AOPA Pilot Magazine - March 2008 - 66

PILOTCOUNSEL BY JOHN S. YODICE AOPA GENERAL COUNSEL True colors: The FAA and NTSB S o, you are proud and pleased that, after considerable effort and expense, you have successfully passed the tests for a pilot certiﬁcate the board combined with the FAA (well represented by expert counsel), to deprive the pilot of a hearing using technical procedural provisions against this pilot who decided to represent himself (without counsel). It is necessary to understand what this unrepresented pilot was facing. Instead of allowing the hearing that is required by these acts, the FAA made a legally technical “motion for judgment on the pleadings or, in the alternative, for summary judgment.” These are procedures that are provided by or advanced rating. All of us remember those happy AOPA’s General the board’s rules of practice that are very similar to occasions. Fortunately, many of us did not have the Counsel John S. the rules that govern the procedures in the courts experience of one pilot that turned his pride and Yodice began of law. According to the board, it strictly applies its pleasure into anger and resentment at the twin buwriting a column for procedural rules, and “lack of counsel does not exreaucracies that combined to deprive him of his AOPA Pilot in 1970. cuse failure to follow rules.” hard-earned commercial pilot certiﬁcate. The FAA motion is applicable under the rules if Our pilot was an innocent bystander of a dispute between the FAA and one of its designated pilot examin- there are no material issues of fact to be resolved at a hearing. In ers (DPE). The FAA became suspicious that a particular DPE making the motion, the FAA was relying on another board rule had conducted some incomplete practical examinations. The that required the pilot to ﬁle an answer to the FAA’s allegations. FAA ultimately terminated the DPE’s designation. But, be- The pilot, representing himself, objected to the FAA motions, cause the FAA felt that there could be some uncertainty relat- saying that he did answer the FAA’s allegations, and he objected ing to the examinations conducted by this DPE before his ter- to the FAA’s assertion that there were no material facts to be premination, including the one administered to our pilot, the sented at a hearing. The pilot asked to “simply have a hearing FAA advised our pilot that a reexamination of his qualiﬁca- and get to the bottom of all of this.” A judge of the NTSB, to tions was necessary. This came as an unpleasant surprise. He whom the case was assigned, over the pilot’s objection, granted felt that he had already stood a complete examination by an the FAA motion. According to the judge, the pilot’s objection, FAA examiner in good standing at the time, and established although denying the FAA allegations, technically did “not rise his qualifications to hold a commercial pilot certificate. He to the level of” an answer. So, the result was no hearing, and a conceded that the FAA has a right to request a checkride perfunctory approval of the FAA order of suspension. An appeal of the law judge’s actions may be taken to the full under appropriate circumstances, however he felt that the ﬁve-member board. The pilot appealed. The board, in a long FAA’s justiﬁcation in this case was insufﬁcient. The FAA would hear none of it. Since the pilot did not pre- dissertation of how this unrepresented pilot failed to follow the sent himself for reexamination, the FAA exercised its extraordi- technical rules, especially the requirement for a more formal nary emergency power by issuing an order suspending his pilot answer, afﬁrmed the judge’s grant of the motion. In his appeal certiﬁcate immediately, and until he completed the reexamina- documents the pilot prophetically asked, “is the NTSB only the tion. By law, this power should have been exercised only if safe- rubber stamp of the FAA?” The board, commenting without the same strictness, said: ty required the immediate effectiveness of the order. (In the ordinary non-emergency case, the ﬁling of an appeal allows the “We are not unmindful that, in the case before us, the [FAA] pilot to continue to exercise the privileges of his/her certiﬁcate administrator filed the complaint on November 9, 2007, while the appeal is being considered.) The pilot was becoming which was the Friday before a federal holiday on Monday, Nomore agitated. It escaped him as to how this matter could be vember 12, 2007. Therefore, the case manager in the Ofﬁce of contrived to be an emergency since the FAA had taken about a Administrative Law Judges was not able to send the docketing year to ﬁle anything. Nevertheless, he was grounded, immedi- notice, stressing the importance of ﬁling a timely answer and ately, and before he could appeal and put the FAA to its proof. including additional instructions for filing an answer, until The pilot duly complied with the order by surrendering his cer- Tuesday, November 13, 2007. The case manager sent this letter tificate to the FAA. He then appealed the FAA action to the via overnight mail, but respondent [the pilot] would not have received it until the next day, November 14, 2007, the day his NTSB requesting a hearing on the matter, as was his right. The Federal Aviation Act guarantees to this pilot “an op- answer was due.” Mutuality? The FAA and NTSB, despite their many good people, regretportunity for a hearing.” So does the Administrative Procedure Act. The board, in the conduct of this appeal, never tably bound into the bureaucratic technicalities, continue to mentioned, much less discussed, these provisions. Rather display their true colors. AOPA PILOT • 66 • MARCH 2008

AOPA Pilot Magazine - March 2008

Table of Contents for the Digital Edition of AOPA Pilot Magazine - March 2008