An Airman’s Manifesto and Petition That Airmen Certification and Enforcement Cases be Litigated in Federal District Court
As certificated airmen, we hold these facts and conclusions that follow to be self-evident:
- An airman’s certificate is a property or liberty interest that cannot be suspended or revoked without affording the airman due process of law including notice and an opportunity for a hearing. See, e.g., White v. Franklin, 637 F.Supp. 601, 610-611 (N.D. Miss. 1986) (“In the present case, plaintiff’s license qualifies as a protectable property interest. ***In the present case, the defendants’ actions totally foreclosed the plaintiff’s opportunity to pursue his career as a flight examiner…As such, the plaintiff possessed a liberty interest requiring a Fifth Amendment due process hearing prior to deprivation.”), Tamura v. Federal Aviation Administration, 675 F.Supp. 1221, 1228 (D.Haw. 1987) (Hawaii state law gave a physician a property interest in re-designation as an aviation medical examiner); 5 U.S.C. §558(c) (“the revocation…of a license is lawful only if, before the institution of agency proceedings, therefor, the licensee has been given – (1) notice by the agency in writing of facts or conduct which may warrant action; and (2) opportunity to demonstrate or achieve compliance with all lawful requirements.”).
- Under the present system, proceedings to suspend, revoke, or deny an airman’s certificate are not conducted in Federal District Court. Rather, by law jurisdiction is vested in the National Transportation Safety Board (“NTSB” or “Board”). 49 U.S.C. §44709(d)(1) (“A person adversely affected by an order of the Administration under this section may appeal the order to the National Transportation Safety Board. After notice and an opportunity for a hearing, the Board may amend, modify, or reverse the order when the Board finds – (A)…that safety in air commerce or air transportation and the public interest do not require the affirmation of the order.”).
- Even the adjudicatory mechanisms afforded by the Administrative Procedure Act (“APA”) entitle the airman to have a hearing “conducted in an impartial manner.” 5 U.S.C. §556(b)(3). (“The functions of presiding employees and of employees participating in decisions in accordance with Section 557 of this title shall be conducted in any impartial manner…”).
- The mandate that the administrative hearing presently afforded the airman be conducted in “an impartial manner” is not being met by the existing NTSB adjudicatory mechanisms (both with respect to NTSB hearings and reviews to the Board) for the reason that the Board is not focused exclusively on the guilt or innocence or qualification of a particular airman. Rather, the Board is focused on whether “safety in air commerce or air transportation and the public interest” require affirmation of the order. 49 U.S.C. §44709(d)(1)(A). Accordingly, factors extraneous to the airman’s guilt or innocence are part of the Board’s calculus in adjudicating airmen’s cases, i.e., air safety and public interest. The Board is singularly focused on air safety and the public interest to such an extent it views itself as an ally of the FAA in the pursuit and enforcement of air safety. The Board’s bias renders meaningless Rule 32 of the Board’s Rules of Practice that the burden of proof is on the FAA. See 49 C.F.R. §821.32. Because of the Board’s overriding and paramount belief that an airman could, potentially be a threat to air safety, the Board’s air safety and public interest mandate effectively places the burden of proof on the airman to prove he is not a potential threat to air safety or the public interest.
- The NTSB, in light of its mandate to serve the public interest and air safety, like other administrative agencies is not concerned with the individual rights of airmen. See, e.g., Ruth v. Conway, 133 F.2d 819 (6th Cir. 1943) (the duties of Public Utilities Commission of Ohio begin and end with conservation of public interest and are not concerned with individual rights. Cf. Berg v. Cincinnati Newport & Covington Ry. Co., 56 F.Supp. 842 (1944) (the SEC and ICC are agencies of the government set up primarily to protect the public rather than determine issues between stockholders).
- The Board’s indifference to the rights of airmen and its collective interest with the FAA in maintaining air safety in the public interest explains why the Board falsely stated it lacked jurisdiction to sanction the FAA for violating its own policies and procedures based upon “prosecutorial discretion.” Administrator v. Murphy and Vernick, NTSB Order No. EA-5355 (N.T.S.B.), 2008 WL 205095 at 4 (“The Board, in Randall and Brasher did not address the Administrator’s prosecutorial discretion to pursue enforcement action…The Board does not have jurisdiction to review the Administrator’s discretion in choosing to bring an enforcement action against a respondent.”). The Board reached the same erroneous conclusion in Administrator v. Moshea, NTSB Order No. EA-5328 (N.T.S.B.), 2007 WL 3088248 at 2 (“The Board has previously held that it does not have the authority to review the Administrator’s determination to pursue a matter through legal enforcement action.”) The United States Court of Appeals for the District of Columbia reversed the Board in Moshea v. National Transportation Safety Board, 570 F.3d 349, 352 (D.C. Cir. 2009) (“In this case, the Board concluded that FAA Circular 00-58 is not ‘related to sanctions’ under §44709(d)(3), even though the circular provides that no sanctions will be imposed in cases of voluntary disclosure. Moshea, NTSB No. EA-5328, slip op. at 7, 2007 WL 3088248 (Oct. 17, 2007). On that basis alone, the Board concluded that Moshea could not present his affirmative defense based on Circular 00-58. Id…And we think a Circular that says no sanction will be imposed on a case of voluntary disclosure is quite obviously related to sanctions…we conclude that the Board’s analysis was unreasonable and contrary to the statute.”).
