INTRODUCTION
The Federal Aviation Administration is an administrative agency rather than part of the judiciary. It’s rules and regulations, however , have the force of law in their application to pilots and other certificate holders. The term “traffic cop of the skies” has been used to described the FAA’s regulatory function. This police enforcement function is of great concern to pilots, aircraft owners and business operators. The nature of regulations and practices employed by the FAA is such that any pilot–no matter how conscientious, proficient or well intentioned–could become the object of a violation charge.
Most pilots have little understanding of their substantive or procedural rights. Few are qualified to deal on equal footing with an FAA inspector or attorney in defending against FAR violation charges. PILOTS’ BILL OF RIGHTS is a summary that will acquaint pilots with their basic rights and the procedures available to protect those rights.
* RIGHT TO FLY
The right to fly is a basic right of every American. This is so even though at times it has been referred to as a “privilege” rather than a right. As with all basic human rights, however, there are guidelines that must be observed to assure compatibility with rights of others. The FAA has authority to establish these guidelines through rules and regulations.
* RIGHT TO PILOT CERTIFICATE
Everyone who meets the standards set by FAA for pilot certification has a right to a pilot certificate. A pilot must demonstrate technical knowledge and piloting skills to meet these standards. As a corollary, a pilot must also meet medical standards to qualify for a medical certificate.
* RIGHT TO USE AIRSPACE
Airspace in which flight is conducted is a national resource not owned by any person, organization or government. The right to use the airspace for flight is a personal basic right. By the nature of flying, however, considerable regulation is necessary. This is to assure an adequate degree of protection of others, and to prevent unreasonable interference with personal enjoyment of their homes and property.
* RIGHT TO REMAIN SILENT
A violation action against a pilot is usually preceded by a personal telephone call or letter from an FAA safety inspector. The inquiry will generally be of a “tell me what happened” nature. The pilot should recognize this as a red warning flag. The inspector will not state that the pilot has a right to remain silent, nor that any statement made at that time can later be used against the pilot.
* RIGHT TO PRESENT WRITTEN STATEMENT (Caution!)
A pilot may receive from the FAA a Letter of Investigation– referred to by some as a “fishing” letter. The letter will suggest that the pilot should respond with comments supporting the pilot’s view of the incident which is the subject of investigation. If the pilot responds, it should be with extreme caution. Any response can later be used against the pilot to prove the FAA’s charges.
* RIGHT TO REPRESENTATION BY ATTORNEY
A pilot has a right to be represented by an attorney from the moment of first contacted by an FAA inspector. Although representation by an attorney does not guarantee that the pilot will “win”, an attorney experienced in FAA and NTSB procedures can assist. A pilot who is not represented by an attorney is at a severe disadvantage in competing with FAA inspectors and attorneys.
* RIGHT TO INFORMAL CONFERENCE
A Notice of Proposed Certificate Action usually is accompanied by a statement that the pilot will be afforded an opportunity to meet in an informal conference with an FAA attorney to discuss the charges. A request for such a conference may be or may not be wise. At this conference a pilot may be able to point out errors of fact in the FAA’s version. Without the assistance of an experienced attorney, however, the pilot will be at great disadvantage in negotiating with the FAA attorney–and may inadvertently provide additional information which the FAA will use against the pilot.
* RIGHT TO OFFER COMPROMISE
At an informal conference, a pilot has a right to negotiate with an FAA attorney in an attempt to have the charges dropped, or to reduce a proposed certificate suspension period. This includes an attempt to convince the FAA attorney that the pilot should be allowed to pay a civil penalty (fine) instead of license suspension.
* RIGHT TO APPEAL TO NTSB
If the FAA issues an order suspending or revoking a certificate, the pilot has a right to appeal to the National Transportation Safety Board. A critical procedural requirement is that the pilot must notify the NTSB within 20 days that the pilot is appealing the FAA’s order.
* RIGHT TO DUE PROCESS ADVERSARIAL HEARING
A pilot charged with violating a Federal Aviation Regulation and who has appealed to the NTSB is entitled to an adversarial public hearing before a judge of the NTSB. While it is not procedurally mandatory that the pilot be represented by an attorney, it is highly recommended that one be retained if the pilot is to prevail.
* RIGHT TO HAVE FAA PROVE CHARGES
If a pilot requests a hearing by an NTSB judge, the FAA has the burden of proving that the pilot committed the violation charged. The FAA must prove the charges by a “preponderance of substantial, reliable and probative evidence.” The judge has wide discretion in weighing evidence presented by both the FAA and the pilot.
* RIGHT TO CROSS EXAMINE FAA WITNESSES
An accused pilot has a right to cross-examine FAA witnesses who in an NTSB hearing gives adverse testimony. In addition, the pilot can present witnesses for the purpose of impeaching testimony of an FAA witness.
* RIGHT TO PERSONALLY TESTIFY
Although an accused pilot cannot be required to testify unless FAA obtains a subpoena, the pilot has a right to testify. Whether or not a pilot should testify would depend on overall strategic evaluation and need for such testimony. A pilot who personally testifies at the hearing is subject to cross-examination by the FAA attorney.
* RIGHT TO PRESENT OTHER EVIDENCE
During a public hearing, a pilot has a right to present the testimony of witnesses or introduce other evidence. Records, photographs, maps, charts and other objects that are to be introduced should be carefully evaluated and prepared in advance of the hearing.
* RIGHT TO APPEAL JUDGE’S DECISION
If an NTSB judge rules in favor of the FAA, a pilot has a right to appeal to the full five- member National Transportation Safety Board. A written Notice of Appeal must be mailed within 10 days of the law judge’s order. This must be followed within 40 day by a legal brief. This is a highly detailed legal and technical document which requires the skills of an aviation attorney.
*RIGHT TO APPEAL TO U.S. COURT
If the full five-member National Transportation Safety Board rules against the pilot, there is a right to appeal to the U.S. Circuit Court of Appeals. This requires following the Court rules and procedures in filing a legal brief. Its purpose is to convince the court that both the law judge and the Board erred in not deciding in the pilot’s favor.
* RIGHT TO MEDICAL CERTIFICATE
The right to fly is conditioned on a pilot’s meeting certain medical standards established by the FAA. A pilot meeting these standards has a right to a certificate evidencing these qualifications. FAA may question a pilot’s qualifications to hold a certificate. This may be during examination by an FAA designated Airman Medical Examiner, or later after a certificate has been issued.
The time at which the question of disqualification arises may be significant for purposes of procedure. If it arises when an application is made to a local AME and before a certificate is issued, the burden is on the pilot to show the he/she meets the FAA’s medical standards. If it arises after a certificate has been approved by the medical branch in Oklahoma City, the FAA has the burden of proving that the pilot no longer meets the medical standards.
COMMENT: Readers who are familiar with the much-publicized Bob Hoover case can understand that the medical review procedures do not always work the way they should. Apparently Mr. Hoover was not aware that he could make the FAA prove that he lack qualifications to continue holding a certificate. Instead, he misunderstood as mandatory an informal request from FAA that he voluntarily surrender his medical certificate. Upon discovery of this mistake, his request for return of the certificate was not honored.
