Legal Briefing

Inspector's assumptions cost pilot

Would it occur to you to check the qualifications of the pilot examiner who is administering your upcoming practical test? Probably not. A recent decision from the National Transportation Safety Board suggests that you should--even when the examiner is an FAA aviation safety inspector--or suffer the consequences if it turns out that the examiner is not technically qualified.

In this case, the airman submitted an application to add a multiengine land rating to his private pilot certificate. An FAA inspector administered the checkride and concluded that the airman was qualified to hold a multiengine rating. He issued the airman a temporary private pilot certificate with a multiengine rating. The airman waited for his permanent certificate to arrive in the mail. About two and one-half months later, the airman received a letter from the FAA saying that the airman's application for a multiengine rating was denied and the airman was no longer authorized to exercise any of the privileges of the temporary certificate. The reason? The FAA said that the inspector who had given the checkride was not authorized to administer a practical test.

The inspector worked in the FAA's certificate management office for a major airline. In that position, the FAA inspector's official functions were limited to oversight of the airline, and did not include checkrides in light aircraft. The inspector was not authorized or qualified to administer the checkride because he did not comply with several requirements set forth in FAA orders pertaining to administering checkrides. The inspector believed that he had implied authority to administer the checkride but recognized that he had not complied with several requirements contained in FAA orders concerning the administration of practical tests.

The airman argued that he reasonably understood the FAA inspector to have the authority to conduct the test. The airman also argued that notwithstanding the question of whether the inspector was technically authorized by the FAA to administer the checkride, he was nonetheless qualified for the multiengine rating that he was issued, and there was no evidence that he was not qualified to hold the multiengine rating that he had applied for and obtained. In particular, the airman maintained that he was given a thorough and proper test and executed every maneuver required by the practical test standards. Interestingly, the FAA did not dispute that the test was conducted and, in fact, stipulated that a practical test, including a 2.4-hour flight segment, had occurred.

The NTSB was not persuaded by the airman's pleas for an equitable decision.

"It is unfortunate that [the airman] was apparently led by [the inspector] to wrongly believe that he was receiving an official, sanctioned FAA practical test, particularly so because [the airman] incurred expenses to rent a multiengine aircraft for the 2.4-hour flight portion of the practical test. Nevertheless, this is a safety proceeding, and the Administrator, as head of the regulatory agency that issues airman certificates, is entitled, solely at her discretion, to designate who is authorized to evaluate the qualifications of airman applicants on her behalf. Where, as here, no showing has been made that [the inspector] was in fact authorized by the Administrator to administer the checkride to [the airman], the practical result is as if a test was never administered. Under the circumstances, [the airman] has not, and cannot, meet his burden to demonstrate he is qualified for the rating he seeks."

In addition, the NTSB expressed "dismay" that the airman would choose to have the FAA's denial legally reviewed rather than simply obtaining another, valid practical examination.

In this particular case, it appears that the airman and the FAA agreed that a practical test was given, and the test may have otherwise met all of the practical criteria for making an accurate assessment of the airman's qualifications to hold a multiengine rating. However, the FAA simply would not retreat from its position that because of some internal disagreement about the inspector's technical qualifications, the airman could not keep the rating given to him and would have to take another practical test.

Kathy Yodice is an attorney with Yodice Associates in Washington, D.C., which provides legal counsel to AOPA and administers AOPA's legal services plan. She is an instrument-rated private pilot.