Supreme Court Case

July 13, 2006
A recent U.S. Supreme Court case may allow the re-opening of many FAA enforcement cases where mechanics or pilots failed to respond to notices sent to them by the FAA.

Jones vs. Flowers USSC 4-26-06, No. 04-1477

FAA enforcement notice requirements: The FAA will default an airman or a certificated company for failing to answer a notice from them relating to their operating certificate. Typically, after getting no response to the notice they will bring a motion before the NTSB to have a proposed sanction imposed by default. These cases result in the airman or other certificated person filing a motion to set aside the sanction and allowing them to argue their case on its merits. Various excuses for failing to answer include a lack of notice of the proceeding. This excuse is routinely denied and sanctions imposed.

A recent U.S. Supreme Court case may allow the re-opening of many FAA enforcement cases where mechanics or pilots failed to respond to notices sent to them by the FAA. At the least, the case may change the way the FAA does business relative to these cases. The airmen usually have their certificates suspended or revoked because of their failure to respond to a notice that the FAA sent to them by mail.

For example, when a Notice of Proposed Certificate Action is sent to an airman by certified mail, he or she must respond within 20 days, in the usual case, or suffer a possible suspension, revocation, or other nasty result, by default, after appropriate action by the FAA. This, in many cases, results in an airman being unable to work or otherwise use his or her airman certificate to earn a living. It can also shut down a certificated business. Furthermore, insurance companies will sometimes deny or add additional premiums for coverage where the record shows punitive action against an airman or a business by the FAA.

The FAA requires that all airmen and certificated entities keep it advised of current residence and mailing address or business address and any change in that address. The obvious reason is to reach you by mail when necessary. Moving around has never offered an excuse for your non-receipt of a notice from the FAA. When you do not receive your mail because someone fails to sign for the usual certified letter or no one picks it up at the post office you would lose your case without ever being aware of it.

The case

Jones vs. Flowers was decided on April 26, 2006.

“Before a state may take property and sell it for unpaid taxes the Due Process Clause of the 14th Amendment requires government to provide the owner notice and opportunity to a hearing appropriate to the nature of the case.” Citing … Mullane vs. Hanover Bank USSC (1950).

*The court granted review (in Jones) to determine whether, when notice of a tax sale is mailed to the owner and returned undelivered, the government must take additional reasonable steps to provide notice before taking the owner’s property.”

The petitioner

Jones always paid the mortgage on his house on time for many years and eventually paid it off. He and his wife separated and allowed a relative to reside in their house, although Jones still lived in the same city. The mortgage company paid the taxes but once the mortgage was paid off it became the responsibility of Jones to pay the taxes. He did not do so, and the property was deemed delinquent. The state mailed Jones a certified letter telling him that unless he paid the taxes due, his property would be sold in two years. He did not pay and the property was sold. Nobody had claimed the certified letter and it was returned to the state. The tax commissioner published the impending sale in the local newspaper. Before selling the house the taxman sent another certified letter to Jones at the home address. It was returned unclaimed.

The purchaser, Flowers, had a summons served on the resident of the house, Jones’ daughter, and she was kicked out. Flowers took possession.

Jones filed a state court suit to recover his house claiming that he did not receive notice of the sale. He said this was a taking without due process of the law. The state court said that the statutory procedures were followed and complied with due process requirements. The State Supreme Court affirmed this judgment. Jones was done at the state level.

U.S. Supreme Court

Jones took his case to the Supreme Court of the United States and in short, he won! The state court decision was reversed and remanded back for proceedings not inconsistent with the Supreme Court opinion.

The Supreme Court held that “when a mailed notice of a tax sale is returned unclaimed, a state must take additional reasonable steps to attempt to provide notice to the property owner before selling the property, if it is practicable to do so.”

The court outlined several additional reasonable steps that might have been taken. Firstly, they said that “they could have sent a follow-up letter by regular mail so that no signature would be required. The use of certified mail may make actual notice less likely in some cases. A certified letter cannot be left at the house like regular mail, to be examined at the end of the day. It can only be retrieved at the post office for a specified period of time.” Secondly, the court said that “a notice might have been posted on Jones’ front door or to simply address the regular mail to “occupant” rather than a specific name.”

The Supreme Court said that even though the state required residents to keep their address updated with the tax collector, this requirement did not offer the state an excuse for failing to take additional simple and reasonable steps as outlined above.

FAA enforcement notice

The FAA Notice of Proposed Certificate Action situation bears a compelling similarity to the Jones case.

The notice to the airman is always sent only by certified mail. The threatened action deprives the airman of a substantial right, namely his or her ability to earn a living and support his or her family with the use of his certificate, mechanic or pilot. In the case of a business, (FBO flight training facility, repair station) it would be put out of business, employees would be let go.

The FAA, like the tax assessor, requires that airmen keep them informed of their current mailing address. All who have a certificate should keep this in mind and use the change of address form that the FAA provides for this purpose.

The use of certified mail is discussed in detail in the Jones case: “Using certified mail provides the state with documentation of personal delivery and protection against false claims that notice was never received. That added security, however, comes at a price — the state also learns when notice has not been received. We conclude that under the circumstances presented, the state cannot simply ignore that information in proceeding to take and sell owner’s property …”

“There is no reason to suppose that the state will ever be less than fully zealous in its efforts to secure the tax revenue it needs. The same cannot be said for the state’s efforts to ensure that its citizens receive proper notice before the state takes action against them. In this case, the state is exerting extraordinary power against a property owner — taking and selling a house he owns. It is not too much to insist that the state do a bit more to attempt to let him know about it when the notice letter addressed to him is returned unclaimed.”

The similarities

FAA procedures in the matter of notice are similar even though they bring a motion beforehand to request that the default be entered and sanction imposed. In the suspension or revocation of certificates, by default, the FAA is exerting an extraordinary power by denying an airman or a company, the ability to earn a living, in my opinion, a similar important right.

The court cited other examples where notice requirements were discussed, e.g., a vehicle forfeiture, seized cash, a foreclosure, estate creditors, common trust fund, and tenants in public housing. It seems clear that the court intended this decision to apply to all forms of notice requirements, dealing with different subject matters, where substantial rights are involved. In my opinion it should apply to the forfeiture of the ability to earn a living. Please forward your comments or experiences on this subject to

The dissent

The dissent by Justice Thomas, said that ... “because, under this court’s precedents, the state’s notice methods clearly satisfy the requirements of the Due Process Clause, I respectfully dissent.”

He stated that the methods of notice employed by Arkansas were reasonably calculated to inform the petitioner, Jones, of the proceedings affecting his property and thus satisfied the requirements of the Due Process Clause of the U.S. Constitution. Justice Thomas was following his long-standing philosophy of the strict application of the laws which are already on the books and not reading into the law additional variations of what is required.

This was a five to three decision. Chief Judge, Roberts delivered the majority opinion for the court, in which Stevens, Souter (of Kelo fame) Ginsberg, and Breyer joined. Judge Thomas, filed the dissenting opinion, in which Scalia and Kennedy joined. The new Judge Alito did not take part in the consideration or decision of the case.

About the Author

Stephen P. Prentice

Stephen P. Prentice is an attorney with an Airframe and Powerplant certificate, is an ATP rated pilot, and is a USAF veteran. E-mail: [email protected].