Included in the omnibus spending bill unveiled by Congress on December 21 is the FAA Accountability Enhancement Act. The Act is designed to provide significant enhancements to accountability, safety, and whistleblower protection within the aviation industry. The Act was drafted in response to the findings of a scathing Senate report released on December 18 which details a culture of whistleblower retaliation within the Federal Aviation Administration (FAA).
The Senate Committee on Commerce, Science, and Transportation’s investigation into issues of aviation safety oversight began in response to the second of two tragic crashes of Boeing 737 MAX aircraft in March 2019. Following the second crash, Committee staff began receiving whistleblower disclosures concerning aviation safety issues and the scope of the investigation soon grew beyond the first allegations inspired by the 737 MAX crashes. According to the Senate report, “information received from fifty-seven whistleblowers revealed common themes among the allegations including insufficient training, improper certification, FAA management acting favorably toward operators, and management undermining of frontline inspectors.” The Senate investigation found that these trends were accompanied by a trend of whistleblower retaliation against those who raised safety concerns.
The Senate report details numerous specific whistleblower allegations concerning aviation safety issues as well as overarching problems with the FAA’s oversight. The report also claims that the FAA and Department of Transportation (DOT) were uncooperative with the Senate investigation and significantly delayed the progress of the investigation. The report concludes with several recommendations for increasing federal aviation safety oversight, including a mention of the FAA Accountability Enhancement Act, which was sponsored by Senator Roger Wicker (R-MS) the Chairman of the Senate Committee on Commerce, Science, and Transportation.
Some of the specific whistleblower disclosures detailed in the report concern the FAA’s certification and recertification of Boeing 737 MAX aircraft. Whistleblowers allege “coziness between the FAA and Boeing, and lack of diligent oversight by the FAA in general, specifically in the certification of the 737 MAX.” Additionally, whistleblowers claim that “FAA senior management was complicit in determining the 737 MAX training certification level prior to any evaluation.” The Senate report found evidence that Boeing and FAA officials corroborated in improperly certifying the 737 MAX and in establishing improper training certification levels for the aircraft. Specifically, the report found that “FAA Aircraft Certification Office (ACO) test pilots were complicit in skewing human factor simulator testing to support erroneous pilot reaction time to runaway stabilizer assumptions by Boeing.” The report claims that these simulator tests occurred during the recertification process of the 737 MAX following the crashes, and that it appears that “FAA and Boeing were attempting to cover up important information that may have contributed to the 737 MAX tragedies.”
Other whistleblower disclosures covered in the report include allegations of abuse of the FAA’s Aviation Safety Action Program, misconduct at the Honolulu Flight Standards District Office, improper training and certification, and ineffective safety oversight of Southwest Airlines.
In addition to these whistleblower disclosures, the Senate report details that a culture of whistleblower retaliation persists within the FAA. As part of the 2012 FAA Modernization and Reform Act, the FAA was required to create an Aviation Safety and Whistleblower Investigation Office, but the FAA had previously implemented an Office of Audit and Evaluation (AAE) and successfully argued to Congress that this office already fulfilled the role of a whistleblower office. The Senate report finds, however, that the AAE is wholly insufficient. According to the report, “many FAA employees, including managers and human resource officials, do not clearly understand what constitutes whistleblowing or how to properly treat employees that make protected disclosures.” Strikingly, the report claims that even investigators who were responsible for investigating whistleblower retaliation “were not sure what constituted whistleblowing or which FAA office was responsible for investigating such matters.”
In conclusion, the report states that there are systemic deficiencies in FAA oversight, including “ineffective or complete lack of oversight, resulting in unnecessary risk to the flying public.” The conclusion continues by claiming that “in many cases FAA management appears to be aware, and in some cases complicit in thwarting the very oversight they are charged with directing and supervising. In the most alarming cases, whistleblowers have warned of tragedies before they occur only to be retaliated against by managers.”
The FAA Accountability Enhancement Act is meant to address several of the issues detailed in the Senate report. The Act would rename the Office of Audit and Evaluation as the Office of Whistleblower Protection and Aviation Safety Investigations and enable this office to investigate claims of whistleblower retaliation. When this office finds evidence of whistleblower retaliation, it would “provide a recommendation for a range of disciplinary actions to the Agency proposing official.” Additionally, if the Agency proposing official deviates from the recommended range of disciplinary actions, the Office of Whistleblower Protection would notify Congress. The Act additionally establishes an Office of the Whistleblower Ombudsman within the FAA. This office is meant to educate employees and management within the FAA “about prohibitions on retaliation and any specific rights or remedies with respect to any retaliatory practice.”