December 27, 2000 The "Hoover Dam": Meaningful Review of Emergency Certificate Actions?

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by	Hilary B. Miller, Esq.
	Copyright © 2000 Hilary B. Miller. This article first appeared in the Winter 2000 issue of the Journal of the Lawyer-Pilots Bar Association.

About the Author ... Hilary B. Miller is an attorney in Greenwich, Connecticut whose practice includes aviation law and related litigation. He is a member of the New York and Connecticut bars, Lawyer-Pilots Bar Association, Aircraft Owners and Pilots Association legal services panel and National Transportation Safety Board Bar Association. He is vice president and a director of the Westchester Aviation Association, a general aviation users' group at Westchester County (NY) Airport, as well as the AOPA Airport Support Network representative for the airport. Mr. Miller holds undergraduate and M.B.A. degrees from Dartmouth College and a J.D. degree from Fordham University School of Law. He holds a commercial pilot certificate with instrument and multiengine ratings and owns a Cessna 414A. Hilary@miller.net

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 impossible.

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.

Background

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 revocation.

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.

Results to Date

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 revocation.

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 alleged.

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 order."⁹

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 AIR-21.¹¹

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 dismaying...¹⁴

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.

Is the Hoover Bill Effective?

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.

This 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 site.

Notes

1. 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.
   
2. Floor statement of Sen. James M. Inhofe, 145 Cong. Rec. S3440, March 25, 1999.
   
3. Administrator v. Sipp , Docket No. SE-15956 (May 23, 2000).
   
4. Administrator v. Howell, Docket No. NA-34 (Aug. 15, 2000); Administrator v. Broff, Docket No. SE-16101 (Oct. 16, 2000).
   
5. 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, 2000).
   
6. The FAA's Enforcement Sanction Guidance Table (FAA Order 2150.3A) recommends a 30- to 180-day suspension for each violation.
   
7. Administrator v. Esser, Docket No. SE-15992 (Jun. 29, 2000), slip op. at 6.
   
8. ID .
   
9. Id . at 8.
   
10. 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.
    

11. 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.

12. 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).
    
13. Id.
    
14. Id., slip op. at 4-5.
    
15. Id.
    
16. 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."
    
17. http://www.eaa.org/communications/eaanews/pr/000317_hoover.html