Behind the scenes of the FAA legal system
“The law isn’t justice. It’s a very imperfect mechanism,” Sewell Endicott says in Raymond Chandler’s The Long Goodbye. “If you press exactly the right buttons and are also lucky, justice may show up in the answer. A mechanism is all the law was ever intended to be.” This statement certainly applies to FAA enforcement cases, especially for Part 145 repair shops.
While it is true that an FAA inspector does not have the power to issue a civil penalty, it is also true that he may recommend it to his regional headquarters. It is the FAA’s region counsel that determines if an actual violation has occurred and whether it should be pursued for prosecution. To some extent, that might work in your favor.
According to Marshall Filler, partner in the law firm Filler & Weller, of Alexandria, Va., the average FAA lawyer handles between 200 and 300 enforcement cases at a time. Those at the Washington headquarters rarely get involved except in more extreme cases, such as certificate actions against large companies or cases that might involve significant civil penalties.
Enforcement ‘Not Simple’
Filler explained that an enforcement action is not simple for the FAA. It requires that all the elements of an alleged violation be present and verifiable. For example, the intentional falsification of repair station maintenance records would require the FAA to show there was a false statement about a material fact and personnel had actual knowledge that it was intentionally falsified. “The FAA has a burden of proof by a preponderance of the evidence for each element,” Filler said. It is also important to understand that the way individual regulations fit into the overall system can influence proceedings.
The rulemaking process begins with a notice of proposed rulemaking (NPRM), which contains a preamble, an economic analysis and the proposed rule itself. The document is published and the public is allowed to comment on it during a prescribed period. The FAA reviews the comments and then issues a final rule, a supplemental rule or withdraws it altogether. If a final rule is issued, its preamble must address the comments in a substantive way, explaining the agency’s rationale.
The final rule is then sent to the Transportation Secretary for approval. If it is deemed to be a significant rule, then the Office of Management and Budget will review it as well. At that point the rule is published in the Federal Register for public viewing. What that means to an individual on the wrong end of an enforcement action is important.
Should you choose to appeal an enforcement action, the reviewing court will not substitute its judgment for that of the agency. (As noted above, the rule’s preamble maps out the agency’s thinking behind the regulation.) The court defers to the FAA, and the judge will not impose his judgment over the FAA’s since the agency is considered the expert on aviation matters. The only option to fight this would be to get expert witnesses to refute the FAA’s judgment–definitely an uphill battle.
It is possible to run afoul of the FAA over both civil and criminal matters. Criminal cases could include such issues as intentional falsification of documents, hazardous material violations, suspicious circumstances surrounding fatal accidents and antitrust.
“The law exists to protect your rights, but there are many considerations in deciding to take advantage of those rights,” Bradford Babbit told AIN. Babbit, a partner in Robinson & Cole LLP of Hartford, Conn., practices business litigation. The firm has represented Part 145 repair stations in matters brought before the FAA. He said lawsuits against the FAA must be based on FAA action, FAA inaction or damages directly caused by the agency.
There are two types of FAA action that may prompt a lawsuit: FAA rulemaking and FAA orders. An order addresses a specific set of factual circumstances as they apply to you, whereas a rule is more generally applied. According to Babbit, an order can be many different things.
“An order doesn’t have to be formal. It doesn’t have to say ‘order’ at the top,” he explained. “It could be a letter that says, ‘We’ve decided the following…’ The point is, if it affects you and only you, it’s an order and it can be challenged in court.” Babbit added that to be an order it must be final. It must also impose an obligation on you, or deny you a right or in some other way fix or solidify a legal relationship.
An order could theoretically be oral, such as an inspector talking to someone in a repair facility or even a telephone call if the inspector becomes aware of a problem the FAA wants halted immediately. Babbit said an oral order should be followed up with a written one. He also suggested verbally confirming an order with the inspector’s supervisor, as well as sending a letter setting out your understanding of what the order is and asking for verification.
According to Babbit, an order can be appealed to the U.S. Circuit Court of Appeals. The court can affirm, amend, modify, set aside or order further proceedings by the FAA. “The review by the court is very narrow; it’s very difficult to overturn an order once issued,” he explained. “If the FAA finds certain facts supported by substantial evidence and includes it in the order itself, it isn’t likely the court is going to dispute the agency’s facts. You must show the court that the facts are not supported by substantial evidence, and that’s tough to do.”
The court will focus on whether the FAA abused its discretion. Did it act in an arbitrary and capricious manner, in a way not in accordance with the law or in a manner that Congress did not intend? The court will set aside a rule only in specific situations: when it is an arbitrary or capricious abuse of discretion; contrary to the law; a constitutional violation; when the FAA exceeded statutory rights or ignored lawful procedures, such as not issuing a notice of comment; or when the allegation is not supported by substantial evidence.
Sue the FAA?
It is common belief that you can’t sue the FAA, but that’s not entirely true. The Federal Tort Claims Act waives the historic concept of “sovereign immunity” inherited from English law. It is possible to sue a federal employee who commits a tortuous act (negligence) within the scope of employment. An example would be a pilot complying with an ATC IFR clearance that causes him to fly into a mountain.
What you cannot sue for is an employee’s actions taken within the “outer perimeter of the line of duty,” Babbit said. “You can’t sue someone for doing his or her job. For instance, you can’t sue for discretionary functions such as the FAA’s right to determine who is or isn’t qualified for a rating. You also cannot sue if you lose money as the result of an FAA decision.”
An example of the latter would be a repair station that loses business when it is closed pending an investigation that subsequently shows there was nothing wrong with the repair station’s operation. In this case, the shop can sue to have the decision to close it down changed, but it can’t recover real or potential financial losses.
According to Babbit, “If you can somehow imagine that the actions relate to the scope of employment, then you can’t sue the individual but you may be able to sue the government.”
You can sue the FAA if you believe it has been capricious or if it has unlawfully withheld or unreasonably delayed something you want it to do. In that situation the court will ask if there is a statutory timetable specifying how long the FAA can legally take to make a decision. The court will also ask if the decision is about safety or merely economics? Is the FAA acting to protect safety with a resulting economic effect on your business? Safety will always outweigh any economic concerns.
If the FAA is taking its time making a decision because of safety issues, then the court probably won’t take action. If the agency is just dragging its feet the court may compel it to make a decision. In your favor, you don’t have to show the FAA has withheld its decision in bad faith, only that it should have made a decision in some reasonable length of time.
“In reality you can sue the FAA for a number of reasons, but you have to think of it in the context of your business,” Babbit stressed. “Suing anyone, let alone the government, is a costly and time-consuming venture. You have to decide if it’s going to be a worthwhile business decision in the long run.”