by Peyton H. Robinson
The aviation industry is highly regulated by the Federal Aviation Administration (FAA). Pilots, airlines, flight schools, maintenance shops, fractional ownership businesses, charter operations, and others in the industry have to contend with strict regulations and potentially severe penalties for missteps. An alleged violation of a regulation could mean an enforcement action against the business or individual and is where an attorney’s assistance could be critical. Yet many lawyers do not know what processes may apply in FAA investigations and prosecutions.
This article provides a high-level overview of FAA enforcement actions, and is intended to help enlighten lawyers advising aviation clients about what processes apply. The majority of this discussion focuses on procedures affecting the approximate 670,000 pilots holding active airmen certificates, including nearly 7,600 that are located in Utah (database available at http://www.faa.gov). However, FAA processes affect aviation businesses as well (and many aviation businesses in Utah are owned by pilots).
The FAA Can Investigate Potential Violations
The Federal Aviation Act authorizes the Administrator of the FAA to conduct investigations, hold hearings, issue subpoenas, require the production of relevant documents, records, and property, and take evidence and depositions. See 14 C.F.R. § 13.3 (2012); see also 49 U.S.C. §§ 40113, 44709, 46101 (2006). On the FAA side, the lead investigator will typically be an Aviation Safety Inspector (ASI) from the Flight Standards District Office (FSDO, commonly called fizz-doe) with jurisdiction over the area where the potential violation occurred. The ASI could be involved due to a regularly scheduled audit, an ASI-initiated check, an Air Traffic Control (ATC) report, a witness report, an accident, or any other number of ways a violation may appear to have occurred.
Results of an FAA Investigation
Generally, seven things can occur as a result of an FAA investigation:
(1) No action;
(2) Oral or written counseling;
(3) Administrative action;
(4) Remedial training;
(5) Request for reexamination;
(6) Legal enforcement action; and
(7) Criminal action.
The first two results are minor in relative terms, and criminal action is beyond the scope of this article. Since the first two events result in no material action (though doubtless there could be a lot of stress and concern), and the last could be its own article, I will focus on items three through six.
An administrative action represents the first significant step in an FAA enforcement action. The FAA officially recognizes two types of administrative actions: a “warning notice” and a “letter of correction.” See 14 C.F.R. § 13.11. If legal enforcement action (discussed below) is not required, such as in the more serious strata of errors, the administrative action may be approved. The purpose is to bring the incident to the attention of the alleged violator, document corrective action if required, encourage future compliance, and provide a record for the FAA. In administrative action cases, there is evidence to show some violation, but the action does not officially charge the person or entity with a violation. See FAA Order 2150.3B with Change 4 Included, Chapter 5.3.a, available at http://www.faa.gov/regulations_policies/orders_notices/index.cfm/go/document.information/documentid/17213.
A warning notice is a letter or form addressed to the violator that points out the facts and circumstances of the incident involved, and that the violator’s action or inaction appears to be contrary to the regulations, but does not warrant legal action. The warning notice requests future compliance with statutory and regulatory requirements.
A letter of correction serves the same purpose as a warning notice but is generally used where the violator agrees to take some action within a certain period of time. The purpose of the correction letter is to bring attention to the apparent violation and to document action that has been or will be taken to correct the situation. Typically, the FAA issues two letters. The first letter states the agreement for the violator to take some action by a specific date. The second letter then acknowledges that the required action was completed (or not completed, with potential sanctions to follow).
The FAA considers the following factors when determining whether to allow administrative action instead of a more serious sanction:
(1) Legal enforcement action is not required by law, and administrative action would serve as an adequate deterrent to future violations;
(2) For pilots, he or she is otherwise qualified for an airman’s certificate;
(3) The violation was inadvertent and not purposeful;
(4) There was not a substantial disregard for safety or security, and there were no aggravating circumstances;
(5) The alleged violator has a constructive attitude toward complying with the regulations; and
(6) There is not a trend of noncompliance indicated by past violations.
See id. FAA Order 2150.3B, Chapter 5.4.b.
