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THE PENSACOLA PAPERS

A few months ago, the Florida Bar Association and National Transportation Safety Board Bar Association sponsored an Aviation Law Seminar at Pensacola Florida. A number of topics were discussed of interest not only to the aviation legal community, but to representatives of government agencies, air carriers, repair stations, insurance carriers and labor organizations. In addition, Seminar participants attended a private performance given by the Navy's Blue Angels.

Reproduced in their entirety are two papers that we delivered at this Seminar.

Another Pensacola Seminar is scheduled for the Fall of 2001.

DEFENSE OF AIR CARRIERS AND AIR AGENCIES
IN FAA ENFORCEMENT PROCEEDINGS--
DAMAGE CONTROL BEFORE THE CASE ARISES
by
Michael L. Dworkin
Michael L. Dworkin and Associates
San Mateo, California

Presented to:

National Transportation Safety Board Bar Association's
and
Florida Bar Association's
"Pensacola" Aviation Law Seminar
November 2001

Introduction

Aviation, and particularly the air carrier industry, is safe because those in it strive to make it safe as a matter of professional responsibility, dedication and pride, and not because the FAA suspends certificates or imposes civil penalties.

Unfortunately professional responsibility, dedication and pride will not immunize carriers, air agencies 1and certain other certificate holders 2(hereinafter collectively referred to as "organizational certificate holders") from the prospects of having to defend themselves in FAA enforcement actions arising from alleged violations of Federal Aviation Regulations ("FAR's"). While the industry is safe, it is not perfect. Neither the aircraft nor the equipment are fail-safe. Likewise, there is the human element. People are not perfect--they make mistakes; they make errors in judgment; and sometimes they simply have "a bad day". We must also account for the regulatory environment in which the aircraft, equipment and people are operating. Notwithstanding the fact that the air carrier industry has been "deregulated" for almost two decades, ironically, there is probably no industry that is as highly regulated.

The FAR's impose strict liability. While many of them appear to be specific and clear, many others are not. There are ambiguities, and even apparent conflicts between FAR provisions. There are also the "Stealth FAR's"--the FAA's policies, interpretations, internal orders, handbooks, notices and guidelines, as well as case precedents, which are not so easily found or widely known, and which can change from time to time, essentially without notice. Moreover, they can vary, not only from region to region, and from district office to district office, but from inspector to inspector.

1 Air agencies are defined in 49 U.S.C. § 44707 as:

1. civilian schools giving instruction in flying or repairing, altering, and maintaining aircraft, aircraft engines, propellers, and appliances, on the adequacy of instruction, the suitability and airworthiness of equipment, and the competency of instructors;
2. repair stations and shops that repair, alter, and maintain aircraft, aircraft engines, propellers, and appliances, on the adequacy and suitability of the equipment, facilities, and materials for, and methods of, repair and overhaul, and the competency of the individuals doing the work or giving instruction in the work;
3. other air agencies the Administrator decides are necessary in the public interest.

2 Other certificate holders", as used in this paper, would include entities holding type certificates, production certificates, airworthiness certificates and airport operating certificates.

The majority of enforcement actions arise, not from deliberate acts, but from inadvertence and simple mistake. Although the FAA professes to be "kinder and gentler", the fact remains that a violation is a violation, and if established, will result in the initiation of an enforcement action and an eventual adverse finding. Unlike violations involving airmen and mechanics, violation histories of organizational certificate holders are never expunged. They become permanent matters of public record, available to anyone and for any purpose.

In many instances, how the organizational certificate holder responds to a potential violation is critical. This response may be determinative as to whether or not, and what type of, enforcement action will be taken and how severe it may be. In essence, the best defense should start immediately upon learning of the potential violation, not after the FAA issues a letter of investigation; not after the FAA initiates a proposed enforcement action; not at the informal conference; and not during the pendency and conduct of the hearing or any appeals thereafter. Accordingly, this presentation will focus on certain actions that can and should be taken by the organizational certificate holder and/or its aviation counsel to mitigate the likelihood and severity of FAA action.

Learning of the Potential Violation

While ATC deviations, in-flight airworthiness and/or maintenance discrepancies, breaches of airport security, and hazardous materials spills may readily come to the certificate holder's attention, not all potential violations are readily apparent. Organizational certificate holders need to ensure that lines of internal communication are open. Employees (management and non-management, union and non-union, alike) should be encouraged to report safety concerns, irregularities and potential violations to appropriate levels of senior management. The certificate holder must learn of the irregularity or potential violation before the FAA does. A certificate holder should not simply wait to see what the FAA does.

To do this, there needs to be a conducive corporate culture. Employees will only report this information if they know that (1) there will be no arbitrary reprisals; (2) senior management will constructively act on the information; and (3) senior management will back up the employees in the event the FAA initiates action against them, individually, in addition to any action that it may take against the company. By the same token, employers must retain the right to discipline those employees who may have deviated from company policies and procedures, applicable instructions or FAR's. While there is a fine line between the two ends of this spectrum, I suggest that in most instances employees will voluntarily report safety information, even if they know that they may be ultimately disciplined, where management takes a more enlightened approach, mitigating disciplinary sanction and assisting the employees in their personal defense in any subsequent FAA enforcement action. Obviously, there may be some situations (i.e., criminal activity) in which this approach would not apply, should probably not be taken and will probably not work.

