In a recent case, Administrator v. W.H.M.J. Van Der Horst, the NTSB reversed an administrative law judge’s (ALJ) suspension of an airman’s commercial pilot certificate for allegedly performing a preflight inspection carelessly and recklessly. The FAA’s complaint against the airman asserted, as is usually the case, that the airman acted carelessly and recklessly in connection with his alleged operation of a balloon carrying passengers when the balloon was in an unairworthy condition. In this situation the careless and reckless charge is typically referred to as a “residual” charge because it relies upon a finding of violation for the underlying charge.
After a hearing, the ALJ found that the FAA had failed to meet its burden of proving that the ballon was unairworthy and he dismissed that charge. However, the ALJ then held that the airman was careless in not inspecting the balloon more carefully before flight to ensure that its load tapes were not damaged after the balloon received some fire damage. The airman then appealed claiming that the FAA’s complaint did not put him on notice that his preflight inspection of the burn damage was insufficient or performed in a careless and reckless manner.
The Board agreed with the airman and reversed the ALJ’s decision. It held that “[a] fair reading of the Administrator’s complaint indicates that both the section 91.7(a) and the section 91.13(a) charges were premised upon a case theory that respondent’s balloon was damaged to such an extent that it was unairworthy” and that “[t]he complaint did not provide respondent with adequate notice that he must defend against an independent charge of carelessness based on an inadequate preflight.”
The Board further noted that under these circumstances, “whether respondent was careless and whether he was on notice that he was being charged with being careless independent of the [operational violation cited in the complaint] are two separate questions” and, as a result, “it was prejudicial error for the law judge to uphold the section 91.13(a) violation on grounds not adequately described in the complaint.”
Not only was this a good outcome for the airman, it was also fair and correct. Holding the FAA and the ALJ to the allegations specifically plead in the complaint makes them accountable and prevents a trial by ambush. Mind you, this rule also applies to the statements contained in an airman’s answer to the allegations in an FAA complaint. However, this isn’t necessarily a bad thing as long as the playing field between the parties is level, or at least slanted in favor of the FAA as little as possible.
