Try This Preventative Legal Medicine
If you hold an FAA License, no matter whether you are an airman or a business, it is important to realize that the FAA considers your License a privilege. If you commit an infraction that endangers safety, the FAA may revoke this privilege, suspend your License, or assess penalties, even if no one is hurt.
Legal Enforcement Actions by the FAA can take the form of revocation,which remains on your record indefinitely, and suspensions or civil penalties, which remain for 5 years until expunged. With Legal Enforcement Actions, airmen have extensive appellate rights. Administrative Enforcement Actions may take the form of a Letter of Correction or a Warning Notice which can stay on your record for two (2) years. With Administrative Enforcement Actions, airmen have no appeal rights. Any FAA Enforcement Action can damage your reputation and adversely affect your career or business.
An Aviation Lawyer may be able to prevent a flight violation from destroying your career, or causing you to suffer undue penalties. Unfortunately, in many incidents, the airman or business involved, makes mistakes which hamper the ability of an aviation lawyer to successfully defend against an FAA Enforcement Action. The purpose of this article is to apply a little preventative legal medicine and to give the reader a “heads up” about some of the issues that can create traps for the unwary. Beware – If you have an incident, you’ll need more than this article – you’ll need the advice of a lawyer concerning your specific problem.
Recognize When You’re A “Suspect” In An FAA Enforcement Action
The following examples illustrate ways in which you can become involved in a potential FAA Enforcement Action. Some are obvious, some are not so apparent:
The FAA sends an airman or an aviation business a “Letter of Investigation” with a request to submit comments.
Upon landing, ATC asks you to call the Tower by telephone, to answer a few questions.
During a routine inspection of your aviation business, the FAA Inspector requests more than paper – such as explanations concerning previous flight operations or repair work.
An Air Traffic Controller calls you up in flight, but does not offer instructions, advisories or clearance; instead, the Controller has questions about earlier flight activity involving airspace, altitude or other aircraft.
A “person” approaches a pilot or mechanic in the vicinity of a hangar or ramp and asks numerous inquiries about a prior flight or the condition of an aircraft.
What do these inquiries have in common? For one thing, each one calls upon you to give some verbal statement that bears on your responsibilities as an airman or business working under an FAA License. (The FAA Prosecutor will call these “admissions.”) Second, they all deal with some occurrence in the past, either a matter of hours or longer, concerning which an FAA employee has revealed unusual curiosity. (Your friendly FAA FSDO representative is now a police investigator). Third, most of us are likely to have a natural inclination to provide quick and complete answers to such inquiries. We take pride in what we do and feel we have nothing to hide (control this tendency).
Avoid Giving “Statements” Without Advice Of Counsel
The problem is that an immediate response is not required nor is it prudent. The license holder should find out why the inquiries are being made. Is the airman or business being investigated on suspicion of a license violation? In each of the examples listed above, airmen frequently and unwittingly, make damaging admissions which can be used against them in a FAA Enforcement Proceeding.
It is necessary to cooperate with the FAA to promote aviation. All of those who do business with the FAA, understand the need to display a cooperative attitude in order to avoid excessive FAA interference. On the other hand, in each of the examples above, the FAA is not inquiring about ways to make flying safer in the future or to insure that the airman or business involved will comply with FAA rules. The FAA is focusing on past conduct and this is what should alert you to the need for caution.
Consider the following recommendations: There is rarely a circumstance which requires an immediate verbal response to an FAA inquiry. Indeed, without a subpoena, the FAA does not have the power to force you to say anything. Therefore, it would be prudent to postpone any interview, phone call or other response until you have had an opportunity to sit down and reflect on what happened, check data and consult with an aviation lawyer.
If you are air borne, try to put off the discussion until after you have landed. When you talk to the FAA person involved, try to ask questions rather than give answers. Never misstate or misrepresent any fact. Do not speculate or offer opinions! Make it clear that you want to cooperate, but you want to understand all the reasons for the inquiry. If you are uncertain as to whether you can answer without risk, then do not answer. Promise to be back in touch with the FAA person as soon as possible, but retain an aviation lawyer for advice before you do.
