted Pilots Bill of Rights. Sen. Inhofe introduced legislation which radically altered a number of existing statutory rules which favored the FAA. This major revision to the FAA’s enforcement process and to the NTSB’s evidentiary, procedural and interpretative processes was passed by the Senate and then the House—without hearings, without amendment and in record time. It would not require the incredible insight of a preeminent pundit to analyze that the Congress was expressing severe dissatisfaction with the review of FAA same enforcement actions. Even more to the point, S.1335 made it clear that :

Another significant change in the balance of proof is found in §2(c). The statute, 49 USC 44709(d)(3), used to require that the NTSB was

“…bound by all validly adopted interpretations of laws and regulations the Administrator carries out and of written agency policy guidance available to the public related to sanctions to be imposed under this section unless the Board finds an interpretation is arbitrary, capricious, or otherwise not according to law.”

That statutory language (prior to S.1335) meant, if the FAA Chief Counsel or the Associate Administrator, Aviation Safety issued written policy guidance on the Federal Aviation Regulation at issue, the NTSB had to accept that interpretation as law unless that opinion was arbitrary, capricious or otherwise not according to law, THAT IS, only in all but a very few instances, the FAA view controlled. That meant that the certificate holder had a very difficult time arguing that the position of the FAA was wrong. That due deference was stricken; so now an airman may assert that the FAA’s reading of its own rules is wrong. THAT’S a huge change in the rules. (quoted from this blog post.)

That very fresh, emphatic statement by the Congress might suggest to the NTSB that their refusal to reverse their self-imposed rule which accepted the FAA’s facts (as opposed to the Inhofe deleted favoring of the agency’s interpretation of the law) was ill considered. Sen. Inhofe has shown a capacity to change the law and his likely “correction” of the NTSB’s rejection of the NBAA, et al petition should be embarrassing to the Board.

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7 Comments on "NTSB’s REFUSAL TO REVERSE ASSUMPTION OF FAA’s FACTS IS LIKELY TARGET OF NEXT INHOFE CORRECTION OF WRONGS"

  1. Ms. Murdock,
    Congratulations! Someone has finally published a truthful expose on the NTSB/FAA and their deliberate denial of due process. When the FAA pulls an emergency revocation out of their proverbial hat the NTSB is a guaranteed “Rubber Stamp” to approve it in appeal simply because the FAA says it is so. That appears to myself and many others as a well planned process to deny judicial review and fair and equitable application of the law. Then to have this same agency, the NTSB, state that they will not comply with the PL 112-153 because they don’t have adequate staff to determine the factual and truth of a case submitted by the FAA is an atrocity.
    It is a well known fact in the industry that certain offices within the FAA are somewhat less than honest. That would imply that many cases, involving emergency revocation, should be retroactively allowed to be re-heard in a court of law, a real court of law, not some faux ALJ and now an NTSB who has previously denied due process but will continue to violate laws using staffing as a mitigating factor.
    Time to remove the board as well as the general counsel and then observe what their replacements consider as appropriate adherence to the law as well as being a strong advocate for the practice of due process.

  2. Dear Mr. Jeszka;
    We do share a common background; we both worked for the FAA. While my post is critical of the NTSB, we do not share opinions as to the breadth of that criticism.

    The point of the above initial post was not that the NTSB was compelled to review the facts of an emergency appeal. The recently enacted language deletes a previous applicable statutory section that required the NTSB to accept the FAA’s interpretation of the laws/regulations. Thus, it is arguable that the Congressional policy amendment, not exactly on point, would influence the Board to change its rules.
    Mr. Jeszka also insinuates a lot of behaviors and motivations to the FAA and NTSB staffs. I do not share that universal condemnation.

    What we do agree upon is that the NTSB review and the FAA initial handling of enforcement cases can be improved. The Inhofe bill, passed only months ago, should make that point more strongly than Mt. Jeszka or I can.

    All that said, Mr. Jeszka, we share a passion for aviation safety and for balance in the enforcement process! JDA really appreciates your comment on this important aviation safety matter and hope to see comments from you in the future on this site.

    Sincerely,
    Mr. Sandy Murdock

  3. Richard Wyeroski | November 26, 2012 at 6:59 pm | Reply

    Mr Murdock:

    As a former FAA Inspector, I have seen first hand a complete abuse of the “emergency revocation order” by FAA. I realize that NTSB must not hinder the FAA from issuing such an order for safety reasons, However, the Judicial system is slow and frustrating. FAA knows that the NTSB will allow FAA to do as it pleases!

    The real tragedy is that the NTSB Board also rubber stamps 95% of FAA appeal cases.

