Last month I talked about a demand from the FAA for the reexamination of a pilot’s qualifications to hold his or her certificate or ratings (“Pilot Counsel: Reexamination,” March 2014 AOPA Pilot). This is a typical weapon in the FAA enforcement arsenal that a surprising number of pilots face. I then warned against the futility of challenging the FAA in an appeal to the NTSB. Instead, I recommended taking the demanded reexamination, but only after logging some additional training, a procedure that is virtually always successful and is less troublesome than an NTSB appeal.
I am now prompted by a recent NTSB decision that presents a very similar procedural situation, and a similar problematic appeal, but this time in the context of a pilot’s application for renewal of his FAA airman medical certificate. The FAA demanded that the pilot undergo a mental evaluation by a board-certified forensic psychiatrist. The pilot believed that the demand was unjustified. He refused. His refusal triggered an order by the FAA suspending the pilot’s medical certificate on an emergency basis (meaning immediate grounding) until the pilot complied with the FAA demand.
The NTSB acts as an appeal “court” for FAA orders that suspend or revoke an airman’s certificate. The pilot appealed the suspension order to the NTSB, challenging the reasonableness of the FAA demand for a psychiatric evaluation. His appeal was unsuccessful. After a hearing before an NTSB law judge, and a further appeal to the full board, the board affirmed the FAA-ordered suspension. In deciding the case, the board recited the applicable law: “By regulation, the administrator may require an airman to provide additional information concerning an airman’s qualifications to possess a medical certificate whenever the administrator finds that additional medical information or history is necessary. The FAA may suspend or revoke an airman’s medical certificate if the airman fails to comply with a reexamination demand; any suspension remains in effect until the airman provides the required information.” The board’s precedents consistently show that its review of the FAA’s “reasonableness” in demanding further medical information is very narrow.
The facts of this case could be considered as justifying the FAA’s demand and the subsequent order of suspension. What is important is that in less-compelling cases, it is not unusual for a pilot (including his or her doctors) to believe that FAA’s demand is unreasonable.
The pilot involved in this case is a former Eastern Airlines captain. His mental health issues relate almost exclusively to the 1970s, when he was evaluated by doctors in connection with his employment—one of whom diagnosed a clinical disorder related to paranoia. Subsequent evaluations by four psychiatrists and psychologists, still in the 1970s, conducted at Eastern’s request, produced varying conclusions but did not result in definitive diagnoses of clinical disorders. For example, in 1974, one doctor did not diagnose a mental condition but recommended Eastern “ground [the captain] until further psychiatric appraisal.” Then there is a long, unexplained gap in time in which the pilot was apparently successful in obtaining various airman medical certificates.
What brought the matter up in 2012 is that the pilot, while holding a third class medical certificate, wrote a letter to the acting FAA administrator complaining that an FAA employee made inappropriate comments to unnamed individuals regarding the pilot’s deceased daughter and asked the administrator to address the employee’s behavior. The pilot described the statements as “material false and detrimental statements published to airports, airlines, and other innocent parties, concerning the brutal unsolved murder of my beloved 21-year old daughter.” In response to the letter, an FAA psychiatrist took the occasion to review the pilot’s FAA airman medical file. The review disclosed the 1970s history. The FAA psychiatrist then recommended that the pilot undergo a psychiatric evaluation in view of “instances of suspected paranoid ideation dating back to the early 1970s” and the “highly improbable” allegations of his 2012 letter to the then-acting administrator. The time lapse was not a problem. The board, in sustaining the FAA, cited an earlier precedent that held that a clinical diagnosis of a nervous or mental disorder 26 years prior was not too remote in time to conclude that the administrator reasonably sought additional information.
So, the message of this case—and the one reported last month—is that an appeal to the NTSB challenging the reasonableness of an FAA request for additional medical information, or a demand for a reexamination of a pilot’s qualifications, should be carefully considered in light of these precedents.
John S. Yodice is the legal advisor for the AOPA Pilot Protection Services program.