“HOOVER” REVISITED —
APPELLATE REVIEW OF FAA EMERGENCY CERTIFICATE ACTIONS
Hilary B. Miller*
TABLE OF CONTENTS
I. THE SAGA OF BOB HOOVER — OR, HOW THE RIGHT STUFF WENT WRONG
ii. Alphabet Soup and the Hue and Cry
iii. AIR-21 to the Rescue
iv. Board Procedures
v. Results To Date
In the first 17 months since enactment of the “Hoover” provisions of AIR-21, 49 U.S.C. § 44709(e), only one of the 69 applicants for appellate review of a Federal Aviation Administration (“FAA”) emergency order has successfully obtained a stay (and that one case was probably inconsistently decided). Obtaining a stay of an emergency revocation order is practically impossible because the standard of review requires deference to the FAA’s factual determinations underlying the sole ground for a stay: the existence of an “emergency.” The National Transportation Safety Board (“NTSB” or the “Board”) must amend its interim regulations to comport with the manifest intention of Congress that meaningful review be available. Failing NTSB action, court mandates or additional legislative activity may be required in order to carry out the manifest intent of Congress in enacting AIR-21. No reported court case has considered the NTSB’s determination of an emergency review under AIR-21. Significant questions exist regarding the interpretation of AIR-21 by the Board and, in particular, whether the narrowness of the Board’s review and its deference to the FAA comport with Congressional intent to provide meaningful appellate review.
I. The Saga of Bob Hoover — Or, How The Right Stuff Went Wrong
Robert Anderson Hoover is perhaps
Despite the recommendation from Dr. O’Connor and the other
physicians, in April 1993, the FAA informed
At the FAA’s instance,
Despite three independent tests showing that
The FAA then appealed to the full Board, and the Board reversed the ALJ’s determination and reinstated the FAA’s revocation. The Court of Appeals affirmed the revocation without opinion, and the U.S. Supreme Court denied certiorari.
II. Alphabet Soup and the Hue and Cry
Long before the Board became involved with the revocation of
Hoover’s certificate — due largely to Hoover’s enormous popularity and fame
among pilots — aviation interest groups including the “alphabet soup”
organizations (Air Line Pilots Association, Allied Pilots Association,
Experimental Aircraft Association, National Air Transportation Association,
NTSB Bar Association, Air Transport Association, AOPA Legislative Action,
National Air Carrier Association, National Business Aircraft Association and
Regional Airline Association) began lobbying for legislative limitations on the
FAA’s emergency revocation power. As the
legislative package emerged, they all supported this legislation to “provide
due process to certificate holders where now none exists, without compromising
aviation safety.” Sen. James M. Inhofe (R-Okla.), the principal
sponsor of the legislation and himself an 8,000-hour commercial pilot, had seen
first hand the FAA’s use of its emergency revocation power in an increasing percentage
of cases where no true “emergency” could be shown to exist. Indeed, in many such cases, the emergency
revocations took place months or years after the FAA learned of the purportedly
emergent circumstances and permitted the pilot to continue to exercise the
privileges of his certificate. Under the law as then in effect, there was no
authority for NTSB review of the “emergency” underlying an emergency
revocation, and an aggrieved airman was required to pursue a plenary appeal on
the merits. While practitioners and the “alphabet
soup” groups had long known of such abuses, the
III. AIR-21 to the Rescue
The “Hoover Bill” became law on
The procedure is as follows: within 48 hours after receiving an emergency revocation order, the airman must request that the Board review the “emergency” nature of the revocation. Then, within 48 hours, the Board must entertain arguments from both sides and thereafter must render a decision within five days of the original filing. During the “emergency” review, the revocation remains in effect. If the Board determines that there is no “emergency,” then the revocation order is temporarily stayed, and the airman can continue flying. The revocation process against the airman continues, however, on an expedited (60-day) appeal process. The stay does not conclude the proceeding but spares the airman the effect of revocation without a hearing, and the airman must still defend the revocation on a non-emergency basis while continuing to exercise the privileges of his certificate.
If the Board decides that there is, indeed, an “emergency,” then the revocation remains in effect and the pilot cannot fly while the case is decided on the merits.
