If the FAA comes after you, how you handle yourself during the early stages (before you've had time to consult with an aviation attorney) can spell the difference between keeping and losing your certificate — or your job. In this article, a practicing aviation attorney (who once was an FAA lawyer himself) offers three invaluable tips that could save your ticket.
July 6, 1997
|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
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
If you hold an FAA certificate — no matter whether you
are an airman or an aviation business — it is important to realize that the FAA
considers your certificate a privilege. If you commit an infraction that
endangers safety, the FAA may revoke this privilege, suspend your certificate,
or assess penalties, even if no one is hurt.
Enforcement Actions come in two flavors:
- Legal Enforcement Actions by the FAA can take the form of
revocation, suspension, or monetary penalties which will remain on your record
for five years. With Legal Enforcement Actions, airmen have extensive
- Administrative Enforcement Actions may take the form of a Letter of
Correction or a Warning Notice which can stay on your record for two years.
With Administrative Enforcement Actions, airmen have no appeal rights.
Any FAA Enforcement Action can damage your reputation and adversely affect
your career or business.
An aviation lawyer may be able to prevent a flight violation from destroying
your career or causing you to suffer undue penalties. Unfortunately, in many
incidents, the airman or business involved makes mistakes early on which hamper
the ability of an aviation lawyer to successfully defend against an FAA
The purpose of this article is to provide you with a little preventative
legal medicine, and to give you a "heads up" about some of the issues that can
create traps for the unwary.
Recognize when you are a "suspect" of an FAA Enforcement
The following examples illustrate ways in which you can become involved in a
potential FAA Enforcement Action. Some are obvious, some are not so apparent:
- The FAA sends an airman or an aviation business a "Letter of
Investigation" with a request to submit comments.
- Upon landing, ATC asks you to "call the tower" by telephone to answer a
- During a routine inspection of your aviation business, the FAA Inspector
requests more than paperwork...such as explanations of previous flight
operations or repair work.
- An air traffic controller calls you up in flight, but does not offer
instructions, advisories or clearance; instead, the controller has questions
about earlier flight activity involving airspace, altitude or other
- A "person" approaches a pilot or mechanic in the vicinity of a hangar or
ramp and asks numerous inquiries about a prior flight or the
condition of an aircraft.
What do these inquiries have in common?
- Each one calls upon you to give some verbal statement that bears on
your responsibilities as an airman or business working under an FAA
certificate. (The FAA Prosecutor will call these "admissions.")
- Each one deals with some occurrence in the past, either a matter of
hours or longer, concerning which an FAA employee has revealed unusual
curiosity. (Your friendly FAA FSDO representative is now a police
Unfortunately, most of us have a natural inclination to provide quick and
complete answers to such inquiries. We take pride in what we do and feel we have
nothing to hide. Control this tendency! In situations like those
enumerated above, airmen frequently and unwittingly make damaging admissions
which can be used against them in a FAA enforcement proceeding.
An immediate response is not required, nor is it usually prudent.
Before saying anything, you should first find out why the inquiries are
being made. Are you or your business being investigated on suspicion of a
Don't get me wrong. It is necessary to cooperate with the FAA to promote
aviation. All of us who fly or do business with the FAA understand the need to
display a cooperative attitude in order to avoid excessive FAA interference.
On the other hand, in each of the circumstances cited above, the FAA is not
inquiring about ways to make your flying safer in the future, nor trying
to insure that you or your business will comply with FAA rules. The FAA
is focusing on past conduct and this is what should alert you to the need
There is rarely a circumstance which requires an immediate verbal response to
an FAA inquiry. Indeed, without a subpoena, the FAA does not have the power to
force you to say anything. Therefore, it would be prudent to postpone any
interview, phone call or other response until you have had an opportunity to sit
down and reflect on what happened, check data, and possibly consult with an
If you are airborne, try to put off the discussion until after you have
landed. When you talk to the FAA person involved, try to ask questions rather
than give answers. Never misstate or misrepresent any fact. Do not speculate or
offer opinions. Make it clear that you want to cooperate, but that first you
want to understand all the reasons for the inquiry. If you are uncertain as
to whether you can answer without risk, then do not answer. Promise to be
back in touch with the FAA person as soon as possible, but retain an aviation
lawyer before you do.
Now, there are certain things you may be required to do without delay upon
presentation of the proper identification by an FAA, NTSB or law enforcement
- Display your FAA certificate.
- Show your current medical certificate.
