AOPA Turbine Pilot Magazine - November 2024 - 26

FOR THE RECORD
Fair chance
Cleared for the option by the U.S. Supreme Court
BY JUSTINE A. HARRISON / AOPA General Counsel
IT'S RARE WHEN the U.S. Supreme Court issues a decision that
significantly impacts enforcement cases against pilots and
aircraft owners. But this year, there were two. As a result, the
playing field has become more level when you are fighting a
federal agency action.
Chevron deference is gone
In 1984, the Supreme Court held that courts must often accept an
agency's arguments for how a statute should be interpreted. Called
" Chevron deference, " it gave federal agencies a massive advantage
in court. How a law is interpreted can change who wins or loses
a case. The recent elimination of Chevron deference may inspire
more people to fight agency enforcement actions where, in the past,
they may have settled their cases or just taken their lumps, due to
federal agencies' advantage in court. This will help airmen facing
enforcement actions brought by the DOT, FAA, TSA, or CBP.
For 40 years, Chevron deference put a thumb on the scales
of justice, favoring federal agencies' interpretations of law over
all others, including the judge's interpretation. The agency's
interpretation of a law didn't have to be the best one and didn't even
have to be better than the defendant's or the judge's interpretation.
It just had to be " permissible " -meaning rational or reasonable-to
require a judge to defer to the agency's interpretation.
I often defended airmen facing FAA enforcement actions
while Chevron was the law of the land. I had to have difficult
conversations with my clients. " Yes, the FAA's interpretation is
not the best reading of the statute. Yes, it is unfair how they are
applying it here. But the courts will defer to the FAA's reading. "
Counseling airmen when the deck was rigged against them was
frustrating and disheartening.
Now, both sides in court have an equal opportunity to make
arguments about statutory interpretations and to have those
arguments fully considered. Judges, not the agency, will decide the
best reading of a statute and resolve any ambiguity. In other words,
judges are empowered to do what they do best-interpret laws.
The elimination of Chevron deference takes away an advantage
federal agencies had in court but does not provide any advantage
to the other side. Take note, however, that when an agency is
interpreting its own regulations rather than law, a different legal
doctrine applies that wasn't addressed by the Supreme Court's
recent decision.
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AOPA PILOT / November 2024
Improvements in due process
The Supreme Court's d ecision in another recent case could lead
to certain types of aviation legal matters being decided by judges in
federal court, rather than through current administrative processes.
In Jarkesy, the Securities and Exchange Commission (SEC)
prosecuted an SEC licensed individual for fraud in a hearing presided
over by an SEC Administrative Law Judge. The Supreme Court held
that having the same agency as judge and prosecutor raised concerns
and that Jarkesy was entitled to a jury trial because the SEC fraud
charge was very similar to a common law fraud charge that would
require a jury under the Seventh Amendment of the Constitution.
When the FAA prosecutes a certificate holder, it typically
targets their certificate, their bank account, or sometimes
both. Certificate actions hearings are held before National
Transportation Safety Board (NTSB) administrative law
judges, and civil monetary penalty cases are mostly held before
Department of Transportation (DOT) administrative law judges.
Given that the FAA is part of the DOT, civil monetary cases raise
questions about due process. It's like being charged with a violation
by a prosecutor and finding out the judge is the prosecutor's
parent. Certificate action cases prosecuted by the FAA are heard
by administrative law judges at the NTSB, which is an independent
federal agency and not part of the DOT.
Another FAA administrative process that may be impacted
by Jarkesy involves airport compliance. When the FAA provides
Airport Improvement Program grant funds to an airport, the
airport signs a grant agreement saying it will comply with
certain conditions called " grant assurances. " Allegations of
grant assurance noncompliance can be brought by airport users
in an administrative process called a Part 16 complaint, where
the FAA decides the case. However, the FAA is also a signatory
to the grant contract, which raises questions about due process.
We are already seeing the Jarkesy case used as the basis for
arguments questioning the FAA's ability to decide Part 16 cases
and the DOT's ability to decide civil
monetary penalty cases. It's unclear
if Jarkesy will change who decides
these types of cases and where the
cases are argued-it may take a few
years to get clarity.
justine.harrison@aopa.org
JUSTINE A.
HARRISON serves
as the AOPA's general
counsel and corporate
secretary, and holds
a commercial pilot
certificate.
AOPA Turbine Pilot Magazine - November 2024

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