Remedial training might be an option for an airman being investigated for a potential violation. Take for example the following scenario: a pilot takes off under instrument flight rules and is given a heading and altitude by ATC. However, the pilot fumbles with the autopilot on takeoff and is unable to program it correctly to handle the instructions, deviates from the heading and altitude, causes ATC to divert an incoming aircraft to avoid a mid-air collision, and thereby finds him or herself in trouble. In this case, remedial training on autopilot operation and instrument skills might be required to keep the airman’s certificate.
In cases where remedial training is an option, pilots should generally take it (if he or she wants to continue to fly). It may be offered as part of an administrative action, such as with a letter of correction, and it may be included with a Letter of Investigation (LOI) at the start of a legal enforcement action. If the training is available, it will be specific to the event that led to the enforcement action. The pilot will sign an agreement to undergo specific training from a flight instructor designated by the FAA. A letter will outline the reason for the training, the date by which it must be completed, and contact information for the instructor.
The factors the FAA considers for remedial training are as follows:
(1) Can future compliance reasonably be ensured through remedial training alone;
(2) Does the airman display a constructive attitude;
(3) Does the conduct display a reasonable basis to question the airman’s qualifications (e.g., false medical records, or other core requirement issues);
(4) Does the airman have a record of enforcement actions; and
(5) Was the conduct deliberate, grossly negligent, or a criminal offense?
See id. FAA Order 2150.3B, Chapter 5.9.d
Request for Reexamination
A request for a reexamination, or “709 Ride,” is surely one of the more stressful events for a pilot and deserves serious attention. It is authorized under 49 U.S.C. § 44709(a). The statute allows the Administrator of the FAA to investigate whether a pilot should be allowed to exercise the privileges of his or her airman’s certificate. The FAA does not view the 709 Ride as a punitive measure, and completion of the Ride is only one factor in proving qualification for a certificate or rating. For example, if an airman is subject to legal enforcement proceedings, the satisfactory completion of a 709 Ride does not preclude further actions by the FAA. See id. FAA Order 2150.3B, Chapter 5.6.a.
The reexamination is limited to the reason for the request, and will be stated in the correspondence to the pilot. The pilot can request to change an inspector or FSDO but may need to temporarily surrender his or her airman’s certificate pending reexamination. Any airman subject to a 709 Ride should, at a minimum, get training before the FAA reexamination and log it. The pre-Ride training will demonstrate appropriate attention to the issue, and show a desire to be compliant with FAA rules.
According to FAA Order 2150.3B, the failure or refusal to submit to a 709 Ride can lead to the issuance of an emergency order suspending the pilot’s certificate. Some allowances can be made for weather or conveniences of the airman, but they are not unlimited. If the pilot fully cooperates, and yet still (for whatever reason) fails the 709 Ride, the pilot may be able to try again; however, the FAA will typically only allow two attempts to pass. See id. FAA Order 2150.3B, Chapter 5.6.d(3).
Legal Enforcement Action
The consequences for the pilot or business in a legal enforcement action can be catastrophic. At this stage, the FAA is considering a more severe sanction, such as suspension or revocation of the airman’s certificate, or the potential imposition of civil penalties. The FAA attorneys are now involved, rather than just the local FSDO, and the airman or business must respond to the legal action or be subject to sanctions.
Generally, a legal enforcement action is initiated against an airman or aviation business in four ways:
(1) Letter of Investigation;
(2) Notice of Proposed Certificate Action;
(3) Notice of Proposed Civil Penalty; or
(4) Order of Suspension, Revocation, or Civil Penalty.
The LOI is merely a notice to the airman or business that a formal investigation is ongoing. A response by the subject of the investigation is not required, and any response may be used as evidence against the airman.
If pilot remedial training is offered in the LOI, then the pilot must respond if remedial training is desired. There are some important strategic considerations in responding to the LOI. For example, a response can indicate a desire to comply with the regulations and show cooperation with the FAA’s rules. On the other hand, inadvertent missteps in a response can lead to greater sanctions than would have otherwise been the case if the investigation subject had said nothing.
The Notice of Proposed Certificate Action (NPCA) is a demand from the FAA for the airman or business to respond or else to have his or her certificate suspended or revoked. The NPCA will typically offer a series of options:
(1) Admit the charges and surrender the certificate (foregoing later appeal);
(2) Respond to the NPCA with an answer or explanation, including any evidence;
(3) Request the FAA issue an order suspending the certificate, so that an appeal may be taken to the National Transportation Safety Board (NTSB); or
(4) Request an informal conference with an FAA attorney.
