The NTSB recently affirmed an ALJ’s grant of summary judgment and entry of an order suspending an airman’s commercial pilot certificate. In Administrator v. Kizer the FAA issued an order suspending the airman’s commercial pilot certificate for 60 days based upon alleged violations of FARs 135.293(a)2 and (b) (Part 135 pilot must pass annual written and oral test), 135.299(a) (Part 135 pilot must pass annual competency check/flight review), and 91.7(a) (aircraft must be in airworthy condition). The airman appealed the order to the NTSB and requested a hearing.
Prior to the hearing, the FAA served the airman with Requests for Admissions regarding the key allegations of the FAA’s complaint and to which the airman failed to respond. The FAA then filed a motion to have those key factual allegations deemed admitted based upon the airman’s failure to respond. When the airman again failed to respond, the ALJ granted the FAA’s motion. With the key factual allegations deemed admitted, the ALJ subsequently granted the FAA’s motion for summary judgment. The airman then appealed the grant of summary judgment to the full Board.
On appeal, one of the airman’s arguments, among many, was that he was denied his “constitutional right to a hearing.” The Board rejected this argument, along with the rest of his arguments. The Board observed that “where no genuine issue of material fact exists, a hearing would be meaningless” and an airman’s right to contest the facts underlying an order at a hearing “does not logically extend to facts which are not disputed.” Further, the Board held that “the statutory right to a hearing does not preclude the Board’s law judges from limiting the scope of a hearing to the adjudication of those matters over which a genuine controversy continues to exist after the parties have filed their pleadings.” In the absence of such a dispute, the Board affirmed the ALJ’s grant of summary judgment.
Unfortunately, the opinion does not disclose why the airman missed several opportunities to respond to the FAA. He could have to responded to the requests for admissions. Next, he could have responded to the FAA’s motion to have the requests deemed admitted by either responding to the requests or objecting to the motion in general. Finally, he could have responded to the FAA’s motion for summary judgment by arguing that a factual dispute existed. It seems to me that if you are going to request a hearing, (1) you better have some a factual or legal basis for the appeal; and (2) you should actively pursue and defend your rights. Although I am not sure whether the airman had a legitimate basis for appeal in this case, I am certain that the airman failed to properly take advantage of the opportunities to defend his rights.
