As you may be aware, the Pilot’s Bill of Rights mandated changes to the way FAA enforcement cases are handled by the NTSB. One of the significant changes to the conduct of hearings relates to the deference the administrative law judge (“ALJ”) must give to the FAA’s choice of sanction (e.g. suspension versus revocation). Before the Pilot’s Bill of Rights, 49 U.S.C. 44703(d)(2) provided that the NTSB was
“bound by all validly adopted interpretations of laws and regulations the [FAA] administrator carries out and of written agency policy guidance available to the public related to sanctions to be imposed under this section unless the Board finds an interpretation is arbitrary, capricious, or otherwise not according to law.”
And prior to the Pilot’s Bill of Rights the NTSB had, in fact, consistently held that it was bound by (1) the FAA’s choice of sanction derived from the Sanction Guidance Table contained in FAA Order 2150.3B and (2) previous cases approving the FAA’s choice of sanction for particular types of violations.
The Pilot’s Bill of Rights expressly eliminated this “bound by” language. The NTSB is no longer required to simply accept the sanction proposed by the FAA in an enforcement case. Rather, the NTSB is permitted to select what it believes to be the appropriate sanction based upon the facts of the cases and any mitigating or aggravating circumstances. However, the Pilot’s Bill of Rights did not address what impact this change in language might have on the Board’s reliance upon prior case law and precedent. Fortunately, a recent Board decision addressed this issue.
In Administrator v. Jones, the Board was reviewing an ALJ’s decision in an intentional falsification case in which the ALJ adopted the FAA’s time-tested assertion that revocation of all airman certificates is the appropriate sanction in such cases. Consistent with the Pilot’s Bill of Rights, the Board initially recognized that it was not bound by the FAA’s choice of sanction. It then went on to state that “we are reluctant to engage in sanction comparison to cases decided prior to the enactment of the Pilot’s Bill of Rights.” Thus, rather than rely upon case law and precedent developed while the NTSB was still subject to the “bound by” requirement, the Board will now perform its own analysis to determine whether the sanction sought by the FAA in a particular case is reasonable and appropriate.
However, it is important to understand that this does not change the deference the Board must give an administrative agency’s interpretation of its regulations and proposed sanctions for violation of those regulations. If the agency’s interpretation and choice of sanction is reasonable and not otherwise arbitrary, capricious, or manifestly contrary to the regulation, the Board must still defer to that position. But, at least the NTSB is no longer required to simply “rubber stamp” the FAA’s choice of sanction without performing some analysis as to whether it is reasonable. And that is good news for airmen.