— By Phil Kolczynski
"Enforcement Survival School" is like finding yourself in
Jurassic Park. I'll let you guess who the dinosaurs are. In Jurassic Park I, a.k.a., "Enforcement Survival School,
Part 1," the lawyer was devoured by "T-REX" right off the "john." At least, he
left the legacy of the "Duct Tape Defense." In Jurassic Park II, a.k.a.,
"Enforcement Survival School, Part 2," the lawyer warned you on "How Not to
Deal with FAA Inspectors!" (you know who has the teeth in this
industry). Now, just as Jurassic Park III appears at the big
screen, "Enforcement Survival School, Part 3" comes to your small screen,
with tips on how to preserve some golden eggs to defeat the
dinosaurs. Introduction — By Eric Jaderborg
After watching the original Jurassic Park, I resolved never again to
interact with man-eating beasts larger than myself — even screen versions. I
made daily exceptions, of course, in order to visit the office. It was only after Bob Hoover won the
fight to reinstate his medical (and most of us on the inside were rooting for
him from behind the scenes) that I learned who really has the teeth in this
industry. In the end, Gentleman Bob was checkmated not by the mighty FAA — in
all its pigheaded certitude — but by a faceless, nameless insurance
underwriter with the incredible, unchallengeable power of cancellation. But
that's grist for a different mill, and a different day. Today's job is to finish what we've started — to show you the light at the
end of the tunnel, and to help you make sure it doesn't turn out to be an
oncoming train or a crew building more tunnel. Your story is straight, you
told the truth (or else you left the tape over your mouth), and you've
practiced the mind-bending contortions of "thinking like an inspector." That's
not all, though. There are a few more things you can do to help yourself out
— both before and after trouble starts. [If you haven't read the disclaimers at the beginning of Part One of this series —
or if you have forgotten what's in them — please read them
"Enforcement Survival School" is like finding yourself in Jurassic Park. I'll let you guess who the dinosaurs are.
In Jurassic Park I, a.k.a., "Enforcement Survival School, Part 1," the lawyer was devoured by "T-REX" right off the "john." At least, he left the legacy of the "Duct Tape Defense." In Jurassic Park II, a.k.a., "Enforcement Survival School, Part 2," the lawyer warned you on "How Not to Deal with FAA Inspectors!" (you know who has the teeth in this industry).
Now, just as Jurassic Park III appears at the big screen, "Enforcement Survival School, Part 3" comes to your small screen, with tips on how to preserve some golden eggs to defeat the dinosaurs.
Introduction — By Eric Jaderborg
After watching the original Jurassic Park, I resolved never again to interact with man-eating beasts larger than myself — even screen versions. I made daily exceptions, of course, in order to visit the office.
It was only after Bob Hoover won the fight to reinstate his medical (and most of us on the inside were rooting for him from behind the scenes) that I learned who really has the teeth in this industry. In the end, Gentleman Bob was checkmated not by the mighty FAA — in all its pigheaded certitude — but by a faceless, nameless insurance underwriter with the incredible, unchallengeable power of cancellation. But that's grist for a different mill, and a different day.
Today's job is to finish what we've started — to show you the light at the end of the tunnel, and to help you make sure it doesn't turn out to be an oncoming train or a crew building more tunnel. Your story is straight, you told the truth (or else you left the tape over your mouth), and you've practiced the mind-bending contortions of "thinking like an inspector." That's not all, though. There are a few more things you can do to help yourself out — both before and after trouble starts.
[If you haven't read the disclaimers at the beginning of Part One of this series — or if you have forgotten what's in them — please read them now.]
(8) Jaderborg: Do Some Homework.
Many people get in trouble with the FAA because they don't know (or claim not to know) — and don't take the time to figure out — the implications of what they're doing. We've all heard horror stories about conflicting FAA interpretations. I've witnessed some myself. It's frustrating, sometimes, and time-consuming trying to get an official answer from the government about anything. But for every person trapped in some public fight over interpretations, I'd bet there are 10 who could have saved themselves a lot of trouble by taking the time to look for an answer rather than shoot from the hip, or take someone else's word for something.
