AOPA backs Trent Palmer's bid to overturn suspension
Leads challenge of noncompliance with Pilot’s Bill of Rights
AOPA, joined by the Experimental Aircraft Association and Alaska Airmen’s Association, argue in a case before a federal appeals court that the NTSB has consistently ignored key provisions of the Pilot’s Bill of Rights when reviewing FAA sanctions against pilots.
AOPA Legal Services Plan attorney Daniel Hassing, who helped draft the brief filed by the general aviation groups, said the importance of the case to the GA community goes beyond the particulars of one pilot's case, and straight to the heart of protections that Congress enacted and which the FAA and NTSB have not consistently followed.
The prior ruling Hassing referred to—and now asks the U.S. Court of Appeals for the District of Columbia Circuit to reconsider—involved the NTSB being overruled by the D.C. Circuit after an NTSB judge reduced an FAA-imposed sanction on another pilot.
YouTube personality Trent Palmer’s case involves different underlying facts and circumstances, but offers an opportunity to challenge a previous D.C. Circuit ruling that held, incorrectly, the GA groups believe, that the NTSB should defer to the FAA’s choice of sanction, rendering the NTSB little more than a rubber stamp in the process rather than an important check and balance in the legal enforcement system.
The NTSB on March 30 upheld a 120-day suspension imposed by the FAA against Palmer over a flight Palmer made in November 2019 that included what Palmer contends was a permissible low-altitude inspection pass over a neighborhood backyard where Palmer considered landing, but opted not to.
The flight triggered the multiyear, ongoing legal battle that originally centered on differing interpretations of FAR 91.119, which governs minimum safe altitudes. The first seven words, “Except when necessary for takeoff and landing” were the basis of Palmer’s case to the NTSB to overturn the suspension: that a low inspection pass of an off-airport location is “necessary for takeoff and landing,” regardless of whether the landing is completed.
The D.C. Circuit will hear Palmer’s petition and consider arguments from the GA groups who contend in a “friend of the court” brief filed December 18 that the NTSB has failed to follow the Pilot’s Bill of Rights—and not only in Palmer’s case.
“Despite the fact that Congress used the command mandate ‘shall’ in the Pilot’s Bill of Rights, the NTSB’s adherence to the Federal Rules of Civil Procedure and Evidence has been unfaithful,” the GA groups wrote, noting the NTSB has treated the federal rules regarding evidentiary proceedings as “nonbinding” in three other cases since the law was passed in 2012.
“Notably, ‘nonbinding guidance’ was how the NTSB described the Federal Rules of Evidence before the Pilot’s Bill of Rights” became law, the brief continued. “So the NTSB has seemingly seen fit to ignore a Congressional directive to change its ways of informality and apply a time-tested set of rules that are designed to ensure fairness and a just result in legal proceedings.”
The brief also notes that the NTSB allowed testimony on questions of law during Palmer’s hearing before an NTSB administrative law judge (despite Palmer’s repeated objections), particularly the testimony from an FAA specialist who offered a legal opinion that the federal rules of evidence do not allow.
The GA groups also asked the D.C. Circuit court to reconsider the previous case in which it overruled an NTSB decision to reduce FAA-imposed sanctions, with the court ruling in that case that the NTSB “did not accord appropriate deference” to the FAA.
The GA groups argue that the law passed by Congress does not require such deference.
The GA groups told the court that their “principal concern in this case is ensuring that what Congress legislated about how the NTSB is supposed to work is honored. Citizens and their elected representatives go through a burdensome process of passing legislation that directs agencies as to how to conduct their proceedings. The NTSB has chosen to ignore the directives and responsibility Congress gave it. This Court should not allow this result. It should require the NTSB to respect Congress’ enactments about how it does its job.”
Palmer’s attorney filed the petitioner’s brief on December 11, focusing on alleged errors by the NTSB judge, including failure to dismiss the order of suspension.
“This Petition for review principally centers on whether the FAA has complied with the most basic precepts of the due process of law in conducting air safety proceedings,” the petitioner’s brief begins, “and specifically, whether or not it allowed the Administrator to proceed forward on a Complaint which failed to identify any meaningful facts against which the Petitioner was to defend himself. Otherwise, this Petition too addresses whether the FAA’s final order of April 6, 2022, otherwise affirmed by the Board by its Order of March 30, 2023, was arbitrary, capricious, an abuse of discretion and otherwise not in accordance with the law.”
The government has a January 17 deadline to file a response, and Palmer will be allowed to file a reply to that by February 7.
