Retesting Nightmare . . . Again

A while back we looked at the retesting problem in general and at some A&P schools in particular. (The Threat From Section 609, March/April 1993; You Win Some, You Lose Some, July/August 1993; Retesting Nightmare, January/February 1995). After FAA investigations some schools were closed and many mechanics forced to retest or give up their tickets through no fault of their own. At that time many thought this process was unfair, and certainly this recent example we also consider unfair to mechanics . . . Read on . . .

Seacrest, et al., vs. FAA, Marion C. Blakey, Administrator, 12-13-05 USCA, 11th Circuit

This case was an appeal by the FAA from a decision of the U.S. District Court for the Middle District of Florida, in favor of the plaintiff mechanics who challenged and won their case involving the requirement that they retest for their airframe and powerplant certificates.

Recently, on Dec. 13, 2005, the U.S. Court of Appeals for the Eleventh Circuit decided that the lower court was wrong and reversed the district court decision. The FAA won and the mechanics lost here. This means that in order to go forward with their careers they would likely have to retest for their tickets, proceed with administrative action, or just give them up.

The Details

In this case our benevolent, caring, “we are here to help,” FAA, and its Administrator, Marion C. Blakey, were upset with their failure to convince a U.S. District Court trial judge that the mechanics should be retested, so they appealed the decision.

The school in Florida where the mechanics received their A&P tickets was found, in a criminal proceeding, guilty of fraud. The FAA designated examiner fraudulently examined and certified some applicants according to the court in the school’s case. The FAA concluded that the existence of some aircraft mechanics from this school who were unqualified to hold their certificates posed a serious threat to air safety.

The FAA said that since they could not determine which mechanics received their certificates fraudulently, they had to reexamine all of the mechanics who had been certified during a certain time period. This was nothing new. It had happened several times before with other schools.

Some 2,000 mechanics received letters from the FAA, saying that they had to take their tests over again pursuant to 49 USC 44709. This is the catch-all statute that allows for retesting of any certificate holder where there is doubt of competency.

The Proceding

Before FAA took any action on their certificates, the mechanics retained counsel and filed a lawsuit against the FAA, thereby risking further action by the FAA suspending or revoking their certificates. (Axiom: The best defense is good offense, usually.) They filed their lawsuit in the U.S. District Court in Florida seeking an injunction (Order of the Court) telling the FAA how to proceed. Their district court judge granted their petition and entered a preliminary injunction instructing the FAA how to proceed in its reexamination process.

The Order of the District Court was simple, direct, and in my opinion, reasonable. (1) It prevented the FAA from reexamining the mechanics on an emergency basis (which they always do in these cases); (2) required the FAA to give cause why each and every mechanic had to be reexamined; and further, (3) allowed each and every mechanic an opportunity to be heard on the question of why he or she should not have to submit to a reexamination. Simple, because that is what is supposed to be done in competency cases for pilots, mechanics, or anybody else with a certificate, for that matter.

The FAA appealed this Order of the District to the 11th Circuit Court of Appeals.

What the Mechanics Argued

The mechanics said that the administrative process of the FAA did not apply here, because they brought their suit before the FAA had taken any action to suspend or revoke their certificates. In addition, they said that their Constitutional due process rights would be denied by the FAA’s plan to reexamine all of the mechanics rather than those who might have been fraudulently issued certificates.

The FAA attacked the judgment of the district court judge in favor of the mechanics on two grounds. First it argues the arcane issue of subject matter jurisdiction to hear the mechanics’ case. (This had nothing to do with the merits of the case.) It simply means that the court should not have heard the case at all. Secondly, it said that the lower court erred in granting the preliminary injunction.

FAA said that they had an administrative process in place to hear such grievances, created by Congress, that denies the district court jurisdiction to resolve such disputes and they again refer to 49 USC 44709, the provision that provides for retesting all certificate holders.

The Law

The Court of Appeals commenced with the simple fact that this case was determined by the U.S. Supreme Court in an earlier case. (Neither party to the lawsuit, mechanics or FAA, mentioned the Supreme Court case in their brief or argument.) By failing to cite this case FAA probably missed an opportunity to dispose of the case at the district court level by simply citing it as controlling Supreme Court precedent.

The Supreme Court case cited by the Appellate Court was an older coal company case dealing with a mine safety issue of all things. In this case a mine operator filed a similar action in a district court, like our mechanics, attempting to forestall action under the Mine Act before the Mine Act Commission took punitive action against them. The Mine Act, like the FAA Act, provided for an administrative process of resolving disputes. Like the mechanics, the mine operator argued that requiring it to comply with the administrative process would violate their due process rights and also cause them irreparable harm. When this case got to the Supreme Court they said no. Since there was a process in place that provided an initial review to an administrative body (rather than a U.S. District Court) the district court had no jurisdiction to hear the case. They said that Congress did not intend for the case to start in the U.S. District Court (although it was silent on this issue) and thus had no jurisdiction to hear it.