- Present your airworthiness certificate.
- Allow a review of your logbooks if you have them with you.
(Generally, you are not required to have them with you, and it's a good idea
not to have them.)
- Allow an FAA inspection of your aircraft if you operate a
FAA-certificated commercial aviation business (e.g., Part 135, Part 121).
Non-commercial (Part 91) operators normally do not have to grant access
to their aircraft upon a mere verbal request.
- Permit an FAA inspection of aviation records if you are running a
commercial aviation business under the authority of an FAA certificate.
If any FAA, NTSB or law enforcement officer demands more from you verbally,
politely refuse, until you have had an opportunity to check with an aviation
lawyer. On the other hand, if an FAA, NTSB, law enforcement officer, or
government official presents you with a subpoena or a search warrant, you may
have to comply immediately and allow an inspection of records, equipment,
aircraft, and premises.
Never physically obstruct a properly credentialed official. However, it is
critical to contact an aviation lawyer as soon as possible in circumstances like
this. The lawyer can insure that:
- The subpoena or search warrant was properly issued.
- The search does not exceed the scope of authority contained in the
subpoena or search warrant.
- Original records needed to properly run a business or validate an airman's
right to operate are not surrendered or taken without proper authority.
- Collateral and incriminating evidence are not developed.
The purpose of these recommendations is not to impede the FAA's authority to
regulate aviation. However, the careers and success of airman and business are
at stake whenever the FAA investigates a possible violation. FAA
certificateholders are entitled to due process and have rights under the law. Do
not squander your rights by precipitous actions without advice of counsel.
Don't attend an FAA "informal conference" without a lawyer.
Suppose the FAA sends you a "Notice of Proposed Certificate Action" or a
"Notice of Civil Penalty Action" along with an invitation to attend an "Informal
Conference." You decide to save money and attend without an aviation lawyer.
The FAA will offer an opportunity to request an Informal Conference in
connection with the issuance of a Notice of Proposed Certificate Action or in
the case of aviation businesses, an Notice of Proposed Civil Penalty Action.
Before such a notice is issued, the FAA has already conducted an enforcement
investigation. The FAA has also prepared an Enforcement Investigative Report
which has ruled out the possibility of offering remedial training or
administrative action in the form of a Letter of Correction or Warning.
Thus, if you receive the "Notice," you are facing a legal action. The
word "informal" is somewhat deceiving. If you attend an "informal" conference
without a lawyer, you will be facing an FAA Prosecutor and a FSDO Investigator
(in his "police" role) or Flight Standards Supervisor from the regional
headquarters (a "Police Chief"). They have already decided to prosecute you. Do
you think you can talk them out of it?
An Informal Conference can be a valuable procedure and, on some occasions,
has resulted in the FAA in agreeing to dismiss all charges. But because the
airman is at a serious disadvantage without an attorney (the FAA will
have their attorney!), harmful admissions are sometimes made at Informal
Conferences. For example, if you make inconsistent statements during the
Informal Conference, these can be used against you in the later Enforcement
Hearing. Moreover, if the FAA learns of additional violations and can
independently corroborate them, or if they conclude that you lack competency to
hold your certificate, then even more stringent action might be taken as a
result of the Informal Conference.
Now suppose you do engage an attorney. A diligent aviation lawyer will obtain
a copy of the Enforcement Investigative Report (EIR) prior to the Informal
Conference. This report will contain the enclosures which form the evidentiary
basis for the FAA's action against you. Thus, the prosecutor's evidence can be
examined before the Informal Conference and a strategy devised on how to
approach the FAA. The Informal Conference may be a good opportunity to advise
the FAA of new or additional facts which may cause the FAA to reduce or dismiss
the charges. However, this cannot be done until a thorough independent
investigation is conducted by your attorney. Even if you believe you have a good
case, it is often unwise to bare your soul and disclose all favorable evidence
at the Informal Conference if a dismissal is unlikely. You may well be better
off surprising the prosecutor with favorable evidence at the Enforcement Hearing
in order to win the case.
A little insight: the FAA attorney is an employee of the FAA, but his
relationship with the FSDO Inspector is similar to that of an attorney and
client. The FAA lawyer will have trouble trying to dismiss the case or reduce
the sanction unless his client (the Flight Standards Representative) agrees. In
this regard, it is important that you display a compliance-oriented attitude and
be thoroughly familiar with the relevant FARs. You must not reveal a lack of
competency or qualifications to hold your certificate if you want to persuade
the Flight Standards Representative to approve a reduced sanction or a
The FAA currently offers the opportunity of conducting the Informal
Conference by telephone; however, this is usually not an effective option if the
objective is to persuade the FAA to drop the case. Informal Conferences can be a
useful forum for personally negotiating the settlement of an Enforcement Action.
