Most mechanics who are also pilots have no doubt read of and heard about the recent law signed by the President called the “Pilots Bill of Rights.” Well, we should know that this law also includes mechanics, IAs, and all other certificated airmen — including air traffic controllers, dispatchers, and any others holding airman certificates. It should be titled the “Airmans Bill of Rights.” Lets take a look at it.
Rule changes re: deference, sanctions, and appeals venue
For years the NTSB had to give what is called deference to legal interpretations that were rather obscure and known mostly by the FAA prosecutors. Many times it came as a surprise to the airman that a legal interpretation not in his favor even existed. This concept has now been rescinded. The Board is no longer forced to follow the legal interpretations that are submitted by the FAA in support of their case. It can interpret the law as it sees fit.
Furthermore, the administrative law judges who hear enforcement cases are no longer bound by what the FAA says is the appropriate sanction to be imposed on an airman for a particular infraction. Now the judge will have more discretion regarding any sanction to be imposed.
Finally, and most importantly, the law adds an additional level of appeal from any final decision of the full NTSB, in that you may now file a further appeal in either of two places … a U.S. District Court in your district, which is new, or in the appropriate U.S. Circuit Court of Appeals which has always been available. This is significant. The addition of the U.S. District Court as an appeal and trial venue gives you a direct appeal to your own local U.S. District Court rather than going to the U.S. Circuit Court of Appeals, which would be much more expensive. A U.S. District Court hearing, will give you a full independent review of your case, in essence a new trial. This is important because you can therefore litigate your case all over again and correct any adverse evidence to the extent possible.
Whereas, a Circuit Court of Appeals will only look at the record that is already established in the NTSB hearings … it is not a de novo review like you get in the District Court. You don’t need a lawyer to bring your appeal in the District Court. The court is designed to allow citizens to bring their cases on their own if they choose and is very careful to guard a citizen’s rights when confronting the government. The District Court is your court and caters to the local population in the district. Needless to say, your own U.S. District Court judges are usually local people who will perhaps know much more about your case than a far away Circuit Court of Appeals or the NTSB for that matter. Your chance of success on the merits of your case is increased markedly, in my opinion.
The law also provides for an expansion of defense areas relating to the denial, amendment, modification, suspension, or revocation of any airman certificate, and of course your IA authority. As far as mechanics and IAs are concerned violations of Part 43 and other maintenance-related regulations are relevant. Although most of the defense techniques described regarding enforcement actions have been in existence for some time, there have been some new additions, for example:
1. There is now a clear statement that says … any proceeding against an airman … “shall be conducted to the extent practicable, in accordance with the Federal Rules of Civil Procedure and the Federal Rules of Evidence.”
What this means is that there will be a bit more formality in any hearing, (similar to a trial proceeding in a U.S. District Court), with regard to the presentation of the case and its defense by you. In the past all of the NTSB enforcement proceedings were conducted in a more informal manner in accord with rules set down in the Administrative Procedures Act (5USC556). This meant that such things as hearsay cannot now be introduced unless an exception can be found.
The hearsay rule is a traditional rule of evidence that is designed to keep speculative evidence out of the record. This informal type of evidence was usually beneficial to the defense in an enforcement case because it allowed a more informal style of testimony to be admitted in NTSB hearings. Needless to say, it was also beneficial to the enforcement side of the case. Some might consider this change to be a problem for the defense side in these hearings but I and others believe it will not be a significant impediment to presenting an effective defense, certainly if the airman is represented by counsel. The hearsay rule has many exceptions that lawyers routinely use to bring in otherwise inadmissable evidence.
2. The second item of interest is the matter dealing with notification to the airman. It says that, the Administrator shall provide timely, written notification to any individual who is the subject of an investigation relating to the approval, denial, suspension, modification, or revocation of an airman certificate under Chapter 447 of title 49 US Code. (Deals with sanctions on certificated airmen.) This section has always been the rule and the Administrator with few exceptions has generally followed this procedure.
The notification by the Administrator must describe the nature of the investigation. In addition, the fact that an oral or written response to the notification is not required and that no action will be taken or adverse inference taken against an individual for declining to respond. More importantly, the Administrator must also now state clearly that “anything you say in your response may be used as evidence against you,” like a traditional Miranda warning. This has always been the case but few airmen were aware of it.
3. The law goes on to say that the airman can obtain the so-called releasable portions of any investigation report and in addition any air traffic data, relevant to a case, including recordings of ATC communications. This also has always been the case, but you had to ask for the information. For a mechanic’s case it of course could include any maintenance records relevant to the charges including FBO records and any other records.
For the most part, this information has always been available to the airman. The one item that was usually omitted however was the matter of your written or oral statements being used as evidence against you. All the defense lawyers knew this of course but it was not made clear by the Administrator. Now it will be. Hence, if you have a lawyer on your side he will usually urge you to say nothing. You generally have nothing to gain and a lot to lose by making a statement by telephone or letter. You should be aware that most if not all conversations with personnel at an FAA office are recorded; keep this in mind anytime you call or discuss anything with an inspector. He will always make a written record of what you say, about anything.
This part of the law also includes the rather fuzzy statement that “the Administrator may delay timely notification (of the information noted above) if the Administrator determines that such notification may threaten the integrity of the investigation.” We can only guess at what this means.
