“November 12345, ATC would like you to call this number...” Pulse picking up yet? Patrick Bailey, a Santa Monica, Calif. attorney, recently prepared a presentation on “What to do if the FAA calls or writes,” and for pilots it makes sobering reading.
“What would you do? Remember, it’s being recorded, everything you say on the radio, telephone or in person. It’s possible to hang yourself that fast,” he said with a snap of his fingers. “You’ve got to assume they’re building a case against you from the first minute. And remember, with the FAA you have no Miranda rights.”
Bailey explained the flow chart of FAA enforcement following an incident, accident or alleged FAR infraction. The process begins at the Flight Standards District Office (FSDO) level with a letter of investigation (LOI) from an inspector to the pilot. It may end with any one of five enforcement procedures:
• Administrative actions–a warning notice or letter of correction.
• Reexamination, the “709” ride to determine if a perceived airmanship weakness has been corrected.
• Certificate action, either suspension or revocation.
• A civil penalty (fine).
• Criminal sanction, applied in cases of deliberate falsification, bogus parts and willful hazard violations, among others.
The matter could wind up being dropped at the FSDO level in a process Bailey compared to a traffic stop after which the officer tells the motorist, “I’m going to let you go this time, but watch your speed, okay?” He added, “Remember, the FSDO inspector has a great deal of discretion at this stage.”
However, Bailey noted that a certificate holder too often responds to a FSDO’s “come on down and talk to us” request by showing up alone and admitting a mistake in the belief that he’ll walk away clean. “Those who do are usually in for a big disappointment. Only about 10 percent of the time does the respondent get off with a warning,” he cautioned.
“In the other 90 percent of these step-one interviews, during this friendly chat they’re compiling evidence that will be used against you. I advise anyone who receives an LOI to take an attorney along, preferably one with aviation expertise. Just ignoring the LOI is not a good idea. The matter is not going to go away.
‘So You Want To Play Hardball?’
“Pilots should also be aware,” Bailey continued, “that while the great majority of FAA people, especially at the FSDO level, are good guys whose primary interest is safety, there are a few–as Bob Hoover found out–with different agendas. While I have a lot of respect for a great many FSDO inspectors and lawyers, I also know that certain FAA members consider it an affront for a pilot to exercise his constitutional rights.
I’ve known of cases where a pilot says he’s bringing his lawyer to a step-one interview and the inspector replies, ‘Oh, so you want to play hardball, do you?’ It’s a matter of individual temperament, and it varies widely in such a large organization. Unfortunately some of them act as though the FAA’s motto is: ‘We’re not happy until you’re not happy.’”
A pilot has the option at this stage of taking a lawyer and meeting with the local FAA legal person who issued the notice, for a “respondent-petitioner” conference, with the FAA as the petitioner. This is not a courtroom situation, although pilots do have some rights common to civil and criminal procedures. One, of which many respondents aren’t aware, said Bailey, is the process of exchanging “items of proof,” the equivalent of “discovery” in court procedure.
“The FAA folks aren’t likely to tell you this, but they have to show you their cards as well as you showing them yours. This applies both to their legal guys and FSDO inspectors. Because the damage [to the pilot] is usually done in the first 24 hours after an incident or accident, you need to exercise your rights to representation and disclosure of the evidence against you right from the start. Don’t forget, this is a legal machine. It can and does strip you of your privileges. To ignore this puts you at peril. The reality of that machine needs to be understood.
“Another thing pilots often don’t know is that after an accident, incident or ramp check they do not have to surrender their airman or medical certificates to an FAA inspector. The FSDO cannot legally take your certificate from you. You are required only to present your certificate upon request. The courts have said if a pilot hands it over and the inspector takes it, that constitutes a voluntary surrender, tacit admission of guilt and acceptance of a sanction,” Bailey cautioned.
In summary, he advised pilots and operators to prepare and keep in their aircraft an emergency checklist for accidents, incidents or ramp checks that includes the aforementioned advice. He also recommended becoming familiar with FARs 61.3(l) and 61.51(i), sections dealing with presentation of certificates to federal, state and local law-enforcement officers, and with pilot qualifications.