Investigation

The importance of a thorough and complete in-house investigation cannot be understated. What happened? How did it happen? Is there a history of it happening previously? Who was responsible? Were employees appropriately trained? Were employees following all prescribed instructions, procedures and manuals? Were these instructions, procedures and manuals adequate? Were contractors responsible? Were the contractors in compliance with the terms and conditions of their contracts? Were quality control procedures adequate? Do any remedial or other corrective actions need to be taken to avoid recurrence?

Self-Disclosure

Under the FAA's Voluntary Disclosure Reporting Program 3, prompt and voluntary disclosure of apparent noncompliance may result in the FAA's administratively closing the matter without taking legal enforcement action, or in the event the FAA initiates legal enforcement action, will result in the mitigation of any sanction or penalty. Disclosure must be made before the FAA learns of the apparent violation on its own or through other means. The Program implicitly requires that the organizational certificate holder perform a meaningful investigation and explicitly requires that the certificate holder take appropriate corrective action be taken to prevent recurrence.

3 Advisory Circular ("AC") 00-58, Voluntary Disclosure Reporting Program.

In evaluating whether an apparent violation is covered by this Program, five conditions must be met:

1. The certificate holder, indirect air carrier, foreign air carrier, or production authority holder ("PAH") has notified the FAA of the apparent violation immediately after detecting it and before the agency has learned of it by other means;
2. The apparent violation was inadvertent;
3. The apparent violation does not indicate a lack, or reasonable question, of qualification of the certificate holder or PAH;
4. Immediate action, satisfactory to the FAA, was taken upon discovery to terminate the conduct that resulted in the apparent violation; and
5. The disclosing entity has developed or is developing a comprehensive fix and schedule of implementation satisfactory to the FAA. The comprehensive fix must include a follow-up self-audit to ensure that the action taken corrects the noncompliance. This self-audit is in addition to any audits conducted by the FAA.

Disclosure also protects the employees involved, provided they promptly report the noncompliance to the company. The AC provides:

The voluntary disclosure policy applies to individual airmen or other agents of an employing certificate holder, indirect air carrier, foreign air carrier, or PAH when:

1. The apparent violation involves a deficiency of the employing entity's practices or procedures that causes the employing certificate holder, indirect air carrier, foreign air carrier, or PAH to be in violation of a covered violation of an FAA regulation;
2. The airman or other agent of the employing entity, while acting on behalf of the employing entity, inadvertently violates the FAA's regulations as a direct result of a deficiency of the employing entity that causes the employing entity to be in violation of the regulations. (The voluntary disclosure policy does not apply to the airman or other agent when his/her apparent violation is the result of actions unrelated to the employing entity's deficiency);
3. The airman or other agent immediately makes the report of his/her apparent violation to the employing entity; and
4. The employing certificate holder, indirect air carrier, foreign air carrier, or PAH immediately notifies the FAA of both the airman or other agent's apparent violation and the apparent deficiency in its practice or procedures.

NASA ASRP

If the irregularity or occurrence did not result in an accident (as defined in NTSB Regulation Part 830 [49 C.F.R. Part 830]) 4, did not involve a criminal offense 5and was due to inadvertence, the NASA Aviation Safety Reporting Program 6will also apply. ASRP "invites" pilots, controllers, flight attendants, maintenance personnel, other users of the National Airspace System (NAS), or any other person 7, to report actual or potential discrepancies and deficiencies involving the safety of aviation operations. The operations covered by the program include departure, en route, approach, and landing operations and procedures, air traffic control procedures and equipment, crew and air traffic control communications, aircraft cabin operations, aircraft movement on the airport, near midair collisions, aircraft maintenance and record keeping and airport conditions or services.

The report (there are prescribed forms for flight operations, maintenance, cabin safety and air traffic control-originated reports) must be filed with NASA within 10 days of the date of the occurrence--no extensions or exceptions.

The NASA Report will not preclude the FAA from taking legal action. However, it will preclude the FAA from imposing a suspension or civil penalty (although such actions will nonetheless be made a matter of public record). Reports should be filed on behalf of the organizational certificate holder as well as each person involved.

4 § 830.2 Definitions.

As used in this part the following words or phrases are defined as follows:

"Aircraft accident" means an occurrence associated with the operation of an aircraft which takes place between the time any person boards the aircraft with the intention of flight and all such persons have disembarked, and in which any person suffers death or serious injury, or in which the aircraft receives substantial damage.

"Serious injury" means any injury which: (1) requires hospitalization for more than 48 hours, commencing within 7 days from the date the injury was received; (2) results in a fracture of any bone (except simple fractures of fingers, toes, or nose); (3) causes severe hemorrhages, nerve, muscle, or tendon damage; (4) involves any internal organ; or (5) involves second or third degreeburns, or any burns affecting more than 5 percent of the body surface.

"Substantial damage" means damage or failure which adversely affects the structural strength, performance, or flight characteristics of the aircraft, and which would normally require major repair or replacement of the affected component. Engine failure or damage limited to an engine if only one engine fails or is damaged, bent failings or cowling, dented skin, small punctured holes in the skin or fabric, ground damage to rotor or propeller blades, and damage to landing gear, wheels, tires, flaps, engine accessories, brakes, or wingtips are not considered "substantial damage" for the purpose of this part.

5 Caveat: Do not, under any circumstances, file ASRP Reports if there has been criminal activity, as NASA will forward any reports of criminal activity to the Department of Justice.

