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The FAA's Prosecutorial Discretion

By Gregory J. Reigel

May, 2008 All rights reserved.

When the FAA believes that a regulatory violation has occurred, it has a variety of options for dealing with that violation ranging from issuing a warning or assessing a fine or monetary penalty up to suspension or revocation of an airman's certificate. The FAA has the power to choose which option it feels is appropriate for dealing with a particular regulatory violation. This choice is called "prosecutorial discretion."

In order to assist its inspectors and regional counsel in exercising this prosecutorial discretion, the FAA publishes guidance and policies that, one would hope, will be used and applied in a uniform and consistent manner. But, what about when this doesn't happen? Can the FAA ignore its own published policy and guidance and pursue an enforcement action against an airman even when pursuit of that action contradicts the policy and guidance? According to a recent NTSB opinion, the answer is: yes!

In Administrator v. Murphy and Vernick the FAA alleged that airman Murphy violated FARs 91.13(a) (careless and reckless), 91.123(b) (Compliance with ATC clearance), and 91.111(a) (Operating near other aircraft) and that airman Vernick violated those sections in addition to FARs 91.123(a) (Compliance with ATC clearance) and 91.183(c) (IFR communications), all in connection with a 120 foot computer-detected altitude deviation that resulted in a minimal loss of separation between the airmen's aircraft and another aircraft. After a hearing, the Administrative Law Judge ("ALJ") found that the airmen committed most violations as alleged.

However, the ALJ also found that the airmen met all of the criteria for application of the FAA's policy of handling altitude deviations of less than 500 feet administratively as prescribed in FAA Order 2150.3A, Compliance and Enforcement Program, Compliance/Enforcement Bulletin No. 86-1. He further noted the absence of any aggravating circumstances that would make the airmen ineligible for administrative action, rather than enforcement action. As a result, the ALJ concluded that "[b]y bringing this matter as an enforcement action, and not handling it administratively, the Administrator violated her policy set out in [86-1], and deprived the Respondents of the benefits they were entitled to under that FAA policy." The ALJ then reversed the FAA's order and dismissed the complaints against the airmen.

Not surprisingly, the FAA appealed to the full NTSB Board arguing that the FAA's exercise of prosecutorial discretion is not subject to Board review; that the FAA has the prerogative to issue an order of suspension when the facts support one; and that the Board has no direct authority over the FAA's exercise of prosecutorial discretion. In response, the airmen argued that the FAA was bound by Order 2150.3A to pursue administrative rather than enforcement action. However, the Board agreed with the FAA.

The Board stated that it lacks the jurisdiction to review the FAA's determination to pursue a matter through legal enforcement action. Once a petition for review of an FAA order is filed, the Board's scope of review does not extend to an evaluation of the procedural steps leading to the issuance of that order. According to the Board, "[t]he discretion to pursue one remedy over another or to pursue enforcement action at all is within the Administrator's purview." Although the Board will review prosecutorial discretion in the prosecution of an enforcement action once an order is appealed, that has no bearing on the FAA's right to prosecute an airman for an alleged violation. As a result, the Board rejected the airmen's arguments that Order 2150.3A precluded the FAA from pursuing its enforcement action.

However, fortunately for the airmen, the Board agreed with the ALJ that waiver of sanction was appropriate. First, the Board observed that the FAA did not introduce Order 2150.3A with its Sanction Guidance Table into evidence or request deference to its selection of sanction based upon the Order, as was its burden. Second, the Board agreed that the violations were "less serious" and did not involve mitigating circumstances.

Not sure about you, but it doesn't seem quite right that the FAA can publish its enforcement rule book (presumably so everyone is on notice and aware of how they will be treated e.g. uniformly and consistently) but then disregard its own policy to pursue an enforcement action for an apparently "less-serious" violation. Interestingly, Order 2150.3B (the successor to 2150.3A released this fall) contains no such recommendations for administrative action. It merely lists the criteria that must be met to qualify for administrative action. However, be forewarned, Order 2150.3B appears to have a distinct preference toward certificate action, rather than administrative action. Imagine that!

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