H.R. 1846: FAA’S EMERGENCY REVOCATION OF FAA LICENSES
THURSDAY, AUGUST 6, 1998
U.S. House of Representatives, Subcommittee on Aviation, Committee on Transportation and Infrastructure, Washington, DC.
The subcommittee met, pursuant to notice, at 9:30 a.m., in Room 2167, Rayburn House Office Building, Hon. John J. Duncan (chairman of the subcommittee) presiding.
Mr. DUNCAN: We will go ahead and call the subcommittee to order.
First, I would like to say good morning and welcome to what I think should be a very interesting hearing. While this is not an issue that has received wide public attention, it is an issue that is very, very important to many in the aviation community across the country and certainly very important to those who have been affected by some of these actions. Today, we will hear from witnesses concerning the FAA’s policy on emergency revocation of certificates, and we will consider legislation, H.R. 1846, which would change the procedures for handling those emergency revocations.
Let me thank our distinguished colleague from Louisiana, Dr. Cooksey, a very active member of this subcommittee who is also a private pilot, for his interest in this matter and this hearing. And also I might mention my good friend, Senator Jim Inhofe, who has told me several times that in some ways he regrets moving to the Senate, because he would have been chairman of this subcommittee if he would have stayed here, and we’ve laughed about that, but he’s been very interested in this particular issue. I also want to thank our distinguished witnesses for being here with us this morning, especially those who have traveled at their own expense from as far away as Louisiana and California. So, the subcommittee very much appreciates all of you for being here with us.
I must say that last night when I was reading the memo prepared by the staff on this issue, I could not help but think about an agency like the Internal Revenue Service and the problems that agency has experienced, because of overzealous IRS agents and the harassment and poor treatment that many Americans have been subjected to by those employees which has received a great deal of attention in recent months here. And, now, we’re going to reform the entire IRS because of this and other mismanagement problems. It has been said power corrupts, and absolute power corrupts absolutely. I certainly do not want to imply that this is the case at the FAA, because the Federal Aviation Administration, in my opinion, does an outstanding job under very difficult circumstances, and I’ve also said on many occasions that I think Administrator Garvey is doing a tremendous job in leading the FAA.
The FAA defends its emergency revocation policy on the grounds that public safety is jeopardized if an unqualified person is allowed to continue operating while the revocation proceeding is pending. Many in the aviation community, particularly pilots and lawyers who represent those pilots, have criticized the emergency revocation procedure on the grounds that it presumes the person to be guilty. It denies the person due process and can destroy that person’s livelihood, and that’s the connection to the IRS, because we changed that presumption by putting the burden of proof on the IRS in those kinds of cases. But in this situation, the criticism is that this procedure presumes the person to be guilty which goes against traditional concepts of American justice.
Those who’ve been affected by this say that the FAA uses the emergency revocation procedure in order to pressure persons into voluntarily surrendering their certificates. Senator Inhofe who is, as I said, a former member of this subcommittee and a private pilot, has requested a General Accounting Office study to look into the FAA’s use of this procedure. We look forward to hearing from the GAO this morning in regard to their report, and we will also hear from the NTSB on this issue today as well.
Again, let me thank all the witnesses for being here with us. We look forward to today’s testimony. This is something that all of us need to learn more about, and I now yield to my good friend, the ranking member of the subcommittee, Mr. Lipinski.
Mr. LIPINSKI: Thank you, Mr. Chairman, and just for the record, I want to say that I’m happy that my good friend, Jim Inhofe ran for the Senate and you’re the chairman of this subcommittee.
I thank you, Mr. Chairman, also, for holding this hearing on the Federal Aviation Administration’s use of emergency orders to revoke or suspend operating certificates. An emergency order revoking an operating certificate is the most severe enforcement action that the FAA can take against a certificate holder. However, emergency orders are necessary when continued operation by a certificate holder threatens air safety. Unfortunately, as we will hear today, it appears that the FAA may have abused its emergency powers in some cases, negatively affecting the lives and reputations of innocent men and women. Any abuse of power is unwarranted and should not be tolerated. However, it should be noted that just because the number of emergency enforcement cases have increased in recent years, it does not necessarily mean that there has also been an increase in the abuse of power. It may simply indicate—and I hope that it does—that the FAA has become more diligent in its safety mission.
This is a very sensitive issue that needs close and careful review. Innocent individuals should not have to suffer because of an arbitrary Government action. At the same time, we should not rush into anything that may negatively affect the FAA’s safety mission.
Mr. Chairman, I look forward to the information that we’re going to get from the various witnesses today, and I yield back the balance of my time.
Mr. DUNCAN: Thank you very much. Mr. Boswell.
Mr. BOSWELL: No statement at this time, thank you.
Mr. DUNCAN: All right. Thank you very much. The first panel that we have with us are, first, Mr. Frank Anders of Lafayette, Louisiana, who is a corporate contract pilot; Mr. Theodore, Ted, J. Stewart, of Orange, California, who is a pilot with American Airlines, and Mr. F.T. Wachendorfer, Jr., president of Chaparral, Inc., doing business as Ameristar Jet Charter, Inc.
Generally, we proceed with the hearing in the order of the witnesses that are listed on the call of the hearing, however, Mr. Anders was listed second, but I’ve got a note with an arrow that Mr. Anders and Mr. Stewart request that Mr. Anders go first and Mr. Stewart second, so if that’s what the witnesses wish, that’s what we’ll do, and Mr. Anders, we’ll proceed with your statement at this time.
TESTIMONY OF FRANK ANDERS, LAFAYETTE, LA, CORPORATE CONTRACT PILOT; THEODORE, (TED) J. STEWART, ORANGE, CA, PILOT, AMERICAN AIRLINES; AND F.T. WACHENDORFER, JR., PRESIDENT, CHAPARALL, INC., DBA AMERISTAR JET CHARTER, INC
Mr. ANDERS: Thank you for inviting me to testify before the Aviation Subcommittee concerning this important matter. In the spring of 1995, an unprecedented abuse of the awesome power of the FAA was perpetrated on 29 men all across America. Mr. Tony Broderick, Associate Administrator for Regulation and Certification, made a public announcement that his investigators had uncovered a scheme of flight inspectors and examiners to issue falsified aircraft type ratings. I quote Mr. Broderick’s comments to the Washington Post, ”There is not a shred of evidence that any of the airmen who received questionable ratings used them to fly in air carrier operations. Safety was not compromised.” He said the problem came to light when an inspector in the FAA’s Seattle office was noted taking a class for an aircraft type certification in another region of the country, and that seemed odd to his manager. He went on to state, ”Overall, we have taken the harshest action we could take within our authority.” That was an understatement. The actions which followed the incident in Seattle resulted in the emergency revocation of 15 pilot’s certificates even though there was no accident, incident, or unsafe act alleged to have occurred. In many cases, when the investigator went to the local FSDO’s, they were told that the men in question were felt by their superiors to be carefully monitored with no sign of impropriety. The regional investigators ignored that first-hand information and continued their pursuit.
I endured 16 months of character assassination and constant threat of emergency revocation, but I was fortunate. I didn’t depend on my pilot’s certification totally for my livelihood and could afford legal representation. I began to learn the names of many of the other accused pilots and called them to try to make some sense of this madness. The story was the same wherever I called. Emergency revocations simultaneous with or immediately followed by termination of employment. In several cases, false accusations were made to employers to evoke termination.
How and why could such Gestapo-style tactics be used by an agency of the United States Government? Remember the inspector in Seattle? He had the misfortune of first warning and finally terminating his secretary for not doing her job. It seems he was the only one in the office who didn’t know she was having an adulterous affair with his supervisor. Prior to his secretary’s termination, he received the highest evaluations. Following it, the witch hunt began. Brigadiere General Errol Van Eaton became a lightening rod. His every activity was secretly viewed under a microscope. Anyone with whom he had recently flown became suspect, and he loved to fly vintage aircraft. The vintage and warbird community is a small one. Soon, a pyramid of names began to appear to the conspiracy-minded inspector assigned to investigate General Van Eaton’s every move. Eager to please his boss, Mr. David Miller of the Seattle FSDO wove his observations into a scheme and presented them to his boss who passed them to Mr. Broderick. It may just be a coincidence that Mr. Broderick’s press releases preceded the DOTIG’s allegation of Mr. Broderick’s involvement in a bogus aircraft parts cover-up, but I doubt it. Could such a thing happen in the United States? It did.
Many honorable pilots with long and distinguished careers had their only source of income terminated by a massive, nationwide abuse of the emergency revocation power without evidence of hazard to aviation safety and without due process. Unable to afford legal representation, some never recovered. How could this happen? Because in an agency with this kind of power, there are upwardly mobile bureaucrats eager to please their superiors who condemned us from inside the beltway, and people that high up just couldn’t be wrong, could they? Well, they were.
Since Mr. Broderick loosed the hounds, they have never been recalled. This so-called investigation is still going on as we speak. Now, many careers and several lives have been permanently damaged, and you can’t do anything to change that. You can, however, assure that it will never happen again by creating responsible oversight of an agency proven to employ many individuals so irresponsible as to use the emergency revocation power with reckless disregard of the irreparable damage to people’s lives done when it is employed with no evidence of compromise to aviation safety. Thank you.
Mr. DUNCAN: Thank you very much, Mr. Anders.
Mr. STEWART: First, thanks, Chairman Duncan, for inviting me from California today. My name is Ted J. Stewart. I’ve been employed by American Airlines as a pilot for 15 years and presently serve as a Boeing 767 captain. I’ve also been an FAA designated pilot examiner specializing in vintage and warbird aircraft for 10 years. I am not now receiving nor have I ever received any Government grants.
In January of 1995, the FAA notified me by certified mail that my examining designation was being suspended. The reason given was that they were conducting an investigation into the possibility that I had received improperly issued ratings. That so-called investigation and its result and impact went on for a full 18 months. The next contact I received was a request that I provide my log books and or other reliable records for inspection. I cooperated fully and provided to the FAA all of the log books and records in my possession. Despite this cooperation, on May 16, 1995, I was issued an emergency revocation of all my airmen certificates. This included not only my pilot’s license but also my flight and ground instructor, flight engineer, dispatcher and mechanic ratings as well.
This emergency revocation was issued without warning, and the ensuing impact to my family and professional career was severe. Please understand that at no time prior to being unjustly stripped of my livelihood did the FAA attempt to discuss any of the allegations made in their emergency order. The only contact I received was the aforementioned request for log books. I was then forced to proceed with a full hearing before an NTSB administrative law judge, because all attempts to reason with the FAA attorney, Ms. Naomi Tsuda-Dawson, were unsuccessful. On June 19, 1995, NTSB Administrative Law Judge William R. Mullins ruled in my favor on all counts. The FAA then appealed this ruling as is their common practice to inflict an even greater financial burden and exert maximum emotional distress upon the airman. On July 28, 1995, the full NTSB upheld Judge Mullins decision, and my pilot certificates along with the livelihood they provided me were returned, only temporarily, however. This temporary reprieve lasted just 1 short year.
Now, for the harassment. Ever since these initial victories, the FAA has subjected me to the closest possible scrutiny. While there has never been any complaints of any kind registered against me or my flying, the FAA persisted with their efforts to harass me. The attorney that I retained, Mr. Steven Graff, at the beginning of this process, has received numerous phone calls and correspondence from various FAA regions pertaining to other ratings that I either received or had issued to other pilots. In fact, the FAA southern region attacked my father, so as to discredit any future testimony on my behalf in the same manner detailed above with emergency revocation of all his certificates and was again embarrassed by the outcome: full exoneration and reinstatement.
On another occasion, I was advised to again meet with FAA Western-Pacific Region Attorney Tsuda-Dawson to explain and provide evidence on another rating issued by me or face their reprisal. After this meeting, even though I cooperated willingly and provided indisputable proof, the FAA still would not even give the courtesy of advising me that this matter was closed. They merely moved on to the next rating they wished to use to intimidate and harass.
This now brings me to the vendetta portion of this letter. On June 20, 1996, I received another emergency revocation of all my airman certificates. On June 26, 1996, I received an amended emergency revocation order adding an additional charge. While the first allegation was based on a rating I had received some 3 years prior, the second allegation dated back over 17.5 years to the early days of my flying career. As an aside, I should comment that both improprieties alleged in this second emergency revocation predated those in the first go-round. I was once again guilty in the FAA’s eyes, and my ability to earn a living and fund my defense was summarily stripped away without any due process. Again, I was forced to undertake a truly uphill battle on a severely tilted playing field to save my career.
On August 30, 1996, after enduring the entire process a second time with appeals by both sides, the FAA and myself, the full NTSB again ruled in my favor and returned to me my career. It is very easy to deduce that this was retribution, plain and simple. As the NTSB said in their ruling, and I quote, ”Subjecting an airman in the space of just 1 year to two emergency revocations and thus to the financial and other burdens associated with an additional 60-day grounding without prior notice and hearing constitutes and abusive and unprincipled discharge of their extraordinary power.”
The FAA appeared to have a personal vendetta against me because of my past victories. They applied their brand of selective enforcement and severely abused their emergency authority. They must not be permitted to arbitrarily take a pilot’s livelihood and career away from him. How can something that happened over 17 years ago or even 3 years ago in an airplane that was never utilized in civilian transportation constitute, quote, ”an emergency with respect to safety in civil air commerce?” Importantly, these are the very words the FAA used in both of their revocation orders against me. It should be noted that were it not for my ever-supportive employer and one rare individual at the top of my company’s flight department, my career and all that it encompasses would surely have been finished.
