August 18, 1997 FAA vs. Airman: 10 Tips to Avoid Becoming a Victim

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by	Phillip J. Kolczynski

About the Author ... Phillip J. Kolczynski manages his own law firm in Irvine, California. He has a national practice, concentrating in aviation, product liability and business litigation in federal and state courts. Phil teaches evidence, product liability and aviation law at the Aviation Safety Program, School of Engineering, University Of Southern California. He chaired the 1990 ABA National Institute on Aviation Litigation in Washington, D.C., and has spoken nationally at numerous aviation litigation symposia. Prior to moving to California in 1983, he was a trial attorney in the Aviation Unit, U.S. Department of Justice, Washington, D.C., and the Litigation Division, Office of the Chief Counsel, Federal Aviation Administration, Washington, D.C. Phil graduated from Case Western Reserve School of Law, Cleveland, Ohio, in December, 1976, and attended college at Marquette University, Milwaukee, Wisconsin, in 1969 where he held a Navy ROTC Full Scholarship. Before entering law school, he was a Marine Corps Captain and F-4 Phantom Pilot. He is a Commercial Pilot with instrument and multiengine ratings. AviationLaw@AVweb.com AviationLawCorp.com

The key facts of the Mike Taylor matter reveal that an injustice has occurred, regardless of the legal technicalities. A student pilot fails to refuel his private airplane on a cross-country solo flight and crashes. The student pilot was warned by his instructor to refuel before embarking on his return leg. The instructor's CFI and other tickets are suspended for failing to provide adequate airborne VFR navigation training. Improper VFR navigation training or a lack of it did not cause the crash. The student simply used poor judgment, failed to refuel and his personal error caused the crash.

Instructors should not be prosecuted for poor student head work. Could this happen to any airman, instructor or otherwise? You bet! Let's discuss some ways to protect yourself, using this case as an example.

Prepare Your Case Early

What could a pilot, who was honored by the FAA as one of the "Best Flight Instructors of The Year," have done to better protect his certificates? First of all, when the airman found out he was being investigated, he should not have responded to an interrogation by telephone from an FAA FSDO Inspector without assistance of counsel. The record reveals he hired a lawyer after receiving a Notice of Proposed Certificate Action. That may have been too late. My impression is that the instructor's telephone conversations with the Inspector did not go well and resulted in bad blood. The FSDO investigator's telephone calls gave the inspector the impression that the CFI had not properly trained his student. The CFI apparently gave inconsistent information to the inspector regarding the nature, extent and date of flight instruction provided to the student pilot. Moreover, the Student Pilot's Logbook entries did not match the instructor's explanation of instruction given.

I'm not at all suggesting that the instructor falsified entries regarding instruction. One problem, I suspect, is that he did not provide all of this substantiation to the FSDO Inspector during the initial investigation. He later produced proof that he had given adequate instruction. The inspector didn't believe him. The NTSB Administrative Law Judge sided with the FAA, believed the FSDO Inspector, and ruled the instructor didn't give enough training. According to the NTSB's appellate opinion (Order No. EA4509), the ALJ was within his discretion to believe the FSDO Inspector.

TIP #1. When you find out you are being investigated by the FAA, do not talk to them until you are fully prepared to show that you did things right. It may be prudent to consult an attorney at this stage, so that you can have an aviation lawyer review what you have done and prepare you to put your best foot forward when responding to questions from the inspector. Prepare for the first meeting like a final exam. The investigator has already done extensive research. It's better to spend money early to persuade the FAA not to file a Certificate Action, then to insist that you are right and then be dragged into a hearing, an appeal to the NTSB and an appeal to a Circuit Court. Defending yourself against an FAA Enforcement Action is like performing an instrument approach: if you start out on speed, on altitude and on glideslope, there is a high likelihood that you will successfully complete the approach. But if you start out unprepared, it will be hard to land on the numbers.

