In a classic example of why an airman should retain an aviation attorney to represent him or her in an FAA enforcement action, the NTSB recently affirmed a 120 suspension of a private pilot’s certificate after he represented himself (“pro se”) in the enforcement proceeding. In Administrator v. Danko, the FAA charged the private pilot with violating FARs 61.56(c)(flight review), 91.13(a)(careless and reckless), 91.409(a)(annual inspection), and 91.203(a)(1)(airworthiness certificate) and issued an order suspending the airman’s certificate for 120 days. The airman, representing himself without the aid of an aviation attorney, appealed the order to the NTSB.
In his answer to the FAA’s complaint, the airman admitted the majority of the factual allegations which were then deemed established. Subsequently, during the course of discovery and in later submissions by the airman, the airman made statements that effectively admitted the remaining allegations in the complaint. For example, with respect to the allegation that the annual inspection was not performed when required the airman stated “TIME FLIES. AN ANNUAL WAS DUE IN 2003. I WAS TARDY IN GETTING IT DONE (2004). MY MISTAKE.” In addressing the flight review claim the airman responded that “SINCE 1999 MUCH OF MY FLYING HAS BEEN DONE WITH A CFI. I COULD HAVE BEEN SIGNED-OFF (BFR) MANY TIMES. NOT HAVING IT DONE OFFICIALLY WAS AN OVERSIGHT ON MY PART.”
Based upon the airman’s answer and subsequent statements, the ALJ found that no material issues of fact were present (since the airman had effectively admitted to all of the allegations). The ALJ then granted the FAA’s motion for summary judgment and affirmed its order of suspension. The NTSB subsequently rejected the airman’s arguments on appeal finding that, indeed, no issues of material fact were present and the ALJ acted appropriately in entering summary judgment.
Additionally, the Board rejected the airman’s apparent argument that his pro se representation should somehow justify reversal of the ALJ’s decision. The Board observed that the Office of Administrative Law Judges informed the airman it was advisable to have an attorney for the proceeding the Office even provided a pamphlet to the airman that stated, “…If an airman can afford it, it is advisable to have legal representation….” The Board then noted, albeit in the context of a hearing, “[t]hat an attorney may have argued his case more effectively or presented evidence differently is not a sufficient reason to require a rehearing.”
In enforcement actions, the FAA has the burden of proving its allegations by a preponderance of the reliable, probative and substantial evidence. However, in this case, the airman clearly made the FAA’s case for it. And, unfortunately for the airman, the fact that such errors occur during pro-se representation, or even representation by counsel for that matter, by itself, is not grounds for appeal. Although representation by an aviation attorney in the matter may not necessarily have changed the ultimate decision by the ALJ, it is quite likely that the airman would have at least had the opportunity to fully respond to the FAA’s case and present his own at a hearing on the merits.