Appeal to NTSB after SAC Card revocation

by | Sep 10, 2015 | FAA, Legal, NTSB

A Statement of Acrobatic Competency (or “SAC Card”) is a certificate or rating issued by the FAA following a pilot’s evaluation by an aerobatic competency evaluator (“ACE”). The SAC Card permits the airshow performer to perform aerobatics at altitudes lower than those authorized by the Federal Aviation Regulations. In the event the FAA rescinds a SAC Card, the airman is authorized to file an appeal to the FAA Division Manager of the General Aviation and Commercial Division, AFS-800, Flight Standards Service, FAA Headquarters, Washington, DC 20591.[1] While pertinent provisions of FAA Order 8900.1 require an appeal from a rescission of a SAC Card to AFS-800, 49 U.S.C. §1133 declares that the National Transportation Safety Board “shall review on appeal – (1) the denial, amendment, modification, suspension, or revocation of a certificate issued by the Secretary of Transportation under Section 44703, 44709, or 44710 of this title.”

49 U.S.C. §44709(b) provides:

The Administrator may issue an order amending, modifying, suspending, or revoking – (1) any part of a certificate issued under this chapter…

Similarly, 49 U.S.C. §44709(d) provides:

(1) A person adversely affected by an order of the Administrator under this section may appeal the order to the National Transportation Safety Board. After notice and an opportunity for hearing, the Board may amend, modify, or reverse the order…

In this article we will review whether an order revoking or rescinding a SAC Card can be appealed to the National Transportation Safety Board contrary to the requirements of FAA Order 8900.1 mandating an appeal to AFS-800.

[1] FAA Order 8900.1, 8/17/11, ¶5-1551(D).

IS A STATEMENT OF ACROBATIC COMPETENCY A CERTIFICATE OR RATING AUTHORIZING AN APPEAL TO THE NTSB FOLLOWING AN ORDER OF REVOCATION?

The Mechanics of Issuing a SAC Card

Historically, SAC Cards were issued after an FAA inspector observed an airman demonstrate competency and proficiency in aerobatic maneuvers at low altitude. The airman made application on an FAA Form 8710-1, and, following a successful flight demonstration, the FAA inspector issued the airman a SAC Card. Years ago, the process changed. Today, an airman who wants to obtain a SAC Card must demonstrate competency before an aerobatic competency evaluator/ACE, and the ACE submits a recommendation to the appropriate Flight Standards District Office that, in turn, issues a Statement of Aerobatic Competency, FAA Form 8710-7.   If the FAA issues the SAC Card, Form 8710-1 is employed, while an 8710-7 is employed if an ACE observed the qualifying flight demonstration.[2] While the ACE submits the recommendation of the airman along with the airman’s application for a Statement of Aerobatic Competency, the FAA order that authorizes the issuance of the SAC Card specifically refers to the Statement of Aerobatic Competency as a “certificate.”[3]

Not only does the FAA Order governing the issuance of SAC Cards refer to the card as a certificate, but the SAC Cards have most of the indicia of a certificate or rating, since they bear the imprimatur of the U.S. Department of Transportation/Federal Aviation Administration, have the airman’s certificate number placed on the SAC Card along with the issuance date, the expiration date, the altitude limitations, the authorized aircraft, and a signature block for the airman to execute the document. The only items missing are the airman’s address and other identifying information such as height, weight, hair color, eye color and sex. Not only does the FAA Order authorizing the issuance of SAC Cards refer to the document as a certificate, but common understanding suggests a SAC Card could be viewed as a certificate. For example, a license is defined as “authority given to act in a particular way; power conferred upon a person by proper authority, to do particular acts, practice professions, conduct certain trades, etc.; the document containing such authority.”[4] Further, a certificate is defined as “a kind of license.”[5]

A rating is a “…fixing in rank or place; rank, as the rating of men and the rating of ships in the navy (italics in original).”[6] 14 C.F.R. §1.1, Definitions provides: “Rating means a statement that, as part of a certificate, sets forth special conditions, privileges, or limitations.” The certificates authorized by 14 C.F.R. §61.5 includes student pilot, sport pilot, recreational pilot, private pilot, commercial pilot, airline transport pilot, flight instructor and ground instructor. In the context of 14 C.F.R. §61.5, a Statement of Aerobatic Competency clearly is a “rating,” since (1) it is part of the certificate, and (2) it “sets forth special conditions, privileges or limitations.” 14 C.F.R. §1.1, Definitions.

[2] See FAA Order 8900.1, 8/17/11, ¶¶5-1549, 5-1550, 5-1551, 5-1552, 5-1553, 5-1554, 5-1555.

[3] FAA Order 8900.1, 8/17/11, ¶5-1555(D).

[4] The New Webster Encyclopedic Dictionary of the English Language (“Webster’s Dictionary”), p. 490.

[5] Id. at 134.

[6] Webster’s Dictionary, p. 693.

