Complying with the rules entitles you to a certificate. Holding a certificate means you have rights. The aviation safety regulations include privileges and protections constraining industry non-compliance and government excess.
The United States Constitution guarantees “due process.” The fifth amendment is famously invoked in high profile witness testimony, but it also declares: “No person shall … be deprived of life, liberty, or property, without due process of law.” In the practical sense, this right requires the government to establish and follow fair and objective procedures before taking punitive action.
For aerospace certificate holders, part 13 provides those procedures. The FAA’s rules for enforcement include required actions and response timelines. The non-emergency process described in § 13.19(b) requires notices of proposed action including the following response options:
(1) Surrender the certificate or pay the fine.
(2) Answer the charges in writing.
(3) Request an informal conference to discuss the matter.
(4) Request the order be issued so it can be appealed.
ARSA members, particularly those who are clients of its management firm, have used informal conferences and written responses — often both — to mitigate wrongheaded government action and protect their aviation business. Upholding the requirements of due process allows an opportunity to either make a case or require the government to justify its actions. When justification is unsatisfactory, the system provides continuing opportunities for appeal to other tribunals.
A certificate is protected by the plain language of the rules. Failing to use the rules to your benefit is foolish; doing so effectively gives away the rights guaranteed by the law. Failing to use the response options of part 13 when facing either certificate action or civil penalty has immediate costs and long-term consequences of ongoing regulatory misbehavior.
An extreme example of such a consequence is the complete loss of legal protection. In June, ARSA informed Congress of an ongoing lawsuit against the FAA alleging the unlawful termination of FAA designees through the improper promulgation and enforcement of rules that deprive individuals of procedural due process. The plaintiffs claim the agency violated the Fifth Amendment as well as the Administrative Procedure Act by removing designee privileges without cause and directing designee action without the authority to do so.
The complaint filed with the district court includes a thorough history of delegated authority showing designees clearly “operated under a certificate” in the 1950s. Subsequent amendments to the rules gave the administrator unfettered discretion to terminate a designation and eventually altered the enforcement rules to separate its treatment of designees from any protection under the law.
“For reasons known only to the FAA, the FAA subsequently asserted that Designees are not subject to [part 13’s legal enforcement action rules],” the complaint said. “Rather, without legal support, and in direct contravention to the representations made to Congress … the FAA has asserted that [procedural enforcement requirements] ‘[have] nothing to do with the FAA’s termination of Designated Pilot Examiners or, for that matter, any other category of non-FAA employees whom the agency certifies to perform particular functions.’”
Given the historical movement stripping designees of due process protections, the complaint’s “prayer for relief” seeks, among other compensation, re-establishment of clear rights for designees to appeal actions taken against them by the FAA.
No certificate holder should let the government take away basic rights. The class action suit represents an extreme situation after decades of changing law and policy. ARSA’s greatest (perhaps) value to industry is leading in the example of vigilance against government actions that can impact the “life, liberty, and property” central to aviation business.
Brett Levanto is vice president of operations of Obadal, Filler, MacLeod & Klein, P.L.C., managing firm and client communications in conjunction with regulatory and legislative policy initiatives. He provides strategic and logistical support for the Aeronautical Repair Station Association.