Okay, so far, you’ve followed our advice in Part One of this series: You found a lawyer, used the “Duct Tape Defense,” and managed to keep from incriminating yourself. You’re only getting started, though. At some point you’ll need to rip the tape from your mouth and tell your story. When that time comes you’ll want to be sure that you get your best foot forward — not in your mouth.
[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.]
Get Your Story Straight
5. Jaderborg: File A NASA Report.
As Phil pointed out in his “Duct Tape Defense,” filing a report under NASA’s Aviation Safety Reporting Program (ASRP) is an excellent idea. By now, most pilots are familiar with this program. It is truly a wonderful thing, and you should take full advantage of it. The timely filing of a NASA report will not save you from a recorded violation, but it could save your ticket — all by itself. The program has other limitations which you should fully understand, as well. It doesn’t cover criminal acts or accidents, for example, and while there is no limitation on the number of filings an airman can make — theoretically, you could file one after every flight (please don’t) — a report can be used as a “get out of jail free card” only once every five years. Furthermore, a covered incident must be reported within 10 days in order to receive protection. “Intentional” violations aren’t covered either, but it has been my experience that Administrative Law Judges are inclined to give the respondent the benefit of the doubt in arguments over whether or not a report should be accepted in lieu of a sanction. If the FAA wants to deny you the use of a NASA report for an “intentional” violation, it would need clear evidence that you knew that what you were doing was wrong, and that you did it anyway — on purpose. The details of the program, a copy of Advisory Circular 00-46D, and copies of the reporting forms are all available online at the NASA Web site.
If you’re lucky (or unlucky) enough to receive a Letter of Investigation sooner than 10 days after an occurrence that qualifies under the ASRP, and if you haven’t already filed a NASA report, you should do so immediately, perhaps even before you leave the Post Office. (I’m sure, after reading this, you will carry a NASA reporting form in the glove box of your car.) Make a copy and send it by Certified Mail with a Return Receipt. This may seem like overkill, but if I knew for certain that my report would be used to deflect a certificate action, I might be tempted to send it Priority Mail with every form of date stamp, Certificate of Mailing, delivery confirmation and return receipt I could buy. The main thing is to get it postmarked and on its way within 10 days of any incident, and get some sort of proof that you did your part — whether the Post Office does its part or not.
5. Kolczynski: File An ASRS Report, But Choose Your Words With Care.
In 1975, the FAA began the Aviation Safety Reporting System (ASRS). This system allows a pilot to admit inadvertent errors by submitting a “sanction” immunity form to NASA. The FAA created the program to encourage the identification and reporting of deficiencies and discrepancies. The NASA form is not a “get out of jail without a record” card. The immunity may protect the pilot against serving or suffering the sanction, but a record may be created against the pilot if the FAA chooses to go forward with the enforcement action. Many airmen contest the FAA’s Notice of Proposed Certificate Action to prevent a record from being created.
If an airman does not contest the enforcement action, the suspension may be recorded in the airman’s record and stay there five years. If the airman has another similar incident in five years, he will not be able to use the ASRS immunity.
To use the ASRS immunity, the certificate holder must be involved in an “incident,” not an “accident.” The NTSB defines an aircraft “accident” as an occurrence involving death, serious injury or substantial property damage. An “incident” is an occurrence that affects or could affect flight safety. 49 CFR 830. Under FAR 91.25, the FAA makes clear that it can use the ASRS Report submitted by the airman for an enforcement action arising out of an “accident.”
Eric Jaderborg emphasizes that it is important that you submit the form within ten days after the occurrence. If the FAA brings an enforcement action against you and you want to claim the immunity, you will have the burden of proving that you submitted the form to NASA within 10 days. You should not simply rely on NASA to stamp and return the “tear-off strip.” If they never receive the immunity form, you will never get the strip back and it will be too late to resubmit. “Go postal” — the certified mail/return receipt method is the safest way to assert your immunity.