To summarize, I was twice accused unjustly; twice convicted, and then twice sentenced to the harshest possible punishment, all in one motion by the FAA and without due process. I’m absolutely astounded that any agency, Federal or otherwise, has the unchecked power to be judge, jury, and executioner. This flies in the very face of the United States Constitution and bill of rights as I know them. Gone unchecked, or specifically, unchanged, this power or, more importantly, the abuse of this power could severely endanger the basic rights of all pilots throughout this country. We airmen, as a group, from the basic recreational pilot up through the professional level are calling upon you to show leadership from the top. To do nothing, once informed on these issues, would be to condone the FAA’s actions.
In closing, there is a fundamental flaw in due process with respect to the FAA’s current emergency revocation abilities. As a widebody captain for this Nation’s leading airline, do I agree the FAA needs this sort of emergency power? Yes, I do. But do I agree they need this power in its current unrestricted, unchecked, no-recourse format? Absolutely not. Gentlemen and ladies, we need your help desperately. Thank you.
Mr. DUNCAN: Thank you very much, Mr. Stewart.
Next, we’ll hear from Mr. Wachendorfer.
Mr. WACHENDORFER: Mr. Chairman and members of the subcommittee, I appreciate the opportunity to speak with you this morning. My name is Tom Wachendorfer. I am president of Ameristar Jet Charter. Ameristar Jet Charter is an air carrier authorized under title 14, part 135 of the Federal aviation regulations. Ameristar operates 9 Falcon 20 aircraft, 16 Learjet 24/25 series aircraft, and several other turbo prop aircraft. Currently, Ameristar employs approximately 140 individuals including pilots, mechanics, flight dispatchers, and other administrative personnel. Most of Ameristar flights involve the delivery of inventory for the automotive industry on ”just in time” basis. Ameristar customers include General Motors, Ford Motor Company, Chrysler Corporation, United Parcel Service, Federal Express, DHL, Emery, and others. Additionally, Ameristar provides air ambulance and organ transport air transportation. Ameristar sales for calendar year 1997 exceeded $30 million. Offices and/or crew bases are located in Dallas, Lubbock, and El Paso, Texas, as well as Nashville, Tennessee and Detroit Michigan.
What originally began as a one-man, one-aircraft operation in 1987 has grown into one of the largest on-demand air cargo operations in the United States. Although most of Ameristar operations are primarily in the United States, Canada, and Mexico, we operate in other parts of the world as well.
On or about August 8, 1994, the Federal Aviation Administration conducted a regional aviation inspection program, also known as RASIP, on our operations. After a 5-month intensive inspection of all facets of Ameristar’s operations, the FAA identified 68 items of concern. In an effort to accommodate the FAA’s concerns, Ameristar agreed to send particular pilots through simulator-based training even though pilots were properly trained in accordance with Ameristar’s FAA-approved training manual. Although these pilots were properly trained and certified, Ameristar incurred expenses in excess of $100,000 in training costs to alleviate any concerns the FAA may have had. This agreement for training was reached in January, 1995 between Ameristar and the FAA. Despite Ameristar’s full compliance with this agreement on training as specifically requested by the FAA, Ameristar’s air carrier certificate was revoked on an emergency basis on or about April 18, 1995. This revocation occurred several months after Ameristar successfully completed the training in accordance with the agreement between Ameristar and the FAA. The FAA’s conduct was clearly arbitrary and capricious with its actions with Ameristar.
Ameristar contested the revocation of its air carrier certificate as it had fully complied with not only the FAA regulations generally but also to the FAA’s specific request. On or about July 17,1995, a trial on the merits of the FAA’s case was held before the National Transportation Safety Board Administrative Law Judge. The FAA rested its case on July 20th, after a full 3 days of testimony. Prior to the commencement of the Ameristar’s presentation of its evidence and witnesses, the Administrative Law Judge called counsel for Ameristar and the FAA in chambers. The judge informed the counsel that there was no basis for the revocation before the court. As a result, the FAA immediately entered into negotiations with Ameristar for return of its operating certificate. Shortly thereafter, the FAA returned Ameristar’s certificate.
Although Ameristar preferred to have its case fully adjudicated by the court, the FAA pressured Ameristar into a negotiated settlement by threatening to appeal the judgment of the court, further delaying the return of Ameristar’s operating certificate during the 30-day appeal process. Ameristar’s acceptance of the negotiated settlement was based upon economic reasons.
If the protection of H.R. 1846 had been in place in 1995, Ameristar and its employees would not have had to endure the emotional, financial ramifications of the FAA’s arbitrary action. Ameristar did not lay off any personnel during the revocation period as the revocation was groundless. The ultimate financial cost to Ameristar exceeded $3 million.
The FAA is made up of many qualified and committed individuals who serve the public safety interests. Ameristar recognizes the need to grant the FAA with certain emergency revocation powers when there is truly an imminent threat to public safety. However, these powers should not be granted to the FAA without adequate due process and safeguards against abuse. H.R. 1846 is an attempt to implement proper safeguards without impeding the FAA’s to obtain an emergency revocation when warranted. If H.R. 1846 had been in place in 1995, Ameristar would have had an immediate opportunity to oppose an insupportable revocation. Thank you.
Mr. DUNCAN: Thank you, Mr. Wachendorfer. Mr. Wachendorfer, of the $3 million that you say this case cost Ameristar, how much were you able to recover?
Mr. WACHENDORFER: None.
Mr. DUNCAN: You weren’t able to recover any of it? Were either of you other gentlemen able to recover any of your costs?
Mr. STEWART: My recovery is still pending on the second go-round. The first go-round, I recovered approximately 60 percent. He mentioned $3 million, but initially, over a $100,000 figure. I, myself, have spent over six figures defending myself.
Mr. ANDERS: No, sir.
Mr. DUNCAN: Do you have an estimate of how much your situation—your case has cost you, Mr. Anders?
Mr. ANDERS: Yes, sir. In attorney fees alone, it was over $10,000 and lost revenue probably equal to that much.
Mr. DUNCAN: Mr. Stewart or Mr. Wachendorfer, you heard Mr. Anders use the term Gestapo tactics. Do you all feel that that’s what you were subjected to also?
Mr. WACHENDORFER: Absolutely.
Mr. STEWART: I would say definitely anytime somebody can come in and take your livelihood away, take your career away, and you don’t know it’s coming, that’s pretty close to the definition of Gestapo that I would—I would say that’s accurate, yes.
Mr. DUNCAN: You do know that, I’m sure that the GAO report has said that the FAA, in the end, has lost on only about 1 percent of these cases; only about 1 percent of them are overturned on appeal. Most people are going to say that a 99 percent record is a pretty good record. What do you have to say about that?
Mr. STEWART: I wouldn’t mind starting on that one.
Mr. DUNCAN: Sure, go ahead.
Mr. ANDERS: Go ahead.
Mr. STEWART: First of all, the average airman cannot—if he makes a living with his pilot’s license—which most pilots do—once that ability to earn an income has been summarily stripped by an emergency revocation—I’ll use the 99 percent figure you just used—most of those fellows or gals lose their job, and the FAA knows this. They know that they have just effectively stripped the ability for that airman to fund any type of a protracted legal dispute against them. As I said, I’ve spent over six figures. I don’t know about most airmen, but some, perhaps, don’t have those type of funds available. So, the FAA merely wins by default most of the time. If you take them to court, you face, as I said, a severely tilted playing field and an uphill battle. Typically, if you had the initial funds to start the fight, because it’s so lengthy, you typically don’t have the funds to finish the fight, and you’re normally outgunned. That, in my opinion, is why their record of 99 percent is there. On the surface, it looks like—
Mr. DUNCAN: You’re saying most of the people just don’t have the funds to take on the Federal Government?
Mr. STEWART: Yes, sir, and if they did, they have to weigh their situation—their wives and their families. That income that their going to spend to defend themselves, they have to weigh that against fighting this battle, and, again, most of them don’t have deep enough pockets to continue this fight even if they should start it.
Mr. DUNCAN: Do both of you gentlemen agree with Mr. Stewart?
Mr. ANDERS: May I speak to that, Mr. Chairman?
Mr. DUNCAN: Yes, sir, go ahead.
Mr. ANDERS: Contrary to Mr. Broderick’s comments, the 29 men in question here did not know each other. We came to know each other, of course, because we were all accused. I called many of these people, because it was clear to me that we shared a common interest, and I have said, as stated in my testimony here, the sworn testimony and sworn affidavits from 20 people who witnessed these Gestapo-style tactics, and each of them spoke just as Captain Stewart did of the tremendous financial burden when they’re fighting a Government that has unlimited resources and unlimited time, and they have just had their livelihood stripped. So, they have to worry about feeding their wives and children. They can’t think about hiring the Nation’s best attorney, and if you read these sworn statements, which I beg you to do, each one of them says that this was the major consideration; that they just had to give up the fight. It wasn’t because they weren’t innocent; it was because they couldn’t afford to take the fight to the level that Captain Stewart was able to take it to, who, by the way, had to mortgage his house to do that.
Mr. DUNCAN: Mr. Wachendorfer?
Mr. WACHENDORFER: Well, I just want to reiterate what Mr. Stewart and Mr. Anders said. One of the other issues, I think, is if you do prevail, then the FAA comes back like they did with Mr. Stewart with another revocation. So, it’s essentially—it can be an endless proposition.
Mr. DUNCAN: The other side of this, the FAA and some people say that you have recourse in that you can go into Federal court and get a ruling within just a few days. Can you do that, and do you gentlemen—I assume that you think you could get more favorable rulings from NTSB or quicker rulings?
Mr. STEWART: Chairman Duncan, the first part of your statement is accurate. You can go into Federal court, and I did after the first go-round. When they did it again, I went to the Ninth Circuit Federal Court of Appeals, and while they agreed to hear the case, ultimately, the case was adjudicated within the current time frame of several months. It was several months after before the Ninth Circuit on the fact that they would hear the case and gave us a briefing schedule. So, the appeal to the Federal level, you can do that as quickly as you want, but they don’t move very quickly, and, in the meantime, you’re without an income, perhaps, without a career. And, as I said, most of the time they win by default, because most folks can’t do that.
Mr. DUNCAN: How did American Airlines react to your situation? What did they do?
Mr. STEWART: Well, as I said, I have an ever-supportive employer, and it went all the way up, ultimately, to the very top of the company’s flight department, and this individual is a very rare type of individual, and he saw fit—based on the input he gathered from my various superiors and himself and input he received from people in his capacity and other management capacities in other airlines through the company who have ran across me through the years—he saw fit, initially, to back somebody that he had no personal contact with. Ultimately, I’ve become well acquainted, as you might imagine, with this guy, and the second time around there wasn’t much discussion; he continued to back me.
But this type of thing is rare, very rare, in our business, and most of the pilots that this would happen to who received an emergency revocation would, and did, as Mr. Anders said, lose their jobs, lose their livelihood, and that effectively strips them of their ability to fund a defense against the FAA, and it’s quite costly. And, as we all know, some defenses are better than others, but just to get to that point is difficult and sometimes untenable for most pilots.
Mr. DUNCAN: I’ve run well over my time. I’ll turn now to Mr. Lipinski.
Mr. LIPINSKI: Thank you, Mr. Chairman. I’d like to go back to the court of appeals. Mr. Stewart, you’re the only one that went to the court of appeals. Is that correct?
Mr. STEWART: I did go to the court of appeals. I don’t know—I have no knowledge of whether anybody did so.
Mr. LIPINSKI: Did either one of you gentlemen go to the—well, first, Mr. Anders, you never actually had your—
Mr. ANDERS: No, sir.
Mr. LIPINSKI: No, okay.
Mr. WACHENDORFER: It’s my understanding that my case was processed through the administrative law judge and on to the appeal process through the NTSB before an appeal court would even rule on my case. So, I don’t think it really was an option.
Mr. LIPINSKI: Well, it’s my understanding that you got to the appeals court to, I would guess, stay the—I’ll get right or I’ll just change words—stay the emergency nature of the situation, whereby the FAA couldn’t impose this penalty upon you. Is that correct?
Mr. STEWART: That is correct. When you go to the Federal appeals court, as I have—as it’s been explained to me, you merely go to stay the emergency, which means then you proceed through the process, but you keep your employment, you keep your certificate. The bill as it’s currently proposed allows an avenue for just that. It allows for the airman or the corporation to have an immediate appeal to the NTSB within a couple of days and for them to then render a ruling on the emergency nature of this revocation within a couple days thereafter. This allows or would allow, if implemented, the pilot to retain his employment.
Mr. LIPINSKI: Well, I thought the existing process, if you went to the court of appeals and the court of appeals said that the FAA could not impose this upon you in an emergency nature, then you would keep your certificate, and you would be able to work, and it would be pending before the National Transportation Safety Board, and they would have approximately 60 days to hear your case and rule upon it.
Mr. STEWART: Yes, sir, that’s correct—perhaps I was unclear. That is accurate, and I thought that’s what I said.
Mr. LIPINSKI: And that’s the case at the present time.
Mr. STEWART: I’m sorry, say it again.
Mr. LIPINSKI: That is the law at the present time.
Mr. STEWART: The law at the present time is just that, but the court of appeals doesn’t rule quickly enough to stay within even the 60-day time frame, let alone a few weeks or a few day timeframe. They don’t rule quickly enough. You don’t have an avenue to go immediately to the Federal court of appeals and have them rule quickly enough. You’re outside the 60-day window—as the appeal process is currently structured—you’re outside that when you go to the Federal court; at least I was. They ruled many, many months after that 60-day window.
Mr. LIPINSKI: And you did appeal based upon the emergency nature of—
Mr. STEWART: That is correct. That’s the only thing we appealed was the emergency nature of the revocation. They agreed to hear it, but they agreed to hear it well outside that 60-day window.
