Hypothetical about the NW Pilot's revocation

I said...

"So far, unless the goverment is depriving you of life, or liberty (meaning they're locking you up), the entire suite of criminal protections do not apply. Admin law is like traffic law, a weird parallel universe."

I believe that since I said "do not apply", instead of "does not apply", the meaning is "not all the criminal protections apply", vs. "None of the criminal protections apply". But that may be incorrect or outdated grammar.

Anyway, what I meant to say, and obviously didn't, is that the "standard" stuff (burden of proof, beyond a reasonable doubt, hearsay, etc) is different in admin law than criminal law. And things we may feel are "rights" are in fact "privileges". Even ASRS and other voluntary reporting systems don't offer protection against sanctions when the violations were willful, and it certainly appears these were.

Revocation seems harsh, but as I see it, these were people exercising the highest level of pilot certificate (ATP), in the highest tier of regulated commercial flying (121), with hundreds of paying passengers on board. That requires the highest standards of professionalism.

If it was Joe Blow puttering along in his skyhawk doing the same thing, it's just as willful, but joe doesnt have paying pax in the back and he's not putting anywhere near the same number of people at risk. For Joe a suspension might be more appropriate.

The taxiway landing in ATL had a similar potential risk, perhaps even greater, but there was no evidence that the crew said "what the hell, let's land on the taxiway" and deliberately broke policy. Their careers may be in just as much jeopardy, but they made an inadvertant mistake (careless perhaps), not a deliberate (reckless) choice.
 
My real question is will NWA can these guys and even if they get their ATP back will they have a good shot at working again?
 
AdamZ said:
My real question is will NWA can these guys and even if they get their ATP back will they have a good shot at working again?
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Yes. Everyone is jumping to conclusions and isn't willing to let the formal investigation take place.

These pilots are protected under the CBA of NWA (now DAL). They will retain their seniority for a set period of time unless they voluntarily resign. They will also be afforded a greivance process if the airline decides they want to terminate them.
 
TMetzinger said:
If it was Joe Blow puttering along in his skyhawk doing the same thing, it's just as willful, but joe doesnt have paying pax in the back and he's not putting anywhere near the same number of people at risk. For Joe a suspension might be more appropriate.
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Interesting comment about Joe Blow.

If one of us (GA Pilots) were to over fly our destination while on an IFR flight plan, I don't think there would be much question about us looking at a suspension of our certificate for a period of time, and possibly the 709 ride to get it back.
 
Commander Dave said:
If one of us (GA Pilots) were to over fly our destination while on an IFR flight plan, I don't think there would be much question about us looking at a suspension of our certificate for a period of time, and possibly the 709 ride to get it back.
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According to some theories Joe Blow would have been following the magenta line of death and he would notice when it went away...
 
Ya gotta step back and take a breath...
First, Constitutional law applies very thinly to FAA actions...
We don't have a license to fly - which implies 'rights' - like a Drivers License...
We have a Certificate of demonstrated competence, which allows us to exercise the 'privileges' of an airman at the discretion of the Commissioner...

They demonstrated incompetence and thus present an unreasonable risk to the public, both in the air and on the ground, in the judgement of the Commissioner... Until they can once again demonstrate competence to exercise the privileges of an airman to the satisfaction of the Commissioner, they are grounded...

It is as simple as that... The courts will give much deference to the judgment of the Commissioner in matters of public safety...
There is a simple rule to follow, never screw up on a slow news day...

denny-o
 
sba55 said:
It wouldn't have AFAIK because the CVR was an older type that only captures the last 30 minutes. They could have said anything they wanted.
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If it's old enough that it uses mag tape, the technology to recover the overwritten data exists and is used by crime labs, including the FBI's -- even if it's overwritten more than once, although I'm not sure of the practical limit on that part.
 
Obi Heed Kenobi said:
I'll actually have to do some looking to see if Miranda warnings are required during custodial interrogation that isn't necessarily related to something criminal. That is, an FAA enforcement action. I suspect not, simply because you're not looking at jail.
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FAA Inspectors don't have the power to take you into custody, hence, no legally-conducted FAA interview is a "custodial interrogation."
But, here's something to think about: when they were being interviewed, were there criminal concerns? I.e., hijacking, drugs/alcohol, maybe even reckless endangerment? If so, that would muddle the question even more....
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Unless the post-landing interview by the FBI was custodial (which I doubt), or the FBI had reason to believe at that point that the crew might have committed a crime (not likely), I don't see the lack of Miranda warnings at that time as an issue. Where I think the FBI would have to Mirandize the pilots would be if they later got suspcious about the story the pilots had told them, and were going back to reinterview while visions of 18 USC 1001 danced in their heads.
 