Be careful when filling out the immunity form, particularly the tear-off portion. Use your words carefully when you complete the “type of events/situation” section of the “tear-off strip.” You will be using this “tear-off strip” to assert your immunity if an enforcement action is lodged against you. The FAA policy is to endorse the immunity provided for the ASRS Report. But, there have been cases where the tear-off strip has been distinguished from the Report. The ASRS tear-off strip, stamped and returned to the airman by NASA (as distinguished from the report) has been admitted into evidence in a enforcement proceeding. See Administrator v. Money, No. EA-4609 (NTSB November 17, 1997). [I believe that this was definitely wrong]. If you inadvertently fly into controlled airspace without a clearance, do not describe your action as an “airspace deviation” in the strip.
Remember, accidents, criminal violations, deliberate careless or reckless flying and similar violations within the last five years, are not covered by the immunity. The FAA will also refuse to honor the ASRS immunity form where there is evidence that the airman was involved in an incident in which he displayed a “lack of qualifications or competency.”
6. Jaderborg: Consider Creating A “Contemporaneous Record.”
The inspector handling your case will be documenting every conversation with you, and with any potential witnesses, in a memorandum to the record. These memoranda often show up as evidence (“Items of Proof”) in an enforcement investigation report. Although more solid evidence is preferred, there have been cases where such memoranda provided the bulk of the evidence against a respondent. Much of it is hearsay, but that’s admissible in an administrative proceeding — where the judge has broad latitude in applying the rules of evidence — and it can go against you if you have nothing to offer in rebuttal.
The average person — who doesn’t do investigation and evidence-gathering for a living — does not appreciate the power of a “contemporaneous record.” If there is ever a conflict over the facts, or who said what, an Administrative Law Judge will resolve it with a credibility determination. This is nothing more than the judge’s opinion about who seemed the more believable. These determinations are almost never reversed on appeal, and they frequently make the difference in a judgment. Judges know that memories fade with time, and are likely to place greater weight on records that are made close to the time an event took place. Furthermore, in any conflict over memories, a judge is likely to assume — rightly or wrongly — that your memory will be “self-serving” if it is forced to stand without support. A written record made at or near the time of any conversation or event could improve your believability.
Like “the force” made famous in the Star Wars saga, contemporaneous records possess a neutral power that can be used by either side in a conflict. If the FAA knows about them, it can force you to cough up any written records or notes you make about an alleged violation, just as you can obtain the same from the agency through the “discovery” process. Thus, you must use great care in creating and using them, and must follow your attorney’s advice to the letter. In order to think to ask for such records the investigating inspector would need to know, or at least suspect, that they exist. You are not obliged to volunteer such information. In 10 years, I never asked a respondent for his personal notes. Maybe that was just stupid on my part, but I never heard of anyone else doing it, either. I subpoenaed information from reluctant witnesses on only a couple of occasions (and one of them was a television station that had a policy of never releasing broadcast tapes without a subpoena, even though everyone in town had already seen the footage).
Nevertheless, you must be careful to follow your attorney’s advice in the matter of creating written records. I recommend that you document your contacts with the FAA as soon afterward as possible, at least insofar as what was said to you. This includes any contacts you may have made in which you received interpretations or the opinions of individual FAA employees regarding rules or procedures that might have prompted you to do something for which you now face legal enforcement action. With your attorney’s guidance, you should also document as many details of any incident as soon as possible after it happened. You’ll be much more equipped to appear “the more credible” if you have a clear, objective “contemporaneous record” of important conversations or events. It’s the next best thing to having a witness.
