FAA vs. Airman: Be Very Afraid!

EDITORIAL. If you think the FAA and NTSB learned their lessons after the public relations catastrophe surrounding the Bob Hoover affair, you'd be wrong. As recent FAA persecutions of designated examiner Howard Fried and flight instructor Mike Taylor prove, when a FSDO inspector decides to go after your certificates, don't count on much justice from the system. We think these cases are disgraceful, and that changes are needed to prevent such abuses in the future.

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FAA Flight Standards Service logoIf you think of the Flight Standards Service as the lawenforcement arm of the Federal Aviation Administration, then the Flight Standards DistrictOffice (or FSDO, pronounced “FIZZ-doe”) is the FAA’s equivalent of a policestation, and the Airworthiness, Operations, and Safety Inspectors who work at the FSDOsare the FAA’s cops. Most FAA cops…er, Inspectors…are good guys: dedicated, competent,and fair. But as in virtually any large law enforcement agency, there are always a few BadApples in the FSDO Inspector core…ah, corps…who get their kicks by flexing theirregulatory muscles, discharging their statutory weapons, and pushing airmen around toprove who’s boss.

When FAA Inspectors make trouble for airmen, it’s usually under the authority ofSection 609 of Title VI of the Federal Aviation Act which empowers them to issue ordersthat suspend or revoke an airman’s certificate. An airman whose certificate is orderedsuspended or revoked may appeal the order to the National Transportation Safety Board and,if the NTSB affirms the FAA’s order, the airman may further appeal the NTSB’s ruling inFederal Court.

In principle, this appeal process should protect an airman against unjust persecutionby a Bad Apple FAA Inspector. In practice, it often doesn’t, as two recent casesillustrate.

Designated Examiner Howard Fried

For seventeen years, Howard Fried served as a Designated Pilot Examiner in the Detroitarea. In fact, Fried is one of the best-known designated examiners in the country as aresult of his monthly column “Eye Of The Examiner” in FLYING magazine. He wasalso a high-volume examiner, having given more than 300 checkrides a year for the pastseveral years. But in 1992, an inspector at the Detroit FSDO decided – for no apparentreason – that Fried’s DPE should be taken away. Maybe the Inspector didn’t like Fried’scolumn in FLYING.

Fried’s first indication that something was wrong came when he discovered that the FSDOhad not mailed him the renewal forms that he had always received a month or so prior tothe May expiration date of his designation. He phoned the FSDO and asked to be sent thepaperwork package, but was told he’d have to take care of the paperwork when he came intothe FSDO to take his annual renewal checkride with an Inspector. Fried set up anappointment.

Over the next three weeks, Fried’s appointment at the FSDO was cancelled andrescheduled three times. The final appointment was the next-to-last day of Fried’sexpiration month, and that too was cancelled by the FSDO. The next day (one day before hisdesignation would expire), Fried received a registered letter informing him that hisdesignation would not be renewed, but advising him that he could come into the FSDO if hewished to appeal the decision.

The following day (which was the final day before his designation expired), Fried andhis aviation lawyer went to the FSDO. The lawyer pointed out that Fried was legallyentitled to “adequate notice” and the FSDO manager replied that he considered 24hours to be perfectly adequate. The lawyer requested that the FAA renew Fried’sdesignation pending the outcome of an appeal, but this request was denied. The FSDOmanager explained the appeal rights to Fried and his lawyer.

Fried’s next step was to appeal to the FAA Regional Office, for which he engaged one ofthe country’s best-known aviation lawyers, John Yodice (who also serves as AOPA’s generalcounsel). Fried and his lawyer provided written responses to the three charges that theFSDO had used to justify their non-renewal of Fried’s designation. After three months,Fried received a letter saying that the Regional Office had decided to start the processall over again by initiating the denial of Fried’s designation at the Regional Officelevel, thereby expunging the illegal actions of the FSDO – specifically their failure toprovide the required “adequate notice”. (A recurring theme in these cases isthat when the FAA breaks their own rules, they simply change the rules.)

Six months later, the Regional Office sent Fried a letter which dropped two of thethree original charges made by the FSDO and added two new ones. Fried, Yodice and Fried’slocal counsel attended a hearing before the Regional Flight Standards Manager at whichthey responded to each of the FAA’s charges. The Manager promised a response “withina week or ten days.”

The next month, Fried received a Letter of Investigation from the FSDO stating that theFAA was investigating a possible violation of Part 135, thereby launching an attackagainst Fried’s pilot certificate (not just his examiner designation). Ironically, Friedwas not involved in any Part 135 operations.

