Retesting Nightmare . . . Again

This is the catch-all statute that allows for retesting of any certificate holder where there is doubt of competency. The school in Florida where the mechanics received their A&P tickets was found, in a criminal proceeding, guilty of fraud. The FAA...


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 . . .”

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