See 14 C.F.R. § 13.19(c) (2012); see also FAA Order 250.3B, Chapter 6.10.c. If the recipient of the NPCA fails to respond, an order of suspension or revocation will be issued. An appeal to the NTSB may still be made at that time, but the failure to respond or appeal when given an opportunity to do so will mean the order of suspension will stand. For example, in Administrator v. Reid, NTSB Order No. EA-5150 (2005), the pilot failed to appeal the original order of suspension. When the pilot was later assessed a civil penalty for the failure to surrender his airman and medical certificates as a result of the order, the pilot was prevented from contesting the original order of suspension.
The request for an informal conference with the FAA attorney handling the case can be part of the response, along with an explanation. The informal conference is “confidential,” but discussions in the conference may still be used for impeachment in a later hearing for any statements that are inconsistent with representations made at the conference. The certificate holder or his or her attorney should obtain the FAA’s Enforcement Investigative Report (EIR) before the conference. The EIR will explain the Aviation Safety Inspector’s (ASI’s) view of the case, and represent the FAA attorney’s starting assessment of the case. If the ASI or FAA attorney are unwilling to hear the airman’s side of a case (e.g., whether some action was reasonable), then the certificate holder retains the right to appeal from a certificate action. The informal conference is not necessarily the last chance to be heard.
A civil penalty is most commonly asserted against companies or entities versus individual airmen. However, under certain circumstances, such as refusal to comply with an order to surrender the airman’s certificate, a monetary penalty may be part of the FAA sanction. Options for the airman in responding to a Notice of Proposed Civil Penalty (NPCP) include:
(1) Pay the penalty or an agreed upon amount;
(2) Answer the charges in writing;
(3) Submit a written request for an informal conference; or
(4) Request that an order be issued so that an appeal can be made to the NTSB.
See 14 C.F.R. § 13.18(d). Failure to timely respond to a NPCP will lead to an order of assessment against the airman. A timely appeal may still be filed with the NTSB after an order assessing a civil penalty is issued, but time constraints are tight. Failure to pursue administrative remedies (such as appeals) can mean the pilot forfeits the right to challenge the fine.
Where the FAA has issued an order of suspension, revocation, or civil penalty, an appeal to the NTSB is possible. The appeal of an FAA enforcement action is formally to the NTSB, but first goes to an administrative law judge (ALJ) for hearing. After the ALJ issues an initial decision, a further appeal may be taken to the full NTSB (the Board). The Board’s consideration of issues on appeal from the ALJ is limited, primarily to errors of procedure, whether substantial questions are raised, or whether the findings of fact are adequately supported. See 49 C.F.R § 821.49 (2012).
After the Board issues a decision, the airman may take an appeal to the D.C. Court of Appeals for the District of Columbia, or to the circuit court of appeals in the area where the airman lives or has a principal place of business. Both the FAA and the airman may appeal the Board’s final decision. Depending on the circumstances, the Board may allow a delay in the effective date of an order while the appeal is taken to the circuit court.
For many years, the FAA has had a policy of expunging certain enforcement actions after a period of time from a pilot’s record. In “no action” cases, the records of an FAA contact are removed after ninety days. In administrative actions, such as the warning letter, the record is expunged after two years from the issuance of the action.
For the more serious legal actions, the pilots’ records used to be expunged in five years, but a 2010 amendment to the Pilot Records Improvement Action (PRIA) led to a change in FAA policy. Now there is no expunction of legal actions (certificate actions or civil penalties) pending the FAA figuring out how to comply with the new PRIA provisions. See FAA Policy Statement on Expungement of Certain Enforcement Actions, 76 Fed. Reg. 7893, 7893-94 (Feb. 11, 2011), available at http://www.gpo.gov/fdsys/pkg/FR-2011-02-11/pdf/2011-3101.pdf; see also Pilot Records Expungement Policy Changes, Frequently Asked Questions, available at http://www.faa.gov/pilots/lic_cert/pria/guidance/pilotfaq/.
