United States Court of Appeals for the District of Columbia

In Section 2010 of the Safety Act, the FAA was directed by Congress to promulgate new flight and duty time rules "based on the best available scientific information ...to address problems relating to pilot fatigue." Id.§212(a)(l ). The FAA ignored the Congressional mandate, promulgated new rules in the form of Part117 of the Federal Aviation Regulations, but left cargo pilots subject to the old provisions of Part 121 based upon a "cost versus benefit analysis."

Brendan Schulman, Esq., with the firm of Kramer, Levin, Naftalis and Frankel, LLP in New York, has embarked on a headlong assault on the FAA’s policy restricting the operation of model aircraft and/or unmanned aircraft systems pursuant to a 2007 FAA Policy Statement published in the Federal Register. Schulman maintains the Policy Statement did not con-form with Section 553 of the Administrative Procedure Act and was not part of the formal rule making process.

Historically, if a pilot is accused of violating the Federal Aviation regulations, he receives a trial or hearing before an Administrative Law Judge. The judge considers the evidence and then renders a decision based upon the evidence. There is, however, a disturbing new trend at the National Transportation Safety Board. This trend is to have pilots lose their cases without ever having a hearing. This article will discuss that phenomenon.