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FAA Versus Airmen If you hold a Federal Aviation Administration (FAA) certificate, either in business or as an airmen, it is important to realize that the FAA considers your certificate a privilege and not a right. Any infractions committed, injury or non-injury, the FAA may revoke this privilege, suspend your certificate, or asses penalties. Recent decisions have given FAA lawyers the ability to make interpretations of the Federal Aviation Regulations (FARs) during litigation proceedings. This presents a unique case where the prosecutor can interpret ambiguous regulations in the middle of the trial and the judge is bound by the prosecutor s interpretation. This presents good question about due process that is supposedly present in the United States legal system, or could it be that aviation is a unique exemption to this rule. FAA certificate holders are afforded due process in regarding the FARs because the rules are issued prior to the rulemaking process. This provides opportunity to comment on the propriety of the proposed rule. However, the language of such rulemaking leaves room for interpretation errors. This ambiguity becomes vivid when applying the FARs to various operational circumstances. Recent amendments require that such rulemaking be written in plain language to enable all regulated parties the ability to understand the notice of the rules that may bind their operation. The FAA even produces official interpretations of the regulations by various means such as FAA orders, advisory circulars, and general counsel rule interpretations. In most cases, there is some form of written policy that has been issued to put certificate holders on notice of how the rules are to be interpreted and applied. Most of the FAA publications are only considered advisory in nature, however, in light of recent decisions the many FAA orders and manuals should be viewed as binding interpretations of the regulations. The very essence of due process is hidden in the fact that the FARs, and their appropriate interpretations, can be readily available before the rights and privileges granted by law or permitted by regulation can be revoked. In understanding the nature of aviation, it is important to remember that the FAA rule-making lawyers and regulatory officials strive to write such rules and policy guidance to enhance the overall safety in aviation. However, FAA officials wear two hats. The FAA has a safety policy-making function and a police-enforcement function. That gives more reason for certificate holders to be aware of the regulations that bind their operations. It is essential to understand the difference in legal enforcement actions and administrative enforcement actions. A legal enforcement action by the FAA can take the form of revocation, suspension, or monetary penalties that will remain on your record for five years. Under a legal enforcement action, airmen have appellate rights. An administrative enforcement action may take the form of a Letter of Correction or a Warning Notice that can stay on your record for two years and airmen have no appeal rights. Regardless the type of enforcement action, it can damage your reputation and unfavorably affect your career or business. In order to understand how the FAA can interpret FARs during litigation proceedings, one must understand the system. FAA certificate holders that face legal enforcement actions have the ability to appeal to an administrative law judge (ALJ) of the National Transportation Safety Board (NTSB). The business or airman is considered a Respondent and is entitled to an evidentiary hearing before the NTSB judge. The decision of the ALJ my then be appealed to the entire NTSB. The Board is not bound by the findings of the ALJ but may examine the record for evidence to determine whether the judge made an error of fact or law. The NTSB can then overrule or sustain the decision of the ALJ. However, in carrying out is appellate adjudicative function, the NTSB is bound by the rules, regulations, and interpretations of the rules adopted by and set forth by the FAA Administrator. As you can see, is appears to be quite a double-edge sword. However, keep in mind that the FAA, in most cases, does not seek out enforcement actions unless a violation is evident. The most recent case that has instigated this dangerous new precedent in FAA enforcement law is Garvey, FAA v. NTSB and Richard Lee Merrell, (FAA v. Merrell), 190 F. 3rd 571, 577 (D.C. Cir, 1999). A summation of the facts in this case includes a Captain Richard Lee Merrell, pilot-in-command of Northwest Airlines Flight 1024 departing LAX on June 19, 1994. Air traffic control (ATC) instructed him to climb and maintain 17,000 feet. Captain Merrell correctly read back the clearance. One minute later, ATC instructed American Airline Flight 94 to climb to and maintain flight level (FL) 230 meaning 23,000 feet. The American captain promptly and correctly read back his clearance. In the meantime, Captain Merrell heard the instruction to American Flight 94 but had truly believed it was directed to his flight 1024. Based on his perception and in accordance with proper procedure, Captain Merrell read back the back the FL 230 climb clearance. Unfortunately, his read back clearance was blocked by American Flight 94 s read back. Captain Merrell, unaware that ATC did not receive his read back, began his climb to FL230. ATC noted the deviation and called Captain Merrell to return to 17000 feet. Regrettably, he had already violated the clearance and separation standards. The FAA issued a legal enforcement action against Captain Merrell, sanctioning him for inattentive carelessness in violation of operating contrary to an ATC instruction and following a clearance issued to another pilot. Merrell appealed the FAA order to NTSB ALJ. The ALJ ruled in favor of the FAA at the hearing and affirmed the FAA order sanctioning Captain Merrell for deviating from a clearly transmitted ATC instruction. Captain Merrell, under Airline Pilot Association defense, appealed the ALJ s decision to the entire NTSB. However, the NTSB did agree with the ruling that he made an error of perception, but the Board ruled that he was not performing his duties in a careless or otherwise unprofessional manner. Without the squelched transmission, the misunderstanding would have been discovered and ATC would have been able to correct the error. The FAA appealed the decision of the Board to the D.C. Circuit Court of Appeals. The D.C. Circuit Court of Appeals overruled the decision of the NTSB and held that the refusal of the Board to defer to the FAA on this question of agency interpretation was error. The Circuit Court went as far as to tell the Board that because the FAA is entitled to launch new policies through administrative adjudication, it may sometimes be necessary for the NTSB to accommodate such policies by changing its prudential course. Astoundingly, the Court also held that because the Board is bound to follow such interpretations, it may at times be both necessary and proper for the Board to depart from it prior case law. (NTSB Order No. EA-4814 [NTSB], 2000) The decision by the D.C. Court of Appeals has basically removed the NTSB as an adjudicator authority. The ruling enabled enforcement attorneys in the FAA to interpret regulations and establish policy during the middle of an adversarial proceeding. This case has left many airmen, and lawyers, scratching and shaking their heads. The D.C. Circuit s strong overriding opinion of the NTSB has been somewhat vague in defining how the FAA will comply with the requirement of validly adopting legal interpretations of the regulations. That ruling also included that the FAA has authority under the Federal Aviation Act to prescribe regulations and minimum standards for safety and air commerce that gives the FAA a policy-making and police-enforcement function. Thusly, trusting the police prosecutor to be a policy making authority. In conclusion, it sounds as if the Court of Appeals is really saying that the NTSB has no judicial precedent and should just be in agreement with the FAA s ruling, as long as the facts are evident. This will and has had adverse affect on the certificate holder s right to appeal. However, it is certain that this will not be the last we hear of such instances. It seems, to an extent, that there is good reason to bring question in the imbalance of power that excludes agencies, such as the FAA, from the constitution. The FAA has a very demanding and critical role in the United States transportation system. The regulations and guidelines are in place for very obvious reasons. SAFETY! Aviation is a very dynamic, challenging, and rewarding career. The last thing anyone needs is an enforcement action that could have easily been avoided. All aviation professionals have stringent training and operational regulations that are in place to protect airmen from each other and enforcement action. The ability to maintain those standards and professionalism should be expected from each and every aviator. There have not been any amendments to the due process provided to certificated airman and there are still cases being brought to the NTSB. The right to appeal a legal enforcement action is still in place and there is still somewhat of a balance in place to airmen. Believe it or not, there have even been cases when the ALJ has ruled in favor of the certificated airmen.

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