AircraftOwner Online

    Most commonly, this issue came up in regard to the airman’s answers to Question 18v on the Application to Renew Medical Certificate. The FAA basically felt that it was totally incredible to believe that someone who had been stopped by the police for a supposed alcohol-related charge, and who answered “no” to the question, didn’t intend to deceive the FAA. In the collective mind of the FAA, pilots should know that they need to err on the side of full disclosure of all alcohol-related stops.

    Question 18w also came in for review. The question asks about convictions for crimes other than non-alcohol-related traffic crimes. One pilot, who had a criminal conviction for forgery, testified that he had discussed this question with his AME. Both he and his AME told the Administrative Law Judge that the AME had advised the pilot that the only thing the FAA was interested in on this form was a conviction for alcohol or drug-related matters. The NTSB felt that this information was irrelevant because the pilot also testified that he now understands that this information was incorrect and that he should have answered the question “yes”. The DC Circuit Court ruled that the NTSB had to consider the pilot’s arguments and testimony, and could not simply ignore it.

    As many of you are aware, the FAA has been using its “emergency” powers more and more recently lately. In fact, as of last year, fully 46% of all of the appeals heard by the NTSB from decisions made by Administrative Law Judges were from emergency appeals. This means that more than half of all FAA enforcement actions are now classified as “emergency” actions, forcing the airman to send back his or her certificates, stop flying immediately, hire counsel and prepare to go to trial within 30 days. To make matters worse, the FAA had convinced the NTSB that it did not have to prove “intent” to falsify an entry when trying to prove that an airman was guilty of the offense of “intentional falsification”, resulting in the airman being deprive of a hearing if the FAA could simply prove that the information on the forms submitted by the airman was false. This combination of having to defend under the expedited procedures of the emergency determination by the Administrator, and not even being able to show any circumstances under which an improper or incorrect statement might not have been intended by the airman to deceive the FAA, has resulted in a huge number of airmen losing their flying privileges for things that, in years gone by, would never have resulted in such a severe penalty.

    While these two new cases are important, they still give a lot of latitude to the NTSB and the Administrative Law Judges to rehear the cases involved and still to make rulings in favor of the FAA and against the airman. The primary benefit of these cases, however, is that this is one more reminder, from a very high judicial authority, that the FAA really has an obligation to prove that the airman did something wrong and that the appropriate punishment for what the airman did wrong is revocation of the airman’s certificates.

    We can only hope that, at some time in the near future, both the Courts and the Congress will take a look at the way in which the FAA has used its determination that an “emergency” exists. Only the most radical of pilots or lawyers would argue that the FAA should not have the power to enact regulations and to make sure that airmen follow those regulations. In most cases, however, where the FAA believes that a violation exists, I think most informed people would agree that the airman is entitled to an opportunity to present his or her side of the story, and to have his or her arguments listened to by a neutral party. Sane people would also not differ on the fact that the government needs to have the power to stop an activity that imminently threatens the lives of the traveling public, or of people on the ground, without having to wade through a whole bunch of red tape to stop the dangerous activity.

    But many of us in the field have noticed that many, if not most, of the actions the FAA is bringing under its emergency power do not appear to have any imminent threat to the safety of flight. They are, for want of a better adjective, “garden variety” technical regulatory paperwork violations. In some cases, the FAA has researched and investigated the operations for years, and there have been no accidents, or even history of safety violations, when the FAA suddenly files an Emergency Order of Revocation, essentially grounding the operator immediately. In the cases of small operators, this immediate cessation of business usually spells the end of the business in its entirety. The operator simply lacks the cash reserves to keep paying rent, salaries, and other expenses for several months, while at the same time hemorrhaging cash to pay for attorneys and expert witnesses. In effect, even if the operator or the airman prevails in the end, the business has been ruined.

            There is an urgent need to scale back the types of actions for which the FAA can bring an emergency revocation to limit the cases in which they use this drastic power to situations where air safety is truly at issue. These DC Court of Appeals cases, merely hint at a part of the solution. Much more action is needed to solve the underlying problem.