by Dave Alden
(Legal.com – August 8, 2012) President Obama signed into law the Pilot’s Bill of Rights which modifies the procedural steps that must be followed by the Federal Aviation Administration (“FAA”) when conducting a legal enforcement (certificate) action against an individual who is the subject of an investigation relating to the approval, denial, suspension, modification, or revocation of an airman certificate. Among other things, the new law requires the FAA to
timely provide notice and information about the investigation to the airman; provide notice that no response to the Letter of Investigation (“LOI”) is required; provide notice that no adverse inference will be taken by a pilot’s choice to not respond to the LOI; and provide timely access to air traffic and NOTAM data.
The Pilot’s Bill of Rights also modifies Title 49 United States Code to eliminate the language granting deference to the FAA. Deference is the submission or courteous yielding to the opinion, wishes, or judgment of another. When an FAA enforcement proceeding is appealed to the NTSB, deference is argued by the FAA to prevent the NTSB from reviewing certain FAA discretionary actions or decisions, effectively making portions of FAA enforcement actions non-appealable by airmen. The language stricken from 49 U.S.C. reads as follows, “but is bound by all validly adopted interpretations of laws and regulations the Administrator carries out unless the Board finds an interpretation is arbitrary, capricious, or otherwise not according to law.”
Prior to the Pilot’s Bill of Rights, pilots appealing FAA enforcement decisions first presented their case to an NTSB administrative law judge. If not satisfied with the outcome, either the FAA or pilot could seek review by the full NTSB Board. From there, the only remaining avenue of appeal was to the United States Circuit Court of Appeals, with most aviation cases being heard in the D.C. Circuit. An appellate court, however, can only review the evidence that was previously presented at trial, before the administrative law judge. With passage of the Pilot’s Bill of Rights, pilots have a second bite at the apple to introduce their evidence and have it made part of the record: Trial de novo (new trial) in the United States District Court, before a federal judge who is not bound by prior evidentiary rulings made by the administrative law judge.
Last in order but certainly not least in importance to pilots, S. 1335 requires the FAA to bring its medical certification standards more in line with current medical knowledge and protocols, more clearly state those standards to applicants and modify FAA Form 8500-8, Medical Certification, Airman Medical Application to avoid misinterpretation and mistaken responses to questions than can lead to unnecessary allegations that an individual intentionally falsified answers on the form.
Senate Bill 1335 was signed into law and became effective on August 3, 2012. It was introduced on July 11, 2011, sponsored by Senator Jim Inofe (R-OK), receiving bi-partisan support from Senators Begich, Johanns, Boozman, Snowe, Moran, Pryor, Collins, Crapo, Thune, Cornyn, Murkowski, Alexander, Enzi, Burr, Barrasso, Chambliss, Coats, Hoeven, Isakson, Johnson of Wisconsin, Roberts, Blunt, Coburn, Risch and Wicker.
The companion Bill in the House of Representatives, H.R. 3816, also enjoyed bi-partisan support. It was sponsored by Rep. Sam Graves (R-MO) and co-sponsored by Representatives Lipinski, Hartzler, Pompeo, Hanna, Pearce, Peterson, Harris, Hultgren, Jenkins, Boswell, Kinzinger, Bucshon, Young and Braley. The full text of S. 1335 appears on the next page.