The Board’s authority under the statute is limited to determining whether an “emergency” exists. Under the statute and the Board’s own regulation, the Board does not have authority to determine at this stage whether the complaint is factually founded, or even whether the facts alleged in the complaint would constitute grounds for revocation.
IV. Board Procedures
V. Results To Date
A significant number of these cases involve the definition of “emergency.” Surprisingly, these appeals have, with the single exception noted below, been uniformly rejected without the finding of urgent or emergent circumstances. Commencing in June 2000, the Board was confronted with a number of arguments that, despite the seriousness of the allegations against an airman, there was no urgency in revoking a certificate, generally because of the significant lapse of time between the FAA’s investigation efforts and the date of revocation.
The facts of Administrator v. Esser are
illustrative. Esser held an ATP
certificate and flew for Scenic Air, a Part 135 carrier. Following a ramp check of Scenic Air, Esser
was charged with having piloted 13 flights for hire during a single month,
January 1999, following expiration of his second-class medical certificate on
Approximately a year and half later, based on these alleged violations, the FAA revoked Esser’s ATP certificate on an emergency basis. Notably, at the time of the revocation, Esser’s medical certificate was in force, and no violations occurring later than 17 months prior to the revocation were alleged.
In his petition, Esser asserted that (1) the allegations alleged, if true, would not warrant a certificate revocation; (2) that the recordkeeping obligations alleged to have been violated were imposed on Scenic Air, not on Esser personally; and (3) “how much of an emergency can exist” when such a lapse of time has occurred?
The FAA replied that the lapse of time, “although regrettable . . . does not diminish the significance of the FAA’s charges or the continuing threat to public safety that underlies the FAA’s allegations.”
Chief Judge William E. Fowler, Jr. adopted this reasoning:
Respondent’s contention that no true emergency exists, as the Administrator did not rapidly initiate a certificate action against him after commencing her investigation of this matter, has been duly noted. At first blush, such an argument would appear to be compelling, as the term “emergency” is commonly used to describe situations requiring immediate attention. The term “emergency,” however, is also used to describe situations of a serious nature, without regard to time sensitivity. The Administrator’s emergency authority, stemming from her duty to vindicate public safety, clearly contemplates this latter circumstance. To stop the Administrator from exercising her emergency authority here because she did not act against respondent in what he considers to be a sufficiently timely manner to reflect the existence of an emergency would be to ignore both that her allegations address critical public safety concerns which she is duty-bound to uphold and that, for reasons noted above, the serious compromises to air safety caused by respondent’s alleged actions could readily be compounded but for the immediate effectiveness of her order.
Similar language appears almost verbatim in several other decisions. This definition of “emergency” is clearly not what Sen. Inhofe had in mind when he sponsored the original Hoover Bill and its ultimately enacted provisions in AIR-21.
Four of the cases for which review was sought under 49 U.S.C. § 44709(e)(3) arose from a series of approximately 35 certificate actions which had been initiated by the FAA following an audit of training records of aircraft dispatcher certificate holders who had attended Embry Riddle Aeronautical University (“ERAU”) in 1998 and 1999. In these cases, the ERAU records relating to the certificate holders failed to prove that the student had completed the requisite number of hours of training, a portion of which was credit for prior training and experience.
Of these cases, the Baird
petition was particularly illustrative.
Baird graduated from ERAU and was thereafter employed, from September
1999 through at least August 2000, by Continental Airlines as an aircraft
dispatcher. She received additional
on-the-job training from Continental and was not involved in any accident or
incident, nor was she alleged to have violated any applicable regulation. When apprised of the FAA’s audit of ERAU in
March 2000, she promptly wrote to the FAA, and she provided additional,
certified details of training from ERAU, thereby demonstrating that she had in
fact received the necessary instruction.
Baird received no response from the FAA until the emergency order
suspending her certificate was issued on
On Baird’s petition for review, Judge Fowler opined:
It would seem that, upon receiving such a letter in response to its request for further information, the FAA should at least have informed respondent as to what information it deemed to be deficient and given her an opportunity to cure whatever the deficiency was before proceeding further. Instead, respondent heard absolutely nothing from the FAA during the intervening period of approximately five months prior to the issuance of the Administrator’s order. The undersigned finds this quite dismaying.
