Hoover Bill Results???
Through October 2000, a total of 24 cases had been appealed to the board under 49 U.S.C. § 44709(e)(3). Six of those petitions were rejected on purely procedural grounds (one was filed after the 48-hour deadline3/ http://www.avweb.com/articles/hooverdam , two failed to include copies of the order appealed from4/ , and three failed to enumerate specific grounds for the appeal5/ ). Regarding the remaining 18 cases, a stay was denied in each case.
A significant number of these cases involve the definition of "emergency." Surprisingly, these appeals have been uniformly rejected without the finding of urgent or emergent circumstances. Commencing in June 2000, the board was confronted with a number of arguments that, despite the seriousness of the allegations against an airman, there was no urgency in revoking a certificate, generally because of the significant lapse of time between the FAA's investigation efforts and the date of revocation.
The facts of Administrator v. Esser, Docket No. SE-15992 (Jun. 29, 2000), are illustrative. Esser held an ATP certificate and flew for Scenic Air, a Part 135 carrier. Following a ramp check of Scenic Air, Esser was charged with having piloted 13 flights for hire during a single month, January 1999, following expiration of his second-class medical certificate on December 31, 1998 (the medical certificate was apparently renewed in January or February 1999). Esser also apparently failed to obtain a complete weather briefing for a single trip in January 1999 and omitted or misstated logbook entries regarding the January 1999 flights.
Approximately a year and half later, based on these alleged violations, the FAA revoked Esser's ATP certificate on an emergency basis. Notably, at the time of the revocation, Esser's medical certificate was in force, and no violations occurring later than 17 months prior to the revocation were alleged.
In his petition, Esser asserted that (1) the allegations alleged, if true, would not warrant a certificate revocation6/ ; (2) that the recordkeeping obligations alleged to have been violated were imposed on Scenic Air, not on Esser personally; and (3) "how much of an emergency can exist" when such a lapse of time has occurred? 8/
Chief Judge Fowler adopted this reasoning:
"Respondent's contention that no true emergency exists, as the Administrator did not rapidly initiate a certificate action against him after commencing her investigation of this matter, has been duly noted. At first blush, such an argument would appear to be compelling, as the term 'emergency' is commonly used to describe situations requiring immediate attention. The term 'emergency,' however, is also used to describe situations of a serious nature, without regard to time sensitivity. The Administrator's emergency authority, stemming from her duty to vindicate public safety, clearly contemplates this latter circumstance. To estop the Administrator from exercising her emergency authority here because she did not act against respondent in what he considers to be a sufficiently timely manner to reflect the existence of an emergency would be to ignore both that her allegations address critical public safety concerns which she is duty-bound to uphold and that, for reasons noted above, the serious compromises to air safety caused by respondent's alleged actions could readily be compounded but for the immediate effectiveness of her order."
Similar language appears almost verbatim in several other decisions.10/ This definition of "emergency" is clearly not what Sen. Imhofe had in mind when he sponsored the original Hoover Bill and its ultimately enacted provisions in AIR-21.11/
Four of the cases for which review was sought under 49 U.S.C. § 44709(e)(3) arose from a series of approximately 35 certificate actions which had been initiated by the FAA following an audit of training records of aircraft dispatcher certificate holders who had attended Embry Riddle Aeronautical University ("ERAU") in 1998 and 1999. 12/ In these cases, the ERAU records relating to the certificate holders failed to prove that the student had completed the requisite number of hours of training, a portion of which was credit for prior training and experience.
Of these cases, the Baird13/ petition was particularly illustrative. Baird graduated from ERAU and was thereafter employed, from September 1999 through at least August 2000, by Continental Airlines as an aircraft dispatcher. She received additional on-the-job training from Continental and was not involved in any accident or incident, nor was she alleged to have violated any applicable regulation. When apprised of the FAA's audit of ERAU in March 2000, she promptly wrote to the FAA, and she provided additional, certified details of training from ERAU, thereby demonstrating that she had in fact received the necessary instruction. Baird received no response from the FAA until the emergency order suspending her certificate was issued on August 17, 2000.
On Baird's petition for review, Judge Fowler opined:
It would seem that, upon receiving such a letter in response to its request for further information, the FAA should at least have informed respondent as to what information it deemed to be deficient and given her an opportunity to cure whatever the deficiency was before proceeding further. Instead, respondent heard absolutely nothing from the FAA during the intervening period of approximately five months prior to the issuance of the Administrator's order. The undersigned finds this quite dismaying... 14/
Nevertheless, Judge Fowler upheld the emergency order, finding that he must accept as true the FAA's factual assertion that Baird could not be proven to possess the full qualifications for the certificate she held, which constituted a serious safety issue. 15/
Again, in light of the manifest purpose of the Hoover Bill, the denial of Baird's petition seems quite anomalous. 16/ Indeed, applying the standards now in place under the statute and the Board's regulation, even Bob Hoover would be unsuccessful in challenging the emergency revocation of his medical certificate were it to recur today.