In the absence of proof or explanation of the FAA’s request for sanction in a recent case, the NTSB refused to defer to the the sanction imposed upon an airman and made its own determination of sanction. In Administrator v. Rice, the FAA was seeking to suspend an airman’s ATP certificate for 90 days for allegedly violating FARs 61.3(c)(failure to have medical certificate in possession), 91.13(a)(careless and reckless), and 91.151(b)(VFR minimum fuel requirements). After a hearing, the ALJ found that the airman had violated the FARs as alleged by the FAA, but reduced the sanction to 75 days to account for the fact that the FAA had previously withdrawn a charge without reducing the original sanction it was seeking. The airman then appealed the decision to the full Board.
On appeal, the airman argued that the ALJ had erred in affirming the FAA’s order and that the 75 day suspension imposed by the ALJ was arbitrary and contrary to Board precedent. With respect to the finding of violations, the Board affirmed the ALJ. However, with respect to the sanction imposed by the ALJ, the Board initially observed “that the Administrator did not introduce the sanction guidance table into evidence at the hearing, or otherwise provide convincing evidence of the rationale for the choice of sanction.”
The Board then commented that “even on appeal, the Administrator provides no meaningful explanation of what range his sanction guidance table specifies for the violations at issue in this case, or, importantly, an explanation about how the facts of this case should be analyzed within the range of possible sanctions.” The Board also noted that the ALJ’s sanction determination was owed no deference because the ALJ had not provided any substantive explanation for how the 75 day suspension was calculated.
In the absence of any meaningful guidance from the FAA to apply to the specific facts of the case, the Board reduced the sanction to a 60 day suspension based upon precedent in fuel exhaustion cases and expired medical certificate cases and the fact that multiple violations were present in the case. The Board also chastised the FAA for failing to provide support for the sanction when it noted that “[i]n future cases, we encourage the Administrator to present evidence of the sanction guidance table, and evidence or argument addressed to the validity of choice of sanction in the context of the specific facts of each case. In the absence of such a record, we cannot defer to the Administrator’s sanction for we have no way to assess its validity.”
I am actually a little surprised by the Board’s willingness to determine sanction in this case. I would have expected the Board to simply remand the case back to the ALJ with instructions for the ALJ to provide an explanation of the sanction imposed in order for the Board to have a basis for reviewing that decision if it was appealed again. However, it is possible that the Board was sending a message to both the FAA and ALJs that they need to make a clearer record at the hearing if they want the Board to exercise any deference to their positions. As a result of this decision, at future hearings I would expect to see the FAA actually offer into evidence the applicable section(s) of the sanction guidance table and/or other guidance or policies in support of the sanction it is seeking to impose.