FAA vs. Airman: Be Very Afraid!
EDITORIAL. If you think the FAA and NTSB learned their lessons after the public relations catastrophe surrounding the Bob Hoover affair, you'd be wrong. As recent FAA persecutions of designated examiner Howard Fried and flight instructor Mike Taylor prove, when a FSDO inspector decides to go after your certificates, don't count on much justice from the system. We think these cases are disgraceful, and that changes are needed to prevent such abuses in the future.
If you think of the Flight Standards Service as the law enforcement arm of the Federal Aviation Administration, then the Flight Standards District Office (or FSDO, pronounced "FIZZ-doe") is the FAA's equivalent of a police station, and the Airworthiness, Operations, and Safety Inspectors who work at the FSDOs are the FAA's cops. Most FAA cops...er, Inspectors...are good guys: dedicated, competent, and fair. But as in virtually any large law enforcement agency, there are always a few Bad Apples in the FSDO Inspector core...ah, corps...who get their kicks by flexing their regulatory muscles, discharging their statutory weapons, and pushing airmen around to prove who's boss.
When FAA Inspectors make trouble for airmen, it's usually under the authority of Section 609 of Title VI of the Federal Aviation Act which empowers them to issue orders that suspend or revoke an airman's certificate. An airman whose certificate is ordered suspended or revoked may appeal the order to the National Transportation Safety Board and, if the NTSB affirms the FAA's order, the airman may further appeal the NTSB's ruling in Federal Court.
In principle, this appeal process should protect an airman against unjust persecution by a Bad Apple FAA Inspector. In practice, it often doesn't, as two recent cases illustrate.Designated Examiner Howard Fried
For seventeen years, Howard Fried served as a Designated Pilot Examiner in the Detroit area. In fact, Fried is one of the best-known designated examiners in the country as a result of his monthly column "Eye Of The Examiner" in FLYING magazine. He was also a high-volume examiner, having given more than 300 checkrides a year for the past several years. But in 1992, an inspector at the Detroit FSDO decided — for no apparent reason — that Fried's DPE should be taken away. Maybe the Inspector didn't like Fried's column in FLYING.
Fried's first indication that something was wrong came when he discovered that the FSDO had not mailed him the renewal forms that he had always received a month or so prior to the May expiration date of his designation. He phoned the FSDO and asked to be sent the paperwork package, but was told he'd have to take care of the paperwork when he came into the FSDO to take his annual renewal checkride with an Inspector. Fried set up an appointment.
Over the next three weeks, Fried's appointment at the FSDO was cancelled and rescheduled three times. The final appointment was the next-to-last day of Fried's expiration month, and that too was cancelled by the FSDO. The next day (one day before his designation would expire), Fried received a registered letter informing him that his designation would not be renewed, but advising him that he could come into the FSDO if he wished to appeal the decision.
The following day (which was the final day before his designation expired), Fried and his aviation lawyer went to the FSDO. The lawyer pointed out that Fried was legally entitled to "adequate notice" and the FSDO manager replied that he considered 24 hours to be perfectly adequate. The lawyer requested that the FAA renew Fried's designation pending the outcome of an appeal, but this request was denied. The FSDO manager explained the appeal rights to Fried and his lawyer.
Fried's next step was to appeal to the FAA Regional Office, for which he engaged one of the country's best-known aviation lawyers, John Yodice (who also serves as AOPA's general counsel). Fried and his lawyer provided written responses to the three charges that the FSDO had used to justify their non-renewal of Fried's designation. After three months, Fried received a letter saying that the Regional Office had decided to start the process all over again by initiating the denial of Fried's designation at the Regional Office level, thereby expunging the illegal actions of the FSDO — specifically their failure to provide the required "adequate notice". (A recurring theme in these cases is that when the FAA breaks their own rules, they simply change the rules.)
Six months later, the Regional Office sent Fried a letter which dropped two of the three original charges made by the FSDO and added two new ones. Fried, Yodice and Fried's local counsel attended a hearing before the Regional Flight Standards Manager at which they responded to each of the FAA's charges. The Manager promised a response "within a week or ten days."
The next month, Fried received a Letter of Investigation from the FSDO stating that the FAA was investigating a possible violation of Part 135, thereby launching an attack against Fried's pilot certificate (not just his examiner designation). Ironically, Fried was not involved in any Part 135 operations.
