In what I believe to be the first case to receive a formal ruling, the NTSB has affirmed the FAA’s revocation of an airman’s medical and airman certificates following his arrest during the Operation Safe Pilot investigation. As you may recall, Operation Safe Pilot involved an 18 month investigation by the FAA and the California Department of Justice in which a comparison of FAA medical records and Social Security Administration (“SSA”) disability records revealed airmen who were collecting disability benefits from the SSA based upon serious medical and psychological conditions, which otherwise disqualified the airmen from operating an aircraft. 30 airmen were indicted on felony charges of making false statements to a government agency and face up to five years in prison and a $250,000 fine. Ten other airmen faced misdemeanor charges of making and delivering a false official writing and are looking at up to a year in jail.
Administrator v. Cooper involved the FAA’s revocation of the airman’s certificates based upon the airman’s failure to disclose on four separate applications for medical certificates his use of certain HIV/AIDS medications and diagnosis with a peripheral neuropathy. The airman submitted an answer to the FAA’s complaint and the FAA then moved for summary judgment based upon many of the admissions contained in the airman’s answer and in subsequent responses to discovery requests. The airman did not oppose the summary judgment motion based upon the falsification claim, but rather argued that his medical condition was illegally obtained from the SSA in violation of the Privacy Act of 1974 and, was thus, tainted. The ALJ dismissed the airman’s Privacy Act argument and granted the FAA’s motion.
On appeal to the NTSB, the Board affirmed the ALJ’s grant of summary judgment. It specifically rejected the airman’s arguments that the Privacy Act had been violated or that the FAA illegally or improperly obtained the SSA medical records in light of the absence of evidentiary proof in the form of affidavits or other written documentation. The airman argued that he tried to obtain the evidence through discovery but that the FAA counsel’s inadequate responses and the ALJ’s refusal to grant his motion to compel precluded him from obtaining the evidence. However, the Board deferred to the discretion of the ALJ in denying the motion and noted that the airman had ample opportunity to pursue further discovery. The Board also held that “he has not made any showing why the relief he requests (suppression, as tainted, of the evidence regarding his HIV-related medication and neuropathy) was required” since any recourse for violation of the Privacy Act would be against the SSA, not the FAA.
Finally, the Board noted that “this is an administrative proceeding concerned with aviation safety, and, even if respondent might have some recourse under the statute against SSA, or even the Department of Transportation Office of Inspector General who purportedly provided the records to the Administrator, we think it would be inconsistent with our mandate to ignore the fact that respondent admits facts sufficient to sustain the charges of intentional falsification and revocation.”
It appears to me that the Board didn’t really address the Privacy Act argument. Although the Board went beyond the issue of lack of evidentiary support at the summary judgment level, I wasn’t impressed with its limited analysis of the issue and its argument that the remedy for the violation was with the SSA and not FAA. However, in its defense, this was not a criminal proceeding and, as a result, I don’t know that the “suppression of tainted evidence” is even a proper remedy in an FAA enforcement proceeding. And even if it were, I don’t know how you would “un-ring the bell”. Arguably the evidence would be available independently from the airman’s health care providers and could still be obtained and used by the FAA. Granted, it would be more work, but it seems possible.
Given the Board’s less than thorough discussion of the Privacy Act claim, and since this is one of the first cases to receive a ruling, I would expect that this case would be appealed for further review by the 9th Circuit Court of Appeals. It will be interesting to see what happens.