"Aviation is like a grocery store," a supervisor once told me. "There are people around who can give you a price check, or point you to the correct aisle, but mostly you're expected to know — or find out — what you need, fill your own cart, and push it to the checkout counter yourself." The price of freedom is education and personal responsibility, and nowhere is this more evident than in aviation.
It's a complex business we're in — way more complex than it needs to be. The FAA may be responsible for this complexity, and you may think it's delivering a death blow to general aviation thereby. In many cases, I'd agree with you. You may think the regulations — hell, the whole damn legal system — is out of hand, and that it's time to take up staves and pitch forks and head for Washington, D.C. But none of that matters right this minute — before you take your next flight. You are a specialist in the eyes of the law, and the more sophisticated your ratings and experience, the more of a specialist you are. What does matter right this minute is how well you understand the standards of your practice as a person with special talents, and special responsibilities. That's more than a BFR, or three takeoffs and landings every 90 days, or IFR proficiency, or any proficiency. It's taking the time to learn the nuances of rules and procedures that affect you, comprehending their meaning, and keeping up with the changes. It means participating in the rulemaking process, seeking answers on your own when there appear to be none, and understanding where the ambiguities are — the opportunities for conflict. There is no alternative to this, short of willful ignorance. And "ignorance" isn't a plea that will win you a favorable judgment.
The business of self-education has a more immediate benefit, however. Self-education is what prepares you to carry on an intelligent conversation with an aviation safety inspector on the day the telephone rings, or the letter arrives — and after. If you're convinced that whatever you've been accused of is no crime — or should be dismissed, or modified — you'll be in a much better position to convince the inspector in charge of your investigation if you are well-versed, well-spoken, and if you can resist the temptation to make your point by trying to make the inspector look like an idiot.
(8) Kolczynski: Prior Planning Prevents Poor Performance.
As a Marine I was taught the "6 Ps," but the 5 "Ps" in this title will do the job. Pilots master the task of preflight planning; therefore, prior planning should come natural when dealing with a FSDO inspector. It is necessary when an inspector starts sniffing around and asking about something you've already done.
Prior planning will pay off before you grant an interview to the inspector. If an inspector starts asking you questions about an incident or possible flight violation ask him/her: "What FARs am I suspected of violating?" or "What FARs are you concerned with?" Reread the FARs and study the wording before you grant the interview, comment, or answer questions. Review the operator's handbook when an inspector is inquiring about your aircraft operating procedures. Review the current charts when an inspector wants to know "where" you were during a certain portion of a flight that you have already completed.
Prior planning even pays off if you will hire a lawyer. When you contact a lawyer, you will save money on fees if you can provide him with all the pertinent information concerning your supposed violation. One of the first things he will do is to research all the relevant facts, and he will charge you for his work.
There are some situations where, after review and research, you become convinced that you did inadvertently commit a violation. You can save yourself both legal fees and embarrassment if you recognize the facts early and prepare yourself to accept a fair sanction.
In my experience the FAA seldom brings enforcement actions against airmen who have not committed some type of violation; however, I have seen plenty of cases where the sanctions sought were unduly severe. It may be worth retaining an attorney to evaluate your case even if you have committed a violation so that you can get his advice and help in reducing the sanction.
(9) Jaderborg: Make sure your best evidence gets preserved.
One thing you can be sure of is that the FAA is going to dedicate considerable time and resources to your investigation — especially if evidence of a violation begins to appear. As necessary, inspectors will travel, interview witnesses in person, take statements, shoot pictures, draw diagrams, collect weather and ATC data, and research applicable rules, interpretations, and sometimes even case law. Investigation of accidents, incidents, and violations is a high-priority business at the FAA, and for good reason: The law requires it. Also, evidence trails chill quickly. If an inspector is going to get to the bottom of something, it's best to begin the descent at once. No matter what anyone tells you, the agency is not — as a matter of policy — interested in creating violations where none exist. However, it is interested in finding the ones that do exist, and in determining what to do about them. If it finds stronger evidence against you than for you, it will proceed. The FAA's job is to find evidence; your job is to make sure it finds all the evidence that favors you. Although you probably can't afford to make a second career of it, you should be prepared to fill in the gaps in the FAA's coverage.
