Eye of Experience #5:
Feds at Work

Columnist Howard Fried has firsthand experience with the FAA violation process and lived to tell about it, despite the best efforts of the FAA to hang him out to dry. He survived in part because he understood how the process works. Now he shares this knowledge with you in hopes that should you ever need it, you will be better equipped to protect your certificate. It also serves to explain why the


Eye Of ExperienceMany of us who hold airman certificates of one kind or anotherspend a lifetime without ever having contact with the Flight StandardsBranch of the FAA (knock on wood), but many others are not sofortunate. If you have never had the misfortune to experiencean enforcement action, listen up, because it can happen at anytime, and it would help you to know what to expect, if and whenit does.

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

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

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

Letter of Investigation

If, on the other hand, you inadvertently violate a regulationand should be unaware of having done so, the first indicationyou 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 invitationto hang him or herself! The LOI is cleverly worded so as to appearto require an answer, but it is not mandatory that an answer beoffered. It goes like this (paraphrasing):

It has come to the attention of this office that a violation of…(sectionnumber)…of the Federal Aviation Regulations may have occurredon…(date)…at…(location) and we have reason to believeyou may have been involved. We would appreciate receiving anyevidence or statements you might care to make regarding this matter.Any discussion or written statements made by you will be givenconsideration in our investigation. You have ten days to respondto this letter of investigation or we will be forced to proceedwithout benefit of your side of the story.

Sounds like you’d better rush right out and reply before the tendays runs out, doesn’t it? Not so! You are under no compulsionto do so, and many knowledgeable aviation attorneys advise airpersonsnot to answer at all. I believe this is a mistake. The first stepyou should take after receiving a LOI is to retain the servicesof a knowledgeable aviation attorney. Then ask your lawyer toanswer the LOI, but say nothing. Nobody likes to be ignored, sothe thing to do is to address the investigating inspector by nameand say, “Thank you for giving me (or my client) the opportunityto 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 violationand it occurred in Ohio, you should answer the LOI with a statementto that effect, but only if you can definitely prove you couldnot have been involved. Or, if the LOI specifies the tail numberof your airplane and it was in pieces on the maintenance hangarfloor being worked on at the time of the alleged violation, youshould say so. Once again, however, only if you have clear proofthat your airplane could not have been involved. Otherwise, saynothing!

Administrative Action

Since this is an administrative civil action, the courts haveruled that although there is no warning to that effect, thereis no Fifth Amendment protection against self-incrimination andanything you say can and will be used against you in any subsequentaction, resulting in the suspension, or worse, the revocationof your certificate.

Depending on which form of the LOI you receive, it may suggestthe 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 thistechnique.

Beware! Unless you meet certain very specific criteria, you won’tbe eligible for remedial training, and if you spill your gutsand it turns out you are not eligible for this alternative tocertificate action, whatever you say can, and no doubt will, beused to convict you of the violation, and certificate action willsurely result. And, the LOI, even the one that mentions remedialtraining, does not tell you just what requirements you must meetto 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 personalpleasure or business.
  3. It should, but does not have to be a first offense.
  4. You can’t have previously benefited from remedial trainingin 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 friendlyfeds. (highly subjective)

If any one or more of these conditions do not exist, you willnot be eligible for remedial training. If you say anything atall, you will only find yourself in deeper trouble. So, onceagain it is best to say nothing, particularly nothing that canbe used against you, because if you do, you surely will be hitwith it in whatever action the FAA decides to take against you.

If, on the other hand, you qualify for remedial training and theinvestigating inspector opts to go that way, the matter is turnedover to the Safety Program Manager at the FSDO where the offensetook place and he prepares a specific course of training relatedto the offense. If the event didn’t happen in your own district,the matter is forwarded to your local FSDO for processing andan instructor is given the syllabus for your training.

Certificate Action

However, if you are not eligible for remedial training or theinvestigating inspector decides not to go that route, the processcontinues with another registered letter stating the result ofthe investigation and informing you that a finding of violationhas been made. This letter is entitled NOTICE OF PROPOSED CERTIFICATEACTION. It cites the specific regulation or regulations whichare alleged to have been violated and the specific actions whichconstituted the violations, along with the date and location ofthe occurrence.

