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Copyright © 2005, 2011 John S. Yodice
This publication provides information on FAA enforcement, the importance of which is stressed by AOPA's General Counsel, John S. Yodice, and by former FAA Administrator, James B. Busey, in the above quotes. The content is principally a compilation of articles written for AOPA Pilot by Mr. Yodice. We have made minor editorial changes to arrange the articles in a handbook format.
Pilot Counsel: Right-of-way rules in action
By John S. Yodice
AOPA Pilot, October 2006
"Hell hath no fury" like an FAA inspector who believes that he was buzzed by another aircraft. In this interesting tale, the inspector successfully prosecuted a 180-day suspension of the buzzing pilot's commercial and flight instructor certificates, a severe sanction to one who may be earning his livelihood using those certificates. What is probably more important, this case affords us an unusual opportunity to look at the applicable right-of-way rules in a real-life situation, rules that many of us may not have read in detail for some time.
Legal Briefing: Guidance is golden
The AIM vs. the FARs
By Kathy Yodice
AOPA Flight Training, April 2005
These cases suggest that you may be held responsible for complying with FAA guidance. Or, you could find yourself defending against an interpretation of a regulation that the FAA announces, for the first time, in response to your conduct. In any event, while it may not be a regulatory requirement to comply with all FAA written guidance, you can certainly expect any such guidance to be used in a FAA enforcement case.
FAA enforcement and your flying future
By Wayne Phillips
AOPA Flight Training, March 2005
Stuff happens. Let's deal with it from two perspectives. First, what is the FAA going to do with you? Second, what impact will a regulatory violation have on your career? The FAA has essentially one of five enforcement avenues to pursue.
One pilot's journey through the system
By Steven B. Zaboji
AOPA Pilot, April 2003
It was with great angst that I opened the large, certified manila envelope from the Federal Aviation Administration. It was late in May 2002, and what began as a flying incident the previous November was finally coming to a resolution. Crowded among the postal patrons, I turned deeply within and focused on the words in the letter, particularly those that proposed to suspend my private pilot certificate for 150 days.
Departments: Legal Briefing
Where does the info go?
More on NASA's ASRS program
By Kathy Yodice
AOPA Flight Training, April 2003
Last month, we reminded you about a very valuable safety program for aviation, the Aviation Safety Reporting System ("Legal Briefing: NASA's ASRS program," March AOPA Flight Training). NASA administers the program, collecting information from aviation safety reports made by users of our national aviation system. NASA analyzes and organizes that information into a data report that can be provided to the FAA, which uses that information to correct any apparent safety deficiencies in the aviation system. The goal of the system is to lessen the likelihood of aviation accidents.
Departments: Legal Briefing
NASA's ASRS program: The pilot's tool for submitting safety concerns
By Kathy Yodice
AOPA Flight Training, March 2003
As pilots, flying presents us with many challenges and new experiences. There is a good chance that one day, you could see something that concerns you and may affect aviation safety. With increased security at airports, redirection of resources and priorities, regulatory and policy changes, and advancements in avionics, it's a good time to reiterate the value of an aviation reporting program that may bring your concerns to the attention of someone who may be able to address them and benefit aviation safety. The reporting program is officially called the Aviation Safety Reporting System, and it was established in 1975 through a joint agreement between the FAA and NASA.
Training Topics: Legal Briefing
By Kathy Yodice
AOPA Flight Training, November 1999
The Aviation Safety Reporting System — a joint program of the Federal Aviation Administration and NASA — is good for pilots and for aviation safety. It can protect a pilot facing FAA enforcement action from having to surrender his or her pilot certificate and keep a pilot from having to pay a civil penalty. For aviation safety, it permits the free flow of safety information from those who are in the best position to identify a deficiency to those who are in the best position to take action to remedy the problem. In this way, information gathered from those who use the aviation system may be used to lessen the likelihood of an aviation accident.
Training Topics: Legal Briefing
Enforcement: The FAA's other side
By James E. Cooling
AOPA Flight Training, August 1998
FAA enforcement is serious business and involves the potential loss or suspension of your airman's certificate or a civil penalty (a fine). Let me give you a real-life example. Say you were unfortunate enough to experience an engine failure in a single-engine aircraft. You landed your airplane successfully in an open field, with no damage to the passengers or aircraft (because your CFI gave you excellent flight training to FAA standards).
This publication provides information on FAA enforcement, the importance of which is stressed by AOPA's General Counsel, John S. Yodice, and by former FAA Administrator, James B. Busey, in the above quotes. The content is principally a compilation of articles written for AOPA Pilot by Mr. Yodice. We have made minor editorial changes to arrange the articles in a handbook format.
Mr. Yodice is a commercial pilot and flight instructor with single and multiengine airplane, helicopter, and instrument ratings. His law firm, Yodice Associates, specializes in aviation law with offices in Washington, D.C. and at AOPA's headquarters, 421 Aviation Way, Frederick, Maryland 21701.
"Dear AOPA: The FAA recently notified me that it is investigating an incident in which I was involved. The FAA requested a statement from me. What should I do?"
Let's put this typical question from an AOPA member in perspective. The Administrator of the Federal Aviation Administration is given broad powers to promulgate regulations to ensure aviation safety. These regulations are effective so long as they are enforced. If they can be violated without fear of sanction, then the system fails. All responsible pilots favor the enforcement of these regulations. But hand-in-hand with enforcement must go the protection of the individual airman's rights. As is our American custom, the airman is given very carefully guarded procedural rights which are designed to ensure that if he is found guilty of violation of the regulations it is because he is guilty and because he has been proven guilty in a procedurally fair manner. If the airman does not know of the safeguards which are there for his benefit, he can't take advantage of them.
John S. Yodice, AOPA General Counsel
"Notes from the Washington Counsel,"
AOPA Pilot, May 1971
"It is the role of FAA employees to promote safety through the compliance and enforcement process, as in all agency programs. It is the responsibility of the aviation industry to strive to attain full compliance. Aviation safety depends primarily on voluntary adherence to regulatory requirements. Therefore, compliance is promoted primarily through education, training, and counseling, and only where those efforts have failed, by formal enforcement action. Enforcement action is taken when it is in the public interest to do so, applying a measured and proportionate sanction in each case that takes into account compliance history and all other relevant factors....
"...Individuals and other certificate holders subject to FAA regulations should understand the agency's compliance and enforcement policy, and should be made aware of the general procedural protections and appeal rights available to respondents at each stage of the process. This policy will be disseminated in publications available to the aviation community...."
James B. Busey, Administrator
Federal Aviation Administration
"Policy on Compliance and Enforcement"
July 12, 1990
We are frequently asked by members to present an overview of FAA enforcement procedures, not only because they want to better understand the context of a particular case, but also because they want to generally know more about FAA enforcement.
The big picture is that there are five types of actions that the FAA typically uses against general aviation pilots to enforce the Federal Aviation Act and the Federal Aviation Regulations. They are:
The FAA uses administrative actions to dispose of violations that are too minor to warrant legal enforcement action. The FAA considers a violation minor if it was not deliberate, was not significantly unsafe, and did not evidence a lack of competency or qualification. The problem with this criterion is that there is no clarifying guidance for the term "significantly unsafe."
An administrative action takes the form of either a Warning Notice or a Letter of Correction. The Warning Notice is a letter addressed to the alleged violator that recites the facts and circumstances of an incident that the FAA says is a violation of the FARs. The letter states that the matter has been corrected and/or it does not warrant legal enforcement action. It goes on to request future compliance with the regulations.
The Letter of Correction is the same as the Warning Notice except that it recites that there is an agreement with the pilot that corrective action acceptable to the FAA has been taken or will be taken. A good example of the use of a Letter of Correction is in connection with the remedial training program. After a pilot successfully completes the agreed remedial training, the case is closed with a Letter of Correction.
The most negative aspect of an administrative action is that, although it does not constitute a "finding of a violation," it does constitute an official record against the airman. The record is supposed to be erased two years after the action is taken.
A frequently asked question is whether an airman can fight an administrative action. The National Transportation Safety Board (NTSB) has ruled that it does not have jurisdiction to hear disputes regarding FAA administrative actions. Therefore, if an airman does not believe he violated any regulation, we recommend that the airman write a letter to the FAA, denying the violation and asking that the letter be included with any record of the administrative action.
Strictly speaking, an FAA request to reexamine an airman is not an enforcement action, but practically, it serves the same purpose.
The Federal Aviation Act authorizes the FAA to reexamine an airman at any time if the FAA has reasonable grounds to request such a reexamination. Reasonable grounds are any circumstances that indicate that an airman may not be qualified to hold his or her certificate. The two most frequent circumstances leading to a request for reexamination are accidents and FAR violations.
The procedure is fairly simple. An FAA inspector will notify the pilot by certified mail that a reexamination is necessary, giving the basis for the reexamination and usually pointing out the rating or the procedures or maneuvers upon which the pilot will be reexamined. The letter will request that the pilot call to arrange a convenient time and place for the reexamination. If the pilot fails or refuses to take the reexamination, an FAA lawyer will issue an order suspending the pilot's certificate until he passes a reexamination. If the pilot takes and passes the reexamination, that normally is the end of the matter. If he fails (usually after several opportunities), the FAA will take steps to revoke the certificate or rating. As we explain below, in the case of suspension or revocation, the pilot has a right to appeal to the NTSB.
The FAA generally has been fair in requesting and administering reexaminations. (One troubling aspect of the procedure is discussed in the section on reexaminations. Pilots usually prepare for these reexaminations with ground and flight instruction. Very few fail. Those who pass often comment that the reexamination turned out to be good, free, dual instruction and that they came away as better pilots.
Certificate and Civil Penalty Actions
The certificate action is the most commonly used enforcement tool against the general aviation pilot. The FAA usually seeks to suspend or revoke a pilot's certificate for operational violations of the flight rules or whenever a violation indicates a lack of technical proficiency or qualification that the FAA considers too serious to remedy through reexamination or an administrative action.
A civil penalty is essentially a fine. The FAA has the authority to administratively assess civil penalties for aviation violations. The penalty may be as much as $1,000 for each violation cited. The FAA prefers to use certificate action against pilots, but a civil penalty is an option available to the FAA.
Whether the FAA chooses to go after a pilot's certificate or opts to assess a civil penalty, the Federal Aviation Act gives the pilot very important procedural rights. It requires the FAA to advise the pilot of the charges or other reasons for the action before taking the action and, except in an emergency action against a certificate, provide the pilot with an opportunity to answer or explain why the action should not be taken. The notice comes in a Notice of Proposed Certificate Action or Notice of Proposed Civil Penalty. If the pilot wants to contest the action, the pilot has the option of requesting an informal conference with the FAA attorney handling the case, among other options. Although the pilot may not come away completely satisfied, most cases settle at the informal conference.
If the case is not settled or dropped, the FAA issues an Order suspending or revoking the pilot's certificate or imposing a civil penalty. The pilot then has a right to appeal to the NTSB. In the case of an Order against the pilot's certificate, the certificate remains effective until the NTSB finally disposes of the appeal.
