FAA Risks Losing No. 2 Boss Over Ex-Military Limit (Corrected)

The acting administrator of the Federal Aviation Administration, who’s been leading probes into the Boeing Co. 737 Max crashes, may be out of a job unless Congress waives federal law.

That’s because of a statute that bars two ex-military officers from taking the helm of civilian aviation regulator. Dan Elwell, the FAA’s deputy administrator now the acting administrator, and Steve Dickson, the president’s nominee to lead the agency, are both former armed forces officers.

If the head of the FAA is a former regular officer of an armed force, the deputy administrator may not be an armed force officer either on active duty, retired as regular officer, or a former regular officer, according to 49 U.S. Code § 106.

Elwell would be forced out of the agency upon Dickson’s swearing-in, barring a congressional waiver. The House and Senate will have to pass legislation to allow both Dickson and Elwell to lead the aviation agency.

“The White House wants Dickson,” House Transportation and Infrastructure Committee Chairman Peter DeFazio (D-Ore.) said. “They don’t care about Elwell. I care about Elwell because he’s the one who is doing and shepherding FAA’s role on the 737 Max and I think it’s essential that we have continuity and that he stay.”

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Oliver Douliery/Bloomberg

House Transportation and Infrastructure Chairman Peter DeFazio (D-Ore.)

Senate Majority Leader Mitch McConnell (R-Ky.) filed for cloture on the Dickson nomination Thursday afternoon. Democrats objected to Dickson’s nomination following allegations of retaliation from a whistleblower during Dickson’s time as a Delta Air Lines Inc. executive.

“The president wants Dickson, the Republican senators want Dickson, they’re going to move Dickson with little to no Democratic support,” DeFazio said. “They vote on him, they confirm him, Elwell is gone the moment he is sworn in.”

Up to Leadership

“The stumbling block is merely having served at some point in the military. Frankly, it seems a statute that ought to be repealed in its entirety,” said Sen. Roger Wicker (R-Miss.), chairman of the Senate Commerce, Science and Transportation committee that forwarded Dickson’s nomination to the full Senate. “We all want more veterans working in the government.”

The Senate has a few options. The chamber will vote on Dickson, whose nomination is being challenged by Democrats and therefore requires floor time before a vote rather than advancing him under unanimous consent.

Senators will have to switch to a legislative calendar to call up the vote on the legislative waiver or to change the legislation entirely. That would require a 60-vote threshold and would have to pass the House and secure the president’s signature all before Dickson is sworn in.

The House is scheduled to be in session through July 26.

“I like Mr. Elwell and I think he should keep working there, so it would be for the leaders to decide how to handle that,” Sen. Maria Cantwell (D-Wash.) said.

The House could potentially move the waiver in a pro-forma session once the chamber leaves town if the Senate doesn’t have time before July 26, suggested Rep. Rick Larsen (D-Wash.), the chairman of the Transportation panel’s Aviation Subcommittee.

“I would hope that the timing will be such that they vote early next week and then we can retain Elwell. That’s what I hope, but I have no idea how it’s going to work out,” DeFazio said.

Sen. Majority Whip John Thune (R-S.D.) is working with Democrats on the waiver, but the nominee comes first, he said.

“It would be nice if they could move together, but I think we concluded that we’ve got to get the top position filled,” Thune said.

Another “reasonable” option if the House adjourns before the Senate passes a waiver would be to delay the swearing in ceremony until both chambers return in September, DeFazio said.

“But this is the Trump administration,” he added.

To contact the reporter on this story: Shaun Courtney in Washington at scourtney@bgov.com

To contact the editors responsible for this story: Paul Hendrie at phendrie@bgov.com; Robin Meszoly at rmeszoly@bgov.com