6 See AC 00-46D.

7 "Person" as defined under the Federal Aviation Act of 1958 (49 U.S.C. §1301, et seq.) and as recodified by Pub. L. 103-272, includes any individual, firm, copartnership, corporation, company, association, joint-stock association, or governmental authority, and any trustee, receiver, assignee, or other similar representative thereof. See 49 U.S.C. §40102.

Response to the Letter of Investigation

The Self-Disclosure and NASA programs are mutually exclusive. Moreover, they should be initiated before the FAA issues its Letter of Investigation. Once the LOI is issued, it is generally too late for the certificate holder and its employees to avail themselves of the Voluntary Disclosure and NASA programs. Moreover, the FAA is not required to issue an LOI. An investigation leading to an enforcement action can be conducted without any requirement that the FAA notify the person or entity that it is investigating. The absence of an LOI does not mean that the FAA does not know about the potential violation or that it not going to take any action.

Do you respond to the LOI? There is a split in the legal community on this one. However, my general recommendation is "YES", for several reasons:

1. By the time the FAA has issued the LOI and the time for response has run, the FAA's investigation is not only already underway, but has probably been substantially completed;
2. Failure to respond to the LOI has traditionally been regarded by the FAA as indicative of poor "attitude" and compliance disposition and possibly be deemed as an admission of culpability;
3. Organizational certificate holders have to work with the FAA on a daily basis. Failure to respond will eventually work to one's detriment in future dealings with the investigating Inspector and District Office. A certificate holder's perceived credibility and ability to communicate are oftentimes regarded by the FAA as its "stock in trade"; and
4. Common courtesy. After all, nobody likes to have their letters go unanswered.

However, there is a caveat: FAA investigations are rarely criminal proceedings. There is no 5th Amendment right against self-incrimination. Any information furnished in a response to an LOI can be, and will be, used against the responding party.

There have been recent instances in which the FAA and other governmental authorities have conducted concurrent civil and criminal investigations. In such instances, there are no surefire guidelines. Rather, determinations as to whether or not or how responses are made, and under what circumstances, must be on a case-by-case basis.

Corrective Action Appropriate, responsive and meaningful corrective action is required under the Voluntary Disclosure Reporting Program.

The law requires that air carriers meet the highest level of safety and provide the highest duty of care. Accordingly, carriers should undertake constant and continuous reviews of their programs, policies, procedures and manuals. Although internal evaluation programs are not specifically mandated by the FAR's, most reputable carriers have developed and have implemented them.

Additional Caveat on Disclosure and Voluntarily-Provided Information

Is information voluntarily self-disclosed to the FAA by air carriers and other air agencies releasable to the public? Under the Federal Aviation Reauthorization Act of 1996 (Pub. L. No. 104-264), and for the purpose of encouraging voluntary submission of safety and security information, the FAA has been directed not to disclose voluntarily-provided information...(here's the catch) if the FAA determines that doing so would inhibit further disclosure or interfere with security concerns. How the FAA will make this determination, or what guidelines it will use, are anyone's guess at this time. Needless to say, we stand by our prior recommendations, i.e., WHEN YOU DISCLOSE TO THE FAA, ANTICIPATE THAT WHATEVER YOU SAY, AND WHATEVER YOU SUBMIT (manuals, records, employee information, internal memoranda, and the like) WILL EVENTUALLY BE RELEASABLE AND MADE AVAILABLE TO THE PUBLIC!

When furnishing the FAA with manuals, either in connection with initial certification, manual revisions, making Disclosures or responding to LOI's, do it in writing and include the following in your transmittal, specifically state:

These submissions are proprietary. They contain procedures, processes, methods and ideas which are trade secrets and commercial information; they are evolutionary in nature, reflecting the certificate holder's unique operating experience and the combined years of experience and specialized training that its management and personnel have undergone, and numerous man-hours which have been expended in preparing these manuals, and all revisions thereto. Considering this substantial investment, the release of these manuals would certainly cause substantial harm to the certificate holder's present or future competitive position. Objection is made to the release of these submissions or to any other document, material or information that references or describes any of these submissions, including but not limited to manuals or any of the procedures, processes, methods or ideas embodied therein. The requirements for manuals, and the contents thereof, are contained in FAR's which clearly contemplate that the manual is to be prepared solely for the use of that certificate holder and is to be made available only to the certificate holder's own personnel and to representatives of the FAA. To the extent that any certificate holder envisions that the FAA would make available for public release and dissemination copies of those manuals will undoubtedly have a chilling effect. Accordingly, confidential treatment of this submission is requested under 49 C.F.R. §7.69 and under 49 U.S.C. Sec. 40115.

Second, when identifying employees or former employees of the organizational certificate holder, request confidential treatment of same under 49 C.F.R. §7.73, as disclosure could result in an unwarranted invasion of personal privacy.

Third, assert that the continued viability and success of the Disclosure program requires that certificate holders be able to report safety concerns and possible discrepancies without fear that these reports will become matters of public record or otherwise disseminated to the public. Disclosure of reported matters will have a chilling effect and undermine the integrity of the self-disclosure program.

There is no guaranty that the FAA will adhere to these conditions, but it may give the FAA reason to pause or at least consult with you and/or your carrier or air agency client and afford the opportunity to object prior to releasing the information.

SAAP

On August 3, 2001, the FAA implemented its Streamlined Administrative Action Process ("SAAP") 8in an effort to reduce paperwork and shorten the time it takes to resolve "certain violations that do not pose a serious threat to aviation safety". It establishes a process which dispenses with "extensive" investigation; requires that inspectors speak with "alleged violators about noncompliance advising them why their act or omission resulted in a regulatory violation and that enforcement action will be taken"; authorizes the issuance of an administrative enforcement action (warning notice or letter of correction) and establishes procedures for entry of the violation information in the FAA's enforcement database.

