Congress Passes Pilot’s Bill of Rights Granting Greater Procedural and Evidentiary Rights in Administrative Hearings

Approved unanimously by the U.S. Senate in June and passed by voice vote in the House of Representatives in July, the Pilot’s Bill of Rights is set to alter the way the Federal Aviation Administration (FAA) disciplines pilots.¹ If signed into law by President Obama, the Pilot’s Bill of Rights would strengthen procedural and evidentiary rights during FAA disciplinary proceedings.

The Pilot’s Bill of Rights was sponsored by Senator James Inhofe of Oklahoma after the FAA reviewed his airman’s certificate. The review of his certification was prompted when he improperly landed a private aircraft at a closed airport in October 2010. After experiencing the FAA disciplinary process firsthand, Sen. Inhofe proposed changes in the interests of transparency and fairness.

The most significant changes affect the procedures by which the FAA reviews pilot certifications. The Pilot’s Bill of Rights seeks to strengthen the procedural rights of pilots while under investigation under 49 U.S.C. Chapter 447 or, more specifically, section 44709. Section 44709 empowers the FAA to amend, modify, suspend, or revoke airman certificates for the purposes of “air safety” or general “public interest.” These terms are loosely defined, and the FAA has much discretion in deciding whether to suspend or revoke a certification as well as whether to impose other civil penalties or conditions. Although the Bill of Rights does not affect the FAA’s review or ultimate determination regarding an airman’s certificate, it does affect the procedures and evidentiary requirements of the FAA administrative proceedings.

The Pilot’s Bill of Rights seeks to improve the process by expediting the administrative process and by increasing access to evidence. It requires the FAA to provide “timely, written notification” to pilots when an investigation has been commenced. This notification must state the nature of the investigation, that a response is not required, that any response can be used adversely, and that any “air traffic data,” on which the FAA intends to rely, will be made available upon request.

The increased access to “air traffic data” is a significant change to current law. Under the Pilot’s Bill of Rights, the FAA must produce “any air traffic data” that would “facilitate the [pilot’s] ability to productively participate” in an investigatory proceeding at least thirty (30) days before any administrative action can proceed. The data that must be produced includes air traffic communication tapes, radar information, air traffic controller statements, flight data, and releasable portions of investigative reports. Although much of this data may have been discoverable under existing law, its disclosure is now a condition precedent that the FAA must meet prior to commencement of any proceedings.

In addition to the above procedural and evidentiary requirements, the Pilot’s Bill of Rights also broadens the procedures and standards for appeals. At present, the only avenue for appeal of an FAA determination is to the National Transportation Safety Board (NTSB), which grants the FAA’s determination deference under an “arbitrary” and “capricious” standard. However, under the new proposed law, the NTSB is no longer required to give the FAA deference and is free to review the entire record. The Bill of Rights also creates a statutory right to appeal the NTSB’s review to an appropriate Federal District Court and/or Court of Appeals.

In addition to the changes to administrative proceedings, the Pilot’s Bill of Rights also promotes reform in two other areas relevant to pilots.

First, it requires the FAA to improve the quality and accuracy in its issuance of Notices to Airmen (or NOTAMs). Namely, it directs the FAA in broad terms to reform the method it releases NOTAMs in order to reduce their volume and to make them “more specific and relevant to [an] airman’s route.” It also directs the FAA to create a central archive and database so that pilots can easily access, search, and filter relevant NOTAMs.

Second, it also directs the Government Accountability Office (GAO) to review FAA “medical certifications and the associated medical standards and forms.” A major concern with the current state of medical certifications is that they are often difficult to understand and the relevant forms are often completed incorrectly. Worryingly, any inaccuracies in these documents can lead to accusations of falsifying records. The Pilot’s Bill of Rights directs the GAO to make recommendations and the FAA to reform this process to minimize the potential for “misinterpretation or mistaken responses,” to ensure that pilots are treated consistently in the medical application process, and to ensure that pilots “understand the basis for determining medical qualifications.”

Although the Pilot’s Bill of Rights is not a sweeping reform of the FAA disciplinary process, it will provide some real improvements and it sets ambitious long term goals for the FAA that will ultimately improve the quality of information available to and from pilots.


¹ In the Senate: S. 3268, 112th Cong. (2012). In the House of Representatives: H.R. 3816, 112th Cong. (2012).