Hurry Up and Wait

NTSB Decisions Take Time

On August 24, 2014, a heartbreaking accident occurred in the mountains of Alaska. Although during the daytime with VFR conditions prevailing, the pilot of a Ryan Navion impacted mountainous terrain with three passengers on board. Miraculously, all four occupants survived the initial impact. 
Tragically, however, one passenger succumbed to injuries 35 days later. The accident launched both NTSB and FAA investigations. As a result of the FAA investigation, it was alleged that the pilot had operated lower than the minimum required altitude for a flight conducted under VFR in a Part 135 operation, among other claimed violations. Neither the accident nor the FAA’s enforcement action are the topic of this article. Instead, a more consequential issue is the focus—the NTSB’s significant delays in deciding appeals from initial decisions in FAA enforcement cases.

49 U.S.C. § 44709(d), the NTSB is given exclusive jurisdiction over appeals of FAA enforcement actions against airmen. These appeals are first heard by an Administrative Law Judge (ALJ). During this stage, the ALJ will conduct a hearing in a bench trial format, where the accused (or “respondent”) has an opportunity to present evidence, question witnesses, and argue his or her case to the ALJ (there are no juries here). Of course, the FAA has the same opportunity. After the hearing, the ALJ will issue an initial decision wherein the ALJ will uphold, dismiss, or modify the FAA’s order.

Then, both the respondent and the FAA can appeal the ALJ’s initial decision to the full NTSB. This process is more akin to a traditional judicial appeal to an appellate court, and the matter is decided on written briefs, usually without oral argument. The full Board will decide to affirm, reverse, or modify the ALJ’s initial decision.

While this procedure affords airmen accused of regulatory violations some semblance of due process, what is sorely lacking is any accountability on the part of the NTSB to timely exercise its jurisdiction. Except in the case of an appeal from an emergency or other immediately effective order, which have extremely accelerated timeframes that are often waived, there is no specific rule or regulation that requires the NTSB to act within a prescribed time period. In short, the NTSB can decide a matter whenever it wishes. The NTSB generally operates on a first-in, first-out basis, giving priority to emergency cases. But because no specific standard exists, sometimes we get absurd results—like in this case, which was not acted on by the Board for 6 years, 4 months, 3 weeks, and 1 day.

As noted above the accident occurred on August 24, 2014, but it was not until March 24, 2015, that the FAA elected to revoke the airman’s commercial pilot certificate after first revoking his mechanic certificate. Nearly 9 months later, on December 11, 2015, the FAA amended its order, deciding that an emergency existed requiring immediate revocation of the airman’s pilot certificate in the interests of aviation safety. This was followed by another amended order of revocation on December 24, 2015. There, the FAA alleged that the airman had piloted an aircraft after receiving notice of the emergency order that rendered the airman’s pilot certificate immediately invalid. The airman appealed the FAA’s order on December 29, 2015, but waived the time limits applicable to emergency orders, which meant his case would be decided along with other non-emergency cases. His certificates were left invalid for the duration of the proceedings.

Four months later, and 610 days after the accident occurred, the airman finally had an opportunity to contest the FAA’s decision to revoke his pilot certificate at a hearing conducted by an NTSB ALJ that began April 25, 2016. After a two-week recess, the hearing concluded on June 16, 2016. It took until September 2, 2016, however, before the ALJ rendered his oral initial decision. The ALJ agreed to uphold the FAA’s decision to revoke the airman’s commercial pilot certificate.

From there, the airman appealed to the full NTSB and filed his brief on November 23, 2016. The FAA responded in kind with its reply brief on January 23, 2017. And there the matter sat, for more than six years, while the parties waited for the NTSB to act. Finally, on June 14, 2023, after it had the case for 2,333 days and 3,216 days after the accident, the NTSB issued its opinion and order, affirming the revocation.

To contextualize this a little bit differently, the matter was fully submitted to the NTSB just a few days after President Trump’s 2017 inauguration. It sat at the NTSB for all four years of the Trump Presidency. We are now more than halfway through President Biden’s four-year term and the NTSB just now got around to deciding the appeal. A lot has happened in those six years.

So, why does this matter? Because this could happen to you. You could be the one waiting the better part of a decade for the NTSB to make its determination while your livelihood hangs in the balance. Although highly unusual, things like this will continue to happen without reasonable deadlines mandating when the NTSB must act.

photos of AOPA employee Ian Arendt

Ian Arendt

Ian Arendt is an in-house attorney with AOPA’s Legal Services Plan. He provides initial consultations to aircraft owners and pilots facing aviation related legal issues through the LSP. Ian is a private pilot and aircraft owner. The AOPA Legal Services plan is offered as part of AOPA’s Pilot Protection Services.

Related Articles