About the same time, one of the FSDO inspectors contacted another aviation writer andtold him that he ought to try to take over Fried’s monthly column in FLYING because Friedwas no longer an examiner. This was in spite of the fact that Fried was still appealingthe FAA’s non-renewal of his designation.

A few weeks later, Fried received another letter stating that the FAA had found himguilty of operating an illegal Part 135 operation and assessing a civil penalty of$291,000 against him. The operation in question was one in which Fried had leased anairplane to a major corporation for its exclusive use and control. Fried had previouslyreviewed the operation with two FAA General Aviation Operations Inspectors and had beenassured by both of them that it did not fall under Part 135, since Fried neither hadoperational control of the leased aircraft nor did he hold himself out as providing airtransport for compensation or hire. (Again, the FAA changed the rules.)

Meantime, five months had passed since Fried’s hearing at the Regional Officeconcerning the non-renewal of his examiner designation, and there was still no response tohis appeal. Yodice filed a “writ of mandamus” in Federal Court to compel the FAARegional Manager to respond to the appeal. Fried immediately received a formal denial ofhis appeal from the Regional Office.

This cleared the way for him to appeal to the National Flight Standards Office inWashington, D.C. But the National Office denied Fried’s request to present oral arguments(“don’t confuse us with the facts”) and perfunctorily denied his appeal.

Fried then filed an appeal to the First Circuit Federal Court in Washington, and JohnYodice argued the appeal before the court. The court ruled that Fried was not entitled todue process. It said, in essence, that the FAA had every right to take away Fried’sdesignation and that the due process protections of the Constitution did not apply to theFAA. This was the end-of-the-road for Fried’s attempt to retain his pilot examinerdesignation.

This left the civil penalty of $291,000 for the alleged Part 135 violation againstFried. This wound up in the United States District Court for the Southeastern District ofMichigan. Fried’s lawyer argued that the operation in question could not possibly havefallen under Part 135 because Fried neither “held himself out” as a commoncarrier nor had “operational control” of the aircraft, both of which areessential conditions for a Part 135 operation. The FAA maintained that the operation wascovered under Part 135. After much wrangling and negotiation (and knowing its case wasweak), the government finally offered Fried the option of settling the matter for $10,000if he was willing to admit his guilt, or for $20,000 without an admission of guilt. Fried(who had already spent $40,000 in this fight, not including the loss of revenue caused bythe non-renewal of his examiner designation) counter-offered $10,000 with no admission ofguilt, and the FAA accepted this settlement rather than go to trial.

During the course of his long and expensive losing battle with the FAA, Fried says thatseveral FAA Inspectors confided to him that they knew that the entire matter was a”set-up” but were unwilling to come forward because of what it would do to theircareers within the FAA. He also contends that several aviation attorneys were unwilling torepresent him for fear of reprisals against their own pilot certificates.

NOTE: Howard Fried recounts all the gory details of his ordeal in the August/September 1997 issue of USAviator magazine. You can contact Howard Fried by email at eyeofexam@aol.com.

Flight Instructor Mike Taylor

Don't airmen deserve justice, too?While attending a recent Flight InstructorRefresher Clinic to renew my Flight Instructor certificate, I met a fellow CFI named MikeTaylor from Yuma, Arizona. During a coffee break, I learned that Taylor was approachingthe end of a frustrating two-and-a-half year battle with the FAA over the suspension ofhis FAA certificates. The battle had already taken Taylor through an informal conferencewith an FAA lawyer, a formal hearing before an NTSB Administrative Law Judge, an appeal tothe full NTSB, and was now being appealed in Federal Court.

Taylor’s troubles began in February, 1995, when a former Navy fighter pilot and airtraffic controller decided to obtain a civilian Private Pilot certificate so he could flythe Varga Kachina that he’d acquired, and asked Taylor to prepare him for the checkride.The “student” had previously taken the FAA written test and passed it with ascore of 90 percent.

Taylor flew with the student and reviewed with him the various pilot operationsrequired by the Private Pilot Practical Test Standard (PTS). Subsequently, the studentprepared for a cross-country flight, Taylor reviewed his flight planning with the student,and signed the student off for the solo day XC. Taylor ended the review session byadmonishing the student to be sure to refuel the airplane at the destination before flyingback to Yuma.

The next morning, the student flew to the destination without incident. But hisdeparture was behind schedule and he was concerned about getting back to Yuma before dark.The student sticked the tanks of the Varga Kachina, decided he had sufficient fuel for thereturn flight, and decided not to take the time to refuel the aircraft (as Taylor hadinstructed him to do). Unfortunately, the student underestimated his fuel requirements andran out of fuel 18 miles short of Yuma. The student sustained only minor injuries in thecrash landing (slightly fractured wrist and minor lacerations of the forehead), but theairplane was a total loss.

