Prepare for the unexpected

Or, in flight, being given a number to call by ATC as they mention “possible pilot deviation.” Or getting an unexpected call or email from an FAA aviation safety inspector asking about one of your flights. Or overshooting an assigned altitude during a flight and nobody seemed to notice. Do you know what to do?

Here’s a checklist to help chart a course through potential turbulence ahead.

Face reality

As a starting point, it is important to face reality when there is the slightest hint of a legal problem. Whether it’s a seemingly unnoticed deviation, a phone number ATC gives you to call after landing, or even a ramp check, seek advice immediately. Too often pilots fail to identify when they’re in a potential danger zone and recognize it too late to prepare for what may happen next.

Get expert advice—quickly

Seek advice from a confidential source such as AOPA Pilot Protection Services attorneys and be proactive in addressing the situation. By utilizing a confidential source, as opposed to chatting about the event over coffee at the FBO, you can avoid making statements that may later be used by the FAA in enforcement proceedings.

If you’re not talking to an attorney who is advising you, that conversation is not confidential and not protected by the attorney-client privilege. The FAA could force the person you talked with to become a witness against you.

Understand the potential path(s) ahead and prepare

Work with your confidential source to understand the possible pathways ahead, assemble the team that might be needed, and act to put yourself in the strongest position possible. Waiting too long can cause lost access to recorded ATC communications or possible witnesses, or to the potential benefits of filing a NASA report, or put you on your heels if the FAA pursues severe measures like an emergency revocation. By assessing your options now, you will be better prepared for any informal resolution such as compliance counseling or, in a worst-case scenario, legal certificate enforcement proceedings.

The expedited legal proceedings associated with emergency actions offer little time to prepare for a hearing, but failing to prepare before a certificate action is brought by the FAA could be fatal in defending against the immense power of the federal government. The disadvantage to airmen is even more pronounced when the FAA takes its time in bringing a certificate action, while still having the luxury of later labeling it as an “emergency.” The FAA will use this advantage to prepare its case during that lengthy delay between an alleged violation and the certificate action.

Take appropriate action

After you have acknowledged a potential problem, sought confidential advice, and done a preliminary analysis of what should be done in defense of any possible enforcement by the FAA, it’s time for action. This might be as simple as filing a NASA report, which must be filed within 10 days of the alleged violation, or completing WINGS or AOPA courses that address the issue at hand before you get a call or letter from an FAA aviation safety inspector. For more serious matters, however, preliminary action might also include collection of evidence and statements by your attorney. These activities are not mutually exclusive and can be done in parallel.

Get in receive mode

While the preliminary steps are in motion, it’s important to watch for contact from the FAA. They may reach out to you through different channels, and you need to know what you’ll do regardless of how they choose to communicate. Anything you say to the FAA can be used against you.

An FAA inspector might reach out by phone. Be polite, but don’t engage in a conversation if you are not fully prepared with a strategy tailored to your specific situation. If you receive a call, it’s fine to say, “I wasn’t expecting your call and now isn’t a good time to talk.” Ask for the FAA inspector’s name, contact information and title, and what they are calling about, and let them know you’ll be in touch. Perhaps the FAA inspector has already left you a voicemail. Either way, call your legal counsel.

If you’re at the airport, an FAA inspector might also contact you in person. You can use the same response as above. Politely let them know it’s not a good time to talk, get details from them, and call your legal counsel.

An FAA inspector might also reach out by email. Be polite, but don’t engage in written back and forth if you are not fully prepared with a strategy tailored to your situation. Call your legal advisor to strategize next steps.

The FAA will use your designated address on file for formal notices of investigation or legal action against your certificate. If you will be away from that address for more than three to five days, make arrangements to ensure that any communication from the FAA is received and addressed without delay. Remember: If your permanent address changed and you didn’t notify the FAA within 30 days, FAR 61.60 prohibits you from exercising your certificate privileges.

