The Pilot’s Bill of Rights

Since this magazine is titled D.O.M.and deals with the “business of maintenance,” you might wonder why I am writing about a law that, on its face, appears to focus on pilots. Fortunately, the Pilot’s Bill of Rights, Public Law 112-153, provides benefits to certificate holders other than just pilots. The law became effective on Aug. 3, 2012, and was, in part, the result of the difficulties Senator James Inhofe had in obtaining information and documents from the FAA during the enforcement action the FAA pursued against the senator after he landed his Cessna 340 on a closed runway at the Port Isabel-Cameron County Airport in Texas. With the encouragement and support of a variety of the aviation “alphabet groups,” the law was passed to help level the playing field for all certificate holders dealing with the FAA, not just pilots.

Despite the law’s reference to “pilot,” the law applies generally to all individuals holding airmen certificates. This includes not only pilot certificates and ratings, but also mechanic certificates, ratings and authorizations. Additionally, the law applies to the non-individual holders of certificates (e.g., air carrier and repair station certificates) in a number of key aspects. Although the law does contain some provisions that are not directly applicable to mechanics or repair stations, here are some of the benefits directly applicable to those certificate holders.

Notice of Investigations

Under the law, the FAA is now required to provide “timely, written notification to an individual who is the subject of an FAA investigation relating to the approval, denial, suspension, modification, or revocation of an airman certificate under Chapter 447 of Title 49, United States Code.” This means that any time an individual applies for or renews a certificate, or if the FAA is going to take action against a certificate held by the individual, the FAA will need to provide certain information to the individual.

The notification must advise the individual:

(A) of the nature of the investigation;

(B) that an oral or written response to a Letter of Investigation (LOI) from the Administrator is not required;

(C) that no action or adverse inference can be taken against the individual for declining to respond to a LOI from the Administrator;

(D) that any response to an LOI 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;

(E) that the releasable portions of the Administrator’s investigative report will be available to the individual; and

(F) that the individual is entitled to access or otherwise obtain air traffic data described in paragraph (4).

Although the law does not specify the form of the notification, as a practical matter, most FAA regions and FSDOs have developed their own standard notification form which they are giving to individuals when required by law. However, the FAA may also delay giving this notification in a timely manner if it determines that delivery of the notification “may threaten the integrity of the investigation.” Since the law is relatively new, it is too early to tell the circumstances that might justify a delay in providing the required notification.

Changes to NTSB Proceedings

As you may know, if the FAA takes action to suspend or revoke an airman, medical, air carrier or repair station certificate, or if the FAA denies an application for issuance or renewal of a certificate, the certificate holder has the right to appeal that action to the National Transportation Safety Board (NTSB) for a hearing before an administrative law judge (ALJ). Prior to enactment of the Pilot’s Bill of Rights, the rules under which those hearings were conducted were not as formal as you would find in a federal or state court proceeding.

One example of this informality was the practice of introducing, and the ALJ admitting, statements or documents from third-party witnesses through the testimony of FAA inspectors or certificate holders, rather than having those witnesses actually attend the hearing. As you might guess, this practice of offering “hearsay” evidence raised some issues regarding the reliability of the information upon which the parties were basing their cases.

Under the new law, those hearings must be conducted in accordance with the Federal Rules of Civil Procedure and the Federal Rules of Evidence “to the extent practicable.” For example, both the FAA and certificate holders will now need to comply with, and be protected by, more formal procedural rules. Furthermore, unless allowed by an exception, hearsay evidence is no longer admissible. The FAA and the certificate holders must actually have witnesses testify and provide foundation for the documents that are admitted into evidence at the hearing. 

Since the FAA has the burden of proof in the majority of the cases before the NTSB, the application of these procedures and rules will help level the playing field for certificate holders. The FAA will now need to subpoena witnesses and lay foundation for evidence in order to prove its case, rather than simply relying upon potentially unreliable hearsay evidence. It is possible the resulting increase in the complexity and cost of enforcement cases may encourage a more reasonable approach to the pursuit or settlement of enforcement cases.

Another change to hearings before the NTSB relates to the deference the ALJ must give to the FAA’s choice of sanction (e.g., suspension versus revocation). Before the Pilot’s Bill of Rights, 49 U.S.C. 44703(d)(2) provided that the NTSB was “bound by all validly adopted interpretations of laws and regulations the [FAA] 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.” The NTSB has, in fact, consistently held that it is bound by the FAA’s choice of sanction derived from the Sanction Guidance Table contained in FAA Order 2150.3B.

However, the Pilot’s Bill of Rights expressly eliminated this “bound by” language. The NTSB is no longer bound to simply accept the sanction proposed by the FAA in an enforcement case. Rather, the NTSB is permitted to select what it believes to be the appropriate sanction based upon the facts of the cases and any mitigating or aggravating circumstances. Although this does not change the deference it must give an administrative agency’s interpretation of its regulations and proposed sanctions for violation of those regulations, at least the NTSB is no longer required to simply “rubber stamp” the FAA’s choice of sanction.

The Federal Court Review

Finally, the Pilot’s Bill of Right provides an individual substantially affected by an order of the NTSB upholding an FAA action against the individual’s certificate (e.g., a suspension or revocation) the option to (1) file an appeal in the U.S. district court in which the individual resides or in which the action in question occurred, or in the U.S. District Court for the District of Columbia; or (2) file an appeal in an appropriate U.S. Court of Appeals. In emergency cases (e.g., the certificate holder’s certificate is suspended or revoked immediately), the emergency suspension or revocation remains in effect pending the exhaustion of any appeal to a Federal district court unless NTSB stays the emergency order, which typically does not happen.

The law requires the district court to perform a “full independent review … including substantive independent and expedited review of any decision by the Administrator to make such order effective immediately.” The district court must review evidence of any record before the FAA and any record of the proceedings before the NTSB, including hearing testimony, transcripts, exhibits, decisions and briefs submitted by the parties. However, it is unclear from the law whether this is the only evidence the district court may review or whether the certificate holder may be able to present additional evidence that was not included in the record before the FAA or NTSB. Since the law is relatively new, this issue hasn’t yet been resolved by a district court.

Having the option to appeal to the district court provides an aggrieved certificate holder with an additional remedy that may result in a quicker, and perhaps less expensive, decision than the previous option of appealing to a U.S. Court of Appeals. Time will tell whether it actually works out that way.

Conclusion

The “Pilot’s” Bill of Rights is actually a misnomer. The new law affects many certificate holders, including mechanics. Although some of the law’s anticipated benefits have not yet been realized, the law has already provided concrete benefits to certificate holders and its goal of leveling the playing field in enforcement actions is certainly a step in the right direction.

Greg Reigel is an aviation attorney, author and pilot. He holds a commercial pilot certificate (single-engine land and sea and multi-engine land) with instrument rating. His practice concentrates on aviation litigation, including aviation insurance matters and FAA certificate actions, and also aviation transactional matters. He is admitted to practice law in Minnesota and Wisconsin and advises clients throughout the country on aviation law matters. A cum laude graduate of William Mitchell College of Law, Reigel is the founder and president of the law firm Reigel & Associates Ltd./Aero Legal Services based in Hopkins, MN. He frequently speaks to groups on aviation and business law issues. Reigel is a member of the AOPA Legal Services Panel, secretary of the Minnesota Aviation Trade Association, and a member of the NTSB Bar Association, National Business Aviation Association, Minnesota Business Aviation Association, ABA-Forum on Air & Space Law, Lawyer-Pilot Bar Association and Experimental Aircraft Association.

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