One thing you cannot be sure of is that the FAA will find all the evidence that clears you, that it will know where to look for it, or even that it will do a thorough investigation. There are three reasons for this. The first reason comes from the FAA's motive for even getting involved in an investigation. An inspector is like a police officer responding to a call. He's got to assume that something is going on, otherwise there's no reason for looking into it. He just doesn't know what it is yet — or who's responsible. He's looking for evidence that will justify proceeding further with the investigation. If he finds it, he will proceed — perhaps even make an arrest. If he doesn't find it — or if the evidence doesn't support the conclusion that a crime has taken place — he'll stop. But the investigator's eyes are focused on finding evidence, not on finding nothing. This is an important bias that can lead even an experienced investigator to see some things and not others, or to miss important details that should be there, but aren't.
The second reason is that aviation safety inspectors — just like pilots, doctors, lawyers, and police officers — come in all sizes, descriptions, and levels of talent. Some are just better investigators than others. If you're lucky, you'll be dealing with someone who's experienced, dedicated, and who isn't trying to keep 16 balls in the air all at the same time — or else, who has extraordinary juggling talent. If you're not lucky, your investigation will be handled with less-than-perfect attention by someone who is buried by competing tasks, or who just doesn't understand the situation. Also, even the best inspectors sometimes make simple, bonehead mistakes.
The third reason is that some people refuse to cooperate with an FAA investigation, either because they are angry with the agency over some personal baggage, or because they are fearful of getting involved in something that might harm a friend or colleague. The average, non-flying citizen is more than happy to assist in grounding an airplane, but the very people who can help you — your fellow airmen — often won't if they are approached by the FAA.
What you must do is make sure that any evidence that might support you gets preserved and presented. If, for example, you are accused of a violation in a situation that might be on an ATC tape, and you think there might be something on that tape that will clear you or mitigate the violation (like confused call signs, unclear or faulty directions, ATC mistakes, etc.) be sure those tapes get preserved, and that you obtain a copy. An FAA investigator should do this anyway — but what if he misses the deadline, doesn't get everything available, or fails to ask for something because he either didn't know about it, or didn't realize its importance? ATC master tapes — including voice tapes, radar tracks, and flight plan data — are recycled at each facility after just 15 days, unless pulled and set aside for an investigation. After that, the evidence is gone, along with any chance to recover something that might clear you (or condemn you, for that matter).
It's not unusual for time-critical data to be lost. Sometimes it's lost because an incident is more than 15 days old when the FSDO learns about it. But sometimes the data is goes unpreserved because no one asked for it, or because of a missed communication. I once investigated an accident involving a cargo hauler who ran out of gas. It was one of those foggy winter nights where the changing visibility hovers just around minimums, tempting hapless airmen to try "just one more." After hanging around for an hour-and-a-half shooting approaches at his destination, the pilot finally diverted to a VFR airport less than 30 minutes away. He waited too long, though, and crashed his starved airplane in a moonless tract of wheat stubble just short of the runway, walking away from the wreckage. I asked the TRACON Quality Assurance Specialist for a "full accident package," thinking I would get everything ATC had to offer. When it arrived about three weeks later, however, it included only the TRACON voice tapes and radar tracks, not the tower tapes from the airport where he was shooting the approach. That was "a different facility," you see, and I had not specifically asked for those tapes. I was furious, as much with myself as with TRACON, but any record of the pilot's conversation with the tower — including last-minute weather reports he may have received — was gone forever.
On another occasion, I looked into a nighttime near-collision on a runway at an airport with a nonfederal tower. It involved an unlighted aircraft that managed to land without attracting anyone's attention. It was nearly mowed down a few minutes later by a corporate jet. Fortunately, the runway was wide. The pilot of the "dark" airplane was feeling his way along the edge of the runway like a blind man tapping along the side of a building. Also, the jet jockeys were quick in their stirrups. I made repeated attempts to get the tower tape, but five-and-a-half years later — when I finally turned in my keys — it still hadn't shown up.
