PBR’s and Airmen’s Right to Silence
The author’s purpose in writing this article is to refine and expand our thoughts about the meaning of Section 2(b) of the Pilot’s Bill of Rights, Pub. L. 112-153, August 3, 2012, 126 Stat. 1159 (hereinafter the “PBR”). In promulgating Section 2(b) of the PBR, Congress expressed its intent that the Administrator of the Federal Aviation Administration would “provide timely, written notification to an individual who is the subject of an investigation relating to the approval, denial, suspension, modification, or revocation of an airman’s certificate under Chapter 447 of Title 49, United States Code.[1]
Under Section 2(b)(2) of the PBR, the Administrator is required to notify the airman of the following:
(A) of the nature of the investigation;
(B) that an oral or written response to a letter of investigation from the Administrator 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 Administrator;
(D) that any response to a letter of investigation from the Administrator to any inquiry made by a representative of the Administrator by the individual may be used as evidence against the individual;
(E) that the releasement portions of the Administrator’s investigative report will be available to the individual; and
(F) that the individual is entitled to access or otherwise obtain air traffic data described in Paragraph (4)
In light of the congressionally mandated protections afforded an airman under Section 2(b) of the PBR, the following questions are apparent:
1. Does the PBR, which relieves the airman of the obligations of responding to an “investigative” inquiry, also preclude the airman from being required to respond to pretrial discovery after a complaint is filed? When does an “investigation” commence? Does it preclude ATC personnel from making a request to call the tower? How does the PBR impact FAA ramp checks?
2. If the Administrator serves pretrial discovery after a complaint is filed, can the airman refuse to answer the discovery based upon the provisions of Section 2(b) of the PBR?
3. Do the provisions contained in Section 2(b) of the PBR trump the Federal Rules of Evidence, the Federal Rules of Civil Procedure, and the Code of Federal Regulations to the extent there are inconsistencies in those rules in contrast to the protections of Section 2B of the PBR?
The purpose of this article is to investigate these and other questions which relate to the legal protections afforded airmen by Section 2(b) of the PBR.
[1] Section 2(b)(1), PBR.
WHAT IS THE EFFECT OF THE PILOT’S BILL OF RIGHTS ON AN AIRMAN’S RIGHT TO REMAIN SILENT
Section 2(b) of the PBR When Viewed in the Context of the Legal Landscape
In Miranda v. Arizona, 384 U.S. 436 (1966), the United States Supreme Court held that whenever a person is taken into police custody, before being questioned, the person must be warned of his Fifth Amendment right to remain silent and not to make incriminating statements. The Miranda Warnings consist of the following:
1. You have the right to remain silent.
2. Anything you say can and will be used against you in a court of law.
3. You have the right to an attorney.
4. If you cannot afford an attorney, one will be appointed for you.
The first Miranda Warning, the right to remain silent, can be equated to the guarantees of the PBR “that an oral or written response to a letter of investigation from the Administrator is not required;”[2] and “that no action or adverse inference can be taken against the individual for declining to respond to a letter of investigation from the Administrator.”[3] Just like the citizen who has been arrested by law enforcement in furtherance of a criminal investigation, an airman has a right to remain silent, a right not to respond to a letter of investigation, and no adverse inference can be taken from the airman’s decision to exercise his right to remain silent.[4]
Similarly, the second Miranda Warning that “anything you say can and will be used against you in a court of law,” is analogous to subparagraph (D) of Section 2(b)(2) of the PBR which provides:
That any response to a letter of investigation from the Administrator or to an inquiry made by a representative of the Administrator by the individual may be used as evidence against the individual.
While Miranda makes it clear that in a criminal context a suspect under arrest and undergoing interrogation has the right to remain silent and must be warned that any statement he gives may be used against him, there is also precedent for the proposition that evidence unlawfully obtained may be suppressed. In Wong Sun v. United States, 371 U.S. 471 (1963), the United States Supreme Court concluded that in certain circumstances evidence obtained as a consequence of an illegal search should be suppressed. In Wong Sun, narcotics agents unlawfully entered Toy’s Laundry at which point Toy indicated that Johnny was selling narcotics. The drug agents went to Johnny and found the narcotics. Johnny made a deal to turn on his supplier, Wong Sun. The agents arrested Wong Sun. Wong Sun later voluntarily returned to the police station to make a statement, and during the process, he confessed. The United States Supreme Court held that Toy’s statements and the discovered drugs at Johnny’s should both be excluded as “fruit of the poisonous tree” because the search was done without a warrant. However, Wong Sun’s confession was ruled admissible because he had no standing to move to suppress the evidence found in Johnny’s apartment.
What if the FAA came into possession of information leading Agency officials to believe that a violation of the regulations had taken place, but they moved surreptitiously to obtain a statement from the suspect without giving him the requisite warning under the PBR? What if employees of the FAA used a form frequently employed when qualifying for a new certificate to ostensibly immunize them from violating the provisions of Section 2(b) of the PBR? These questions bring us to the next topic of our analysis.
[2] Section 2(b)(2)(B), PBR.
[3] Section 2(b)(2)(C), PBR.
[4] Section 2(b)(2)(B), (C), PBR.
