January 1, 1996
By John S. Yodice
The aviation world was elated when the FAA gave back to Bob Hoover his medical certificate (See "Pilot Briefing," November Pilot). He had been denied his FAA medical certificate for almost 2 1/2 years, and — sadly, as it turns out — there was no good reason why he should have been grounded. We told much of the story in this column in May 1994 (see "Pilot Counsel: A Chapter in the Life of Bob Hoover"). In this month's column we are going to concentrate on the legal aspects of the system that went awry and the lessons to be learned.
So, what did go wrong? How could such a thing happen? Aren't there laws to protect pilots in Hoover's predicament? Pilots ask, "Could it happen to me"?
The answer is, yes. There are laws to protect against this kind of thing. They didn't work for Bob Hoover. And, yes, it could happen to you.
The legal basis for the federal regulation of aviation is contained in Title 49 of the United States Code. It contains a provision that gives the FAA the power to issue airman certificates, such as pilot and medical certificates, to qualified individuals. And there is a companion provision that gives the FAA the power to reexamine an airman who holds a certificate. If, as a result of the reexamination or any other investigation, the FAA determines that safety requires the suspension or revocation of a certificate, the
FAA is empowered to issue an order suspending or revoking the certificate.
The FAA's request for a reexamination of Bob Hoover's qualification to hold his medical certificate is one of the instances where the system failed. Legally, the FAA should make such a request only if it has reasonable grounds to do so. The evidence shows that the FAA did not have the grounds. This case got started when two FAA inspectors with questionable motives reported to the FAA doctors, two months after the fact, that Hoover's performance at an airshow in June 1992 was subpar and that he didn't seem physically well. The FAA doctors, in a knee-jerk reaction based only on these two statements, asked Hoover to submit to an expensive medical reevaluation — and at his own expense. Hoover complied, at the cost of several thousand dollars.
That's not how the system is supposed to work. There were thousands of people at the airshow who saw Hoover perform, including other airshow pilots and FAA inspectors. There were dozens of people who personally interacted with Hoover at the airshow. If the FAA had done just a little bit of checking, the agency would have realized that it did not have any grounds to ask for a reexamination. Evidence at the later NTSB hearing showed that those who saw and met with Hoover thought his performance was great and that he acted fine. The FAA never contradicted this evidence — and didn't even introduce the testimony of the two inspectors. A surprise and embarrassment to the FAA was the fact that Hoover's airshow performance was videotaped by the local television station. The videotapes, showing the quality of his performance, were introduced in evidence in contradicting the two inspectors' statements.
The reason that the FAA is held to a "reasonableness" standard in requesting reexamination is that pilots every two years — or one year, or six months, depending upon the class of medical obtained — are required to demonstrate their qualifications. The FAA ought not to impose an additional burden without well-justified grounds.
Nevertheless, Hoover did submit to reexamination, and the system again broke down. The FAA picked the doctor, who conducted "a comprehensive clinical evaluation" and reported to the FAA: "It is my opinion that Mr. Robert Hoover is currently fit to hold a second class medical certificate from a neuropsychological and neuropsychiatrical point of view and should therefore be permitted to continue his flight activities."
Shouldn't that have been the end of it? Even if the FAA had reasonable cause to have Hoover reexamined medically (which it did not), the agency should have accepted the opinion of the doctor it selected to conduct the reexamination. Instead, the FAA took the report and sent it to an FAA-paid consultant who never personally examined Hoover and who gave the FAA the opinion it was obviously looking for.
The next system failure had to do with a so-called "voluntary" surrender of an airman certificate. Armed with the consultant's report (which was not given to Hoover), the federal air surgeon had a telephone conversation with Hoover and his aviation medical examiner (AME). In this telephone conversation Hoover was asked to surrender his medical certificate. He thought he had to, and he gave it to the AME. Actually, the federal air surgeon did not have the authority to ask Hoover to surrender his medical certificate. The federal air surgeon knew that. Hoover didn't. The FAA rationalized the situation as a "voluntary" surrender. Hoover didn't see anything voluntary about it.
FAR 61.3(h) does require that a certificate holder "present it for inspection" if requested by the FAA, NTSB, or a law enforcement officer. But it does not require surrender. If the FAA wants the certificate, it must honor the procedure required by law for the protection of the airman. Of course, a person may voluntarily surrender his or her certificate, but this situation may be easily misunderstood. So easily, in fact, that FAR 61.27 requires a person to sign a statement making clear that he or she understands the consequences of the voluntary surrender of a certificate. Unfortunately, FAR 61.27 applies only to pilot and flight instructor certificates. It does not apply to medical certificates.
