In a recent NTSB opninion, the Board reversed an Administrative Law Judge’s (“ALJ”) reduction of sanction from revocation to suspension based upon the airman’s history of conduct in disregard of the regulations. In Administrator v. Poland, the FAA claimed that the airman had (1) operated his Extra 300 aircraft at less than 100 feet above ground level on at least two passes while flying within a 2,000-foot radius horizontally of persons and structures in a congested area and (2) flew aerobatic maneuvers during the flight in Class D airspace at an altitude below 500 feet. The FAA alleged that the airman’s conduct violated FARs 91.303(c) and (e) (prohibited aerobatic flight), 91.119(b)4 (operating too low over congested area or open air assembly) and 91.13(a) (careless and reckless).
After a hearing, the law judge found that the airman’s conduct had violated FARs 91.303(c) and 91.13(a), but that the FAA had not proved that the airman violated FAR 91.119(b)4. As a result, the ALJ reduced the sanction from revocation to a 270 day suspension of the airman’s certificates. The FAA then appealed the ALJ’s reduction in sanction, but not the ALJ’s determination that it had not proved the FAR 91.119(b) violation.
On appeal, the FAA argued that revocation was appropriate because the Board must defer to the FAA’s choice of sanction, and because the airman’s conduct indicates that he lacks the qualifications necessary to hold an airman certificate. In support of the argument that the airman lacked qualifications, the FAA argued that his lack of qualifications was evident by both the airman’s deliberate and reckless conduct and the airman’s pattern of conduct exhibited by other enforcement actions for similar conduct, which, the FAA claimed, did not have the intended remedial effect because the airman violated the regulations yet again.
Initially, the Board observed that “the FAA Civil Penalty Administrative Assessment Act (the Act) states that the Board is bound by written agency guidance available to the public relating to sanctions to be imposed, unless the Board finds that any such interpretation or case sanction guidance is arbitrary, capricious, or otherwise not in accordance with law.” The FAA must clearly articulate the sanction sought, ask the Board to defer to that determination, and support the request with evidence showing that the sanction has not been selected arbitrarily, capriciously, or contrary to law. However, even if the FAA does not introduce the Sanction Guidance Table (Appendix B to FAA Order 2150.3B) into the record or request such deference, the Board may still order a serious sanction if the airman’s conduct indicates that the airman acted in a deliberate manner that demonstrates an unwillingness to comply with the regulations.
The Board then granted the FAA’s appeal, concluding that “[t]he facts here indicate that respondent acted in a deliberate manner, once again committing violations similar to those in the not-too-distant past. We conclude that revocation is the appropriate sanction, because of respondent’s demonstrated unwillingness to comply with the Federal Aviation Regulations, which, based on our precedent, indicates that he lacks the qualifications to hold an airman certificate.”