The Scottsdale (Arizona) FSDO informed Taylor by registered letter that it wasinvestigating the accident for possible violations. Taylor, who ironically had been namedone of Scottsdale FSDO’s “Flight Instructors of the Year” in 1995, had alwayshad cordial relationships with the FSDO. He’d been flying for 25 years, held ATP andFlight Engineer (turbojet) certificates, a Flight Instructor certificate with airplane,instrument and multiengine ratings, and had been a Boeing 727 check airman for EasternAirlines and a B727 line pilot for Evergreen International. In all those years of flying,he’d never been hassled by the FAA. So Taylor sent a nice letter of reply to the FSDOoffering to cooperate in the investigation.

Taylor subsequently had a telephone conversation with a FSDO Inspector, who indicatedthat he had reviewed the student’s logbooks and accused Taylor of failing to provide thedual cross-country flight training required by FAR 61.93. Taylor explained that he hadspoken to another Scottsdale FSDO inspector a month earlier and asked him what trainingwas required, and that he’d been told that “the student, because of his militaryexperience, needs to be able to demonstrate all items and areas in the Private PilotPTS.”

Taylor also relied on FAR 61.41, which states that “A person may credit flighttraining toward the requirements of a pilot certificate or rating…if that personreceived the training from a flight instructor of an Armed Force in a program for trainingmilitary pilots of…the United States.” Since the student in question was a formerNavy A-7 pilot with 1,000+ jet hours, an FAA air traffic controller for six years, an F-18ground instructor for McDonnell Douglas for five years, and a senior safety analyst forthe Harrier program at MCAS Yuma, there was no question in Taylor’s mind that thisparticular student had “been there and done that” and simply needed a review andprep for the checkride. But the investigating Inspector insisted that the student’sprevious military training and experience didn’t count, and that Taylor was obligated toprovide him with the same training he would have given an ab initio student. (Onceagain, the FAA changed the rules.)

Taylor says that during that telephone conversation, the Inspector wrapped up by saying”my job is to find violations and that’s what I intend to do.” However, Taylorreceived no further communications from the FAA for nine months. Since the NTSB hasimposed a “stale complaint rule” requiring that the FAA notify an airman of anyproposed sanction against him within six months of becoming aware of a possible violation,Taylor concluded that the matter was closed.

Wrong! A full nine months after the accident, Taylor received a (non-registered) letterfrom an FAA lawyer at the FAA’s Western Regional Office saying that “it appears youmay not have received the Notice of Proposed Certificate Action that was allegedly sent toyou three months ago” and enclosing a copy of a suspension order. The stated reasonfor the suspension was an alleged violation by Taylor of FAR 61.93(c)(1)(i) which requiresa CFI to instruct a student pilot in “the use of aeronautical charts for VFRnavigation using pilotage and dead reckoning with the aid of a magnetic compass”before signing the student off for solo cross-country.

At this point, Taylor contacted an aviation lawyer, who reviewed the case and then toldTaylor there was nothing to worry about because:

  1. The student’s logbook proved that Taylor had in fact instructed the student in VFR navigation using pilotage and dead reckoning during a dual flight a week before the accident flight. (The student ultimately testified that he had indeed received such instruction.) So in fact Taylor had complied with FAR 61.93(c)(1)(i).
  2. The accident had nothing to do with navigational errors, and in fact the student crashed precisely on the centerline of Victor 66, right on course!
  3. The FAA did not notify Taylor of the proposed certificate action within six months, and offered no proof that such notice was mailed in a timely fashion. (The FAA always mails such notices by registered mail with return receipt requested, but did not receive a delivery receipt.) While there are certain exceptions to the “stale complaint rule,” none were applicable in this case. Furthermore, there is NTSB case law that establishes that if a respondant does not receive notification of a complaint due to that notification being lost in the mail, the stale complaint rule still applies.

Consequently, the attorney assured Taylor, the FAA action should be thrown out for atleast three reasons: (1) no violation occurred, (2) the alleged violation was not thecause of the accident, and (3) the complaint was stale. “Don’t worry about it,Mike,” the lawyer told Taylor. “They have no case.”

Taylor’s attorney held an informal conference with the FAA lawyer by phone; Taylor didnot participate and was not even aware of the conference until after it was over. Taylor’sattorney told the FAA in essence “you have no case against my client,” the FAAattorney got mad, and the conference ended with “see you in court.”

