Greg Reigel's Aero Legal Services

Compliance With The Voluntary Disclosure Reporting Program Can Protect An Air Carrier Employee's Certificate

By Gregory J. Reigel

© May, 2010 All rights reserved.

The D.C. Circuit Court of Appeals has vacated an NTSB decision in which the Board refused to allow the employee of an air carrier to assert compliance with the Voluntary Disclosure Reporting Program ("VDRP") as an affirmative defense to an FAA order of suspension. As a result, employees of air carriers and other applicable certificate holders, including mechanics, will have the opportunity to prove compliance with the VDRP to avoid civil penalties or other sanctions in an enforcement action.

The VDRP

Under FAA Advisory Circular AC 00-58A, Voluntary Disclosure Reporting Program, the VDRP provides a waiver of enforcement action to certificate holders, including those holding certificates issued under FAR Parts 21, 119, 121, 125, 129, 133, 135, 137, 141, 142, 145, 147, Production Approval Holders (“PAH”) and for program managers of qualified fractional ownership programs operating under Part 91K, when the certificate holder meets the requirements of the VDRP. Generally, the certificate holder must detect a violation before the FAA, promptly disclose the violation to the FAA after discovery, and then take prompt corrective action to ensure that the same or similar violation does not recur.

The VDRP also applies to individual airmen and agents of the certificate holder if the following occurs:

The apparent violation involves a deficiency of the certificate holder’s practices or procedures that causes the certificate holder to be in violation of a covered violation of an FAA regulation;
The airman or other agent of the certificate holder, while acting on behalf of the certificate holder, inadvertently violates the FAA’s regulations as a direct result of a deficiency of the certificate holder that causes the certificate holder to be in violation of the regulations. (The VDRP does not apply to the airman or other agent when his or her apparent violation is the result of actions unrelated to the certificate holder’s deficiency);
The airman or other agent immediately makes the report of his or her apparent violation to the certificate holder; and
The certificate holder immediately notifies the FAA of both the airman or other agent’s apparent violation and the apparent deficiency in its practice or procedures.

The Case

In Moshea v. NTSB, an air carrier with whom the airman was employed voluntary disclosed the airman's failure to make certain required maintenance logbook entries pursuant to the VDRP and the FAA concluded that the air carrier and a number of its employees would receive no penalty. However, the FAA subsequently issued an order suspending the airman's airline transport pilot certificate for 60 days based upon alleged violations of FARs 91.7(a) (aircraft must be in airworthy condition for operation), 135.65(b) (requiring pilot to enter any mechanical irregularities into aircraft logs), and 91.13(a) (careless and reckless).

The NTSB Denies The Airman's VDRP Affirmative Defense

The airman appealed the suspension to the NTSB. At the hearing before the administrative law judge ("ALJ") the airman attempted to raise an affirmative defense based on his compliance with the VDRP. However, the ALJ refused to allow the airman to admit evidence bearing on his compliance with the program. The ALJ concluded that the NTSB lacked the jurisdiction to review the discretion as to how the FAA implements the VDRP (i.e. who the FAA lets off the hook and who the FAA decides to go after). As a result, the ALJ upheld the airman's suspension (although the ALJ did reduce it from 60 to 50 days).

The airman appealed the ALJ's decision to the full Board. However, the Board agreed with the ALJ. The Board ruled that it lacked jurisdiction to entertain the airman's affirmative defense and it affirmed his suspension. The airman then appealed the Board's decision to the United States Court of Appeals-D.C. Circuit.

The Court of Appeals Reverses The NTSB

On appeal, the airman argued that he should have been able to offer evidence to support his affirmative defense that he complied with the VDRP as an employee of the air carrier certificate holder. However, the FAA and the NTSB argued that the VDRP was unavailable to the airman because it purportedly "does not relate to the sanctions to be imposed," as required by 49 U.S.C. § 44709(d)(3), even though the VDRP provides that no sanctions will be imposed in cases of voluntary disclosure.

The Court rejected what the Court characterized as the FAA's/NTSB's attempt to "evade" the VDRP. The Court stated that when the VDRP says no sanction will be imposed in a case of voluntary disclosure it is "quite obviously 'related to sanctions'" and, as a result, the Board's analysis was unreasonable and contrary to the statute. The Court also found that the NTSB's decision was inconsistent with its handling of a prior case, Administrator v. Liotta, in which the Board allowed an employee of an air carrier to assert an affirmative defense based on the VDRP. According to the Court, this failure to follow precedent without an explanation was arbitrary and capricious and provided an independent basis for vacating the NTSB's decision.

The Court concluded that the NTSB did have jurisdiction to decide whether the FAA's suspension of the airman's certificate was in compliance with the VDRP. It then vacated the NTSB's decision and remanded the case to allow the airman to offer evidence of compliance in support of his affirmative defense.

Conclusions

It is nice to see the Court requiring both the FAA and NTSB to comply with their policies and rules. Keep in mind that this decision applies to all airmen employed by certificate holders, including mechanics. Mechanics and the certificate holders with whom they are employed should take advantage of the VDRP. If the FAA pursues enforcement action against an individual mechanic when the mechanic and his or her employer have complied with the VDRP, the mechanic should be able to assert compliance with the VDRP as an affirmative defense to defeat the FAA's claims.

Of course, mechanics should file their individual ASRS/NASA Forms in addition to compliance with the VDRP. That way, if the FAA/NTSB determines that the mechanic or its employer did not comply with the VDRP, the mechanic may still be able to avoid sanction if he or she has filed the ASRS/NASA form and meets the requirements of that program. You can download the mechanic ASRS/NASA form or file it online here.