6. Kolczynski: Be Very Careful About Creating An Unnecessary Record Of What You Did
The problem with contemporaneous records is that airmen sometimes incriminate themselves or make statements against their interest when they make notes and memoranda. I recommend that the airman who has been in an “incident” should make a contemporaneous record of what other people have said or done but not his own actions. As the U.S. Marine Corps teaches recruits, “it’s not your job to die for your country, you’re supposed to make the enemy die for his country.” Thus, the airman should carefully note what air traffic controllers have said, the statements of other pilots and what the FAA investigator or inspector told him about the alleged violation. If the airman is relying on an interpretation of the FARs provided by an FAA employee, it can be very useful to have a written record of what that FAA employee said. However, it may be foolhardy for the same airman to write down his own description of his actions or interpretation of the FARs if he does not have to.
A contemporaneous record of what an airman tells an inspector may be very valuable to an inspector but not so useful to the airman himself. A “contemporaneous record” under the rules of evidence is one which has more credibility because it was created at the time of the actions taken by comparison to a record created subsequent in time. Law students learn that a contemporaneous record is given more weight than one created after the fact. Officials and judges who have to review documentation like detailed contemporaneous records because they are assured that they are getting a fresh record of the facts. Unfortunately, a contemporaneous record that contains statements made by other people is “hearsay.” Hearsay is not admissible in any federal or state court unless it qualifies under one of the exceptions to the hearsay rule under the rules of evidence.
FAA administrative enforcement proceedings occupy a gray area regarding the rules of evidence. The rules of evidence are supposed to be followed by the NTSB administrative law judges; however, they have discretion to apply the rules liberally. Some apply them more strictly than others so it is questionable whether your contemporaneous record will ever be admitted into evidence. Your notes or memoranda of what other people said can be valuable to your lawyer who can “impeach” the credibility of a hostile witness by means of the notes. Thus, it may be good to document your “contacts” and create a “contemporaneous record” of what other people did or told you. An airman under investigation really should be careful about documenting his own actions, words or thoughts. Few judges are persuaded by your own detailed written account of what you claim you did, said, or thought. We have a term for this in the law — it’s called “self-serving.”
If you wish to create a record during an investigation, the best thing to do is to hire an attorney and have the attorney collect the evidence. Remember, anything you discuss with your attorney is privileged under the attorney/client privilege. Thus, whatever mistakes you made, whatever uncertainty you have about the FARs, etc., when revealed to your attorney, are “attorney – client privileged.” Your secrets cannot be extracted from the attorney even by a subpoena or a court order.
Another advantage to using an attorney is that an attorney can obtain “work/product protection” for his investigatory work. Thus, when an attorney interviews a witness and makes notes in his own file, that information is part of the attorney’s work product. The work product is not discoverable by the FAA or any other party. If you do your own investigative work, it is not privileged and any unfavorable documents you dig up may be discovered by the other side. If you destroy the unfavorable evidence and get caught the inference will be that the documents were adverse evidence. The safest way to conduct your own enforcement investigation is to have your attorney do it. In more complex cases, an attorney may actually employ an investigator or an expert to go out and do these things under the attorney’s work/product protection umbrella.
Some airmen will insist on doing their own investigation because they simply don’t want to pay the attorney’s fee for the work. If their license is at stake, this approach is “penny wise and pound foolish.” Some FAA enforcement defense attorneys will allow their clients to do some of the investigation for cost savings but under the attorney’s guidance. Check with your attorney to see what can be done to reduce expenses.
An airman may tell you that he investigated his case and persuaded the FAA inspector to drop it. I can tell you the story of an airman who investigated his own case, tried to persuade the FAA investigator to drop it, and ended up with more serious charges.
Remember, the FAA has the burden of proving that their order modifying, suspending or revoking your certificate was justified. Do not create a record against yourself — make them carry their burden of proof.
7. Jaderborg: Never Lie Or Change Your Story
Mark Twain once said, “If you tell the truth, you don’t have to remember anything.” You must never tell your story until you are mentally organized enough to tell it right, because whatever you say first will stick to you. Make sure it’s something you can live with.
