August 7, 2012 in Attention Pilots, FAA enforcement, FAA pilot revocation, FAA pilot suspension, FAA revocation, FAA suspension, Miscellaneous, Pilot Bill of Rights by Jerry H. Trachtman

ATTENTION PILOTS: Pilot Bill of Rights is Now Law

Thanks primarily to the efforts of Senator James Inhofe, pilots and other FAA certificate holders who are subjected to FAA enforcement proceedings can now enjoy the basic due process and fairness that has heretofor been lacking in these matters. The Pilot Bill of Rights was passed unanimously by the Senate and House of Representatives, and signed into law by President Obama on August 3, 2012. Now, for the first time, if the FAA is investigating an individual for a suspected violation of FAA regulations, the FAA must provide that person a timely, written notification informing him or her:

A. of the nature of the investigation

B. that an oral or written response to a Letter of Investigation from the FAA is not required

C. that no action or adverse inference can be taken against the individual for declining to respond to a Letter of Investigation from the FAA

D. that any response to a Letter of Investigation from the FAA or to an inquiry made by an investigating FAA inspector may be used as evidence against the individual

E. that the individual is entitled to timely access to air traffic data that would assist the individual's ability to defend the enforcement action

The new law makes another important change which helps to level the playing field in an FAA enforcement proceeding. Until now, the judge in an FAA enforcement trial was required to defer his own judgment as to the interpretation of applicable laws and regulations to whatever the FAA wanted, unless the FAA interpretation was found to be "arbitrary, capricious, or otherwise not according to law." This is a very difficult, if not impossible standard, and the result has been that the FAA just about always prevailed. Now, the trial judge in an enforcement proceeding is free to apply his own independent evaluation and common sense to the interpretation of laws and regulations that may be involved in the case. This is a huge change, since the FAA interpretations of applicable regulations and law are often biased against the individual being prosecuted by the FAA.

Under the new law, the procedure for appealing the decision in an FAA enforcement case has been changed for the better. The trial judge in an enforcement action is a National Transportation Safety Board (NTSB) administrative law judge. If an individual wants to appeal the decision of the NTSB law judge, the appeal is to the NTSB itself (the "full Board"). Until now, the only avenue to appeal the final decision by the full Board was an appeal to the appropriate United States court of appeals, which by law was a very limited review of the trial proceedings and was therefore nearly impossible to win. Now, upon a decision by the NTSB full Board upholding an order or a final decision by the FAA denying an airman certificate, or imposing a punitive civil action, or an emergency order of revocation, an individual may elect to file an appeal in the United States district court (which is the Federal trial court) in the district where the individual resides, or where the alleged violation occurred, or in the District of Columbia. The new law provides that the US district court shall provide a full, independent review of a certificate denial, suspension, or revocation by the FAA, which includes an independent review of all the evidence, exhibits, trial testimony, transcripts, decisions, and briefs submitted by the parties in the case. For the first time, an individual who has been subjected to an FAA enforcement action has the right to a meaningful appeal of the NTSB's final decision.

The new law also provides for the review and future improvement of NOTAM distribution, and the review and future improvement of the medical certificate application.