    In case after case the FAA used their emergency order by FAA Managers with an agenda.

    The Pilot Bill of Rights will put the FAA on notice that evidence is now need!

    Believe me, this is systemic in FAA and needs to be investigated

    Richard Wyeroski, former FAA Safety Inspector AEA-11

  4. Dear Ms. Murdock,
    I would like to clarify who I was critical of. Certainly not the majority of hard working and honest FAA employees. They, as we both know very well, have some difficult tasks to perform under some trying circumstances. The ones I am critical of are the ones that I have factually determined to have been dishonest or violated the laws and regulations themselves. I have seen them abuse the system to retaliate for some known or unknown vendetta. The attacks that have been committed against whistleblowers have been without equal. But even after being told by an ALJ they refused to comply with the orders.
    So, there are some really bad actors in the ranks but the number of outstanding government employees within the ranks of the FAA far outnumbers the bad. If I appeared to condemn the entire work force I apologize. However, I have been lied to, had false statements made by those residing up at 800 Indy, and have seen them attempt to brutalize their own only to have some get caught in the real judicial system and have to pay the price.
    My suggestion for an amendment was to allow a direct line to an appropriate appellate court. The existing process now mandates an appeal hearing in the Administrative System, orchestrated by the NTSB. The majority, by a very large and almost unbelievable percentage of these hearings are found in favor of the FAA. Then the appeal to the Board has the same pathetic results. Denial of Due Process by this system needs to be addressed and corrected to provide every person, airman or street sweeper, doctor or dishwasher, the same access to a judicial system that starts with a presumption of innocence.
    I faced ALJ Pope. He stated that the two accused had a reason to lie because they were accused by the FAA. Not my idea of equal justice under the law. So until that element of the NTSB appeals process is controlled or corrected anyone facing the FAA in an appeal hearing, is only standing by as a spectator. The enforcement action, the appeal and then the full appeal are a foregone conclusion. And that is my complaint against the NTSB and its adopted sister the FAA.
    I forgot to mention as long as the aviation community distrusts the FAA, and many do, do you think that air safety is being adequately served. I have a difficult time with that one.

    Thanks for allowing the communications. We all appreciate the effort to improve safety. I think that we in the field have a greater understanding as to how to get there than some up in DC. I have seen my share of accidents. That would have to be the worst part of the job, especially when you know those involved.

    Thanks again,
    Ed Jeszka

  5. Mr. Ed Jeszka

    To repeat, though I have an androgynous name, I did sign the last post, MR. Sandy Murdock. Gender does not mean much these days, but attention to detail matters when we are dealing with complex legal analysis.

    I was a political appointee to the FAA and was aware of some of the inequities of which you speak.

    The good news is that Sen. Inhofe introduced and passed a bill which attempts to balance the scales of justice. If the NTSB and/or the FAA do not get the message that fairness needs to be part of the process in enforcing safety, the senior Senator from Oklahoma will rectify that. His passage of the Pilots Bill of Rights was completed quickly; so it is likely that he could easily extend his rule that the limiting the presumption of FAA’s view of legal interpretation to the facts as well as expand the protections from pilots to all certificate holders.

    Again, thanks for your input on this subject and we hope to see your views on other issues in the future.

    MR. Sandy Murdock

  6. MR. Murdock,
    And correct you are, sir. So I will apologize as having missed the Mr. in your signature block.and your readers should certainly observe your correct gender. That mistake will not happen again.

    I was just a hired hand but certainly have respect for a political appointee that has not only the wherewithal to observe these issues but also the integrity to admit they may exist and actually may have been exposed to them during your tenure at the FAA.

    There are many of us out in the field that have experienced the corruption and dishonesty that somehow has been allowed to permeate certain offices and locals. But we wont ever be dissuaded from pursuing aviation safety. Most of us have no financial ties to the FAA and therefore can’t be targeted for retaliation. When statements are made you can probably presume they are factual and are being supported by numerous documents and evidence. I know that mine are, as are many other associates.

    As ,long as we persist in focusing on the root causes why safety is being misrepresented then I really feel that we are doing aviation a service. We will continue to operate as having that as our mantra.

    Thanks again and I sincerely apologize for the gender error. I promise, am not a sexist.

    Ed Jeszka

  7. Sandy –

    ARSA too was disapointed by the Board’s decision. Indeed, ARSA had advocated for changes to the standard of review to the NTSB’s proposed rulemaking earlier this year on the matter (which was preempted by the Piolt’s Bill of Rights). The Association looks forward to continuing to work with you and others in the industry to bring fairness and balance to FAA enforcement actions within the spirit of existing rules while maintianing the our solid committment to safety.

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