What Can An FAA Official Demand To See Without A Subpoena?
What may you be required to do without delay, where there has been no accident or criminal violation, upon presentation of the proper identification by an FAA or NTSB Official?
Display your FAA Licenses.
Show your current medical certificate.
Present your airworthiness certificate.
Allow a review of your Log Books, if you have them with you.
If you run a FAA Licensed Commercial Business (such as under Part 135 or Part 121) – allow an FAA inspection of your aircraft. (Part 91 Operators do not normally have to grant access upon a mere verbal request).
Permit an FAA inspection of aviation records if you are running a commercial aviation business under the authority of an FAA License.
If any FAA, NTSB or Law Enforcement Officer demands more from you verbally, politely refuse, until you have had an opportunity to check with an aviation lawyer – be VERY careful about giving statements.
What If You Are Served With A Subpoena?
If an FAA, NTSB, Law Enforcement Officer, or Government Official serves you with a subpoena or a search warrant in a situation where there has been no accident, you may have to comply immediately and allow an inspection of records, equipment, aircraft, and premises. Never physically obstruct a properly credentialed official. A law enforcement official may be able to conduct a search even without a subpoena in hot pursuit, emergencies, as long as he has “probable cause” to believe a crime has been committed. Regulatory agencies like the FAA can claim that aviation safety justifies an immediate search without a subpoena and with questionable “probable cause;” therefore, it is critical to contact an aviation lawyer as soon as possible. Your lawyer can insure whether:
An Emergency Restraining Order should be sought preventing the search.
A subpoena or search warrant was properly issued.
The search does not exceed the scope of authority contained in the subpoena or search warrant.
Original records needed to properly run a business, or validate an airman’s right to operate are not surrendered or taken without proper authority.
Collateral and incriminating evidence is not developed.
Verbal statements about documents or equipment are not given without awareness of the privilege against self incrimination.
The purpose of these recommendations is not to impede the FAA’s authority to regulate aviation; however, the careers and success of airman and business are at stake whenever the FAA investigates a possible violation. FAA License Holders are entitled to due process and other rights under federal and state law. Do not squander your rights by precipitous actions without advice of counsel.
What If The FAA Sends You A “Notice Of Proposed Certificate Action?”
Make sure to consult with an attorney and do something before the deadline stated in the Notice.The FAA will offer an opportunity to request an “Informal Conference” in connection with the issuance of a Notice of Proposed Certificate Action or in the case of aviation businesses, an Notice of Proposed Civil Penalty Action. Before such a Notice is issued, the FAA has already conducted an Enforcement Investigation. The FAA has also prepared an Enforcement Investigative Report, which has ruled out the possibility of offering remedial training or administrative action in the form of a Letter of Correction or Warning.
Thus, upon receipt of the “Notice,” you are facing a legal action. The word, “Informal” is somewhat deceiving. If you are planning to attend an “informal” conference without a lawyer, you will be facing an FAA Prosecutor and a FSDO Investigator (in his “police” role) or Flight Standards Supervisor from the Regional Headquarters (a “Police Chief”). They have already decided to prosecute you – can you talk them out of it by yourself?
An Informal Conference can be a valuable procedure and on some occasions, has resulted in the FAA in agreeing to dismiss all charges. Because the airman is at a disadvantage without an attorney, harmful admissions are sometimes made at Informal Conferences. If the airman makes inconsistent statements during the Informal Conference, these can be used against him in the later Enforcement Hearing. Moreover, if the FAA can independently corroborate evidence of additional violations, or becomes aware of a lack of competency to hold the License, then even more stringent action might be taken after the Informal Conference.
