The Pilot's Lounge #86: Oh %$#@! -- I Think I Just Busted A Reg

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Oops, now you've done it. You didn't mean to but you got distracted and then ... So now what? AVweb's Rick Durden, a practicing aviation attorney, has lots of suggestions for how to work with the FAA and, hopefully, make it much less of an issue.

The Pilot's Lounge

From time to time, we who frequent the Pilot's Lounge here at the virtual airport put on an evening seminar in which presentations are given on topics of interest to us. Attendance varies, but is usually large enough to fill most of the chairs we borrow from the You Stab 'Em, We Slab 'Em Funeral Home just down the road, even if we do ignore Old Hack's imprecations to have a keg of beer on hand to improve turnout. There are those who say that the pilots who could really use the seminars are the ones who never attend, and there could be something to that claim. There is evidence that the accident rate among pilots who stay current in the FAA "Wings" programs of safety seminars and dual instruction is far lower than the general aviation community at large.

Nevertheless, not too long ago one of the instructors had a brief episode of brain fade and attracted the attention of the FAA in a way that he had wished to avoid. As a result of his close encounter with the first stages of the FAA's enforcement system he became extremely motivated to do a lot of homework on FAA enforcement. Not wanting all that research to go to waste, we convinced him to give a talk at one of our evening seminars. Paraphrasing Winston Churchill, there's nothing like being shot at to focus one's attention; so having dodged a bullet, our CFI had some personal observations to add to what might have been a dry presentation. I thought he did a good job; so, with his permission, I'm going to recount it here.

Small-Town CFI In the Big Class B

Our protagonist, I'll call him Sam, was on an extended cross-country with a student. They had landed at a major airport that was the reason for Class B airspace. They had a good time at their destination despite not winning enough at the tables to allow them to purchase a more expensive chariot for their flight home. On departure, Sam was handling the radios as his student flew the airplane. Things went smoothly with departure control, and eventually they exited the side of the Class B airspace about midway up. The controller then sent them on their way, figuratively patting them on the head and returning them to their own devices with the ubiquitous, "Radar service terminated, frequency change approved." Sam suggested that the student climb toward the VFR altitude they intended to use for cruise. You guessed it: They climbed right back into the overhanging portion of Class B airspace without a clearance. (As we all know, per the FARs, you cannot exit Class B airspace and then re-enter it without a clearance.) When the departure controller called to see if they were still on the frequency, Sam felt that horrible, massive adrenalin surge we all get when we realize we've well and truly stepped in it. Once Sam acknowledged the radio call, the controller pointed out the error of Sam's ways. Sam promptly took the airplane and with a heartfelt "Aw, %$#@!," floated his student off the seat as he expedited his second departure from Class B airspace.

Fortunately, no airplane in the Class B airspace had to be diverted due to Sam's slip up, so the incident was minor. Sam was smart enough to file an ASRS report to NASA so that, should the FAA issue a violation, Sam would not have to suffer a sanction, whether it be a certificate action or payment of a civil penalty.

FAA Inquiry

About two months afterward, Sam got a letter from an FAA Inspector saying she was inquiring into the situation and offering Sam 10 days to get back to her with his explanation of the events. Sam chose to write back, admitting his error, expressing contrition and concern over what he had done, as well as his willingness to cooperate and further stating that he wanted to learn from the situation so that he would not make such a mistake in the future. Having heard about the FAA's excellent remedial training program (The Pilot's Lounge, June 1999), Sam followed up his letter with a call to the inspector. He'd met an FAA inspector some time earlier at a social function and recalled the inspector's comments about being so frustrated with the number of pilots who lied to him during investigations. As a result, Sam laid things on the table when he made his phone call, actually surprising the inspector because he didn't try to bob and weave or blame things on someone else.

Several days later, the FAA inspector called Sam and said she wanted to issue a "Warning Notice" regarding the incident, thus letting it drop without proceeding to a violation action against our hero. Sam was extremely relieved because he hopes for an airline job someday (gawd knows why) and he did not want a violation on his record. During his homework into enforcement actions he'd learned that a Warning Notice would only remain in his FAA Airman's file for two years, then it would be expunged. Because a Warning Notice is an administrative action, not a formal finding of a violation, the result makes a big difference for Sam on job and insurance applications in future.

