SEN. INHOFE’S REVOLUTIONARY BILL OF RIGHTS PASSES HOUSE

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ARTICLE: Congress passes bill boosting pilots’ rights

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As noted here,  Sen. Inhofe proposed a bill that would change the balance of power between the FAA and pilots in their certificate enforcement cases. As reported in this Fox News web article, the House of Representatives passed his Pilot’s Bill of Rights on a voice vote. The Fox report recites the history of Inhofe’s own enforcement experiences with the FAA, but really fails to note how truly revolutionary S.1335 really is.

Sen. Inhofe’s now passed bill includes a lot of important changes, but the most revolutionary alterations are found in §2 and in particular sub section §2(d). Heretofore, the legal playing field was tilted in the government’s favor; the FAA has had the benefit of a lower evidentiary standard that administrative proceedings allow. If the certificate holder disagrees with the findings of the NTSB administrative law judge, he or she could appeal that determination to the full NTSB and from there, the only appeal was to a US Court of Appeals. Both of those reviews are limited to the facts and evidence as accepted by the ALJ.

This Inhofe amendment of the Transportation statute now allows a pilot to appeal to a US District Court. There the Federal Rules of Evidence (FRE) and the Federal Rules of Civil Procedure (FRCP) require a more exacting level of proof and the basis for accepting evidence are far more demanding. By setting the USDC as an appeal court, that means that federal judges may take evidence and will require that the FAA meet the strict rules of those courts.

This may not appear to be a significant change, but it is. The FAA lawyers will have to spend considerably more time preparing their cases to be ready for these more exacting requirements. They will demand that the FAA inspectors produce evidence that is subject to this higher level of scrutiny. This extra burden will begin to occur in preparation for an informal conference, for the NTSB ALJ hearing and the full NTSB review; because the new §2(a) requires that a case seeking denial, amendment, modification,suspension, or revocation of an airman certificate must comply with the FRE and the FRCP. Most importantly, the FAA lawyers know that there is the possibility of a full trial before a US District Court judge.

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.

The newly enacted §2(b) requires that the FAA give the airman a warning that is similar to the Miranda rights—including (text followed by commentary):

  1. telling the suspect “the nature of the investigation”; the FAA has recently given limited information about the case at the Letter of Investigation stage;
  2. that an oral or written response to a Letter of Investigation from the Administrator is not required; “you have the right to remain silent
  3. that no action or adverse inference can be taken against the individual for declining to respond to a Letter of Investigation from the Administrator; “silence is not an admission”
  4. that any response to a Letter of Investigation from the Administrator or to an inquiry made by a representative of the Administrator by the individual may be used as evidence against the individual; “anything you say can be held against you
  5. that the releasable portions of the Administrator’s investigative report will be available to the individual; the FAA releases an EIR if you ask; this seems to require that it be made available and
  6. that the individual is entitled to access or otherwise obtain air traffic data described in paragraph (4)

That (4) paragraph makes the FAA preserve and make available any Air Traffic Control data that may be related to the alleged incident. There were occasions in which the FAA LoI was sent after the date when AT in the ordinary course of its business would have voided the relevant tapes. The new §4(c) makes the data held by the private contractor, which provides the Flight Service Station support, available as though it was the government.

Sections 3 and 4 are similar in that they both establish panels to reform the Notices to Airmen and Medical Certificate standards. These may be significant.

Sen. Inhofe has enacted, subject to the President’s signature, major revisions to the FAA’s enforcement procedures as applied to airmen certificates. It is surprising that the FAA did not voice opposition to these changes. It will be interesting to see how the Administrator and the Chief Counsel respond to this serious reprimand. There have been complaints about the FAA’s enforcement approach and these concerns were not just limited to pilot certificates.

The interesting question is how long before the other certificate holders seek the same protections—aviation maintenance technicians, air carriers, and repair stations. They would also appreciate the Inhofe Bill of Rights applied to their enforcement processes.

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