September 1, 2003
By John S. Yodice
In past columns we have explained the regulations that require a pilot to present credentials and documents to the FAA for inspection. One of the documents that the FAA routinely asks for, especially after an accident or an incident is the pilot's logbook. (See " Pilot Counsel: Presenting Certificates and Logbooks," June 2002; " Pilot Counsel: New Photo ID Requirements," January 2003.) What we haven't yet talked about is what is likely to happen if a pilot doesn't do as the FAA asks? We now have a reported legal decision that tells us one likely result. In this case the penalty was pretty extreme. Although the pilot, according to the judge who heard the case, is "a very experienced airman" with "an exemplary record" who made a good faith effort to comply, she lost all of her FAA pilot certificates — airline transport pilot, flight instructor, ground instructor, and flight engineer — in a tussle with the FAA over the production of her logbook.
The case involves a pilot who has a business that operates both helicopters and airplanes. She herself does a good bit of helicopter flight instruction. Her troubles began when she had an accident while piloting a gyroplane. In the investigation of the accident, the FAA asked to see a number of records, including her pilot logbooks. In response, the pilot gave records to the FAA, including a page torn from her diary. The page reflected a flight record related to the gyroplane. These didn't satisfy the FAA. The FAA wanted pilot logbooks showing more of her personal flight time records. Even though the pilot sent numerous other records requested by the FAA that did satisfy those FAA requests, the FAA took action on the absence of a logbook. The FAA issued an order immediately suspending, on an emergency basis, the pilot's ATP certificate until she provided the pilot logbooks.
After this FAA order was issued, but before the pilot says she learned about the suspension, she was seen giving flight instruction in a helicopter to a student pilot. FAA inspectors were at the pilot's home base awaiting her arrival when she approached to land with her student. According to the inspectors, when she saw them she directed a rude gesture in their direction and flew away. Things were getting testy. This time the FAA issued a second order revoking all of her certificates. The FAA order recited her failure to surrender her ATP certificate as she was directed to do in the first order. It also recited her operation of an aircraft after the suspension imposed in the first order was in effect.
The pilot appealed both orders to the National Transportation Safety Board. As far as she was concerned, the FAA request for logbooks and records was invalid because it asked for "all" of her flight time, asking for more than she was required to log. Besides, she said, she no longer maintains a log of all of her flight time.
Her explanation of not knowing about the first FAA order had to do with her address of record with the FAA. She used her parents' address. Her mother performs various tasks for the business, including bookkeeping and picking up and reading the mail. Although she says that she didn't actually get the order of suspension until after the instructional flight, she didn't dispute the fact that she had at least "constructive" prior notice of the FAA order of suspension when her mother picked up the certified mail containing the order.
The pilot got a sympathetic hearing before an NTSB law judge. He reduced the two FAA orders to a six-month suspension of only her ATP certificate. The law judge, after hearing all of the witnesses, felt that the pilot made a good faith effort to comply with the FAA requests. The judge thought that the sanction of revocation of all of her certificates was too harsh for the violation proved.
The FAA appealed the reduction of sanction to the full five-member board. With two of the five members dissenting, the three-member majority granted the FAA appeal and reinstated the revocations. The board majority took a strong stand on two issues of importance to pilots.
According to the three-member majority of the board, the FAA request was not invalid on the ground that it sought more information than the pilot keeps or is required to keep. The board said: "[The pilot] was obligated, whether or not she still logs flight time she's not required to log, to produce the flight records Part 61 does require her to maintain, such as those that demonstrate recent flight experience in all of the aircraft she operates (see section 61.51(a)(2)), including helicopters in which she provides sightseeing and flight instruction services and the gyroplane she was operating with a passenger on board when she had the accident that triggered the requests for her logbooks."
On another issue, the board noted that this might be the first occasion it had to review an appeal involving an operation during an emergency suspension. In strong language, the board said: "Knowingly operating an aircraft while under suspension is one of the most serious violations an airman can commit, for it reveals, perhaps as no other offense does, contempt for the laws that govern the exercise of the privileges granted to the holder of a certificate and for those responsible for enforcing those laws in the interest of air safety."
The pilot further appealed her case to a federal court of appeals. The court, not surprisingly affirmed the NTSB. The scope of judicial review of board decisions is very narrow.
NEW SLEEP APNEA POLICY RESPONDS TO AOPA CONCERNS
A new FAA policy on obstructive sleep apnea that addresses many of the concerns raised by AOPA is scheduled to take effect March 2.
AOPA and the National Business Aviation Association have jointly filed an amicus, or friend of the court, brief in the Ninth Circuit Court of Appeals as part of the ongoing legal battle over the future of Santa Monica Municipal Airport.
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