November 1, 1996
By John S. Yodice
Suppose that you need your pilot certificate to earn your livelihood. Many of us do — flight instructors, professional pilots, even pilots on business. Do you realize that the FAA has the power to revoke your certificate on the spot? Even if you successfully defend yourself against FAA charges, you're out of work until you can get your certificate reinstated. Under the current procedures, that could take some time.
Consider this real-life case. A full-time captain for a major airline had his airline transport pilot certificate revoked twice by the FAA, only to win both cases on appeal to the National Transportation Safety Board. The trouble is that while he was litigating his cases before the Board, he couldn't fly. Fortunately, he had an understanding employer who gave him a desk job both times while he was fighting the FAA.
How can this happen?
We have federal aviation statutes that spell out procedures intended to provide due process to pilots charged with aviation infractions and, at the same time, to give the FAA the tools it needs to police our national airspace system. These procedures sometimes produce strange results.
Take, for example, the two cases I just mentioned. The airline captain first was charged by the FAA with "type rating trading". These charges came out of a nationwide investigation by the FAA of its suspicions that some designated pilot examiners had been issuing each other type ratings for various aircraft, without proper testing. The investigation has so far resulted in several enforcement cases, including the one brought against the airline captain about whom we are talking. In addition to being an airline pilot, he was also an FAA designated pilot examiner and holds more than 50 type ratings.
The FAA charged the captain with making intentionally false and fraudulent statements in applications for type ratings and in the temporary certificates which were issued, all in violation of FAR 61.59(a)(1) and (2). Two of the three ratings in this case involved aircraft operated by the Drug Enforcement Administration. The FAA charged that a rating the captain received in a DEA CASA CA-212 aircraft from a designated pilot examiner employed by DEA was bogus, as was the rating the captain gave to a different DEA official in a DEA Learjet. The third rating at issue in this case is one that the captain received for a 650-series Cessna Citation after passing a check administered by an FAA inspector in a FlightSafety International simulator.
The FAA issued an order revoking the captain's ATP certificate. The captain appealed to the NTSB. Ordinarily, such an appeal would delay the effectiveness of the revocation. In other words, the captain's ATP certificate would remain in effect while the case was being litigated before the Board. This is normal.
But there is a provision in the law saying that if the FAA considers the matter an emergency, the revocation becomes effective immediately. The FAA felt that the captain's certificate (not only the questionable type ratings) needed to be revoked immediately, because his violations demonstrated that he lacked the qualifications — including the good moral character — required of an ATP. He could not fly for his airline while he was trying to defend the charges.
The captain won his case before the Board. According to the Board, the FAA's evidence did not establish intentional falsification. In the first two ratings, while the aircraft flight logs and the DEA mission reports showed less time than is reflected in the rating applications completed by the captain, DEA agents who made the records countered this evidence by testifying that their records were made for internal use only and should not be relied upon. They were frequently made well after the flights, and they were often inaccurate. The DEA agents testified to the thoroughness and the duration of the two check flights. The Board believed the agents' testimony.
In the third rating, the FAA charged that the captain intentionally falsified his application for this rating because the application said that he was qualified to take the simulator test when, in fact, he had not taken the approved simulator course or, indeed, any flight training in the Citation 650. The captain denied knowing that he could not take the simulator check without having taken a formal course of simulator instruction. The FAA inspector who administered the checkride didn't realize it, either. Maybe they should have known, said the Board, but that doesn't amount to intentional falsification.
The captain won this case, but the FAA was not finished with him yet. It kept digging.
The FAA again revoked the captain's ATP, again on an emergency basis, and again for falsification, but this time for different reasons. The FAA charged this time that he had falsified documents reflecting that he had received an appropriate flight check for a type rating in a Grumman TBM Avenger, a vintage World War II carrier-based torpedo bomber. The FAA also charged that in May 1979, he had misrepresented his flight time in applying for his ATP and flight instructor certificates. Again the captain was knocked off flying status with his airline.
Again the captain appealed to the NTSB, and again, the captain prevailed. With respect to the TBM rating, the FAA said that the captain could not have met the requirements because the TBM he used in the flight check did not have a glideslope receiver. A glideslope is needed to satisfy the ILS approach component of the required demonstration of instrument competency. The captain and three witnesses testified that the aircraft had been outfitted with the temporary installation of a Narco Nav 122, which has a glideslope. That satisfied the Board. With respect to the 1979 misrepresentation charge, the Board felt that the commission of such an alleged offense so long ago cannot reasonably be used to assess the captain's current qualifications in light of his unblemished record in the intervening 17-plus years.
So the captain won both cases, but he was not able to fly in his regular job while he was litigating. Is his situation unusual?
In times past, the FAA used its emergency authority sparingly. In recent years, the FAA has used it more and more. There is no doubt that it needs to have this emergency authority. We all can conceive of situations in which the agency would need to revoke a certificate on the spot. It could even be argued that the allegations against this captain, if the FAA reasonably believed them to be true, warranted the emergency action.
The problem is that there is no place a pilot can go to challenge the emergency nature of the FAA's action — to immediately challenge the immediate revocation. The Board says that it doesn't have the jurisdiction to decide whether the FAA was correct in bringing the case on an emergency basis. I am sure that the captain would have liked to argue to somebody that it was not reasonable to ground him from his airline job while he defended the charges, which seemed to have little to do with his airline flying.
The emergency nature of an FAA case can theoretically be reviewed by a federal appeals court, and the captain tried to pursue that, but history has shown us that that review is more theoretical than real.
The Board is the logical place to put this jurisdiction.
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