by Greg Reigel, Esq.
Copyright 2019. All Rights Reserved
Published in Midwest Flyer – October/November 2019 issue
When the FAA assesses a civil penalty for regulatory violations, it is required to take into account both aggravating and mitigating circumstances when it calculates the penalty. Typically the FAA focuses on aggravating circumstances to support assessment of a higher civil penalty. On the other hand, respondents argue that mitigating circumstances are present that justify a lower civil penalty. But if the case ends up going to hearing, it then becomes the administrative law judge’s (“ALJ”) responsibility to decide (1) whether any aggravating or mitigating circumstances are present, and (2) how/whether those circumstances may impact the civil penalty assessed by the FAA.
As an initial matter, the FAA has the burden of justifying the amount of the civil penalty. The ALJ must then look at the totality of the circumstances surrounding the violation to determine whether the civil penalty is sufficient to serve as a deterrent to both the respondent and the industry as a whole. As guidance, the ALJ may consider the following factors the FAA is supposed to consider per FAA Order 2150.3C FAA Compliance and Enforcement Program:
• The nature of the violation;
• Whether the violation was inadvertent or not deliberate. This is typically a mitigating factor, and the absence of inadvertence isn’t automatically an aggravating factor;
• If the respondent is a certificate holder, the certificate holder’s level of experience;
• The attitude or “compliance disposition” of the respondent;
• The degree of hazard posed by the violation;
• Any action taken by an employer or other authority;
• The respondent’s use of a certificate;
• The respondent’s violation history, if any. This is only an aggravating factor. A violation-free history is expected and is not a mitigating factor;
• Decisional law;
• The respondent’s financial ability to absorb a sanction;
• Consistency of sanction;
• Whether the respondent reported the violation voluntarily; and
• What, if any, corrective action the respondent may have taken as a result of the violation.
If you are facing a proposed civil penalty or appealing an assessed civil penalty, you should definitely determine whether any of the circumstances of your situation support any of these mitigating factors and then argue those facts to the FAA or ALJ to try and reduce the civil penalty.
On the other hand, if any of your circumstances could be characterized as aggravating factors, you will also want to identify those facts, because you know the FAA will. You can then determine how best to argue against and minimize the impact those aggravating circumstances may have on the civil penalty.
EDITOR’S NOTE: Greg Reigel is an attorney with Shackelford, Melton, McKinley & Norton, LLP, and represents clients throughout the country in aviation and business law matters. For assistance, call 214-780-1482, email greigel@shackelford.law, or Twitter @ReigelLaw. website: www.shackelford.law
