Beware: Due Deference
What was advisory is now binding
BY HARRY L. RIGGS JR.
Sport Aviation - November 2000
When used in legal terms, "due deference" means one party must base its opinion or judgment on the rules, regulations, or interpretations of those rules and regulations held by a second party. In aviation, these two parties are the National Transportation Safety Board (NTSB) and the FAA. And a recent United States Court of Appeals decision that involves due deference could become a serious problem for everyone in aviation.
To appreciate and understand the problem, one must follow the steps that led to it.
When the FAA brings a certificate action against a pilot for allegedly violating the Federal Aviation Regulations, a National Transportation Safety Board administrative law judge (ALJ) hears the case and issues a written decision. If the loser (the pilot or FAA) doesn’t like the ALJ’s decision, he or she can make an appeal, which is reviewed by the five members of the NTSB (also known as the Board).
NTSB rules on the appeal process are specific and include time limits. These rules include provisions for oral arguments, where attorneys for the FAA and pilot discuss the matter before the Board, but they are rare. Most appeals to the NTSB are made in written briefs, documents from both parties that tell their respective stories.
The Board has heard a lot of cases over the years, and the decisions it makes and orders it issues form a vast body of law and precedent, which pilots and the FAA can use to substantiate their appeal, and which the Board uses as guidance when making decisions. All of the Board’s decisions are collected in bound volumes of the National Transportation Safety Board Orders and Opinions, and indexes help anyone research a particular subject in this existing body of law.
The problem is not with this existing body of law that interprets the FARs and is available to the public. The problem is with the interpretations of those regulations and the positions the FAA takes with regard to an act by a certificate holder, and whether that act actually amounts to a violation of the FARs.
As anyone who’s earned a pilot certificate—or built/restored an airplane—knows, the FAA publishes a huge number of Advisory Circulars and FAA Orders that interpret the FARs and attempt to apply them to different situations.
For example, an extensive Advisory Circular deals with building and certificating a homebuilt. Another Advisory Circular deals with the process by which homebuilts are test-flown. And other Advisory Circulars tell how the FAA expects people to conduct private, commercial, and other flight tests.
In the past, these publications—Advisory Circulars—have been advisory only. Common sense tells anyone that if the FAA publishes a document that attempts to explain how people should do certain things, they should follow the document’s advice. But in numerous instances these documents do not contain all of the necessary information about a particular situation. Herein lies the root of the problem.
In June 1994, Captain Richard Lee Merrill was in command of Northwest Airlines Flight 1024, which departed from Los Angeles International Airport. Air traffic control instructed him to climb to and maintain 17,000 feet. Captain Merrill correctly read back this instruction to ATC and complied with it.
A short time later ATC transmitted an altitude clearance to American Airlines Flight 94, directing it to climb and maintain Flight Level (FL) 230 (23,000 feet). The American Airlines flight promptly and correctly acknowledged this clearance with its own read back. Unfortunately, Captain Merrill thought the clearance was for his flight, and he read back to ATC what he assumed was a clearance for his aircraft to climb to FL 230.
Compounding the problem, Captain Merrill and the American Airlines flight read back their clearances at more or less the same time. Because the American flight was a half step quicker in keying the microphone, it stepped on Captain Merrill’s read back—and ATC didn’t hear it.
Hearing no ATC’s correction of his read back, Captain Merrill commenced his climb. When ATC noted Captain Merrill’s deviation from his last assigned clearance, the controller immediately instructed him to return to 17,000 feet.
During this event, Captain Merrill violated the clearance and separation standards, and the FAA initiated a certificate action against him. Administrative Law Judge Roger Mullins heard the case and, at the end of the evidentiary hearing, stated, "In this particular case, the initial mistake was made by Captain Merrill, and he’s going to have to be responsible for it. And I find under the evidence that he was in regulatory violation as alleged."
Captain Merrill appealed this decision to the National Transportation Safety Board. The Board issued an insightful decision that concluded that Captain Merrill’s error was one of "perception." He truly thought the clearance was addressed to his flight and properly acknowledged that clearance.
