August 23, 1998 Eye of Experience #5: Feds at Work

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by	Howard Fried

About the Author ... Howard Fried started flying with the Army Air Corps in WWII, where he served both as a multi-engine instructor pilot and in combat piloting B-17s. After a stint teaching sociology and on-the-air and management jobs in the radio business after the war, he turned to teaching flying again full-time. Over 40,000 general aviation hours later, he is still instructing and running his own flight school. Along the way he administered over 4,000 flight tests as a Designated Examiner until victimized by rogue FAA officials. He has authored two popular flying books aimed at student pilots and instructors, Flight Test Tips and Tales and Beyond The Checkride, and a series of audio tapes, Checkride Tips from Flying's Eye Of The Examiner.

Many of us who hold airman certificates of one kind or another spend a lifetime without ever having contact with the Flight Standards Branch of the FAA (knock on wood), but many others are not so fortunate. If you have never had the misfortune to experience an enforcement action, listen up, because it can happen at any time, and it would help you to know what to expect, if and when it does.

If you are ever involved in an incident which may or may not involve a violation on your part, you may be able to obtain partial protection by filing a report through the Aviation Safety Reporting System, an ASRS report, or as it is called in the vernacular, a NASA report. In an effort to gather information and compile statistics to help plan a safer aviation system in the United States, persons holding airman certificates (pilots and mechanics) have been granted limited immunity from sanctions, or penalties. The National Aeronautics and Space Administration has been given control of this system so it is completely separate from the FAA, the bad guys who are out to get you. The program was initiated in 1975 and has as its object the gathering of information which will help make the system safer for all of us.

It works like this: if, within ten days of the occurrence, the airperson files a report with NASA, and he or she is subsequently charged with a regulation violation by the FAA, he is immune from the penalty which would normally result from the violation. Please understand, the violation remains on the airman's record, he or she just doesn't suffer the penalty. The report is sent to NASA at Moffett Field in California, it is given a number to protect the anonymity of the reporter, and a receipt is mailed back to the reporter. This receipt serves to prove that the report was filed timely and may be used to enable the airman to escape whatever sanction the FAA might seek to impose. This immunity is severely limited by several qualifying criteria; for example, the violation must be inadvertent as opposed to deliberate.

By the bye, a summary of these reports is published monthly by NASA in newsletter form entitled Callback. It is distributed free to anyone requesting to be put on the mailing list. If you want to learn from the adventures and mistakes of others, it is well worth reading. I urge you to get on the mailing list for Callback and spend the few minutes each month reading and analyzing summaries.

Letter of Investigation

If, on the other hand, you inadvertently violate a regulation and should be unaware of having done so, the first indication you get that all is not well is the LOI or Letter of Investigation. It comes by way of registered mail, and it is the aviator's invitation to hang him or herself! The LOI is cleverly worded so as to appear to require an answer, but it is not mandatory that an answer be offered. It goes like this (paraphrasing):

It has come to the attention of this office that a violation of...(section number)...of the Federal Aviation Regulations may have occurred on...(date)...at...(location) and we have reason to believe you may have been involved. We would appreciate receiving any evidence or statements you might care to make regarding this matter. Any discussion or written statements made by you will be given consideration in our investigation. You have ten days to respond to this letter of investigation or we will be forced to proceed without benefit of your side of the story.

Sounds like you'd better rush right out and reply before the ten days runs out, doesn't it? Not so! You are under no compulsion to do so, and many knowledgeable aviation attorneys advise airpersons not to answer at all. I believe this is a mistake. The first step you should take after receiving a LOI is to retain the services of a knowledgeable aviation attorney. Then ask your lawyer to answer the LOI, but say nothing. Nobody likes to be ignored, so the thing to do is to address the investigating inspector by name and say, "Thank you for giving me (or my client) the opportunity to respond, but I do not wish to make a statement at this time."

Of course, if you were in Europe at the time of the alleged violation and it occurred in Ohio, you should answer the LOI with a statement to that effect, but only if you can definitely prove you could not have been involved. Or, if the LOI specifies the tail number of your airplane and it was in pieces on the maintenance hangar floor being worked on at the time of the alleged violation, you should say so. Once again, however, only if you have clear proof that your airplane could not have been involved. Otherwise, say nothing!

Administrative Action

Since this is an administrative civil action, the courts have ruled that although there is no warning to that effect, there is no Fifth Amendment protection against self-incrimination and anything you say can and will be used against you in any subsequent action, resulting in the suspension, or worse, the revocation of your certificate.