TMetzinger said:
Revocation seems harsh, but as I see it, these were people exercising the highest level of pilot certificate (ATP), in the highest tier of regulated commercial flying (121), with hundreds of paying passengers on board. That requires the highest standards of professionalism.
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That is the FAA's position in a nutshell. Airlines are "common carriers," and under the law, common carriers are obligated by law to exercise "the highest degree of care," which the courts have held means "the greatest degree of human care and foresight possible." You and I, when flying Part 91 with our friends and family, are only expected to exercise that ordinary degree of care which would be exercised by a reasonably prudent person, which is why...
If it was Joe Blow puttering along in his skyhawk doing the same thing, it's just as willful, but joe doesnt have paying pax in the back and he's not putting anywhere near the same number of people at risk. For Joe a suspension might be more appropriate.
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Furthermore...
The taxiway landing in ATL had a similar potential risk, perhaps even greater, but there was no evidence that the crew said "what the hell, let's land on the taxiway" and deliberately broke policy. Their careers may be in just as much jeopardy, but they made an inadvertant mistake (careless perhaps), not a deliberate (reckless) choice.
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Well-stated. I think that crew will probably eat a suspension or possibly a reexamination, but probably not a revocation unless Randy Babbitt is really on the warpath.
 
AdamZ said:
My real question is will NWA can these guys and even if they get their ATP back will they have a good shot at working again?
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The airline's publicly-stated policy is that using a personal computer on the flight deck is a violation of company rules punishable by termination. I have no doubt that NWA will send those two pilots notices of dismissal. I also have no doubt that their union will support them in appealing that dismissal through the grievance procedure R&W mentioned. How that will turn out is anybody's guess, but it's going to be hard for them to keep their jobs without a pilot certificate, and that appeal (if filed -- deadline was yesterday for an emergency hearing -- anyone heard?) will be heard by the NTSB. If the revocation of their certificates is affirmed, then they're out for at least a year, and nothing the union does can help them during that period (except maybe some kind of loss-of-license benefits).

But even if they win before the NTSB, or get their tickets back later, they can still lose their jobs for violating company rules. They'd have to win at the grievance proceeding, and get their tickets back (now or later), to go back to flying the line at NWA/Delta. Two big "ifs," and at least in theory, under 61.13(a)(2)(ii), Administrator Babbitt has the power to deny them a new certificate even after a year if he so chooses. ALPA's lawyers are going to have an uphill battle to put those two back on the line for NWA. Whether anyone else would hire them if NWA successfully axes them is anyone's guess, but I don't see any major carrier doing that -- too much liability. I suspect they'd end up as pariahs like Shoeless Joe Jackson, playing for peanuts in Boondock, Georgia.
 
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Ron Levy said:
FAA Inspectors don't have the power to take you into custody, hence, no legally-conducted FAA interview is a "custodial interrogation."

Unless the post-landing interview by the FBI was custodial (which I doubt), or the FBI had reason to believe at that point that the crew might have committed a crime (not likely), I don't see the lack of Miranda warnings at that time as an issue. Where I think the FBI would have to Mirandize the pilots would be if they later got suspcious about the story the pilots had told them, and were going back to reinterview while visions of 18 USC 1001 danced in their heads.
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I think all of that would be correct about 99% of the time.

The other 1% of the time would take me too many paragraphs to write out. :)
 
Agreed.

I really don't see them keeping their jobs with NWA. Even though I'd expect them to go through the appeals process.

After that, I find it hard to believe another carrier would pick them up. Spotless records or not, in today's legal and news ridden society, if anything ever did happen with them (incident) as soon as it got out that XYZ airline picked up these guys after this current incident, XYZ would quickly be up to its pockets in a lawsuit, and then no more XYZ airline.

Of course thats just my opinion.
 
Ron Levy said:
Any chance this is that 1%?
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I *really* doubt it.

I did some looking this morning (slow morning), and in the 10 minutes I spent on it, I didn't find much on the issue of Miranda warnings and interviews involving administrative violations.

But what I did find (and there really wasn't much) suggests that it's a "it depends on the situation" type of issue.

I'd say that here, unless these interviews involved some kind of criminal behavior (and it really sounds like the whole thing's been limited to FAR-type issues), there's not much chance of these two pilots appealing on the basis of any 4th Amendment violations.
 
Obi Heed Kenobi said:
I'd say that here, unless these interviews involved some kind of criminal behavior (and it really sounds like the whole thing's been limited to FAR-type issues), there's not much chance of these two pilots appealing on the basis of any 4th Amendment violations.
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Hypothetical...if you have another 10 minutes...

