INFORMATIONAL MEMORANDUM ON EFFECT OF PILOT'S BILL OF RIGHTS ON THE CONDUCT OF AIR SAFETY ENFORCEMENT PROCEEDINGS BEFORE NTSB ADMINISTRATIVE LAW JUDGES

Public Law 112-153, termed the Pilot’s Bill of Rights (“PBR”) was signed into law on August 3, 2012. That new law applies to all cases before the National Transportation Safety Board involving reviews of actions of the Administrator of the Federal Aviation Administration that deny airman medical and other airman certification under 49 U.S.C. § 44703, or amend, modify, suspend or revoke airman certificates under 49 U.S.C. § 44709. It became effective immediately, and the purpose of this memorandum is to provide parties to such proceedings information about the PBR’s key provisions, as they pertain thereto.

Of special significance to such proceedings is a provision in the PBR that hearings in these matters “shall be conducted to the extent practicable, in accordance with the Federal Rules of Civil Procedure and the Federal Rules of Evidence.” This substantively affects both how evidence can be presented by the parties and admitted into the record by the judges, and how the discovery process is to be conducted.1

It must also be noted that the PBR strikes from 49 U.S.C. § 44703 language that, in cases involving airman certificate denials, the Board “is bound by all validly adopted interpretations of laws and regulations the Administrator carries out unless the Board finds an interpretation is arbitrary, capricious, or otherwise not according to law,” and, similarly, strikes from 49 U.S.C. §§ 44709 and 44710, language that, in cases involving amendments, modifications, suspensions or revocations of airman certificates, the Board “is bound by all validly adopted interpretations of laws and regulations the Administrator carries out and of written agency policy guidance available to the public relating to sanctions to be imposed under this section unless the Board finds an interpretation is arbitrary, capricious, or otherwise not according to law.” However, the parties should be aware that the Board is, nevertheless, bound to follow judicial precedent relating to deference, as set forth by the United States Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778 (1984), and Martin v. Occupational Safety and Health Review Commission, 499 U.S. 144, 111 S.Ct. 1171 (1991).

 

1 Prior to the enactment of the PBR, the Board’s Rules of Practice, under 49 C.F.R. § 821.19(c) provided that “[t]hose portions of the Federal Rules of Civil Procedure that pertain to depositions and discovery may be used as a general guide for discovery practice before the Board, where appropriate. The Federal Rules and the case law that construes them shall be considered by the Board as instructive, rather than controlling.”

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