In a recent NTSB decision, the Board reversed an administrative law judge’s (“ALJ”) downward modification of the sanction sought by the FAA against an airman for violations of FAR’s 61.31(a)(1)(type rating requirements, additional training, and authorization requirements) and 91.13(a)(careless or reckless operation). In Administrator v. Rezendes, the airman failed a type certificate check ride in a King Air 300. Within the following month, and before he ultimately passed the type ride, the airman made two flights in a King Air 300 as pilot in command. The FAA then sought a 180-day suspension of the airman’s commercial pilot certificate.
After a hearing, the ALJ upheld the violations, but modified the suspension to a 120-day suspension. It appears that the ALJ gave some consideration to the airman’s violation-free record, his subsequent attainment of the rating at issue, and absence of actual endangerment as support for the modification. The ALJ also apparently believed the airman’s assertion that the airman had mistakenly believed that an endorsement he had to take a check ride for the BE-300 type rating authorized solo flight as well.
On appeal, the Board reversed the ALJ, finding that the ALJ had exceeded his authority when he modified the sanction. The Board noted that its authority to modify sanctions under 49 USC 44709(d)(3) is “‘bound by…written agency guidance available to the public relating to sanctions to be imposed’ unless found by the Board to be ‘arbitrary, capricious, or otherwise not in accordance with law’.”
During the hearing before the ALJ, the FAA inspector provided an explanation for her calculation of the sanction based upon the circumstances of the case and the Sanction Guidance Table, FAA Order 2150.3A, Appendix 4. However, in his decision the ALJ did not make any finding that the FAA inspector’s calculation was arbitrary, capricious or otherwise not in accordance with law as required for him to justify a modification to the sanction proposed by the FAA. As a result, modification of the sanction was inappropriate.
Based upon this case, if you are going to argue for a reduction in sanction, make sure you focus on how the FAA’s calculation of sanction is arbitrary, capricious or otherwise not in accordance with law. Without a finding to that effect, the ALJ will not have the authority to modify the sanction.