Taylor and his attorney appeared in a formal hearing before an NTSB Administrative LawJudge. By this time, the FAA was no longer content with a 90-day suspension of Taylor’sflight instructor certificate; they now asked for a suspension of his ATP certificate, hisFlight Engineer certificate, and even his A&P Mechanic certificate as well!

Taylor and his student both testified before the ALJ that Taylor had given the studentthe instruction required by FAR 61.93(c)(1)(i) during a dual flight a week prior to theaccident flight, and prior to Taylor’s signing off the student for solo and for the soloXC flight. Taylor’s attorney argued that the complaint was stale. The FSDO Inspectortestified that he did not believe the testimony of either Taylor or his student, sayingthat in his opinion the 1.5-hour dual flight would have had to be at least 3 hours long toinclude everything that Taylor and his student said was covered. Taylor’s attorneyattempted to rebut this by allowing Taylor to testify that the student was ahighly-experienced pilot and that the instruction was conducted more in the nature of aflight review rather than the sort of drill that might be done with a low-time student.However that testimony was not allowed. The ALJ cut Taylor’s attorney off, saying”I’ve heard enough” and ruled in favor of the FAA right on the spot (although hereduced the proposed 90-day suspension to 60 days).

Taylor appealed the ALJ’s ruling to the full NTSB, but they affirmed the suspension.

The case is now before the Ninth Circuit Court of Appeals. Taylor’s attorney has filedpleadings with the court, and Taylor is awaiting his day in court. But at this point inthe appeals process, the issues of fact (like whether or not Taylor did provide theinstruction required by the FARs) are no longer under consideration, and Taylor’s chancesfor a successful appeal appears to hinge solely on whether the “stale complaintrule” was violated. Taylor asked AOPA to file a “friend of the court” briefin his appeal, but AOPA declined to do so. Knowledgeable observers say that it’s not verylikely that the court will overturn the NTSB’s ruling.

Taylor has now invested more than two years and $20,000 in fighting this battle. He’san ex-airline pilot who had hoped to fly for the airlines in the future, and knows thatthis violation would kill any chance he might have of ever flying for a living again. Andalthough Taylor doesn’t have the public visibility of a Bob Hoover or Howard Fried, hiscase should be worrisome to all pilots because it could set a precedent that wouldundermine the NTSB’s “stale complaint rule,” which serves as the statute oflimitations that prohibits the FAA from pursuing violations against airmen more than sixmonths after the fact.

You can contact Mike Taylor by email at telegraph@digitaldune.net.

Lessons Learned

What can we all learn from the misfortunes of Bob Hoover, Howard Fried and Mike Taylor?There are several lessons here:

  • If an FAA Inspector decides to go after your certificate, he’s probably going to succeed no matter how valiantly you fight for Truth, Justice and the American Way. So it’s best to keep a low profile and not get any FSDO folks mad at you in the first place. They don’t fight fair, and they have a lot more money to spend on lawyers than you do.
  • Join a legal plan like the AOPA Legal Services Plan. Defending yourself against an FAA certificate action can easily cost many tens of thousands of dollars.
  • Never rely on anything an FAA Inspector tells you unless you get it in writing or on tape. The next Inspector you talk to may hold a diametrically opposite interpretation, and he may be the one going after your ticket.
  • If you are involved in an accident or incident or receive a letter from the FAA saying that they’re investigating a possible violation, don’t say anything to anybody until you’ve contacted an experienced aviation lawyer. Even then, don’t say anything (or let your lawyer say anything) unless you have a tape recorder running or a court reporter transcribing the conversation. If it’s your word against theirs, the judge will believe them. And you sure don’t want to give the FAA Inspector any more information to use against you than he already has.
  • If you’re a Flight Instructor, document every detail of the instruction you give your students in triplicate. Staple one signed copy in your student’s logbook, keep the second copy in your own logbook…and send the third to your lawyer, just in case!

Gosh, I hate to come across paranoid. My own personal experience with the FAA in somethirty years of flying has been very positive. The great majority of FAA folks arehonorable, dedicated and fair. The American airspace system offers more safety and freedomthan any other in the world.

But you never can tell when you’ll come to the attention of a Bad Apple Inspector.Unfortunately, they’re out there. So until the system is changed, until the Bad Apples areweeded out of the FSDOs, until an airman’s appeal process becomes something more than justa series of rubber-stamp affirmations of the Inspector’s original charges, and until a BadApple Inspector can be held accountable for malicious prosecution of an airman, I’m afraidwe’d all better keep our heads down and our powder dry.

NOTE: In a companion article, AVweb’s aviation law editor Phil Kolczynskioffers Ten Tips To Avoid Becoming A Victim.