The D.C. Circuit Court of Appeals recently vacated an NTSB decision in which the Board refused to allow the employee of an air carrier to assert compliance with the Voluntary Disclosure Reporting Program (“VDRP”) as an affirmative defense to an FAA order of suspension. In Moshea v. NTSB, the FAA suspended the airman’s commercial pilot certificate based upon alleged violations of FARs 91.7(a) (aircraft must be in airworthy condition for operation), 135.65(b) (requiring pilot to enter any mechanical irregularities into aircraft logs), and 91.13(a) (careless and reckless). The airman appealed to the NTSB and attempted to raise an affirmative defense based on his compliance with the VDRP set out in FAA Advisory Circular 00-58. However, in its decision in the underlying case, Administrator v. Moshea, the Board ruled that it lacked jurisdiction to entertain the airman’s affirmative defense, and it affirmed his suspension. The airman then appealed the Board’s decision to the United States Court of Appeals-D.C. Circuit.
On appeal, the airman argued that he should have been able to offer evidence to support his affirmative defense that he complied with the VDRP as an employee of the air carrier certificate holder. However, the FAA and the NTSB argued that the VDRP was unavailable to the airman because it purportedly “does not relate to the sanctions to be imposed,” as required by 49 U.S.C. § 44709(d)(3), even though the the VDRP provides that no sanctions will be imposed in cases of voluntary disclosure.
The Court rejected what the Court characterized as the FAA’s/NTSB’s attempt to “evade” the VDRP. The Court stated that when the VDRP says no sanction will be imposed in a case of voluntary disclosure it is “quite obviously ‘related to sanctions'” and, as a result, the Board’s analysis was unreasonable and contrary to the statute. The Court also found that the NTSB’s decision was inconsistent with its handling of a prior case (Administrator v. Liotta) in which the Board allowed an employee of an air carrier to assert an affirmative defense based on the VDRP. According to the Court, this failure to follow precedent without an explanation was arbitrary and capricious and provided an independent basis for vacating the NTSB’s decision.
The Court concluded that the NTSB did have jurisdiction to decide whether the FAA’s suspension of the airman’s certificate comported with the VDRP. It then vacated the NTSB’s decision and remanded the case to allow the airman to offer evidence of compliance in support of his affirmative defense.
Nice to see the Court force the FAA/NTSB to comply with their own rules for a change. Of course the airman will still need to prove his compliance, another issue altogether. But at least now he gets that chance.