Judging by the positive press from AOPA and EAA, one would think the pilot’s bill of rights is going to do wonders for pilots fighting FAA enforcement actions, especially the unfair kinds of action that many of us have criticized. Certainly, the fact that the bill garnered bipartisan support in both the House and Senate and sailed through both houses of Congress in just over one year is probably something of a record–if not indeed a miracle–for these dysfunctional times.
I was prepared to think that finally Congress and the President had done something positive for aviation. I mean, who could object to a law that’s styled as a Bill of Rights? We could all use a few more rights, right?
Truth be told, the “pilot” part of The Pilot’s Bill of Rights stuck in my craw. It’s not as if only pilots have been subject to unfair certificate actions. Mechanics and other certificate holders have faced their fair (or unfair) share of harsh FAA actions, too. As a long-time holder of an A&P certificate, I thought it seemed a little pilot-centric to provide new rights just to pilots.
But as it turns out, the law’s short title is a misnomer; its provisions apply to pilots and other airmen, including mechanics, air traffic controllers, aircraft dispatchers and other airmen certificate holders. I could live with a little misnomer if the bill lived up to its name.
No Real Benefits to Pilots
Once I found out that the Bill of Rights was not just for pilots, I decided to read the law carefully myself and not rely on the press summaries put out by pilot alphabet groups. As I studied the law and spoke with some of my lawyer friends, including some former FAA lawyers, it seemed to me that maybe pilots and other airmen were sold a bill of goods, not given a bill of rights.
In fact, is that laughter I hear coming from the 9th floor of 800 Independence Avenue, S.W., the floor that houses the FAA’s Office of the Chief Counsel? I think when all is said and done the new law may well favor the government, at the expense of pilots and other airmen! And I mean expense. I believe this law has the potential to significantly increase the costs to airmen fighting an FAA enforcement action or FAA denial of a certificate. Why, you ask? Because the law requires that NTSB proceedings–now conducted under the more lenient administrative rules–follow the Federal Rules of Civil Procedure and the Federal Rules of Evidence (“to the extent practicable,” whatever that means).
Currently, the NTSB’s procedures, like those of most federal agencies, are looser than the federal rules that apply to trials in federal district courts. If you don’t believe me, compare the Federal Rules of Civil Procedure and the Federal Rules of Evidence to the NTSB Rules of Practice. See a difference in length? You betcha. Lengthy rules do not make for inexpensive litigation. Trust me on that.
Another critical difference between the current rules and the new Bill of Rights rules would affect the admissibility of hearsay evidence and further raise the cost of litigation for targets of FAA action. The NTSB, like other administrative agencies, allows hearsay evidence. The FAA can use hearsay in its prosecution, and the airman can also use it in his/her defense. The Federal Rules of Evidence do not allow hearsay evidence except under specific, limited exceptions. So, this will make it harder for the FAA to prosecute, right? True. It won’t be able to use hearsay evidence against an airman, and the pilot or mechanic will not be able to use hearsay in his/her own defense.
So while the requirement to use federal rules or NTSB rules may seem like a small matter, it is anything but. An airman will have to choose attorneys carefully provided by various legal services plans to ensure that those attorneys are experienced federal trial attorneys. That means a large number of experienced NTSB attorneys may no longer have the skills necessary to help airmen who have been denied certificates or whose certificates have been suspended or revoked. And federal trial attorneys charge significantly more for their expertise than administrative attorneys.
So, while the FAA will likely have to get its own attorneys up to speed on the federal rules, I suspect it will be a lot easier for the agency to hold a training class for its attorneys than it will be for the scores of attorneys who represent airmen in FAA matters today. And, of course, when you pick an attorney to represent you, you want one with actual relevant trial experience, not one who has taken a few quick classes.
And how on earth is an appeal to federal district court (a new “right” under the Pilot’s Bill of Rights) good for your average pilot or other airman who does not have the bank account of the 1 percent? Sure, Harrison Ford–a big-name supporter of this law–would have no problems paying for attorneys to litigate in federal district court. But those costs are astronomical and significantly higher than the cost of litigation before the NTSB. What good is having a right if you can’t afford to exercise it? See what I mean about the laughter coming from 800 Independence Ave?
And by the way, the new Bill of Rights applies only to certificate actions (except one section that bizarrely seems to apply to all certificate actions, except emergency suspensions. Did anyone read this bill before it became law?). What’s to stop the FAA from going after pilots and other airmen for civil penalties instead of certificate actions and handling those cases under the current NTSB rules? Sure, a civil penalty sounds better than a certificate action (certainly better than a revocation) but a finding of violation is a finding of violation, and that could jack up insurance premiums or keep you from getting an airline job just as much as a certificate action.
All in all, this bill has more wrongs than rights for airmen, pilots and otherwise. So, next time Congress and the President agree on anything that sounds good, be skeptical. Be very skeptical.