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April 12, 2013

NTSB No Longer "Bound By" FAA's Choice Of Sanction

As you may be aware, the Pilot's Bill of Rights mandated changes to the way FAA enforcement cases are handled by the NTSB. One of the significant changes to the conduct of hearings relates to the deference the administrative law judge ("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.”

And prior to the Pilot's Bill of Rights the NTSB had, in fact, consistently held that it was bound by (1) the FAA’s choice of sanction derived from the Sanction Guidance Table contained in FAA Order 2150.3B and (2) previous cases approving the FAA's choice of sanction for particular types of violations.

The Pilot's Bill of Rights expressly eliminated this “bound by” language. The NTSB is no longer required 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. However, the Pilot's Bill of Rights did not address what impact this change in language might have on the Board's reliance upon prior case law and precedent. Fortunately, a recent Board decision addressed this issue.

In Administrator v. Jones, the Board was reviewing an ALJ's decision in an intentional falsification case in which the ALJ adopted the FAA's time-tested assertion that revocation of all airman certificates is the appropriate sanction in such cases. Consistent with the Pilot's Bill of Rights, the Board initially recognized that it was not bound by the FAA's choice of sanction. It then went on to state that "we are reluctant to engage in sanction comparison to cases decided prior to the enactment of the Pilot’s Bill of Rights." Thus, rather than rely upon case law and precedent developed while the NTSB was still subject to the "bound by" requirement, the Board will now perform its own analysis to determine whether the sanction sought by the FAA in a particular case is reasonable and appropriate.

However, it is important to understand that this does not change the deference the Board must give an administrative agency's interpretation of its regulations and proposed sanctions for violation of those regulations. If the agency's interpretation and choice of sanction is reasonable and not otherwise arbitrary, capricious, or manifestly contrary to the regulation, the Board must still defer to that position. But, at least the NTSB is no longer required to simply "rubber stamp" the FAA's choice of sanction without performing some analysis as to whether it is reasonable. And that is good news for airmen.

Posted by Greg

April 08, 2013

Where Can An IA Perform Inspections?

I was recently asked this question by a mechanic who holds an Inspection Authorization ("IA"). Since the FAA issues the certificate and the certificate itself doesn't contain any geographic limitations, the mechanic thought the answer to the question should be "anywhere in the U.S." Well, the mechanic was right, sort of.

To answer the question, we need to look at 14 C.F.R. 65.95. Section C provides:

If the holder of an inspection authorization changes his fixed base of operation, he may not exercise the privileges of the authorization until he has notified the FAA Flight Standards District Office or International Field Office for the area in which the new base is located, in writing, of the change.

This language doesn't prevent an IA from exercising privileges in any geographic location. However, if an IA wants to work somewhere other than his or her fixed base of operation, the IA needs to provide notice to the FAA office responsible for that new area. Although some may argue that this requirement is simply the FAA over-controlling where an IA can work, it does make some sense when you consider that once an IA receives his or her IA, he or she applies for and is issued renewals of the IA certificate through the local FSDO, rather than through Oklahoma City.

What happens if an IA fails to provide the required notice? Unfortunately, the sanction guidance contained in Order 2150.3B: FAA Compliance and Enforcement Program doesn't provide a proposed sanction addressing this specific type of violation. However, depending upon the circumstances, I wouldn't be surprised to see a sanction of suspension for anywhere from 15 days up to indefinitely, pending compliance.

Thus, although it may seem like a nuisance and an improper exercise of authority, IA's need to be aware of this requirement and ensure that they provide the appropriate notification if they plan on working outside their home base of operation. Better to give the notice than to have to deal with an enforcement action.

Posted by Greg

April 01, 2013

When Aircraft Go Bump On The Ramp

Ever wonder what your obligations might be if you accidentally taxi your aircraft into another aircraft on the ramp? Can you just inspect the damage to your aircraft, decide it looks OK and then go flying? And if you do, what will the FAA say if/when it gets involved? For answers to these questions, please read my latest article on the subject: When Aircraft Go Bump On The Ramp.

Posted by Greg

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