Air traffic data
Although all air traffic data has been generally available in the past there is one significant item that is new. In the past, there were times where a contract control tower company refused to provide information or tapes relating to an incident or accident simply because they were not FAA employees and therefore not subject to the Freedom of Information Act (FOIA) which only applies to federal agencies and employees. They were exercising their rights and they were obviously concerned about their tort liability under the law and their right to be protected under the 5th Amendment, which involves self-incrimination.
Now, as a result of this law, any individual subjected to an investigation for action against his or her airman certificate may obtain any air traffic data, including tapes, radar data, controller statements, flight data, investigative reports, and any other traffic or flight data from an FAA or a contract tower, or a contract flight service station.
Again, needless to say, you must keep accurate records of any event, including, but not limited to, names, time, location, and date of any occurrence, and forward this information with your phone number to the Administrator. Also, you must keep in mind that time is of the essence. The Administrator may not proceed against you (e.g. by way of a certificate action or otherwise) during the 30-day period beginning on the date on which data required is made available to you. There is an exception in the case of emergency action suspending or revoking your certificates (49USC 44709e2).
You have to recall that communication tapes and other data are routinely destroyed and are only kept for brief periods. Sometimes they are destroyed in as little as five days and other times as long as 45 days depending on the type of data. You must seek this information immediately when it appears you may need it for your defense. Use certified mail to the Administrator as early as you can requesting this information and request written confirmation. Do not rely on oral requests on the phone. You can also forward your request for information (under the FOIA) from the FAA by email; send to AirmenDataRequest@faa.gov.
This discussion only looks at the major changes in the law of FAA enforcement proceedings. There are other areas that the law looks at including matters dealing with NOTAM distribution and an associated improvement program. A new medical certification assessment program is also established to look at standards and application forms.
There has been an expansion of this law (the PBR) that includes a further discussion of the application of "policy" additions regarding IAs and other certified parties.
Why do these rules apply to IAs?
IAs must hold A&P certificates therefore they are certificated airmen. A recent FAA document makes this clear. The document is titled “Requirements for Written Notification During Investigations of Airman Certificate Holders or Applicants” (N-8900.195). It’s further titled “National Policy” at its heading and its effective date was Aug. 8, 2012. It is curious that no one that I know ever heard of this document so far this year but it is “policy” now. Of course we all don’t read Flight Standards Information Management System handbook (FSIMS) nor peruse FAA.gov on a regular schedule, but that is where you can find this Notice document and its guidance to inspectors at the various FSDOs around the country.
The document sets out a detailed description of the Pilots Bill of Rights law and essentially spells out all of the items discussed in my description above. However, the Pilots Bill of Rights law speaks for itself. The alleged policy additions may, as some suggest, violate the terms of the Administrative Procedures Act which is supposed to prevent administrative agencies from expanding existing laws as they see fit or creating new ones without complying with the notice requirements of the APA.
The one addition via the policy letter is that all of the certificate holders when acquiring or renewing are subject to “investigation“ in order to acquire or renew their certificates. This document you will not find described in the Pilots Bill of Rights law. Sure they would look at your application forms and determine if you have the necessary time in your logbooks (pilot applicants), or other types of applicants and look over other documents like your medical certificate. But somehow the killer Sept. 11 pilots slipped through the FAA process. In the case of mechanics they of course would look over your training records and in general check that you comply with the various sections of the FAR Part 61, 63, and 65. But now each applicant for any kind of certificate must sign another document that is attached to your application form 8610 that is titled “Pilots Bill of Rights Written Notification of Investigation.” I call it the Miranda document, after the famous case.
This document is nothing more or less than notice to you that an “investigation” will take place regarding your qualification to apply for your certificate or in the case of an IA, his or her authority to perform annual inspections and other privileges of the authority. (Of course you are aware of this, why do we need this form?) Most will simply sign the document but others I understand have balked at signing something that they might not understand.
Does this form violate due process?
This document is similar to a “Miranda” warning, which is used to caution one detained on a criminal charge. However in our case there is none and there is no probable cause involved. Many claim that its use could be challenged on this point alone, as criminal attorneys might suggest.
In addition, it may even be tramping on the Americans With Disabilities Act where it says you … "must be physically able to perform the duties related to the certificate … you are applying for…” Nowhere in the FAR or other parts of the regulations do we find this kind of language with respect to applying for any kind of certificate. Pilots already get a flight physical, what are they going to do now, demand a physical exam for all the other certificates? How are they to determine whether or not someone is … physically able to perform? They have no training in this area.
Finally, it appears clear that only IAs are required to renew their certificates (authority) every two years and have to execute this ersatz Miranda warning document; no other certificate holders have an annual or biannual renewal requirement, except of course, flight instructors. In their case, there is no performance requirement, only the attendance at a renewal educational seminar, just like IAs.
Some observers have suggested that the whole affair regarding this Miranda form and so-called “policy” publication addition is nothing more than a continuing attack against senior IA holders and a clear attempt to continue the effort to intimidate them and others into leaving the profession. What do you think?
Stephen P. Prentice is an attorney whose practice involves FAA-NTSB issues. He has an A&P certificate and is an ATP rated pilot. He is a USAF veteran. Please send comments to firstname.lastname@example.org.