At least one airman I know might have profited from this advice. He repeatedly buzzed a taxiway one afternoon on what he later claimed was a maintenance test flight. Alongside the taxiway were a handful of employees from a nearby aircraft maintenance shop where the airman had had some work done on his complex single-engine airplane. One of the employees was taking photographs of the airplane as it flew over. While the respondent was on downwind for one of these low passes, an experienced, professional instructor (who was also a respected pilot examiner) and his student began taxiing to the runway in a light twin. The respondent, according to both the instructor and the student, flew directly over them (and presumably over the nearby shop employees) at an altitude of no more than 20-25 feet, head on and at a high rate of speed, with gear and flaps up — scaring the hell out of them both. Pushed “one toke over the line” by this incident, the normally laid-back, live-and-let-live instructor filed a complaint with the FAA, and supplied a written statement. The agency independently obtained a similar statement from his student.
During the investigation, the witnesses standing beside the taxiway — one of whom was the owner of the business — refused to talk to the investigating inspector, leaving the respondent on his own to counter the testimony of two credible complainants, and leaving the FAA no alternative but to rely on the only testimony it could obtain. Had he enlisted the help of an attorney, and if the request had come from him instead of from the FAA, his friends might have been willing to come forward. Their testimony might have cast doubt on the testimony of the complainants, making it possible at least to get the sanction reduced. Even if he’d said nothing, he might have been able to leave his attorney some room to negotiate. Instead — on his own — the respondent provided two distinctly different, and bizarre, versions of the incident. The first came during an initial telephone contact in which he claimed that he made a single pass over the occupied taxiway at 150-200 feet (still a violation, though not as serious — and nearly eight times the witness estimates of his altitude) after which he side-stepped to the runway for landing. Given the airport layout, this maneuver would have required acrobatic technique, and would in no way have been “necessary for … landing” (FAR 91.119). The second version came in his handwritten response to a Letter of Investigation in which he claimed to have made a series of approaches in which he “intended” to overfly the runway (which lay approximately 800 feet to the east of the taxiway). He made no attempt, however, to explain the discrepancy between his intent and his execution.
By the time the respondent got an attorney involved — well after the investigation was completed — the damage had already been done. His wildly differing stories in the beginning made it impossible to show a compliant attitude later with any believability. When it finally came time to negotiate, and having cut the floor out from under himself, he suffered the consequences of his own deceit and took a 90-day suspension of his privileges. It could have been worse: He could have misjudged his altitude, revoking not only his own birth certificate but those of several other people.
In some ways an enforcement investigation is like a poker game. You have two options: (1) Tell the truth up front, seek evidence that exonerates you or mitigates the circumstances, and negotiate an outcome, or (2) hide the truth (by saying nothing, not by covering up the facts or by destroying evidence — which is a crime all by itself), and force the FAA to find independent evidence against you. Which option is best for you depends in part upon how damning the truth would be if you told it, how likely the FAA is to find credible evidence on its own, and what you and your attorney feel will be your best shot at making this thing go away. If you’re pretty sure that you hold the only winning card, you’re allowed to hold it face down and make the agency show its hand first. (Just remember that you may be required to produce any written records or research you do on your own behalf. See Item 6, above.) If the agency is “bluffing,” you don’t have to show anything to win. On the other hand, if you wait long enough to call that bluff you may lose any opportunity to avoid an all-out fight.
Either way, the truth is your only useful weapon. If you feed an inspector a line, you are, in effect, telling that person that you think that he is too stupid to appreciate the difference between a lie and the truth. If you are ever “found out,” that inspector is likely to take a hard line in further dealings with you. This is as true in FAA investigations as it is anywhere else in life. The worst thing you can do is lie or change your story because it is considered willful obstruction of a lawful investigation, as well as evidence of a non-compliant attitude. The FAA will consider this in proposing a sanction. A single lie in the beginning can turn a Warning Letter or a 30-day negotiable suspension into a months-long nightmare, and can ruin any chance of an out-of-court settlement.