Perhaps neither of those tapes would have helped the airmen in those cases, but the point is that evidence is occasionally missed or lost in an investigation. You shouldn't rely on the FAA to gather the evidence to save you. Your attorney should be able to help you get tapes, weather data, and other official information. Anything your attorney obtains on your behalf is privileged, which means if you get it and they don't — tough luck for them. It may cost you something extra, but what is a clean record worth? Even if you did commit a violation, what would it be worth if you could provide an alternative explanation for what happened, or mitigate it in some way? Don't wait for the FAA to interview all the witnesses, either. Gather statements from potentially friendly witnesses — or have your attorney do it under the attorney-client privilege. People talk to each other in a different way than they talk to the government.
If you were accused of flying too low, for example, wouldn't it be worth the effort if you could cast doubt on someone's estimate of your altitude? If you have three witnesses who say "500 feet" and the FAA has two witnesses who say "200 feet," you might win — you might even get the FAA to withdraw — depending upon the credibility of those witnesses. In some cases, your evidence might get the FAA to drop the onerous (and insurance-busting) citation of FAR 91.13. The FSDO might issue a Warning Letter, or maybe reduce a sanction from 90 days to 30, or even 15 — to be served in the winter while your airplane is in the shop for annual. Sure, that's not a clear victory, but maybe you'd never get one, anyway. And isn't that better than spending the whole summer on the beach for lack of mitigating evidence you could have rounded up yourself?
(9) Kolczynski: Preserve The Golden Egg That May Save You.
I know of, or have heard of, many cases where an airman finally recognized that he wouldn't be able to talk the FAA out of an enforcement action. The airman then hired an attorney, who discovered that some valuable defense evidence had already been rerecorded, lost or destroyed.
The FAA may have a duty to preserve various tapes, data, and documents for a certain period of time for its own purposes. What if FAA personnel fail to follow their own rules and allow such material to be destroyed? Does this exonerate you for a violation that the FAA can prove with evidence which has not been destroyed?
Don't assume that a NTSB Administrative Law Judge is going to believe your claim that you were deprived of a meaningful defense because of the missing FAA material. Unless you can prove that FAA personnel destroyed documents, data, or tape recordings to sabotage your defense, you are not likely to avoid the penalty for the violation. This is particularly true if there was an opportunity to take practical and/or legal steps to preserve the potential evidence such as with a "Preservation of Evidence Letter," subpoena, or court order.
FAA investigators should collect evidence of mitigation and other evidence that may help the airman, if relevant to the enforcement goals of the FAA. As a practical matter, however, the only thing you can count on is that the FAA investigator will collect sufficient evidence of violations to support the enforcement recommendations in the Enforcement Investigative Report (EIR). Don't assume that the investigator will locate all of the relevant evidence in government files, or any of the defense evidence outside of the government's files, e.g., witnesses, manufacturer data, correspondence, etc.
Besides voice tape recordings, radar/transponder data, and other physical evidence, most cases turn on documentary and testimonial evidence. Lawyers usually have to establish the foundation for the admissibility of documentary evidence. So, just because you find some letter or memorandum helpful to your case, that doesn't mean it will necessarily be admitted into evidence at your hearing. The lawyer must normally establish the admissibility of such documents and overcome hearsay objections if the person who prepared or signed the document is not present at the hearing to testify. Airmen should not assume that they can establish their defense by simply collecting statements from favorable witnesses. They should advise their lawyer of the availability of favorable witnesses and allow the lawyer to capture the potential testimonial evidence in admissible form (by deposition) or line up the witnesses to testify in person.
Obtaining favorable testimony from a non-partisan witness is an art. In my experience the quality of a witness interview depends on the skill of the interrogator, and how soon after the event the witness is questioned.
If you suspect an FAA investigation but have a witness, it may be important to hire a lawyer who can immediately arrange the interview of a key witness to "statementize" him. The object is to confirm a favorable or at least, a non-harmful recollection of the facts. Although the statement itself may not be admissible, it can be very helpful to prevent a change in the recollection of the witness (potential impeachment if the witness changes his story when questioned by the FAA).
