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FAA rule robs aviators of rights, pilots say

Pilots' associations cry foul at a new security regulation that can leave aircraft workers flightless without explanation.

By JEAN HELLER, Times Staff Writer
© St. Petersburg Times
published February 12, 2003

A new federal regulation that has caught pilots by surprise lets the government suspend the licenses of pilots suspected of posing a security risk, in some cases without showing them all the evidence against them.

The Federal Aviation Administration regulation, which also applies to aircraft mechanics, flight engineers and flight instructors, has drawn fire from aviation professionals who fear they could lose their livelihoods without a full opportunity to defend themselves against the allegations.

"The government has a legitimate interest in keeping terrorists off of airplanes, both as passengers and as airline and airport employees," the Air Line Pilots Association said in a statement. "But this rule is rooted more in '1984' than in Sept. 11, 2001."

The regulation is a joint project of the FAA and the Transportation Security Administration. It sets up a procedure to alert the FAA whenever the TSA receives information that the holder of an "airman certificate" -- basically a license to work -- might pose a security risk. The FAA then is required to suspend the certificate without independent investigation of the allegations.

The suspended individual may appeal, but the appeal goes back to the same officials at TSA who originally triggered the suspension. And the individual may see only the evidence against him that TSA does not consider classified.

"The Constitution guarantees us the right to due process, but the government defines what that is, and if you don't like it, you have to challenge it in court," said John Mazor, spokesman for pilots' association, which represents 66,000 airline pilots at 42 airlines in the United States and Canada.

The FAA declined to comment on the regulation, deferring to the U.S. Department of Transportation. Several calls to that agency were returned by a spokesman for the TSA, who said the regulation formalized something that has been going on for months.

"The FAA and the TSA are identifying individuals who are threats to civil aviation and curtailing their ability to obtain licenses or having their licenses revoked," said TSA spokesman Brian Turmail. "We needed to formalize the procedure."

Mazor, of the Air Line Pilots Association, said the pilots' biggest concern is what the regulation doesn't say.

"What is the basis for declaring someone a security risk?" he asked.

The regulation does not spell out which activities or associations would create suspicion, and the TSA won't disclose that information.

Individual pilots expressed outrage.

"This is the TSA running amok," said Tod Nichols of Santa Fe, N.M., a pilot for a major carrier. "This thing got totally shoved through the back door and caught everybody unaware. We've already been fingerprinted and subjected to FBI background checks. This is overkill."

The regulation became public for the first time last month when it appeared in the Federal Register in final form. It bypassed the proposal stage, which would have created a 120-day window for public comment and amendments to the rule.

While the FAA says it will accept public comment until March 25, the regulation took effect on Jan. 24, leading some critics to suggest that if they did comment, their mail would go unopened.

"When they went final on this, they sort of slammed the door on us," said American Airlines pilot John Safely, president of Coalition of Airline Pilots Associations, which represents pilots who fly for American, Southwest Airlines and UPS.

Mike Cronin, executive director of CAPA and a retired American Airlines pilot, attended a briefing last week at which the TSA tried to allay concerns about the regulation.

"They said they felt compelled to issue the regulation because in going through lists of suspects they found some with pilots' licenses," Cronin said. "These are people they wouldn't even allow on board an airliner."

As of Dec. 31, 2001, there were more than 1.2-million active airman certificates in the United States.

Action was taken against 11 people before the Jan. 24 final rule, Cronin said. Four did not contest the suspension of their licenses, and the licenses were revoked. Three appealed successfully, and four investigations are ongoing and likely to result in license revocation. None of the 11 cases involved airline pilots.

"There is no question that one way or another the government will revoke or suspend the licenses of those they believe to be terrorists," Cronin said. "There's no way around that, but we want to be sure that it is done in a fair and aboveboard manner to protect your right to due process and to a fair appeals process."

Mary Cheh, a professor of constitutional law at George Washington University in Washington, D.C., said recent court rulings indicate the regulation might withstand a challenge.

"It certainly raises issues," Cheh said. "Before the government can take something of value, it has to give you notice and a right to be heard, and generally, but not always, the chance to be heard comes before the taking of something of value."

But increasingly, she said, the courts have given greater weight to the government than to individual rights.

"The court does weigh very heavily a purported danger to public safety," Cheh said. "I wouldn't necessarily say that this regulation, if litigated, would be found in violation of due process."

The language of the regulation, as published, describes no threshold for the credibility of evidence against the holder of an airman certificate. It leaves open the possibility that someone with a grudge against a pilot or mechanic could cost that individual his job, critics say.

"It certainly opens the door to a great deal of mischief," Cheh said. "It's right at the edge. Due process becomes ad hoc and unpredictable. Certainly, if we have even a whiff of danger, it's best to ground you and sort it out, but the process for sorting it out seems incredibly unfair."

She said the best hope is that the regulation will be applied judiciously.

"Sometimes," she said, "when the government deals itself a big hand, they don't always play it."

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