For the Record: Without notice

Following its investigation, the FAA sent a letter to the pilot demanding his reexamination under 49 U.S. Code § 44709; a.k.a. the “709 ride.” In this case, an extension of time was granted because the pilot’s aircraft was undergoing repairs. However, it was rescinded when, several days later, he was pilot in command of a different aircraft that overran the runway.

The pilot failed the reexam. The FAA inspector said he met the pilot inside the FBO afterward, informed him that he failed, and recommended that he surrender his certificate. The pilot called his attorney, and then told the inspector his attorney advised him “not to surrender the certificate.” The inspector packed up and left.

About a week later, the inspector sent a letter to the pilot detailing the failure. It contained no instruction or demand for the surrender of the pilot’s certificate.

Months passed, and suddenly the FAA issued an emergency order of revocation. It alleged that the pilot lacked the qualifications to hold his certificate because he failed his reexam, and that he declined to surrender his certificate upon notification of the failure. The pilot appealed to an NTSB law judge.

At the hearing before the law judge, the parties didn’t dispute the failure or that the pilot didn’t surrender his certificate; the issue was the appropriate sanction. The FAA argued that a pilot who fails a reexam has two choices: surrender the certificate but have an opportunity for a second reexam, or retain the certificate but lose the opportunity for a second reexam and face revocation.

The pilot cited FAA policy stating that certificates are “generally” revoked only after an airman has twice submitted to and failed reexamination, and argued that the FAA didn’t give him any notice that his certificate would be revoked if it wasn’t surrendered after the first failure. He cited a prior case that held suspension pending completion of a second reexam, not revocation, was the appropriate sanction after a failed reexam. Critical to that case was that the airman did not receive any notice from the FAA that his certificate would be revoked if he did not surrender it immediately after the failed reexam.

The law judge found in favor of the pilot and modified the revocation to a suspension pending the outcome of a second reexam. The law judge found that the inspector recommended that the pilot surrender his certificate, but didn’t explain that the pilot would forfeit the opportunity for a second reexam and face revocation if he declined to do so. “Had the [pilot] been informed of such choices and nonetheless chose not to surrender his certificate,” the law judge said, “the appropriate sanction in this matter would be far different.”

The FAA appealed the decision to the full NTSB, which concluded that FAA policy states two important limitations. First, an airman is not permitted unlimited attempts to pass a reexam. Second, revocation “generally” occurs after the airman has failed two reexams. While FAA policy requires an airman to temporarily surrender his certificate to qualify for a second reexam, the board found no language about any time frame to do so. The board determined that the FAA provided no justification for deviating from this general policy of offering a second reexam to the pilot, other than that he had not surrendered his certificate.

Since the FAA failed to provide adequate notice to the pilot concerning the surrender of his certificate, the board concluded it was reasonable for the pilot to anticipate a second reexam. The letter sent to the pilot following the unsuccessful reexam contained no instruction or demand to surrender his certificate, and the board found that this “failure to inform is more striking” after reviewing letter templates provided to FAA inspectors, which advised inspectors that “if enforcement action was pending or the airman certificate was suspended pending reexamination, inform the airman that a copy of this letter is being forwarded to the Regional Assistant Chief Counsel.”

“We find this responsibility to inform is critically important,” said the board, “yet the inspector testified that he had no further contact with respondent, and other than his verbal recommendation following the first 709 reexam, he provided no information that his determination was that the respondent’s certificate must be revoked.” The board denied the FAA’s appeal.

This decision should be positively received by the aviation community. Airmen must be able to make informed choices when interacting with the FAA, and doing so requires the FAA to follow its own stated practices.

Email [email protected]
The AOPA Legal Services Plan is offered as part of AOPA’s Pilot Protection Services (aopa.org/pps).