About the same time, one of the FSDO inspectors contacted another aviation writer and told him that he ought to try to take over Fried's monthly column in FLYING because Fried was no longer an examiner. This was in spite of the fact that Fried was still appealing the FAA's non-renewal of his designation.
A few weeks later, Fried received another letter stating that the FAA had found him guilty of operating an illegal Part 135 operation and assessing a civil penalty of $291,000 against him. The operation in question was one in which Fried had leased an airplane to a major corporation for its exclusive use and control. Fried had previously reviewed the operation with two FAA General Aviation Operations Inspectors and had been assured by both of them that it did not fall under Part 135, since Fried neither had operational control of the leased aircraft nor did he hold himself out as providing air transport for compensation or hire. (Again, the FAA changed the rules.)
Meantime, five months had passed since Fried's hearing at the Regional Office concerning the non-renewal of his examiner designation, and there was still no response to his appeal. Yodice filed a "writ of mandamus" in Federal Court to compel the FAA Regional Manager to respond to the appeal. Fried immediately received a formal denial of his appeal from the Regional Office.
This cleared the way for him to appeal to the National Flight Standards Office in Washington, D.C. But the National Office denied Fried's request to present oral arguments ("don't confuse us with the facts") and perfunctorily denied his appeal.
Fried then filed an appeal to the First Circuit Federal Court in Washington, and John Yodice argued the appeal before the court. The court ruled that Fried was not entitled to due process. It said, in essence, that the FAA had every right to take away Fried's designation and that the due process protections of the Constitution did not apply to the FAA. This was the end-of-the-road for Fried's attempt to retain his pilot examiner designation.
This left the civil penalty of $291,000 for the alleged Part 135 violation against Fried. This wound up in the United States District Court for the Southeastern District of Michigan. Fried's lawyer argued that the operation in question could not possibly have fallen under Part 135 because Fried neither "held himself out" as a common carrier nor had "operational control" of the aircraft, both of which are essential conditions for a Part 135 operation. The FAA maintained that the operation was covered under Part 135. After much wrangling and negotiation (and knowing its case was weak), the government finally offered Fried the option of settling the matter for $10,000 if he was willing to admit his guilt, or for $20,000 without an admission of guilt. Fried (who had already spent $40,000 in this fight, not including the loss of revenue caused by the non-renewal of his examiner designation) counter-offered $10,000 with no admission of guilt, and the FAA accepted this settlement rather than go to trial.
During the course of his long and expensive losing battle with the FAA, Fried says that several FAA Inspectors confided to him that they knew that the entire matter was a "set-up" but were unwilling to come forward because of what it would do to their careers within the FAA. He also contends that several aviation attorneys were unwilling to represent him for fear of reprisals against their own pilot certificates.
Flight Instructor Mike Taylor
While attending a recent Flight Instructor Refresher Clinic to renew my Flight Instructor certificate, I met a fellow CFI named Mike Taylor from Yuma, Arizona. During a coffee break, I learned that Taylor was approaching the end of a frustrating two-and-a-half year battle with the FAA over the suspension of his FAA certificates. The battle had already taken Taylor through an informal conference with an FAA lawyer, a formal hearing before an NTSB Administrative Law Judge, an appeal to the full NTSB, and was now being appealed in Federal Court.
Taylor's troubles began in February, 1995, when a former Navy fighter pilot and air traffic controller decided to obtain a civilian Private Pilot certificate so he could fly the Varga Kachina that he'd acquired, and asked Taylor to prepare him for the checkride. The "student" had previously taken the FAA written test and passed it with a score of 90 percent.
Taylor flew with the student and reviewed with him the various pilot operations required by the Private Pilot Practical Test Standard (PTS). Subsequently, the student prepared for a cross-country flight, Taylor reviewed his flight planning with the student, and signed the student off for the solo day XC. Taylor ended the review session by admonishing the student to be sure to refuel the airplane at the destination before flying back to Yuma.
The next morning, the student flew to the destination without incident. But his departure was behind schedule and he was concerned about getting back to Yuma before dark. The student sticked the tanks of the Varga Kachina, decided he had sufficient fuel for the return flight, and decided not to take the time to refuel the aircraft (as Taylor had instructed him to do). Unfortunately, the student underestimated his fuel requirements and ran out of fuel 18 miles short of Yuma. The student sustained only minor injuries in the crash landing (slightly fractured wrist and minor lacerations of the forehead), but the airplane was a total loss.