7. Kolczynski: “This is My Story and I’m Sticking to it.”
If you will lie, don’t hire a lawyer. Any lawyer worth his salt will not allow you to lie. I always explain to clients that I will insist on the truth. I do this not simply because it is the ethical thing to do, but also because a defense based on lies is one of the easiest ways to lose a case. If the credibility of a case is impeached, you can forget any mitigation, sympathy or exoneration. A severe penalty will be imposed.
If you are going to hire a lawyer, tell your lawyer your whole truth. Do not lie or deceive your lawyer — it’s like cheating while playing solitaire. A lawyer is duty-bound to maintain the confidentiality of everything you tell him under the attorney/client privilege.
What about simply refusing to tell the FAA investigator anything? You do not have to tell the FAA investigator anything. If you take the position that you will not say anything, it is likely that the inspector considers you as not having a “compliance attitude.” If there is potential for mitigation but you refuse to cooperate, an investigator is likely to bring legal enforcement charges against you instead of taking administrative action. He may even seek a stiffer sanction.
The expression, “This is my story and I’m sticking to it,” is often used when somebody has a need to change their story. They did not start by planning to change their story. They spoke before they knew all of the facts. In my experience, pilots have to be particularly careful about their natural temptation to speculate on the probable cause of an accident or incident, instead of waiting for the investigation.
To an investigator, a change of story implies the possibility that the airman has not been completely truthful. The best approach to handling an investigative inquiry by an FAA inspector is to find out what “story” the investigator has heard about the “incident.” What is he investigating? Find out what you can and then request additional time to get back with your “story.” Meanwhile, the airman should review everything that has happened and contact an attorney for advice. When the airman gets back in touch with the FAA inspector, or when the airman writes a letter as requested, the airman should be careful to stick to the facts. Provide a “short story,” until you can learn everything possible about the FAA’s potential charges.
8. Jaderborg: Get To Know Your Adversary
When I was a kid I took up fishing for a while. My dad was as ignorant of piscine folklore as I was, so we picked up a booklet entitled “The Phillips 66 Guide to Fishing” (or something like that) and studied it together. I’ll never forget that tiny book. Its first words were some of the best advice I’ve ever received on any subject: “If you want to catch fish,” it said, “you need to think like a fish.” Even though most certificate holders think of FAA inspectors as predators, rather than prey, this is still good advice. If you want off the hook, you need to think like an inspector, recognize his needs, and figure out a way to supply them without doing yourself harm.
First of all, predators rarely hunt for sport. They hunt because they are driven to it by a mandate. If their bellies are full, they are likely to turn their attention to the thousands of other tasks that push forward to replace hunger once it has been slaked. An FAA inspector is no different. The average inspector isn’t in the business of raping and pillaging the district during his free time. The first thing a rookie inspector learns is that the job consists of hosing down a never-ending series of small fires that started before he took the job, and that will continue to flare up long after he is retired. Only a few of those “fires” are investigations; most of them involve requests for services of one sort or another. Many of these fires must be attended to simultaneously, and most are “set” by someone who thinks his “fire” is the only one that needs attention — the most important in the whole wide world. An inspector soon learns that the key to keeping up with the job is to welcome any legitimate opportunity to cool something off before it bursts into flame. While inspectors have a legal requirement to investigate accidents, incidents, and complaints, they have plenty of pre-programmed work handed-down from “on-high” without looking around for more. Full-blown enforcement investigations are an unwelcome intrusion because they tend to get hotter and nastier with time. They are a lot of work, and they don’t add a thing to an inspector’s “creditable” workload, i.e., they don’t contribute anything that can be used to add or upgrade a position. No matter what you’ve heard, there is no reward money or employee award category for “Most Butt Kicked.” (Indeed, the most significant awards I ever received were for making positive “off campus” contributions to aviation that simultaneously boosted the FAA’s public image, such as giving airplane rides in connection with the EAA’s Young Eagles Program, and participating in flight instructor seminars on my own time.) What’s more, enforcement investigations come with the shortest, most immutable deadlines on the calendar which, if missed, make the whole office look bad.
Enforcement investigations arise mainly from three sources: (1) Ordinary surveillance conducted by an inspector as a part of his “work program,” such as air carrier or air agency (e.g., FAR 135 operators or FAR 141 pilot schools) records checks and base or “site” inspections, cockpit en route inspections, airshow surveillance, and other operations in which inspectors are required to observe the proceedings; (2) complaints received either from private citizens, law enforcement officials, or from Air Traffic Control; and (3) from the investigation of accidents or incidents reported by law enforcement, by witnesses, and often by the airman himself. It is important to understand that an inspector cannot ethically ignore what is before him any more than a police officer can ignore a crime in progress. The action an inspector takes in any situation depends upon the facts, the seriousness of the situation, and upon the inspector’s training and background — in short, the same things that might govern a police officer’s actions.
On one occasion, for example, I witnessed an incident at an airport where I had parked my own airplane for maintenance. I was off-duty, and getting ready to leave with my wife (who had driven in to pick me up) when an airman arrived in a Bellanca Viking that he was apparently preparing to show to a prospective buyer. The buyer and several of his friends had gathered on a ramp area near the runway. Upon arrival, the “seller” repeatedly buzzed the airport at high speed and low altitude, making steep, show-off, climbing turns after each pass. While the flight path of the airplane probably did not directly endanger any person on the ground, the area had relatively “close quarters.” The airman had obviously, and intentionally, violated the separation standards of FAR 91.119 — so flagrantly, in fact, that one of the local pilots who had witnessed the incident walked over and wrote down the N-number of the airplane as it taxied in.
Even if I’d been among strangers, the ethics of my position were clear: An inspector cannot ignore his job. As it was, I was faced with the likely prospect of a written complaint, and surrounded with witnesses to whom I was well known, and who were familiar with the requirements of my job. I walked over to the airman, presented my credentials, and asked to see his pilot and medical certificates. He presented me with a Commercial Pilot Certificate and an appropriate medical. I advised him that what I had seen was a violation, and that he would be receiving a letter from me at a later date advising him of that fact, and of his alternatives. I did not lecture him, “ramp check” his airplane in search of other violations, or seek to extend my involvement with him any further. There was no need to “make a scene” — we had all seen enough. Seven days later the office received an unsolicited hand-written complaint regarding the incident from the pilot who had written down the N-number. Shortly after that, and with the approval of my supervisor, I issued a Letter of Warning to the pilot, outlining what had happened, and advising him of the complaint. The entire business was closed without further action, and I never saw or heard from the airman again — which I’m sure suited us both just fine.
This incident was not “sought,” but rather presented itself through direct observation and a public complaint. The airman was engaged in an isolated, non-commercial operation and had no history of previous violations. His actions were the result of thoughtlessness and immaturity, rather than ignorance — eliminating remedial training as a useful option — and did not involve obvious endangerment. But, more important, the incident serves to illustrate a point about what drives Aviation Safety Inspectors: The entire process was served by the outcome. Under the circumstances, the airman was treated fairly and with restraint, the complainant’s concerns were addressed, and the bystanders who witnessed the incident learned that when confronted with evidence of a safety violation, the Administrator’s representative — who is expected to serve the taxpayer — does not just get in his car and drive home.