Nevertheless, Judge Fowler upheld the emergency order, finding that he must accept as true the FAA’s factual assertion that Baird could not be proven to possess the full qualifications for the certificate she held, which constituted a serious safety issue.
Again, in light of the manifest purpose of the Hoover Bill, the denial of Baird’s petition seems quite anomalous.
A few days following the
In his appeal, Bishop contested substantially all of the FAA’s factual allegations, including the over-gross claim. He contended that he had implemented remedial measures, including a computerized weight-and-balance system, to avoid any unintentional over-gross takeoffs. He also contended that the FAA had concluded its investigation on June 15 but inexplicably waited 83 days to initiate certificate action against him.
Chief Judge Fowler deferred—as he acknowledged he must—to the FAA’s factual determinations, including the over-gross claim. However, for the first time, he accepted a petitioner’s argument that the delay militated against an “emergency” finding. Specifically, he found:
Such a delay of 83 days between the completion of the Administrator’s investigation and the initiation of a certificate action against respondent there—for which the Administrator provides no adequate explanation—during which time respondent was (presumably with the knowledge of FAA officials) still performing a considerable number of skydiving flights, belies the existence of an emergency. The Administrator has not shown that there is any ongoing threat to public safety which must be ameliorated by grounding respondent during the pendency of his appeal, and it does not, from the allegations of her order, appear that she cannot rely upon him to be truthful with respect to any safety sensitive matters to which he may be required to attest while his appeal is pending if the effectiveness of her order is stayed.
These were precisely the arguments that Chief Judge Fowler had rejected on prior occasions. While the vast majority of emergency revocations appear to arise from dishonesty, falsification of records, refusal to submit to reexamination and other willful misconduct, Chief Judge Fowler had not previously hesitated to deny appeals where the underlying misconduct alleged was mere carelessness, albeit on multiple occasions. Moreover, the cited ERAU cases, particularly Baird, involved no carelessness, no intentional misconduct, no imminent threat to life or property, no likelihood of recurrence and a substantial delay between completion of the FAA’s investigation and the initiation of certificate action. In deciding Bishop, Chief Judge Fowler departed from his previous standard of ignoring the non-emergent nature of the circumstances if the allegations—which he was required to accept as true—were sufficiently serious, and, for the first time, he accepted an airman’s argument that post-incident remedial measures rendered recurrence unlikely. As noted above, it is particularly noteworthy that he accepted the airman’s defense that a lapse of 83 days constituted laches on the FAA’s part, while in other cases delays of nine months or more had been found no bar to an “emergency” finding. Of course, every case is different, and Bishop’s circumstances were indeed distinguishable from most of the other cases involving substantial alleged willful misconduct. Bishop will no doubt be carefully noted by the bar and liberally cited.
As practice under the Hoover Bill among the organized aviation bar became widespread and the difficulties of prevailing under the Board’s standard of review became obvious, a disproportionate number of cases have been pro se filings in recent months. These filings are frequently dismissed because the petitions are untimely (which is jurisdictional) or because they fail to enumerate specific grounds for relief. The FAA itself is in part responsible for the proliferation of these defective filings (and concomitant increase in Chief Judge Fowler’s workload) because the abbreviated form of notice of appeal rights which the FAA employs fails to apprise the certificate holder in no uncertain terms that he must do more than disagree with the FAA’s determination in order to perfect his appeal.
Against this backdrop, serious questions remain about the efficacy of the Hoover Bill in accomplishing its intended purpose. As the foregoing analysis indicates, certificate holders are batting one-for-69 in these proceedings. It is clear that meaningful review of emergency revocations is not being afforded airmen under the new procedure. Given the language of the statute and Board regulation, which limit review to whether an “emergency” exists and all but preclude consideration of urgency, exigency or whether factual grounds exist for the revocation itself, further thought should be given to the original objectives of the Hoover Bill and whether the statute requires additional amendment to facilitate the manifest purposes of Congress.
