Loose standard

The purpose of the rules is to ensure fairness in the proceedings, govern admissibility, and promote uniformity of the law. Unfortunately, these rules do not apply to all administrative proceedings. Indeed, under the Administrative Procedures Act (APA), federal agencies are allowed to use a looser standard that allows the admission of any evidence that is not “irrelevant, immaterial, or unduly repetitious.”

Air safety proceedings, which include appeals of FAA actions against airmen for alleged violations of the federal aviation regulations, are held before administrative law judges (ALJ) employed by the National Transportation Safety Board (NTSB). NTSB ALJs have their own rules of practice based on the APA and have consistently ruled since at least the 1980s that the FRE are “non-binding guidance.” In 2012, Congress passed the Pilot’s Bill of Rights, which requires the NTSB to apply the FRE “to the extent practicable.” Whether the FRE applies or the APA rule applies can be decisive in that it may allow crucial evidence to be admitted or require its exclusion. Unfortunately, the NTSB ALJs, even after the enactment of the Pilot’s Bill of Rights, still said the FRE was “non-binding guidance.” But the latest decisions tell a different story.

In a recent case, the presiding NTSB ALJ dismissed the FAA’s case after the FAA attorneys failed to properly prepare necessary documentary evidence pursuant to the FRE or offer testimony necessary to prove certain allegations made against a pilot. Although the ALJ did not definitively state that the FRE is binding, the ALJ relied heavily on the FRE before dismissing the FAA’s case.

That at least some of the NTSB ALJs appear to be heeding Congress’s guidance in the Pilot’s Bill of Rights to apply the rules of evidence is a welcomed development. Requiring the FAA to prove up its case under rules designed to ensure fair and just proceedings will undoubtedly benefit airmen going forward.

aopa.org/pps