The Respondent’s Motion to Suppress Statements in Administrator v. Watts
Administrator v. Watts, NTSB Docket No. SE-30128 was an emergency proceeding that was brought before Chief ALJ Montaño of the National Transportation Safety Board. On November 3, 2015, Watts served a motion to suppress statements alleging:
1. That on May 8, 2015, the FAA became aware that maintenance records of American Airlines that “may have been forged;”[5]
2. The FAA, in direct violation of the requirements of Section 2(b) of the PBR failed to timely issue a letter of investigation to the airman;[6]
3. On May 12, 2015, FAA inspectors conducted an investigatory interview and had the airman sign a “form used by the FAA and executed by respondent…designed by the FAA to be utilized only when an airman submits an Application for An Certification, Rating, or Inspector Authorization. See Exhibit A, FAA Order 8900.1 CHG 359, Vol. 7, CH.8, 7-256 and Figure 7-23 (emphasis added). Per FAA order, this form is “not for the purpose of determining whether a violation exists.” See Exhibit A, FAA Order 8900.1, CHG 359, Vol. 7, CH.8, 7-256 and Figure 7-23;[7]
4. According to the airman’s motion to suppress, “the FAA was conducting an interview with respondent to ‘determine whether a violation exists.’ See Exhibit B. Thus the full statutory notification requirements of the PBR applied. Respondent had not submitted an ‘application’ for an airman’s certificate, rating, or inspector authorization. Therefore, the use of this form was inappropriate, insufficient and a violation of the PBR. Using the form was forbidden by the FAA’s own internal order – yet the FAA used it anyway despite that no ‘application’ was pending;”[8]
5. The airman further asserted in his motion to suppress, “Moreover, the form executed by respondent is otherwise invalid under the PBR. First, the form failed to advise respondent in writing of the true… ‘nature of the investigation.’ The document falsely states the ‘nature of the Administrator’s investigation, which is precipitated by your submission of this application, is to determine whether you meet the qualifications for the airman’s certificate, rating, or inspection authorization you are applying for…’ See Exhibit C (emphasis added). Again, there was none: respondent had not submitted any airman’s ‘application.’ Rather, Respondent was being actively investigated by the FAA on that date to determine whether he had intentionally falsified a maintenance record. Thus, the basis for the FAA’s demand was false and deceiving;”[9]
6. The airman further asserted in his motion to suppress that he “…was not notified in the form that he was not required to respond orally or in writing to the investigation. Thus, respondent had no obligation to respond to the FAA pursuant to the protections of the PBR, but he was not properly notified of this protection;”[10]
7. The airman further asserted in his motion to suppress that he “…was not notified in the form that no action or adverse inference could be taken against him for declining to respond. The statutory effect of the PBR is, or should, trump the old rules where a negative inference could be taken from a non-response;”[11]
8. In light of the foregoing recitations appearing in the airman’s motion to suppress, he maintained: “The only logical and just remedy for said violation is to suppress evidence of statements and admissions allegedly made by the Defendant (sic) on May 12, 2015, to FAA Inspectors Dahlen and Light at the Honolulu CMO, as well as evidence that is the fruit of those statements and admissions. What the FAA elicited was simple ‘fruit from the poisonous tree’ failing to suppress these statements and admissions would frustrate the very purpose of the PBR, and would be clear error as a matter of law.”[12]
The case of Administrator v. Watts has been resolved, but the allegations made in the airman’s motion to suppress, if true, are disturbing. The allegations, if believed, present the specter of Agency employees intentionally subverting the protections of Section 2(b) of the PBR by employing a form for a nefarious purpose, employing a form used when qualifying for a new certificate as an ostensible basis for negating and waiving the protections of the Section 2(b) of the PBR.
And so we return to our original questions:
(1) Can an airman refuse to give testimony or respond to written discovery, after a complaint has been filed, relying upon Section 2(b) of the PBR?
(2) Can an airman refuse to give evidence at trial citing Section 2(b) of the PBR?
(3) How long do the protections relating to an airman being the subject of an investigation last?
(4) Do the protections of Section 2(b) of the PBR authorize an airman to refuse to give testimony against his interest whether in the context of an investigator interview, in the context of responding to written discovery, or in testifying at trial on the premise that the airman is “the subject of an investigatory” under Section 2(b)(1) of the PBR?
[5] Respondent’s Motion to Suppress Statements, Administrator v. Watts, NTSB Docket No. SE-30128 (hereinafter “the Watts motion to suppress”), ¶8.
[6] Id., ¶9
[7] Id., ¶12
[8] Id., ¶13.
[9] Id., ¶14.
[10] Id., ¶15.
[11] Id., ¶16.
[12] Id., ¶17.
Conclusion
The allegations made in Respondent’s Motion to Suppress Statements in Administrator v. Watts, supra, raise serious questions about how the National Transportation Safety Board will interpret and apply the protections found in Section 2(b) of the PBR. The airman’s right to remain silent, his right that there shall be no adverse inference from his exercising his right to remain silent, and the necessity that he be warned that any response he gives to a letter of investigation may be used as evidence against him represent significant due process protections that should trigger a Fifth Amendment objection based on substantive and procedural due process of law in the event the NTSB allows the FAA to bypass these protections. Unfortunately, the NTSB has taken the position that it does not adjudicate “constitutional” issues. The unsettled nature of the law suggests that counsel representing an airman in aviation enforcement proceedings may be warranted in refusing to respond to discovery and may be warranted in instructing his client not to testify at trial. Of equal concern is the specter of Agency inspectors undermining the guarantees of Section 2(b) of the PBR by employing a qualification form when the airman has not made an application for a new certificate or rating.
The facts alleged by the airman in Watts are outrageous. As the PBR is interpreted by the NTSB and, thereafter, by the various circuit courts of appeals, we may begin to have an appreciation about the interplay between the airman’s right to remain silent under Section 2(b) of the PBR and the impact of that right on the Federal Rules of Evidence, the Federal Rules of Civil Procedure, and the various rules promulgated and enforced by the National Transportation Safety Board. The author of Flightwatch expresses his appreciation to Jeffrey F. Clement, Esq. and John Scott Hoff, Esq. who brought the facts raised in Watts to his attention.