Aviation Safety Reporting System
The Aviation Safety Reporting System (ASRS) is operated by the National Aeronautics and Space Administration (NASA). The ASRS began soon after the crash of Trans World Airlines Flight 514 on Dec. 1, 1974, as one of several safety initiatives to increase information reporting. See Bruce Landsberg, Landmark Accident: Cleared for the Approach, One accident led to many changes, 41 AOPA Safety Publications/Articles (June 1998), available at http://www.aopa.org/asf/asfarticles/sp9806.html.
Where a pilot has made an inadvertent error and possibly violated a regulation, the pilot may file a report with NASA. The program is voluntary, confidential, and non-punitive. If the incident is the subject of an enforcement action thereafter, the pilot could still be found in violation, but will escape the certificate suspension time or civil penalty if a report was timely filed. Some people call it a “get out of jail free card,” but in practice, it provides no protection for criminal violations. Still, when contacted by an airman for legal advice concerning an incident, the use of the ASRS should be one of the first considerations.
The pilot has to prove that a report was filed, and it is time critical – a report must be filed within ten days of the event, or within ten days of the date when the airman was aware or should have been aware of the event. The report can be made online or a form may be obtained from the ASRS website and mailed. See http://asrs.arc.nasa.gov. In either case, the airman receives a time-stamped ticket showing the report was timely filed.
A relatively new ASRS Advisory Circular provides a general discussion of the program, see AC 00-46E – Aviation Safety Reporting Program, available at http://www.faa.gov/regulations_policies/advisory_circulars/index.cfm/go/document.information/documentID/1019713, and notes that 14 C.F.R. § 91.25 limits the use of the report in any disciplinary action except accidents and criminal offenses, see 14 C.F.R. § 91.25 (2012). There are a few other limitations discussed as well.
The potential violation must have been “inadvertent and not deliberate.” The airman must not have had a finding of a violation in the prior five years before the event (but ASRS reports can be filed as often as needed). The alleged violation cannot have involved a question of competency or qualification for the certificate (i.e., such as a false statement on a medical form), and as noted above, the event cannot have involved a criminal offense or an accident.
The New Pilot’s Bill of Rights
The “Pilot’s Bill of Rights” was signed into law by President Obama on August 3, 2012. See S. 1335, 112th Cong. (2012), available at http://www.gpo.gov/fdsys/pkg/BILLS-112s1335enr/pdf/BILLS-112s1335enr.pdf. The Pilot’s Bill of Rights gives pilots who may be subject to enforcement actions some much needed help in obtaining a fair process or hearing. Some significant points are:
(1) The Federal Rules of Civil Procedure and the Federal Rules of Evidence now apply “to the extent practical.” See id. § 2(a). Before the law, such rules were more general guidelines.
(2) The FAA must now provide “timely, written notification to an individual who is the subject of an [FAA] investigation relating to the approval, denial, suspension, modification, or revocation of an airman certificate under chapter 447 of title 49, United States Code.” Id. § 2(b)(1). There is an exception, but for the most part, airmen will now be advised promptly if they are subject to an investigation.
(3) The NTSB is no longer bound by FAA interpretations of its rules. This has been a huge issue in some cases. Although it is not clear at this early stage how the FAA will respond, the new law may at least allow an airman to have more of an argument that the FAA is not being fair in interpreting its own rules.
(4) Airmen can obtain air traffic control and flight service station data, or other information from a “government contractor that provides operational services to the Federal Aviation Administration, including control towers and flight service stations.” Id. § 2(b)(4)(C)(i). In the past, such contractors would refuse to provide records of briefings because they were not bound by the Freedom of Information Act.
(5) Procedures for Appeals have opened up a little to allow an airman, at his or her election, to go to the local federal district court for review, instead of having to go up through the NTSB and then to the circuit courts.
(6) The FAA has to begin a “Notice to Airmen Improvement Program.” Id. § 3(a)(1). The goal is to improve the dissemination system and access to data, both current and archival.
(7) The Comptroller General must begin a review of the FAA’s medical certification process. One of the significant goals is to “avoid unnecessary allegations that an individual has intentionally falsified answers on the form.” Id. § 4(b)(1)(D).
The FAA and the NTSB have already issued some public statements about the new law, but more guidance is still to come.