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August 07, 2016

Update On The FAA's New Compliance Philosophy

This year at EAA's Airventure I was fortunate enough to be able to attend a continuing legal education (“CLE”) program generously presented by EAA’s Legal Advisory Council. The program hosted a number of FAA personnel to discuss the FAA’s new compliance philosophy which was announced in June, 2015 and actually went into effect October 1, 2015. The FAA representatives included John Duncan, Director of Flight Standards, James Tagmeier, Great Lakes Regional Counsel and Manager of the Midwest Enforcement Team, Jeffrey Klang, Senior Counsel – International, and Mark Bury, Deputy Chief Counsel – Enforcement & Regulations.

When it was issued, this new philosophy appeared to be a positive shift in the FAA's national enforcement policy. But the rubber really hits the runway with the inspectors at the FSDO level. So, at the time my concern was whether this philosophy would actually trickle down to the FAA inspectors and whether this would philosophy would apply to all divisions within the FAA.

Which brings us to the CLE program nearly one year later. According to John Duncan, the new compliance philosophy has been implemented agency-wide. That is, all divisions within the FAA are required to apply the new compliance philosophy. Although he did note that some divisions, such as the drug abatement and the security divisions, may not be implementing the philosophy as aggressively as others such as flight standards. While this is good to know, from my perspective, it does not appear to me that those divisions of the FAA have truly embraced or implemented the new philosophy. But it is good to know that they are supposed to be applying the new philosophy.

Both John Duncan and James Tagmeier emphasized that the philosophy is being applied to those certificate holders who are both “willing and able” to comply with the goals of returning the certificate holder to compliance and ensuring future compliance. In the event that the certificate holder is either unwilling or unable to be “rehabilitated”, then the philosophy dictates that the certificate holder be removed from the national air space (“NAS”) (e.g. via certificate suspension or revocation).

What does this mean for FAA inspectors? John Duncan indicated that in all cases the FAA’s priorities are to (1) deal with the risk posed or created by the certificate holder and, only then, (2) determine if a violation has occurred. According to John, inspectors who are initially investigating a situation will assume that a compliance action will be used. Legal enforcement action will only be considered after the investigation reveals that a compliance action is not appropriate.

What does this mean for certificate holders? Generally it means that the risk of a legal enforcement action has been significantly reduced. According to John Duncan, as of April 2016 the FAA had process approximately 2,200 compliance actions. In the absence of the new philosophy, I suspect a significant number of those cases would have resulted in certificate actions.

But, here is the catch: In order to take advantage of this new philosophy, the FAA inspectors require that a certificate holder talk to them to discuss the “how” and “why” the risk was created as well as options for making sure it doesn’t happen again. Without that information, it makes it difficult for the inspectors to determine whether the situation can be resolved with a compliance action.

From my perspective as an aviation attorney who defends certificate holders against FAA legal enforcement action, this approach raises concerns that the certificate holder will provide the inspector with information that could later be used against the certificate holder in an enforcement action. In the past, my typical advice to certificate holders was to either not speak with the inspector or to at least not volunteer any information that could later come back to bite the certificate holder. Under the new philosophy, that isn’t necessarily the best advice.

Now a certificate holder must carefully analyze the situation to try and determine whether the situation will qualify for a compliance action before the certificate holder starts to volunteer information to the inspector. While resolution of the case through a compliance action is definitely preferable, the certificate holder should try and avoid disclosing information that could preclude a compliance action or that would put the certificate holder in a more difficult position if the FAA pursues legal enforcement action. Discussing the matter with a knowledgeable aviation attorney before you speak with the inspector can certainly assist in making this decision.

The FAA’s new compliance philosophy is definitely a step in the right direction. It is benefitting both certificate holders and the safety of the NAS. As with any change, it does raise some concerns and issues that will yet need to be worked out. However, after nearly a year the new policy seems to be working.

Posted by Greg

August 03, 2016

Waiver of Emergency Procedures in an NTSB Appeal Will Not Cure a Missed Deadline

Since the FAA began implementing its new compliance philosophy last year, fewer case are being appealed to the NTSB. However, it appears that the cases that are being appealed the most are emergency orders of either suspension or revocation. As you may recall from past articles, when a certificate holder appeals an emergency order to the NTSB, emergency procedures apply to the case which require that a hearing be held within 30 days after the appeal is filed. Other deadlines are also much shorter under the emergency procedures than they are under the procedures for a non-emergency appeal. The purpose for the accelerated hearing and deadlines is to ensure that a certificate holder whose certificate has been suspended or revoked on an emergency basis (i.e. the order is effective immediately) receives a hearing and decision as soon as possible to minimize the impact of the suspension or revocation if the NTSB administrative law judge ("ALJ") ultimately reverses the FAA's order.

But in some situations, this expedited timeline can also be a problem for a certificate holder who may need more time to properly prepare for a hearing. So, it is also possible to waive the emergency procedures in an appeal of an emergency order. Whether the emergency procedures should be waived is a decision that will depend upon the circumstances of each case. But the certificate holder must be sure to comply with the deadlines applicable to the case, whether under the emergency or non-emergency procedures. Failure to comply can result in harsh consequences. If a certificate holder is going to waive the emergency procedures, the waiver should occur before any applicable deadline has passed. A recent decision by the NTSB illustrates the unfortunate consequences of an untimely waiver.

In Administrator v. Jimenez; the airman appealed an emergency order revoking his commercial pilot certificate. The airman appealed the order to the NTSB, but failed to file his answer to the FAA's complaint within the five days required by the Board's emergency procedures. As a result, the FAA subsequently filed a motion to deem the facts admitted and requesting summary judgment. One day after the FAA filed its motion, the airman waived the emergency procedures and filed his answer which would have still been timely under the proceedures applicable to a non-emergency case. In the absence of good cause for the late filing, the ALJ granted the FAA's motion based upon the airman's failure to timely file his answer. The airman then appealed the ALJ's decision to the full Board.

On appeal, the airman argued that his answer was timely under the non-emergency procedures that were applicable to the case once the airman had waived the emergency procedures. However, the Board rejected the airman's argument. While the Board observed that Section 821.52(d) permits an airman to waive the the accelerated time limits applicable to emergency cases, it then referred to the rule's limitation that “such a waiver shall not serve to lengthen any period of time for doing an act prescribed by this subpart which expired before the date on which the waiver was made.” Thus, the Board held that the express language of the rule precluded the airman's argument that the 20-day deadline, which would apply in a non-emergency case, was applicable because the airman did not waive the the emergency procedures until after the time to file his answer expired.

The rules for emergency and non-emergency cases can sometimes be confusing. And, unfortunately, the consequences of failing to comply with the rules can be significant. This case is yet another example of why it makes sense to have an experienced aviation attorney assist you with appeal of an FAA order of suspension or revocation. If you find yourself in this situation, make sure you get the help you need.

Posted by Greg

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