Witnesses, particularly those who hold an FAA certificate, can be easily influenced by an official FAA investigator. I'm not suggesting that FAA investigators ever abuse their power, or try to coerce a ticket-holder witness to support charges. Some people just have authority-compliant personalities. Others wonder whether through abject cooperation, they may avoid becoming the target of an investigation about their prior mistakes. I know of a couple of cases where ticket-holder witnesses had such a clear and vocal recollection of the violation that they could have won an award in the movie, "Witness For The Prosecution."
(10) Jaderborg: Consider Using Expert Testimony.
In his hit song "The Garden of Allah," — a cynical reflection on the ethics of modern urban society — Don Henley uses the voice of an "expert witness" to suggest that "there are no facts, there is no truth — just data to be manipulated." The use of "expert" testimony is sometimes controversial, even distasteful. It's not something you can do to achieve an early resolution. It's something you do after you've given up trying to persuade the FAA to your position and shifted your focus to the presiding judge. Furthermore, it's expensive. But it is something you should consider investing in if it looks like the facts of your case might be open to more than one interpretation.
When the FAA shows up in court, the inspector that takes the stand will be considered an expert. The attorney handling the agency's case will begin by establishing that inspector's credibility. There isn't much you're going to do to poke holes in that credibility without making yourself look argumentative, desperate, and mean. Unless an inspector makes an ass of him/herself on the stand, he's going to come across as credible and "disinterested" — in the legal sense of the word, i.e., absent of any personal stake in the outcome of the case. You, on the other hand, will be presumed to be "interested." In cases of conflicting testimony, a tie usually doesn't go to the person who's "interested" because it is assumed that an interested party might say anything to protect that interest. Unfair? Biased? Yup. After all, it isn't as if the FAA has no "stake" in the outcome of its case. But it's a bias you're going to have to reckon with nevertheless.
One of the best things you can do is round up somebody equally "disinterested" — someone who can take the facts and spin them in a different direction. Of course, that person will have an "interest," too — he's getting paid, after all. But for some reason that doesn't seem to make a difference — perhaps because the expert gets paid whether or not the testimony he provides affects the outcome. If the FAA can't rebut the testimony of your expert, you might win. Unlike your testimony, which the FAA will anticipate, the agency may not know what your expert is going to say — or even that you've hired one — and won't be able to prepare for it.
That's what happened a few years ago when the FAA brought a case against the crew of a Boeing 737 that accepted a clearance in actual IFR conditions for an ILS to one runway (the "right"), but set up the cockpit for the ILS to a parallel runway (the "left") on the side of the airport opposite the direction from which they were approaching (i.e., they were approaching from the far right). An FAA inspector conducting a cockpit en route inspection aboard the flight did not intervene because he was not in a position to see that the wrong frequencies had been dialed into the nav radios (the knobs on older model 737s make it next-to-impossible to read the dials on the center console from the jump seat, even if you strain to look at them). He could not see that the crew was using approach charts for the wrong runway, and was thus unaware himself of the crew's own lack of situational awareness. The aircraft broke out of the cloud base as it was crossing the median between the runways — after the flight had been handed-off to the tower. When queried by the controller about their position, they announced that they were "intercepting the localizer for the left." The controller then challenged the crew about their clearance, but since there was no traffic using the ILS to the left at the moment, and since they broke clear of the clouds more or less at the same time, he resolved the error by clearing the flight to land on the left runway. The case brought against the crew centered around whether or not they had failed to follow an ATC instruction in violation of FAR 91.123(a) by flying the wrong approach, and whether their neglect in clarifying their instructions created the potential for careless endangerment. (Legally, "potential" endangerment is as much a cause for action as "actual" endangerment.)
At the trial, the pilots acknowledged their error in setting up the cockpit for the wrong approach, but argued (through their attorney, of course) that they never really deviated from their protected airspace, and that — anyway — the tower controller's clearance to land constituted an "amendment" to their approach clearance, nullifying their error. In support of their position, they presented an expert witness who testified that, according to his calculations of speed and trajectory from the moment of last contact, the aircraft never fully intercepted the localizer to the "left" before receiving clearance to land, and thus did not technically depart from the protected airspace for the approach to the "right."