Mr. LIPINSKI: And, of course, unfortunately, then you were not able to fly, because your certificate had been revoked.
Mr. STEWART: That’s correct. Most pilots face termination when they can’t do their job.
Mr. LIPINSKI: Mr. Chairman, for now, that’s all I have, but I’d like to come back.
Mr. DUNCAN: All right, thank you very much. Mr. Blunt.
Mr. BLUNT: Mr. Chairman, I don’t have any questions. I do appreciate this panel, and the stories they’re telling us. I look forward to being able to follow up with the next panel, but I believe you and Mr. Lipinski have asked all the questions that I had.
Mr. DUNCAN: All right, thank you very much. Ms. Johnson.
Ms. JOHNSON: Thank you, Mr. Chairman. Perhaps, I’m a little lost here, and I’m very sorry for being late, but I read your testimony, and I’m speaking now specifically to Mr. Stewart. What I don’t see is the reason that was given to you.
Mr. STEWART: The reason given to me for the emergency revocations?
Ms. JOHNSON: Yes.
Mr. STEWART: Well, initially, they need no reason. They—
Ms. JOHNSON: They might not, but did they give you a reason?
Mr. STEWART: Their reason is—and I believe I quoted—”An emergency exists with respect to safety in civil air commerce. Therefore, we are going to emergency revoke your pilot’s license.” They had a list of what they thought were improprieties and ratings I had either received or issued. Ultimately, they didn’t prevail, but they can basically be the judge, the jury, and they can accuse you; they can then judge you; they can then punish you to the extreme to the extent where you lose your career, and then you have to work through the process. It’s obviously counter-productive for the airman. If he’s lost his job, assuming he has job that he enjoys, to work through this process, spend—several of these people that Mr. Anders mentioned were—one individual I’m familiar with was retired.
Ms. JOHNSON: Excuse me for a just a minute. I don’t want you to use up all of my time with that.
Mr. STEWART: I’m sorry.
Ms. JOHNSON: I understand the pain of financially, emotionally of losing your permit to fly. I also understand the consumer side of feeling very strongly about safety. I was trying to at least give a kind of balanced type of situation here of reasons given even if you prevail. You don’t feel there is a legitimate reason or you were not given a legitimate reason or any chance of responding at that time?
Mr. STEWART: Well, the point I guess that we’re all trying to make is that whatever the reasons, whether they’re legitimate or not, the FAA places them upon you, strips you, before you have any due process. Now, I understand the consumer side of things as well doing what I do for a living. I would say the FAA needs this type of power. There has been a few incidents or accidents that we all are aware of, and we don’t need to mention today, but doing what I do for a living, it’s necessary to have this to protect the flying public. In my case, for example, the second go-round had to do with an airplane that the flying public has never flown on. It was a military airplane; it only had two seats in it. It never carried anybody for civil transportation. It never carried, quote, unquote, ”a passenger.”
Ms. JOHNSON: Are standards different for that situation?
Mr. STEWART: Pardon me?
Ms. JOHNSON: Are standards different?
Mr. STEWART: Well, standards are different. You mentioned your concern for the consumer, or what have you. The consumer never flew on that airplane, yet an emergency seemed to exist. I hadn’t flown the airplane for a couple of years. They went back 3 years and decided there was a problem. They then went back—I’m the most investigated airman in history—they went back all the way to the beginning of my flying career. Now, where is the emergency nature—and the Board ultimately cited that in their decision—where is the emergency nature or the threat to safety for the flying public when the airplane didn’t have anything to do with flying the public around?
Ms. JOHNSON: For that particular plane?
Mr. STEWART: Yes, ma’am.
Ms. JOHNSON: That’s not transferrable, that if you would do something that appeared to be unsafe at one plane, it would not be transferred to a different type of plane?
Mr. STEWART: Well, your pilot’s license allows you to fly various planes, assuming you’re qualified in them. But this particular airplane—back to your original comment about what did they list or what did they say to start this—this particular airplane, the quote they used was a problem with safety and civil air commerce, and this airplane was not in air commerce flying the public around airplane. Yet, they used that to do the second emergency revocation. They, then, went back 17 years and used—we don’t want to try the case again here, but these types of things had nothing to do with safety and civil air transportation. The second time around, I just think it was they’re used to not losing, as Chairman Duncan stated—99 percent is probably an accurate figure—and when they lost the first time, they didn’t like it, so they did it again, and I think we—there’s room, there’s a need for this emergency revocation power, obviously, but unchecked in its current form without any recourse to the individual that they use it upon, it’s not right. If you want to talk fair, it’s certainly not fair.
Ms. JOHNSON: Thank you.
Mr. STEWART: Yes, ma’am.
Mr. DUNCAN: Thank you, Ms. Johnson. Dr. Cooksey.
Mr. COOKSEY: Thank you, Mr. Chairman. I thank you for having this hearing. A few questions—I’m going to ask the same question of all of you—how many of you were involved in flying one of the warbirds, and was that the problem, Dr. Anders?
Mr. ANDERS: Yes, that was the key that they used; that was what Mr. Broderick and Mr. Miller misunderstood. They were looking through temporary pilot certificates and seeing names of these guys who flew with General Van Eaton, and they were all on warbird certificates like Ted was talking about—a TBM, B17, B24s, B25s—these are very rare airplanes. In my case, I had the examining authority for the Lockheed 18 Loadstar, I was the only examiner in the United States who could give check rides in that airplane, so if you saw someone’s temporary certificate who had been licensed in that airplane, it was going to have my name on it, and that’s how they put all this conspiracy business together because the same names kept popping up; they had to. If you’re the only guy—Ted Stewart was the only examiner in Martin 404’s, and his was the only Martin 404 in the United States that you could train in and obtain that type certificate. So, you’re going to see his name on everybody’s certificate; that’s the only way it can be done. And I might add that the FAA came to us, each of us who were accused here, and asked us to be examiners, because they didn’t have the expertise in these aircraft and they knew it, and they knew that they would be creating a much greater hazard, which they did, by revoking the examining privileges of all these guys who were warbird examiners. Now, they have no one out there who’s qualified.
Mr. COOKSEY: So, all of you—most of these planes were World War II vintage airplanes that you either owned or you were the sole person that was certified or a handful of people that were certified to give check rides in these planes. That’s correct?
Mr. ANDERS: Yes, sir, that is correct.
Mr. COOKSEY: Okay. Mr. Stewart, what was the plane you were flying?
Mr. STEWART: I’m sorry.
Mr. COOKSEY: What was the plane you were flying? The warbird.
Mr. STEWART: The warbird was the TBM.
Mr. COOKSEY: That’s a Navy——
Mr. STEWART: That’s a President George Bush, single engine torpedo bomber, World War II vintage.
Mr. COOKSEY: Good. Mr. Wachendorfer, were you or any of your pilots involved with the warbirds?
Mr. WACHENDORFER: No, sir.
Mr. COOKSEY: Okay. So, that seems to be what precipitated this problem is that there are a handful of pilots certified to fly these World War II vintage planes, and there was some question about how you were signing off people to be certified—type-rated, I should say.
Mr. ANDERS: That’s what this particular witch hunt was about. Mr. Broderick made a press release to the Washington Post that that was the case, and he spoke of the warbirds and he named them—the B17, the B25—and he also said safety was not compromised, and he bragged about overall we have taken the harshest actions we could take within our authority. Well, that’s true, they did, and he acknowledges it that safety was never compromised.
Mr. COOKSEY: Okay, thank you. Mr. Stewart, where does your father live. I noticed he was in the southern region.
Mr. STEWART: He has a home in Chattanooga, Tennessee.
Mr. COOKSEY: I see.
Mr. STEWART: He also has a place in southern California.
Mr. COOKSEY: Was he a World War II pilot?
Mr. STEWART: He was not a World War II pilot.
Mr. COOKSEY: But what was he flying, a warbird?
Mr. STEWART: You mean, that invoked the FAA’s ire?
Mr. COOKSEY: Yes.
Mr. STEWART: It was not anything to do with a warbird, I might add, and Mr. Wachendorfer, obviously, was not involved in the warbird community, and my first go-round with the FAA did not involve warbird aircraft. The aircraft with my father did not involve warbird aircraft.
Mr. COOKSEY: Question: just what occurred 17.5 years ago that raised their ire?
Mr. STEWART: As I’ve said, I’m well investigated by the FAA. When they lost the first time, they feverishly started working, as I mentioned in my statement, my attorney received many contacts. We met with them on one occasion; discussed a couple of things in between these first—during the time frame in between the 1 year, in between the first and the second. We discussed several things. They then—I’m sorry I’ve lost my train of thought.
Mr. COOKSEY: My question was what was the incident that occurred 17.5 years ago?
Mr. STEWART: Oh, yes, 17.5 years ago. They went back and investigated all the way back to the beginning days of my flying career and found an error in flight time calculation that they purported was purposely done. Obviously, again, this isn’t the forum to debate; it’s been debated and been ruled on, but it had also nothing to do——
Mr. COOKSEY: With this emergency revocation.
Mr. STEWART:——with an emergency revocation. In other words, my qualifications today—I don’t know how good or bad or indifferent I was back then; certainly not nearly as qualified as I am today. It was merely their effort to go back and try to glean from my past something they could use against me.
Mr. COOKSEY: Good. Mr. Wachendorfer, what were the FAA’s concerns in your operation? I’ve seen your operation. I still fly some—you’re at Love Field?
Mr. WACHENDORFER: Addison.
Mr. COOKSEY: Addison.
Mr. WACHENDORFER: Addison Airport.
Mr. COOKSEY: Addison, okay, I have flown in there too several years ago. What were the FAA’s concerns about your operation?
Mr. WACHENDORFER: It was a broad range of issues. Part of it was pilot training, but it got down to that they just didn’t do the proper investigation to know that what we’re doing was in accordance with our FAA-approved manual. They really didn’t want to hear our side of what—our view. They went into our company and decided they were going to put us out of business. It even went so far as to interviewing our pilots saying they wanted to put us out of business, and our pilots were going to help them do that or they were going to take their license.
Mr. COOKSEY: Well, Mr. Chairman, in closing, I would make two or three comments. Number one, as very much of a part-time pilot—and part-time pilots are dangerous and, of course, the most dangerous thing in the world is a lawyer with a chainsaw and a doctor with an airplane. I’m not probably real—and I would mention Dr. Anders is physician too—that is a problem that’s a concern, but, still, I know that there is always a desire to go out and fly other planes, and I’m sure it would be fun and exciting to fly these warbirds, and it’s obvious that the only people that could give you your type rating is someone who’s got some time in these. There’s a limited number of these planes, and unfortunately, there are not a lot our there and I understand that. Also, losing—for a pilot to lose his or her license is like losing a wife, husband, a child, and it’s a very integral part of your life, and I understand that. I am concerned about the possibility that the FAA could be somewhat aggressive in this, and I think we need to have a fair hearing; have a hearing and hear everybody’s side to this, and there’s some reason to consider this legislation, and I appreciate the chairman for allowing us to have this time. Thank you, Mr. Chairman.
Mr. DUNCAN: Thank you very much. Mr. Oberstar.
Mr. OBERSTAR: Thank you, Mr. Chairman. I regret missing the opening of the meeting here. I was at several other commitments this morning, but I want to take the opportunity to congratulate Jim Coon on his new opportunity in life; new career continuing in aviation. We’ll miss him. He’s been a splendid staff member. He has developed the expertise that we expect and demand of staff on this committee. He combines keen knowledge of aviation with a very warm, caring, and understanding personality, and he has helped and fit in, knitted in, well to the bipartisan spirit and traditional conduct of the committee, both members and staff. We’ll miss him. He’s contributed a great deal, and I wish him well. I’m sure you’ll miss this splendid, loyal staff member.
This committee has had as its—or this subcommittee has had as its principle focus safety in technology; in personnel; in overall management of aviation, collision avoidance systems; aging aircraft; duty limitations on flight attendants, pilots; same level of safety for commercial airlines and commuter airlines, and small and large airports. Safety is our principle focus, and we have been vigilant to be sure that safety remains FAA’s first priority as the charter of 1958 spells out in six different places, especially in the opening paragraph of the charter for FAA that safety shall be maintained, not at the level that can be afforded, but at the highest possible level.
But today’s hearing appears to me to be on whether FAA is taking its responsibility too seriously. We have for years climbed all over FAA for failing to protect the public adequately, and I think a gripe session is appropriate. Let people come in and tell this committee when they think things aren’t going well. We did that on civil penalties a few years ago. We’ve done it time and again, but now there’s legislation pending, and I think it goes too far. I think it whacks at a tiny fraction of FAA’s actions on safety and on personnel, and I don’t want to see this legislation move forward; not when there certainly are other remedies available to the pilot community; to certificate holders; to anyone who feels grieved.
Revocation is FAA’s strongest form of enforcement. Revocation is issued when a certificate holder is not qualified or when that certificate holder demonstrates a lack of the degree of care, of judgment, of responsibility required for a certificate holder. Prime examples, drug and alcohol. I don’t think anyone in the country would have felt safe if FAA had not acted decisively against the flight deck crew of the Northwest 727 aircraft that departed Fargo, North Dakota for the Twin Cities after an all night bout of drinking and still under the influence while piloting that aircraft. It’s clearly a case for emergency revocation. When FAA does its job, it does it right; it does it in the public interest, and it is the only entity that stands between the flying public and those who fly for hire or those who fly for pleasure.
