This month I thought I would provide you with another update regarding some of the recent NTSB cases involving FAA enforcement actions. They are instructive because they not only show you the FAA's and NTSB's positions regarding some of these issues, but they also provide some examples of problem areas a prudent airman should avoid.
NTSB Dismisses FAA Appeal For Untimely Filing Of Appeal Brief
In a recent NTSB case in which an administrative law judge awarded attorney's fees and costs to an airman under the Equal Access to Justice Act ("EAJA"), the Board dismissed the FAA's appeal of the EAJA award for failure to timely file an appeal brief. In Application of Hayes, the FAA timely filed its notice of appeal. However, the FAA did not then file an appeal brief by the deadline required by 14 C.F.R. 821.48(a). Although the FAA's appeal brief was dated the last day allowed by the rule and the certificate of service stated the brief was served by overnight mail on that date, the Federal Express tracking data indicated a pickup date of three days after the deadline for filing the brief.
Based upon the untimely filing, the airman subsequently filed a motion with the Board to have the FAA's appeal dismissed. The FAA did not respond to the motion within the time allowed, but did later file a notice of withdrawal. The Board ruled that the FAA's failure to show good cause for its untimely appeal brief, or to request, before the appeal brief was due, leave to file the appeal brief out of time, required dismissal of its appeal. As a result, the Board deemed the FAA's withdrawal of its appeal as moot.
Nice to know that, at least with respect to timing requirements for filing of appeals, the Board will treat the FAA the same as airmen.
ATP Receives 90-Day Suspension For Failure To Find Suitable Landing Site For Hot Air Balloon
In Administrator v. Chemello, the airline transport pilot landed a hot air balloon in a high school parking lot in the morning shortly before the start of classes. Of course, the balloon attracted a lot of attention from the teachers, students, local law enforcement and, not surprisingly, the FAA. The FAA investigated the incident and subsequently issued an order suspending the airman's ATP certificate for 90 days for alleged violation of FARs 91.119(b) (prohibiting operation of an aircraft over congested area below an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft) and 91.13(a) (careless and reckless). The airman appealed the suspension to the NTSB.
After an evidentiary hearing, an administrative law judge ("ALJ") affirmed the suspension. Relying upon his determination of the witnesses' credibility, the ALJ held that the school parking lot was a "congested area" at the time of the landing and that no emergency was present that would have prevented the airman from landing the balloon in a different, suitable location. The airman appealed the ALJ's decision to the full Board arguing that the ALJ's credibility determinations were contrary to the evidence.
The Board initially observed that an airman's "selection of a suitable landing site for a balloon is dependent upon the balloon's proximity to power lines, buildings, and trees, and the availability of alternative landing sites." It also noted that, in addition to generally deferring to an ALJ's credibility determinations, the Board will specifically defer to an ALJ's "credibility determinations with regard to whether a respondent believes that he or she must land a balloon in a certain area due to wind conditions." The Board concluded that the airman had not presented any evidence to compel it to disregard the ALJ's credibility determinations. As a result, the Board affirmed the ALJ's decision.
Tough to get a decision reversed when it is based upon the ALJ's credibility determinations. Unfortunately, this is typically the situation when a case involves a factual dispute, as opposed to a case involving a determination of whether undisputed facts support a violation. The key is to convince the ALJ at the hearing. But that, too, is easier said than done.
NTSB Affords Airman With Second Hearing After 9th Circuit Court of Appeals' Rebuke
After getting its proverbial wrist slapped by the 9th Circuit Court of Appeals, the NTSB has afforded an airman a second hearing. In Administrator v. Klaber, the FAA charged the airman with violations of FARs 135.293(a)2 and (b) (requiring written/oral test and competency check within preceding 12 months), 135.299(a) (requiring line check within preceding 12 months), and, of course, the ever present residual violation of FAR 91.13(a) (the ever present careless and reckless). The FAA ordered a 90 day suspension of the airman's airline transport certificate as a sanction for the alleged violations. The airman appealed the order to the NTSB and, after a hearing, the administrative law judge ("ALJ") affirmed the FAA's order, but reduced the suspension from 90 to 85 days. The airman then appealed to the full NTSB.
On appeal to the full board, the airman argued that the ALJ made a mistake when he prevented the airman from cross-examining an inspector, the FAA's primary witness, regarding a number of issues including the definition "for compensation or hire", the inspector's understanding of flight maintenance logs, the inspector's internal deliberations concerning his investigation into the airman's conduct, and the inspector's experience. The Board rejected the airman's appeal, finding that the ALJ had not abused his discretion nor did any alleged errors result in prejudice to the airman.
The Board specifically found that neither the inspector's understanding of "compensation or hire," nor his general perception of flight maintenance logs, were directly relevant to the evidence that he reviewed concerning the airman's alleged violations. It also concluded that the inspector's opinions during the course of his investigation or his discussions with other investigators were not relevant to the issue of whether the airman violated the regulations as charged by the FAA. As a result, the Board affirmed the ALJ's decision.
The 9th Circuit Court of Appeals disagreed with the Board. In its unpublished decision, Ferguson v. FAA, the Court determined that the Board had abused its discretion in upholding the ALJ's decision and that abuse of discretion was prejudicial to the airman. The Court initially observed that "[t]he Rules of Practice in Air Safety Proceedings provide that each party has the right to 'conduct such cross examination as may be required for a full and true disclosure of the facts." However, because the inspector "was the FAA's lone witness as to the revenue-generating nature of the disputed flights," the Court determined that the ALJ erred in not allowing cross-examination of the inspector on the many aspects of his testimony regarding that central issue. The Court stated that the ALJ's "reliance on [the inspector's] testimony, particularly as to the contents of the flight logs, makes clear that the error was prejudicial." The Court vacated the Board's decision and sent the case back to the Board for further action.
Although clearly not happy with the Court's decision, the Board complied with the decision, stating "[d]espite our well-established precedent with regard to our law judges' evidentiary rulings, and the reasoning that forms the basis for our deference to such rulings, we recognize that the Ninth Circuit believes that the law judge should have allowed respondent's counsel to question [the inspector] more fully in this case. As such, we are compelled to remand this case to the law judge so that he may oversee an additional hearing at which respondent's counsel may again cross-examine" the inspector."
It is unfortunate that the airman had to appeal all the way to the 9th Circuit in order to get his full day in court. However, you have to wonder whether the additional information that will be obtained through a full cross examination at the new hearing will change the ALJ's mind or provide a sufficient basis for appeal if he doesn't. We'll just have to see how it plays out.
As airmen, we should always be learning. We can learn from current NTSB cases. The obvious lesson is to not do what these airmen did. These cases also reveal what an airman may be able to expect from both the FAA and the NTSB in these situations. Forewarned is forearmed.