8 Joint Handbook Bulletin for Air Transportation (HBAT) 99-10A, Joint Handbook Bulletin for Airworthiness (HABW) 99-12A and Joint Handbook Bulletin for General Aviation (HBGA) 99-14A. SAAP was precipitated by a 1998 GAO Report critical of FAA enforcement (Report No. RCED-98-6, entitled Aviation Safety: Weaknesses in Inspection and Enforcement Limit FAA in Identifying and Responding to Risks).

Because it is a relatively new program, it is impossible to evaluate its fairness or effectiveness. However, there are a number of potential problems:

1. The sole arbiter of whether an alleged violation requires "extensive investigation" is the reporting inspector. There are no criteria other than "when inspectors personally observe an alleged violation or when evidence is readily available". What if the inspector is wrong? There are no rights to appeal the inspector's determination of violation or determination that no investigation is necessary.
2. Who is the "alleged violator"? With whom must the inspector speak? To the extent that organizational certificate holders come within this program, any employee (regardless of job function and whether or not he or she is authorized to speak for the organization) can essentially become that organization's representative in FAA matters--and whether or not the company knows about it.
3. Unlike administrative actions against individuals (pilots, mechanics and flight engineers) which are subject to a two-year record expunction, administrative actions against organizational certificate holders remain on record indefinitely and records of same are releasable under the Freedom of Information Act.

In view of these potential problem areas, organizational certificate holders should establish procedures for guidance of its personnel in dealing with FAA inspectors and in responding to FAA inquiries and concerns.

Conclusion
As business entities, organizational certificate holders have many goals--many of which may conflict. The integrity and survival of the aviation industry require that safety come first--ahead of profitability, market share, growth and other noble corporate objectives. It is imperative that organizational certificate holders establish and communicate this basic safety policy and ensure that all employees understand it and recognize their responsibilities thereunder--not only with respect to their own efforts, but also as to what goes on around them. If there are problems, they should immediately be brought to the attention of management so that the causes can be investigated and appropriate corrective actions can be taken. Developing, implementing and maintaining a corporate culture of safety awareness, communication and trust is perhaps the best defense of all.

HEARSAY EVIDENCE AND CROSS-EXAMINATION
IN AIR SAFETY PROCEEDINGS

by

David R. Newman
Michael L. Dworkin and Associates-
San Mateo, California

Presented to:

National Transportation Safety Board Bar Association's
and
Florida Bar Association's

"Pensacola" Aviation Law Seminar
November 2001

The Alleged FAR Violation

Captain Sqrue D. Pouche sits in the cockpit of his QuickAir ERJ-135 aircraft on a beautiful Summer's day at the San Francisco International Airport (SFO). He is the pilot-in-command of QuickAir Flight Number 001 bound for Reno, Nevada.

After various pre-flight events, the cabin door is closed and the crew prepares for departure. Caption Pouche, pursuant to ground control instructions, taxies his aircraft into position and holds for departure on Runway One Right. Local control clears Flight 001 for departure. The flight is unremarkable and is completed on time.

One month later, Captain Pouche receives a Letter of Investigation ("LOI") from the Federal Aviation Administration ("FAA") informing him that the FAA is investigating the facts and circumstances surrounding the departure of Flight 001, alleging that he taxied his aircraft across an active runway in violation of the Federal Aviation Regulations (FAR's). Captain Pouche is nonplused. He does not remember any fact or circumstance that would lead the FAA to such a conclusion. In fact, he has a solid memory of the events of the departure and is absolutely positive that he did not violate an active runway at any time.

The Respondent Seeks Legal Counsel

Being a professional pilot and the holder of an Airline Transport Pilot certificate, Captain Pouche is very concerned. Accordingly, he contacts Irving Getemoff, Esq. of Win, Getemoff and Eajafee, attorneys specializing in aviation and FAA Enforcement matters. Mr. Getemoff reviews the LOI and listens to Captain Pouche's version of the facts. He advises Captain Pouche that the situation raised in the LOI is serious indeed and can ultimately result in suspension of certificate privileges. He further advises that tape recordings of aircraft communications are only maintained for 15 days 9.

9 See, Department of Transportation, Federal Aviation Administration, Order 7210.3P - Facility Operation and Administration, ¶¶3-4-2, 3-4-3, 3-4-4 and 3-4-5, effective 02/26/98

Getemoff writes his standard LOI response to the FAA denying the allegations. He hears nothing further from the FAA. Five and one-half months later, Captain Pouche receives a Notice of Proposed Certificate Action proposing a 60-day suspension of his ATP certificate. Getemoff replies for his client requesting an informal conference as well as the FAA's evidentiary file. Approximately ten days later, the FAA responds by letter agreeing to an informal conference and enclosing the evidentiary file, the most damaging (and provocative) item contained therein is a report by FAA Safety Inspector Violatte Dailey which states that she received a statement from an informant, who wishes to remain anonymous, through the FAA's Aviation Safety Hotline ("Hotline Witness"). Said report states that, during the flight in question, Captain Pouche taxied onto and across Runway One Left, while active, to reach Runway One Right in violation of ATC instructions for him to hold short of One Left and await further clearances. The statement does not identify the caller.