No matter who you are, “you gotta serve someone” — as Bob Dylan once sang (or “moaned,” depending upon your artistic sensibilities). Aviation Safety Inspectors live their whole professional lives on a rigidly vertical food chain. No matter where they are on that food chain — Administrator, Division Manager, Office Manager, or peon — inspectors have the same need for legitimacy as anyone else. With few exceptions, the inspectors I worked with were (and are) decent, hard-working people who want to do the right thing. But an inspector also needs to be seen as having done the right thing by the person directly above them on the food chain. The key to “thinking like an inspector,” therefore, is realizing that whatever he does will be reviewed and critiqued at multiple levels, even after control of the outcome has passed to higher levels of the bureaucracy. (If you think about it for more than a few minutes, you’ll realize that you have the same need for legitimacy somewhere in your life: You serve someone or something, even if it’s only an idealized version of your own values.) The extent to which you recognize that an inspector must serve the process — and be seen to serve well and honorably — is the extent to which you stand a chance to bend that process, at least in its early stages. The extent to which you are unwilling to recognize this is the extent to which you will fail. In the end, failure to see yourself in your opponent will cost you dearly. The issue isn’t whether one of you is irrational and corrupt while the other is bravely trying to do the right thing. Both of you think you are trying to do the right thing. The issue is whose version of the “right thing” is going to prevail. The best outcome of all is one in which you both get to think you “won” — one in which the airman receives fair treatment — perhaps is exonerated or given an opportunity to learn from his mistakes — and in which the inspector feels that he has served the whole “process” of safety.
8. Kolczynski: Get to Know Your “Inquisitor.”
Former FAA Inspector Jaderborg provides some valuable insight into the perspective of an FAA investigator. Eric explains that the investigator is not out to get you — he is just doing his job. I believe him. The problem is that when he receives a notice of a possible violation, his job is to investigate like a police detective. Yet, it is important to understand that he is not yet “your adversary.” He is not your adversary until he prepares the Enforcement Investigative Report (EIR). He commits himself by referring it to the regional counsel’s office with a recommendation that sanctions be imposed. Thus, in your initial dealings with the investigator you have a chance to dissuade him from recommending sanctions. It is at this point, more than any other time in the FAA enforcement process, that you have a chance to keep him from becoming your “adversary.”
If you will talk with the FAA investigator, try to find out a little bit about his background. Does he have industry experience? What certificates and ratings does he hold? Is he a former military pilot? Does he have a maintenance background? How long has he been with the FAA? What previous positions has he held in the government? Knowing these things about your “potential” adversary may help you in your dealings with him.
Even if you cannot research biographical information about the inspector who will interrogate you, use common sense. Avoid the following mistakes made by other airmen. The following is a list of mistakes drawn from experience or based on reliable anecdotal information:
How Not To Deal With An FAA Inspector
- Do not ignore the inspector.
This is a matter of common courtesy. Return his phone call even if you are not ready to give a full interview. Respond to Letters of investigation (LOI) even if it is to obtain an extension to submit a written response, although brief. Keep appointments on time. If you tell the inspector you will bring your log books with you— bring them with you.
- Do not get personal and don’t schmooze.
The inspector is not your friend. His job is not to become your friend. He considers himself an “FAA official”; therefore, his reaction to an attempt to schmooze him will be similar to that of any police officer. He will be insulted and resent the implication that you think you can influence the way he will do his job.
- Do not display a know-it-all attitude.
There are times when the airman who is in trouble has excellent credentials. Perhaps he has always scored highly on any test concerning the FARs. In fact, you may know more about the FARs than the specific investigator. The problem is that this is the man/woman who has the power to recommend the suspension or revocation of your privileges. If you think the inspector is interpreting the FARs the wrong way, explain your position respectfully. Do not lecture or argue. There is a fine distinction between pointing out a proper interpretation and arguing. This is one reason why you may be better off to have your lawyer act as your advocate rather than doing so yourself.
- Display a “compliance attitude” instead of a defensive demeanor.
FAA inspectors are advised by directives to detect whether the airman displays a “compliance attitude.” The FAA wants to see that you are concerned with safety. If you have made a mistake, emphasize the steps you will take to make sure it doesn’t happen again. An FAA inspector does not want to hear “other pilots do the same things, why are you picking on me?” Instead, the inspector wants to hear “I could kick myself for making the same mistake as others. Here is what I plan to do in the future to prevent it from happening again.”