This is a point that the crewmembers could have made in their own testimony, of course. They could have done their own research and posited the same conclusion. Instead, however, they brought forth someone with verifiable qualifications who lent the matter an air of sophisticated detachment. He was "disinterested." He had been hired to research the facts and offer a professional judgment — nothing more. His testimony came as a surprise to the FAA, which wasn't prepared to mount an effective rebuttal, in part because the hard data that might have challenged the expert's testimony wasn't available. The judge made no specific determination that the crew's expert was any more credible than the government's experts, but he didn't have to — the testimony was plausible, and unrebutted, thus meeting the crew's obligation to provide an alternative explanation of the facts. The pilots went free, thanks to their expert, and the FAA declined to appeal. Now, we could argue all day about whether or not this case was correctly decided, but one thing is certain: To a crew dependent upon their certificates for a living, this expert was worth every penny he charged.
(10) Kolczynski: Expert Witnesses In FAA Enforcement Litigation.
In air-crash litigation, I almost always use expert witnesses. They are valuable to help prove causation, product defect, standard of care, etc. Expert witnesses are not only valuable for their opinions but they also develop and provide the foundation for demonstrative evidence and can help the attorney prepare the case. (See my article on AVweb, "Aviation Expert Witnesses.")
Expert witnesses are underutilized in FAA enforcement litigation. Part of the problem is that few airmen can afford two sets of professional fees — one for their lawyer and another for the expert.
There is another limitation with regard to the use of experts in enforcement cases. The Administrative Law Judges (ALJs) of the NTSB, who preside over the hearings, may not permit experts to render opinions on the ultimate question of whether the airman committed the violation. The ALJ must make that decision. However, experts may be very helpful to the airman if the defense is based on some technical or scientific issue upon which the expert can shed some light. Co-author Eric Jaderborg has provided an excellent anecdote of how proper expert opinion testimony saved the day.
Typically, in major litigation, the lawyers for the various parties routinely take the depositions of their opponent's experts before trial. Parties are required to disclose their experts and the opinions of their experts ahead of time. Thus, the lawyers usually know what the opposing expert will say before the final hearing or trial. To the extent to which the ALJs follow the Federal Rules of Civil Procedure and Evidence, as they are supposed to, the parties in an enforcement case can also obtain the disclosure of expert opinions and take expert depositions before trial. However, in the run-of-the-mill enforcement case, the parties do not spend the money on this type of preparation. Accordingly, Eric Jaderborg is correct in pointing out that if the respondent (airman) uses an expert, he may be able to surprise the FAA with the expert's opinion at the hearing.
When you think about it, the FAA will have their expert at the hearing — the FAA FSDO inspector. FSDO inspectors have varying degrees of experience and credentials, but they are generalists. One can usually find an expert with more specific expertise on the issues in dispute and thus be in a position to have a "leg up" on the FAA at the hearing.
Another tip, if FAA investigatory impropriety or FAA internal procedures become a relevant issue to the defense, a recently retired FSDO inspector may be the perfect expert to expose the wrongdoing.
"...and with his sling in his hand David went forth to meet the Philistine." - I Samuel 17:40.
In the end, how you fare in an encounter with the FAA will depend upon more than a ragged set of facts collected by an inspector, and more than the tricks your attorney can pull out of a briefcase. It will depend upon your willingness to go out and "meet the Philistine" instead of waiting for the Philistine to meet you. It will depend upon preparation, timing, truth, insight, and constructive engagement. Antoine de St. Exupéry once observed that "defeat is a thing of weariness, of incoherence, of boredom ... and above all of futility." If you can avoid these appearances of disaster, and work to give your accusers a plausible alternative, you just might avoid ruin, and come away with your dignity intact, and your certificate in your pocket.