At the informal conference, Getemoff protests that the FAA lacks substantial, probative and reliable evidence of an FAR violation and that, even if believed, the FAA Inspector's statement is rank, inadmissible hearsay which does not rise to the level of the preponderance of the evidence in light of Captain Pouche's and his First Officer's expected testimony contradicting the FAA's evidence. The FAA attorney is undeterred. Within a week following the informal conference, Captain Pouche receives an Order of Suspension imposing a 60-day suspension of his ATP certificate for alleged violations of FAR Sections 91.123(b); 91.129(i) and 91.13 which provide as follows:

§ 91.123 Compliance with ATC clearances and instructions.
(b) Except in an emergency, no person may operate an aircraft contrary to an ATC instruction in an area in which air traffic control is exercised.

§ 91.129 Operations in Class D airspace.
(i) Takeoff, landing, taxi clearance. No person may, at any airport with an operating control tower, operate an aircraft on a runway or taxiway, or take off or land an aircraft, unless an appropriate clearance is received from ATC. A clearance to "taxi to" the takeoff runway assigned to the aircraft is not a clearance to cross that assigned takeoff runway, or to taxi on that runway at any point but is a clearance to cross other runways that intersect the taxi route to that assigned takeoff runway. A clearance to "taxi to" any point other than an assigned takeoff runway is clearance to cross all runways that intersect the taxi route to that point.

§ 91.13 Careless or reckless operation.
(a) Aircraft operations for the purpose of air navigation. No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.
(b) Aircraft operations other than for the purpose of air navigation. No person may operate an aircraft, other than for the purpose of air navigation, on any part of the surface of an airport used by aircraft for air commerce (including areas used by those aircraft for receiving or discharging persons or cargo), in a careless or reckless manner so as to endanger the life or property of another.

Getemoff files a Notice of Appeal to preserve Capt. Pouche's rights and attempts to reopen negotiations with the FAA. After fruitless discussions, the FAA files a copy of the Order as its Complaint. Getemoff files an Answer containing the appropriate denials, admissions and affirmative defenses.

Discovery

Concurrent with his filing of the Answer, Getemoff initiates discovery by serving the FAA with interrogatories and document production requests which, in sum, ask the FAA to identify the Hotline Witness and to produce a transcription of the report. The FAA refuses to answer the interrogatories or to produce responsive documents citing the Freedom of Information Act (5 U.S.C. §552) and the Privacy Act (5 U.S.C. §552a). Getemoff files a Motion to Compel responses to Discovery with the National Transportation Safety Board ("the Board") and the Administrative Law Judge ("ALJ") assigned to the case. The ALJ denies the Motion holding that the informant's request of anonymity precludes the FAA from disclosing the name and identity of the Hotline Witness.

The Hearing

At the one day hearing in the matter of the Administrator, Federal Aviation Administration, Complainant v. Sqrue D. Pouche, Respondent, the FAA presents a slim portfolio of documentary evidence which proves that Captain Pouche was the pilot-in-command of Flight 001 on the day in question. The FAA also presents the testimony of a single witness, Inspector Dailey. Inspector Dailey competently and clearly recounts her receipt of an FAA Aviation Safety Hotline contact from the "undisclosed witness" who related to Inspector Dailey the facts and circumstances of the alleged violation by Captain Pouche. Without naming the informant and without disclosing facts which identify the informant by circumstance, Inspector Dailey's testimony, although uncorroborated, seems to contain enough detail to be credible. Getemoff makes the appropriate objections to her testimony including, continuing hearsay objections. All objections to Inspector Dailey's testimony are overruled. Attorney Getemoff leaps to his feet and presents a scathing cross-examination of Inspector Dailey. He makes several attempts to glean the name and identity of the Hotline Witness, but to no avail. Inspector Dailey sticks to her testimony which Getemoff is unable to crack. However, Inspector Dailey is unable to provide any testimony whatsoever concerning the Hotline Witness's credibility, mental capacity, recall, memory, and potential bias. Thereafter, the FAA rests its case.

Getemoff presents a well thought out and logical oral Motion to Dismiss the action on the following grounds: (1) Complainant has failed to present a prima facie case of violation; (2) the admission of the hearsay testimony effectively bars Respondent from his right to cross-examine the hotline witness; and (3) denial of Administrative Due Process. The ALJ patiently listens to the Motion but denies it, stating that, the Complainant's documentary and oral evidence establish a prima facie case of violation, that the admission of the Hotline Witness's report through the testimony of Inspector Dailey was within the bounds of the NTSB Rules of Practice and because the Respondent has been given notice of the action, the opportunity to cross-examine Inspector Dailey, and a fair hearing, there was no violation of administrative due process.

Respondent's case consists of the testimony of Captain Pouche and his first officer who recount the events of the flight in question. Their testimony is virtually identical and shows that a violation did not occur.

At the close of the hearing, the ALJ issues an Oral Initial Decision and Order affirming the FAA's Order of Suspension finding that the hearsay evidence of the Hotline Witness constituted and established a violation of the cited FAR's by a preponderance of substantial, reliable and probative evidence.

Issues

Captain Pouche wants to appeal to the full Board. What should he do ? How would you advise him? Are the ALJ's decision and order consistent with established rules, statutes, precedent and policy?

Current State of the Law

The situation provided above is admittedly extreme and unlikely. More often than not, hearsay evidence is corroborated by other direct and/or circumstantial evidence and is presented with the understanding that the hearsay declarant will be available to testify as well. However, as will be set forth below, a finding of violation in the these circumstances is possible under the current rubric of law in enforcement actions.

