Pilot Counsel:

FAA reexamination request

February 1, 2012

John Yodice I try to offer guidance to pilots on how to deal with the many different FAA enforcement matters that I see in the administration of the AOPA Legal Services Plan. That's not because most pilots will experience some trouble with the FAA—most won't. However, some significant number will, and we can't tell in advance which ones will.

A recent enforcement decision by the NTSB reminds me that there is one situation in which pilots innocently but unnecessarily aggravate a problem because they lack the legal expertise on how to handle it. It has to do with responding to an FAA request that a pilot submit to reexamination of his or her pilot qualifications. Such a request is legal, always unwelcome, many times unexpected, and seldom felt justified. My experience has shown that a refusal to be reexamined is more troublesome than the alternative that I usually recommend.

It is true that under the law, the FAA request must be “reasonable.” Indeed, in the case I will describe, the pilot certainly felt that the request was unreasonable. Rather than submit, the pilot took the FAA to court—actually an appeal to the NTSB. The facts are that a pilot of a Cessna 177B struck a wire fence attempting a takeoff from a frozen private airstrip. He was unsure what happened. He thought maybe he could have hit a crosswind. The aircraft was substantially damaged. The pilot and his passenger were unhurt.

The FAA decided that the incident warranted reexamination of the pilot. According to the FAA, the pilot “failed to maintain directional control and establish a climb sufficient to refrain from striking a fence and this conduct resulted in substantial damage to the aircraft.”

The FAA sent two letters to the pilot requesting that he appear for a reexamination of his competency to hold his certificate. The pilot failed to appear as requested. As is usual in such a failure, the FAA issued an emergency order suspending his pilot certificate pending a successful completion of a reexamination (“emergency” meaning he was grounded immediately, prior to any opportunity to defend himself). The pilot appealed the order to the NTSB, as he had a right to do. The pilot explained that he had completed a flight review with an FAA designated pilot examiner, feeling it should satisfy the reexamination request. The FAA did not agree. Under the required procedure the reexamination must be conducted by an FAA air safety inspector from an FAA Flight Standards District Office, not a designated pilot examiner. The pilot also contended that the FAA request was unreasonable in that he was asked to complete a “soft field takeoff,” even though the airfield at issue was frozen at the time.

An NTSB hearing was held on the pilot’s appeal. After hearing the evidence, the NTSB law judge determined that the FAA had a reasonable basis for requesting that the pilot complete a reexamination. On a further appeal from the law judge’s decision, the full NTSB affirmed the judge, stating “it is well-settled that the board’s inquiry into the reasonableness of a reexamination request is a narrow one,” and that the FAA “had a reasonable basis to request respondent complete a reexamination.” So, the pilot remained grounded until he passed an FAA reexamination, or appeals to a higher court.

The pilot obviously felt that the FAA was unreasonable in its request. Because of the narrowness of the “reasonableness” issue on an NTSB appeal, as the NTSB tells us, these cases are hard to win. As an alternative, what I usually recommend is that a pilot faced with a reexamination request take the letter to his or her flight instructor and ask to receive flight instruction specifically on the matter to be tested, as specified in the request. The letter should specify an exam tailored to the incident or accident that precipitated the request. In reviewing many, many FAA requests, I only see a few inappropriately broad requests that ask for a complete private pilot checkride, or a complete instrument checkride, or the like. The pilot should ask his or her instructor to detail the instruction given in the pilot’s logbook. Then, the logbook should be presented to the FAA inspector at the time of the reexamination.

This procedure accomplishes two objectives. It shows to the inspector a positive safety and compliance attitude on the part of the pilot; and it evidences to the inspector that an FAA certificated flight instructor has found the pilot competent on the matters to be tested. I have never seen this procedure fail. If it happened, it is rare. On the other hand, I have rarely seen a successful appeal to the NTSB challenging the reasonableness of the reexamination request.

If a pilot faced with a reexamination request needs more detailed guidance, the pilot should seek professional help by calling the AOPA Legal Services Plan (301-695-2257), or the AOPA Pilot Information Center (800-872-2672), or his or her aviation lawyer.

Yodice and Associates administers the AOPA Legal Services Plan for members.

John S. Yodice