An Afterword — Eric Jaderborg
In the reader comments following this three-part series, some important — and disturbing — points have been made regarding the effect of the appellate court decision in Garvey, FAA v. NTSB and Richard Lee Merrell, 190 F. 3rd 571, 577 (D.C. Cir. 1999), which Phil analyzed in his AVweb article, "A Dangerous New Precedent In FAA Enforcement Law." A few readers suggested that in the light of Merrell, there is nothing further to be done; that since the FAA can, in theory, cram its interpretations down the NTSB's throat, there is no point in doing anything but throwing oneself on the "mercy" of the agency and hoping for the best.
I cannot agree. And I once again choose this forum — as I did in my own article on the subject of "known icing conditions" — to emphasize the vital importance of independent judicial review of any and all legal opinions and actions, FAA or otherwise. Along with the civil liberties guaranteed under the Bill of Rights, nothing is more fundamental to a free people than the right to independent judicial review. Without it, we are slaves.
Merrell may not be the final word. It is the opinion of the Federal Appeals Court of the D.C. Circuit on a specific set of facts. While the principles the court applied to those facts are nightmarish in their implications, they are vulnerable to a review by the United States Supreme Court — if not in that case, then in some other. One reason those principles may never face such a review is that potential adversaries sometimes prefer to keep opinions like this corked in a bottle — like an UZI-wielding genie — with threats of "uncorking" made by the attorneys on one side and "damage control" being practiced by the attorneys on the other. Another reason might be the failure of those affected by the decision to pool their resources, link arms, and fight.
There is a proverb I learned within FAA circles: "If you don't want the answer, don't ask the question." Thus, the only thing worse than having Merrell upheld by the D.C. Circuit would be to have a review of it turned down by the Supreme Court — or to have it upheld in a similar case, and trumpeted throughout the land. Any attorney will tell you that a day in open court is often worse than a night in jail.
On the other hand, the robed and bespectacled judges of the court have, on occasion, been persuaded by reason. Now and then, something they decide actually resembles justice. Furthermore, it is occasionally possible to persuade legislators to take the path of reform. But it's god-awful expensive. That's why I suggested, and continue to support, the idea of an "aviation legal defense fund" — a sort of ACLU for aviation certificate holders — aimed at advancing important, factually "clean" cases to higher courts for the purpose of overturning travesties like Merrell, and upholding, or expanding, the rights of people whose lives are disrupted by administrative injustice. An ordinary legal insurance program can't touch the cost of litigating such cases. Most pilots would rather buy a new airplane than spend their life savings — without support — on a crusade that might fail.
But organizations concerned with a variety of civil rights causes have been fighting for justice in the criminal, civil, and legislative arenas for decades, with some success — albeit mixed. Isn't it time to begin the fight for administrative reform? Perhaps this is an idea whose "time is come" — at least for serious discussion. After Merrell, can you think of a better time?
An Afterword — Phil Kolczynski
Eric and I have received comments on AVweb to the effect that our articles just scare airmen, and the only ones who benefit are the lawyers. Others simply believe that it is hopeless to defend against the FAA in an enforcement case.
Should you be scared? I can tell you that the typical airman never has a serious problem with the FAA. The FAA FSDO employees are usually more helpful than threatening. As a lawyer, I have the same jaundiced perspective as a doctor; I see sick patients — clients with problems. Just as a doctor prescribes for illness, I advise for legal afflictions, and defend people who are unfairly accused, or if fairly accused, are facing unduly harsh sanctions.
If you will not commit flight violations then read these articles for amusement. If you do get in trouble then I should tell you about the emails I have received from airmen who received a Notice of Proposed Certificate Action, didn't have the benefit of guidance from people like Eric Jaderborg, and ended up never flying again when the loss could have been prevented.
It is not hopeless to defend against the FAA, even with some of the recent adverse precedents I have written about (e.g., the Merrell case). It may be hopeless to defend against the FAA if an airman tries to do so without competent defense counsel. After all, the FAA has a lawyer and will use its extensive resources to prosecute a case. If the FAA has the advantages, then it's even more important to get proper representation. Even where the FAA has a solid case against an airman, a good lawyer can often persuade or force a compromise.
Even if you didn't blow past the note at the beginning of this article to read the disclaimer associated with this series, you could be missing the first two installments of this three-part series: