July 6, 1997 Protecting Yourself Against FAA Enforcement Actions

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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

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 appellate rights.
• 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 Enforcement Action.

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.

Tip #1:
Recognize when you are a "suspect" of an FAA Enforcement Action.

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:

1. The FAA sends an airman or an aviation business a "Letter of Investigation" with a request to submit comments.
2. Upon landing, ATC asks you to "call the tower" by telephone to answer a few questions.
3. 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.
4. 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 aircraft.
5. 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 investigator).

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 certificate violation?

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 for caution.

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 aviation lawyer.

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 official:

• 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.

Tip #2:
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 dismissal.

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?

Tip #3:
Submit a NASA ASRS report immediately after any incident or mistake.

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 http://olias.arc.nasa.gov/asrs/Forms.html. There is also a FAQ and an ASRS tracking form available on my web site at http://www.aviationlawcorp.com/asrsform.html.

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 aircraft damage)
• FAA confirmed violations within the last five years
• Incidents revealing a lack of competency or qualifications to hold a certificate

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:

The ASRS form is not only applicable to pilots, but is also available for mechanics, dispatchers, flight attendants, air traffic controllers and other aviation professionals.

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.

Conclusion

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.