The FAA actively solicits and uses statements from FAA Aviation Safety Hotline Informants (see, attachment). On the surface, it appears that the hotline program is merely a protected method for concerned citizens to file grievances and complaints about air safety. In reality, we believe that the hotline program acts as a secret witness program for the general public and for those who may bear a grudge against a professional pilot, air carrier, or other person involved in general aviation. The FAA knows that it can multiply its forces using hotline tips and statements to initiate and/or prove enforcement actions without having to identify the informant and without having to present the informant for testimony. This forecloses a Respondent from making the normal tests of a witness's capacity and credibility. What would seem to be an unfair advantage for the FAA and a blatant denial of due process, is perfectly legal under current law.

Aviation enforcement actions are generally not criminal matters. There is no entitlement to the protection against self-incrimination nor to the Sixth Amendment right to confront witnesses, Administrator v. William Henry Smith, 2 N.T.S.B. 2527, EA-933, nn 7&10 (1976) 10 . Neither the Federal Rules of Evidence nor the Federal Rules of Civil Procedure are controlling in aviation enforcement actions, Administrator v. John Stanley Trier, 2 N.T.S.B. 379, 380, EA-483 (1973) and Administrator v. Otho Mowdite Cockes, 2 N.T.S.B. 1756, 1758-1759, EA-764 (1975). Other than in enforcement cases seeking civil penalties in excess of $50,000 (which must be litigated in Federal District Court), the sum total of the procedural and evidentiary rules for aviation enforcement actions are to be found in the Administrative Procedure Act [5 U.S.C. §§ 500 et. seq.] and in the Rules of Practice in Air Safety Proceedings [Title 49, Part 821] 11 .

10 However, in Administrator v. John M. Danielson, 3 N.T.S.B. 161, EA-971 (1977) evidence uncovered in the warrantless search of an aircraft was held to be inadmissible in an air safety proceeding.

11 For certain civil penalty actions (other than those against pilots, mechanics or flight engineers, or those in excess of $50,000), see, FAA Rules of Practice in Civil Penalty Actions (14 CFR Part 13).

Section 556, subdivision (d) of the Administrative Procedure Act ("APA") [5 U.S.C. §556(d)] provides in pertinent part:

(d) Except as otherwise provided by statute, the proponent of a rule or order has the burden of proof. Any oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial or unduly repetitious evidence. A sanction may not be imposed or rule or order issued except on consideration of the whole record or those parts thereof cited by a party and supported by and in accordance with the reliable, probative, and substantial evidence. ..... A party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. ....

From this statute we can glean the basic evidentiary and procedural framework for aviation enforcement actions: (1)The FAA as Complainant must carry the burden of proof since it is generally the proponent of an order; (2) The ALJ may receive any oral or documentary evidence so long as it is not irrelevant, immaterial or unduly repetitious; (3) The FAA's finding must be supported by reliable, probative and substantial evidence, and (4) A party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. Section 556(d) does not specifically address the issue of hearsay statements. However, it does recognize the entitlement of a respondent to cross-examine.

In addition to the APA , the NTSB Rules of Practice in Air Safety Proceedings govern hearings in aviation enforcement actions. Section 821.38 of the Rules provides the only evidentiary rules as follows:

§ 821.38 Evidence.
(a) Every party shall have the right to present a case-in-chief or defense by oral or documentary evidence in rebuttal, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. Hearsay evidence (including hearsay within hearsay where there are acceptable circumstantial indicia of trustworthiness) is admissible.
(b) All material and relevant evidence should be admitted, but a law judge may exclude unduly repetitious evidence pursuant to §556(d) of the Administrative Procedures Act. Any evidence that is offered and excluded may be described (via an "offer of proof"), and that description should be made a part of the record.

At first glance, Section 821.38 echos APA Section 556(d) with some subtle differences. The presentation of a case-in-chief, a defense and cross-examination been elevated to the level of a right. Furthermore, hearsay is expressly admissible and trustworthy double hearsay is equally admissible. This internal contradiction is patently obvious.

In our example above, how can Captain Pouche's right to cross-examine a witness against him be preserved while allowing the FAA Inspector to present the secret, hidden testimony of the Hotline Witness? It cannot. The FAA and many ALJ's will argue that Getemoff has the unfettered right to cross-examine Inspector Dailey and that the opportunity to do so meets both the letter and spirit of Section 821.38. However, Inspector Dailey is not really testifying. She is merely the mouthpiece for the unknown informant whose credibility, recall, memory and bias will never be tested on known to the trier of fact. How can that be due process? While this specific issue has never been addressed by the Board, there is ample case law to draw an inference as to how the Board might rule in such a situation.

In Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 206 (1938), the Supreme Court of the United States clearly stated the schism between administrative proceedings and other legal arenas as follows:

"the rules of evidence prevailing in courts of law and equity shall not be controlling. The obvious purpose of this and similar provisions is to free administrative boards from the compulsion of technical rules so that the mere admission of a matter which would be deemed incompetent in judicial proceedings would not invalidate the administrative order. ***desirable flexibility in administrative procedure does not go so far as to justify orders without a basis in evidence having rational probative force. Mere uncorroborated hearsay or rumor does not constitute substantial evidence." Id. at 217.

