In a recent NTSB decision, Administrator v. Nickl, the Board rejected an airman’s defense that ALJ Geraghty was biased. The underlying case arose out of a rotorcraft external load operation during which the FAA alleged the airman was carrying passengers. The FAA issued an order alleging violation of FAR 91.13(a) (careless and reckless) and proposed to suspend the airman’s commercial pilot certificate for 45 days. The airman appealed and a hearing was held with ALJ Geraghty presiding. After the hearing, at which witnesses for both the airman and for the FAA testified, ALJ Geraghty determined that the FAA’s witnesses were more credible than those presented by the airmane and he affirmed the FAA’s order.
On appeal to the Board, the airman argued that ALJ Geraghty was biased against the airman’s counsel and biased against the airman as a result of ALJ Geraghty’s prior employment with the FAA. The airman also submitted a motion in connection with his appeal to disqualify ALJ Geraghty pursuant to 49 C.F.R. § 821.35(c). The airman argued that ALJ Geraghty’s bias was demostrated by the facts that the airman’s counsel had not prevailed in other cases over which Judge Geraghty had presided and ALJ Geraghty had suspended a certificate belonging to one of the airman’s counsel’s clients after the airman’s counsel was too ill to attend a hearing. However, the Board rejected the bias argument because it was untimely. Given that ALJ Geraghty’s supposed bias was based on an event that occurred numerous years ago, the Board held that the airman’s counsel could have raised the bias issue earlier in the case.
With respect to ALJ Geraghty’s prior employment with the FAA, the Board observed that “[w]e have previously acknowledged Judge Geraghty’s former employment with the FAA, and have determined that such a history does not preclude him from presiding over cases at the Safety Board, as Judge Geraghty’s former employment does not establish that he has prejudged any case.” It then held ALJ Geraghty had not prejudged the case or presided over the hearing in a biased manner.
Although the defense was unsuccessful, I credit the attempt to obtain relief for a problem that many have perceived for quite a period of time. Unfortunately, as has most often been the case, the airman was unable to present sufficient evidence to support the defense. It is also disconcerting that the NTSB felt the bias defense should have been raised with ALJ Geraghty. Seems to me that would be adding fuel to the fire. Either way, airman appeals of FAA orders in Circuit III will likely remain difficult.