United States District Court, W.D. Missouri, Southern Division
FERNANDO J. GAITAN, Jr., District Judge.
Currently pending before the Court is respondent's Objections to Magistrate Rush's Report and Recommendation regarding the Government's Petition for Summary Enforcement of Administrative Subpoena (Docs. # 18).
I. Factual Background
Respondent Kevin Tinney is a pilot with JetBlue Airways and was the first officer of Flight 412, traveling from San Diego to Boston on September 21, 2012. At 5:31 a.m., the aircraft was instructed by the Cleveland air traffic control center to contact Boston air traffic control center on a specific frequency and to make a changeover. However, the aircraft did not contact Boston air traffic control until 6:07 a.m. There was a period of approximately 36 minutes when air traffic control had no contact with the aircraft. When radio contact was re-established with Flight 412, it was flying at 37, 000 feet over Boston, when it should have been flying at approximately 5, 000 feet. Tinney voluntarily submitted the issues surrounding this particular flight to an FAA program known as the ASAP program ("Aviation Safety Aircraft Program"). The ASAP program is a joint FAA/air carrier program that allows aviation employees to self-report violations to air carriers and the FAA without fear of reprisal. The ASAP program is memorialized in a document known as a Memorandum of Understanding ("MOU"). The MOU is titled "JetBlue Airways Aviation Safety Action Program (ASAP) for Pilots Memorandum of Understanding. The MOU was signed by the parties on April 17, 2012 and May 1, 2012. When safety issues are reported to the ASAP, they are reviewed by an Event Review Committee ("ERC"). The committee is comprised of representatives of the air carrier, and the FAA. The ERC reviews reports which are submitted and determines whether the reports qualify for inclusion in the program and will propose solutions to the problems reported. If a voluntarily reported safety issue meets the criteria for acceptance into the ASAP program, the FAA will not pursue enforcement action against the certificate holder who has reported the event.
At the conclusion of Flight 421, Tinney joined the Captain in timely reporting the events that occurred during the flight to the ASAP. The ERC accepted Tinney's report on October 9, 2012 and Tinney voluntarily participated in the investigation. One month later Tinney learned that he had been rejected from the ASAP and on November 15, 2012, the FAA issued a Letter of Investigation to Tinney regarding this event. It is unclear from the pleadings or the hearing testimony exactly why Tinney's report was rejected from the program. On January 25, 2013, the FAA issued an administrative subpoena to Tinney seeking testimony from him in the "Matter of JetBlue Flight 412 on September 21, 2012." The subpoena also sought all "records, notes, reports, logbooks, manuals, diaries, documents, and/or photographs, including but not limited to all written, printed, typed, computerized, programmed or graphic documents of any kind or nature related in any manner to your actions as a crewmember of JetBlue Flight 412 on September 21, 2012." (Doc. # 1, Exh. A - Administrative Subpoena). On February 11, 2013, Tinney's counsel sent a letter to Attorney Brendan Kelly informing him that Tinney would not appear as the subpoena was invalid and unenforceable. On June 14, 2013, the FAA filed a petition for Summary Enforcement of an Administrative Subpoena. On November 26, 2013, Magistrate Rush issued an Order to Show Cause, requiring Tinney to appear in Court on January 23, 2014 to demonstrate why he should not be compelled to obey the subpoena. On January 23, 2014, Magistrate Rush held a show cause hearing. The Court heard testimony from Raymond Sanford, Supervisory Aviation Safety Inspector with the New York Flight Standards Office. On January 31, 2014, the United States filed a response to Tinney's Opposition and on February 10, 2014, Tinney filed reply suggestions. On April 28, 2014, Magistrate Rush issued a Report and Recommendation that the petition for enforcement be granted and Tinney's request for a protective order be denied. On May 16, 2014, Tinney filed objections to the Report and Recommendation. On May 21, 2014, the United States filed a response to the objections and on May 28, 2014, Tinney filed reply suggestions.
II. Show Cause Hearing
During the Show Cause Hearing, Inspector Sanford testified that a claim could be rejected from the ASAP program in cases involving intentional disregard for safety, substance abuse, criminal activity, alcohol or intentional falsification of information. (Transcript, p. 12-13). Sanford also testified that even though there was an ASAP program, the FAA is still required to conduct an independent investigation. (Transcript, p. 13). Sanford testified that the FAA investigators are not allowed access to any information gathered through the ASAP process. (Transcript, p. 14). When asked if the FAA intended to use the ASAP information in its investigation, Sanford replied;
A. We don't have access to the ASAP information. The ERC, the Event Review Committee, looks at the unsanitized reports. We don't see them. And they conduct their own investigation. They're required to. Independent to that, the FAA conducts an investigation outside of ASAP. We don't utilize that data.
(Transcript, p. 14).
When asked why the FAA needed to depose Tinney, Sanford replied that the FAA had not completed its investigation and there remained a lot of unanswered questions about what transpired during the 36 minutes in question. Sanford stated that as part of its investigation, the FAA needs to talk with the crew. He stated that it doesn't necessarily mean that an enforcement was going to come out of the investigation, but it is a requirement that the FAA conduct an investigation and part of that process involves talking with the crew. (Transcript, p. 15). When asked during cross-examination if he would have had access to the ASAP data, Sanford replied:
A. That's privileged information and that's to be held by the Event Review Committee. The only data that anybody outside of that would see would be sanitized reports with no pilot's names on them.
(Transcript, p. 19).
Sanford clarified that even though an FAA representative sits on the Event Review Committee, the FAA representative is not allowed to share the information that they glean from the ASAP investigation with the FAA office. (Transcript, pp. 23-24). Mr. Sanford also stated that pilots had an incentive to participate in the ASAP program, because if their report is accepted, then they are protected from enforcement. (Transcript, p. 25). Sanford testified that acceptance into the ASAP program provides pilots ...