The 11th Circuit Court of Appeals said that the outcome of the mechanics case is dictated by the Supreme Court case described above. They said the facts were so similar that there could be but one conclusion and it was that the district court in Florida did not have jurisdiction to hear the mechanics case and thus the case was sent back to the district court to be dismissed.

Keep in mind that the mechanics at this point could still wait for the FAA to suspend their certificates and then appeal through the administrative process to the NTSB and have another trial before a NTSB judge and an appeal from that to the full NTSB board. Following this, an appeal to a Circuit Court of Appeals is also available. After which, if they lost all of these hearings, they could still retest and recover their tickets.

Previous Case

In a 1993 article I wrote about a similar retesting case where the mechanics went directly through the FAA Administrative process after suspension and appealed to the NTSB for relief. (The NTSB hearing judge is akin to the U.S. District Court judge in that it is a single judge hearing the arguments of the parties but he and the board are closely connected to FAA in many ways, unlike your local district court judge). Nonetheless, again, in this case the NTSB judge sided with the mechanics. He found the conduct of the FAA reprehensible in the way it conducted its investigations and its interviews with the mechanics. His statement on the case is worth recalling, he said:

“The case has two odors about it . . . the first odor is that these gentlemen (mechanics) were all good students . . . perhaps top students, at a school operated and or licensed by the Administrator . . . They completed that school . . . and they were examined by a designated maintenance examiner and that designation comes from the Administrator . . . Now the Administrator says in this proceeding, well this guy that represented us didn’t do his job and so therefore we’re coming after you folks . . . there’s something sort of inherently upsetting about that . . . The second . . . thing that has an odor to it is the way the investigation was conducted . . . I guess the bottom line for me, the evidence that the Administrator wants me to consider today is disturbing; the way it was obtained, the time frame . . .”

The FAA appealed this decision to the full NTSB board and the judge was reversed by the board. They said in this case that the “additional burdens imposed on the mechanics by requiring that they be retested do not outweigh the Administrator’s interest in ensuring that unqualified individuals not be allowed to perform maintenance on aircraft.”

It is interesting to note that both of the judges at the local level who actually heard the testimony of the parties, believed that they had a legitimate grievance. The FAA always relies on the appellate level judges to back their position, even though the appellate level relies only on the paper transcripts of the trial proceeding. They were not there and heard no testimony.

A Reasonable Solution?

The mechanics involved here, for the most part, are probably involved in industry as mechanics somewhere. As those of us in the business know, no new mechanics are given any sort of solo authority such that they could be a serious threat to air safety. The structure of the business is designed to provide for re-inspection of most if not all of general mechanics work. Inspectors are an integral part of the repair process. So, why not let the individual mechanics in this case be certified further by their employers. They could state that as far as they are concerned their employee does not pose a significant risk to air safety as a result of having attended a school that was found to be doing something wrong. Most of the mechanics, more likely than not, have been properly examined and therefore should be cut some slack. The FAA should realize that this reasonable solution would relieve her inspectors of the testing work and therefore allow them to do other work more efficiently. We are told of course that the inspectors are all so overburdened with work these days . . . Right.

This process could save the FAA a ton of time and energy and allow for the rapid certification of the mechanics concerned. Any comments? . . .

aerolaw@att.net.

Postscript

After completing this article I noted another Order of the district court had been entered which was unusual.

It seems that another case titled Allison, et al., vs. FAA & Marion C. Blakey, involving the same issues, came before the same judge. On Dec. 21, 2005 she issued an Order that stated the same decision as was issued in the Seacrest case that was appealed to the Circuit Court of Appeals and was reversed. In the first case the Appellate Court ordered that Seacrest be dismissed. However, there is a period of time after this order is entered that must pass before it can become final. Namely, a “mandate” from the appellate court must be delivered to the district court judge. This “mandate” is a return of jurisdiction to the district court judge so that she can dismiss it, in accord with the Order.

In her order the district court judge stated that there was no substantial difference between the cases and that the mandate had not yet arrived, therefore she would impose the same injunction and order as was issued in Seacrest. (Which was not yet final.)

The district court judge on Dec. 21, 2005, had not yet received a mandate making the case “final,” therefore she would treat both cases the same way. By the time you read this I believe that the decision in Seacrest will be final and that will end the story. Allison likely will also be dismissed for the same reasons.

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