TIP #2. If at all possible, have the attorney accompany you when you are interrogated by the FAA inspector. If a personal meeting is not possible, have your attorney on the phone with you when you answer the questions. Don't argue in the meeting. Display a compliance-oriented attitude. Point to the ambiguities in the regulations. Strive for a consensus on what the facts show. Offer to provide additional evidence to help satisfy the investigation. Prepare a memo to the record as to what was discussed. In this case, the FAA Inspector prepared a memo to the file, the CFI did not. Guess who the Administrative Law Judge and the NTSB believed?

Use The Informal Conference To Negotiate With The FAA...Not To Tick Them Off!

The initial Notice of Proposed Certificate Action against Instructor Taylor was only planned to suspend his Certified Flight Instructor's certificate. When the Administrator's Order was finally issued, after the informal conference, the FAA was after all of Mr. Taylor's certificates. What happened in the informal conference? Apparently, the informal conference between the instructor's lawyer and the FAA went very badly and the FAA decided to escalate its certificate action against the airman.

TIP #3. As a generalization, I recommend that an informal conference include both the airman and the airman's aviation lawyer. The exceptions to this generalization are situations where there is no hope for a settlement, or circumstances where the airman is so angry or emotionally involved, that counsel cannot depend on him to avoid making inflammatory statements, or say things inconsistent with the facts. The inspector from the FSDO or his boss from the Region will often attend the informal conference along with the FAA lawyer. The purpose of the conference is to negotiate, not to fight! The airman's participation can be very important in persuading the FAA to back off; however, inconsistent statements can be used to impeach the airman in subsequent proceedings. It is critical to be thoroughly prepared and to deal tactfully with the prosecutor and his/her "police" inspector who veritably hold your fate in their hands.

TIP #4. Don't do informal conferences by telephone. The purpose of an informal conference is to determine if the case can be settled or the charges reduced. It is very hard to persuade the FAA by telephone, to drop charges. Don't forget, they have already completed an investigation, prepared a report and regional counsel has decided to bring a certificate action.

Preparation Is The Hallmark of Winning Legal Cases

A National legal newspaper, "Lawyers Weekly USA" recently interviewed 20 of the top trial lawyers in the country and asked, "Why do you win so often?" Answers:

• brilliance, no
• luck, no
• honesty, probably
• preparation, definitely!

TIP #5. Once the FAA made clear they were going after all of Mr. Taylor's certificates, they had, in fact, declared war against him! I cannot comment on how well the case was prepared and whether Mr. Taylor's lawyer did a good job during the hearing. I can recommend that if your certificates are at stake, you should equip your attorney with sufficient resources to thoroughly prepare your case. I typically receive calls from airmen who say that they plan to handle the preliminary dealings with the FAA themselves and only bring in an attorney "when necessary" to save money. This strategy often proves to be penny wise and pound foolish. It is essential to allocate sufficient funds to pay for a thorough legal defense when preparing for a hearing before an Administrative Law Judge. FAA Regional lawyers routinely conduct such prosecutions and are skillful at persuading ALJs that the FSDO Inspector's investigation reveals a violation. The FAA has extensive resources that bring to bear on their case. You cannot hope to win unless you are willing to spend money to defend your licenses. When you see an airman like Mr. Taylor having to take an appeal to the NTSB and then being forced to seek reconsideration of the NTSB's decision and then take an appeal to the Ninth Circuit Court of Appeals, one recognizes how expensive the process has become for him.

TIP #6. The higher you go in the license penalty appellate process, the less the reviewing authorities are able to look at the specific facts of your case. If you have not introduced adequate evidence in the initial hearing before an Administrative Law Judge to protect your license, don't expect the National Transportation Safety Board to overrule that Judge's decision. The Board only reviews the evidence admitted in the hearing. Similarly, when you appeal the decision of the National Transportation Safety Board, affirming an ALJ's decision to allow your license to be revoked or suspended, don't expect the United States Circuit Court of Appeals to review all of the facts of your case and appreciate that an injustice has been done. The Appellate Court will affirm the factual findings of the NTSB as long as they are supported by "substantial evidence" and the ALJ has not "abused" his discretion.