That is, unless the FAA determines that an emergency exists and that safety requires the immediate effectiveness of the certificate action, in which case the FAA issues an Emergency Order of Revocation or of Suspension. If this happens, the pilot can immediately appeal the emergency aspect to the NTSB. The NTSB will then promptly review the case to determine if an "emergency" situation truly exists. If the Board finds that an emergency requiring immediate grounding does not exist, they will reverse the immediate grounding. Whether or not the Board reverses the grounding, it has up to 60 days to finally dispose of the underlying certificate suspension or revocation.
A recent change in the law allows the NTSB to change the type of sanction from a certificate suspension or revocation to a civil penalty, or vice versa. There is no indication how the NTSB will decide to exercise this new authority.
Appeals to the NTSB are formal legal proceedings. The FAA will be represented by a lawyer. If a pilot can afford it, the pilot should have legal representation as well. Click here for information about the AOPA Legal Services Plan.
Once an Order is appealed, the case is assigned to an NTSB administrative law judge for a trial-type hearing at which the FAA bears the burden of proving the charges of the Order, and the pilot may offer evidence in defense. One possible defense is the NTSB's "stale complaint" rule. This rule requires that the FAA formally notify the pilot of a proposed enforcement action within six months of the date of the incident, unless the FAA has good cause for the delay, or unless the FAA alleges that the pilot is unqualified to hold a certificate.
If either the FAA or the pilot is dissatisfied with the judge's decision, a further appeal may be taken to the NTSB's full five-member board. If the pilot or the FAA is dissatisfied with the full board's order, either may obtain judicial review in a federal appeals court. The FAA, however, can appeal the board's order to the court only in a case in which the FAA "determines that such an order will have a significant adverse impact on the implementation of [the Federal Aviation] Act...."
Criminal actions play a small, but increasing, part in FAA enforcement. Historically, they applied only to such acts as aircraft piracy, forgery of certificates, carrying weapons aboard aircraft, and the like but, in recent years, have been expanded to include false marking of aircraft, illegal aircraft registration, illegal fuel tank installation, and airport security violations. While the FAA becomes involved in these cases, the prosecution of criminal cases rests with the U.S. Department of Justice, and the federal rules relating to criminal proceedings apply.
The Aviation Safety Reporting Program, which has been around for almost 25 years, is a good one for pilots. It provides protection from the loss of a pilot's certificate. It also helps to improve aviation safety. Recently, the program ran into a problem that could have jeopardized it. The problem has now been resolved, so this is a good time for an all-important reminder to pilots about the program, as well as a news report about the threat against it.
It is the immunity aspect of the program — protection from FAA enforcement — that is of most interest to pilots. But the main purpose of the program, better known as the NASA Aviation Safety Reporting System (ASRS), has little to do with FAA enforcement. The main purpose is to improve safety by providing a free flow of information from those who are likely to run into unsafe aviation situations. History has proven that pilots and others are reluctant to tell about incidents that are embarrassing to them, especially if they could arguably involve violations of the FARs. To overcome this reluctance, the FAA has adopted this program by which it can receive the information anonymously, and, in return, the FAA will waive disciplinary action if the incident being reported involves a violation of the Federal Aviation Regulations. The free flow of information through ASRS has led to many safety improvements.
Here is how the program works. To guarantee the confidentiality and anonymity of the persons who file reports, NASA acts as a third party to receive and remove the submitter's name from aviation safety reports before any information is passed on. NASA has developed a form, ARC Form 277B, which is preaddressed to NASA and franked (no postage needed).
The form is in two parts: an identification strip and a section that requests detailed information on the event or situation. When NASA receives the form, the identification strip is time-stamped, removed, and returned to the reporter. This is the reporter's proof that a report has been filed in a timely manner. NASA also deletes from the rest of the report all information that could be used to identify the reporter. To further tighten up this security, the FAA adopted FAR 91.25, specifically prohibiting the use of these reports in any FAA enforcement action.
To get the "immunity" benefit of avoiding a fine or the suspension of a pilot certificate, the pilot must act promptly to file an aviation safety report within 10 days of an incident. The FAA strictly enforces this timing requirement.
The FAA puts some limitations on the program. These limitations have not been troublesome to the overall benefit of the program to pilots, although they are obviously troublesome in the specific situations in which they apply. The program applies only to violations that are inadvertent and not deliberate. The program does not apply to criminal conduct or to accidents, and it does not apply to pilots who lack qualifications or competency. It does not apply to repeat offenders (those with a finding of violation in the past five years). In our experience, the ASRS would apply in more than 90 percent of the violation cases brought against pilots. There is hardly any reason not to file a report of any incident that could lead to enforcement, except in cases of criminal activity or a reportable accident.
Now to the current problem and how it was resolved. As we have seen, the underpinning of the program has been the confidentiality of the reports filed with NASA. Well, along came an overzealous FAA prosecutor and a less-than-vigilant NTSB, who together managed to endanger this safety program. The National Transportation Safety Board! Go figure!
An FAA enforcement case resulted when a pilot made a precautionary landing on a road after the engine of his Cessna 152 began surging. He obviously knew (or came to learn) about the program, because he filed a Form 277 safety report of the incident with NASA. In due course, the pilot received the identification strip back, time-stamped within 10 days of the incident.
The FAA investigated the incident. An FAA inspector, rummaging through the airplane, said that he found little fuel on board. He concluded that the airplane had run out of fuel. As a result, the FAA ordered a 30-day suspension of the pilot's private certificate, charging him with inadequate preflight planning (in violation of FAR 91.103) and with being careless (in violation of FAR 91.13). The FAA waived the suspension because the pilot presented the identification strip evidencing the timely filing of the NASA report.
The pilot denied violating the regulations. He appealed the violation to the NTSB, even though the suspension was waived. He wanted to keep his record clear of violations. According to the pilot, he properly calculated the fuel requirements for the flight, and the problem was not lack of fuel at the beginning of the flight. It could have been fuel blockage or seepage. He showed that a month and a half after the incident, the right fuel tank was replaced because of pinhole corrosion at its top. The pilot disputed that there was little fuel found in the airplane during the FAA investigation.
The case was assigned to an NTSB administrative law judge for a hearing. The law judge decided the case against the pilot. On further appeal to the full Board, the NTSB affirmed the law judge. This is where the ASRS part of the problem comes in. At the hearing, the law judge admitted into evidence the identification strip which the pilot used to get the waiver of the suspension. On the strip, after the block titled "Type of Event/Situation," the pilot wrote "Emergency landing due to fuel exhaustion." The judge considered this an admission by the pilot of the violations charged by the FAA. According to the pilot, this was not an admission; instead, he was simply indicating what the FAA was accusing him of.
The identification strip should not have been used as evidence in this case. FAR 91.25 specifically says that the FAA will not use NASA reports in any enforcement action (except concerning criminal offenses or accidents). Indeed, the FAA policy has been to prohibit not only the use of the report itself, but any information derived from the report. The FAA attorney was wrong. The NTSB law judge was wrong. The full Board had an opportunity to solve the problem on appeal but wimped out. The Board said that it didn't have to address this issue because there was enough other evidence to sustain the violations. The Board's reluctance to condemn this use of the NASA report could have seriously jeopardized the program.
NASA came to the rescue. When the NASA folks who run the program became aware of this situation, they immediately recognized the jeopardy facing this valuable safety program. They pressed the FAA to remedy it. Ultimately, NASA was successful in getting the FAA chief counsel to issue a memorandum reaffirming the FAA policy that the entire ASRS report form — both the identification strip and the body of the report — is not to be used as evidence to substantiate an alleged violation in an enforcement action.
We have recommended for years that pilots exercise caution when they complete the "Type of Event/Situation" block on the NASA form. While the FAA has indicated that it will not use the form as evidence in an enforcement case, it is prudent to continue to exercise caution. If you are a member of AOPA's Legal Services Plan, call before you complete the NASA form.
We still have a viable program of benefit to pilots, and pilots are encouraged to file safety reports with NASA. The NASA form is available at FAA flight standards district offices and flight service stations. AOPA offers the form on AOPA Online. The current version of the form for pilots is 277B (version A is for air traffic controllers, version C for flight attendants, and version D for maintenance personnel). The FAA has published an advisory circular describing the program in detail.
Every pilot is charged with knowing the aircraft accident notification and reporting requirements of the NTSB. It is another set of the regulations that we seldom use — in fact, hope we never have to use — but which we may be quickly called upon to use in a stressful situation.
It is important to review these regulations in the context of FAA enforcement — because aircraft accidents are a prime source of enforcement cases.
There are two areas where pilots can minimize the chances that an enforcement case will grow out of an aircraft accident: One is to recognize the respective jurisdictions of the NTSB and the FAA; the other is to understand the NTSB definition of an aircraft accident. Too many accidents are unnecessarily reported to the FAA, and many need not be reported at all because they do not fit the NTSB definition of an aircraft accident.
With respect to jurisdiction, a common misconception among pilots is that the FAA is the primary authority in aircraft accident investigation and that the required notification and reports must be made to the FAA. That's not so. By law, the accident investigation function is vested in the NTSB, which is a federal agency independent of the FAA. The misconception is probably the result of an earlier time when the NTSB delegated to the FAA the function of investigating most nonfatal accidents involving light aircraft and even some fatal accidents. Even today, under delegation from the NTSB, the FAA investigates most accidents involving agricultural, experimental and homebuilt aircraft and still does some of the others, but it is the NTSB that investigates the vast majority of accidents. Most importantly, it is to the NTSB that any required notification and reports must be made.
With these considerations in mind, let's review the requirements that are contained in Part 830 of the NTSB rules. Part 830 requires the "operator" of an aircraft involved in an accident to give immediate notification and later a written report of the accident. The rules are unclear about who is an operator. The term is defined as "any person who causes or authorizes the operation of an aircraft, such as the owner, lessee, or bailee of an aircraft." Notice that the definition does not say "pilot." Clearly, the general aviation pilot can be, and usually is, the owner, lessee, or bailee. What is confusing is that, under this definition, there can be more than one operator. For example, the fixed-base operator is the owner at the same time that the renter-pilot is the lessee, and the bailee. Does the NTSB expect a notification and a report from each operator? Apparently not. Despite the confusion, the NTSB appears to be satisfied with a notification and a report from any operator who has knowledge of the facts. If the person filing the report is not the pilot, the NTSB expects a crewmember statement from the pilot.
A more important concern is the definition of "accident" under Part 830, which is much narrower than commonly understood. The NTSB defines an aircraft accident as "an occurrence associated with the operation of an aircraft which takes place between the time any person boards the aircraft with the intention of flight and all such persons have disembarked, and in which any person suffers death or serious injury, or in which the aircraft receives substantial damage." Reading the definition carefully, notice that the rules do not apply to an accident unless it happens within this time frame. They do not cover an unoccupied parked or runaway aircraft. They do not cover a taxiing airplane unless there is an intention of flight.
Also, to come within the regulatory definition, an accident must involve death, serious injury, or substantial damage. The serious injuries are specifically listed in the rules. Any injury that requires hospitalization for more than 48 hours is a serious injury (unless the hospitalization begins more than seven days after the injury is received). Any bone fracture (except simple fractures of fingers, toes, or nose) is a serious injury. Lacerations that cause severe hemorrhages are serious injuries, as are nerve, muscle, or tendon damage and any injury to an internal organ. Second- or third-degree burns are classified as serious injuries. Any burns affecting more than five percent of the body surface are considered serious. If any injury does not fall within this list, it need not be considered in determining whether the accident should be reported.