The Initial Decision in Hornbeck

On July 2, 2015, Chief ALJ Montaño entered an Order Not Accepting Appeals for Lack of Jurisdiction In the Matter of Hornbeck, et al.[7] Judge Montaño’s Order arose out of appeals filed by nine pilots following an airshow performance where one aircraft struck another aircraft in a formation flight. The offending pilot voluntarily surrendered his SAC Card at the airshow and the Administrator, by and through the Alabama and Northwest Florida Flight Standards District Office rescinded the SAC Cards of the nine remaining pilots who were part of the airshow performance.[8] Prior to filing their appeals with the NTSB Office of Administrative Law Judges, the nine airman had filed appeals with AFS-800.[9] The nine airmen then lodged appeals with the NTSB Office of Law Judges asserting, inter alia, that their SAC Cards were certificates such that the NTSB, not the FAA, had appellate jurisdiction.[10]

In his Order, Judge Montaño found that the SAC Cards did not satisfy all of the elements of a certificate to the extent that a certificate should be numbered and recorded by the Administrator,[11] and the certificate must contain the name, address, and description of the individual to whom the certificate is issued.[12] The Montaño noted in a footnote that the SAC Cards are not recorded by the FAA.[13] Analogizing the SAC Cards to a check airman’s certificate for an air carrier, Judge Montaño reasoned that a SAC Card was not a certificate or rating.[14] Judge Montaño further found that the airmen had applied for their SAC Cards on a non-FAA (industry) form, FAA Form 8710-7.[15] Judge Montaño further found that FAA Order 8900.1 and the provisions concerning rescission of a SAC Card “are not intended to be punitive, and are separate from, and may not necessarily relate to any enforcement action.”[16] Finally, Judge Montaño found that the FAA rescission orders were not final determinations by reason of which they were not ripe for adjudication in the form of Board review.[17]

[7] See In the Matter of John Marvin Hornbeck, NTSB Docket No. NA-30001; In the Matter of Thomas Andrew Dobrouillet, NTSB Docket No. 30002; In the Matter of Robert Dail Gibbons, NTSB Docket No. NA-30003; In the Matter of Daniel Harrison Kight, NTSB Docket No. NA-30004; In the Matter of Edward Lynn Leggett, NTSB Docket No. NA-30005; In the Matter of Gregory James Reese, NTSB Docket No. NA-30006; In the Matter of Thaddeus Sargent, NTSB Docket No. 30007; In the Matter of Michael Wayne Stewart, NTSB Docket No. NA-30008; and In the Matter of Martin Cairney Walker, NTSB Docket No. NA-30009 (hereinafter collectively referred to as “Hornbeck”.

[8] See Hornbeck, supra, Order Not Accepting Appeals for Lack of Jurisdiction at 1-7.

[9] Id. at 4.

[10] Id. at 4.

[11] 49 C.F.R. §44703(b)(1)(A).

[12] 49 C.F.R. §44703(b)(1)(B).

[13] Id. at 7, fn.18.

[14] Id. at 8.

[15] Id.

[10] Id.

[17] Id. at 9.

Conclusion

Until and unless the NTSB reverses Judge Montaño’s Order of July 2, 2015, SAC Card holders who find their certificates rescinded by the FAA will be relegated to filing appeals with AFS-800 which has no procedures or policies in place to adjudicate any such appeals. The absence of numbering and recording SAC Cards with the FAA can be explained by the fact that SAC Cards expire annually and require requalification.[18] Similarly, the SAC Card holder does have on his certificate his name even though his address and physical description is not provided.[19] A rescission of a SAC Card by the FAA is not accompanied by meaningful due process even though the SAC Card is clearly a protected property or liberty interest allowing the holder to earn a living by performing in air shows.[20]

Historically, the FAA has taken action against the certificates of airmen (as opposed to their SAC Cards) for deviations from the waiver limitations at airshows. See, e.g., Administrator v. Evans, 1994 WL 702301, NTSB Order No. EA-4298 (respondent flew below 250 foot floor). Administrator v. Walker, 3 NTSB 1298, NTSB Order No. EA-1185, 1978 WL 19069 (airline transport certificate suspended for sixty days after the airman flew over spectators in violation of the air show waiver).

In the event airmen believe that SAC Card holders should be entitled to meaningful due process of law, at least in the form of an appeal to the National Transportation Safety Board, an option would be to insert language in the Second Pilot’s Bill of Rights currently under development to remedy the situation and ensure that SAC Card holders have meaningful appeal rights. This could be ensured by inserting clear and unambiguous language in federal statutes to specifically require that the National Transportation Safety Board, not AFS-800, has appellate jurisdiction from orders revoking or rescinding SAC Cards.

[18] 49 U.S.C. §44703(B)(1)(A) requiring that a certificate “be numbered and recorded by the Administrator of the Federal Aviation Administration.”

[19] See 49 U.S. C. §44703(B)(1)(B).

[20] See Green v. Brantley, 719 F.Supp. 1570 (N.D. Ga. 1989) [in suit by pilot examiner for wrongful termination of certificate of authority, the District Court denied the government’s motion for summary judgment finding that the pilot examiner’s certificate of authority was a protected property or liberty interest such that he was entitled to due process of law before the certificate could be revoked].

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