The Board rejected the FAA’s argument that the error was caused by Captain Merrill’s careless inattention because there was no evidence in the record to support such a conclusion. The Board further concluded that there was no error in Captain Merrill’s procedure. Absent the stepped-on (or squelched) transmission, he fully read back the clearance so ATC had an opportunity to correct his error.
The Board reversed Judge Mullins’ decision and imposed no sanction.
Not satisfied with the Board’s decision, the FAA took its case to the United States Court of Appeals for the District of Columbia, as the law permits the dissatisfied party to do. The Court of Appeals’ decision raises two important points that should be of concern to the flying public. In reversing the NTSB’s decision and remanding the case back to the Board for further consideration, the court made a statement that creates an unsafe situation.
The court stated: "Nor is the FAA’s interpretation either inconsistent with or rendered irrational by what Merrill contends is the routine pilot practice of reading back clearances and taking ATC’s silence as acknowledgment of accuracy. ‘ Read backs,’ the FAA points out, ‘add a layer of safety redundancy.’ If a pilot transmits a read back, ATC will usually be able to correct a misunderstanding even if the pilot himself did not realize there was one. But as this case shows, the read-back procedure is not fail-safe; there is no guarantee that ATC’s silence means it has received and confirmed the pilot’s transmission. This underscores the reasonableness of the FAA’s policy, which requires pilots to perceive ATC instructions correctly and not to depend upon the potential unreliable read-back mechanism."
If the above-cited language is understood correctly, it means that the FAA argued to the Court of Appeals that read backs are a waste of time and not reliable. This defies every written comment in the Aeronautical Information Manual and the FAA’s Air Traffic Control Procedures Manual regarding read backs. (It is difficult for this author to think that is what the FAA’s intentions are.)
The next problem pertains to another point raised in the decision; the public and, particularly, the certificate holder may not be aware of the various interpretations and positions the FAA takes in litigation.
The NTSB is not bound by the findings of the ALJ, and the Board may examine the record and evidence to determine whether the judge made any errors of law or fact. Based on its own findings, the NTSB can then change or reverse the ALJ’s decision.
While the NTSB isn’t bound by the ALJ’s findings, it has always been bound by the rules and regulations validly adopted and promulgated by the FAA—and the FAA’s interpretations of those rules and regulations. However, if such interpretations are capricious and arbitrary and not otherwise in accordance with law, the Board is not bound to follow such interpretations.
Before Captain Merrill’s case went to the Court of Appeals, the NTSB refused to follow the FAA’s interpretations of its read-back rule because the FAA offered no evidence of any written policy or guideline that validated the adoption of the FAA’s interpretation of the need for a clearance read back.
In reversing the Board, the Court of Appeals stated: "The FAA is not required to promulgate interpretations through rule making or the issuance of policy guidelines but may instead do so through litigation before the NTSB. The fact that this mode of regulatory interpretation necessarily is advanced through the litigation statement of counsel does not relieve the NTSB of its statutory obligation to accord due deference."
This Court of Appeals language is a clear indication that all FAA manuals and advisory materials, including Advisory Circulars, published for guidance, and those that contain legal interpretations, will now be considered mandatory and binding upon the NTSB, as if they were regulations themselves. This leaves the question of what constitutes a "validly adopted" interpretation?
The important point of the Court of Appeals’ language is this: Because the NTSB decides appeals to FAA certificate actions, if the Board must consider the FAA’s advisory and guidance information (regardless of how it’s published) as binding—so must all certificate holders. In short, EAAers should consider all Advisory Circulars and other materials the FAA published to be binding and require full compliance by all certificate holders.
Where we go from here remains to be seen.
Chairman of EAA’s Legal Advisory Council, Harry Riggs is a partner in the Cincinnati-based law firm of Dinsmore & Shohl. He holds an airline transport pilot certificate and is one of the pilots on the EAA Foundation’s B-17 and DC-3.