In particular, consideration should be given to the following issues requiring revision or at least clarification:
· Whether an “emergency” can exist when the FAA, with knowledge of the relevant facts, has failed to act expeditiously to revoke a certificate;
· Whether violations occurring in the past, without more, and without specific evidence to support the possibility of future recurrence or future threat to air safety, can constitute an “emergency”;
· Whether a certificate holder should be entitled to offer evidence of subsequent favorable conduct, training or remedial measures to mitigate the finding of an “emergency” with respect to limited past misconduct; and
· Whether factual evidence of any kind, which tends to rebut the FAA’s allegations, should be admissible and relevant to finding of an “emergency.”
Intended originally to “provide a workable avenue of appeal through NTSB, discourage FAA’s use of emergency revocation powers except in cases where absolutely justified, allow NTSB to use its expertise to judge the need for emergency actions, and protect the rights of pilots,” the Hoover Bill has failed of its essential purpose and must be rethought.
INSERT APPENDICES HERE
* Member of
(e) Effectiveness of Orders Pending Appeal.
(1) In General. When a person files an appeal with the Board under subsection (d), the order of the Administrator is stayed.
(2) Exception. Notwithstanding paragraph (1), the order of the Administrator is effective
immediately if the Administrator advises the Board that an emergency exists and safety
in air commerce or air transportation requires the order to be effective immediately.
(3) Review of Emergency Order. A person affected by the immediate effectiveness of the
Ad ministrator’s order under paragraph (2) may petition for a review by the Board, under procedures promulgated by the Board, of the Administrator’s determination that an emergency exists. Any such review shall be requested not later than 48 hours after the order is received by the person. If the Board finds that an emergency does not exist that requires the immediate application of the order in the interest of safety in air commerce or air transportation, the order shall be stayed, notwithstanding paragraph (2). The Board shall dispose of a review request under this paragraph not later than 5 days after the date on which the request is filed.
(4) Final Disposition. The Board shall make a final disposition of an appeal under subsection (d) not later than 60 days after the date on which the appeal is filed.
Bob Hoover’s experience is just one of many. I have visited with other pilots who have had their licenses revoked on an emergency basis. Pilots such as Ted Stewart, who has been an American Airlines pilot for more than 12 years and is presently a Boeing 767 Captain. Until January 1995, Ted had no complaints registered against him or his flying. In January 1995 the FAA suspended his examining authority as part of a larger FAA effort to respond to a problem of falsified ratings. The full National Transportation Safety Board (NTSB) exonerated Ted in July 1995. In June 1996, he received a second revocation. One of the charges in this second revocation involved falsification of records for a Flight Instructor Certificate with Multiengined rating and his Air Transport Pilot (ATP) certificate dating back to 1979. Remember, an emergency revocation means you lose your certificate immediately, so in most cases this means the certificate holder loses his source of income. Fortunately in Ted’s case, his employer put him on a desk job while the issue was adjudicated.
Like most, I have questioned how an alleged 17 1/2 year old violation in the Stewart case could constitute an emergency; especially, since Ted had not been cited for any cause in the intervening years. Nonetheless, the FAA vigorously pursued this action.
Adm’r v. Berko, No. SE-16032 (
Chief Judge William E. Fowler, Jr. has heard all cases although the Board’s regulation authorizes him to assign these cases to other judges. On October 20, 2000, the author had the privilege of discussing with Chief Judge Fowler what circumstances, if any, could ever warrant granting the stay authorized by Section 44709(e)(3). After thinking for a few moments, he said, “It would be hard to think of any, given the broad discretion granted to the Administrator and our inability to review her factual determinations.”
Judge Fowler apparently
discredited this finding in light of an inconsistent affidavit of the
supervisory aviation inspector who oversaw the investigation, but acknowledged
his duty to defer resolution of the factual dispute until the Board hearing on
Cf. Adm’r v.
Kortidis, No. SE-15960 (
“The petition shall enumerate the specific grounds on which the certificate holder challenges the Administrator’s determination that an emergency exists. In the event that the petition fails to set forth the specific grounds for the certificate holder’s challenge to the Administrator’s emergency determination, the petition shall be dismissed.” 49 C.F.R. § 821.54(b).