- Not only is the focus of the NTSB on the public interest in air safety, but institutional bias on the part of the NTSB in favor of the FAA has rendered it impossible for airmen to be afforded due process of law in litigation before the Board. Ramaprakash v. FAA, 346 F.3d 1121, 1124 (D.C. Cir. 2003) (“Our review under APA is highly deferential, but agency action is arbitrary and capricious if it departs from agency precedent without explanation.”); Dillmon v. National Transportation Safety Board, 588 F.3d 1085 (reversing NTSB order as arbitrary and capricious and departure from agency precedent without explanation); Singleton v. Babbitt, 588 F.3d 1078 (D.C. Cir. 2009) (“We conclude that the Board erred in two respects. It wrongly suggested that Singleton’s understanding of the form was irrelevant to the offense of intentional falsification and it granted summary judgment to the FAA without giving Singleton a chance to present evidence bearing on that understanding.”); Manin v. National Transportation Safety Board, 627 F.3d 1239 (D.C. Cir. 2011) (“As the FAA now acknowledges, the Board’s statement describing the ‘long held’ limitation on the applicability of the doctrine of laches was simply not accurate. Board case law establishes that the laches defense may be available even when the stale complaint rule is inapplicable.”).
- The institutional bias the NTSB exhibits in favor of the FAA endlessly and needlessly protracts the duration of litigation requiring costly appeals to the United States Circuit Courts of Appeal. See, e.g., Administrator v. Pasternak, 2008 WL 4143475 (N.T.S.B.) (Initial Decision of Judge Fowler, July 31, 2008); Administrator v. Pasternak, NTSB Order No. EA-5443 (N.T.S.B.), 2009 WL 1222151 (Board’s opinion and order affirming the order of Judge Fowler); Pasternak v. National Transportation Safety Board, 596 F.3d 836 (D.C. Cir. 2010) (reversing the Board because there was no substantial evidence to support the reasoning of the Board and vacating the Board’s Order); Administrator v. Pasternak, NTSB Order No. EA-5545 (N.T.S.B.), 2010 WL 3576933 (Opinion and Order of the Board, August 31, 2010, following remand from the United States Court of Appeals for the District of Columbia); Administrator v. Pasternak, NTSB Order No. EA-5615 (N.T.S.B.), 2012 WL 562137 at 10, Decisional Order on Remand of Judge Fowler, April 8, 2011; Administrator v. Pasternak, NTSB Order No. EA-5615 (N.T.S.B.), 2012 WL 562137 (Board’s Opinion and Order February 13, 2012, affirming Judge Fowler’s Decisional Order on remand); Pasternak v. Huerta, 513 Fed. Appx. 1 (granting Dr. Pasternak’s Petition and vacating the Order and Opinion of the Board).
- The content of the above and foregoing paragraphs demonstrate clearly that the Board is neither qualified nor equipped to adjudicate airman certification and enforcement. It simply does not understand its own rules and is incapable of rendering coherent decisions that will withstand even deferential scrutiny on appeal to the United States Courts of Appeal as confirmed by this pronouncement by Circuit Judge (now Chief Justice) Roberts:
Learned Hand once remarked that agencies tend to ‘fall into grooves, then God save you to get them out.’ Judge Hand never met the National Transportation Safety Board. In this case, we grant the petition for review because the Board has failed adequately to explain its departures from its own precedent in no fewer than three significant respects.
10. As Justice Oliver Wendell Holmes noted, “the tendency of the law must always be to narrow the field of uncertainty.” O.W. Holmes, The Common Law 127 (1881). “The Board’s unexplained departures from precedent do the opposite.” Ramaprakash, supra at 1130.
WHEREFORE, it is respectfully prayed that jurisdiction of airman certification and enforcement actions be vested in the United States Federal District Courts for two reasons. First, the Board’s charter renders it incapable of adjudicating airmen enforcement and certification cases in an impartial manner as required by 5 U.S.C. §556(b)(3). Secondly, as demonstrated by the cases set forth hereinabove, the Board is simply not capable of adjudicating airmen enforcement and certification cases. Even with a deferential scope of review, the Board has repeatedly had its decisions vacated and set aside by the United States Circuit Courts of Appeal. The Board simply cannot understand its own rules, nor can it coherently adjudicate matters entrusted to its jurisdiction. The Board is not a court and is not equipped to provide adjudicative functions in a manner satisfying the mandates of due process of law. Transferring jurisdiction of airmen certification and enforcement cases to United States Federal District Court is the only way to correct this grossly unjust and dysfunctional system. Ramaprakash, supra at 1122.
POSTSCRIPT TO FOREGOING MANIFESTO AND PETITION
In the Spring of this year, the Journal of Air Law and Commerce will publish the author’s new White Paper on the NTSB entitled “Why Jurisdiction of Airmen Enforcement and Certification Cases Should Be Transferred from The National Transportation Safety Board to Federal District Court.”