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.
It 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.
If the FAA pursues enforcement against your certificate or seeks a civil penalty against you, there is a process that starts with a possible informal conference, through a trial before an NTSB Administrative Law Judge, and potential appeal to the full National Transportation Safety Board and beyond. This is a maze that you should not try to navigate without help. Sanctions can range from a short suspension of flight (or other) privileges, to revocation. Although less common, the FAA is empowered to impose civil penalties for violations of the Federal Aviation Regulations (FAR). Penalties can reach 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 certificates, an Emergency Order of Revocation may be issued. If an Emergency Order is issued, it is effective immediately. Special procedures apply in an emergency revocation proceeding and you will have very short time respond. If you see the words “Emergency Order” on something that you receive from the FAA, do not wait – not even a minute – to seek legal assistance from an aviation attorney.
You may have read of the FAA’s new compliance philosophy, sometimes referred to as the “kinder and gentler FAA.” 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 know of situations in which FAA inspectors have adhered to the new policy with positive results for the airman and the FAA. We know of situations in which the old punitive enforcement attitude very much 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 some objective advice before you throw yourself on the mercy of the FAA. When the FAA decides not to use the compliance approach it is more likely to pursue the violation as an emergency revocation. If that happens time is critical.