If you hold an airman certificate you know, or at least you should know, that you are subject to the reporting requirements of 14 C.F.R. §61.15. That is, §61.15(e) requires an airman to report a motor vehicle action ("MVA") to the FAA Civil Aviation Security Division within 60 days. The written report must include: “(1) The person's name, address, date of birth, and airman certificate number; (2) The type of violation that resulted in the conviction or the administrative action; (3) The date of the conviction or administrative action; (4) The State that holds the record of conviction or administrative action; and (5) A statement of whether the motor vehicle action resulted from the same incident or arose out of the same factual circumstances related to a previously reported motor vehicle action.”
What is an MVA? According to the regulation an MVA is (1) a violation of any Federal or State statute relating to the operation of a motor vehicle while intoxicated by alcohol or a drug, while impaired by alcohol or a drug, or while under the influence of alcohol or a drug; (2) the cancellation, suspension, or revocation of a license to operate a motor vehicle, for a cause related to the operation of a motor vehicle while intoxicated by alcohol or a drug, while impaired by alcohol or a drug, or while under the influence of alcohol or a drug; or (3) the denial of an application for a license to operate a motor vehicle for a cause related to the operation of a motor vehicle while intoxicated by alcohol or a drug, while impaired by alcohol or a drug, or while under the influence of alcohol or a drug.
It is important to realize that this definition includes more than just being arrested for or convicted of a DWI, OWI etc. A civil action that often accompanies a DWI arrest in most states and that results in suspension of the driver's license is also considered an MVA. Thus, an arrest for DWI could create the obligation for an airman to provide multiple reports to the FAA depending upon how the civil and criminal cases proceed. And if an airman fails to report an MVA, §61.15(f) states that he or she could be subject to (1) Denial of an application for any certificate or rating for a period of up to 1 year after the date of the arrest; or (2) Suspension or revocation of any certificate or rating.
But what happens if you hold an airman certificate but you no longer hold a medical certificate, or you have "retired" from flying? Are you still subject to this reporting requirement? The short answer is "yes", as a recent NTSB decision explains. In Administrator v. Street, the airman was an experienced airline pilot who failed to report four MVAs arising from two DWIs. When the FAA found out, it issued an order suspending the airman's ATP certificate for 240 days. On appeal, the administrative law judge ("ALJ") agreed that the airman had violated sections 61.15(d) and (e) but determined that the sanction should only be a thirty day suspension.
Not surprisingly, the FAA was unhappy with that decision and appealed to the full Board. The FAA argued that the 240 days should stick and, of course, the airman argued that the ALJ's decision should stand. Specifically, the airman argued that at the time of the violations he did not have a medical certificate and was not actively flying, which should serve as mitigating factors in support of the lower sanction. However, the Board rejected that argument stating the reporting requirements of §61.15(e) are applicable to an airman who temporarily “retires” from flying. The Board explained that "[w]hile respondent testified that he did not plan to return to flying, his obligation to comply with the FARs continued regardless of whether he was actively flying at the time the MVAs occurred. Sections 61.15(d) and (e) are exclusively concerned with conduct outside the scope of an airman’s certificate. It is immaterial whether respondent was actively flying or had a medical certificate at the time the MVAs occurred because his status as an ATP certificate holder rendered the requirements of §§ 61.15(d) and (e) applicable to him."
So, the moral of the story is: If you hold an airman certificate, you need to be familiar with, and comply with, the requirements of §61.15. Until you no longer hold your airman certificate (whether the certificate has been surrendered, suspended or revoked) you will need to report any MVA to the FAA.
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.
As you may recall from previous articles, if the FAA pursues an enforcement or civil penalty action and then loses, the Equal Access to Justice Act (“EAJA”) allows a certificate holder or target of the civil penalty action to seek reimbursement from the FAA for the attorney’s fees and expenses incurred by the certificate holder or target of the civil penalty action to defend against the claims asserted by the FAA. The EAJA is found at 5 U.S.C. 504 and is implemented in 49 CFR 826.
According to 49 CFR 826.1,
The Equal Access to Justice Act, 5 U.S.C. 504 (the Act), provides for the award of attorney fees and other expenses to eligible individuals and entities who are parties to certain administrative proceedings (adversary adjudications) before the National Transportation Safety Board (Board). An eligible party may receive an award when it prevails over the Federal Aviation Administration (FAA), unless the Government agency's position in the proceeding was substantially justified or special circumstances make an award unjust.
In order to award EAJA fees to a certificate holder or target of a civil penalty action who is requesting reimbursement of fees (the “Applicant”), one of the issues an administrative law judge ("ALJ") must decide is whether the fees were actually “incurred” by the Applicant. In a situation where the Applicant has paid an attorney for representation throughout the enforcement process out of the Applicant’s own pocket, this is easy. Conversely, when an Applicant’s employer or union pays the fees then the Applicant did not incur the fees for purposes of EAJA. However, if the employer advances the fees and the Applicant is obligated to repay those fees regardless of the outcome of the action, then the Applicant would also be considered to have incurred the fees.
Also, it may be possible for an Applicant to incur fees by retaining an attorney on a contingent fee basis under which the attorney would only receive payment in the event of an EAJA recovery. However, this type of arrangement must be documented at the time the attorney is retained in order for it to qualify under EAJA. In general, documentation of the payment of, or obligation for, the fees is critical to recovery under EAJA.
But what if an applicant doesn't have documentation to show an agreement to pay or be responsible for payment to the attorney who represented the Applicant before the Board? Well, a recent decision by the United States Court of Appeals in the District of Columbia addressed this very issue.