The Scottsdale (Arizona) FSDO informed Taylor by registered letter that it was investigating the accident for possible violations. Taylor, who ironically had been named one of Scottsdale FSDO's "Flight Instructors of the Year" in 1995, had always had cordial relationships with the FSDO. He'd been flying for 25 years, held ATP and Flight Engineer (turbojet) certificates, a Flight Instructor certificate with airplane, instrument and multiengine ratings, and had been a Boeing 727 check airman for Eastern Airlines and a B727 line pilot for Evergreen International. In all those years of flying, he'd never been hassled by the FAA. So Taylor sent a nice letter of reply to the FSDO offering to cooperate in the investigation.
Taylor subsequently had a telephone conversation with a FSDO Inspector, who indicated that he had reviewed the student's logbooks and accused Taylor of failing to provide the dual cross-country flight training required by FAR 61.93. Taylor explained that he had spoken to another Scottsdale FSDO inspector a month earlier and asked him what training was required, and that he'd been told that "the student, because of his military experience, needs to be able to demonstrate all items and areas in the Private Pilot PTS."
Taylor also relied on FAR 61.41, which states that "A person may credit flight training toward the requirements of a pilot certificate or rating...if that person received the training from a flight instructor of an Armed Force in a program for training military pilots of...the United States." Since the student in question was a former Navy A-7 pilot with 1,000+ jet hours, an FAA air traffic controller for six years, an F-18 ground instructor for McDonnell Douglas for five years, and a senior safety analyst for the Harrier program at MCAS Yuma, there was no question in Taylor's mind that this particular student had "been there and done that" and simply needed a review and prep for the checkride. But the investigating Inspector insisted that the student's previous military training and experience didn't count, and that Taylor was obligated to provide him with the same training he would have given an ab initio student. (Once again, the FAA changed the rules.)
Taylor says that during that telephone conversation, the Inspector wrapped up by saying "my job is to find violations and that's what I intend to do." However, Taylor received no further communications from the FAA for nine months. Since the NTSB has imposed a "stale complaint rule" requiring that the FAA notify an airman of any proposed sanction against him within six months of becoming aware of a possible violation, Taylor concluded that the matter was closed.
Wrong! A full nine months after the accident, Taylor received a (non-registered) letter from an FAA lawyer at the FAA's Western Regional Office saying that "it appears you may not have received the Notice of Proposed Certificate Action that was allegedly sent to you three months ago" and enclosing a copy of a suspension order. The stated reason for the suspension was an alleged violation by Taylor of FAR 61.93(c)(1)(i) which requires a CFI to instruct a student pilot in "the use of aeronautical charts for VFR navigation using pilotage and dead reckoning with the aid of a magnetic compass" before signing the student off for solo cross-country.
At this point, Taylor contacted an aviation lawyer, who reviewed the case and then told Taylor there was nothing to worry about because:
- The student's logbook proved that Taylor had in fact instructed the student in VFR navigation using pilotage and dead reckoning during a dual flight a week before the accident flight. (The student ultimately testified that he had indeed received such instruction.) So in fact Taylor had complied with FAR 61.93(c)(1)(i).
- The accident had nothing to do with navigational errors, and in fact the student crashed precisely on the centerline of Victor 66, right on course!
- The FAA did not notify Taylor of the proposed certificate action within six months, and offered no proof that such notice was mailed in a timely fashion. (The FAA always mails such notices by registered mail with return receipt requested, but did not receive a delivery receipt.) While there are certain exceptions to the "stale complaint rule," none were applicable in this case. Furthermore, there is NTSB case law that establishes that if a respondant does not receive notification of a complaint due to that notification being lost in the mail, the stale complaint rule still applies.
Consequently, the attorney assured Taylor, the FAA action should be thrown out for at least three reasons: (1) no violation occurred, (2) the alleged violation was not the cause of the accident, and (3) the complaint was stale. "Don't worry about it, Mike," the lawyer told Taylor. "They have no case."
Taylor's attorney held an informal conference with the FAA lawyer by phone; Taylor did not participate and was not even aware of the conference until after it was over. Taylor's attorney told the FAA in essence "you have no case against my client," the FAA attorney got mad, and the conference ended with "see you in court."