Most FAA legal enforcement related communications have tight, inflexible deadlines. Missing a response deadline can lead to separate alleged violations or deprive you of the ability to challenge action against your certificates. This does not mean you should respond to the FAA quickly without input from counsel; you need to have legal help at the ready.

Decide what you will and won’t say, and when

Any initial response to the FAA should be limited to addressing what is legally required (showing—not sending or handing over originals—limited records for inspection such as logbooks, training records, government issued picture ID, airworthiness certificate, aircraft registration, or dry lease). The FAA is not allowed to define your request to involve legal counsel as being “uncooperative” when the FAA may be considering possible compliance action in lieu of a formal certificate action. Only after seeking confidential advice should you consider providing additional information. This is true even during ramp checks or surreptitious FAA interviews.

Most FAA legal enforcement related communications have tight, inflexible deadlines. Missing a response deadline can lead to separate alleged violations or deprive you of the ability to challenge action against your certificates.Whatever form any communication from the FAA might take, failure to respond could draw an indefinite suspension of your certificates until you comply with the request. Later, a letter of investigation might follow, which requires no response but does provide an opportunity to furnish the FAA with additional information that could be helpful to your position. In the worst-case scenario, a certificate action could follow.

Prepare for battle if a certificate suspension or revocation is likely

Deadlines associated with certificate actions are immediate and unforgiving. The FAA has a practice of sending emergency revocations (which immediately suspend or revoke your certificates) to arrive late on Friday afternoons, and your deadline to fight the emergency status that makes the FAA’s action immediately effective expires just 48 hours from the time you receive the notice. This is why having an attorney at the ready is critical. Retaining counsel to fight an emergency action against your certificate can be nearly impossible without their prior involvement.

Even with an attorney’s prior involvement, preparation will be challenging but manageable. Just as involving an attorney early may be beneficial, so too can retention of experts if needed. Use legal counsel to determine the need for and identity of possible experts, who may include you. Rest assured, the FAA Enforcement Counsel will have already identified the FAA’s own lay and expert witnesses, as well as exhibits and arguments to support the FAA’s position.

The old legal adage remains true: The best way to settle a matter is to get ready for trial. Besides preparing for a hearing, your attorney may look for reasonable settlement options, which may or may not be on the FAA’s agenda. Preparations will rely heavily upon you, as you likely know the case better than just about anyone else. You are not obligated to testify at the hearing, although it will usually be beneficial to do so.

In the best-case scenario, you will be ready for hearing with the 30 days afforded to resolve any emergency certificate action. Although there may be a temptation to slow things down and waive the emergency procedures, you should understand the practical implications. In the case of a revocation, for example, your certificates will remain revoked until the matter is fully resolved, and final resolution could take years if you waive emergency time lines. Using the expedited time line could make the difference of saving your career versus starting over much later in life, but this option isn’t always possible if more time is needed to gather adequate evidence for your defense.

Understand the key players and the rules of engagement

At hearing, the assigned NTSB administrative law judge is an impartial fact finder. While this wasn’t always the perception, recent decisions by NTSB ALJs suggest that they will not simply rubber stamp the FAA’s preferred outcome. Instead, ALJs are conducting detailed credibility analyses of FAA witnesses, who are not always found to be credible or honest. Similarly, the FAA is now being held to the same deadlines as certificate holders, particularly the expedited deadlines under the emergency procedures. Finally, the NTSB recognizes there are living, breathing people behind certificates, who deserve a fair opportunity to be heard. So with proper preparation, pilots will have their fair day in court.

Certificate actions should be taken very seriously and, with preparation, the chances for a just outcome are now better than ever. For more information, consider joining AOPA’s Pilot Protection Services and take advantage of your benefits. When needed, AOPA can make referrals to qualified attorneys to provide further assistance.
Besides practicing as an aviation attorney, Tiernan Siems is a type-rated Part 91 contract pilot, an airline transport pilot, and multiengine instructor. He also serves as an expert witness in aviation-related matters.