Now, what constitutes substantial damage to an aircraft? It is helpful to start by listing what is not considered substantial damage: engine failure or damage limited to an engine if only one engine fails or is damaged; bent fairings or cowlings; dented skin; small puncture holes in the skin or fabric; ground damage to rotor or propeller blades; and damage to landing gear, wheels, tires, flaps, engine accessories, brakes, or wing tips. Except for these, substantial damage means any damage or structural failure that adversely affects the structural strength, performance, or flight characteristics of the aircraft and which normally would require major repair or replacement of the affected component.
What many pilots fail to appreciate in the hectic aftermath of an accident is that accidents involving minor injuries and minor damage are not accidents at all — at least, not for the purpose of notification and reporting. By way of example, the classic gear-up landing does not ordinarily involve a reportable accident.
If an accident meets the Part 830 definition, there are both notification and reporting requirements. The notification must be given immediately to the nearest NTSB field office by the most expeditious means available. As a practical matter, notification often is made through the FAA — through a tower, a flight service station (FSS), or a FSDO — and that perpetuates the misconception that the FAA is the primary authority in accident investigation.
But notice may, and oftentimes should, be made directly to the NTSB. NTSB field offices are listed under "U.S. Government" in the telephone directories for Anchorage; Atlanta; Chicago; Denver; Fort Worth, Texas; Kansas City, Missouri; Los Angeles; Miami; New York; and Seattle.
The notification must contain the following information:
The "nature of the accident" item is the most troublesome one. If a pilot is notifying through the FAA, he should be careful of how he describes the nature of the accident. It should be in very general terms.
The notification must be followed with an accident report, which must be filed within 10 days of the accident. The NTSB will provide the form (NTSB Form 6120.1/2), which must be filed at the nearest NTSB field office. Crewmembers are required to give statements, which should be attached to the report. If a crewmember is physically incapacitated, he should submit a statement as soon as he is physically able. If a pilot is filing as the operator, he need not give a crew statement.
It is when the pilot writes his report and any supplemental statement that he can more safely describe the accident fully. Certainly, in reporting the accident, a pilot could give information that might lead to an FAA enforcement action. But at this stage, after the excitement and turmoil of the accident has cooled, a pilot is less likely to misstate the facts. And because his statement is in writing, there should be no dispute about what was said.
In addition, the FAA has not, to my knowledge, introduced any NTSB reports or statements against a pilot in an enforcement case, and for good reason. That quickly would dry up the useful information the NTSB gets from these reports. The FAA will use them on cross-examination of a pilot if he testifies contrary to what he reported. That seems proper to me.
Our guidance is that a pilot should comply with the NTSB rules — no more, no less. The first thing to do is to determine whether the accident fits the NTSB's definition. Was there death, serious injury, or substantial damage? Do any of the injuries fall within the NTSB list? Is the aircraft's structural strength, performance, or flight characteristics affected? Is damage limited to those items specifically excepted from the rules?
If it is not an accident according to the NTSB definition, the pilot need not notify the NTSB (or the FAA) and need not file the NTSB report. If it is a bona-fide NTSB accident, the pilot should limit his notification to the specifics required in the rule and should be very general about the "nature of the accident." When it is convenient and the most expeditious means to do so, the notification should go directly to the nearest NTSB field office, rather than through an FAA facility.
When the FAA inspector assigned to investigate the accident seeks to interview the pilot, the pilot may refuse, stating that he will put all the required information in the written report or statement to the NTSB. Of course, it becomes important to be very careful about how the report is completed. It is a good idea to have professional help at this stage, and one of the best and most economical ways to get this help is to belong to the AOPA Legal Services Plan.
The guidance in this article may not be easy to follow because an FAA inspector generally is not appreciative of the pilot's dilemma. He is more concerned with his duties to enforce the FARs for the FAA and to develop the facts and circumstances of the accident for the NTSB. That is understandable. It is up to the pilot to protect his own interests. Unfortunately, a confrontation with the inspector could make for an unpleasant situation. But imprudently cooperating with the inspector could lead to an enforcement case that could be even more unpleasant.
If it happens to you, it will likely be unexpected, and you will need to know if and how to respond.
We are talking, of course, about your being called upon to explain to the FAA some incident involving your flying activities. It could come in a letter of investigation from an FAA inspector. It could be an air traffic controller's request that you telephone the tower when you land. It could even be an in-flight radio query by a controller.
Your first reaction will be to respond immediately and expansively. We know that from long experience. Pilots believe that all they need to do to resolve the situation is to explain their side to the FAA. That's sometimes true. But, again in our experience, pilots will often unnecessarily say things that will hurt them in a later enforcement case. FAA inspectors and controllers may not have as much discretion as we would like them to have to resolve these incidents short of enforcement.
So you should resist that initial reaction to respond too quickly. Resist it at least until you have had time to reflect on what is really happening to you and what your rights are. We will try to provide some guidance here.
Perhaps it goes without saying, but whatever response you give to the FAA should be truthful and not misleading. Nothing we say here should be interpreted otherwise. But you should know that in most instances, you have no affirmative duty to say anything to the FAA. That bears repeating. Except in limited instances that we will explain, there is no legal or moral compulsion for a pilot to respond to an FAA request for information in a budding enforcement case.
Let's talk first about the FAA letter of investigation. Routinely in an investigation of a possible FAR violation, the FAA inspector will send a letter of investigation to the aircraft owner or pilot involved. The letter is generally sent by certified mail with a return receipt requested. It states the incident or the situation being investigated and that there may have been a violation of the FARs. It invites the pilot or aircraft owner to reply and specifies a time limit for the reply. It may or may not contain a warning that a reply may be used in evidence in an enforcement case.
You should know, even if the FAA doesn't tell you, a reply to a letter of investigation is admissible in evidence against a pilot in an enforcement case.
The facts of the case that established this rule of evidence are an interesting illustration of the problem. The pilot was involved in two incidents — one an alleged near-midair-collision incident, the other an alleged violation of the VFR weather minimums. In both incidents, the FAA inspector sent the usual letter of investigation. The pilot responded in both cases, denying that any FARs had been violated and giving his version of what had happened.
Interestingly enough, at the trial, while the FAA was having little trouble establishing the involvement of the airplane, the FAA was having considerable trouble proving that the pilot was the one who was flying the airplane on the two occasions in question. This problem of proof was easily cured by the introduction into evidence of the pilot's two reply letters in which he admitted flying the airplane on those occasions. There was an objection to the letters on the ground that the manner of soliciting information from the pilot constitutes a violation of due process, because the letters from the FAA in effect commanded a reply without, at the same time, warning the pilot that any such reply might be used against him in a certificate action. The objection was overruled. At the conclusion of the hearing, the NTSB judge found that the violations had been established (in part based upon the incriminating letters) and ordered the airman's certificate revoked. On appeal to the full NTSB, the revocation was affirmed. The Board said, "[W]e do not believe that the current procedures utilized by the FAA to obtain information concerning reported incidents are basically unfair to the airmen involved."
That is why we recommend that you resist your reaction to respond too quickly. Remember, you do not have to respond at all.
This being the state of the law, you might well wonder why any pilot would respond to an FAA letter of investigation. The answer, as we have already suggested, is to get the pilot's side of the story to the FAA in the hope that the FAA will be convinced not to proceed further with the case. Also, any letter from the federal government tends to be intimidating, and serious consequences are envisioned if it goes unanswered.
With these considerations in mind, we can offer some general guidance. If there is some dispute as to the facts, or if the FAA might have some trouble establishing some necessary element of proof, it is probably better for the pilot not to respond to the letter of investigation.
If there is no question as to the facts or the FAA's ability to establish them easily, then it is probably better for the pilot to reply. For example, if the FAA letter says it is investigating a low-level flight of your airplane over Miami Beach on a certain date, but your airplane was actually tied down in New York on that date, it sounds like some witness misread the registration number of the aircraft involved. In that instance, it would seem wise to reply.
We know from experience that this general guidance is difficult to follow. Pilots want to respond. If you feel compelled to respond, then it would be wise to get some help in framing a response. If you are a participant in AOPA's Legal Services Plan, call the plan. Or use an attorney, who can respond for you without making potentially damaging admissions.
A telephone call from an FAA inspector presents a similar but more difficult situation because it is harder to resist than a letter. Yet the same considerations we have been discussing apply. You don't have to respond. If you do, what you say can be used against you. The same is true when you are in flight and a controller asks you to call the tower after you land. It may appear that you must make that call, but in reality, you are under no legal obligation to do so.
Another similar but still more difficult situation is an in-flight query by a controller. "November One-Two-Three-Four, say your altitude." Or "November One-Two-Three-Four, say your position." Such a question should be an indication to you that the controller thinks you are at the wrong altitude or the wrong place. In such a situation, safety considerations dictate that you reply, and honestly. Consistent with safety considerations, you should be very careful about what you say. Damaging admissions can be made and preserved on an ATC tape for admission in evidence in a future enforcement case.
Earlier, we mentioned that there are limited instances where a pilot does have a legal duty to respond to the FAA. These instances are not involved in most enforcement cases, but they could be. One involves an in-flight emergency. If a pilot experiences an emergency that requires him to deviate from a flight rule or in which he is given priority by ATC, he is required by FAR 91.3(c) or FAR 91.123(d) to submit a written report if the FAA requests one. Another instance involves logbooks. You must present your pilot or aircraft logbooks for inspection upon reasonable request by the FAA.
The letter of investigation discussed above may be modified to offer the pilot an opportunity to participate in "remedial training" as an alternative to legal enforcement action. This option is discussed in the article on Remedial Training contained in this guide.
If an FAA inspector asks you to surrender your pilot certificate, don't be too quick to comply. A couple of cases involving AOPA members indicate that there may be some misunderstanding on the part of pilots concerning the authority of the FAA to take a pilot's certificate. These cases also indicate that some FAA inspectors may try to take advantage of that misunderstanding.
You should know your rights. The pilot license in your pocket is technically known as an "airman certificate." Once it's issued to you, it's yours. The only way the FAA can take it away from you is to comply with some very strict procedures required under the law in U.S. Code Title 49 Section 44709.
As explained in the preceding section, if the FAA wants to suspend or revoke your certificate, it must first advise you of the charges against you or the reasons why your certificate should be taken, and it must afford you the opportunity to answer the charges or reasons. If, after you've been given this opportunity, the FAA still wants your certificate, you can appeal to the NTSB, where you are entitled to a trial-type hearing before an NTSB administrative law judge. In this hearing, the FAA must prove its charges against you. If you are dissatisfied with the decision of the judge, you can appeal your case to the full NTSB.
It's important to note that, throughout these proceedings, you can still hold on to your certificate and exercise its privileges; you can still fly. And these proceedings typically take many months. The only exception to this is in so-called emergency cases. These are cases where the FAA alleges that safety dictates that the suspension or revocation must be effective immediately. As you would expect, these are rare situations.
The problem we've run into comes from another provision of Section 44709, which says that the FAA can reexamine you at any time to determine if you're still qualified to hold your certificate. The FAA must have reasonable grounds for requiring such a reexamination. These usually involve an accident or incident that suggests to the FAA that you may not be competent. You get the bad news in a certified letter from a Flight Standards District Office (FSDO).