When Can You Rely On Advice From FAA Employees?

What was wrong with the flight instruction given by Mr. Taylor to the "student"? The FSDO investigator apparently felt that this instructor did not give adequate airborne, cross-country instruction to the former Naval Aviator who was a student, private pilot. The FAA Inspector probably felt that since the Naval Aviator had received his instruction over 20 years ago and, apparently, had not seen active flying duty during that entire period of time, that substantial airborne, cross-country flight training was necessary.

The instructor was relying on the provisions of FAR 61.41, which allow credit to be given for former military instruction. The CFI had contacted the FSDO previously to find out if FAR 61.41 applied. He was told that students could have credit for prior military instruction. The enforcement action FSDO inspector testified that the instruction was inadequate. How can an airman establish that he was acting in reliance on the advice of a FSDO inspector when a second inspector subsequently takes a contradictory position?

TIP #7. If you want a quick answer from an FAA employee about proper practices and procedures, are confident that the issue will never evolve into a legal proceeding, feel free to pick up the phone and ask your question.

TIP #8. If you think that your ticket could be jeopardized if the FAA later disavows the interpretation they provide concerning practices and procedures, write to the FAA or send them an e-mail and obtain a written response setting forth your responsibilities under the FARs.

TIP #9. If you have trouble getting a timely written response from a government agency, arrange a meeting with the FSDO Inspector. Just happen to bring along a neutral witness who is sufficiently knowledgeable about flying so that he can understand the responses. Have him or her make a memo of the meeting. Even if the FAA employee denies the advice given, you will have a witness to prove what was discussed.

The Stale Complaint Rule

This Rule is designed to require that the FAA give Notice of an intent to pursue an enforcement action against an airman. In some cases, a late complaint makes it hard for the airman to mount a meaningful defense. Witness' recollections grow faint and evidence is hard to locate many months after a flight violation is alleged to have occurred. The Rule also embodies the principle that justice delayed is justice denied. The Stale Complaint Rule is a classic legal technicality.

Because the Stale Complaint Rule is a technicality, the Rule is not always properly enforced by NTSB Administrative Law Judges or by the Board itself. One exception not applicable in this case, is where the FAA alleges a lack of qualification. However, the Stale Complaint Rule itself, provides clues as to its potential unenforceability. See, 49 C.F.R. 821.33(a)(2). The Rule states that the Administrative Law Judge of the NTSB shall dismiss stale allegations "unless":

1. The Administrator can establish good cause for the delay, or
2. The Administrator can establish good cause for the imposition of a sanction notwithstanding the delay.

The FAA may argue that it has two excuses: (i) a good explanation for the delay; or (ii) good cause to punish the airman even if there was delay. Apparently, the ALJ bought one or both of the excuses in this case. Surprised? I'm not. Case law has shown that you cannot completely rely on the Stale Complaint Rule to get your client off the hook.

FINAL TIP #10. Those of use who primarily practice before federal courts and state courts of general jurisdiction know that NTSB Administrative Law "Proceedings" do not provide all of the protections that our clients enjoy in Court. The rules of procedure and evidence are merely "advisory." Administrative Law Judges can allow into evidence and exclude what they want. The first point of appellate review is by a Board, not by an Appellate Judge. The issues at stake are an airman's "privileges," not constitutional, legislative and case-law protected rights. The FAA can take away your privileges (certificates) if you don't follow their rules. Don't forget, they make all the rules! One conclusion to be drawn from these points is that an FAA Enforcement Investigation and their Prosecution must be handled with even greater skill, preparation and caution, than a civil court case to be successful.

NOTE: The issues and recommendations discussed in this article are based on hypothetical situations and do not constitute legal advice. My objective is to alert you to some common issues so that you can avoid or minimize legal trouble. Anyone with an aviation law problem should be guided by the advice of his or her lawyer, under applicable federal and state laws, after a full and confidential disclosure of all relevant facts.