The next step in the violation process after the airperson receivesthe LOI and either answers or doesn’t answer is almost certainto be this NOTICE OF PROPOSED CERTIFICATE ACTION whichstates the penalty the FAA intends to impose. It concludes byoffering the airperson five choices. (Just check the appropriatebox 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…Ielect to proceed as indicated below:

  1. I hereby transmit my certificate with the understanding thatan Order will be issued as proposed effective the date of mailingof this reply.
  2. I request that an order be issued so that I may appeal directlyto the National Transportation Safety Board.
  3. I hereby submit my answer to your Notice and request thatmy answer and any information attached thereto be considered inconnection with the allegations set forth in your Notice.
  4. I hereby request to discuss this matter informally with anattorney at the Office of the Regional Counsel…
  5. I hereby submit evidence of the timely filing of an AviationSafety Report with NASA concerning the incident set forth in theNotice of Proposed Certificate Action and hereby claim entitlementto 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 manylawyers advise their airman clients to skip this step and go directlythe NTSB by selecting choice number two, which results in a hearingbefore an NTSB Administrative Law Judge (ALJ).

Informal Hearing

However, if choice number four is selected, the next step in theprocess after the alleged violator receives the Notice of ProposedCertificate Action is likely to be what is called an informalhearing since this is what most airpersons and aviation attorneysrequest. What this really is, is a meeting with the investigatinginspector from the FSDO, an associate counsel (lawyer) from theRegional Office of the FAA, and the alleged violator, who mayor may not be accompanied by an attorney. Per our previous discussionof the LOI, the airperson should certainly have his lawyer withhim. Don’t even think of attending alone.

It is at this point that the gloves come off, and all pretenseof cooperation on the part of the FAA goes out the window anda purely adversarial situation arises. The FAA attorney playsboth prosecutor and judge. The investigating Aviation Safety Inspectorplays witness for the prosecution, and the airperson plays victim.In many cases the FAA attorney (from the Office of the AssociateGeneral Counsel, formerly the Office of the Regional Counsel)has no authority to do anything but inform the alleged violatoras to what sanction (penalty) will be imposed. In these cases,literally anyone capable of acting as a messenger could conveythe proposed penalty to the airman and his/her attorney. Theydon’t need a high-priced government lawyer for this. In othercases the FAA attorney may be in a position to compromise thepenalty and the airman may wind up with a lesser sanction thanwas originally demanded by the Friendly Feds.

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

Whatever the outcome of this informal meeting, the airman mayappeal to the NTSB, just as if he had chosen option number twoin the Notice of Proposed Certificate Action. At this point aformal hearing before an ALJ (Administrative Law Judge) is scheduled.It is not actually scheduled in terms of a specific date, butit is put on the agenda. Sometime in the future (usually quitea long time) a date for the hearing is set. At this hearing sworntestimony 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, theNotice of Proposed Certificate Action, and the informal hearingor meeting, the next step in processing an alleged violation ofthe regulations is a formal hearing before a National TransportationSafety Board Administrative Law Judge (ALJ). Often this step followsthe Notice of Proposed Certificate Action without an interveninginformal hearing (meeting) with an FAA attorney from the regionaloffice.

Many lawyers who make a practice of representing clients accusedof violating the regulations feel that the informal hearing isa waste of time and check choice number two on the Notice of ProposedCertificate Action. They go directly to a hearing before a NTSBALJ. There is always quite a long wait for this hearing (usuallyseveral months) and throughout this period the airman keeps hiscertificate and continues to exercise its privileges. The ALJ,in addition to hearing other transportation type cases, is responsiblefor covering a great many District Offices of the FAA, and hecan only get around to each of them infrequently. When he doescome into a district, he hears several violation cases duringthe few days he spends there. There is an exception to this.When the FAA exercises its emergency revocation authority, thewait for a hearing is quite brief, but that’s another story.

No Constitutional Protections

At this point the proceedings become quite formal. The AssociateGeneral Counsel who had conducted the informal hearing, if therewas one, acts as prosecutor, and although other witnesses maybe called, the Aviation Safety Inspector from the District Officewho conducted the investigation and gathered the facts surroundingthe incident is the main witness for the prosecution. (In thecase of an airspace violation the Air Traffic Control person involvedwill be called to testify.) A court reporter is present and makesa record of the testimony. Both parties (the Government and thealleged violator) have subpoena power to compel the presence ofwitnesses. This hearing has all the trappings of a criminal trial,except the accused has none of the constitutional protectionsof a criminal defendant. You should also know that by this timethe procedure will become quite expensive, what with attorneyfees, and other costs, including transportation, bringing in yourwitnesses, etc., plus the time off work that it takes to defendoneself.

