Special Counsel Laments FAA Handling of Aviation Whistleblowers

The United States Office of Special Counsel (“OSC”) sent a letter to the White House and Congress yesterday urging more effective oversight of air safety on the part of the Department of Transportation’s (“DOT’s”) Federal Aviation Administration (“FAA”).  In a press release, the OSC noted that the FAA has one of the highest rates of whistleblower filings per employee of any executive branch agency.  In the letter, Special Counsel Carolyn Lerner specifically pointed out seven of the most recent FAA whistleblower disclosures brought before the OSC:

• Emergency service helicopters used by first responders nationwide were incorrectly retrofitted for night vision goggles, posing a potential threat to pilots’ ability to read instruments;
• Air traffic controllers in the greater New York airspace slept in the control room, left their shifts early, used personal electronic devices while on the job and used dangerously imprecise language when directing aircraft, resulting in a near-crash;
• Aircraft were cleared to depart New Jersey’s Teterboro Airport without proper wake turbulence separation from heavy jet aircraft on final approach to Newark Liberty International Airport;
• Insufficient oversight of Delta’s inspection and maintenance program, specifically that maintenance specifications were not in compliance with airworthiness directives regarding the fuel tank system and the electrical wiring interconnection system;
• Unauthorized aircraft frequently entered U.S. airspace near San Juan, Puerto Rico;
• Inconsistent rules for operations on parallel runways result in operational errors and deviations because controllers are unable to simultaneously observe rules for missed approaches while maintaining appropriate separation from parallel runways; and
• Faulty wind instruments are being relied upon at the Detroit Metropolitan Airport, among other concerns.

Special Counsel Lerner also noted that not only were the number of whistleblower filings originating from the FAA abnormally high, but the DOT was also guilty of repeatedly failing to take timely corrective action to address concerns raised by whistleblowers.  When it comes to aviation safety, Lerner cautioned, “The public properly expects zero tolerance for unnecessary risks.”  Lerner added, “Preventive measures could be far more effective if the Department of Transportation listened to its own employees’ alarm bells and acted on them promptly.”

Whistleblowers employed by the FAA are protected by the Whistleblower Protection Act, which provides protection from retaliation against government employees for reporting illegal or unsafe activity.  In addition, however, the government recognized the importance of aviation safety when it passed the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (“AIR21”), which provides whistleblower protections to all air carriers and their contractors, including manufacturers and maintenance contractors.  AIR21 prohibits retaliation against an employee who complains to a supervisor or government official about issues of airworthiness or air safety, or who assists in an investigation of violations of any federal law or regulation related to air carrier safety.