In Roberts v. National Transportation Safety Board the Court was asked to review a decision by the Board affirming an ALJ's rejection of Mr. Roberts' EAJA application on the basis that Mr. Roberts had not actually "incurred" attorney's fees. The ALJ found that Mr. Roberts' attorney also represented his employer and, in the absence of any written agreement between Mr. Roberts and either his employer or the attorneys to the contrary, the ALJ concluded that Mr. Roberts' employer had paid the attorneys. As a result, the ALJ held that Mr. Roberts had not personally incurred the attorney's fees as required by EAJA. The Board then affirmed the ALJ's decision, even though it reversed the ALJ's earlier finding that the employer had agreed to pay for Mr. Roberts' attorney's fees.
On appeal to the Court of Appeals, Mr. Roberts argued that the Board's determination that he had not personally incurred the fees was arbitrary and capricious. The Court agreed and found that the Board's refusal to consider that Mr. Roberts may have been obligated to pay attorney's fees under a quantum meruit theory (also called an implied contract theory) was arbitrary and capricious. The Court observed that Alabama law (the state law applicable to any relationship Mr. Roberts had with his attorney) implies a promise to pay compensation for services rendered to another that are knowingly accepted even in the absence of a valid written contract. The Court went on to observe that the Board's conclusion that Mr. Roberts had not proven that he was responsible for attorney's fees because the attorney's invoices didn't clearly say so defied logic. And the Court determined the Board's reliance upon the absence of an express contract as dispositive was in error.
However, although the Court held that Mr. Roberts had incurred attorney's fees, it noted that all of the fees and expenses claimed by Mr. Roberts may not necessarily be eligible for reimbursement. The Court remanded the case back to the NTSB for it to consider which submitted fees and expenses were supported by sufficient documentation and whether any reduction in award is appropriate.
This decision will certainly help anyone applying for an EAJA award after having to defend themselves against an unjustified certificate or civil penalty action. However, properly documenting both the obligation to pay fees, as well as the amount of the fees is still recommended. But at least the Court's decision provides the opportunity for an applicant to claim fees have been incurred even in the absence of a written agreement. And that's a "win" in my book.
If an airman tests positive for drug metabolites on a drug test but he or she didn't take the drugs, what can the airman do? Well, arguing that he or she somehow unknowingly or inadvertently ingested the drugs isn't going to save the day. A recent decision by the National Transportation Safety Board ("NTSB") rejected an airman's "unknowing ingestion" affirmative defense in that very situation.
In Administrator v. Hermance the airman submitted to a random drug test which indicated that the airman tested positive for cocaine metabolites. As in almost every case, the FAA revoked all of the airman's certificates based upon the positive drug test. The airman then appealed the revocation to the NTSB.
Prior to a hearing, the FAA moved for summary judgment arguing that the positive drug test and the airman's admission that the test was positive presented a prima facie case that the airman had violated the applicable drug testing and medical qualification regulations. The ALJ agreed that the FAA had proven its case, but the ALJ ordered a hearing to allow the airman to present evidence regarding his affirmative defenses, one of which was that he had unknowingly ingested the cocaine.
At the hearing before the NTSB administrative law judge ("ALJ"), the airman was adamant that he did not do drugs and had not ingested cocaine. He even paid several visits to his physician who was unable to determine how the cocaine metabolites ended up in the airman's urine. The airman's wife and several other witnesses also testified that the airman did not do drugs.
At the end of the hearing, the ALJ ruled that the airman's claim that he unknowingly ingested the cocaine was not a "reasonable medical explanation" for a positive drug test under DOT regulations. The ALJ determined that neither the airman nor any of his witnesses offered an explanation or reasonable theory for how the airman's tested urine specimen contained cocaine metabolites. In the absence of the necessary proof, the ALJ found the airman failed to satisfy his burden of proving his affirmative defense of unknown ingestion. As a result, the ALF affirmed the FAA's revocation order.
On appeal to the full Board, the airman again argued that he had proven his affirmative defense of unknown ingestion which explained and excused the positive drug test result. The Board initially observed that the airman had the burden of proving not only that unknowing ingestion was a legally justifiable excuse but also that he factually proved that affirmative defense.
The Board then cited 49 C.F.R. § 40.151(d), which specifically and categorically rejects the defense of unknown ingestion:
For example, an employee may tell [medical review officers (MROs)] that someone slipped amphetamines into her drink at a party [or] that she unknowingly ingested a marijuana brownie....MROs are unlikely to be able to verify the facts of such passive or unknowing ingestion stories. Even if true, such stories do not present a legitimate medical explanation. Consequently, [MROs] must not declare a test as negative based on an explanation of this kind.
The Board also observed that its precedent has consistently rejected unknown ingestion as a legitimate medical explanation for a positive drug test result.
However, even though the unknown ingestion affirmative defense was previously rejected, the Board concluded that the ALJ's granting a hearing to the airman regarding the affirmative defense was appropriate because it allowed the airman a full opportunity to offer evidence to support a legitimate medical explanation, if one existed. Unfortunately for the airman, the Board affirmed the ALJ's determination that the airman's evidence did not suffice to establish that he never ingested cocaine or that a legitimate medical explanation existed for the presence of the cocaine metabolites in his urine.
Thus, the affirmative defense of "unknown ingestion" or "inadvertent ingestion" will not, without more, save an airman from a positive drug test result. Fortunately, the airman should have an opportunity to prove some other legitimate medical explanation for the positive result. However, the airman will have the burden of proof; a burden that, unfortunately, is often not easy to meet. But at least it is a chance.