A diligent aviation lawyer will obtain a copy of the Enforcement Investigative Report (EIR) prior to the Informal Conference. This report will contain the enclosures which form the evidentiary basis for the FAA’s action against the airman. Thus, the prosecutor’s evidence can be examined before the Informal Conference and a strategy devised on how to approach the FAA. The Informal Conference may be a good opportunity to advise the FAA of new or additional facts which may cause the FAA to reduce or dismiss the charges. However, this cannot be done until a thorough independent investigation is conducted by the license holder’s attorney. In some cases, it is not wise to bare one’s soul and disclose all favorable evidence, if a dismissal is unlikely. The airman may be better off surprising the prosecutor with favorable evidence at the Hearing in order to win the case.
A little insight – the FAA attorney and FSDO inspector are both employees of the FAA, but the relationship with the Flight Standards District Office Inspector is similar to that of an attorney and client. The FAA lawyer will have trouble trying to dismiss the case or reduce the sanction unless his client, the Flight Standards Representative agrees. In this regard, it is important that the airman display a compliance attitude and be thoroughly familiar with the regulations. The airman must not reveal a lack of competency or qualifications to hold the Certificate, if he wishes to persuade the Flight Standards Representative to approve a reduced sanction or a dismissal.
The FAA currently offers the opportunity of conducting the Informal Conference by telephone; however, this is usually not an effective option if the objective is to persuade the FAA to drop the case. Informal Conferences can be a useful forum for personally negotiating the settlement of an Enforcement Action. A good aviation attorney, skilled in settlement negotiation techniques can be extremely valuable in such a conference.
Some airman are reluctant to involve an attorney in the Informal Conference because of the cost involved, particularly if they must travel to a city where the FAA Regional Office is located. When making a cost benefit analysis of whether to involve an attorney upon receipt of the “Notice,” consider whether some of the following points apply to you:
Will a revocation or suspension on your record irrevocably damage your professional aviation career?
Can a revocation or suspension cause a substantial loss of income?
Even if your License is not revoked, will a suspension that grounds you cause your employer to let you go?
If you did not violate the regulations, and are not a commercial pilot, will you accept the FAA sanction? Can you afford to pay for a legal defense out of pride and to vindicate your reputation?
File The NASA Aviation Safety Report Form Immediately After An Incident
If you have inadvertently violated the FAR’s and created an unsafe condition by mistake, or you think that someone else believes you committed a violation, file the Aviation Safety Report Form so that you will have sanction immunity. The FAA can still bring an FAA Enforcement Action against you. An entry made in your airman records if the FAA is successful, but you will not have to suffer the sanction. In some circumstances, avoiding the sanction can save your job.
The Safety Reporting Program treats the ASRS Form in confidence. They are not made available to the FAA or anyone outside NASA. The purpose of the program is to identify safety problems in the air traffic system, so that improvements can be made. You may make a contribution to safety by submitting this Form.
In order to benefit the immunity from sanction, you must mail the completed form to NASA within ten (10) days after the incident. If the FAA brings an Enforcement Proceeding, you have the burden of proving to the FAA that you mailed the form to NASA within ten (10) days of the incident. In the normal course, NASA will return a verification stub with a date/time stamp which can be used as proof of submission. But, beware, if the form doesn’t get to NASA and if you do not receive a date/time stamped verification stub within ten (10) days, you will have no way of knowing whether or not you’re covered. Do not trust ordinary mail! Overnight commercial services do not usually deliver to P.O. Boxes. Send the Form by U.S. Certified Mail with Return Receipt Requested. Thus, you will have proof that you submitted the form within ten (10) days. The Aviation Safety Reporting Form, along with detailed instructions for use are available for downloading at my Web Site: http://www.aviationlawcorp.com/asrsform.html.
