The NTSB recently rejected an airman’s appeal that was based upon alleged “prosecutorial misconduct” by the FAA. In Administrator v. Hanrahan, the FAA issued an order of suspension alleging that the airman violated FARs 91.130 (requirement that two-way radio communication be established before entering, and maintained within, Class C airspace) and 91.13(a) (careless and reckless) during a flight within the Burbank California Class C airspance. After a hearing, an administrative law judge (“ALJ”) affirmed the FAA’s order of suspension based in large part upon the airman’s admission that “he did not have ‘proper communication with [the ATC facility controlling] the Class C airspace.'”
The airman appealed the ALJ’s decision alleging that his “argument for appeal is prosecutorial misconduct.” Although the airman’s appeal did not provide specific objections to the ALJ’s decision, the airman contended that the FAA attorney was evasive or delayed providing the names and addresses of FAA witnesses that the airman intended to call to testify, and, also that an exhibit did not properly reflect an agreement the airman had with the investigator that the airman’s violation would only result in remedial training.
In response to the airman’s appeal, the FAA attempted to frame the issues on appeal as: “whether the law judge’s determination that respondent violated the alleged provisions is supported by a preponderance of the reliable, probative and substantial evidence of record and whether the law judge’s conclusions were in accordance with law and precedent; and whether prejudicial error occurred.” Although the Board disagreed with the FAA’s framing of the issues, it agreed that the airman had not provided specific objections for its consideration.
The Board initially observed that “we believe that respondent’s appeal fails to identify any issue warranting our consideration.” It went on to note that the airman had not identified any specific finding or conclusion of the ALJ that he believed was either contrary to the evidence in the record or not adequately supported by it, nor did the airman demonstrate that the ALJ erred in disposing of the matter on the merits or his imposition of sanction. However, the Board then went on to conclude that the FAA had proved, and the airman admitted, the violation of FAR 91.130. The Board also found that the FAR 91.13(a) violation was proved as a residual violation (proven when an operational violation is established).
I think it is important to note that the airman in this case appeared “pro se” (without an attorney). The Board may have had that in mind when it went beyond simply rejecting the airman’s appeal for a “technical” failure to comply with Section 821.49 of the Board’s Rules of Practice to also rule on the merits of the ALJ’s decision. (Although I am not so sure I agree that the airman did not comply with Section 821.49, at least with respect to the evidentiary issue regarding the exhibit, even if the airman’s claim was not stated very articulately).
It is also interesting to note that the airman’s decision to appeal and, perhaps, the less than specific bases for the appeal, may, as the Board seems to infer, simply have been to buy himself some time before the suspension went into effect: “We note that respondent’s appeal brief states that he spoke to the Administrator’s counsel following the hearing and indicated that he ‘would go ahead and start the suspension if she could give me until February 13, 2009,’ inferring that was the reason he appealed to this Board.”