I would be concerned if FAA were bringing too many emergency revocations, but GAO’s analysis says that there are only 3 percent of enforcement cases that are in the emergency certificate action category, and, of those, 1 percent were overturned. There is a process in place where grieved parties push their case; make their case, and, as we’ve just heard, FAA can and is overturned. But as I’ve said many times, including in last year’s hearing on Great Lakes aviation, I would rather have the FAA err on the side of caution. I’d rather hear from the occasional grieved pilot or mechanic who said FAA is on a witch hunt or they’re out to get me or they’ve gone back years in my records than to sit on this committee and try to explain to grieved family members why that plane went down and why their loved ones died. There is remedy for those who are grieved; there is action to be taken for grieved cases. We ought to hear about them, but we ought not to question whether FAA is acting in the public interest and undermine the effectiveness of this agency in protecting public safety. I have no further comment or questions, Mr. Chairman.
Mr. DUNCAN: Thank you very much, Mr. Oberstar. Mr. Traficant.
Mr. TRAFICANT: I want to identify myself with the remarks of the distinguished member, Mr. Oberstar. But I have a question I’d like to ask of this panel, and I’d just like for you to answer without explanation, one word, if you can. Do you believe there’s been selective enforcement and targeting to show an on-hands track record in revocation? Mr. Wachendorfer?
Mr. WACHENDORFER: I missed your question. I’m not sure.
Mr. TRAFICANT: Do you believe there has been targeting and selective enforcement involved in this, so that there would be a record of some aspect of revocation to make it look as if there’s more of an enforcement element there? Has it been selective and has there been some targeting?
Mr. WACHENDORFER: Absolutely.
Mr. TRAFICANT: Mr. Anders?
Mr. ANDERS: Yes, sir.
Mr. TRAFICANT: Mr. Stewart?
Mr. STEWART: Without any question, sir.
Mr. TRAFICANT: Okay. The point I make is it’s a two-edged sword, and what Mr. Oberstar said is absolutely the facts. That plane goes down, there’s a lot of valid concerns. But I think this committee also has to look at the fact that there, in fact, sometimes, when there’s targeting; when there’s intrusion, then there has to be some process of last resort, and it may be necessary that if a case of targeting can be validated and proved, maybe there should be penalties that could be levied, but our committee’s concern is safety, and it makes it a tough situation.
I have full confidence in the chairman of this subcommittee and for the ranking member. They’re both known for fairness, and I believe we must seriously look at this issue that if it does exist out of a concern to make it look like there’s a safety program that may not necessarily be as strong as it should be and targeting and selective enforcement is part of that, then it’s a valid point, one that this committee should look at, and, if necessary, maybe even levy penalties if that type of behavior can be sustained through some court process or some administrative process. And, with that, I would urge that, perhaps, that might be open to consideration and thank you for having this hearing.
Mr. DUNCAN: Thank you very much. Mr. Bass. All right, Mr. Lipinski.
Mr. LIPINSKI: Thank you, Mr. Chairman. Getting back to what Congressman Traficant asked in regards to targeting and selective enforcement. I’m not going to ask you to put forth your evidence here, but I certainly would be very much interested in what evidence you do have that you can state that you were targeted with selective enforcement. As I said, I’m not going to ask you to do that now, but I certainly would be very interested, and I’m sure the other members of the subcommittee would be interested, in finding out what evidence you have to substantiate your agreement with Congressman Traficant. Mr. Anders, did you want to say something right now?
Mr. ANDERS: Yes, sir. If I may, I’d like to submit the sworn statements from many of these people—20, in fact—who witnessed this selective enforcement, many of whom were—whose privileges were emergency revoked. May I submit that?
Mr. LIPINSKI: That’s up to the chairman, but I would assume it would be okay, but he can answer for himself.
Mr. DUNCAN: Yes, that’s perfectly acceptable.
[The information accompanies Mr. Anders’ prepared statement.]
Mr. LIPINSKI: Mr. Wachendorfer, if you have anything that you consider evidence to prove that, we’d certainly like to have it and the same thing with you, Mr. Stewart.
I’ll only hold you momentarily, but I do think that we have a dilemma here in that our first responsibility and certainly the FAA’s first responsibility and I’m sure you feel your first responsibility really is safety. It seems to me that it’s going to be extremely difficult to develop a procedure where if the FAA feels so strongly that safety is being impaired, they’re going to want to move immediately to stop a person from flying a plane. On the other hand, I can understand that if it is your livelihood, that is going to be a severe penalty on you, but I think that we all have to try to find a fair, honest solution, and I don’t know that the existing law is, and I don’t know that the proposed change in the law is either, but I think it is a very serious problem, and I can see both sides of the issue.
In closing, do any one of you gentlemen have anything to add to what you have already said whereby you could develop a procedure that you think would be fair to both parties? Mr. Stewart?
Mr. STEWART: Mr. Lipinski, if I would, the mechanism, if you will, or the procedure is already in place. It just needs to be speeded up or expedited. If the airman has a couple of days to go to the NTSB and then they have merely a couple of days to rule, inside of a week the airman is protected and the flying public—should the FAA be accurate this time—is also protected. It appears to be a win-win scenario, if you will.
Mr. LIPINSKI: One of the problems there, though, seems to be is that the National Transportation Safety Board, at least what I have been told, feels that they don’t have the manpower to do this in that short a period of time. So, I have a problem with that there. If that could be done it’s wonderful, but from what I’ve been told, I don’t think it can be done that quickly.
Mr. STEWART: Well, we truly do have a dilemma then, and, in the meantime, some people suffer.
Mr. ANDERS: I suppose the question should be how much manpower does it take, and how many emergency revocations need to be reviewed? In every one of these cases where I will submit the testimony, this sort of reprieve would have allowed these gentlemen to mount a defense against their accusers, because in every one of those cases, had they just been allowed to continue to make a living, they could do so. So, I wish I could answer your question about how many. From my standpoint, one knowledgeable, objective person looking at the circumstances and the accusations should be enough. If there is—as in these cases, there was absolutely no threat to aviation safety.
Mr. LIPINSKI: Are all those cases connected with the warbirds?
Mr. ANDERS: No, sir, some of them are not. It was across the Board, mentioned by Mr. Broderick that these aircraft never created a hazard nor did the pilots create a hazard to aviation safety, yet emergency revocation was used. In these cases, Mr. Oberstar’s comments notwithstanding, there was no threat to anyone, and it was acknowledged by the Associate Administrator of the FAA, yet emergency revocation was used. Only one person need look at that and say ”What is going on here? There is no emergency hazard to aviation safety here.”
Mr. LIPINSKI: Well, Mr. Wachendorfer,do you have anything to—?
Mr. WACHENDORFER: Well, of course, in my case, our emergency revocation happened a full 8 months after the investigation began. I think H.R. 1846 could provide a—in a 2-day period, I doubt you could have a full disposition of the case, but it would allow a different entity to look over the merits of the FAA’s revocation to see if it does or doesn’t have the merit and still protect the flying public.
Mr. LIPINSKI: Thank you.
Mr. DUNCAN: Well, thank you, Mr. Lipinski, and I do want to move on to the next panel, but I was going to ask—Mr. Wachendorfer mentioned that his investigation went on for 8 months, and I notice in the GAO report it said, ”Although the use of emergency orders is intended to expedite the handling of serious enforcement cases, the time needed for FAA to investigate violations and issue emergency orders varied widely.” And it says, ”The FAA issued emergency order for half the cases within 4 months after learning of the violation. For the remainder, the time needed to investigate an issue to order ranged from just over 4 months to over 2 years. During this time, the certificate holder could continue to operate.” Mr. Wachendorfer, or Wachendorfer, how do you pronounce your name?
Mr. WACHENDORFER: Wachendorfer.
Mr. DUNCAN: He apparently knew an investigation was going on, but I seem to get the impression, Mr. Stewart, that you were caught by—or maybe it was Mr. Anders—were you gentlemen caught by surprise?
Mr. ANDERS: About what, sir?
Mr. DUNCAN: Well, did either one of you know you were being investigated?
Mr. ANDERS: No, sir.
Mr. STEWART: In may case, once I received the suspension of my examining authorities—and, as Frank stated, they came to me and asked me to perform services for them, because they had no qualified individuals to do so—when they suspended those examining authorities, I asked them why, and they told me that an investigation was ongoing, as I stated, into alleged improprieties as far as certification of ratings I had received myself. That was the first time I knew that they had any heartburn, if you will. Thereafter, I was completely blindsided by the revocation. You get no notice. It comes in the mail; you read it, and it says you’re done. So, I did not have any notice that an emergency revocation or any revocation was pending. All I knew was that they had temporarily—and it said temporarily—suspended my examining authority, and to this day, it’s still suspended. It has never been terminated or revoked to my knowledge. I’ve received no indication. It’s still suspended today; that’s the only notice I got. Some months later I received an emergency revocation.
Mr. DUNCAN: Well, you know, this is a difficult situation, because, as I said in my opening statement, the FAA does a very important job; it does a very good job. Almost all of the people at the FAA are very good people. On the other hand, when you have a Government—our Federal Government, really, overall, has become far too big, and it’s really out of control. I mean, even the President of the United States can’t—no one person can control it, and so when you have a bureaucracy as big as the FAA or any big bureaucracy, it’s filled primarily with good people, but there’s going to be bad people in there; there’s no question about that. When you have many thousands of employees, some of them are going to be bad people or they’re going to make mistakes or even if they’re good people, they’re going to make mistakes; they’re going to do some bad things.
So, how do you get it corrected, because I do know that it’s almost impossible for an individual citizen, unless they have great wealth or strong financial resources or, as in your case, Mr. Stewart, an employer to back you up, it’s very difficult for an individual citizen to take on the Federal Government, whether it’s the FAA or the IRS or anybody else. I mean, it’s just very difficult. And I know, too, I was a lawyer and a judge before I came to Congress, I know that particularly when you get in the Federal courts, it’s even more expensive to fight something in the Federal courts than it is in the State courts, and it takes sometimes years to resolve some of these cases.
So, it’s a difficult situation, yet, as others have said, the general public demands that we bend over backwards; that the Congress bends over backwards and that the FAA bends over backwards to make sure that our aviation system is as safe as possible and that any bad pilots are weeded out of the system as quickly as possible. So, you’ve got a lot of competing interests there, and it’s a difficult situation, and maybe we do need to make some changes, but it’s not going to be an easy thing to do. I guess you can understand that. It’s like Mr. Lipinski mentioned, the NTSB in their testimony in just a few minutes is going to say they can’t move quite as quickly as this legislation wants. Maybe there’s some sort of middle ground there, I don’t know. Any final comments that any of you wish to make before we move to the next panel?
Mr. ANDERS: Yes, sir. Exactly what you mentioned struck me. When I was a young man, it was unthinkable to me that any Government agency would abuse its power to oppress the citizens of the United States—and I’m only 51 years old; I’m a relatively young man—but it was just unheard of.
Mr. DUNCAN: I’m glad you said that, because I’m 51 also.
Mr. ANDERS: We’re both young men. It was unthinkable, and the reason that I am here today and we are here today is so that the House of Representative Members charged with looking after the citizens’ rights can be alerted to such abuses. We know that you have to look after the powers of the FAA, because they’re charged with protecting the public, but in the cases where they abuse members of the public, that also should be brought to your attention, and we appreciate the fact that you’re willing to listen.
Mr. DUNCAN: All right, Mr. Stewart.
Mr. STEWART: Yes, sir, I’ll second that. Thank you again for letting us come out. Mr. Lipinski brought up, perhaps, the overall problem. If it is accurate that the NTSB has stated that they can’t do this within the time frame of this pending legislation, then we do have a bit of a dilemma, but please accept our thanks for considering this; for letting us vent, if you will. We know a little bit more about how Government works than we did, at least I did before I came in.
Mr. DUNCAN: All right. Well, thank you very much. You’ve all been very fine witnesses, and we thank you for being with us.
Mr. ANDERS: Thank you, sir. Where should I submit these statements?
Mr. DUNCAN: You can just give them to the reporter there.
Mr. ANDERS: Thank you.
Mr. DUNCAN: All right, we’ll ask the second panel to come forward at this time. Once again, we have a very distinguished panel of witnesses in the second panel today, and the first witness on the second panel is a man who has been here on many, many occasions; who always is an outstanding witness before this subcommittee, Mr. Gerald L. Dillingham who is the Associate Director for Transportation Issues with the U.S. General Accounting Office. He is accompanied by Ms. Bonnie Beckett-Hoffmann who is Senior Evaluator Resources, Community and Economic Development Division for the GAO. We’re pleased to have Ms. Peggy Gilligan who is the Deputy Associate Administrator for Regulation and Certification with the FAA, and she is accompanied by Mr. Peter Lynch, Associate Chief of Counsel for Enforcement. The third witness is Mr. John S. Yodice who is general counsel for the AOPA Legislative Action. Next, we have Mr. Harry L Riggs, Jr. president of the National Transportation Safety Board Bar Association, and, finally, Mr. Daniel D. Campbell who is General Counsel for the National Transportation Safety Board, and, likewise, another gentleman who’s been here with us before as had Ms. Gilligan.
But, certainly, we want to welcome all of the witnesses that we have today, and, as I have stated before, we always proceed in the order that the witnesses are listed on the call of the hearing, and that means that we’ll go first to Mr. Dillingham, then Ms. Gilligan, then Mr. Yodice, Mr. Riggs, and, finally, Mr. Campbell. And, Mr. Dillingham, you may begin your statement.