Depending on which form of the LOI you receive, it may suggest the possibility of remedial training in lieu of certificate action. Again, this sounds good, and in many cases it can be, but also, again there are severe limitations imposed on the use of this technique.

Beware! Unless you meet certain very specific criteria, you won't be eligible for remedial training, and if you spill your guts and it turns out you are not eligible for this alternative to certificate action, whatever you say can, and no doubt will, be used to convict you of the violation, and certificate action will surely result. And, the LOI, even the one that mentions remedial training, does not tell you just what requirements you must meet to be eligible.

These requirements are:

1. The violation must be inadvertent rather than deliberate.
2. It must not be in a commercial operation as opposed to personal pleasure or business.
3. It should, but does not have to be a first offense.
4. You can't have previously benefited from remedial training in lieu of certificate action on an earlier offense.
5. No accident or injury resulted from the violation.
6. You display a cooperative attitude as determined by the friendly feds. (highly subjective)

If any one or more of these conditions do not exist, you will not be eligible for remedial training. If you say anything at all, you will only find yourself in deeper trouble. So, once again it is best to say nothing, particularly nothing that can be used against you, because if you do, you surely will be hit with it in whatever action the FAA decides to take against you.

If, on the other hand, you qualify for remedial training and the investigating inspector opts to go that way, the matter is turned over to the Safety Program Manager at the FSDO where the offense took place and he prepares a specific course of training related to the offense. If the event didn't happen in your own district, the matter is forwarded to your local FSDO for processing and an instructor is given the syllabus for your training.

Certificate Action

However, if you are not eligible for remedial training or the investigating inspector decides not to go that route, the process continues with another registered letter stating the result of the investigation and informing you that a finding of violation has been made. This letter is entitled NOTICE OF PROPOSED CERTIFICATE ACTION. It cites the specific regulation or regulations which are alleged to have been violated and the specific actions which constituted the violations, along with the date and location of the occurrence.

The next step in the violation process after the airperson receives the LOI and either answers or doesn't answer is almost certain to be this NOTICE OF PROPOSED CERTIFICATE ACTION which states the penalty the FAA intends to impose. It concludes by offering the airperson five choices. (Just check the appropriate box and return the letter to the Office of the Regional Counsel.) Sure you will!

This letter says:

In reply to your Notice of Proposed Certificate Action...I elect to proceed as indicated below:

1. I hereby transmit my certificate with the understanding that an Order will be issued as proposed effective the date of mailing of this reply.
2. I request that an order be issued so that I may appeal directly to the National Transportation Safety Board.
3. I hereby submit my answer to your Notice and request that my answer and any information attached thereto be considered in connection with the allegations set forth in your Notice.
4. I hereby request to discuss this matter informally with an attorney at the Office of the Regional Counsel...
5. I hereby submit evidence of the timely filing of an Aviation Safety Report with NASA concerning the incident set forth in the Notice of Proposed Certificate Action and hereby claim entitlement to waiver of any penalty.

Almost nobody checks the first box and surrenders his or her certificate. The majority of airmen opt for choice number four, although many lawyers advise their airman clients to skip this step and go directly the NTSB by selecting choice number two, which results in a hearing before an NTSB Administrative Law Judge (ALJ).

Informal Hearing

However, if choice number four is selected, the next step in the process after the alleged violator receives the Notice of Proposed Certificate Action is likely to be what is called an informal hearing since this is what most airpersons and aviation attorneys request. What this really is, is a meeting with the investigating inspector from the FSDO, an associate counsel (lawyer) from the Regional Office of the FAA, and the alleged violator, who may or may not be accompanied by an attorney. Per our previous discussion of the LOI, the airperson should certainly have his lawyer with him. Don't even think of attending alone.

It is at this point that the gloves come off, and all pretense of cooperation on the part of the FAA goes out the window and a purely adversarial situation arises. The FAA attorney plays both prosecutor and judge. The investigating Aviation Safety Inspector plays witness for the prosecution, and the airperson plays victim. In many cases the FAA attorney (from the Office of the Associate General Counsel, formerly the Office of the Regional Counsel) has no authority to do anything but inform the alleged violator as to what sanction (penalty) will be imposed. In these cases, literally anyone capable of acting as a messenger could convey the proposed penalty to the airman and his/her attorney. They don't need a high-priced government lawyer for this. In other cases the FAA attorney may be in a position to compromise the penalty and the airman may wind up with a lesser sanction than was originally demanded by the Friendly Feds.