The letter states the basis for the reexamination and usually points out the rating and maneuvers or procedures upon which you will be reexamined. You will be requested to call to arrange a time and place for the reexamination. The letter goes on to threaten that, if you don't make an appointment, the FAA will start proceedings to suspend your certificate.
In one such case, a member ground-looped his airplane in a landing incident. The FAA asked him to come in for a reexamination by a certain date. But the member could not be reexamined by that date because his airplane was laid up for repairs. The FAA inspector then asked for the member's certificate, and the member surrendered it because he thought he had to. He did not.
Interestingly enough, the FAA inspector issued the member a temporary certificate good for 90 days. Presumably, if the member passed his flight check within the 90 days, he would get his certificate back.
How can we rationalize the inspector's conduct when he should have known that he had no authority under Section 44709 to demand the certificate? My guess is that the inspector would say the member voluntarily surrendered his certificate. After all, there is nothing in the law that says that an airman cannot voluntarily turn back his ticket to the FAA. However, FAR 61.27 requires that a statement to the following effect be signed by the airman in order to effect a voluntary surrender: "This request is made for my own reasons, with full knowledge that my [insert name of certificate or rating, as appropriate] may not be reissued to me unless I again pass the tests prescribed for its issue." Our member is clear that he believed he was required to give his certificate up. Our member had every justification for refusing to surrender his certificate and for forcing the FAA to use the formal procedures of Section 44709.
It's hard to believe that this is an isolated incident, because a similar thing occurred in another FSDO on the other side of the country.
A member made a forced landing in his Cessna 150 without substantial damage. According to the member, he was running out of gas and into bad weather at the same time. The circumstances were such that the FAA was clearly within the law in asking for a reexamination.
The member was reexamined and apparently did not satisfy the inspector. According to the member, "My pilot's license was lifted, and I was given a temporary 90-day permit with verbal stipulation that I take another flight test."
Maybe it could be argued that the FAA action was reasonable, but was it legal? The inspector had no right to demand the member's certificate. If the inspector felt the member was unqualified, he could have moved to suspend or revoke the member's certificate under Section 44709. If the member was so unqualified as to present an immediate danger, the inspector could have requested the FAA lawyers to start the emergency procedure.
I don't mean to suggest that the FAA should be forced to use Section 44709 in every instance. Certainly, in some cases, it makes sense for an airman to surrender his certificate voluntarily rather than force the FAA to use the formal procedures. But I do suggest that where there is a "voluntary" surrender, it should in fact be voluntary. By that I mean that the airman should know his rights under Section 44709 and intelligently waive them before relinquishing his certificate.
In summary, some suggestions can be made on what you should do in the event you are requested by the FAA to appear for a reexamination of your pilot competency.
First, you should determine whether the request is reasonable, having in mind the breadth of the FAA's discretion in this regard. If you think the request is without justification, you have the right to litigate the question of reasonableness before the NTSB by refusing to submit to reexamination and thus forcing the FAA to try to suspend your certificate.
If the request is reasonable, you should submit to the reexamination. Remember that if you perform successfully during the reexamination, the matter usually will be closed. If the inspector should find your performance deficient, then you should decide whether to surrender your certificate voluntarily or to put the FAA on its proof that you failed to meet the standards of your certificate.
If you decide to voluntarily surrender your certificate in accordance with FAR 61.27, as described above, that's the end of the matter. The certificate is canceled. If you decide to give your certificate to the inspector for temporary custody until you pass the reexamination, be sure to get a letter from the inspector to that effect. Also, get a temporary certificate allowing you to brush up for another try at it.
There is good news and bad news. The bad news — well, maybe it would be better to call it sad news — is that celebrated airshow pilot Bob Hoover has announced that he is canceling his performances scheduled for the rest of this year. He is considering donating his Shrike Commander to the Smithsonian Institution's National Air and Space Museum. Sad, especially for those who have never personally seen him fly his airshow routines, and now may not be able to. Even at age 78, he demonstrated flying skills that amazed and encouraged all pilots who watched him. He is still physically able to perform his routines, as flawlessly as in the past, but the cost of insuring his airshow performances has made it impractical for him to continue, at least for now.
The good news is that Hoover was the guiding spirit for a new law carrying his name, which will benefit us all. It is a welcome legacy.
Informally called the Hoover Bill, it was signed into law in April 2000. The law attempts to bring due process to the FAA's use of its emergency authority to immediately ground a pilot without first affording the pilot a chance to defend himself. Hoover is a notable example of the FAA's abuse of this emergency authority. Under this new law, a pilot (or other FAA certificate holder) will be able to appeal an emergency order to the NTSB. In this new appeal procedure the Board will review whether, in fact, a true emergency exists that requires such drastic action. The Board has the power to reverse the grounding, and to allow the pilot to continue to fly while defending himself against the FAA's charges.
Hoover's case is notable for a number of injustices committed against him by the FAA, just one of which was the "emergency" aspect of the revocation of his FAA medical certificate. We reported them in some detail in earlier columns (see " Pilot Counsel: Hoover, The System Didn't Work," January 1996 Pilot, and " Pilot Counsel: A Chapter in the Life of Bob Hoover," May 1994 Pilot). As a result of these injustices, Hoover was grounded in his own country for almost two and one-half years. Eventually, common sense prevailed and his medical certificate was restored to him. In the five years since his certificate was restored, he has performed a full schedule of airshows, demonstrating how wrong and unfair the FAA was.
His case is a long story. We will only hit the highlights to give some background to the new law. His case got started when two FAA inspectors with questionable motives secretly reported Hoover to the FAA doctors. The inspectors said that he did not look well during performances at an airshow in June 1992. One would think that the FAA doctors should have been suspicious because the reports were not made until two months after the fact. On the contrary, the FAA doctors, with no more justification than that, asked Hoover to submit to an extensive medical evaluation. The doctors never bothered to check with any of the people who interacted with Hoover during the several days of the show, or the thousands who saw his performances. The doctors would have found no support for the inspectors' statements.
Hoover, thinking he had no other choice, complied with the FAA request — at the cost of several thousand dollars of his own money. To know Hoover as the gentleman that he is, and his good will toward all, including the FAA, is to understand his actions.
At some embarrassment to the FAA — since the FAA picked the doctor who headed up the exhaustive evaluation — the doctor concluded that Hoover was fit to hold his medical certificate. You would think that should have been the end of it, right? Wrong! The FAA doctors, with who knows what motivation, took the report and sent it to an FAA-paid consultant, one who never personally examined Hoover, and he gave the FAA the opinion it was obviously looking for. Even the medical condition that Hoover was supposed to have, a "cognitive deficit" (i.e., a thinking disorder that would make him unable to safely pilot an aircraft), is so nebulous that it could be ascribed to almost any pilot. Easy to charge. Expensive and onerous to disprove. On the strength of the consultant's report, the FAA asked Hoover to surrender his medical certificate. Again, in good faith and thinking he had to, Hoover complied.
But he did ask for another chance to demonstrate his medical qualification. He once again went through an exhaustive evaluation by another set of doctors picked by the FAA. He once again emerged with a favorable report that was once again overruled by an FAA consultant who never personally examined Hoover.
The love of flying still burned in Hoover's soul. He is not one to give up. He endured a third round of evaluations in an attempt to persuade the FAA. The FAA remained firm. However, once Hoover was properly advised that he did not have to surrender his medical certificate — and by then he'd had three rounds of medical evaluations concluding that he should have his medical certificate — he asked for it back. The FAA, recognizing that it had no legal basis to refuse, took the only step it could to prevent the return of the certificate. It issued an order revoking the certificate — on an emergency basis. The FAA order blatantly asserted that an emergency existed requiring the immediate grounding of Hoover. The FAA did so in the face of the facts that Hoover had flown 33 more airshow performances between June 1992 and the time he surrendered his medical certificate — all without any indication of a "thinking disorder" affecting his flying.
The FAA's action raised serious questions. Where was the emergency? How would safety have been compromised if Hoover had been allowed to continue to fly while he appealed his certificate revocation to the NTSB (which is the usual procedure)? But the FAA refused to follow the usual procedure. And, the NTSB had no jurisdiction to review the unusual "emergency" aspect of the FAA's action. Hoover could only appeal the emergency aspect to a U.S. Court of Appeals, which the precedents show almost certainly would sustain an "expert agency" on a safety issue. Under the law as it was then, Hoover was required to remain grounded while his case was heard at the NTSB.
On appeal to the NTSB, at the stage of the proceedings decided by someone with extensive legal, judicial, and flying expertise, Hoover won his case. It was a several-day public trial-type hearing before an NTSB law judge. To the judge, Hoover's doctors made more sense than did the FAA doctors. The judge allowed Hoover to demonstrate his performance as evidence of his medical qualification. He performed beautifully. The judge ordered the FAA to give Hoover back his certificate.
The FAA appealed the law judge's decision to the five-member politically appointed Board, with full knowledge of the pro-FAA bias of the Board as it was then constituted. The Board, which considered only the record before the judge, never personally hearing any of the witnesses or ever seeing Hoover fly his trial demonstration — and from behind closed doors — reversed the judge on questionable grounds (see the two columns cited earlier). The Board criticized the judge for allowing the flying demonstration. The Board members who led that reversal are no longer there.
The appeals to the courts predictably failed. What judge would overrule an "expert" agency that pronounced that safety required the grounding of Hoover? Hoover's grounding lasted almost two and one-half years, during which he continued to successfully perform in foreign countries, further putting the lie to the FAA's claims. Even though he lost in litigation, Hoover never gave up the fight. Then in 1995, a very courageous FAA administrator took hold of the situation and, against the advice of FAA doctors, returned Hoover to flying status. He has been flying his performances ever since, continuously proving his medical qualification, showing the falsity of the FAA's claims, and providing a glaring example of the FAA's abuse.
The Hoover case was not the only example of the FAA's abuse of its emergency authority. Another notable case involved an American Airlines captain who, in addition to being an airline captain, was an FAA-designated pilot examiner who holds more than 50 type ratings. He, too, became a target of the FAA. The FAA accused him of making intentionally false and fraudulent statements in some applications for type ratings and on the temporary certificates he issued — all unrelated to his airline flying. The FAA issued an order revoking his ATP certificate on an emergency basis. Of course, he was grounded. Even though the charges had nothing to do with his airline flying, which he had been doing successfully for years, he couldn't fly for the airline (see " Pilot Counsel: Emergency Revocation," November 1996 Pilot). Suffice it to say, the captain appealed to the NTSB and won. The FAA was unable to prove its case.
The FAA did not give up. It kept digging. The FAA again revoked the captain's ATP certificate, again on an emergency basis, and again for falsification — but this time for different reasons. Again the captain appealed to the NTSB, and again the captain prevailed.
In this second case, the FAA charged that the captain obtained a type rating for a Grumman TBM Avenger, a vintage World War II carrier-based torpedo bomber, based on falsification. The FAA said that the captain could not have met the requirements of the flight check because the TBM he used in the flight check did not have a glideslope receiver. The captain and three other witnesses testified that the TBM had been temporarily outfitted with a Narco Nav 122 receiver, which has a glideslope. The FAA's case fell apart.
