February 12, 2014
By John S. Yodice
of the tools that the FAA uses in its enforcement efforts is a request to reexamine a pilot’s qualifications to hold his or her FAA certificate or ratings. This tool comes from the same provisions of the Federal Aviation Act that give the FAA administrator the authority to issue airman certificates. The act authorizes the administrator to “at any time…reexamine an airman holding a certificate issued under…this title.” My experience is that contesting the required “reasonableness” of such a request is often much more troublesome than taking the reexamination as I will suggest.
In a recent case, the FAA requested reexamination of a private pilot’s qualifications because the airport manager at an airport at which he landed his Maule aircraft complained to the FAA. The manager said that the pilot had difficulty following the manager’s marshalling directions to put the aircraft into a parking space, and, in the terminal, the manager saw that the pilot was having difficulty programming his handheld GPS for his return to his home airport. The manager knew that there was restricted airspace along the route home. The manager attempted, unsuccessfully, to prevent the pilot from departing. On his way home the pilot’s aircraft was seen on radar by the controlling FAA Tracon facility to be entering the restricted area.
An FAA inspector was assigned to investigate the matter. From a telephone call with the pilot, the inspector said that the pilot’s answers to his questions were vague, and the pilot did not seem to understand such common traffic pattern terms as “downwind” and “base leg.” Based on all of the circumstances, including the airport manager’s complaint and the Tracon evidence, the inspector requested that the pilot submit to an FAA reexamination. The pilot refused, and, in routine fashion, the FAA issued an order suspending his private pilot certificate until he successfully completed a reexamination.
The National Transportation Safety Board acts as an appeal “court” for FAA orders that suspend or revoke an airman’s certificate. The pilot appealed. In a full hearing before an administrative law judge of the NTSB, and on further appeal to the full board, the FAA order was upheld. At the hearing the airport manager testified to his observations, and was corroborated by another witness who recalled that the pilot had an unsteady gait as he walked to the terminal, that the pilot had difficulty programming his GPS, and seemed “agitated and belligerent” when the manager offered to help him. FAA controllers testified to the radar evidence that showed the flight of the pilot’s aircraft into restricted airspace. The pilot, in defense, testified that the manager was trying to “hijack” his aircraft and hold him at the airport until the pilot paid the manager (for what, is not given in the NTSB decision). There may well have been some bad feelings there. The pilot accused the FAA witnesses of lying. But there was no denial of the airspace intrusion. In response to a direct question from the judge, the pilot said that he didn’t know if he flew into the restricted airspace. At the conclusion of the hearing, the law judge found that the FAA had a reasonable basis to request reexamination, based mainly on the law judge’s credibility findings in favor of the FAA witnesses.
It is on the appeal to the full NTSB, that the board related its precedents, in a long line of cases, to the effect that the FAA has significant discretion in determining when a reexamination is warranted, and that the FAA need only make a “minimal” showing of a reasonable basis for requesting reexamination. Based on these precedents and the board’s review of the record before the law judge, the board sustained the suspension. The unfortunate result is that the pilot must still submit to reexamination to retain his flying privileges.
The ordinarily uselessness of an appeal to the NTSB prompts me to generally give this advice. When a pilot receives a letter requesting that he or she be reexamined, unless the request is demonstrably unreasonable (rarely), the pilot should take the FAA letter to his or her flight instructor and ask for flight and ground instruction on the matters that are specified in the letter to be examined. The instruction should be logged. After the instructor is satisfied, the pilot should present him/herself for reexamination.
Two things have been accomplished. The pilot has demonstrated to the FAA inspector a safety and compliance disposition as well as competency, that the inspector is looking for, and secondly, while a reexamination will be conducted, this procedure makes it difficult for the FAA inspector to fail the pilot in light of the instruction that was taken and supported by an FAA- certificated flight instructor’s logbook entries. I know of no situation where this procedure has not impressed an FAA inspector into passing the pilot.
John S. Yodice is the legal advisor for the AOPA Pilot Protection Services program.
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