After a full discussion of all the facts surrounding the alleged violation, the FAA attorney may close the matter with a finding of no violation (extremely unlikely), modify the sanction by, for example, knocking down a proposed sixty day suspension of the airman's certificate to thirty days (very unlikely), or affirm the sanction as proposed. He (or she) may also drop one or more of the charges, charges that were thrown in as bargaining chips for just this occasion, designed to make the airperson think the FAA is being reasonable, when in point of fact they never intended these charges to stick in the first place.

Whatever the outcome of this informal meeting, the airman may appeal to the NTSB, just as if he had chosen option number two in the Notice of Proposed Certificate Action. At this point a formal hearing before an ALJ (Administrative Law Judge) is scheduled. It is not actually scheduled in terms of a specific date, but it is put on the agenda. Sometime in the future (usually quite a long time) a date for the hearing is set. At this hearing sworn testimony is taken, and a record is made (court reporter and all). From this point on the process becomes very formalized.

NTSB Administrative Law Judge

Following the preliminaries, the Letter of Investigation, the Notice of Proposed Certificate Action, and the informal hearing or meeting, the next step in processing an alleged violation of the regulations is a formal hearing before a National Transportation Safety Board Administrative Law Judge (ALJ). Often this step follows the Notice of Proposed Certificate Action without an intervening informal hearing (meeting) with an FAA attorney from the regional office.

Many lawyers who make a practice of representing clients accused of violating the regulations feel that the informal hearing is a waste of time and check choice number two on the Notice of Proposed Certificate Action. They go directly to a hearing before a NTSB ALJ. There is always quite a long wait for this hearing (usually several months) and throughout this period the airman keeps his certificate and continues to exercise its privileges. The ALJ, in addition to hearing other transportation type cases, is responsible for covering a great many District Offices of the FAA, and he can only get around to each of them infrequently. When he does come into a district, he hears several violation cases during the few days he spends there. There is an exception to this. When the FAA exercises its emergency revocation authority, the wait for a hearing is quite brief, but that's another story.

No Constitutional Protections

At this point the proceedings become quite formal. The Associate General Counsel who had conducted the informal hearing, if there was one, acts as prosecutor, and although other witnesses may be called, the Aviation Safety Inspector from the District Office who conducted the investigation and gathered the facts surrounding the incident is the main witness for the prosecution. (In the case of an airspace violation the Air Traffic Control person involved will be called to testify.) A court reporter is present and makes a record of the testimony. Both parties (the Government and the alleged violator) have subpoena power to compel the presence of witnesses. This hearing has all the trappings of a criminal trial, except the accused has none of the constitutional protections of a criminal defendant. You should also know that by this time the procedure will become quite expensive, what with attorney fees, and other costs, including transportation, bringing in your witnesses, etc., plus the time off work that it takes to defend oneself.

The ALJ, who is employed by the National Transportation Safety Board, and who hears all kinds of transportation cases from railroad matters to highway situations as well as aviation cases, listens carefully to all the testimony before rendering a decision, which may or may not affirm the finding of the FAA. He may, and sometimes does, find that either no violation occurred or that the FAA failed to prove its case and the alleged violator is off the hook entirely. You should also know that whatever violation or violations appear to have occurred, the dear old FAA invariably throws in a few more charges to be used as bargaining chips in negotiating with the alleged violator and/or his lawyer.

Frequently, even though the ALJ finds that a violation did indeed occur, and the accused is indeed guilty of having committed the violation, if there are mitigating circumstances, the ALJ will modify the penalty sought by the FAA (knock a sixty day suspension down to thirty days, for example). ALJs seem to be particularly sensitive to airmen who earn their living as aviators. If the airperson is a professional pilot or mechanic, the ALJ will frequently look for an excuse to avoid depriving him/her of his/her livelihood for any longer than absolutely necessary.

This factor of taking mitigating circumstances into account is almost never applied by the FAA itself, even back at the informal stage. They almost always go for the most severe penalty they can. It is this implacable attitude on the part of the FAA which has caused the users of the system, people who hold airman certificates, to distrust the agency. The adversarial position which has grown up between the agency and the people with whom it is supposed to work is a direct result of the attitude of many of the agency's employees.

Both Sides Can Appeal

Regardless of the outcome of the NTSB ALJ hearing, both sides have the right of appeal to the full National Transportation Safety Board. If the ALJ finds that the accused did indeed commit a violation, but reduces the penalty the FAA is seeking to impose, and the agency feels that the reduction is unjustified, it will likely appeal to the Board itself in an attempt to get the penalty increased. If, on the other hand the airperson is found to have been guilty of having committed the alleged violation or violations and he or she believes that an error of law has occurred, he/she may appeal to the Board.

