2010 Legal Proceedings: A Retrospective
2010 Legal Proceedings: A
Retrospective
As many of you know from prior issues of this column, getting statistics about FAA administrative proceedings against pilots is very difficult. The only place where good statistics are available is from the ultimate administrative appellate body, the NTSB, which hears appeals from FAA Orders against Certificate holders.
In 2010, there were a total of 62 such appeals. Of those, 7 cases were cases where the substance of the matter had been heard before and either a judicial appeal was taken to the United States Court of Appeal (3 cases), or where the Certificate Holder had filed a request for reimbursement of a portion of his or her attorneys fees under the Equal Access to Justice Act (4 cases). Three other cases were sent back to the Administrative Law Judges for further proceedings without a finding for either party (“remanded”). Four other cases dismissed the Airman’s Appeal for being untimely without reaching the merits of the matter. In five other cases, the Administrator’s Petition to have the decision of the Administrative Law Judge reconsidered, the NTSB refused to reconsider the matter. In one other case, where the Airman petitioned the NTSB to have the decision of the Administrative Law Judge reconsidered, the NTSB refused to reconsider the matter. In two other cases, an Airman’s request for a stay of the Order of the Board pending judicial review by the United States Court of Appeal was granted; in another it was denied. In one case, the Law Judge had refused to grant the FAA’s Motion to Dismiss the Airman’s appeal because the Airman allegedly didn’t file his appeal in time, was reversed and the Airman was not allowed to proceed to the merits in the case below. 11 cases involved appeals which were either withdrawn or not perfected. One other case was settled. This leaves 26 cases in which cases were decided on the basic merits of the argument of the parties.
Of those 26 cases, 9 were cases that were brought by the Administrator under the FAA’s “emergency” powers. All of those cases were decided in favor of the Administrator and against the Airman. The remaining 17 cases, all went, in one form or another, against the Airman, as well. Although in a few of those cases, the sanctions recommended by the Administrative Law Judge were reduced, all of the Airmen whose appeals to the NTSB were heard on the merits, wound up with their Certificates revoked or suspended for some period of time.
It is also interesting to note that, in the last three or four years, the NTSB legal staff has managed to whittle down its entire backlog of appeals such that there is relatively little delay between the date that an appeal is taken from an Administrative Law Judge and the date that an Opinion is published by the NTSB. This benefits all concerned, as it provides closure for disputes.
You should also be aware of the fact that the NTSB is considering changes to the rules governing “emergency” proceedings. According to the Press Release,
“The ANPRM [Amended Notice of Proposed Rule Making] indicates that certain parties have approached the NTSB concerning emergency certificate actions, which involve cases in which the FAA issues an immediately effective order revoking or suspending a certificate. In such cases, the NTSB’s procedural rules allow a party to challenge the emergency status of the case, and provide an expedited timeline for doing so. The rules currently require the NTSB’s administrative law judges to ‘consider whether, based on the acts and omissions alleged in the Administrator’s order, and assuming the truth of such factual allegations, the Administrator’s emergency determination was appropriate under the circumstances.’ The ANPRM invites public comments concerning this standard of review, as well as other aspects of the emergency review process, such as whether a hearing should occur to allow parties to provide evidence concerning whether the case should be treated as an emergency. The ANPRM further invites comments concerning whether parties should have an opportunity for another level of appeal to challenge the emergency status determination.”
For information on how to make a formal “comment” during the “comment period, please contact me and I will assist you so that your voice can be heard on this important matter.
As many of you know from prior issues of this column, getting statistics about FAA administrative proceedings against pilots is very difficult. The only place where good statistics are available is from the ultimate administrative appellate body, the NTSB, which hears appeals from FAA Orders against Certificate holders.
In 2010, there were a total of 62 such appeals. Of those, 7 cases were cases where the substance of the matter had been heard before and either a judicial appeal was taken to the United States Court of Appeal (3 cases), or where the Certificate Holder had filed a request for reimbursement of a portion of his or her attorneys fees under the Equal Access to Justice Act (4 cases). Three other cases were sent back to the Administrative Law Judges for further proceedings without a finding for either party (“remanded”). Four other cases dismissed the Airman’s Appeal for being untimely without reaching the merits of the matter. In five other cases, the Administrator’s Petition to have the decision of the Administrative Law Judge reconsidered, the NTSB refused to reconsider the matter. In one other case, where the Airman petitioned the NTSB to have the decision of the Administrative Law Judge reconsidered, the NTSB refused to reconsider the matter. In two other cases, an Airman’s request for a stay of the Order of the Board pending judicial review by the United States Court of Appeal was granted; in another it was denied. In one case, the Law Judge had refused to grant the FAA’s Motion to Dismiss the Airman’s appeal because the Airman allegedly didn’t file his appeal in time, was reversed and the Airman was not allowed to proceed to the merits in the case below. 11 cases involved appeals which were either withdrawn or not perfected. One other case was settled. This leaves 26 cases in which cases were decided on the basic merits of the argument of the parties.
Of those 26 cases, 9 were cases that were brought by the Administrator under the FAA’s “emergency” powers. All of those cases were decided in favor of the Administrator and against the Airman. The remaining 17 cases, all went, in one form or another, against the Airman, as well. Although in a few of those cases, the sanctions recommended by the Administrative Law Judge were reduced, all of the Airmen whose appeals to the NTSB were heard on the merits, wound up with their Certificates revoked or suspended for some period of time.
It is also interesting to note that, in the last three or four years, the NTSB legal staff has managed to whittle down its entire backlog of appeals such that there is relatively little delay between the date that an appeal is taken from an Administrative Law Judge and the date that an Opinion is published by the NTSB. This benefits all concerned, as it provides closure for disputes.
You should also be aware of the fact that the NTSB is considering changes to the rules governing “emergency” proceedings. According to the Press Release,
“The ANPRM [Amended Notice of Proposed Rule Making] indicates that certain parties have approached the NTSB concerning emergency certificate actions, which involve cases in which the FAA issues an immediately effective order revoking or suspending a certificate. In such cases, the NTSB’s procedural rules allow a party to challenge the emergency status of the case, and provide an expedited timeline for doing so. The rules currently require the NTSB’s administrative law judges to ‘consider whether, based on the acts and omissions alleged in the Administrator’s order, and assuming the truth of such factual allegations, the Administrator’s emergency determination was appropriate under the circumstances.’ The ANPRM invites public comments concerning this standard of review, as well as other aspects of the emergency review process, such as whether a hearing should occur to allow parties to provide evidence concerning whether the case should be treated as an emergency. The ANPRM further invites comments concerning whether parties should have an opportunity for another level of appeal to challenge the emergency status determination.”
For information on how to make a formal “comment” during the “comment period, please contact me and I will assist you so that your voice can be heard on this important matter.
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