TESTIMONY OF GERALD L. DILLINGHAM, ASSOCIATE DIRECTOR, TRANSPORTATION ISSUES, RESOURCES, COMMUNITY, AND ECONOMIC DEVELOPMENT DIVISION, U.S. GENERAL ACCOUNTING OFFICE; PEGGY GILLIGAN, DEPUTY ASSOCIATE ADMINISTRATOR FOR REGULATION AND CERTIFICATION, FEDERAL AVIATION ADMINISTRATION, ACCOMPANIED BY PETER LYNCH, ASSISTANT CHIEF COUNSEL FOR ENFORCEMENT; JOHN S. YODICE, GENERAL COUNSEL, AOPA LEGISLATIVE ACTION; HARRY L. RIGGS, JR. PRESIDENT, NATIONAL TRANSPORTATION SAFETY BOARD BAR ASSOCIATION; AND DANIEL D. CAMPBELL, GENERAL COUNSEL, NATIONAL TRANSPORTATION SAFETY BOARD
Mr. DILLINGHAM: Thank you, Mr. Chairman, Mr. Oberstar, Members of the Subcommittee. We appreciate the opportunity to appear before you again. This morning we are testifying on the result of a study that we undertook at the request of Senator Inhofe. We are making available the complete report of that study at this hearing.
Our study was based on an analysis of FAA’s enforcement information system and focused on an 8-year period between 1990 and 1997. Specifically, we looked at three areas related to emergency orders: first, the extent to which FAA used emergency orders; second, the way in which changes in FAA’s policies might have affected the agency’s use of those orders, and, third, FAA’s timeliness in the issuance of emergency orders.
Regarding the issue of extent of use, over the last 8 years, FAA closed nearly 138,000 enforcement cases, and of that number, about 3 percent were certificate actions initiated with emergency orders. That averages out to about 500 cases a year. In 77 percent of those cases, the FAA decision was upheld through various levels of review and appeal. About 5 percent of those cases ultimately resulted in FAA dropping the case, because it determined that there was no violation committed or that it had insufficient evidence to prove a violation. And only 1 percent were overturned on appeal. Additionally, there was another 6 percent of cases for which the data was so incomplete that the outcome of the cases couldn’t be determined. Unfortunately, this is another example of what we’ve been reporting to this committee over the years of inadequate recordkeeping at FAA.
Regarding our second issue, policy changes at FAA, in 1990, FAA decided for those cases in which revocation was based on a demonstrated lack of qualifications, the certificate should be revoked immediately rather than after a lengthy appeal process that non-emergency certificate actions can be subject to. The policy shift, in fact, is reflected in an increased number of emergency orders. In 1990, FAA initiated 184 emergency ordered revocations. In the following 7 years, FAA issued an average of over 320 emergency revocations. Although the increase in the overall number of emergency orders may be explained as a result of that policy change, FAA officials could not adequately explain the significant variations we found in the number of emergency revocations that were initiated among the various FAA regional offices.
Our third issue, the timeliness of FAA’s actions. The time needed for FAA to investigate violations and issue emergency orders varies widely. FAA issued emergency orders within 4 months after learning about the violation for about 50 percent of the cases. For the remainder, the time ranged from just over 4 months to over 2 years. Between the time the violation is known to FAA and the order is issued, the certificate holder could continue to fly or repair aircraft and possibly pose a safety risk.
There is a consensus that FAA should act swiftly in cases that present an immediate threat to safety or demonstrate a lack of qualifications, but some members of the aviation community, as you’ve heard earlier, have questioned whether it is appropriate or necessary for FAA to handle such cases as emergencies, especially if the violation occurred several years before. We believe that this situation reflects the tension between FAA’s responsibility to act prudently in investigating thoroughly before revoking a certificate and its responsibility to act swiftly in cases that present an immediate threat to safety or demonstrate a lack of qualifications.
FAA officials offered us several reasons why some cases take months to investigate and prepare including the multiple responsibilities of its staff, case complexity, and extensive record review that may be involved. The fact remains, Mr. Chairman, that months often elapse between when FAA learns of a violation and when the agency issues an emergency order.
In the final analysis, our work has showed that the FAA uses its emergency authority relatively rarely, and its historical success in sustaining emergency actions through the review and appeal process can be read as an indirect evidence of the appropriateness of the initial decision to use its emergency powers. And although FAA uses its authority relatively rarely, the regional variations we found raise questions about the consistency and fairness with which violations are handled across the FAA regions. And, finally, the time needed to investigate violations and issue emergency orders raises concerns about the urgency and diligence with which FAA pursues these serious certificate violations and suggests that FAA might want to review and, perhaps, revise the procedures in this area. Thank you, Mr. Chairman.
Mr. DUNCAN: Thank you very much, Mr. Dillingham.
Ms. GILLIGAN: Thank you, Mr. Chairman, Members of the Subcommittee. My name is Peggy Gilligan. I’m the Deputy Associate Administrator for Regulation and Certification at the FAA. I’m accompanied today by Peter Lynch, the Assistant Chief Counsel for Enforcement, and we’re pleased to be here today to discuss FAA’s use of its emergency authority and H.R. 1846 and how that might modify our procedures.
We’ve submitted written testimony, but I would like to make some comments. First, I’d like to describe our enforcement policy with regard to how and when emergency action is taken. All emergency actions are based on a determination that the certificate holder may not be qualified to hold the certificate the Administrator has issued. We also consider whether the certificate holder is in a position to use the certificate. For example, the Federal Aviation Act requires that we revoke certificates of airmen who use that certificate in drug activities if the airman is convicted of those activities. However, if the airman is in jail and unable to use the certificate, we don’t use an emergency action.
It is true, as you’ve heard today, that when an emergency order is issued it is effective immediately. The statute does not permit the airman or operator to continue to exercise the privileges of the certificate until the question of fundamental qualifications can be decided.
However, that is why the statute also requires an expedited hearing process. The statutory scheme ensures that the public’s interest in removing unqualified operators from the aviation system is balanced with the certificate holder’s right to an expeditious decision on the case.
The privilege—and I would underline the word privilege—of holding an FAA certificate must certainly be respected, but ensuring the highest standards of aviation safety are maintained must always be FAA’s primary mission. I think we’ve heard agreement today that the authority to take immediate action is integral to FAA’s ability to carry out our safety mission.
As you’ve just heard from Dr. Dillingham, the FAA initiated only about 3 percent of its total enforcement caseload in the years 1990 through 1997 as emergency actions. That’s an average of about 450 emergency actions, 450 cases in a pilot community of 600,000, in which each pilot holds two certificates; 450 cases in a large carrier community of 153 carriers, and an air taxi and agricultural operator community of over 5,000. We believe these numbers clearly demonstrate that we use this authority only in those cases where we find fundamental qualifications are lacking or are reasonably in question.
Again, the GAO has just testified that only in about 1 percent of the cases is the FAA’s emergency action overturned. We, again, believe this record exemplifies our effort to invoke the emergency authority only when it is absolutely warranted. It also shows that sometimes we don’t prove our case. But the statute did anticipate that possibility and minimizes the harm to the individuals involved by expediting the hearing and decision process.
It’s been said this morning that there’s no reasonable process to review whether an emergency exists, but, in fact, as has been stated, those actions can be reviewed by the Federal court. It was said today that that is not a timely review, but that is not our experience. Our experience shows that the Court of Appeals issues a ruling on whether or not to stay the FAA’s order within a week to 10 days.
Some say the fact that the emergency orders are rarely stayed by the court indicates that this is not a useful appeal, but we would suggest again that this is just an indicator of the careful review we give to these cases before we take them forward. Some say the emergency action is invoked for violations that occurred months and sometimes even years earlier. But let me explain why that might be.
When FAA first learns about a regulatory violation, we do not usually envision taking emergency action. We must first establish that a violation occurred, and then we must develop the evidence to prove it. We never conclude that an airman or an operator must prove to us that they are still qualified. The burden of proof is always on the FAA.
After completing the investigation, we carefully make the determination as to whether or not an emergency is warranted. The investigation can be complicated and lengthy, but we believe we should never shift the burden to the airman or the company. We must always be prepared to prove our case at the point where we initiate an emergency action. But once the determination is made that there is a lack of qualification, it is our policy to process that emergency case as quickly as possible.
Mr. Chairman, we’ve heard this Committee in this room admonish the FAA for failing to take actions when some deemed it was necessary in order to ensure the highest levels of safety. We believe that if we reach a determination that a certificate holder is not qualified to hold that certificate, we cannot permit the certificate holder to operate in the system.
I would like to share some concerns we have with H.R. 1846. We see it creating conflicting and multiple levels of appeal. It does not make the process more efficient or more effective; it seems to merely move the appeal that already exists in the Federal court to the NTSB. It does not assist FAA in performance of its important safety mandate, even though our record on emergency actions demonstrates that we are not making specious or unfounded allegations.
H.R. 1846 would authorize the NTSB to evaluate the Administrator’s conclusion that an operator lacks qualification, yet it only provides for a very hastily conducted hearing. It then would expect that after the first hearing the NTSB would now disregard whatever assessment it made at that point and go back to examine the same case on the merits. We think this precarious balancing act, which is not required under the current system, creates a problem. It would appear that an NTSB decision on whether or not an emergency exists might also be something appealed to the Federal courts, simply adding another layer of appeal, and meanwhile the NTSB review of the merits of the case would be going on simultaneously.
Finally, there is an element in H.R. 1846 that does not appear as closely related to the emergency action, but that would modify FAA’s ability to appeal an adverse ruling by the Board. This authority was only recently given to the Administrator and has resulted in one court review in only one case.
Although there are no allegations or evidence that FAA has abused the authority to take review to the Federal courts, this bill would require the Administrator to issue an additional order, finding that the NTSB decision would have a significant adverse impact on air commerce or safety in order to be able to take the appeal to the court. This provision would seem to create yet another order that could be appealed again to the Federal courts, increasing, again, the number of appeals, and we think creating an unwieldy array of legal process that doesn’t appear to be in anyone’s best interest.
In conclusion, I would like to say that FAA is always reviewing its policies regarding emergency authorities to ensure that we are using it judiciously, and we are examining individual cases more closely to determine whether emergency action is required. We strongly believe that the system in place is a good one. It balances the interest of public safety and the certificate holder, and we look forward to working with the Committee to continue to improve aviation safety.
Mr. DUNCAN: Thank you very much, Ms. Gilligan.
The next witness will be Mr. Yodice.
Mr. YODICE: Thank you, Mr. Chairman, and members of the subcommittee.
I am general counsel of AOPA Legislative Action, the legislative arm of the Aircraft Owners and Pilots Association. Our 340,000 members comprise more than half of the civil active pilot population in this country, and they own more than half of the registered aircraft in this country. Most of the emergency actions are being taken against pilots. I think in the GAO report they put the percentage at 60 percent. So we have a very important interest in this legislation.
At the outset, I’d like to say that we as pilots are beneficiaries of the FAA’s safety activities. We want a safe environment in which to operate our aircraft, and we support FAA in its enforcement efforts, including enforcement against pilots who may violate the regulations. But at the same time, as pilot representatives, we want to ensure that the enforcement system is fair, that it accords due process to the pilots. Congress, in its wisdom, has provided us such a process.
If an airman suffers a certificate suspension or a revocation by the FAA, then that airman may appeal that to the National Transportation Safety Board, and the Safety Board may modify or reverse that suspension or revocation, but only—and I emphasize only—if it finds, and this is a quote, ”that safety in air commerce or air transportation and the public interest do not require affirmation,”—the end of the quote, of the certificate action. And I think it’s very important to note in this regard that the Bard has taken this mandate very seriously.
With respect to the Bard’s function as an appellate body over FAA enforcement actions, it affirms the FAA’s action in 80 to 90 percent of the cases, and that’s in the pilot cases; I think that the GAO report cites the same figures.
Now part of this process that Congress provided is that in a routine case, when a person appeals to the Bard, the effect of the suspension or the effect of the revocation is stayed, pending the outcome of the case before the Bard. That is the routine case. It is the non-routine case in which the Administrator advises the Bard that an emergency exists and that air safety requires the immediate effectiveness of the suspension or revocation. In that case there is no stay.
So, in other words, where there is a stay the airman may continue to exercise the privileges of his or her certificate. Where there is no stay, then the airman is without his or her certificate during the pendency of the appeal before the Bard.
Over the years, in our experience anyway, the FAA has been judicious in its determination of what certificate actions warrant immediate effectiveness. However, several recent cases—and you heard some of them this morning—as well as the change in the FAA policy, which the GAO has noted and of which we have been aware, has demonstrated two things. First, that the provision is subject to abuse, and, second, that there is no effective review of FAA’s determination that a safety emergency exists. We respectfully submit that H.R. 1846 is intended to provide for effective review by the Bard of this determination without derogation of air safety.
And I think that point bears emphasis. Enactment of H.R. 1846 will not derogate air safety. It merely puts into the hands of the Board, an agency which has a proven track record of a high regard for air safety in its appellate function over FAA certificate actions. That Board will have the power to review FAA’s determination that a safety emergency exists, warranting this extraordinary remedy of the immediate effectiveness of the certificate action.
I would also like to mention, Mr. Chairman and members, that we are joined in our concern by virtually all of the segments of the aviation community, including airlines, airline pilots, business aviation, sport aviation, fixed-base operators, the Aviation Bar, and others.
I’d also like to take the opportunity, since I’ve now had the opportunity to read the NTSB’s testimony—and Mr. Lipinski was rightly concerned that the NTSB might not have the resources to handle the jurisdiction which would be placed in their hands—but I don’t read the testimony that way. I do see that the NTSB has raised what it calls some procedural difficulties, and then seems to say that if these procedural difficulties are handled in a certain manner, then the Board would be able to discharge this function.
For example, the NTSB says that perhaps the matter could be considered through written submissions, in which case it could adhere to the time limits of the legislation, and that if the standard were an abuse of discretion, it could adhere to the statute. And that if there’s only one level of review, it could accord with the legislation. I don’t think these matters are controversial.
This legislation was drafted specifically to give the Board the power, within the mandate of the Congress, to come up with procedures which would meet this requirement. And if it comes to the three things that Mr. Campbell says in his testimony, well, then it’s the Board that has the final say in it, and especially if that’s what it takes to handle these cases; we, of course, will abide by that.
We would hope that the Board, in developing these procedures, would accord us the opportunity to submit written comments before they finally decide on what procedures should be obtained. But, again, I would say that the procedural difficulties mentioned are not ones that we think are controversial or are reasons for not enacting this legislation.
Thank you, Mr. Chairman.
Mr. DUNCAN: Thank you very much, Mr. Yodice.
Mr. RIGGS: Mr. Chairman, and members of the committee, thank you very much for the opportunity to speak.
The National Transportation Safety Board Bar Association is an association composed of those lawyers across the country that practice enforcement and regulatory litigation before the DOT, the FAA, and the NTSB. In other words, we are the lawyers that have to deal with issues, represent the clients, and try them.
There’s not a member of our organization that does not fully support the FAA’s use of its emergency authority to revoke, especially where pubic safety and welfare are a concern, so the record needs to be set straight that we firmly support the FAA’s use of that responsibility. But it’s interesting to note that the NTSB has even had trouble itself with the FAA’s use of this emergency authority.
Ted Stewart quoted a footnote from one of his cases, and I think it’s important enough and bears repeating: ”We are constrained to register in this matter, however, our opinion that where, as here, no legitimate reason is cited or appears for not consolidating all alleged violations into one proceeding, subjecting the airman in the space of a year to two emergency revocations, and thus to the financial and other burdens associated with an additional 60-day grounding, without prior notice and hearing constitutes an abusive and unprincipled discharge of an extraordinary power.”
Now, I think what we need to understand is the proposed legislation will not impede, will not slow down, will not prevent or deter or adversely impact the FAA’s use of this extraordinary power. That needs to be set straight. And it’s interesting to note what happens when an emergency order revocation is issued.
First of all, all activity of the certificate holder stops. Frequently, employees lose their jobs, pilots go elsewhere to other carriers, customers may seek other means of transportation, planes may be repossessed due to delinquent payments. Pilots who are professional airmen are forced to seek different careers because they can no longer have the resources, or they can no longer continue as a pilot. They may not have the financial resources to fight the issue, and then, as has been suggested, just give up.
Mr. Chairman, you are an attorney and a judge and a member of a fellow State: I’m from Kentucky and you’re from Tennessee. Suppose a member of the Tennessee State Supreme Court walked into your office one morning and took your certificate to practice law off the wall and walked out with it. You’d probably get a shotgun and march toward the Supreme Court to see what you could do about it. Maybe you had an inkling that there was a problem, but nothing that drastic. How would you feel about that? There are other members of this committee that are also licensed to practice law and medicine. Your opponent in the next election might have a field day with the information.
All the proposed legislation does is afford a certificate holder an opportunity to have the FAA demonstrate that the continued use of that certificate will adversely affect the public safety and welfare. No matter what the outcome of this initial proposed legislation hearing would be, the matter is going to proceed, either on an emergency basis or on a non-emergency basis. So you have not let the certificate holder off the hook. The proposed legislation is fair, it’s reasonable, and it’s non-intrusive.
I had the privilege of representing Mr. Tom Wachendorfer and Ameristar Jet Charter in the certificate action that he described to you. I was his attorney, and my staff—we spent a lot of time in preparing our defense. And the things that concerned me out of that enforcement action—and I’ve been doing this, I’ve been practicing law now—this is my 41st year, and I’ve been doing this for way over three-quarters of those years—is that the FAA frequently comes in, has an inspection, sits down with you, and lists all of the problems that you have, and you take corrective action. You fix those so that at the end of the period of time in which you work with the FAA, those deficiencies no longer exist, and then, as in Ameristar’s case, they come on an emergency basis and revoke your certificate. That to me is an untenable abuse of that authority.
Now, I’ll be here to answer any questions. I have submitted a paper, and I appreciate again, Mr. Chairman, the privilege of being here.
Mr. DUNCAN: Well, thank you, Mr. Riggs, and I can see that you’re a very good lawyer in the way you present your case.
Mr. RIGGS: Thank you. I’m surprised I didn’t call you Your Honor; I usually do that.
Mr. DUNCAN: Well, thank you. Mr. Campbell.
Mr. CAMPBELL: Good morning, Mr. Chairman, members of the subcommittee. I am Dan Campbell, General Counsel of the NTSB, and Chairman Hall has asked that I represent the Board at this morning’s proceedings, and I’m delighted to be here.
We have submitted a written statement, which I assume will be a part of the written record, and so I would very briefly summarize the remarks that we’ve made because I don’t think that NTSB is actually central to this debate.
We have taken no position on the need for this legislation, and that arises out of the fact that at the present time the declaration of an emergency is a matter committed to the discretion of FAA, and it is not reviewed by NTSB. And we would have no basis for analytical judgment as to whether or not it has been used appropriately in the past and would defer to the work of GAO on that subject.
We do have some procedural uncertainties about the nature of the bill in question that I do think do need to be addressed if the Congress decides to go forward, one of which is—and they all have to do with the very tight timeframe, and I think the subcommittee is well aware of the fact that emergency proceedings are presently heard in the 60-day timeframe. We are almost always able to accommodate that timeframe, but we do it with two levels of review. An administrative law judge hears the matter, first through an evidentiary hearing, and then a period of time is preserved for the Board to hear the matter on appeal.
It is a close call to get all of that done in 60 days. The legislation as drafted speaks to a hearing by the Board, and if that contemplates that we would again have two levels of appeal—a hearing before an administrative law judge within 48 hours, as I think is specified in the bill, and then reviewed by the full board within 5 days, I think the matter presses what is practically possible.
And so we would suggest to the committee that if it does determine to go forward, that it indicates an understanding that NTSB would in turn seek to delegate this matter to its administrative law judges for final determination. And we would seek some recognition by the committee that that would be consistent with congressional intent.
Even a hearing before an administrative law judge, if it were to be a full evidentiary hearing on the basis of reasonableness, might encompass too many questions and too many points to be accomplished in this timeframe. The standard used by the courts of appeals now when they hear these stays is an abuse of discretion standard which has been characterized in the leading case as a clear error in judgment.
Now we would assume that that is the nature of the inquiry that would be conducted by NTSB if the bill were to be adopted, and again would seek some recognition from Congress that that is consistent with their intent. A fuller hearing would be very difficult to undertake.
I also think that there needs to be some clarity in some of the language in terms of the timing. There are in place regulations that speak to when appeals are filed and at what point in time NTSB recognizes the existence of an emergency under the present provisions. The bill speaks to the holding of the hearing within 48 hours of notice and the issuance of a decision within 5 days, and I think that might front-load the process a little bit since the decision may not take 3 days, but the hearing may take more than 2. And so we would recommend that if the committee does decide to act favorably on this that we be given an opportunity to work with the committee, in terms of working through some of the procedural difficulties that we see.
But I would say that I think that Mr. Yodice has properly summarized the NTSB’s position; I’d like to thank him for doing so. We don’t see this as an insurmountable group of difficulties, but we do think they are significant enough that they need to be very carefully considered and that some modification, at least through some indication of congressional intent, would be necessary to make this a workable program.
Mr. DUNCAN: All right; thank you very much.
Ms. Gilligan, I don’t really want to put you on the spot because you may not have the appropriate knowledge of the specific cases we heard about this morning, but do you have knowledge of or any comments on, or can you—would you like to respond in some way to any of the specific cases that we heard about on the first panel?
Ms. GILLIGAN: Mr. Chairman, I am familiar with most of the underlying facts. Mr. Lynch is also quite familiar with them. But I would like to make some general statements that are in some way responsive.
First, it is important to know that in most of the cases that were involved in what was referred to as the ”Warbird Cases,” but which actually involved a number of other aircraft as well, the fundamental charge was one of falsification, which is in FAA’s mind, oftentimes, the most serious kind of allegation we can raise. This is a system that is very much built upon the veracity of the people who take part in it, and we have had discussions here before, and Congressman Oberstar has very articulately reminded us, that the paperwork involved in this industry is very, very important for the determination that, in fact, the safety standards are being met.
It is oftentimes—at the point where we determine that information provided to the Agency that is necessary information—when we determine that that information is false, that we question whether or not the certificate holder—whether it be an operator or an individual—we question whether they have the ability to meet the requirements to hold the certificate, and it is quite often that falsification charges lay at the heart of the emergency actions that we initiate. We think that is appropriate because, again, the validity and the veracity of the information provided to the Agency to determine compliance must be above reproach. And, when we have questions about that veracity, we believe we must take the strongest action that we can take.
In one of the other cases that was discussed this morning—the issue of the timeframe between when the initial inspections were conducted and when the action was taken was raised. As, again, many of you are aware, we have inspection programs that send in teams to inspect operators, and those teams tend to make initial findings. They do not, oftentimes, do the complete investigation at that point, and those initial findings are then turned over to a set of inspectors to determine whether or not the findings can, in fact, be validated and whether, in fact, they demonstrate systemic failure.
The second most common reason for FAA to take an emergency action is a determination on our part that we have evidence that shows a systemic failure throughout a particular operator’s either particular system or company, and oftentimes to be able to develop the evidence to establish the systemic failure, it requires a substantial time of investigation. As I said in my statement, we don’t rush to these cases. We are careful to be sure we have the evidence to prove the case before we begin the emergency process because of the very severe impacts that we understand that it has.
So, in fact, I think in each of those cases there are particular facts that FAA relied upon to initiate the emergency actions. They are the kinds of facts that call into question whether or not there is a fundamental lack of qualification, which, according to the statute, is exactly the reason why we should take an emergency action.
Mr. DUNCAN: Well, let me ask you this and get a little more specific. Mr. Stewart mentioned an FAA attorney, Ms. Naomi Tsuda-Dawson, several times, and was very, very specific in saying that she was guilty of harassment, intimidation, and even a vendetta against him.
Now, whether that’s true or false, let me ask you this. Is the system set up so that somebody who’s a little bit removed from the case reviews an emergency request? Because if you just have it set up where a co-worker in the same office reviews the actions, that wouldn’t be any good because those people work together, and there would be social pressure to agree with or ratify what the co-worker does. Is there a person who is removed and dispassionate and who the primary lawyer can’t really influence in an undue way? Do you understand what I’m saying?
Ms. GILLIGAN: Yes, sir; I do. Let me answer specifically in the cases that Mr. Stewart was involved in. Those cases involved, as you heard, a large number of pilots. It also included seven FAA inspectors against whom actions were taken and sustained. Those cases were very closely considered, at both the field level, the regional level, and in fact at the headquarters level.
And as you heard, even the Associate Administrator at the time was aware and very familiar with the particular facts of those cases. We were very careful, in our opinion, to review the facts of each individual case before we took the extraordinary action of emergency revocation. That was somewhat unique in that case because, again, of the volume of people involved and the fact that FAA inspectors were involved as well.
In cases involving operators, it is most common that a similar kind of review occurs, again, especially if an operator employs a number of people and there will be a wide-ranging impact as a result of emergency action. Those are reviewed up through my office, as well as through the Office of the Chief Counsel in Washington, so we do have actual geographic separation as well as senior manager review of those cases.
There are some individual pilot matters that would be reviewed only within the region, but, again, in those cases they’re reviewed by the inspector, by counsel, as well as by management in the regional office, so we have tried to build in the check and balance that I think you see as so important. We do, as well. It’s important that someone look at the data objectively to determine if, in fact, the evidence is there to support the case, and if not, to ensure that we don’t take an inappropriate action.
Mr. DUNCAN: Well, is it true, as he said, that everybody outside the FAA who looked at that on through the process ruled in his favor?
Ms. GILLIGAN: Mr. Stewart is accurate that in fact he won both cases. In the second case, the Board actually made a finding that one of the allegations we raised of falsification had been proven. It was the allegation related to the records he submitted 17 years before, and for the first time the Board gave us guidance that said that there may be a length of time where the falsification might not be considered a basis for revocation, but, in fact, they did find that the falsification had occurred.
Mr. DUNCAN: Mr. Riggs, my time is already up, but were these three cases that we heard about this morning, were these some sort of extremely unusual or weird aberrations, or were these typical cases in your experience? Do you have other war stories, so to speak, that might be helpful to us? And do you think the number of these—is it your feeling that the number of these wrongful actions by the Government is growing, or is this something that’s being handled all right, do you think?
Mr. RIGGS: Mr. Chairman, let me answer your question and ask that you share that question with Mr. Yodice, who has experience also.
These two cases obviously are unusual, because when you read the decisions and you study the facts and the law and the briefs on these cases, which I have done, they’re unusual circumstances, but the problem is that they shouldn’t have happened to start with. The problem is that these cases should have never gotten where they were.
The concerns that I have as an advocate and as a trial lawyer—and let me give you an example, and I’ll just use Mr. Wachendorfer because he’s here and, if necessary, can respond. In his situation, the FAA had alleged that two of his instructor pilots were not qualified—were not qualified—and therefore all of the pilots—his 18 or 19 or 10 pilots at the time who were flying—were unqualified, and therefore all of the flights that they had taken over the course of 4 or 5 months were illegal flights. That was not true. We were going to be able to prove that, but Mr. Wachendorfer said, ”Look; time out. Let’s satisfy the FAA. We have customers to serve. If they want these pilots re-trained, we will go to the expense of re-training them.” And they did.
Equally important, the FAA issued a letter to Ameristar saying that we are satisfied with the re-qualifications of all the pilots, and they may now continue in-line service. However, when the emergency order revocation was issued some 5 or 6 months later, all of those allegations were included as reasons for finding a lack of qualification. That’s the concern that we have.