The sanction immunity obtained by filing the NASA Aviation Reporting Form is not available to airmen in the following circumstances:
Deliberate actions constituting a Flight Violation Criminal activity
Aviation accidents (involving deaths, serious injury or substantial aircraft damage)
FAA confirmed violations within the last five (5) years
Incidents revealing a lack of competency or qualifications to hold a License
Take this list of exceptions seriously. Retain an attorney, if you have any doubt. Do not file this form if you are involved in an accident or criminal activity without first consulting with an appropriate attorney! Note: The Form is not only available for pilots, but is also available for mechanics, dispatchers, flight attendants, air traffic controllers and other aviation professionals. Also, if more than one person is involved in an incident, each should file the Form. Moreover, the business which employed that person, such as a corporation or partnership should also file the Form.
Conclusion – Use Your Legal Options
Most aviators are very safety conscious, but all of us make mistakes; the question is what penalty should we pay if no one is hurt by the mistake. You have legal options to protect yourself, employ them early along with a strong dose of common sense and you’ll protect your reputation as well as your career.
DISCLAIMER
The issues and recommendations discussed in this article are based on hypothetical situations and do not constitute legal advice. Mr. Kolczynski’s objective is to describe some common issues to help people avoid or minimize legal trouble. Laws vary significantly from state to state. Anyone with an aviation law problem should be guided by the advice of his or her lawyer, under applicable federal and state laws, after a full and confidential disclosure of all relevant facts.
Mr. Kolczynski cannot provide legal advice or opinions on individual problems or cases to people who call him or send him e-mail questions. Just as a wise person would not expect a doctor to diagnose an illness from a brief description by phone or e-mail it is unrealistic to expect a lawyer to provide advice under such circumstances. A person must be accepted as a client and a confidential attorney-client relationship formed before any advice will be given. ”
? Copyright: This article is Mr. Kolczynski’s Intellectual Property and is protected by the Copyright laws. No part of this article may be reproduced without the express written consent of the author. This article cannot be excerpted for use in publications, newsletters, web sites or even non profit educational materials without Mr. Kolczynski’s approval.
BIOGRAPHY
Phillip Kolczynski manages his own law firm in southern California adjacent to the John Wayne Orange County Airport, California. He holds an (AV) rating, the highest peer rating for competency and ethics awarded by The Martindale-Hubbell Bar Register of Preeminent Attorneys. Mr. Kolczynski has 23 years of experience as an aviation lawyer, and a national practice, concentrating in aviation, product liability and business litigation in federal and state courts.
Prior to moving to California in 1983, he was a trial attorney in the Aviation Unit, U.S. Department of Justice, Washington, D.C., and the Litigation Division, Office of the Chief Counsel, Federal Aviation Administration, Washington, D.C. While at the Justice Department, Phil received the Justice Department’s Special Achievement Award for Trial Performance and was a regular lecturer and instructor at the Attorney General’s Civil Trial Advocacy Institute. In private practice, Mr. Kolczynski has worked as an associate and partner in large law firms in Washington D. C. And Los Angeles.
Mr. Kolczynski graduated from Case Western Reserve School of Law, Cleveland, Ohio, in December 1976, where he was the Law Review Notes Editor of the Journal of International law. He graduated from Marquette University, Milwaukee, Wisconsin, in 1969, where he held a Navy ROTC Full Scholarship. Before entering law school, Phil Kolczynski was a Marine Corps Captain and F-4 Phantom Pilot. He holds an FAA Commercial Pilot’s License with Single Engine, Multi-Engine and Instrument Ratings.
Phil Kolczynski has published numerous law review and journal articles on a wide variety of aviation law subjects. He is also the author of the book “Preparing for Trial in Federal Court” 2nd Edition (James Publishing 2000).
Mr. Kolczynski teaches Aviation Law in the University of Southern California School of Engineering, Aviation Safety and Accident Investigation Institute. He was the Chairman of the 1990 American Bar Association National Institute on Aviation Litigation in Washington, D.C. and was twice elected Chairman of the Orange County Bar Association Aviation Section. Phil is the Aviation Law Editor for “AVWEB,” the Internet Aviation News Service & Magazine – http://www.avweb.com – where his recent articles on aviation law are available for review.
Phillip J Kolczynski
phil@aviationlawcorp.com
www.aviationlawcorp.com