A good aviation attorney skilled in settlement negotiation techniques can be
extremely valuable in such a conference.
Some airman are reluctant to involve an attorney in the Informal Conference
because of the cost involved, particularly if they must travel to a city where
the FAA regional office is located. When making a cost benefit analysis of
whether to involve an attorney upon receipt of the "Notice," consider whether
some of the following points apply to you:
- Will a revocation or suspension on your record irrevocably damage your
professional aviation career?
- Can a revocation or suspension cause a substantial loss of income?
- Even if your certificate is not revoked, will a suspension that grounds
you cause your employer to let you go?
- If you did not violate the regulations and are not a commercial pilot,
will you accept the FAA sanction? Can you afford to pay for a legal defense to
vindicate your reputation?
Submit a NASA ASRS report immediately after any incident or
If you have inadvertently violated the FAR's and created an unsafe
condition by mistake, or you think that someone else believes you committed a
violation, file a NASA Aviation Safety Reporting System (ASRS) form so that you
will have sanction immunity. The FAA can still bring an FAA Enforcement Action
against you, and an entry will be made in your airman records if the FAA is
successful...but you will not have to suffer the sanction (such as
certificate suspension, revocation or fine). In some circumstances, avoiding the
sanction can save your job.
By law, the NASA ASRS office must treat your ASRS report in strictest
confidence. It is not made available to the FAA or anyone outside NASA without
having first been "de-identified" so that it cannot be traced back to you or
your aircraft. The purpose of the program is to identify safety problems in the
air traffic system so that improvements can be made. You may make a contribution
to safety by submitting this form. The law that established the ASRS program
provided for confidentiality and sanction immunity in order to provide an
incentive for airmen to report unsafe conditions and incidents fully and without
reservation. Be sure you take advantage of it.
In order to benefit from the sanction immunity, you must mail the
completed form to NASA within ten days after the incident. If the FAA brings
an enforcement proceeding, you have the burden of proving to the FAA that you
mailed the form to NASA within ten days of the incident. Normally, NASA will
return a verification stub with a date/time stamp which can be used as proof of
submission. But if the form doesn't get to NASA and if you do not receive a
date/time stamped verification stub within ten days, you will have no way of
knowing whether or not you're covered. Do not trust ordinary mail! Send
the form by U.S. Certified Mail with Return Receipt Requested. Thus, you
will have proof that you submitted the form within ten days.
Do you carry an ASRS reporting form in your flight bag? Wise pilots carry
several! You can get them at any FAA facility, from AOPA, or download the form
direct from the ASRS web site at
There is also a FAQ and an ASRS tracking form available on my web site at
Keep in mind that the sanction immunity obtained by filing the NASA ASRS
report is not available in the following circumstances:
- Deliberate actions constituting a flight violation
- Criminal activity
- Aviation accidents (involving deaths, serious injury or substantial
- FAA confirmed violations within the last five years
- Incidents revealing a lack of competency or qualifications to hold a
Take this list of exceptions seriously. Retain an attorney, if you have any
doubt. Do not file an ASRS form if you are involved in an accident or criminal
activity without first consulting with an appropriate attorney, because the
confidentiality provisions may not apply. In fact, if you file the form after an
accident or criminal conduct, it may be used as evidence against you. Note the
first line of the ASRS reporting form:
"DO NOT REPORT AIRCRAFT ACCIDENTS AND CRIMINAL
ACTIVITIES ON THIS FORM."
The ASRS form is not only applicable to pilots, but is also available for
mechanics, dispatchers, flight attendants, air traffic controllers and other
If more than one person is involved in an incident, each should file their
own ASRS form. (E.g., an ASRS report filed by the captain does not immunize the
first officer.) Moreover, the certificate-holding business which employed the
person involved (such as a corporation or partnership) should also file an ASRS
form to protect its certificate.
Most aviators are very safety conscious, but all of us make mistakes from
time to time. The question is: what penalty should we pay if no one is hurt by
our mistake. You have legal options to protect yourself...employ them early on,
together with a strong dose of common sense, and you'll protect your reputation
as well as your career.