The FAA also charged that the captain, early in his career — in May of 1979 — misrepresented his flight time in applications for his ATP and flight instructor certificates. That was too much for the Board (a different Board than in Hoover). The Board felt that the commission of such an alleged offense so long ago, even if proved true (and, of course, denied by the captain), could not reasonably be used to assess the captain's current qualifications in light of his unblemished record in the intervening 17-plus years.
How would safety have been compromised if the captain had been allowed to fly for his airline, which he had been doing safely for many years, while he defended the charges that had nothing to do with his airline flying?
In the captain's cases and the Hoover case, the pilots suffered groundings that proved to be unjustified. The problem was that there was no effective way to challenge the immediate groundings. A vindication months later could not make up for the lost time on the ground.
Both AOPA and EAA, and other aviation organizations, sought legislation to allow some independent review of the FAA's exercise of its emergency powers, and by an agency expert in aviation safety. No one challenged that the FAA should have these emergency powers, only that there should be "due process" to prevent abuse. What resulted was the Hoover Bill. It's not perfect, because it ran into considerable opposition from the FAA, but it's pretty good. It became law in April.
Under the new law, a pilot who is grounded on an emergency basis by the FAA can immediately appeal the emergency aspect to the NTSB. The NTSB will promptly review it (under procedures to be developed by the Board). If the Board finds that an emergency does not exist that requires the immediate grounding in the interest of safety, the Board will reverse the grounding. This new law also covers other FAA certificate holders.
Even under this law a pilot could be grounded for five or more days before the Board reverses the grounding. A pilot has 48 hours to appeal an emergency grounding. The NTSB has up to five days after such an appeal to consider it. Whether or not the Board reverses the grounding, it has up to 60 days to finally dispose of the underlying certificate suspension or revocation.
Not perfect, but certainly a more fair procedure than was available to Bob Hoover, the airline captain, and others who have had to suffer unjustified emergency groundings by the FAA. We expect that this new law will cause the FAA to be more judicious in using its emergency powers. And, we want to give due recognition to the fine folks at the FAA and the NTSB who had no part in these misdeeds.
Allowing a pilot to take additional training instead of suspending the pilot's certificate for a minor infraction of the air traffic rules is something that AOPA has been advocating for a long time. It doesn't seem to us to make sense for the FAA to ground a pilot for 30 or 60 or 90 days and expect after that time that the pilot will be safer.
Our experience in counseling AOPA members is that a very high percentage of violation cases brought by the FAA involve inadvertent, first offenses where safety is not seriously compromised. These pilots, and in fact all responsible pilots, believe in strict compliance with the rules. But our National Airspace System and the rules that apply in it have become so complex that even the most well-trained, conscientious pilot can be drawn into an inadvertent violation.
Even so, until fairly recently, strict enforcement was the rule of the day. Every infraction, even though most of them were minor, became a "federal case." There was very little discretion allowed to FAA field inspectors to dispose of cases on some reasonable basis.
When James B. Busey became FAA Administrator in July 1989, he made a special effort to learn about the concerns of the aviation community - and he heard a great deal of complaint about the wisdom and fairness of the FAA's enforcement policies and their negative effect on safety. He ordered a review of these policies, which included public listening sessions around the country, several hosted by AOPA. The review confirmed that many problems existed.
The FAA looked for remedies and, with input from AOPA and others, came up with a set of 34 recommendations. On March 5, 1990, Busey announced a new FAA compliance and enforcement policy adopting these recommendations. One of the major changes he announced is to give inspectors in the field the discretion to allow remedial training in place of a certificate suspension or a fine.
To implement this change, on May 18,1990, Busey approved a bulletin to FAA inspectors and lawyers formalizing the availability of remedial training as an alternative to legal enforcement action. He made it effective immediately and directed that it be considered in any open case in which legal enforcement action had not yet been started by the issuance of a Notice of Proposed Certificate Action or Notice of Proposed Civil Penalty.
There seemed to be one hooker in the remedial training program that appeared to cause a problem for pilots who conscientiously believed they did not commit a violation. The program appeared to require an admission of violation. We doubt that Administrator Busey intended this. It is not in his announcement. It is not in the recommendations. And it was not in any of the discussions and documents leading up to the recommendations. The FAA Chief Counsel at the time opposed the remedial training alternative, and the requirement of an admission of guilt may have been a lingering manifestation of that opposition. The matter was put to rest in August 1992, when the new FAA Administrator, Thomas Richards, formally announced that pilots do not have to admit to a violation in order to qualify for the remedial training program.
Here is how the remedial training alternative is supposed to work: An inspector is routinely assigned to conduct an investigation whenever an apparent violation comes to the attention of the FAA. The inspector, early in the investigation, will consider whether remedial training is more appropriate than a legal enforcement action.
As part of the investigation, an inspector will typically send a letter of investigation to the pilot involved, asking for the pilot's side of the story. If the inspector believes that remedial training is appropriate, the inspector will include in the letter a statement that the pilot may be allowed to participate in the remedial training program. The letter will say that if the pilot wishes to participate in the program, the pilot must respond to the letter within the time specified (usually 10 days), must express an interest in the program, and must cooperate in the investigation.
If the letter of investigation does not mention remedial training, and the pilot has reason to suspect that the matter may progress to formal enforcement action, the pilot's reply to the letter may contain a suggestion that the FAA inspector consider resolving the matter through remedial training. Sometimes an FAA inspector needs a little nudge to remember that remedial training is a viable option.
If the inspector receives an appropriate response from the pilot and decides that remedial training may be appropriate, the inspector will deliver a copy of the investigative file to an FAA accident prevention specialist (APS). Ordinarily, this will be an APS within the FSDO conducting the investigation, but if the pilot lives within the jurisdiction of a different FSDO, it might be the FSDO where the pilot lives.
The APS will conduct an in-person meeting with the pilot to confirm whether remedial training is appropriate and will propose a course of study. The meeting should concentrate on remedial training and should avoid the merits of the underlying incident. If the pilot and the APS agree on a course of study a letter of agreement will be signed by the pilot and a supervising APS, specifying the terms and conditions of the remedial training program. It will contain a completion date that will be within 120 days after the FAA became aware of the apparent violation.
Within the time specified in the training agreement, the pilot must provide the required evidence that the training has been completed. When the APS is satisfied that the terms and conditions of the remedial training course and objectives have been met, the APS will notify the investigating inspector and return the file. The investigating inspector will then send to the pilot a Letter of Correction containing a statement that the required remedial training has been satisfactorily accomplished and will close the case. The Letter of Correction will be made a matter of record for two years, after which the record will be expunged.
All expenses for the prescribed training must be borne by the pilot. FAA personnel will not conduct any of the remedial training.
Of course, the program will not be available in all cases. It will not be available in cases that the FAA believes involve deliberate or grossly negligent conduct, or which show that the pilot is not qualified to hold a pilot certificate. It will not be available to airline and commuter pilots (but it will be available to other pilots who fly commercially as, for example, flight instructors and corporate pilots).
A past-violation history is not automatically disqualifying. However, remedial training will generally be appropriate for pilots with no record of violations. In considering a pilot's past-violation history, the FAA will not only consider certificate suspensions and civil penalties, but also administrative actions such as Warning Notices and Letters of Correction. The FAA will consider civil penalty compromises and settlements even without a finding of violation. And the FAA will consider cases where a certificate suspension or civil penalty was waived under the Aviation Safety Reporting Program.
In our experience in counseling AOPA members who have received letters of investigation, many of them firmly believe that they did not commit a violation. Depending on the inspector involved, it is possible that remedial training will not be offered to such a pilot. The letter of investigation may imply that the remedial training program is not available unless the pilot fully discloses all of the facts and circumstances of the apparent violation. Yet at this point, there is no guarantee that remedial training will be offered to the pilot. At any stage in the investigation and at any time in the negotiation of the course of study, the FAA inspector or APS can decide that remedial training is not appropriate. So the effect is that the pilot may disclose facts that could be incriminating before the pilot is assured of remedial training. The letter of investigation may go something like this: "Information provided to the FAA, including the response to this letter, may be used in determining whether remedial training is appropriate. In addition, if remedial training is not afforded, or if the prescribed remedial training program is not satisfactorily completed, it may be used in subsequent legal enforcement action."
In the proceeding section, "Responding to the FAA," we offered guidance on if and how a pilot should respond to a letter of investigation. If the letter of investigation includes the remedial training option, the pilot can respond by expressing an interest in the remedial training option and, at the same time, either deny the allegations or be noncommittal about the charges. If the inspector exercises his or her judgment and discretion in determining whether the denial is bona fide or is evidence of a bad attitude, perhaps at a face-to-face meeting, the inspector can proceed accordingly, offering remedial training in the former situation but not in the latter. If the inspector has some reservation about the appropriateness of remedial training, the inspector may be satisfied that there will be a face-to-face meeting with the APS.
In the meeting, the APS will be judging whether the pilot has a constructive attitude toward compliance and whether remedial training is appropriate. The FAA makes a clear division between enforcement activities conducted by the investigating inspector and the remedial training activities conducted by the APS. While the pilot's response to the inspector's letter may be used as evidence in a legal enforcement action, the information provided to the APS by the pilot will not be used as evidence. The pilot may freely discuss with the APS the facts and circumstances of the incident as they relate to the development of an appropriate training program, and the APS can make a judgment about the pilot's attitude and the appropriateness of remedial training.
The remedial training program should be a beneficial option for pilots and at the same time improve safety and achieve the FAA's compliance and enforcement objectives.
There was a proposal to have FAA inspectors issue Federal Aviation Regulations violation citations "on the spot," much like traffic tickets issued by police or state troopers for alleged motor vehicle violations. For that reason it was dubbed the "FAA ticket program." The good news for pilots is that the proposal has now been revised significantly as a result of objections by AOPA and other industry organizations.
The revised program is called the Streamlined Administrative Action Process (SAAP). While much of what was bad in the ticket program has been cured, pilots, aircraft owners, and others still need to know their legal rights in this new process. The bad news is that it remains an enforcement process that leads to an official black mark on a pilot's record. Such a record could have serious consequences, including affecting a pilot's ability to get a flying job, to get insurance, and even how seriously the FAA will come down on a pilot in the future.
Let's put this new process in perspective. If the FAA investigates a pilot's possible FAR infraction, the investigation could result in a whole range of possibilities. Such an investigation is usually preceded by a letter of notification to the alleged violator that an investigation is being conducted. The notice quotes the regulations thought to have been violated, and offers the pilot an opportunity to respond within 10 days.
The most benign result of an FAA investigation, the result we'd most like to have, is a finding that no violation occurred. The pilot under investigation usually receives a follow-up letter from the FAA saying just that — that the investigation failed to disclose any evidence of a violation and that no further action will be taken.
Or, the FAA could conclude that a violation did occur, but that it was so minor that it warrants only an administrative action. An administrative action takes the form of a Warning Notice or a Letter of Correction. A good example of an administrative action is the remedial training program, in which a pilot agrees to take additional training in lieu of a legal enforcement action.
Or, the FAA could consider the matter serious enough to warrant legal enforcement action. This usually takes the form of a suspension or revocation of a pilot's certificate, although it is sometimes the imposition of a civil penalty — essentially, a monetary fine. A pilot faced with a legal enforcement action has the legal right to appeal such an action to the National Transportation Safety Board. On appeal, the FAA has the burden to prove its case against the pilot, and a pilot has a right to defend the action with the pilot's own evidence. The case is judged by an independent administrative law judge who decides whether the FAA has borne its burden of proof, and whether the suspension, revocation, or fine imposed by the FAA is warranted.
