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FAA Enforcement Actions

We pilots are a rare breed. Just a fraction of one percent of the U.S. population is licensed to fly. When you fly, whether professionally, for business, or for personal travel and pleasure, you have a big financial investment in your airman's certificate. Many of us have a similarly large investment in a personal aircraft. As important – perhaps more so – is our emotional investment in what we do. We fly because we love it. And so we do all we can to protect our ability to preserve and protect the remarkable thing that we love, the ability to soar through the sky like birds.

We do so knowing that with privilege comes responsibility. We fly according to rules to keep ourselves, our passengers, and the public safe. We also know that mistakes happen. We've all made them. We're not perfect, and despite our best efforts to eliminate errors, will continue to make them. Thus, we live with the possibility that the FAA may one day discover one of those mistakes and take action to deprive us, temporarily or permanently, of the privilege of flight.

t does not matter whether you are an airman, mechanic, repair station owner, air traffic controller, parachute rigger, dispatcher, airline, drone operator, you do not want to receive a Letter of Investigation (LOI) from the FAA. While your first inclination may be to respond to an LOI immediately, slow down. You have a lot at stake, you have rights, and the FAA has the burden of proving its case against you. Say the wrong thing and you may just make the FAA's case against you. If that happens there may be little that the best lawyer will be able to do to help you. So this is the time when legal help from an aviation attorney is most important.

The FAA's new "compliance philosophy," sometimes referred to as the “kinder and gentler FAA,” has reduced the number of enforcement actions brought nationwide. The policy de-emphasizes enforcement in favor of open communication and remedial training. In our view, and that of many aviation attorneys, the jury is still out on this. We have seen situations in which FAA inspectors have adhered to the new policy with positive results for the airman and the FAA. On the other hand, we know of situations in which the punitive enforcement attitude remains in effect. We have even seen situations where both policies are manifested in a single case in a “good cop-bad cop” approach. For now, the best approach for airmen usually remains the cautious one: get objective advice before throwing yourself on the mercy of the FAA. When the FAA decides that a possible violation is not appropriate for the compliance philosophy, it is likely to pursue the violation as an emergency revocation. If that happens time is critical.

If the FAA pursues enforcement against your certificate or seeks a civil penalty there is a process that typically starts with an informal conference and proceeds to a trial before an NTSB Administrative Law Judge. And adverse decision potential can be appealed to the full National Transportation Safety Board and beyond. This is a legal maze that the wise will not try to navigate on their own.  Sanctions can range from a short suspension to revocation of flight (or other) privileges. Although less common, the FAA is empowered to impose fines called "civil penalties" for violations of the Federal Aviation Regulations (FAR). Penalties can go as high as $50,000.00.

In most cases involving an FAA request for a certificate suspension, you can continue to fly pending the final outcome of your case. The burden of proof is on the FAA to prove by a preponderance of the evidence that you have violated a regulation. There is a worse scenario, however. If the FAA believes that you are a threat to air safety or are not qualified to hold your certificate, an Emergency Order of Revocation may be issued. An Emergency Order is effective immediately. Accelerated procedures apply in an emergency revocation proceeding and there is a very short time respond. If you see the words “Emergency Order” on correspondence from the FAA, do not wait – not even a minute – to seek legal assistance from an aviation attorney.

4 THINGS YOU CAN DO RIGHT NOW

WATCH WHAT YOU SAY

Don't bring the rope to your own hanging. What's the rope? Your own words. During any enforcement investigation, the FAA will afford you at least three opportunities to explain yourself. Be careful about accepting the invitation. Anything that you say or write can and will be used against you. The single best piece of information that we can offer here is to talk to a qualified aviation attorney before you utter a word to the FAA. We know it sounds self-serving, but we've seen too many instances where pilots have given away viable defenses or talked themselves into a violation because they spoke to the FAA but did not understand the ramifications of what they said.

SLOW DOWN

You wouldn't rush through an emergency procedures checklist and risk missing something important, would you? Sure there's pressure when you hear from the FAA, but don't rush. Take your time and look for an attorney with whom you are comfortable. Then take his or her advice. An important exception to this is if you receive an Emergency Order of Revocation. If that happens, firewall the throttle and get legal help on board without delay.

DON'T DRINK AND DRIVE

The FAA takes a dim and rigid view of alcohol and drug offenses by pilots and mechanics. If you pick up a DUI conviction, you have reporting obligations. Those obligations are not always clear, but the FAA doesn't care about that and the NTSB has backed them up. You can't hide it; they will find out. Botch this and you could find yourself ground bound, or unable to work on airplanes if you're a mechanic, for a long time. If you get a DUI, get legal help promptly to minimize the damage. Even better, keep the adult beverage consumption at home.

BONUS TIP

File a “NASA Report.” We have all been taught about the Aviation Safety Reporting System, which allows us to file a report with NASA for safety study purposes when we think that a violation of regulations has occurred. If you are asked to “call the tower” after landing, or just have an “uh-oh, I just messed up” feeling, file the report.  It won't help you to avoid a violation, but it will help you to avoid or minimize a suspension.

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