The ALJ, who is employed by the National Transportation SafetyBoard, and who hears all kinds of transportation cases from railroadmatters to highway situations as well as aviation cases, listenscarefully to all the testimony before rendering a decision, whichmay or may not affirm the finding of the FAA. He may, and sometimesdoes, find that either no violation occurred or that the FAA failedto prove its case and the alleged violator is off the hook entirely.You should also know that whatever violation or violations appearto have occurred, the dear old FAA invariably throws in a fewmore charges to be used as bargaining chips in negotiating withthe alleged violator and/or his lawyer.

Frequently, even though the ALJ finds that a violation did indeedoccur, and the accused is indeed guilty of having committed theviolation, if there are mitigating circumstances, the ALJ willmodify the penalty sought by the FAA (knock a sixty day suspensiondown to thirty days, for example). ALJs seem to be particularlysensitive to airmen who earn their living as aviators. If theairperson is a professional pilot or mechanic, the ALJ will frequentlylook for an excuse to avoid depriving him/her of his/her livelihoodfor any longer than absolutely necessary.

This factor of taking mitigating circumstances into account isalmost never applied by the FAA itself, even back at the informalstage. They almost always go for the most severe penalty theycan. It is this implacable attitude on the part of the FAA whichhas caused the users of the system, people who hold airman certificates,to distrust the agency. The adversarial position which has grownup between the agency and the people with whom it is supposedto work is a direct result of the attitude of many of the agency’semployees.

Both Sides Can Appeal

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

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

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

Emergency Revocation

I am, of course, referring to the power granted to the FAA totake immediate action to revoke the certificate of a suspectedviolator without a hearing of any kind, if there is an urgentsafety reason to do so.

Whereas, as I explained, throughout the normal process of dealingwith violations, the victim gets to keep his or her certificateand may continue to exercise the privileges of that certificate,when the FAA exercises its power of emergency revocation the airpersonis effectively grounded, and as a result he or she is entitledto an immediate hearing before the NTSB so that if no violationis found, the airperson’s certificate can be restored withoutundue delay. At least, that’s how it’s supposed to work.

The law requires that there be an imminent danger to public safetyif the airperson should be allowed to continue to exercise his/herprivileges during the pendency of the administrative process.The problem here is that the agency will, in its arrogance, abusethis emergency revocation authority. They will frequently yanka certificate when there is no imminent threat to safety. Thisunwarranted action on the part of the FAA is likely to make theNTSB unhappy, for the board, undermanned and understaffed as itis, must adjust its extremely busy schedule to drop its routinematters to hear the emergency case. The board has consistentlyurged the agency to use discretion in the exercise of its emergencyauthority, and the agency has just as consistently ignored theboard in its zeal to go after anyone it suspects of being in violationof its regulations.

Blatant Abuses of Power

One of the most blatant abuses of power at the hands of the FAAhas been with the emergency revocation power. The exercise ofthis technique was designed to prevent the continuation of anunsafe condition or activity, but the agency hasn’t hesitatedto use it in cases where no emergency whatever existed, almostto the extent that it has become routine. Fortunately for theaviation community, an airman who has had his certificate revokedunder the emergency authority where no emergency exists, if heor she is willing to fight the revocation in the courts,can prevail, and even recoup the costs of the fight. And, thosewho have had certificates revoked without a valid emergency justificationfrequently prevail.

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

We must bear in mind, however, that this decision, the Frankdecision, has not prevented the agency from continuing to abuseits emergency power to revoke the certificates of airmen whenno real emergency exists. It simply means that each case mustbe fought individually, and if no genuine emergency involvingsafety can be demonstrated by the FAA, the airman is likely toprevail. This stubborn refusal of the FAA to relinquish any ofthe power it has assumed unto itself (without any justificationwhatever) has forced each individual airperson to fight for his/herrights on an individual basis each and every time, up againstthe might of the U.S. government.

Of course, if and when the airperson prevails, as he or she wellmay, he/she can recover the costs of the battle under the EqualAccess to Justice Act. This is just about the only way in whichthe agency can be held accountable for the actions of its employees.However this can be a long and involved process that many simplycannot afford nor may they have the time and energy to dedicateto such a fight.

Because of the way in which the Agency has consistently abusedits power of emergency revocation and the tremendous amount ofadverse publicity resulting from the treatment of R. A. (Bob)Hoover at the hands of the FAA, Senator James Inhofe of Oklahomahas introduced the so-called Hoover Bill which is designed toforce the FAA to demonstrate the urgent need to imposed the emergencyrevocation power. Acknowledging the definite need for the existenceof this power in legitimate cases, if passed, the bill would givethe airperson 48 hours to demand that the FAA prove the natureof the actual emergency in order to exercise that extraordinarypower.

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

In most cases, someone else has already gained the experienceyou need the hard way-keep an eye out!