It appears that the rationale of the Court was to allow administrative boards' to operate unfettered by the strict rules of evidence and procedure. Those sentiments are obviously reflected in APA §556(d) and §821.28 of the Rules of Practice in Air Safety Proceedings and the NTSB has ruled in such a manner as well.

In Administrator v. Emory Ray Howell, 1 N.T.S.B. 943, 944, EA-186 (1970), the Board emphasized that the rules of evidence normally associated with criminal or civil proceedings do not apply to administrative proceedings. A footnote to Howell clearly stated the Board's attitude towards the admission of hearsay evidence.

"For example, hearsay evidence is admissible in administrative proceedings, with its hearsay quality bearing only on the weight to be accorded such evidence." Howell, p 944, fn10.

Respondent could argue the information transmitted to the FAA by the secret informant was double hearsay and therefore inadmissible.

In Administrator v. William Henry Smith, supra, the Board, acknowledged the admissibility of hearsay tempered only by the weight to be afforded it, but ruled that "double hearsay" was properly excluded. Similarly, in Administrator v. Rene Joseph Niolet, EA-1480, 3 N.T.S.B. 2846 (1980), following Smith, the Board ruled that the testimony of an FAA Inspector concerning registration information given to him by the FAA Air Certification Branch should have been excluded as inadmissible hearsay on hearsay, or "double hearsay."

Unfortunately, Smith was unanimously overruled in Administrator v. Gerald Keith Repacholi, EA-3888, (1993). Respondent in Repacholi, an Australian citizen, appealed the ALJ's affirmation of an order revoking his pilot's certificates and first class medical certificate for falsification of a medical certificate application. His appeal was made on several grounds including the ground that a Western Australia Police Department Court History 12 admitted into evidence was double hearsay. The Board stated:

"Respondent also asserts that Exhibit A-3 is inadmissible because it is double hearsay. We regard the proper approach to multiple hearsay as nearly identical to that applicable to hearsay itself. The law judge may weigh it, taking into account its remoteness and reliability. Where hearsay within hearsay carries with it sufficient indicia of trustworthiness and the interests of justice will best be served by admission of the statement into evidence, we do not see why it should be deemed inadmissible or insufficient to provide a substantive basis for a decision. We think that this is such a case, particularly when the evidence offered here was corroborated by information respondent himself supplied in his notice of appeal of the revocation order.

"We recognize that statements in prior Board decisions indicate that hearsay within hearsay is per se inadmissible in Board proceedings. We overrule all such holdings and statements and expressly overrule such holdings and statements in Administrator v. Smith, 2 NTSB 2527, 2528 (1976); and Administrator v. Niolet, 3 NTSB 2846, 2849 (1980)." Id. at p.2

12 The Court History apparently contained evidence of Australian convictions for unlawful assault, receiving stolen goods, firearm discharge causing public fear, and giving a false name.

The Board's decision in Repacholi is interesting because it blinks no eye at the admission of hearsay or at double hearsay. The Board seems to be saying that the ALJ, as the guardian at the gate, can discern good hearsay from bad hearsay. In addition, the Board did not flesh out what indicia of trustworthiness might be nor did it define what the interests of justice might be. Perhaps in future decisions, the Board will provide a more detailed analysis of those issues including a discussion of whose interests are to be protected, the Respondent's or the Government's.

Nonetheless the Repacholi decision has been used as the basis for the admission of a verbal confirmation to a testifying witness that an ATC notice had been given [Administrator v. McIntosh and Spriggs, EA-4174 (1994)] and a coroner's report for calculating an aircraft's gross weight [Administrator v. Daniel, EA-4346 (1995)].

At present, under the hearsay and double hearsay analyses, Captain Pouche will lose his appeal if the Board decides that the ALJ was justified in assigning significant weight to Inspector Dailey's rendition of the Hotline Witness's evidence.

Captain Pouche may also raise the issue of lack of cross-examination, i.e., even if the Hotline Witness statement is admissible, the ALJ improperly admitted it into evidence without cross-examination of the declarant. While §821.38 of the Rules of Practice in Air Safety Proceedings specifically provides for the right to conduct such cross-examination as may be required for a full and true disclosure of the facts, no rule specifically addresses a respondent's right to cross-examine a hearsay declarant.

A review of NTSB case law reveals that the Board has never specifically dealt with this issue, to wit: whether an evidentiary item that is hearsay or double hearsay is made inadmissible by reason of a failure to allow cross-examination of the hearsay declarant. However, prior NTSB decisions may provide clues of a potential Board ruling on this issue.

In Administrator v. J.F. Thomas, 2 N.T.S.B. 2461, EA-921 (1971), respondent sought a rehearing for the affirmation of an order of suspension suspending his ATP certificate for 20 days for violating an active runway and causing a departing flight to abort its take-off roll. During the hearing, respondent and his Second Officer both testified that the First Officer ("F.O.") had indicated that clearance to taxi had been received. The F.O.'s written account of the events was admitted into evidence, but the F.O. was excused from testifying by the Administrator.

In remanding the case for rehearing, the Board opined,

"... it is the Board's conclusion that a thorough and fair review of this matter and a proper resolution of the issues raised on appeal, is not possible without the inclusion in the record of the testimony of the first officer. Although a hearsay account of the first officer's version of events is currently in the record, his testimony under oath will allow him to be subjected to cross-examination and will permit the law judge to make a credibility assessment of his testimony ..." Id. at 2461-2462. (emphasis added.