Once Hoover was advised that he did not have to surrender his medical certificate — and by then he had had three rounds of medical evaluations concluding that he should have a medical certificate — he demanded it back. The FAA, recognizing that it has no legal basis to refuse, took the only step it could to prevent its having to return the certificate. It issued an order revoking the certificate — on an emergency basis. So much for the FAA's "voluntary" rationalization.
The FAA's use of its emergency authority is another failure of the system. Most certificate suspensions and revocations historically have utilized the "non-emergency" procures. The difference is important. Under the non-emergency procedures, the airman keeps his or her certificate while the case is appealed to the NTSB. The extreme of an emergency certificate action is supposed to be reserved for those cases in which the airman's continued use of his or her certificate during the appeal would constitute a danger to aviation safety. The FAA decided that Hoover's medical certificate should be revoked during his appeal, even though Hoover had flown 33 more airshows between the time of the June 1992 airshow and the time that he surrendered his medical certificate — all without a hitch. Where was the emergency? How would safety have been compromised if Hoover had been allowed to continue to fly while he appealed to the NTSB? The FAA was so entrenched that it would not allow Hoover to perform with a fully qualified, world-renowned pilot at the second set of controls acting as pilot in command.
The FAA abused its power, and the system failed to protect Hoover from this abuse. In recent years the FAA has brought more and more cases using its emergency authority, on more and more tenuous grounds. There is no suitable place to contest FAA's emergency determination.
The appeal system broke down, too. On paper it looks good. It's supposed to provide an independent adjudication much as a court system would do. The FAA should be just another litigant before the Board, and it should receive no partiality. Unfortunately, our experience — borne out by the statistics — is that FAA wins 80 to 90 percent of its cases before the Board. The Board has a tendency to rubber stamp FAA decisions. Of course, that's not what Congress intended when it gave us the NTSB to act as an impartial adjudicator. That's not what the U.S. Code says in spelling out our appeal rights.
Bob Hoover appealed the FAA's order to the NTSB. The case was assigned to a law judge for a hearing to determine whether Hoover was medically qualified. A hearing was held, and the law judge, after hearing all of the evidence — including the FAA's doctors and Hoover's doctors — decided the case in favor of Hoover. The judge ordered the FAA to return Hoover's certificate. The FAA didn't do that. Instead, it appealed to the five-member Board to overturn its law judge. And the full Board did just that.
That's not how the system is supposed to work. It is a fundamental legal precept that an appeals body should leave it to the trial judge to determine which witnesses to believe. It's a common-sense rule because judges, through their experience, are able to tell pretty well which witnesses on the stand are lying; or, more frequently, who is shading their testimony. In the Hoover case, the judge resolved the conflicting evidence by finding the Hoover witnesses to be more credible than the FAA witnesses. There was plenty to impugn the veracity of the FAA witnesses. The five-member Board, instead of upholding the credibility determination of its judge, reversed his decision.
There are many problems with the Board's decision, but there is one circumstance that demonstrates a fundamental flaw in the system. The judge whose credibility determination was reversed is one who had 15 years' experience as a trial judge in Oklahoma before becoming an administrative law judge. He had eight years of experience as an administrative law judge when he heard the Hoover case. He was reversed by five political appointees, none of whom had any judicial experience.
Three of the five members who decided the Hoover case have left the NTSB. The term of a fourth member will be up shortly. It remains to be seen how the Board's new members will discharge their responsibilities.
The Hoover case was further appealed to a federal appellate court, and ultimately to the United States Supreme Court. It is hard to fault the failure of those appeals, because the scope of review in those courts is so narrow that the courts are virtually compelled to uphold the administrative agencies. The failures of the system at the NTSB and the FAA levels are the most egregious.
Bob Hoover is back flying; that's the good news. After a lot of bad press, the embarrassment of Hoover's being certificated and flying his show successfully outside this country, and the fourth round of re-re-re-reexaminations, the FAA decided that he is fit to continue to do his airshow performances. So far, no one at the FAA or NTSB has been big enough to admit their mistakes. And, we haven't seen any steps yet to address the failures in the system.
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