Let's say DoJ decided to prosecute the pilots for violating 18 USC 1001 by "concealing a material fact" (namely, that they were working on their laptops in flight) in their initial statements to the FBI. Two questions...

1. Would the lack of Miranda warnings during that initial interview prevent their statements during that interview from being introduced as official statements covered by 18 USC 1001?

2. Would the lack of Miranda warnings during the NTSB interview later prevent their statements to the NTSB from being introduced as evidence of the material fact they are accused of having concealed from the FBI?
 
Ron Levy said:
Hypothetical...if you have another 10 minutes...

Let's say DoJ decided to prosecute the pilots for violating 18 USC 1001 by "concealing a material fact" (namely, that they were working on their laptops in flight) in their initial statements to the FBI. Two questions...

1. Would the lack of Miranda warnings during that initial interview prevent their statements during that interview from being introduced as official statements covered by 18 USC 1001?

2. Would the lack of Miranda warnings during the NTSB interview later prevent their statements to the NTSB from being introduced as evidence of the material fact they are accused of having concealed from the FBI?
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1) I don't think so. First, it's not likely that it would be "custodial" (i.e., you think you're not free to leave). Second, at this initial interview, you're not being questioned about the criminal act of lying - instead, you're just in the process of committing the criminal act; so I don't think it would qualify as "interrogation." After all, the basis for any later 1001 charges wouldn't be the subject-matter of this interview, but rather what you did during the interview.

2) I also don't think so, for pretty much the same reasons. But, there could be some other issues at a second NTSB interview. Have criminal charges already been filed? If so, and if the FBI is merely using the NTSB as its "agent," then I think there'd be more of a concern. Depending on what happened, entrapment could also be an issue - but that would require some really obscene conduct.

That's off the top of my head. If I can get a few minutes later this afternoon, I'll do a little digging around - because I'm sure that there's case law out there on this subject. It's not like no one has ever lied to the FAA before. :)
 
Obi Heed Kenobi said:
2) I also don't think so, for pretty much the same reasons. But, there could be some other issues at a second NTSB interview. Have criminal charges already been filed? If so, and if the FBI is merely using the NTSB as its "agent," then I think there'd be more of a concern. Depending on what happened, entrapment could also be an issue - but that would require some really obscene conduct.
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My personal suspicion is that at the NTSB interview which led to the detailing of what they did, they were told that if they didn't tell the NTSB everything, they would be charged under 18 USC 1001 for their deceptive initial statement to the FBI, but if they told all, the criminal matter would go away, and they'd face only the administrative charges which cost them their certificates. I'll also bet their ALPA attorneys (IIRC, the NTSB release said they were represented by counsel at that session) told them that was the best deal they could get at that point. ("I'd rather be kept on the ground than in a Federal penitentiary" being a corollary of "I'd rather be judged by twelve than carried by six.") I further suspect that their attorneys wish they had a time machine to go back to the moment when they stepped off the plane, met the FBI folks, and didn't say, "There was no aviation security issue, but we decline to say any more until we speak with our attorneys."

But that's all guesswork.
 
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Dr. O said:
Ya gotta step back and take a breath...
First, Constitutional law applies very thinly to FAA actions...
We don't have a license to fly - which implies 'rights' - like a Drivers License...
Click to expand...

Actually beleive it or not a license does not imply rights but merely a privledge.
 
One thing for us all to remember. If the FBI/DEA/DOJ/USMS/etc ever show up and want to ask you a question, you have only three viable choices:

1. Say nothing.
2. Decline to answer questions until you have counsel present, and STICK TO IT.
3. Tell the truth.

Any lying can result in your immediate arrest, and now they have the advantage.
 
TMetzinger said:
One thing for us all to remember. If the FBI/DEA/DOJ/USMS/etc ever show up and want to ask you a question, you have only three viable choices:

1. Say nothing.
2. Decline to answer questions until you have counsel present, and STICK TO IT.
3. Tell the truth.

Any lying can result in your immediate arrest, and now they have the advantage.
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Is it clear that the pilot's actually lied? From what little I've read it sounds like their first story (heated argument) didn't necessarily include any statements that they weren't using their computers in the cockpit and I'm pretty certain that any "lie of omission" isn't in itself punishable here.
 
TMetzinger said:
And I think "texting while driving" falls in the same category, and should result in a revocation of a driver's license. "Talking while driving" does not.
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A few years ago "talking while driving" was widely regarded as worthy of revocation.

Some people can handle multitasking. Some can't. As pilots, we're asked to fly the plane, look at charts, listen to the radios, copy new routings, change radios, you get the idea.

Depending on the conditions, it's not a problem. Like anything else, it's a matter of evaluating the conditions and your abilities, and acting accordingly. The problem is most people don't, but "most people" doesn't mean all.
 
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