Taylor and his attorney appeared in a formal hearing before an NTSB Administrative Law Judge. By this time, the FAA was no longer content with a 90-day suspension of Taylor's flight instructor certificate; they now asked for a suspension of his ATP certificate, his Flight Engineer certificate, and even his A&P Mechanic certificate as well!
Taylor and his student both testified before the ALJ that Taylor had given the student the instruction required by FAR 61.93(c)(1)(i) during a dual flight a week prior to the accident flight, and prior to Taylor's signing off the student for solo and for the solo XC flight. Taylor's attorney argued that the complaint was stale. The FSDO Inspector testified that he did not believe the testimony of either Taylor or his student, saying that in his opinion the 1.5-hour dual flight would have had to be at least 3 hours long to include everything that Taylor and his student said was covered. Taylor's attorney attempted to rebut this by allowing Taylor to testify that the student was a highly-experienced pilot and that the instruction was conducted more in the nature of a flight review rather than the sort of drill that might be done with a low-time student. However that testimony was not allowed. The ALJ cut Taylor's attorney off, saying "I've heard enough" and ruled in favor of the FAA right on the spot (although he reduced the proposed 90-day suspension to 60 days).
Taylor appealed the ALJ's ruling to the full NTSB, but they affirmed the suspension.
The case is now before the Ninth Circuit Court of Appeals. Taylor's attorney has filed pleadings with the court, and Taylor is awaiting his day in court. But at this point in the appeals process, the issues of fact (like whether or not Taylor did provide the instruction required by the FARs) are no longer under consideration, and Taylor's chances for a successful appeal appears to hinge solely on whether the "stale complaint rule" was violated. Taylor asked AOPA to file a "friend of the court" brief in his appeal, but AOPA declined to do so. Knowledgeable observers say that it's not very likely that the court will overturn the NTSB's ruling.
Taylor has now invested more than two years and $20,000 in fighting this battle. He's an ex-airline pilot who had hoped to fly for the airlines in the future, and knows that this violation would kill any chance he might have of ever flying for a living again. And although Taylor doesn't have the public visibility of a Bob Hoover or Howard Fried, his case should be worrisome to all pilots because it could set a precedent that would undermine the NTSB's "stale complaint rule," which serves as the statute of limitations that prohibits the FAA from pursuing violations against airmen more than six months after the fact.
You can contact Mike Taylor by email at firstname.lastname@example.org.
What can we all learn from the misfortunes of Bob Hoover, Howard Fried and Mike Taylor? There are several lessons here:
- If an FAA Inspector decides to go after your certificate, he's probably going to succeed no matter how valiantly you fight for Truth, Justice and the American Way. So it's best to keep a low profile and not get any FSDO folks mad at you in the first place. They don't fight fair, and they have a lot more money to spend on lawyers than you do.
- Join a legal plan like the AOPA Legal Services Plan. Defending yourself against an FAA certificate action can easily cost many tens of thousands of dollars.
- Never rely on anything an FAA Inspector tells you unless you get it in writing or on tape. The next Inspector you talk to may hold a diametrically opposite interpretation, and he may be the one going after your ticket.
- If you are involved in an accident or incident or receive a letter from the FAA saying that they're investigating a possible violation, don't say anything to anybody until you've contacted an experienced aviation lawyer. Even then, don't say anything (or let your lawyer say anything) unless you have a tape recorder running or a court reporter transcribing the conversation. If it's your word against theirs, the judge will believe them. And you sure don't want to give the FAA Inspector any more information to use against you than he already has.
- If you're a Flight Instructor, document every detail of the instruction you give your students in triplicate. Staple one signed copy in your student's logbook, keep the second copy in your own logbook...and send the third to your lawyer, just in case!
Gosh, I hate to come across paranoid. My own personal experience with the FAA in some thirty years of flying has been very positive. The great majority of FAA folks are honorable, dedicated and fair. The American airspace system offers more safety and freedom than any other in the world.
But you never can tell when you'll come to the attention of a Bad Apple Inspector. Unfortunately, they're out there. So until the system is changed, until the Bad Apples are weeded out of the FSDOs, until an airman's appeal process becomes something more than just a series of rubber-stamp affirmations of the Inspector's original charges, and until a Bad Apple Inspector can be held accountable for malicious prosecution of an airman, I'm afraid we'd all better keep our heads down and our powder dry.
NOTE: In a companion article, AVweb's aviation law editor Phil Kolczynski offers Ten Tips To Avoid Becoming A Victim.