The resolution of Sam's transgression was a big relief to us here in the Lounge, for he's a good guy and he simply made a mistake. He's a small-town boy who was at an unfamiliar, very busy airport, with a lot happening to distract him. (And I can't help but think that his mind might have been on some of the sights of the city he was departing). I did mention to him that with all the airspace concerns in contemporary aviation, including TFRs, it's a heck of a good idea to file IFR when traveling, especially in an area with which we aren't familiar.

Sam took the time to walk us through how a violation action works within the FAA and had some suggestions for pilots who may find themselves on the receiving end of the FAA's Big Stick. While he talked about pilots, most everything he said also applies to actions against A&P maintenance technicians.

Investigation

Should a pilot do something in violation of the regulations in such a way that he or she manages to attract the interest of the FAA, the pilot ordinarily learns about it via a registered letter from a FSDO (investigations usually take place at the FSDO level). The letter says that an inspector has identified an event by date, time and aircraft and says that the pilot may have been involved and the FAA is looking into the occurrence. The pilot is invited to respond with his or her side of things within 10 days. It closes with an ominous warning that, should the pilot not respond, the FAA will have to conclude its investigation without the benefit of the pilot's wisdom.

Pilots generally spill their guts in the responsive letter to the FAA and only later chat with a lawyer. By that time, even if the pilot is completely innocent, the damage may well have been done. A certain percentage of pilots will manage to admit, deny, confess and generally obfuscate matters while blaming someone else and then close with, "I've never had a violation and I'll never do it again." Sam strongly recommended talking to a lawyer before responding to the FAA. He said he'd found a lawyer by calling AOPA's legal services and getting the names of some attorneys in his area that did aviation work. (He wasn't a member of the plan and couldn't get the free representation offered through the plan, but he has since signed up for it).

As the investigation proceeds, the FAA has the choice of dropping it altogether (which does happen, believe it or not), closing it with an "administrative disposition," which can be either a "Warning Notice" or a "Letter of Correction," or deciding there is a violation that needs punishing and sending it on to the FAA lawyers for an enforcement action. As to the Warning Notice and Letter of Correction, there are minor technical differences between them; suffice to say they are a heck of lot better than receiving a finding of a violation. They remain in your airman file in Oklahoma City for two years and are removed. Also at the FSDO level, the FAA can decide that the pilot's action was in violation of the FARs, but that the pilot honestly erred and would benefit from remedial training. Should the pilot agree and then perform the training assigned, a Letter of Correction is issued and everyone goes on his or her merry way.

If the worst happens and the FSDO decides there is a violation that requires sanction, it forwards its file, with sanction recommendation, to the attorneys at the regional level. The "Regional Counsel's" office looks it over, and if the lawyers there agree, they are the ones who proceed against the pilot.

Enforcement

The pilot learns of such a development when he or she gets a subsequent registered letter. It doesn't work to ignore it; the FAA has procedures for pilots who try to dodge registered mail and they can get real ugly, including some hefty civil penalties -- read: Big Fines. The letter itself is a Notice of Proposed Certificate Action. In it the FAA sets out in formal terms who you are, the certificates and ratings you hold, what you did, what regs you allegedly violated and the sanction the FAA proposes. Sanctions range from civil penalties (max $1,100 per reg. violated per flight, which can add up fast), through suspension of the pilot's certificate for a given number of days up to a year (with a suspension you get the certificate back at the end of the period) to revocation of your certificate -- the FAA's version of the death penalty. Under revocation your certificate is gone; you no longer have any ratings. After one year you can start taking written exams and checkrides to get them back -- your flying time still counts. If your violation involved a drug offense with an aircraft, you are done flying forever in the U.S. You can never get any certificates or ratings again.

Options

The Notice of Proposed Certificate Action gives you options: 1) Accept the violation and penalty and consequently pay the civil penalty or send in your certificate for the suspension or revocation; 2) Immediately demand an administrative hearing in front of an NTSB law judge -- very similar to a trial without a jury; or 3) Demand an informal conference with the FAA attorney -- usually via telephone -- to discuss the matter and see if it can be resolved.

