While S.1335 sits on the President’s desk for his signature or veto (it was presented to him on July 26), Senator Inhofe’s Pilot’s Bill of Rights poses some interesting questions.
A quick review of the legislation will set the stage as to these broader issues. This bill, which passed both the House and Senate, grants to ONLY pilots extraordinary protections in the FAA enforcement process. First, the NTSB, the forum for the first hearing and the appeal, no longer has to defer to the FAA’s interpretation; that’s BIG. The judges (NTSB Administrative Law Judges (ALJ), the NTSB Board Members and now USDC Judges) will be able to question the agency’s views of what it meant to say. The evidentiary and process rules that apply to civil litigation in federal courts now apply throughout the process. Under the Bill of Rights, the pilots can appeal to a US District Court. Finally, the Inhofe reform will require that the pilot get a Miranda-like warning.
1: WILL THE FAA PROSECTION OF PILOT CASES CHANGE DRAMATICALLY? The historic FAA enforcement practice has been premised on the proceedings were tilted in the agency’s favor. Now under the Inhofe Rules, the FAA has to present evidence at a higher standard and must convince the tribunals what the agency rules mean. At a minimum, the staff and the lawyers will have to take considerably more time to prepare their cases; evidence will have to be filtered through a much finer filter. ANSWER: YES
2: WILL THE FAA PROSECUTORIAL DISCRETION BE ALTERED? Knowing that the FAA played on “home” court, given its old statutory advantages, it was easy for the agency to take aggressive stances. For example, they could initiate a case based on an inspector’s belief that the pilot did not display a proper compliance disposition even though they may not have had a rock solid case. They knew that the certificate holder would have to spend a fair amount in legal fees and time to get to a hearing before an NTSB ALJ and even more to take an appeal to the full NTSB. The cost of a hearing before a US Court of Appeals is even higher and even then the judges are limited to the facts established before the NTSB ALJ. That’s a lot of time and money to be spent without the promise of a full hearing on the facts and law. Knowing that, the FAA attorneys were willing to support their clients’ intuitive accusations; because they knew that it would be rare to see a full review. Given the Inhofe standards and procedures for review, the decisions to prosecute pilots will involve a more rigorous legal review. Fewer iffy cases will be initiated. ANSWER: YES
3: WILL OTHER CERTIFICATE HOLDERS SEEK THE PROTECTIONS OF THE INHOFE BILL OF RIGHTS TO THEIR ENFORCEMENT PROCEEDINGS? There is little doubt that airlines, type/design certificate owners, repair station certificate holders, aviation maintenance technicians and flight school owners would benefit from similar rules. There is likely a line of A4A, AIA, AMFA, ARSA, FSANA, PAMA, NATA and other lobbyists waiting at the entrance to 205 Russell Office Building to ask the Senator from Oklahoma to introduce a Bill to give their member certificate holders equal protection. ANSWER: YES
4: THE BILL OF RIGHTS APPLIES ONLY TO CERTIFICATE ACTIONS; WILL THE FAA MOVE THEIR ACTIONS TO CIVIL PENALTY CASES? With the Inhofe reforms imposing more burdens on certificate actions, it is VERY likely that the enforcement case of choice will be those which seek civil penalties. ANSWER: YESShare this article: