As I read your post, you say that any time you show up in front of a NTSB Judge it is an appeal not a court case. That the FAA has already “convicted you” with out a trial. As I sit in court watching the proceedings, it IS a trial. We never know the outcome until the Judge hands down his verdict. The FAA proposes a sanction (that is why a Letter of PROPOSED Certificate Action is sent) but the Judge rules on the evidence presented. The airman or the FAA can appeal (and this word is used by the judge after the case) if they are not in agreement with the ruling. As far as I have seen, unless there is an Emergency Suspension Order, the airman keeps their certificate until the Judge rules on the case.
While it's true that the airman keeps his or her certificate pending the appeal, it's an appeal none the less.
In neither civil nor criminal law will a summons state that you have been found guilty, and have the opportunity to appeal the judgement as already rendered. With the FAA, however, one has privileges which may be altered or revoked at any time, rather than rights.
So long as an airman is appealing the process, he can keep his or her certificates and privileges intact, except for the case of an emergency revocation. The Administrator has a long and distinguished history of indiscriminate use of emergency revocation authority (anybody remember Bob Hoover??) as a means of circumventing his/her own regulation. I don't believe anybody would have the gall to dispute that.
Never the less, receiving a notice of proposed certicate action is not the same as being charged with a crime. One is charged, convicted, and handed the sentence all in one letter. If one does not receive the letter, if one does not respond or appeal, one stands convicted. The FAA, in effect, says, "This is what we're gonna do. You can fight it, appeal it, try to have our decision reversed, but this is what we're gonna do." That one receives the letter knowing that in most cases the FAA's actions stand, doesn't help.
Most importantly, when the airman is given notice of proposed certificate action, the burden of proof of innocence is on the airman. In civil or criminal court, the prosecution has the burden of proof. This only makes sense. If you make an accusation against someone, you're required to prove your case. In criminal court, or civil court, this is either beyond a reasonable doubt, or ideally, with absolute conviction. In administrative court, however, it's "preponderance of evidence."
Airman A owns Airplane A. Airplane A busts the ADIZ around Washington DC. Airman A receives notice of a proposed certificate suspension for busting the airspace. After all, his airplane was sighted, he's the owner, the proponderance of evidence suggests he's at fault. Of course, as with current events, the mooney belonging to Airman A was actually in Texas at the time of occurence...
Or one of my favorites...a woman received a letter of proposed certificate action against her husband for buzzing and being careless and reckless with his aircraft. An experimental, he had been seen performing these acts, and the Administrator intended to make the public safe once again. The woman was a little perplexed however, as her husband had been dead for seven years, and his airplane, sans engine, had been hanging in a museum for the past three years. Preponderance of the evidence.
In such a case, it falls upon the airman to prove he wasn't there. Somewhat difficult (though not impossible) if one is dead. But nearly impossible if one can't produce adequate documentation and whitnesses who
didn't see one commit the crime. The burden of proof falls on the pilot by default. The Administrator shares the legal burden of proof in the appeal, but that's nothing more than that used to establish cause to send the notice of proposed certificate action in the first place. In other words, the FAA needn't lift a finger. Pratically speaking, the FAA's case has been made. The airman needs to mount a defense, and it falls upon the airman to either accept the sanction, or prove his innocence, effectively placing the full burden of proof on him or her.
Further, the FAA has the privilege of interpreting it's own regulation. These interpretations can come before the appeal, or during it, or between successive appeals. The ALJ isn't there to decide if these interpretations are correct; the Administrator makes the regulation (and the representatives of the Administrator, thereof),the Administrator interprets the regulation. The ALJ is there to determine if the airman was in compliance with the regulation and any available interpretations thereof. Again, an important distinction in the process.
In civil and criminal court, the judge interprets the law, and attorneys on both sides for prosecution and defense, or littigants, argue the law. Not so for the ALJ.
Imagine a criminal court in which the prosecuting attorney is the same one who has made the law. Imagine the prosecuting attorney being able to redefine the law in mid-trial. Unimaginable? This is part of the normal process when facing off against the FAA in Administrative Court. Moreover, the FAA does have the power to take it to the next level, profering criminal charges and going after the pilot with civil penalties, too. Triple whammy, FAA style. You won't see that in criminal court, or civil court, either.
When the FAA serves notice of proposed certificate action, the FAA isn't on a fact finding mission to determine guilt or innocence. The FAA has already determind that the airman is guilty, and is stating what it proposes to do...what will do unless the airman can convince an ALJ that he or she is innocent. The Adminstrator does not hold investigations, informal meetings, telephone conferences, or any other part of the enforcement proceeding for the purpose of determining if the airman is innocent...only for the purpose of garnering evidence to be used against the airman. Another very, very critical distinction.
One afternoon I entered a certain FSDO for the purpose of getting some paperwork. I was sent back to an inspector's cubicle. I waited outside his cubicle, as I could hear he had a telephone conversation in progress, and I did not wish to interrupt. Opposite his cubicle was another cubicle, this one occupied by an individual with whom I was acquainted. This individual, former military, had been a check airman with an attack helicopter squadron, and was well known. I recognized his voice immediately. He was on the phone too, talking about a private pilot who had accepted compensation for flying a relative somewhere.
"I don't just want to make an example out of this guy. I want to make his life a living hell. I want to rip his heart out of his chest while it's still beating and hold it up, bloody, for the whole world to see. I'm going to make him suffer."
I listened for a few minutes, and became more disgusted, and enraged. I finally left the FSDO, because I was on the verge of pressing my luck, and was about no longer able to hold my tongue.
The FSDO level can initiate certificate action. The FSDO level cannot interpret the regulation, and often understands it wrong...but they can initiate certificate action based on their own understanding of the regulation.
I just finished up an 18 page report detailing exactly why a 135 operator can make a Part 91 flight at the end of a 14 hour day of duty, without it interfering with duty or the daily flight time limitations. I prepared this at the request of a Part 135 pilot who faced a Director of Operations and a POI that don't understand the regulation, or the interpretations thereof. In my report, I included 6 different legal interpretations by the FAA Chief Legal Counsel, regarding the matter.
Now, it's quite conceivable that this pilot, making a perfectly legitimate Part 91 repositioning ferry home after completing duty away from his home base, might become the target of certificate action by his own POI. He's operating an emergency service...getting the helicopter back to it's base is not just a revenue issue but a lifesaving one...getting it back to a fresh crewmember and maintenance is critical. It's legal. It's safe, It's been clearly approved six times over by the Administrator...but does the Principle Operating Inspector know and understand this? No. Never the less, he's the one that will initiate enforcement action if this emergency medical pilot engaging in emergency life saving operations, blessed by the Administrator and clearly legal, makes that Part 91 repositioning leg.
Can the aeromedical pilot win on appeal? Probably. But as the inspector who chased me down in the previous post noted, "You'll win on appeal. You're right. But it will ruin your career. I might just do it for spite, anyway."
Guilty until proven innocent. You might keep your certificate until the appeal is completed. But make no mistake about it, it's up to you to prove you're innocent, and if you can't do that, your goose is already cooked. You're already determined guilty before you ever start, the penalty is hanging over your neck, and it's up to you to field all the evidence and stand against the FAA. It's you, the beggar who enjoys the privileges the FAA is nice enough to permit you to have, against the FAA, who makes the regulation, interprets the regulation, sets the penalties, and barring your ability to prove otherwise, administers them.
They say don't mess with mother nature, but mother nature has nothing on the FAA.