We had another situation where they had a Lear jet, which is required to have a 240-hour inspection as required by the Lear, the manufacturer. They meet at the airplane, and they had one of their mechanics work 24 hours around-the-clock. He actually worked some 36 hours around-the-clock to turn this airplane back around and get the inspection completed. Now he had two other licensed mechanics working with him, but the FAA never bothered to find out about that, and therefore they revoked his mechanic’s certificate on the allegation that he falsified the inspections on these aircraft, never bothering to find out if he had any help: The manufacturer says it takes about 70 hours to do one of these inspections. You’re 36 hours has got to be a pencil-whipped falsification.
I agree with what Ms. Gilligan has said. Peggy has said that the only way the FAA has to do its job is through records, and records must be kept accurate; they must not be made with a mistake; they must be kept clean.
Mr. Wachendorfer has a wall in his flight operations. He calls it a wall of shame, and he takes all the flight records where the pilots can’t add their flight and duty time and all the mistakes that are made on logs and posts them for others to see. There are mistakes made. There are errors. We all make mistakes. Thank the fortune for the small, pocket adding machines, or I couldn’t do anything right in my office. So we all have those types of things.
These are unusual, but the problem is they seem to be pervasive, and all we want to do is to have this legislation which will at least afford some relief to these types of situations. Now I’m not sure I’ve answered your question as you’ve asked it, but I’ve attempted to. Maybe Mr. Yodice could expand.
Mr. DUNCAN: No, that’s fine; thank you. Go ahead, Mr. Yodice.
Mr. YODICE: Just very briefly, Mr. Chairman.
Mr. DUNCAN: Well, let me add something. Is this something that your 340,000 pilots—do they feel pretty strongly about? Is this a really top priority, or is this something just of concern to the very small minority of pilots who actually have been affected by this?
Mr. YODICE: Oh, I think it’s a matter of grave concern to our pilot population. I think if you ask Ms. Gilligan, they hardly can go—FAA can hardly go to a pilot meeting where the case of Bob Hoover is not raised, and that case has really heightened the awareness of the pilot population. And I’ve got a very angry group behind me urging me to get this kind of legislation passed, so it’s something that really concerns the pilot population, if that’s the answer to your question.
Mr. DUNCAN: Well, I’ve heard the Bob Hoover story myself, several times.
Well, let me go to Mr. Oberstar or Mr. Lipinski. Mr. Oberstar.
Mr. OBERSTAR: Thank you, Mr. Chairman. Many of the complaints, though, seem to hinge on the argument, ”It’s only paperwork.” I appreciate Mr. Riggs being very clear that paperwork is important. In safety we all know that it isn’t just paperwork. There have to be hands-on inspections of engines and framework, airframes and parts, and then that all has to be recorded.
In commercial airline work, when an aircraft is sold or leased from one owner or one operator to another, the paperwork moves with it—boxes and boxes of paperwork. The paper trail is critical. And, yes, I think there should be a recognition of errors and mistakes. ”To err is human,” said the poet. There’s a distinction between errors and falsification. As a lawyer, Mr. Riggs, you understand that.
Mr. RIGGS: I understand it very thoroughly.
Mr. OBERSTAR: Yes. Mr. Yodice, did you have a hand in drafting at least the initial version of this legislation?
Mr. YODICE: Yes; I did, sir.
Mr. OBERSTAR: Now I’m trying to understand what the problem is here. You have a process that goes to the court of appeals to determine whether there is an emergency and a simultaneous process of going to the NTSB, so you can choose, as an aggrieved party. The NTSB will look at the merits of the complaint, of the complainant. The court of appeals will make the emergency—or make the determination on the merits of the emergency nature of the FAA certificate action. Why do you need more remedy?
Mr. YODICE: Is that question to me, sir?
Mr. OBERSTAR: If you wish to respond.
Mr. YODICE: Yes; I’d like to respond to it. The court of appeals is not a very effective remedy to solve the problem that we are here addressing. For one thing, it requires litigation in two different forums at the same time, and, really, to do it right, it probably takes two different lawyers: one lawyer to litigate at the NTSB, who is an administrative lawyer familiar with those procedures, and another lawyer who is familiar with the court of appeals procedures. In addition, the court of appeals is a very expensive option. In addition, the court of appeals is not very well-equipped to handle these kinds of cases.
Mr. OBERSTAR: Who are people likely to go to a court of appeals when they consider it significant enough to do so?
Mr. YODICE: Well, the answer is the people who have the wherewithal. You’ve heard today that there are many, many—especially pilots—who don’t have the wherewithal to litigate these matters, and especially not to take the case to the court of appeals. Whereas, if they’re in the National Transportation Safety Board already, as a matter of judicial economy, they can better litigate before the board than they can in the court of appeals.
Mr. OBERSTAR: You know, when I look at the distribution of actions—private pilots, 712, for the period reviewed by GAO, and student pilots, 111; instructors, 68. That’s a little over half of the total number of certificate actions. Commercial pilots, 422; air transfer pilots, 242. There is—that’s a relatively small number of cases, by the way, compared to the total pilot community.
And so if—I see your point. It takes some degree of expertise and some financial means to go to the court of appeals. You’re saying that the average GA pilot doesn’t have that resource, so he has the NTSB process to go through. Is that burdensome?
Mr. YODICE: Of course it is burdensome, Your Honor—Your Honor—
Mr. OBERSTAR: That’s all right.
Mr. YODICE: I’m falling into Mr. Riggs’ trap.
Mr. OBERSTAR: We sit in judgment, too.
Mr. YODICE: But it is a lot less expensive to litigate in a single forum, to litigate in a forum which is expert in aviation, to a forum that has experience in determining facts, rather than a court of appeals, which usually has a record before it that has been fully developed on both sides, which it will not have where we appeal an emergency action by the FAA.
In fact, the record in the court of appeals would just be the FAA order, very one-sided. Now there may be opportunity to try to get some other evidence in, but that’s not the kind of forum that ordinarily deals with such things. Judicial economy, a single forum, the forum that’s going to hear the merits, is better equipped to hear the emergency nature of the case.
Mr. RIGGS: May I supplement what Mr. Yodice said, Mr. Oberstar? Would that be okay?
Mr. OBERSTAR: Yes.
Mr. RIGGS: First of all, I want to make a point. I want to say hello to you. I’ve had the pleasure of taking you and your wife around at Oshkosh 2 years ago and enjoyed the visit that we had. So I just wanted to mention that and say hello to you.
But let me piggy-back on what John has said. In Ameristar’s case, we looked very closely at the option of going to the Fifth Circuit Court of Appeals, but we elected not to do that because of the time and the energies and effort, and we felt we had a good defense to this; and we, instead, focused on the paperwork and all the work that had to be done.
We were not sure of how long the court of appeals would respond. You’ve heard instances of where they respond sometime outside the 60-day limit in which the NTSB has to resolve the matter anyway, and sometimes they don’t respond at all, so it’s not really a workable option. Now, it’s there, and I understand what you’ve said, but you must understand it’s not really a workable option.
Mr. OBERSTAR: Well, a few years ago, the general aviation pilot community came into this committee and said, ”FAA’s being heavy-handed; the civil penalties process is burdensome. It operates against us, and we need another avenue.” And although I disagreed with that approach, eventually we worked something out so that now you have this appeal through the NTSB. I thought we were loading them up with too much work and too many lawyers, so now you’ve got that process going.
And now you’re coming in and saying now we need relief over here. Now, how much more relief are you going to have? I mean, I want the FAA doing the job, and I don’t think 1 percent of cases or 3 percent, and 1 percent of those are rejected—I don’t think 3 percent is egregious. I don’t think they’re being arbitrary and capricious, and I don’t think the case has been made. You’ve got a lot more convincing to do to get me to that point.
Thank you very much. The time is up. Thank you, Mr. Chairman.
Mr. DUNCAN: Thank you, Mr. Oberstar. Mr. Bass.
Mr. BASS: Thank you very much, Mr. Chairman, and this has indeed been an interesting hearing.
And I’d just like to begin by saying that what Ms. Gilligan talks about in terms of the issue of veracity is an extremely important one. There are no state troopers or sheriffs or law enforcement officials in the sky. It is very easy to falsify documents to create instrument currency when it doesn’t exist, and so forth, and the penalties for falsifying or misrepresenting one’s qualifications and experience should be strong, and they should be swiftly enforced. And for the safety of all the folks on the ground, as well as the passengers and the pilots and so forth, people that operate in this fashion should not be in the air.
My question for Mr. Campbell relates to the nature of H.R. 1846. The NTSB would only be making what amounts to sort of a summary judgment on whether or not an emergency is required, versus a normal procedure for pulling a certificate. Do you really need to understand all the details of the case and go through evidentiary hearings and all that process in order just to make what would amount to sort of a summary judgment about whether or not one procedure or another needed to be followed?
Mr. CAMPBELL: No, sir; I don’t believe you do, and that’s a point that I would like to have made quite clear if this were to be adopted by the committee as legislation. We do think that what we’re talking about is a summary review, an abuse of discretion of review, and could be done on an accelerated basis. If it were to be a full evidentiary hearing, and particularly if it were to be a full evidentiary with a right of appeal to the Board, then I think the timeframes are unrealistic.
Mr. BASS: I guess I’ll pass for the—that takes care of it. Thank you very much, Mr. Chairman.
Mr. COOKSEY: [presiding] I would point out that Mr. Bass is also a pilot, and we were over there lamenting the fact that with this new day job, we don’t get to fly as much as you guys, so we envy you.
Mr. LIPINSKI: Thank you, Mr. Chairman. Can either one of the lawyers here on the panel tell me what is the average fee to litigate one of these cases pertaining to the emergency stay before the court of appeals, and then what it would be to litigate before the National Transportation Safety Board?
Mr. RIGGS: I’ll take a run at that first. It varies, Mr. Lipinski, as I’m sure you can understand, considerably, depending upon the airman, the nature of the allegations, and how long the trial lasts. I will tell you that a simple airman who has had a license suspension—anywhere from $3,000 to $5,000. But if you have—that’s true at the trial level only. If there’s an appeal, you can add another $1,500 to $2,000 on it for the cost and time spent in writing a brief and submitting it.
Mr. LIPINSKI: Now is that through the court of appeals and the NTSB?
Mr. RIGGS: No, no. I’m talking strictly about the Board now. If you want——
Mr. LIPINSKI: The National Transportation Safety Board.
Mr. RIGGS: Yes, sir. If you’re asking me what my estimate of what the charges would be to file an immediate appeal in the court of appeals seeking to enjoin the emergency aspect, because of the brief writing and the time constraints and what goes on, I’m going to give you an educated guess—I hope nobody holds me to it. You’re probably looking at anywhere from $7,500 to $15,000.
Mr. BASS: Would the gentleman yield just for a second? Over here?
Mr. LIPINSKI: Yes, I’ll be happy to yield. Just one moment, though. Let me just finish this, and I’ll be happy to yield.
Okay, that’s the emergency through the court of appeals. Okay, I’m the pilot, I give you the 15—how much did you say—15 what?
Mr. RIGGS: Well, $7,500—I’m—
Mr. LIPINSKI: Okay, I’ll give you $10,000 and we’ll make a deal.
Mr. RIGGS: That’s a good number.
Mr. LIPINSKI: Okay.
Mr. RIGGS: What did you do?
Mr. LIPINSKI: I lost.
[Laughter.] Okay, so now we go to the National—of course, I could have won, but—well, anyway, we go to the National Transportation Safety Board. How much more is it going to cost me?
Mr. RIGGS: Now are you talking about in the alternative to have a due process hearing like the legislation requires? Or to go through—
Mr. LIPINSKI: Existing law—existing law.
Mr. RIGGS: Sir?
Mr. LIPINSKI: Under existing law.
Mr. RIGGS: Under existing law, you’re going to go to a trial on the merits of the revocation, probably within 30 days, and then you have additional time to appeal. I’ll give you a high number. In Mr. Wachendorfer’s case, because of the massive records and all the energies it cost, the legal fees ran about $125,000.
Mr. LIPINSKI: I’m just a simple pilot.
Mr. RIGGS: Simple pilot?—probably $5,000 if we have a 1-day hearing and there’s no additional cost. If we have to travel, and you had travel expenses and costs, it may be another $1,200, but basically $5,000.
Mr. LIPINSKI: I’m going to have the hearing in Washington, D.C.; I get a lawyer from Washington, D.C, so it costs me $10,000. That’s who I want to get? Okay. So it costs me $10,000 when I go to the court of appeals, and then it’s going to cost me another $5,000 or so when I go to the National Transportation Safety Board, so we’re talking about $15,000. Correct?
Mr. RIGGS: Well, I hate to give numbers like that, but in that ballpark, in that range. It may be another $5,000.
Mr. LIPINSKI: Now I yield to the gentleman over there.
Mr. BASS: Well, the gentleman was pursuing exactly the point that—
Mr. LIPINSKI: Oh.
Mr. BASS: Are you going to ask him what it would cost if the legislation passed?
Mr. LIPINSKI: That’s where I was ultimately going.
Mr. BASS: Okay, I yield back.
Mr. LIPINSKI: Okay. Would you answer the gentleman’s question?
Mr. RIGGS: If I understand, his question is, if this legislation passes, what did that do to those figures? Well, if the legislation passes and you have an immediate due-cause hearing—I will call it that for lack of a better term—you’re probably adding another $1,000 to $1,500, maybe $2,000, to that cost, but—but, if the ALJ, if the rules promulgated by the board transfer this hearing responsibility to an administrative law judge and the ALJ rules that there is, in fact, no emergency, then the case proceeds as a non-emergency basis. And perhaps you have a little more time to investigate and prepare, and you’re not shutting down your practice to do what you frequently do in these cases, and that’s to get ready for what’s going to be a very expedited proceedings.
