Martha Lunken has privileges revoked

[X3 Skier]

Flew under a bridge and was caught. At least she wasn’t “Hoovered”

https://www.cincinnati.com/story/news/2021/04/18/lunken-airport-faa-martha-jeremiah-morrow-bridge/7089271002/

Cheers

 

[PeterNSteinmetz]

I tend to be mostly law-abiding, except when the law is stupid.

I try to be always regulation and law abiding when it comes to the FAA. It’s just a hobby for me. And there are enough other really seriously bad laws to get torqued about.

Doesn’t stop me from criticizing them though ...

 

[PeterNSteinmetz]

So instead of having regulations (14 CFR) that are derived from 49 USC (law), would you propose to do away with the regulations all together and write new laws to cover all the items in regulation?

:

IMO, not necessary at all. Provide new laws that deal with actual crimes with actual victims for the few cases they do not already exist.

Let common law and perhaps somewhat stricter enforcement of fraud and liability civil actions take care of the rest.

In the instant case, who owned the plane and what would their insurer think of it? There are ways these things will be dealt with without the FAA trying to regulate everything.

 

[PeterNSteinmetz]

I understand what due process actually is and that it does not apply to administrative law. It doesn't seem like you do.

I think the point here is not that there is or isn't any due process in FAA administrative law. It is there under most definitions of what people would call due process, but it is very biased in favor of the government, rather than carried out to a criminal standard. Some examples of biases are:

The need to proceed through a very long and expensive process, exhausting all administrative remedies, prior to even getting to an appeals court.
Needing to carefully preserve all issues for the appeal through the entire process to even have a change of getting there.
In many cases, only being able to appeal the administrative issues.
Even the rules for mailing in the process are biased, where the government gets to count the time in transit to the recipient as part of their legally required notice time but not the other way around.
And the administrative judges used are often much lower quality than you will see in a criminal or appeals court.

Eventually, justice delayed or made sufficiently expensive is justice denied. How long constitutes 'justice denied' is a judgement call.

As I have said above, I tend to think it would be better to get rid of regulations about "things someone doesn't like". Find other ways of dealing with them than getting a threat to use armed force involved (not that it often is, mind you). If Lunken really did something that endangered people, try her for criminal reckless endangerment. That would send a much stronger message actually. If it can't make a criminal standard, then perhaps try something else, like contacting her insurance company.

 

[PeterNSteinmetz]

Why do believe there's no presumption of innocence in this situation?

What it would be fair to say is that there is no presumption of innocence to a reasonable doubt standard. It sounds like certificate revocation may now be to a higher standard, but most administrative law actions are to the preponderance of evidence standard. They are civil proceedings.

 

[PeterNSteinmetz]

The burden of proof is in the wrong place for a presumption of innocence.

I don’t understand the meaning here. The burden of proof is on the government to show by a preponderance of evidence that a violation occurred.

 

[PeterNSteinmetz]

No it isn’t. The burden of proof is on you to show that a violation did not occur. They don’t have to show anyone anything.

How is this different from a normal civil proceeding? If someone sues you and you don’t respond at all, they can win a default judgement if you do nothing.

I see your latest post. Ok, that is one difference. In a default is a civil lawsuit, the plaintiff has to convince the judge to award the default. The FAA can apply the sanction if you do nothings

 

[PeterNSteinmetz]

Depends on the agency at the early stages. Once it goes to an ALJ, it’s a different story in most cases.

No matter what, it is incumbent for the investigator to document the results sufficient to meet the burden of proof.

as I said before I don’t know the current FAA process.

Does it have to go to an ALJ for the agency to get the judgement? At least pro forma?

 

[PeterNSteinmetz]

It depends. And it depends on the agency.

In general, for the FAA, I think the distinction in @Salty 's point is this: If the airman never responds at all, so it is like a default situation in a civil case, can the FAA obtain a proposed penalty without the matter being judged by an ALJ who is not directly employed by the FAA? Yes, they may have to follow agency guidelines for meeting a burden of proof, etc, but is it actually looked at, at least briefly, by someone else not employed by the FAA? That is what happens with a civil default judgement. They are fairly easy to obtain if the other party never responds, but at least the judge, who is not the plaintiff, has to look at the argument and agree.

If the FAA can get a judgement without any non-FAA oversight, then that is a meaningful distinction between getting a default in a normal civil proceeding and this FAA process.

 

[PeterNSteinmetz]

Sort of answering my own question and the answer for the FAA appears to be largely yes. 14 CFR 13.18 covers this. If the airman does nothing, they can send out a 'Notice of Proposed Assessment', then request an "Order of Assessment", and if no response, proceed to collect.

So in this sense, @Salty appears to be correct -- if the airman does nothing, the FAA will assess and collect a penalty without any substantial oversight by an outside party. However, it appears there is one sense in which this is not strictly and simply yes. If the airman does not pay, the FAA administrator must take additional legal action in order to collect. So presumably if the FAA were just completely making something up, the court providing the civil judgement might not do so. Though I imagine that without the airman making an argument, the court simply approves these things.

 

[PeterNSteinmetz]

The FAA does not employ, nor do they have any Administrative Law Judges.

The FAA takes their cases before the NTSB, which is not a part of the FAA. And the NTSB does not curry favor with the FAA, actually the opposite.

Thanks, I can believe that is true. But I think that if the airman does literally nothing, the FAA is able to obtain an "Order of Assessment" without it ever going to an ALJ outside the FAA. See my post just above and 14 CFR 13.18. Like two ships that pass in the night ;-)

 

[PeterNSteinmetz]

See FAA Order 2150.3C

Is there something in that order which you believe supersedes the procedures spelled out in the regulations?

I view it as an internal document of how they want their workers to proceed, but not necessarily any type of legal relief for the airman.

 

[PeterNSteinmetz]

This is not an absence of due process. Defaults happen. If the airman later can show he didn't receive proper notice, then due process would require he have the opportunity to defend himself. But he can waive that right in an administrative process or in court.

I would tend to agree the situation is not well described as “no due process”. It is a process with substantially weaker protections for the airman than a normal criminal or civil procedure however. I think that is what people have been driving at.

Additionally there are the biases which I noted above in the process which favor the FAA. Thus many people feel this is an unfair process.

 

[PeterNSteinmetz]

If you want to see how the process plays out, it's in the order. There's additional information in the 8900.1 as well.

I am curious now if there are numbers on the fraction of actions which end in a order being collected with no input by the airman, the fraction where a compromise is reached, the fraction going to an ALJ, the fraction appealed to the administrator, and the fraction actually going to appeals court. So you happen to have a reference or access to that?

 

[PeterNSteinmetz]

My prior interest in this thread was mostly on the due process side of things. But I read the original article, and honestly, I do have to wonder if there is an underlying medical issue here.

She is getting up there in years. Two accidents due to poor judgement. And now did something that she obviously would know was a violation “on a whim”.

She clearly loves flying and that is her life. But all pilots should know that there will come a time when we have to stop for medical reasons if we live long enough.

If she can retest for all her certificates, clearly she is not impaired. But if there is an impairment I hope she will be able to make peace with that and enjoy her profound connection to flying. And hope the rest of us will be able to respect and enjoy her significant contributions to flying and Flying over the years.

 

[PeterNSteinmetz]

Honestly from listening to her rambling, at times incoherently, I think she's showing definite signs of senior mental decline.

This has been my concern since hearing about that incident. Sort of classic loss of inhibition of impulses.