The "Hoover Bill," which allows a certificate holder to obtain interim review of an FAA emergency revocation order by appealing to the National Transportation Safety Board, became law on April 6, 2000. In the first six months since its enactment, none of the 24 applicants for review of an emergency order has successfully obtained a stay. As Hilary Miller, a pilot, aircraft owner and attorney writes, significant questions exist regarding the interpretation of the Hoover Bill by the board and whether Congressional intent has been met.
December 27, 2000
As anyone who closely followed
the saga of the FAA's
certificate action against airshow star R.A. "Bob" Hoover during the 1990s
would imagine, the "Hoover Bill" amends the appeal provisions of 49
U.S.C. § 44709 (Amendments, modifications, suspensions, and revocations of
certificates) to allow a certificate holder to obtain interim review of an FAA
emergency revocation order by appealing to the National Transportation Safety
Board (the "board"). Yet, in the first six months since the "Hoover Bill" was
enacted on April 6, 2000, none of the 24 applicants for review of an emergency
order has successfully obtained a stay; and, as discussed below, obtaining a
stay of an emergency revocation order under this provision is all but
Accordingly, further action by the courts or the legislature may be
required in order to carry out the manifest intent of Congress in enacting
this law. Through the date of this writing, no reported court case has
considered the board's determination of an emergency review under the Hoover
Bill. As this article will demonstrate, significant questions exist regarding
the interpretation of the Hoover Bill 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.
The law was enacted at the introduction of Sen. James Inhofe (R-OK)
following the public outcry when Bob Hoover, a well-known aerobatics pilot,
had his medical certificate revoked by the FAA1. The
legislation, which was enacted as Section 716 of the Wendell H. Ford Aviation
Investment and Reform Act for the 21st Century ("AIR-21"), P.L. 106-181,
establishes an appeal process for emergency certificate actions.
Interest groups including the 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 all supported this legislation to
"provide due process to certificate holders where now none exists, without
compromising aviation safety."2
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
On July 11, 2000, the board issued interim procedural rules, which were
published at 65 Fed. Reg. 42637 and are now final and codified at 39 C.F.R. §§ 821.52 et seq. In summary, the board has
delegated the duty for handling these emergency reviews to its chief
administrative law judge ("ALJ"). The ALJ's decision is not appealable to the
full board. The airman is not entitled to an evidentiary hearing or to oral
argument. The ALJ's review is limited to the issue of whether, based on the
acts and omissions of the certificate holder as alleged in the complaint, the
Administrator abused her discretion in determining that an emergency exists.
The ALJ is required to accept as true all of the factual allegations of the
complaint. Thus, the certificate holder is not permitted to offer evidence
that the FAA's allegations are untrue, or, indeed, that the facts alleged in
the complaint simply could not have occurred as the FAA alleges.
Through October 2000, a total of 24 cases had been appealed to the board
under 49 U.S.C. § 44709(e)(3). Six of those petitions were rejected on purely
procedural grounds (one was filed after the 48-hour deadline3, two failed
to include copies of the order appealed from4,
and three failed to enumerate specific grounds for the appeal5).
Regarding the remaining 18 cases, a stay was denied in each case.
A significant number of these cases
involve the definition of "emergency." Surprisingly, these appeals have 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
The facts of Administrator v. Esser, Docket No. SE-15992 (Jun. 29,
2000), 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 December
31, 1998 (the medical certificate was apparently renewed in January or
February 1999). Esser also apparently failed to obtain a complete weather
briefing for a single trip in January 1999 and omitted or misstated logbook
entries regarding the January 1999 flights.
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
In his petition, Esser asserted that (1) the allegations alleged, if true,
would not warrant a certificate revocation6; (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?7
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."8
Chief Judge Fowler 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 estop 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
Similar language appears almost
verbatim in several other decisions.10 This
definition of "emergency" is clearly not what Sen. Imhofe had in mind when he
sponsored the original Hoover Bill and its ultimately enacted provisions in
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 1999.12 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 Baird13
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 August 17, 2000.
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
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.15
Again, in light of the manifest purpose of the Hoover Bill, the denial of
Baird's petition seems quite anomalous.16
Indeed, applying the standards now in place under the statute and the Board's
regulation, even Bob Hoover would be unsuccessful in challenging the emergency
revocation of his medical certificate were it to recur today.
Against this backdrop, serious
questions must be raised about the efficacy of the Hoover Bill in
accomplishing its intended purpose. As the foregoing analysis indicates,
certificate holders are batting zero-for-24 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 should be further
amended 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;
- 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,"17 the
Hoover Bill has failed of its essential purpose and must be rethought.
appendix, a list of the cases researched for this article, is
available in Adobe's Portable Document Format (PDF). A free
reader for PDF files is available on Adobe's web
- In 1992, FAA safety inspectors observed
Hoover's performance at an air show in Oklahoma City. Two months later, the
inspectors filed reports claiming that Hoover's flying had been badly flawed
and that he appeared "frail." On December 21, 1992, Hoover submitted, at the
FAA's request, to a medical examination and was found to be fit by both the
independent doctors and FAA-appointed psychiatrist who had examined him. On
April 14, 1993, the FAA grounded him. Hoover was reexamined at UCLA and
found fit to fly. Two doctors at Georgetown Medical School supported the
FAA's decision to ground Hoover without examining him. Hoover's medical
certificate was returned to him, but was immediately revoked by the FAA in
December 1993. Only after revocation did the FAA claim, for the first time,
that Hoover's purported inability to fly was unrelated to the impairment
that the FAA doctors had originally found.
statement of Sen. James M. Inhofe, 145 Cong. Rec. S3440, March 25,
- Administrator v. Sipp , Docket No. SE-15956 (May 23,
- Administrator v. Howell, Docket No. NA-34 (Aug. 15, 2000);
Administrator v. Broff, Docket No. SE-16101 (Oct. 16,
- Administrator v. Berko, Docket No. SE-16032
(Aug. 28, 2000); Administrator v. Wilen, Docket No. NA-35 (Sep. 8,
2000); Administrator v. Ketchersid, Docket No. SE-16095 (Oct. 4,
- The FAA's
Enforcement Sanction Guidance Table (FAA Order 2150.3A) recommends a 30- to
180-day suspension for each violation.
- Administrator v. Esser, Docket No.
SE-15992 (Jun. 29, 2000), slip op. at 6.
- ID .
- Id . at
- See ,
e.g., Administrator v. Spatz, Docket No. SE-16028 (Aug. 21,
2000), slip op. at 6-7; Administrator v. Huey, Docket No. SE-16023
(Aug. 10, 2000), slip op. at 7.
In his floor statement (supra, n. 4),
Sen. Inhofe noted:
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.Floor statement of Sen.
James M. Inhofe, 145 Cong. Rec. S.3440, March 25, 1999.
- See, generally, Administrator v.
Berko, Docket No. SE-16032 (Aug. 28, 2000); Administrator v.
Bobbett, Docket No. SE-16031 (Aug. 28, 2000); Administrator v.
Baird, Docket No. SE-16033 (Aug. 29, 2000); and Administrator v.
Koberg, Docket No. SE-16061 (Sep. 1, 2000); Administrator v.
O'Malley, Docket No. SE-16065 (Sep. 7, 2000).
- Id., slip op. at 4-5.
- All 24 cases have been heard by Chief Judge
William E. Fowler, Jr., although the Board's regulation authorizes him to
assign these cases to other judges. The author had the privilege of
discussing with Chief Judge Fowler on October 20, 2000, 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."