It is not clear upon what basis the Board required the cross-examination of the hearsay declarant. There is no reference in the text of J.F. Thomas to the provisions of the NTSB's Rules of Practice or the APA. However, it is clear that the Board wanted the ALJ to hear the live testimony of the F.O. subject to cross-examination in order to make a proper credibility determination.

The respondent in Administrator v. Daniel B. Dickman, 5 N.T.S.B. 77, EA-2126 (1985), sought an appeal of the affirmation of an order revoking his inspection authorization for performing an annual inspection of an aircraft and returning it to service when it was not in an airworthy condition. Among his various grounds for appeal, respondent argued that a letter from a former owner of the aircraft regarding its condition was inadmissible. Although the Board did not reverse the findings of the ALJ, it did not foreclose the necessity of cross-examination of a hearsay declarant.

"Respondent has not presented any matter in his brief which would justify reversal or modification of the law judge's findings. The law judge did not, in our view, give undue weight to Exhibit A-20, a letter from the President of Mesa Aviation regarding the May, 1980, incident. The law judge, both at the time of the admission into evidence of that exhibit and when rendering his decision, emphasized the hearsay quality of the evidence plus the fact that the author of the letter was not available for cross examination (Tr.78 and Tr. 128)." (emphasis added.)

The law judge had stated,

"So, we have clearly, hearsay information and documentation on both sides here, and witnesses I would like to have seen. I would like to have also seen [...] testify for [...]. And, in the case of [...] and [...], I would like to have seen them both subject to cross examination to assist me in my credibility determinations, but I don't have that, so I've got to make my determination based on what's in front of me." Id. at 85.

Again, it is not clear what the Board is really saying in this case. It may be that the Board is showing its customary deference to the credibility and weight determinations of an ALJ, Administrator v. Peter M. Smith, 5 N.T.S.B. 1560, 1563 fn 14, EA-2438 (1986) or it may be that the Board is linking the admissibility of a hearsay declaration to the cross-examination of the declarant. The ALJ, on the other hand, had expressed his desire to test the credibility of the hearsay declarant in assigning the appropriate weight to the hearsay declaration. It is the weight and not the admissibility of the declaration that is being tested here.

Similarly, in Administrator v. Jack Jaax, 5 N.T.S.B. 1616, EA-2441 (1986), the Board noted that hearsay nature of a letter from an FAA aviation medical examiner, who did not testify, but assigned it no weight. But, in Administrator v. John F. Shepherd, 6 N.T.S.B. 1217, EA-2961 (1989), the Board noted that the presence of one of the two authors of a letter admitted into evidence and the inspector who requested the letter as sufficient to protect the respondent's rights.

The answer to the question posed above, is that the Board will most likely approve the admission of Inspector Dailey's testimony of the Hotline witness's statement. The issue really turns around the weight to be accorded to the statement. In that regard it is important to note that the Board traditionally affords great deference to the credibility and weight determinations of the ALJ's and, in the absence of an abuse of discretion, it is unlikely that the Board would disturb the findings in this case. After all, the Hotline Witness's statement indicated that the declarant could identify the aircraft, the day and time of the departure, and other circumstances which tended to indicate that he or she witnessed the aircraft's taxi movements and its departure. However, the declarant could just as easily be a person who holds some grudge against Captain Pouche and is familiar enough with aviation to make a seemingly accurate statement.

In a less extreme example, the ALJ would most likely look for corroboration of the Hotline Witness's statement and would have assigned little or no weight to the subject statement. Some will argue that the admission of such a statement with no weight attached to it is the functional equivalent of barring the statement from evidence. In general that may be true, but it is hard to believe that "no weight" hearsay in the form of an FAA Inspector's testimony will always be ignored by an ALJ.

Solutions

Although they do not control in Air Safety Proceedings, the Federal Rules of Evidence would offer a framework for deciding the admissibility of Inspector Dailey's testimony.

In general, hearsay is not admissible in federal courts.

Rule 802. Hearsay Rule.
Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress.

However, Rule 803 (Hearsay Exceptions; Availability of Declarant Immaterial.) contains twenty-three recognized exceptions to the general rule even though the declarant is available as a witness. Rule 804 (Hearsay Exceptions: Declarant Unavailable.) makes former testimony, statement under belief of impending death, statement against interest, and statement of personal or family history admissible when a declarant is not available to testify.

As we review and understand the above rules, in this case, the Hotline Witness's statement would remain an excluded hearsay statement. Arguably, the statement mat be admitted as either a State of Mind Exception [Rule 803(3)] or a Public Record Exception [Rule 803(8)]. In any case, the Federal Rules of Evidence would, at a minimum, provide a fair guideline for the treatment of hearsay evidence in Air Safety Proceedings.

In March of 1987, the National Transportation Safety Board Bar Association submitted a Petition for Rulemaking which sought to incorporate the Federal Rules of Evidence into the Board's Rules of Practice 13 . That Petition was denied.

13 The author of this article assisted in the preparation of the petition.

Summary

In all likelihood, Captain Pouche will lose his appeal to the NTSB and suffer the ordered suspension as well as the legal, insurance and employment issues that are sure to follow. He will have been accused of and found in violation of an FAR through the use of a secret witness even though he has been afforded the cornerstones of administrative due process, i.e., notice and a fair hearing. While the smooth administration of fact finding, federal agencies is a laudable goal, it appears, at least to this author, that there is considerable room for improvement in procedure policies to absolutely insure Constitutional Due Process, especially in situations where a pilot's livelihood is at stake.

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