If the pilot sent in an ASRS/NASA report within the requisite 10 days after the offending flight, the pilot can just let the FAA attorney know and show the receipt (absolutely required; if you lose it, the FAA will not take your word that you filed the report). The pilot then gets hit with the violation but does not have to pay the civil penalty or suffer the certificate suspension. However, there is a strategy call when deciding when to inform the FAA attorney of the timely filing of an ASRS report if the pilot honestly thinks he or she can beat the rap and overcome the allegations of the violation. If, upon mature reflection, the pilot and his or her attorney feel that they can win their case, it's not time to turn in the evidence of the ASRS report until and unless the process gets to the point the pilot can no longer fight the violation action.

Informal Conference

Most pilots select the informal conference option in response to the Notice letter. At the conference the pilot and his or her attorney (assuming one is retained) speak frankly with the FAA attorney and an FAA inspector about the events. Unless the pilot says something that is inconsistent with what he or she says at any subsequent trial, things said at the informal conference will not be held against the pilot.

A tiny proportion of violation actions are either dropped as a result of the informal conference or reduced to become Warning Notices, Letters of Correction or sent back for remedial training. The reality is that the FAA has got such a dinky budget that it doesn't mess around chasing violation actions unless it feels it has pretty much a slam-dunk winner. That doesn't mean that the FAA doesn't err in taking some actions, but one must be aware it almost always has its evidentiary ducks in a row when it proceeds.

The majority of the time the informal conference leads to a settlement. The pilot usually can't convince the FAA to drop the violation, but is able to negotiate the sanction down somewhat to a lesser civil penalty or shorter suspension or to change a revocation to a long suspension.

Trial

If the matter is not resolved at the informal conference, the next step is the administrative hearing. An NTSB law judge holds the hearing, which is conducted much like a civil trial, although the rules of evidence are not followed as closely -- most noticeably, more hearsay is admitted than in a civil trial. There are opening statements, the FAA lawyer puts on witnesses and evidence, the pilot or pilot's attorney puts on witnesses and evidence, and they are followed by closing arguments. The law judge issues a ruling, in writing, at the conclusion of the trial. The judge can find there is a violation or that the FAA didn't meet its burden of proof and thus rule there was no violation on the part of the pilot. If the judge does rule there was a violation, the judge can set whatever sanction he or she feels is appropriate, although not more than the FAA originally sought.

After speaking with some attorneys who regularly practice in front of NTSB law judges and reading some cases on the NTSB Web site, Sam came to the conclusion that the law judges tend not to believe the testimony of accused pilots because they are "interested parties." He said the pilot better have some strong evidence to back up his testimony or he's hosed. In the low-flying cases, for instance, the judges almost invariably accepted the testimony of the eyewitnesses as to altitude, not the pilot, unless there was radar data that corroborated the pilot's testimony.

Appeal

After the trial, either the FAA or the pilot may appeal to the "full Board," that is, to the members of the National Transportation Safety Board appointed by the President. The appeal is a paper appeal only; there is no further evidentiary hearing. At the Board, law clerks look over the appeal, with an NTSB lawyer or two, and recommend a result to the Board members. The members usually rubber-stamp the recommendation. Historically, the FAA wins virtually all of those appeals, which has upset more than one lawyer who regularly practices in front of the NTSB.

The final appeal is to the federal appeals court system. If the result of the NTSB is unacceptable, either side may appeal to the appropriate U.S. Court of Appeals. Again, this is a paper appeal; only the evidence considered by the NTSB law judge may be considered.

If the result of the Court of Appeals is not acceptable, either side can ask the U.S. Supreme Court to hear the appeal. The Supreme Court is not required to take an appeal; it only takes ones that it considers to be of national significance. It has never, ever taken an appeal of an action against a pilot or mechanic.

As one who went part way through the enforcement system, Sam said that he'd much prefer to avoid the honor in the future. He indicated that the best way to get the unwelcome attention of the FAA is to press one of its current hot buttons: busting a TFR or Class B airspace; performing a runway incursion; or falling back on the classic: buzzing someone (because there always seems to be an angry neighbor who calls in to complain). He stressed that a little planning, judgment and self-control go a long way in avoiding the legal arm of the FAA.

I agree.

See you next month.


Want to read more from Rick Durden? Check out the rest of his columns.