Yes, you do have a due process right to a hearing before your pilot or mechanic certificate is suspended or revoked.
Following an incident or accident, F.A.A. inspectors will conduct an investigation to determine if any F.A.R.s have been violated; that is part of their job. In the normal course (not an emergency revocation, discussed elsewhere), a letter of investigation will go out to the certificate holder, requesting his or her “side of the story” and any documentation that would be of assistance in conducting the investigation. At this point, even if there is already a confession, an aviation-oriented attorney should be retained to protect your position (and insulate further direct communication). The response is due within 10 days. Afterwards, the case will either be closed or an administrative action (warning notice, letter of correction, remedial training/”709” ride or a civil penalty/certificate action) will follow.
The civil penalty/certificate action starts with F.A.A. regional counsel sending a “Notice of Proposed
If the case is not resolved, the certificate holder has the right to appeal the order. This ”buys time” and allows the certificate to be retained during the appeal. A hearing before an N.T.S.B. Administrative Law Judge will be scheduled, ”Items of Proof” and/or formal discovery can be requested and discussions may continue. The hearing is before the A.L.J. (trial without jury) and the F.A.A. will have the burden of proof by a preponderance of the evidence, including ”aggravating” circumstances. The defense is also allowed to bring in witnesses and show “mitigating” circumstances to either demonstrate no violation or why the penalty should be reduced.
The judge may still attempt get both sides to agree on a settlement. If not, a decision is made. If the decision is in the F.A.A.’s favor, a further appeal to the “Full N.T.S.B.” can be made and, still further, to the United States Court of Appeals. Note that the F.A.A. may also appeal an unfavorable ruling. Importantly, however, the standard on appeal is ”abuse of discretion” and, thus, the N.T.S.B. and U.S. Court of Appeals are highly deferential to the trial judge.
The system is hardly perfect and, in practice, appears highly slanted in favor of the F.A.A. but you do have due Process rights and, therefore, have some fighting chance to defuse or reduce the sanction in a civil penalty or certificate action.
by Richard T. Miller, Specialist in Aviation Law – (818) 994-8234