The most serious result of an FAA investigation is criminal charges. When the FAA concludes that criminal charges are warranted, the case is referred to the U.S. Department of Justice for prosecution.
We did not mention a request for re-examination in this listing because technically it is not an enforcement action, but it could be a result of an FAA investigation.
Within this range of possible outcomes of an FAA investigation, the new SAAP falls into the category of an administrative action. An administrative action is certainly preferable to a legal enforcement action. The problem is that an administrative action leads to an automatic black mark on a person's record without affording that person a legal process to contest that black mark, like the process that is available in a legal enforcement action. Yet, that black mark — a record of the FAA's conclusion that the person committed an infraction of the Federal Aviation Regulations — is publicly available. It could lead to undesirable consequences for the pilot.
So what should a pilot do when faced with an SAAP action? How does a person even know that he or she is the subject of an SAAP investigation?
As the program is structured, an SAAP action typically will be preceded by a face-to-face encounter with an FAA inspector — usually "on the spot." It will involve the inspector's counseling the person about some alleged violation. The inspector should advise the person why what he or she did, or did not do, is a violation. The inspector also should indicate that an enforcement action will be taken. If this happens to you, you should by now be aware that you are probably involved in an SAAP process.
What should a pilot do? Remember during this encounter that the inspector still has available the whole range of possible outcomes we discussed. We sure would like the inspector to conclude that no violation occurred. Yet, if we discuss the matter with the inspector in an effort to persuade him that no violation occurred, it could lead to unnecessarily damaging admissions and other evidence that could hamper the defense of any legal enforcement action that might result. Worse yet, it could result in an argument and an ugly confrontation. On the other hand, refusal to discuss the matter — and an individual has a perfectly legal right to do this — will probably be considered a lack of cooperation and a poor attitude. This will be taken into account in deciding what, if any, enforcement action should be taken.
The safest course of action is to avoid discussing the substance of the matter with the inspector until you have had an opportunity to reflect on the incident and to consult with someone knowledgeable on FAA enforcement. (You do have to present your FAA certificates for inspection if asked, as well as logbooks if you have them with you, but only after the inspector has shown his or her credentials.) But from past experience, we know that this recommendation to remain silent is difficult to take. Most people will talk to the FAA because they find themselves involved in the encounter before they realize the potential ramifications of what is happening. And in the past, discussing the incident often turned out to be the best course for resolving minor infractions. The inspector offered counseling, the pilot accepted it, and that was the end of it. Now, of course, it will probably lead to an official record of an administrative enforcement action.
If the matter is a serious one (a tough judgment call), a pilot should politely indicate that he or she would like to consult with someone before discussing the matter further with the inspector. This is especially important advice for members of the AOPA Legal Services Plan, who should call in at the first reasonable opportunity. If the inspector is persistent, at the very least, the inspector should assure the pilot that nothing more serious will come out of the discussion than an administrative action. If the inspector refuses to offer that assurance, that is all the more reason for politely begging off. This is a difficult choice because it could lead to a legal enforcement action in a matter that might have been disposed of by administrative action.
If the matter is minor (also a tough judgment call), since you will likely be trapped into a discussion before you know what is going on, there are some general rules you should follow. In any encounter with an FAA inspector regarding an alleged infraction, you should always be polite. The inspector is only doing his or her job. Once you become aware of what is happening, and you have concluded that the matter is a minor one, take the inspector's counseling. Listen more than talk. Avoid making damaging admissions — don't volunteer anything. If as the discussion progresses you feel that the matter is more serious than you first thought, beg off. The SAAP process is supposed to be used only in minor matters.
If after an encounter, the FAA inspector decides that the matter should be disposed of using the SAAP process, then within several days of the encounter you will receive in the mail a Warning Notice or a Letter of Correction. It will cite the regulations that were allegedly violated. It will tell you that the violations alleged by the FAA will be made a matter of record for two years from the date of issuance. It will also advise you that you may send in additional information within 30 days. Since the FAA charges will be a matter of public record, you should send a letter giving your side of the story. Based on your letter, the FAA may change its mind and withdraw the Warning Notice or Letter of Correction — not likely, but you have nothing to lose. You will be notified if there is a withdrawal.
As we gain experience with SAAP, we may be able to offer additional and maybe even different guidance. Let us know your experiences.
A legal decision of the National Transportation Safety Board provides a look at an actual FAA ramp check. The case shows us how a few technical violations, coupled with some prior antagonism, can escalate into a serious problem for the pilot of the flight being checked - in this case, a 90-day suspension of the pilot's ATP certificate. The Board's decision leaves the pilot's responsibilities in a ramp inspection cloudy.
It was the day before Thanksgiving, 1993. The pilot was captain of a Learjet carrying some cargo from Sparta, Tennessee, to Monroe, Michigan. It was a commercial flight operated under Part 135 of the Federal Aviation Regulations. The flight made a refueling stop at Smyrna, Tennessee — which is only some 45 miles from Sparta — because of the low price of fuel at the airport there. The pilot had called ahead to arrange with the fixed base operator at Smyrna for a "quick turnaround." The stop was to take no more than 10 minutes. As it turned out, it took much longer, and the second stage of the flight was eventually canceled.
At the time that the Lear landed at Smyrna, there were two inspectors from the Nashville Flight Standards District Office who were at the airport to talk to a woman who owned a flight school that was having some problems. She wasn't available, and as they saw the Lear taxi in, the inspectors decided to do a ramp check on the Lear.
As the airplane parked, they approached it, and at least one of them presented his credentials to the pilot, announcing the ramp inspection. According to the captain, one of the inspectors refused to present his credentials. There had been some prior antagonism between the inspectors and the company operating the flight, and some litigation in federal court, but the decision gives no details.
It was an unusually thorough inspection. At the request of the inspectors, the pilots presented their pilot and medical certificates, the aircraft registration and airworthiness certificates, the operations manual and the operations specification of the FAR Part 135 operator, the minimum equipment list, the load manifests, and the shipping papers for the cargo being carried. According to the evidence, one of the inspectors was going through the operations manuals page by page. The inspectors were allowed into the aircraft, and they even rummaged through the cargo. The pilots provided everything the inspectors asked for, though things got a bit testy as the inspectors seemed to be taking their time in an obviously time-critical situation, and the captain overheard some negative comments. The estimates of how long the inspection took ranged from 40 to 50 minutes to as long as an hour.
After that thorough review of the documents, the inspectors found two problems that I call "technical." They found errors in the load manifest for the flight from Sparta to Smyrna, and they found that an IFR flight plan had not been filed for that flight.
Even though, on the flight to Smyrna, the Lear was more than 3,000 pounds under allowable gross weight and well within center-of-gravity limits, the load manifest was technically in error. The copilot erroneously used the standard average weights of 165 pounds for each of the crewmembers (as allowed on a larger airplane he had been flying), for a total of 330 pounds, instead of their actual weights which totalled about 490 pounds. Also, the weight of the cargo was listed as 330 pounds instead of the actual weight of 520 pounds. The weight of the cargo listed on the shipping papers was in kilograms, and the 330-pound figure used by the crew was given to them by the person who delivered cargo to the airplane - which was the usual practice. In any event, technically, the load manifest was wrong.
As for the absence of an IFR flight plan, the operations specification did require that turbojet airplane flights conducted under Part 135 must be operated under IFR though there seemed to be some confusion in the ops specs. However, the flight, as short as it was, was in constant communication with air traffic control during the entire flight, under radar contact, utilizing flight following, but, technically, not IFR.
The problems really became exacerbated when one of the inspectors wanted to check the fuel load for the next leg of the flight. The drivers of the FBO's fuel trucks, under instructions to top off the tip tanks, refueled the airplane. The Lear has a fuselage tank — a "trunk" tank, and filling the tip tanks did not necessarily mean that the fuselage tank would also be full. To determine the amount of fuel in the fuselage tank, the inspector asked the pilot to turn on the aircraft's Master switch so that the fuel gauge could be read. The pilot refused, telling the inspector that he was in a hurry. The pilot later testified to his understanding that while he was under obligation to allow access to the airplane and the paperwork, he was not under obligation to do anything like turning on the Master switch.
He had not been asked to do anything like that in previous ramp checks. And, his understanding had been confirmed in conversations that he had with other pilots and FAA inspectors.
The inspector then demanded an en route inspection, presumably to be on board when the Master switch had to be turned on and the gauge could be read. The pilot, now with the added fuel, refused to conduct the flight with the inspector on board, saying that the aircraft would be over gross weight if it took off with the inspector on board. The inspector suggested that the pilot burn off 200 pounds of fuel before takeoff. The pilot didn't consider that suggestion viable and walked away from the aircraft. The flight was canceled. Another jet was dispatched to complete the flight. The crew repositioned the Lear to another airport in Tennessee and then got in their cars to try to make it home for Thanksgiving.
The inspectors sent out three letters, to the pilots and the operator, notifying them that this incident was under investigation. When the operator received the letter, the operator sent a fax to the pilots, who were on a trip, grounding them and telling them to report to Houston for an employment evaluation interview and retraining. Company officials believed that if they were tough on the pilots, that would satisfy the FAA and the matter would be dropped. That was not to be, at least not for the captain. The decision does not tell us what action was taken against the company or the copilot.
Ultimately, the FAA issued an order suspending the captain's ATP certificate for 90 days, charging him with several regulatory violations, including preparing an inaccurate load manifest, failing to operate the flight IFR as required by the operations specifications, and failing to allow the inspectors to conduct the ramp inspection. The FAA also charged the pilot with carelessly endangering life or property.
The captain appealed the suspension to the NTSB. A hearing was held before an administrative law judge, who affirmed the FAA in part and reduced the suspension to 45 days. While the judge found that the FAA request to turn on the Master switch was reasonable, he also found that the captain's refusal was also reasonable. He did not think it reasonable for the FAA to expect the captain to burn off 200 pounds of fuel in order to accommodate the en route inspection. He threw out the two charges related to interfering with the ramp inspection and reduced the suspension. Both the captain and the FAA further appealed the law judge's decision to the full five-member Board. The full Board granted the FAA's appeal and reinstated the 90-day suspension. It denied the captain's appeal.
The full Board agreed with the FAA that by refusing to turn on the Master switch, the pilot prevented the inspectors from completing the inspection. The Board rejected the pilot's argument that he was not required by regulation to assist the FAA in its inspection. The Board also said that the expense to the carrier of burning off 200 pounds of fuel was "minimal." The fact that "both sides may have become impatient with one another" does not warrant a reduction of the sanction. It affirmed the FAA position that the violations "potentially" endangered others. It reinstated the 90-day suspension.
The Board's decision gives little help on an important question: What are the pilot's responsibilities in affirmatively assisting the FAA in a ramp inspection, beyond producing the paperwork and allowing access to the aircraft? It does seem inclined, however, to favor the FAA over any rights of pilots.
We have devoted a good deal of space in this article to FAA enforcement procedures. We have talked about the different procedures available to the FAA explained the pilot's legal rights in each of the procedures and, in general, tried to give the pilot in trouble all the practical guidance he needs to handle his particular situation.
Now, we will discuss the long-range effects of being in trouble with the FAA. What are the consequences to the pilot after the enforcement case is closed? The question often comes up when a pilot is faced with FAA charges and is trying to decide whether to fight the charges, how hard to fight, or what a reasonable settlement would be.
We are happy to report that for most pilots who have suffered FAA enforcement, the long-term effects have not been serious. They have paid their fines, sat out their suspensions, grumbled over letters of reprimand, taken their check rides, generally learned from their experiences, and subsequently have gone on to the happier side of their flying activities.
But for some, the long-term consequences have been more serious. In our experience, these consequences fall into three areas: future enforcement, insurance, and aviation employment. Future enforcement is a straightforward problem. If you have been in trouble once with the FAA, it will weigh heavily in the FAA's determination of what to do to you the next time.
The FAA manual on enforcement lists the factors an inspector must consider in deciding what sanction to select. High on the list is "past violation history."
The NTSB, which serves as an appellate court in suspension and revocation cases, is usually more reasonable than the FAA and may reduce overly harsh certificate actions. But even the NTSB supports the FAA in its policy of tougher sanctions for repeat offenders.
Unfortunately, a pilot's history with respect to violations is a one-way street: Previous violations can hurt you, but a clean record probably will not help on the first infraction. Time after time, you can read in NTSB decisions: "A violation-free record is not considered by the board as a basis for reducing sanctions inasmuch as all certificate holders must adhere to the Federal Aviation Regulations."
The insurance and employment consequences are usually more serious than enhanced enforcement. They come about because the FAA releases information to the public about whether a pilot's certificate ever has been suspended or revoked and about whether a civil penalty has been imposed. Insurance companies, the airlines, and many commuter airlines know this and routinely check with the FAA in appropriate cases.
How can past problems affect insurance? All aircraft insurers ask questions about past FAA enforcement on their insurance applications. The answers to these questions are underwriting considerations and can, and usually do, affect either the premium, the terms of the policy, or whether a policy will be issued at all.
The exact wording of the question is important. At one time, the question on most policy applications was worded something like, "Has any named pilot ever had a pilot certificate suspended or revoked?" This left the door open for a "no" answer if a pilot had a violation history but never lost a certificate because the FAA used a civil penalty action or administrative action as a sanction. While some applications retain this wording, usually the question now is phrased something like, "Has any named pilot ever been cited for violation of any Federal Aviation Regulation? If yes, give details."
The effect of a violation history is left pretty much to the judgment of the insurance underwriter and, as we have already said, could be anything from no effect to a premium surcharge to declining coverage. Most underwriters recognize that a pilot could get in trouble with the FAA and that this does not necessarily mean he is unsafe or a greater insurance risk. That is why they usually ask for details. Not surprisingly, the most severe consequences are pinned to violations involving careless or reckless operation, drinking and flying, disregard of IFR requirements, and repeat offenders.
Airlines and other potential pilot employers take an approach similar to the insurance companies'. They want to know about any violations with which applicants may have been charged and then make their own judgment of the severity of the circumstances surrounding the violations. Minor mistakes and ones early in a pilot's flight experience probably will not jeopardize a potential career. Those that cast doubt on the pilot's judgment are sure to cost him employment opportunities.
In responding to an insurance or employment application question, a pilot should answer truthfully and precisely. Read the question carefully. Do not volunteer information that could hurt.
The attitude toward a history of violations — whether from the viewpoint of the FAA, the NTSB, the insurance companies or employers — is summed up well in the NTSB decision in the case of a pilot with six actions against him over a period of 20 years. In the sixth and, we hope, last action, the safety board reduced the FAA's sanction from a revocation to a stiff nine-month suspension after the pilot had suffered everything from a modest 15-day suspension to revocation. In its decision, the board said, "These prior violations tend to establish a pattern of disregard on respondent's part for the regulations, and therefore indicate the need, from a punitive and deterrent point of view, for a sanction substantially more severe than is normally imposed. At the same time, however, we do not feel, considering both the remoteness in time of the prior violations and the relative seriousness of the offense in this instance, that the record on the whole demonstrates a lack of qualifications or requires revocation. In sum, we conclude that the law judge struck the proper balance between the above considerations in arriving at a nine-month suspension as the appropriate sanction."
This article should remain only of academic interest to most of us, but you cannot be sure. With the complexities of the regulations and the way they pervade every phase of our flight activities, even the most careful and law-abiding pilot easily could be faced with an FAA enforcement action and the anxiety of the consequences.
Expunction is a high-sounding word that means no more than "to erase, to rub out." The FAA is adopting an expunction program to purge its files of records more than five years old that show that a pilot or other individual has been suspended or fined for a violation of the Federal Aviation Regulations. This has not been as easy a task as first anticipated. The FAA is entitled to credit for trying and for accomplishing as much as it has to date.
Right now, the FAA maintains violation records indefinitely, and these records are open to the public. This has proven to be troublesome to some individuals where the infraction was a relatively minor "traffic" violation and occurred a long time ago. It is particularly troublesome to young pilots and flight instructors trying to get on with the airlines, and to aircraft owners applying for aircraft insurance. Beyond that, most pilots feel that such a violation history against a particular individual loses its significance after a period of time. The FAA agrees.
The effort to persuade the FAA to expunge old violation records dates back many years. The expunction policy that is now being adopted is a direct result of recommendations made to the FAA by an industry group headed by AOPA. That industry group made an in-depth review of FAA enforcement and came up with a whole series of recommendations to reform the FAA's enforcement process. These recommendations spurred the FAA to conduct a "System Safety and Efficiency Review" of its compliance and enforcement programs. The SSER, launched in July 1989 by newly appointed FAA Administrator James B. Busey, consisted of three phases: data gathering and analysis, six or seven "listening sessions" held across the country (several hosted by AOPA), and a final evaluation by the SSER team of issues including those identified at the listening sessions. The team evaluation was done at the end of October 1989. By March 1990, the FAA staff had gleaned from the SSER effort 34 recommendations to reform the FAA enforcement process, and Busey announced their implementation in a speech on March 5. Remedial training is probably the most positive reform accomplished so far. We reported on the remedial training program in this column in the July 1990 Pilot. Another one of the reforms Busey talked about in his speech was expunction — "we intend to set up procedures to expunge records of violations after a reasonable period of time elapses." He announced that the FAA would have a policy developed and a plan established within 60 days of the March 1990 speech. That time frame proved too ambitious.
It wasn't until October 1991 that the expunction policy was published in the Federal Register. It is a good policy. It announces that "in general, records of legal enforcement actions involving suspension of an airman certificate or a civil penalty against an individual will now be maintained for five years; records of enforcement actions resulting in revocation of the airman certificate will be maintained indefinitely; and cases closed with no enforcement action will be expunged within 90 days. A record will not be considered eligible for expunction unless the record has been closed by the appropriate FAA office, and no further action is required in that matter. Further, no legal enforcement action record will be expunged if, at that time it is otherwise due to be expunged, one or more other legal enforcement actions is pending against the same individual."
As you see, there are some records that will not be expunged after five years. For example, the policy does not include expunction of enforcement actions resulting in the revocation of an airman certificate. That is because revocation is such a serious sanction that the FAA feels that the record must be retained indefinitely. The FAA will look very carefully at a new application for an airman certificate by an individual whose certificate has been revoked, even if it was more than five years ago. The FAA will consider the circumstances of the past revocation to determine if they evidence a pattern of noncompliance that could be disqualifying, or indicate other areas of deficiency that could be disqualifying.
And a legal enforcement action record will not be expunged if, at the time that the five years are up and it is due to be expunged, another legal enforcement action is pending against the same person. The FAA considers a person's recent violation history as very important in determining what sanction to impose in a new case.
The policy also addresses the situation where an incident was investigated by the FAA, and the FAA decided to take no action. That kind of a history could hurt even though there was no finding of violation. Now, cases closed with no enforcement action will be expunged within 90 days.
Cases closed by administrative action, that is, a warning notice or a letter of correction, will continue to be expunged after a period of two years. That had been the policy and was not changed. Administrative action rather than legal enforcement is used to dispose of minor cases.
Five years sounds like a reasonable period of time, but the period may effectively be a lot longer than five years because the time does not run from the date of the violation. In the case of a suspension, the five-year period begins to run from the date that the airman actually surrenders his or her airman certificate. This could be a long time after the violation, especially if the case was litigated and appealed. Then it could be years. If the suspension was waived because an Aviation Safety Report was filed with NASA (see "Pilot Counsel: The Aviation Safety Reporting Program," December 1989 Pilot), the five-year period begins with the date of the Order of Suspension With Waiver of Sanction. This, too, could be a long time after the violation, depending on the time it took the FAA to discover and process the case, and the time it took to litigate it, if it was contested.
It would have been better to have the five-year period run from the date of the infraction. In the case of a civil penalty action, essentially a fine, the five years begins to run on the date the civil penalty was paid. If the penalty was waived under the aviation system reporting system, the five years begins to run on the date of the letter or order assessing civil penalty but waiving the fine. If the civil penalty has not been paid (or a promissory note given to the FAA), the record will not be expunged until the civil penalty is satisfied.
The FAA's intentions are good, but as I suggested earlier, this has not been an easy task. This policy is still not fully implemented. The FAA found these records were being maintained in several forms throughout the organization, including computerized (the Enforcement Information Subsystem, the primary source of public information on enforcement history), microfilm (the airman's certification file), and paper records (the records of the FAA inspectors, special agents, and lawyers investigating and handling the cases). The expunction policy applies to all of these records. Furthermore, the FAA is subject to a law, the Records Disposal Act, which requires that the FAA get approval from the National Archives and Records Administration to destroy these records. The approval process is still going on.
In the meantime, at AOPA's request, the FAA has issued an order that attempts to implement the policy until the records actually can be destroyed. The order prohibits the internal use by FAA personnel of records eligible for expunction. The order also prohibits the disclosure of these records outside the FAA. In other words, if a member of the public asks for a violation record, it will not be disclosed if it is eligible for expunction, even though the FAA still has the record. This order became effective at the end of July 1992.
Implementation of the FAA expunction policy is only half of the solution. The other half involves getting the airlines and the insurance companies and others to cooperate. They should restrict the questions they ask on employment and insurance applications to dovetail with the policy. That's because even if stale information is no longer available from the FAA, an airman must respond truthfully to an open-ended question about his/her FAA enforcement history. AOPA has asked the airlines and the insurance companies for their cooperation and is continuing to work to get this cooperation.
The Equal Access to Justice Act which began on October 1,1981, as a three-year experiment — allows many persons and organizations to recover their attorneys' fees and other litigation expenses from the federal government in cases where the government is unable to justify its position in the litigation. The purpose of the law is to ensure that these parties will not be deterred from challenging unjustified government action because of the expense involved in vindicating their rights. The law that allows pilots to recover their legal expenses in defending themselves against FAA action was made permanent on August 5,1985.
The experiment has been a success. Private parties have won cases and recovered their legal fees in cases where they might not have otherwise made the fight. And despite the dire predictions that the awards against the government would be $100 million a year, they amounted to a total of only $3.9 million over the three-year experimental period.
This law, which generally applies to the whole of the U.S. government and its agencies, has had a particularly good effect on the FAA enforcement process, especially pilot certificate suspension and revocation cases. These are cases that are typically expensive to defend. Pilots have often surrendered their certificates or paid fines in cases that should have been defended but for the costs involved. (That is why AOPA started its Legal Services Plan.)
