FAA Emergency Action Revisited
What's the solution?
By Stephen P. Prentice
Some time ago, we described a sad episode in the life of a working A&P who happened to fall into the grip of an uninformed inspector who instituted an emergency revocation of this airman's certificates in error (AMT March 1997). The incident was extremely painful for the airman and the sad part is that he suffered a stroke and expired not long after the matter was concluded in his favor.
The heavy hand of government and again
We just heard of another case where emergency action was taken basically on the representations of a disgruntled purchaser of an engine. The FAA seemed to have attempted to aid the purchaser by inspecting the engine, finding alleged violations as usual, and then putting pressure on the mechanic to turn the sale around by threatening enforcement action. When the mechanic refused to accommodate the purchaser, the emergency enforcement action followed. Nice!
Now this event sounded a little more egregious on the bare facts than that of the previous event where the mechanic died, although death is certainly dreadful. This case, on the surface, sounded like someone attempting to use the force of the government to achieve a result in what was clearly a civil beef between two people. Needless to say, the FAA jumped right in to help out.
Emergency action by FAA
As we all should know by now, there is a law that gives the FAA power to suspend or revoke a certificate without notice or an opportunity for a prior hearing. They can do this when they represent that an emergency exists. Typically, this occurs in situations where they can allege a lack of qualification on the part of the certificate holder. The basic and often repeated statement,"... safety in air commerce requiresÉ" is always given as the support for the summary action. All the cases involve a form of this trite statement. It simply means that the potential for harm to the public outweighs any hardship to the certificate holder. In other words, Tough! Usually, all of your FAA certificates are suspended or revoked, and you are required to hand them back immediately!
In the standard enforcement case, the certificate holder is allowed to stay in business and retain a certificate pending a resolution of the case. In other words, he or she is afforded reasonable notice and an opportunity to be heard. This could be anywhere from several months to several years depending on the complexity of the case. Emergency action is authorized by statute whenever, in the opinion of the administrator (and this means an FAA inspector or regional counsel), an emergency regarding safety in air commerce requires immediate action. All of the cases involve a governmental taking of property or the government imposing its will on somebody, thus giving rise to the constitutional due process argument. However, it becomes obvious that the use of emergency procedures is an advantage to the FAA in many ways.
FAA use is popular and widespread
The FAA has increased their use of this summary procedure at least five-fold in recent years for a variety of reasons, including the fact that it makes their case easier to prosecute. Faced with an early hearing date, the certificate holder must quickly marshal his facts and witnesses to defend his position. He is forced to an early hearing (60 days), many times ill-prepared to address the case, ergo, he loses. The other common alternative is simply to surrender your certificate, which those without adequate defense funds proceed to do. This pressure is what the FAA counts on — they come out ahead either way.
Now this quick procedure may come after the FAA has had the facts of the case for many months. Despite the fact that this emergency action procedure is supposed to be prompt, it may take a long time for the government to conclude that an emergency exists in the first place. This is another sore point. The FAA would contend in defense that they are just being careful in investigating the facts before taking action. Others, however, would say that at some point, this argument is ridiculous and must fail simply because the longer it takes to get the facts together, the more obvious it becomes that prompt action is not necessary! When the FAA has the facts for six months to a year, it's nonsense to contend that an emergency exists!
Certain violations have no place being prosecuted via emergency procedures. Minor infractions of a singular nature should clearly be insufficient to justify use of emergency suspension or revocation procedures; however, an accumulation of different events and other violations may justify such action. What is needed is clear and explicit administrative guidelines in this area so that the emergency has some objectivity and more importantly, that certificate holders may have prior notice.
Unfortunately, there are still no clear guidelines on what type of factual presentation by the administrator will justify the use of such punitive action against a certificate holder. The broad term emergency should be narrowed by regulation to provide the aviation community with notice of when and on what conditions this summary procedure will be used. The consequences are too great to avoid some regulation in this area. Where certificate holders are notified of guidelines as to what constitutes an emergency that would provoke such action, they will be able to perhaps remedy a situation in advance.
Without guidelines, there is the continuing danger of uneven application and indeed selective enforcement of the rules.
Emergency action was designed to protect the public. It is most useful when an errant air carrier needs to be shut down, as we have recently seen. The protection of the flying public is a paramount consideration. Therefore, it is reasonable for the government to have a broad grant of discretionary power to allow immediate action in cases of widespread violations. Broad delegation of authority to various agencies by Congress is not unusual in the federal system and has been sustained on many occasions by the Supreme Court. But, it is necessary that rules and regulations limiting and confining the use of these powers be clearly set forth — many times they are not.
Effects on technicians
A second and more objectionable result of a suspension or revocation of your A&P certificate is that you lose your inspection authority, which cannot be held without a mechanic's certificate. If you don't get the certificate back before March 31, you have to retake that test all over again, and we all know what that entails.
Emergency action works well when it is directed where it should be — primarily air carriers and other activities that pose a substantial threat to the public. Where there is a continuing and immediate danger to the public, emergency action is required. In cases where an individual airman is involved, however, many times it is used to coerce and pressure him as a punitive step by the government. What you have to remember is that an inspector's report determines the course of action. Regional counsel is required to sign-off on emergency actions, and they usually follow an inspector's recommendation.
Attack on emergency action
In 1998, the Congress of the United States took a hard look at this summary power of the FAA. Several plans to modify it were put forward with the most common thread in all of them being some sort of early review of the emergency nature of the case before getting to the substance.
Board review of emergency nature
Congressional review was in the form of a Congressional Hearing held on Aug. 6, 1998, in Washington dealing with H.R. 1846: FAA's Emergency Revocation and Suspension of Licenses. A new bill was designed to allow for an independent examination by the board (NTSB) of the issues of any appeal that are related to the existence of an emergency. The question is, "Does an emergency really exist?"
The need for an immediate review is evident. If a board member could be empowered with review oversight on an immediate basis, it would solve the constitutional issue. When a case is filed, a copy could be delivered to a board member (or the full board membership). It could be reviewed immediately (within five days) and a decision could be made as to whether an emergency really existed. Simple. But, the FAA clearly does not want their decision questioned. We have to keep in mind that the emergency nature of the case is not an issue and is not decided at the hearing of the case. Whether it qualifies as an emergency is not addressed. This procedure would be nice, but so far it has not happened!
Federal court review
Although the Federal Courts of Appeal have the power to review the emergency nature of a case, their review will generally be too little, too late, and expensive. Most certificate holders do not have the cash to go forward at the Court of Appeals level. Board review, on the other hand, would cost nothing! Nevada Airlines vs Bond established review by the Court of Appeal of the emergency, but most cases likely will have been completed on the merits by the board before appellate review is completed, making the decision moot. An immediate independent examination of the emergency issue by the NTSB would provide a solution.
Right or privilege?
Many have suggested that if the FAA lawyers had their license to practice law pulled without an opportunity for a prior hearing, there would be a huge outcry by the lawyers. Of course, this could not happen, so why should it happen to AMTs or other licensed persons?
FAA lawyers would contend that your license to operate is a privilege and not a right; however, the FAA lawyers would also maintain that their license to practice law is their right rather than a privilege. What's the difference? A pilot's or mechanic's loss of his certificates would be every bit as grievous as a lawyer's loss of his license to practice law. The same procedures and constitutional protections should apply to certificated technicians as those that apply to the FAA attorneys.
What do you think?