- Do not threaten litigation.
You have probably learned that you have the right to appeal a notice of proposed certificate action to the NTSB and have a hearing in front of an administrative law judge. You then have the right to appeal that result to the full NTSB. Afterwards, you can even take an appeal to the United States Circuit Court of Appeals. If you are willing to spend the money, you can fight the FAA for a couple of years. Sharp FAA enforcement defense attorneys can point out all the supposed procedural protections you enjoy during the process; however, in my opinion, the deck is stacked against you. The FAA wins most of the certificate enforcement actions. Most sanctions are not overturned on appeal. You are better off not getting into a legal battle with the FAA if you can avoid it.
- Do not send your attorney to deal directly with the Inspector.
Some attorneys may disagree, but at this stage I believe it is better that the airman deals with the inspector personally. He should do so with the guidance of his attorney. Some exceptions include clients who can’t explain themselves, clients who may lose their temper or can’t keep a civil tongue in their head, and clients guilty of serious misconduct which could lead to criminal charges. (I do believe that the attorney should attend a subsequent Informal Conference where the FAA attorney is involved). The attorney should help the client prepare a written response to a Letter of Investigation, but it should not be on the attorney’s stationery.
Note: I do not agree with some people who think that the FAA smells guilt when an airman is represented by an attorney — not in this day and age. I do believe that an FAA inspector will be on guard and more strict if the airman brings an attorney to an investigatory meeting before charges are even prepared. This is the time for the airman to make a good impression and to get the inspector thinking about remedial training, letters of warning or mitigation, instead of lawyers and legal enforcement.
- Do not be arrogant toward the FAA employee.
I have seen airmen act as if they think that FAA inspectors are bureaucrats who cannot make it in private industry. Some airmen think that if they make more money than FAA employees that they are a better aviation professionals. These airmen fail to recognize many FAA employees truly believe in what they do and are fulfilling a valuable safety function. They might have been very successful in private industry and wanted a change. Some just love aviation. Many are family oriented and do not want the travel demands of the airlines, corporate aviation or the military. If you take the time and trouble to scratch beneath the surface you will find an agency rich with talent, populated by many people with a genuine interest in safety.
- Be careful about blaming others for an incident.
Reread FARs 91.3 and 91.7 before trying to shift blame in an enforcement matter. There may be a legal defense involving a true product defect or an operational error caused exclusively by others; however, you might have committed a sanctionable violation even if others were a cause of the incident.
- If you want to get to know the inquisitor — read his Bible.
If you really want to “get to know your adversary” read the official FAA handbook. It provides guidance on how your adversary is supposed to conduct an investigation in an enforcement matter. The FAA Compliance and Enforcement Handbook, FAA Order 2150.3A, is designed for ready reference at all levels of the FAA. [Editor’s Note: FAA Order 2150.3A, inexplicably, does not appear to be available on the FAA’s Web site. FAA Order 8700.1, General Aviation Operations Inspector’s Handbook, may be of interest, however.] Every FAA employee involved in the compliance enforcement program must study the manual. The “Forward” to the manual sets forth the policy and procedural guidelines for employees involved in the enforcement process. The manual even contains recommended sanctions for various types of violations. You can look up the type of incident you were involved in and learn ahead of time; the type of sanction the agency is likely to seek for the specific violation. Recognize that FAA lawyers have much prosecutorial discretion.
- Finally, do not reveal “The Attitude.”
What attitude? You know what I mean: “How many pilots does it take to changed a light bulb? Just one. He holds the bulb, and the world revolves around him.” Aviation safety requires the cooperation of all involved in the industry.
In the final installment of this three-part “Survival School,” Phil and Eric will offer additional pointers on how to prepare for, and survive, the battle. Watch for it, coming to a computer screen near you.