Washington Counsel

A legal service program for AOPA members

June 1, 1983

AOPA always has been in the forefront of providing the kinds and extent of services to its members that no other association, in or out of aviation, provides — and at a modest dues structure. It is something of which the staff is proud. Services are provided so routinely that we tend to take them for granted. That's a privilege of membership.

So, it is not surprising that AOPA is again in the forefront by inaugurating a legal services program for its members. For the very modest fee of $16 per year for private and student pilots, AOPA will pay for legal services to protect a member from the most common FAA enforcement actions. It is one kind of protection that members who do any flying can appreciate.

Over the years in this column, we have related how easily, inadvertently and oftentimes innocently a member can get into trouble with the FAA. Flying is so heavily regulated, with rules covering even the most finite details, that the most conscientious pilot can run into problems. The consequences have been loss of licenses, sometimes fines and always the embarrassment and hassle of dealing with the matter.

What has struck us as unfair is that, more often than not, a member suffered the penalty because the cost of defending the matter outweighed the penalty involved. After all, how much can a member afford to spend for legal fees to defend a 30-day or a 60-day suspension if he or she uses a pilot certificate just for sport or recreation? How much can a person spend defending a $250 civil penalty? It seems to us that the solution is to spread the risk over a large segment of our membership to protect the few who may stumble.

So, as your membership comes up for renewal, you will be given the opportunity to participate. The coverage is coextensive with your membership year; and any alleged violation for which representation is sought must occur during that year. When you join, a complete copy of the plan will be sent to you. Here are some of its highlights.

Every effort has been made to keep the costs as low as possible. If .you fly privately, whatever the grade of your certificate, the cost is $16 per year. If you fly commercially, for example, as a flight instructor or an air-taxi pilot or a company pilot, the risks and consequences are greater and the fee is $48 per year. For pilots exercising the privileges of an ATP certificate, that is, an airline pilot, the cost is $96 per year.

In return, the program provides for unlimited consultation with enforcement counselors at AOPA headquarters. A member is encouraged to contact AOPA immediately at the least hint of trouble with the FAA. Any member involved in a situation that has the slightest potential for enforcement action should call or write AOPA; early consideration will help avoid a full-blown legal proceeding.

But if a full-blown legal proceeding occurs, and by that I mean the FAA proposes to suspend or revoke your pilot certificate or the FAA wants to impose a civil penalty against you, AOPA will pay for a lawyer.

The program has an "open panel," which means that you can select your own attorney and AOPA will pay. AOPA also will maintain a panel of lawyers who are AOPA members, have agreed to attend an annual AOPA-sponsored seminar on how to handle enforcement cases and have agreed to a specified fee schedule. The recommended panel will give us a tool to assure high-quality representation of our members, as well as a satisfactory resolution of any member complaints about representation.

At the informal stages of a legal proceeding, the legal fees are covered in full if provided by panel counsel. If non-panel counsel is employed, the plan covers 100 percent of the legal fees incurred, up to five hours at an hourly rate up to $75 per hour. Whether it is a certificate action or civil penalty case, we estimate that this will cover you through the informal stages that include an initial consultation, perhaps an informal conference with the FAA and attempts to settle the matter with the FAA.

In the case of a certificate action, if the matter is not settled or dropped, it will proceed to a hearing before an administrative law judge of the National Transportation Safety Board. The plan will then pay 80 percent of legal fees, if panel counsel is employed. If non-panel counsel is used, the plan will pay 80 percent of legal fees at a rate up to $75 per hour up to a limit of 25 hours. If, after the administrative law judge hearing, the case is appealed to the full board, again AOPA will pay 80 percent of the fee up to a limit of 15 hours.

The reason the member is required to pay 20 percent of the fee after a certain point is obvious. AOPA would prefer to cover the whole cost. But the limitation is to try to ensure that only meritorious cases go to hearing and appeal. It is not unlike the limitations in your medical insurance.

Civil penalties are used much less frequently in general aviation than are certificate actions. In 20 years of observing the field, we have not seen any non-commercial cases and very few air taxi and commuter cases go beyond the informal stage. So the plan, at least initially, does not provide any payment beyond the 100-percent coverage at the informal stage.

As with any legal services program, there are specific exclusions. AOPA has endeavored to keep these to a minimum. The plan currently does not cover:

  1. Civil penalty actions not settled at the informal stage but prosecuted in court.
  2. Seizure of aircraft actions.
  3. Criminal actions.
  4. Medical certificate matters.
  5. Aircraft title matters.
  6. Legal proceedings by or against any party other than the administrator of the Federal Aviation Administration.
  7. Appeals to any court of decisions of the full NTSB.
  8. Payment of civil penalties.
  9. Litigation expenses and court costs, including expert witness fees and travel expenses.

With time and experience, AOPA will try to expand the coverage and further minimize the exclusions. The success of AOPA's legal services program is dependent on broad-based participation. We encourage you to take advantage of the opportunity.

John S. Yodice is Washington Counsel to AOPA and a member of the Board of Trustees.

John S. Yodice