AircraftOwner Online

In September 2010, I spent a most-enjoyable 90 minutes with brand new Administrative Law Judge Alfonso J. Montaño. I was very pleased to have been the first “journalist”, either from the aviation community or from the legal community, to have been afforded the time to interview him. He was introduced to the remainder of the aviation legal community the following morning.

    A native of the Taos, New Mexico area, Judge Montaño has an easy, broad smile which he flashed many times during the course of our meeting, particularly when the discussions turned to his newly-found love of flying. He has been married to the same woman -- Trish, a third-grade teacher -- since 1982. They have two children: a son who is in a Doctoral program in Psychology; and a daughter, who is a college senior pursuing a degree in Art History. His son enjoys flying with Dad; his daughter had a bad experience with a discovery flight years ago and has yet to take advantage of Dad’s offers to take her up. He remains hopeful that she will come to understand, and not to fear, his new passion.

    Other than flying, Judge Montaño is a huge history buff, with a special interest in the Revolutionary War and the Civil War. In fact, when I asked him to tell me about his favorite flight to date, he told me that he flew to Tangier Island, in the middle of the Chesapeake Bay, which the British had used as a staging area for their assault on Baltimore during the War of 1812. Judge Montaño also loves music of all kinds. He plays the guitar, but confesses that he, “hasn’t advanced much since high school.”

    I confirmed that Judge Montaño will be taking over the Southeastern Circuit that recently-retired Judge William A. Pope, Jr. had served for so long. I also confirmed that Judge Montaño does not have an existing backlog of cases that were to have been decided by Judge Pope since his retirement. Those cases have been handled by the other three Administrative Law Judges.

    Judge Montaño has been in rigorous training to understand his new role as an NTSB ALJ. But he is not starting from scratch by a long shot. He has been in public service all his adult life, and has been an Administrative Law Judge for the past 15 years, first working to decide appeals concerning eligibility for Social Security benefits in Portland, Oregon. He also spent much of his career assisting in Medicare and Medicaid fraud and abuse cases, first as an investigator, later as an assistant attorney, then as a Trial Attorney for the Department of Justice, and finally as an Administrative Law Judge. For the past 11 years Judge Montaño presided over adversarial hearings for the Department of Health and Human Services involving civil monetary penalties, terminations, sanctions and exclusions of physicians, nursing facilities, and other health care providers from participation in the Medicare Program. Although his office was, by then, in Washington, DC, he conducted hearings around the United States. He has an interest in all things medical and is looking forward to seeing how medical issues are presented in the aviation legal context.

    Judge Montaño is not at all shy about how much he is looking forward to his new job. He said he is still in shock that he was actually picked for this position, because it involves all three of his passions: aviation, law and medicine. Judge Montaño has clearly been bitten by the aviation bug. He has longed to be a pilot since he was in third grade and a bi-plane flew over a field in which he had been resting. He remembers that the aircraft was so close to him that he could see it when the pilot looked down and waved to him from the cockpit (it was a crop duster). Since then, he had always wanted to learn to fly, but never had the opportunity. Life got in the way.

     But he told his wife of his dreams of flying, and, on Christmas morning of 2004, she gave him what he described as the best Christmas present he ever got -- a Discovery flight at Manassas airport. When he landed, he was a changed man. He knew he would be a pilot. So he has spent his spare time flying when he could and finally received his private pilot certificate in 2006. He rents 172’s, 172RG’s and has flown some Pipers and a 182. He has a close friend who took flying lessons at about the same time, at the same FBO, and they now fly together with their wives to visit friends and family. So far, he has flown as far North as Pennsylvania, as far Northwest as Wheeling, West Virginia, and as far South as upper North Carolina. He is looking forward to training for his instrument rating as soon as he can.

    Judge Montaño told me, “taking flying lessons changed my life. It changed the way I think about things, the way I analyze things, and the way I prioritize things.” He can barely contain his excitement about now having all cases that cross his desk involving aviation.

     We in aviation can count ourselves lucky that three of the four Administrative Law Judges that hear our appeals now understand, and are even passionate about, flying aircraft. The NTSB is not permitted by law to request or to require that applicants for the position have any aviation background at all, and, in the past, many of them have not had any background. We are truly fortunate that we now have someone who has filled out the application for an FAA Medical Certificate, gone through ground school, taken flight training, worked hard to earn his certificate, and experienced the joys, terror, and endorphins that flying solo can produce. When we as aviators go before him, we know that he will be able to put himself in our place and understand what we faced when the decisions we made resulted in an allegation that we violated one or more FARs.

    Judge Montaño is now getting ready to start sitting in on final hearings conducted by the other Administrative Law Judges to see how they do what they do, particularly how they manage to articulate an oral final decision from the bench at the conclusion of the final hearing, which is something that very few other judges anywhere else in our legal system have to do. Usually, Judges can adjourn the hearing, thank the parties and their counsel, go back to his or her home or office, think about the case for a while, and issue a written ruling. The NTSB Administrative Law Judges have found that issuing an oral decision immediately, while the parties are still present, speeds up the process tremendously, and gives closure of a sort to both the Airman and the FAA. It is a difficult skill to master, and Judge Montaño confesses that the prospect is somewhat daunting to him.

    He is also interested in observing how the NTSB Administrative Law Judges handle “Emergency” cases, since the specialized procedure we use does not exist in any of the other Federal Departments. He finds the concept intriguing and is curious to see how it actually works in practice. And, of course, he is very curious to see how his medical background will come into play with FAA aero-medical issues on appeal.

    Regardless of the case, however, Judge Montaño wants everyone to know that he will do his best to listen to the evidence objectively, to treat the parties and the lawyers with respect and professionalism (while demanding the same from them), to provide the parties with a full and fair hearing of their case, and to rule in an objective and impartial manner. He knows full well that his decisions can cost someone a career or can let unsafe practices continue to represent a hazard to the general public. He has had the better part of 15 years to get used to the idea that, no matter how he rules, at least one party (and sometimes more than one party) will be upset with him for the way he has ruled. He has shouldered that burden before, and will continue to shoulder it now for the NTSB.

    The NTSB Administrative Law Judge position is a real plum of a job. For most Administrative Law Judges, once they have been appointed to the NTSB position, they keep the job until they retire. For the time being, the talk around the Office of Judges is now that ALJ Roger Mullins, who is 65 years young, and who has served as an NTSB ALJ for the last 21 years, can no longer be called, “the Kid” -- Judge Montaño has now acquired that moniker. I know that all of you join me in wishing Judge Montaño well in his new position. I, for one, am looking forward to practicing before him, and to helping to introduce him to Sun N Fun, Airventure, and NBAA, where he can seriously fan the flames of the aviation fire that burns within him.