Mr. LIPINSKI: Okay, now—
Ms. GILLIGAN: Mr. Lipinski, I just want to add to make sure we understand at least the FAA’s experience at the Court of Appeals. Generally, our experience has been that the initial request is for an immediate stay of the effectiveness of the order. That is generally a paper-filing—and I have no idea what fees are these days or how people set them—but our experience is that generally it’s a request for an immediate stay. Generally, those are denied—and that decision is made within a week to 10 days.
Very few of the cases that we’re familiar with go on to try to have a full determination of whether or not it ought to have been an emergency. When the court doesn’t stay the effectiveness, generally, the case just continues in the NTSB setting. So actually, it can be a two-part effort, but our experience is not that there is extensive brief-filing or other kinds of practice at that point.
Mr. LIPINSKI: That’s certainly my understanding of what the gentleman said. You know, he does have to file a brief; it could be a very extensive brief in regards to the court of appeals, in regards to the immediate revocation of the license and the stay that he would be requesting.
You were stating it could be an extensive brief, were you not?
Mr. RIGGS: Well, I am, but not only that, there are documents. When you take a matter like this to the court of appeals, they not only want to know what the underlying facts of it are, but on what you based your request. So you may wind up interviewing people, you may wind up taking affidavits. So it isn’t a matter of just sitting down in a library and writing a brief, and spending 2 days writing a brief and filing that. That isn’t the way it works at all. There’s a lot more time involved in going to the court of appeals.
Mr. LIPINSKI: That was my understanding of it, also. Okay, now—
Ms. GILLIGAN: It’s just not been our experience; that’s what I just wanted to make clear.
Mr. LYNCH: Could I comment on that?
Mr. LIPINSKI: Certainly, Mr. Lynch.
Mr. LYNCH: It seems to me that it depends on whether we’re talking about a full-blown hearing before the Board or just, as Mr. Campbell suggested, some kind of paper process. This is just on the emergency aspect.
Mr. LIPINSKI: Well, the emergency aspect is before the court, is it not?
Mr. LYNCH: Right, now it’s before the court, and Ms. Gilligan said, it goes basically to the motion to stay and then most people don’t proceed further. That’s all written documents. Yes, that would include affidavits, perhaps, and I think there’s a $100 filing fee in the court of appeals.
But, other than that, I’m not sure what would be different, depending on the standard that the Board would apply, between the cost of going to the Court of Appeals and the cost of going to the Board, because presumably you’d submit the same type of information to the Board in order to challenge the emergency nature of the order. So I don’t understand how it would cost $10,000 before the Court of Appeals and only a couple of thousand before the Board.
Mr. LIPINSKI: Another $5,000—well, he said it would be another $5,000 for the National Transportation Safety Board.
Mr. LYNCH: Right, but—
Mr. LIPINSKI: Perhaps some of the work he did for the $10,000 was anticipation of losing before the court of appeals and moving on to the National Transportation Safety Board.
Did you want to add something?
Mr. YODICE: Yes, sir. I don’t think there is any question that it would be much more expensive to litigate in the court of appeals than it would be to litigate before the National Transportation Safety Board. I understand the FAA doesn’t have a lot of experience in this, and they do have unlimited resources to litigate these matters. The pilots do not, and we would have to be litigating in two forums at the same time.
You heard Mr. Campbell describe the very truncated procedures. This matter before the Board—the underlying substantive violations—would be going to trial within two to three weeks after the FAA issues its orders. It has to be done within 25 days, and at that same period of time, the same lawyer that is preparing for that hearing will have to be going to the court of appeals, or it will be a different lawyer, a different forum. I can’t imagine a case where it would be just as expensive to go to the Board as it would be to go to the court of appeals.
Mr. LIPINSKI: Thank you. Ms. Gilligan, you talk—you state in your testimony the fact that there are only, on an average, two to five appeals per year challenging the FAA’s use of its emergency authority. Have you looked into the cost that is involved, and perhaps that being a severe impediment to people appealing?
Ms. GILLIGAN: No, sir. I can say that we have not considered the costs, the economic impact that the emergency action may have at the point where we’ve made a determination that the evidence supports a finding on our part that there is a lack of qualification. We do not consider the economic impact.
Mr. LIPINSKI: It just seems to me we’d—I know there are not an awful lot of them—but there are—it seems to me that we’d have more than two to five if it was affordable by people to appeal it. That’s my opinion; I’m entitled to it. I may be wrong, but it just—only two to five—it seems like a very small number of cases, and to me there has to be some economic factor working upon this situation.
Mr. Dillingham, has the GAO done any investigation of the legal fee impact upon people appealing these cases?
Mr. DILLINGHAM: No, we haven’t, Mr. Lipinski.
Mr. LIPINSKI: Okay. Thank you, Mr. Chairman.
Mr. COOKSEY: Thank you, Mr. Lipinski. A couple of questions. Ms. Gilligan.
Ms. GILLIGAN: Yes, sir.
Mr. COOKSEY: In a number of these cases it’s my understanding that some of the incidents that have precipitated the emergency revocation of a license occurred months, perhaps years, in advance. How can you justify pulling in a license or a medical on someone with an incident that occurred many years in advance, or prior to the incident?
Ms. GILLIGAN: Again, sir, what we look at is whether the evidence supports a lack of qualification, and many of the cases where the information or the incident that was the violation, where that occurred sometime ago, oftentimes those cases are based on findings that falsification has occurred.
It comes to our attention much later because perhaps someone reports it to us or gives us a lead, or in the course of regular investigation we determine some discrepancy in records that causes us to go back and to complete an investigation and determine that at some point earlier in time, false entries were made into records that were required to be maintained.
As I said earlier, any issue of falsification has always for the FAA, raised a fundamental question of qualification because of the need for us to be able to depend on the documents, and we have, as a matter of policy, taken emergency actions based on falsifications, regardless of when they occurred.
Mr. Riggs made the comment that you wouldn’t expect someone to come in and take your license to practice law off the wall. On the other hand, we all hear of cases where people practice law, only to be found out years later that they never actually completed law school, or they never actually passed the Bar. And they are not permitted to continue to practice because they happen to have had 5, 10, 20 years of what appeared to be successful practice. There are certain requirements to be qualified to hold our certificates, and failing to meet those requirements, whenever we learn of it, we believe raises a question of qualification.
Mr. COOKSEY: That was a good response. I’m glad you mentioned that it was lawyers, and that doctors don’t do that.
Ms. GILLIGAN: No, sir.
Mr. COOKSEY: There actually have been some cases.
Let me ask you this. Of the accidents—of the people that have been involved in an emergency revocation of a license, how many of them were a result of an accident or they came about after an accident? Are these people that have had their licenses pulled more prone to be involved in accidents?
Ms. GILLIGAN: I’m afraid I’ve actually not looked at that data, but I can tell you that we have had cases where, for example, we got an anonymous call about a pilot who was flying under the influence, and the aircraft was met when it arrived by both an inspector and a law enforcement official. A Breathalyzer test was administered. In fact, the pilot was under the influence, and the emergency order was issued that very day.
So, there clearly is the potential for safety implications or potentially serious accidents or incidents that we have addressed using the emergency order. I can’t think off-hand of a case that arose out of the investigation of an accident per se, though.
Mr. COOKSEY: Does anyone else on this panel have any comments as we close? Yes, Mr. Yodice.
Mr. YODICE: Except to say, sir, I think that you probably have heard from all of the certificate holder witnesses. All of them endorsed the FAA having the power of emergency authority. All of them are very much concerned about aviation safety, and this is a very modest bill drafted to ensure that there would be no compromise of safety.
Mr. COOKSEY: Good. Well, I feel that most of the people who were involved in the warbird incident were people that were probably high-time pilots, probably very competent pilots and better than the average person that’s out there flying as a recreational pilot or as a part-time pilot.
But on the other hand, we’ve all got to follow the rules. We do have to keep accurate records, and sometimes I know all of us probably fail to put some flight time in, but, of course, there’s no excuse for putting flight time in that did not occur either.
Overall, I feel like the FAA does a good job. I hope that the public realizes there are more people, there are more passengers, and there are more pilots flying longer, farther, and, yes, even higher than any time since Kitty Hawk, and the fact that the record is good and getting better is a testimony to all the people—both the pilots, and the FAA. Public safety is still of paramount importance. This whole issue gets back to the debate that we hear around this city so often. It’s a debate, it’s a battle between the regulators and the regulated. I hope that both sides will be very responsible, try to do a good job, and we can come to a good solution and conclusion on this issue.
If there’s nothing else to be heard, the meeting—
Ms. JOHNSON: Do you mind if I ask a question?
Mr. COOKSEY: Oh, I’m sorry; I didn’t see you. Sure. Ms. Johnson, I didn’t realize you had moved.
Ms. JOHNSON: Thank you, Mr. Chairman.
I have some concerns. I’m new on this committee; I’ve only been here almost 6 years, and the one thing I understand is that no matter how low unemployment is, for the ones who are unemployed, it’s 100 percent, and no matter who gives the bill, if it’s a big bill, it hurts.
I have listened very carefully. I have not taken a position on the legislation, and I don’t consider that the GAO is perfect, but it’s all we’ve got. And in looking at what they have said of 137,506 enforcement cases closed in Fiscal Years 1990 through 1997, only 3 percent were issued emergency orders, and the actual number of emergency orders ranged from as low as 322 in Fiscal Year 1990 to a high of 573 in Fiscal Year 1996.
Now on the face of that, when you look at these numbers, the average uninformed person would think that that’s a pretty low number. Now recognizing full well that those that are affected, they’re affected 100%. There has been accusation of vendetta and harassment. Is there anybody on this panel that can verify any of that? Or give any.
Mr. YODICE: If I can address your first point, because I think it’s well made. When we talk about only 3 percent of the enforcement actions, by my calculation that’s roughly 3,700 cases. So while 3 percent may sound like a very small number, it in fact is a very large number.
But I think more telling, in the GAO report I find that there were 170 cases dropped. Now, Madam, if I put that into context, these were cases that the FAA brought on an emergency basis which immediately grounded the airmen or put the company out of business, and then the FAA itself ultimately determined that it didn’t have a case and dropped it. So, again, you’re very correct that if it’s you that’s being affected, the statistics really don’t matter, and that’s really what we’re trying to accomplish in this legislation.
By and large, the FAA does a wonderful job, and, again, you have not heard anyone on this panel challenge that aspect, but there are some abuses. FAA has an unreviewable but very powerful weapon in its enforcement arsenal to ground a pilot immediately, and all we’re asking for is an opportunity for the airman to take that matter before an impartial tribunal. You would expect that the FAA, they’re going to be advocates. They’re going to advocate their own circumstance as they should. These few people that are affected ought to be able to take advantage of some due process.
And then to your second point, I think you heard that every one of the witnesses on the earlier panel felt that they had been singled out for enforcement by the FAA, so those are the best examples that I could offer on that.
Mr. RIGGS: Ms. Johnson, may I add one thing to your question? Your comments are very insightful, but I would like to add this. I don’t think I heard anyone on this panel that’s sitting up here right now say that the proposed legislation would impede, affect, or adversely impact the FAA’s ability to do its safety job. I haven’t heard anyone say that. There may be a few little things we need to massage and fine tune to make it work, but no one up here, as I understand what’s been said, has said that this is going to create a problem, that they now cannot do their job properly because of this legislation. I don’t think that’s the case at all.
Ms. JOHNSON: How serious do you think falsification of records might be?
Mr. RIGGS: Are you asking me?
Ms. JOHNSON: Anybody who wants to answer.
Mr. RIGGS: It’s unacceptable—it’s unacceptable. Falsification must not exist. I mean, Ms. Gilligan very rightly says that one of the ways the FAA does its job is to monitor and look and check records: maintenance records on airlines, flight time and duty limitations, pilot log books, dispatch releases. Those are all documents which—well, the FAA can’t have an inspector sitting in a carrier all the time observing it; they just don’t have the personnel.
But there are times when mistakes are made, and there are times when there are errors—not deliberate commissions, but just errors and mistakes. And my concern is that they might do a little better job of investigating some of those and seeing what the individuals involved have to say about how those—I was a prosecuting attorney for 13 years, and during that period of time, when I got ready to go after somebody for a criminal violation, I’d try to sit down with them, if their lawyer would let me, and find out what the facts were. I only heard the police side, and sometimes there needed to be some additional information supplied, and that’s what I would hope would happen.
If this legislation is passed, I’m willing to bet you that the FAA takes a little harder and a more serious look at its emergency revocation authority, knowing that it’s going to have to, perhaps, come and defend it at some point in time.
Ms. JOHNSON: One quick, final question to any member of the panel. If there was an anonymous call that a pilot was under the influence, and the FAA representatives went and found that to be true and issued an immediate revocation, or at least a citation, is that fair?
Mr. RIGGS: Absolutely. If the pilot is going to exercise his certificate within the period of time, the short period of time that he’s intoxicated, I don’t want to get on an airline with him.
Ms. JOHNSON: Nor do I.
Thank you very much, Mr. Chairman.
Mr. COOKSEY: Thank you, Ms. Johnson. That said—and, again, my apologies to Ms. Johnson. I didn’t realize you had moved, and my peripheral vision is not what it should be.
We do appreciate both panels being here. I feel it was a good hearing, a good meeting, and hope that we’ll be able to move forward from this point. Thank you very much.
Mr. RIGGS: Thank you, Mr. Chairman.
[Whereupon, at 12:01 p.m., the subcommittee adjourned subject to the call of the Chair.]