FAA’s $12million civil penalty case may reflect history and might be considered by Sen. Inhofe in his 2nd Bill of Rights

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Something is not quite right in Dallas. The below article announcing that the FAA is seeking a $12,000,000 civil penalty may have bad antecedents and the case may cause Senator Inhofe to expand his second iteration of the Pilots’ Bill of Rights.

Several years ago there was a highly publicized case between the local FAA Flight Standards District Office and Southwest Airlines over whether certain repairs were completed properly. The FAA staff felt as though the 2008 Congressional hearings demonstrated that they were right and continued their aggressive actions against the carrier.

In 2013 (the most recent year for which the FAA published civil penalty numbers), this same FAA office filed 7 notices of proposed civil penalties for a sum total of $165,785. That is not a substantial dollar amount, but writing up the “case files” for this many allegations consumes a lot of staff and then lawyer time.

Less than 90 days ago, the FAA issued against Southwest its second highest airline fine. The notice gave Southwest thirty days to respond and now the US Justice Department of Justice, on behalf of the FAA, has moved the case to the US District Court in Washington. That is unusually quick for such an action.

Southwest is not a bad operator; for, if the FAA believed that the company was truly unsafe and had the proof to support such allegations, it has greater powers to address airlines, which do not meet basic safety standards.

The civil penalty process sets the FAA as judge and juror until the case goes to court; during the informal hearing, the FAA need not prove anything and the respondent is trying to convince the people who drew up the “allegations” that they were mistaken, basically to reconsider the sanctions for which they spent many hours developing evidence and writing the charges. The FAA letter of proposed civil penalties if short on specificity and was long on violations cited.

Once before the US District Court, normal rules of evidence and procedure apply. The standard is NOT “beyond a reasonable doubt”, but the US must prove by a preponderance of evidence or clear and convincing evidence. That is a very different, more balanced forum.

It is also common knowledge that the mere issuance of a massive fine harms the carrier in the public eyes and imposes an immediate “economic” penalty before any finding of fault. Another aspect of imbalance derives from the fact that Southwest will have to hire lawyers and experts to present the company’s case, while the DoJ lawyers are basically “free” to the FAA. Finally, the FAA presents witnesses who work for the government; the average juror and even a few Judges have been known to give deference to the US’ witnesses whose job is safety. Their interpretations are not infallible.

An air carrier certificate and its safety reputation are incredibly valuable assets, which must be carefully managed. The airline team dealing with the regulator requires tremendous equanimity in a situation obviously filled with contention and antagonism. The FAA may refute that such an environment exists, but perception creates its own reality and clearly the history of the FAA-Southwest relationship would support such an appearance. The art and science of establishing a positive relationship with the regulator is not intuitive. Even if Southwest wins the federal case, its relationship with the FSDO will not be benefited.

The procedural and evidentiary advantages granted by Congress are designed to protect safety. The imbalance, however, was regarded by Congress as unfair as to pilots and in 2012 Senator Inhofe sponsored the Pilots’ Bill of Rights. When enacted, it required the FAA to meet standards of evidence and follow procedures, similar to the US District Courts, at the Informal Conference stages. The Senior Senator from Oklahoma is beginning to draft another bill and is soliciting ideas for this legislation. Extending protections to the airlines might be considered.

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