Since the Act became effective, there have been well over 2,000 FAA enforcement cases appealed to the NTSB. Less than 5 percent of these cases resulted in requests for the allowance of legal expenses under the Act, and only a third of those were granted awards. Obviously, the law has not been abused. If anything, it seems underused, probably because many are not aware of it.
The Act provides that "an agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with the proceeding, unless...the position of the agency was substantially justified or that special circumstances make an award unjust." The Act does not define "substantially justified," but two cases give us valuable insight into how the NTSB interprets the phrase.
The first FAA enforcement cases in which the safety board ordered the payment of legal fees involved an air taxi operation. The FAA charged the air taxi operator and two of its pilots (two different flights) with taking off IFR from a New York airport when the runway visibility was below minimum — less than a mile. The FAA could not prove to the satisfaction of the NTSB judge that the visibility was below minimum, and the air taxi operator and the pilots won their cases. The air taxi operator and the pilots then sought to recover their legal expenses. One of the pilots was successful. The only basis for the FAA prosecution against this pilot was that an FAA inspector at the opposite end of the airport, below runway level, with his view sometimes obscured by trees, assumed that the visibility down the runway was less than one mile. He assumed it, even though he had contradictory statements from the pilot and passengers on the flight that the ground fog in the area came up to but did not extend over the runway itself. The board said this was precisely the kind of "weak or tenuous" case the prosecution of which the Act was intended to deter. With respect to the case against the air taxi operator and the other pilot, the board decided that the FAA was justified in bringing the case, even though the FAA lost it.
Another early and interesting cases involved a flight instructor who was charged by the FAA with making false or fraudulent entries in a student pilot's logbook. He eventually recovered close to $12,000 in legal expenses. The student pilot had first complained to the FAA, then withdrew his complaint and thereafter persistently denied the statements of his complaint. He admitted that he himself had made the entries. The FAA nevertheless pushed on with its enforcement case and lost. The flight instructor sought to recover his legal expenses, and the NTSB judge awarded him nearly $7,000. The FAA appealed. The full board not only sustained the law judge but allowed about $3,500 in attorney's fees and other expenses incurred in the preparation of a response to the FAA appeal and about $1,100 incurred in the preparation and presentation of oral argument to the board.
The reauthorization improves the law by making more people eligible. For an individual involved in a case related primarily to his personal interest rather than to his business interests, his net worth may not exceed $2 million (formerly $1 million). If he is the sole owner of an unincorporated business involved in the case, his net worth may not exceed $7 million (formerly $5 million), and he may not have more the 500 employees. Partnerships, corporations, associations, and other organizations have similar net-worth limitations.
The new law eliminates the hiatus between the expiration of the old law on September 30, 1984, and its renewal on August 5, 1985. It applies to cases pending on the date of its enactment and would also cover cases filed on or after October 1, 1984, and disposed of before the date of its enactment.
We should see an increase in applications for legal expenses in FAA enforcement actions, and we should see an increase in awards. It is important to make reference to rules of the NTSB that implement the Act (Part 826). And it is important to remember that the Act also applies to civil penalty cases. So far, there have been no reported decisions interpreting the Act in a civil penalty case against a pilot or general aviation aircraft owner.
Enforcement actions against airman medical certificates differ somewhat from sanctions against airman (pilot) certificates. Denials usually result from a finding of a disqualifying medical condition or use of medication considered unsafe for aviation activities, and are determined by medical records provided by the applicant on the airman medical application in accordance with Subparts B-D of FAR Part 67.
Denial of medical certificate
The airman medical standards describe the minimum requirements for the issuance of a medical certificate. If an FAA-designated aviation medical examiner (AME) determines that an applicant has a disqualifying medical condition or a history of a disqualifying condition, or is noted to be using a disqualifying medication, the examiner may issue a denial, but a denial by an AME, as explained in Â§67.409, is not a denial by the FAA Administrator.
When a medical examiner is uncertain about the airman's qualifications, the easiest action for the AME is to "defer," or forward, the completed application to the FAA for a decision without issuing a medical certificate. The FAA will review the application and determine what action to take: issue the certificate, ask the applicant for more medical information, or deny the application.
Denials actually come in two versions, based upon how much time has past since the medical certificate was issued. Under the provisions of FAR 67.407, if a medical certificate is issued by an aviation medical examiner and the FAA finds later that the certificate was issued in the presence of a disqualifying condition, the FAA has 60 days to review that application and either request additional information to determine eligibility or issue a letter of denial based upon the information disclosed on the application. If, within those 60 days, a finding of disqualification is made, the FAA can simply issue a letter of denial and ask you to surrender the medical certificate.
If it takes more than 60 days for the FAA to determine a finding of disqualification, the FAA may still issue a letter of disqualification, but the language used to notify you of that finding is different. Either way, a denial is a denial to the airman and the medical certificate is not considered valid, but the letter will include a statement saying, "You may wish to voluntarily surrender your medical certificate for cancellation."
If you choose not to surrender the certificate, you can do a couple of things. You can provide the FAA with additional new medical records to support your application for a medical. The FAA will then review that information and, if they find it satisfactory, you will receive a new letter of eligibility.
Or you can ignore the letter, which is not a good idea, because the next letter (and there will be a next letter) will be a little less friendly, and will suggest that if you don't surrender the certificate, the case will be forwarded to FAA Legal for further action. At this point, the case becomes less medical and more legal. If the holder of the certificate refuses to surrender it and makes no other effort to work with the FAA, a letter of revocation will most likely be issued, and a situation that could likely have been worked out between the airman and the FAA has now escalated to a much more serious level that will have long term repercussions for the pilot, including possible revocation not only of the medical, but of all airman (pilot) certificates as well.
This process can takes months to resolve, so it's best to provide complete medical documentation right up front to the FAA. TurboMedical ®, AOPA's online interactive medical application program, is a great tool to help you determine what records you will need based upon the information you submit on the FAA medical application.
Fraudulent statements and enforcement actions
FAR 67.403 states that the FAA takes seriously any fraudulent or intentionally false statements made on a medical application. Penalties for falsification, including failure to report alcohol-related motor vehicle actions or withholding prior medical history, such as a bypass or treatment for substance abuse, may include suspension or revocation of medical certificates, and possibly airman certificates as well.
The burden is usually on the FAA to prove there was "willful intent" in the misrepresentation of information provided on the medical application. An honest oversight in not reporting a visit to the doctor for bronchitis makes for an easier argument than not reporting three previous DUI convictions because you "forgot about them."
Flying without a medical certificate
FAR 61.3(c) requires the holder of a medical certificate to have that certificate in his/her physical possession in order to act as a pilot in command or in any capacity as a required pilot flight crewmember. If you are found not to be in possession of a valid medical certificate, you could face some civil action, based upon the circumstance that prevented you from producing a medical. If you have a medical, but left it in your flight bag on the floor of your car and took off without realizing it wasn't with you, you might get away with as little as a letter of reprimand from the FAA. However, if you have been denied a medical certificate and are found to be flying without a medical, it's possible that your airman certificate will be suspended or revoked. Remember, too, that suspensions and revocation are maintained in your FAA airman record, and prospective airlines or corporate flight departments might find that blemish on your record to be enough of a liability to look elsewhere to fill open pilot positions.
Today, as we look back, we can see that the original reason we needed the plan, FAA enforcement, has become even more important. Here is how we announced it in June 1983: "Over the years in this column, we have related how easily, inadvertently, and oftentimes innocently a member can get into trouble with the FAA. Flying is so heavily regulated, with rules covering even the most finite details, that the most conscientious pilot can run into problems. The consequences have been loss of licenses, sometimes fines, and always the embarrassment and hassle of dealing with the matter. What has struck us as unfair is that, more often than not, a member suffered the penalty because the cost of defending the matter outweighed the penalty involved. After all, how much can a member afford to spend for legal fees to defend a 30-day or a 60-day suspension if he or she uses a pilot certificate just for sport or recreation? How much can a person spend defending a $250 civil penalty? It seems to us that the solution is to spread the risk over a large segment of our membership to protect the few who may stumble." (See " Washington Counsel: A Legal Service Program for AOPA Members," June 1983 Pilot.)
From the beginning the plan has provided counseling and legal representation in FAA enforcement matters. Today, with the proliferation of notams and temporary flight restrictions (TFRs), pilots inadvertently straying into restricted airspace, and penalties much, much worse, they are still the major benefits under the plan.
The plan has gradually grown to cover much more than just FAA enforcement. Very early on, the coverage was expanded to include such things as counseling after an aircraft accident, counseling in connection with alcohol and drug testing, and coverage for federal tax matters. A free half-hour consultation on any other aviation legal matter not specifically covered was added, which has turned out to be very popular.
About midstream, in 1995, we expanded the plan to address FAA medical certificate suspensions and revocations, review of hangar and tiedown agreements, and review of aircraft rental and leaseback agreements. The plan also expanded to provide coverage for U.S. Customs enforcement matters, and coverage for aircraft purchase and sales transactions.
And we are not finished yet. As we continue to analyze the needs of our members for counseling and legal representation in matters affecting their flying, and as we determine that the coverage can be reasonably offered within the present fee structure or with some modest increase, we will consider expanding the plan.
The fees are modest. If you exercise only private pilot privileges (even if you hold a commercial or ATP certificate), the cost in addition to your basic AOPA membership dues is only $33 per year. This is also the cost for student and recreational pilots. If you fly commercially — as a flight instructor, for example, corporate pilot, or flight engineer — the cost is $59 per year. For pilots engaged in operations that require an ATP certificate, the cost is still a reasonable $99 per year. The fees are ordinarily paid with the AOPA membership dues payment, and the plan coverage is concurrent with the AOPA membership year.
A neat feature is that it is an "open panel" plan, which means that when the coverage provides legal representation, you may use an AOPA panel attorney, or you may choose any other attorney. The AOPA panel is made up of more than 600 lawyers from around the country, virtually all of whom are AOPA members, and also pilots, and who are required to attend AOPA-sponsored legal seminars periodically to maintain their skills in handling these types of matters.
If you use a panel attorney, AOPA's payment goes directly to the attorney. For most coverage, the panel attorney agrees to accept a fee up to the hourly rate set by the plan, and to accept payment up to the maximum hours allotted as payment in full for the hourly services given, even if they exceed the allotted time. If you use a nonpanel attorney, you will make your own financial arrangement with your lawyer, and the plan will reimburse you the lawyer's fees, to a maximum of $145 per hour (which also has been gradually increased over the years) up to a maximum number of hours for specified tasks. The maximum hours allowed are based on AOPA's experience on what it has usually taken to provide the service. If the actual hours exceed the maximum allowed, you are responsible for the excess when using a nonpanel attorney. Expenses not normally covered in the attorney's (panel or nonpanel) fixed or hourly rate are not covered by the plan.
So, on this twentieth anniversary, I thought it would be worth this look-back and reminder of how far we have come. In the space of this column, I can't provide all of the details of the plan, including the specific wording of the coverages, limitations, conditions, and exclusions. You can get a full plan description by calling AOPA or checking AOPA Online.
For more information on AOPA's Legal Services Plan, visit the Web site.
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