If an airperson has the financial ability and believes strongly enough in his/her cause an appeal may be taken from the decision of an NTSB Administrative Law Judge. And, if such an appeal is filed, after a wait of several months another formal hearing takes place. This time the whole Board sits in judgment on the matter. The Board may affirm, reverse, or modify the decision of the Administrative Law Judge, and all three results are not uncommon.

This appeal is based primarily on the record made at the NTSB ALJ hearing, but oral argument is usually heard. This hearing is the final step in the administrative law process. Unless constitutional issues are involved, in which case the matter can be moved into the federal law courts, the NTSB hearing is the end of the road. There are no more appeals, and both sides must accept this final judgment. The violation adjudication process is over. Throughout this entire process, which may last well over a year, the airperson continues to exercise the privileges of his/her certificate unless the FAA utilizes the single exception to this.

Emergency Revocation

I am, of course, referring to the power granted to the FAA to take immediate action to revoke the certificate of a suspected violator without a hearing of any kind, if there is an urgent safety reason to do so.

Whereas, as I explained, throughout the normal process of dealing with violations, the victim gets to keep his or her certificate and may continue to exercise the privileges of that certificate, when the FAA exercises its power of emergency revocation the airperson is effectively grounded, and as a result he or she is entitled to an immediate hearing before the NTSB so that if no violation is found, the airperson's certificate can be restored without undue delay. At least, that's how it's supposed to work.

The law requires that there be an imminent danger to public safety if the airperson should be allowed to continue to exercise his/her privileges during the pendency of the administrative process. The problem here is that the agency will, in its arrogance, abuse this emergency revocation authority. They will frequently yank a certificate when there is no imminent threat to safety. This unwarranted action on the part of the FAA is likely to make the NTSB unhappy, for the board, undermanned and understaffed as it is, must adjust its extremely busy schedule to drop its routine matters to hear the emergency case. The board has consistently urged the agency to use discretion in the exercise of its emergency authority, and the agency has just as consistently ignored the board in its zeal to go after anyone it suspects of being in violation of its regulations.

Blatant Abuses of Power

One of the most blatant abuses of power at the hands of the FAA has been with the emergency revocation power. The exercise of this technique was designed to prevent the continuation of an unsafe condition or activity, but the agency hasn't hesitated to use it in cases where no emergency whatever existed, almost to the extent that it has become routine. Fortunately for the aviation community, an airman who has had his certificate revoked under the emergency authority where no emergency exists, if he or she is willing to fight the revocation in the courts, can prevail, and even recoup the costs of the fight. And, those who have had certificates revoked without a valid emergency justification frequently prevail.

Until the case of Daryl R. Frank et al v. James B. Busey, FAA Administrator, case No. 91-1469 (United States Court of Appeals for the District of Columbia, October, 1991), the courts had been most reluctant to impose any limits on the discretionary powers of the agency. However, in that case the court determined that since the alleged violations had occurred some eighteen months previously and the investigation had been ongoing for that length of time, there was no immediate danger to safety that would require the emergency revocation of the five pilot certificates in question.

We must bear in mind, however, that this decision, the Frank decision, has not prevented the agency from continuing to abuse its emergency power to revoke the certificates of airmen when no real emergency exists. It simply means that each case must be fought individually, and if no genuine emergency involving safety can be demonstrated by the FAA, the airman is likely to prevail. This stubborn refusal of the FAA to relinquish any of the power it has assumed unto itself (without any justification whatever) has forced each individual airperson to fight for his/her rights on an individual basis each and every time, up against the might of the U.S. government.

Of course, if and when the airperson prevails, as he or she well may, he/she can recover the costs of the battle under the Equal Access to Justice Act. This is just about the only way in which the agency can be held accountable for the actions of its employees. However this can be a long and involved process that many simply cannot afford nor may they have the time and energy to dedicate to such a fight.

Because of the way in which the Agency has consistently abused its power of emergency revocation and the tremendous amount of adverse publicity resulting from the treatment of R. A. (Bob) Hoover at the hands of the FAA, Senator James Inhofe of Oklahoma has introduced the so-called Hoover Bill which is designed to force the FAA to demonstrate the urgent need to imposed the emergency revocation power. Acknowledging the definite need for the existence of this power in legitimate cases, if passed, the bill would give the airperson 48 hours to demand that the FAA prove the nature of the actual emergency in order to exercise that extraordinary power.

NOTE: AVweb has covered the progrss of this bill in recent NewsWires.

In most cases, someone else has already gained the experience you need the hard way—keep an eye out!