Cubdriver

Historically I believe FAA is considered airline friendly and generally gives the airlines a good sendoff. The agency mission statement at least used to say "promoting aviation", which historically equaled somewhat lax airline rule enforcement. This was to blame for the Value Jet crash and arguably several others. Pilots error crashes have also been tied to lax FAA enforcement in some cases. It's not accurate to equate FAA history with a heavy hand in enforcement. My own experience with the FAA makes them very community minded, although a have run into a jerk or two. So far only one I can think of comes to mind.

JohnBurke

I had a conversation one morning at ABQ with a pilot involved with the flight check, regarding ramp checks and inspectors. He said that there was a great deal of animosity between standards and flight check, and that he felt he got ramp checked more often than anyone, and that the standards inspectors were often trying to find ways to go after the flight check pilots. I found that quite interesting.

USMCFLYR

There are two thoughts to that idea.

One is that we get ramped more often because we are easy targets and they know that we are squared away with the paperwork and such rather than what they might find with some of the more shady operators out there - so in essence we are a *safe* ramp check.

The second is that a lot of ASI try to get on with Flight Check and if turned away they develop a *vengence* attitude towards Flight Check and end up with one o those attitudes that you have run across and shared in your stories.

I was ramped on our line right here in OKC quite some time ago by our very own POI. I'd put that instance squarely in the first category. I've not run across the second instance in my time here and can only relate 'experinces' of the guys who have been doing this job for 20-23 years plus.

It seems that the organziation is hiring more from the FSDOs of late than at others times in the past. I mentioned the two new hires in my office and I understand that there might be another one coming.

I'll say that if an ASI wasn't familiar with our operations requirements and some of the FAR waivers that we operate under that some of the flying that we do looks like we are 'flathatting'; but that applies to the general public too. I was checking obstructions on a VGSI in the course of commissioining a PAPI out in west central TX one time and the lone airplane on CTAF came up and wanted to know if what we were doing was "legal" because he felt that we were "buzzing the field" over and over for no reason

WhistlePig

Curious. Why do I detect animosity and presumption of guilt for engaging a lawyer at the earliest opportunity? That's what you should do in a judicial proceeding, and administrative law due process and evidentiary protections for the defending party are far less than in criminal and civil matters. The system is designed that way and that's fine. A lawyer should evaluate the client's background, advise on all of the potential outcomes, and most importantly, ensure the FAA follows its own rules and administrative process. If, after listening to the alleged violater's tale, the lawyer suggests the "puppy dog" approach the fee has not been wasted. Protecting your rights, ensuring fair process, and if neccessary, ensuring fair penalty or remediation is money well spent.

Also, the traffic ticket analogy doesn't really hold in administrative law as the same agency is the finder of fact, law, and adjudication.

JohnBurke

The presumption of guilt exists whether you contact an attorney or not. The only question is the degree of pursuit of that presumption.

Under administrative law and the regulation, you are always guilty until proven innocent.

JamesNoBrakes

I'll take a crack at this too:

The FAA has something like a traffic-warning or slap-on-the-wrist, it's called a warning-letter, the idea is the same, that someone shouldn't have their certificate suspended just because they violated airspace or a rule (assuming like you said, there was no loss of separation or other aggravating factor). Of course, the FAA doesn't care how the view airlines this. If they only accept pilots that have absolutely nothing negative on their records, no checkride busts, with space-shuttle type ratings and 4000 hours of mach1+ time, well that's on the industry, not the FAA. The industry makes up their own hiring criteria.

There are some problems with that. Again, the FAA doesn't make the hiring rules for industry, that comes from industry. I believe people should have a chance to "make things right", but even in your example, arrests are held against people for a very long time, sometimes forever, some states/areas allow for no way to ever erase or "fix" the record. There are probably plenty of guys out there without arrest records that want that job, so Mr. Shoplifter is going to have to be unimaginably better than them, or accept it's going to take some time to show that he's not prone to that kind of behavior. To further obfuscate the issue, what if it was a guy that had a history of some small petty crimes but he was able to go straight and narrow after the shoplifting, shouldn't he have the same chance as your honor-student example to have it eventually "erased"? We could go on and on about the injustices of the world, but ultimately the airlines set their criteria for hiring. The purpose of the FAA is not to get pilots hired (see later).

That's why it's common for the FAA to issue warnings, rather than suspend and revoke certificates for every infraction.

How would that be? Usually certificate revocations only happen as a result of gross negligence and egregious actions like an aerobatics show in a non-aerobatic aircraft with passengers, or flying drunk, etc.
Are you saying the company fired them? That again goes to the company.

While not a horrible idea, it's what the current warning-letter program is trying to accomplish, and it'll unfortunately most likely be a cold day in hell before congress lets something like you are proposing get through, with the fallout from colgan and all. Also, as mentioned, this already exists to some extent, called "remedial training", although usually reserved for things more serious than you are mentioning, where the consequences would be much greater than just a warning. It seems the real problem is how industry sees any "action" on a pilot record.

There is some truth here and some stuff that is kind of out there. You've probably taken your share of checkrides and you understand better with each one what is regulatory and what is not. What meets standards and what does not. If an inspector is going to use a "mistake" to "end your career" as you put it, he has to have something that will stand up to an NTSB judge, which does not usually favor the FAA, unless the evidence is solid. Otherwise, the inspector is putting himself and his job out on the line. This is where you might need a lawyer, because if there's an unfounded allegation, you need to seek counsel.

No one should just roll-over, there's nothing wrong with using a lawyer, but one should have some idea of what a lawyer can and can not do for you. In nearly every case, they'll be happy to take your money. A lawyer might be able to make a good case for why there are mitigating factors or what you've done to correct the original problem, which can be of great help. Of course the classic reason would be when they "got the wrong guy" and have missed something important in that sense. You will know whether you did what you are being accused of though and if you go to a lawyer and tell them that "you did it" or even that "you didn't do it" and you know you did it, it's going to be a rough time, most likely the lawyer is going to tell you to to be honest with the investigators. I think this is one of the perceptions out there, that lawyers will be able to "get you off" no matter what happened. Lawyers on both sides (prosecutors and attorneys) are very pragmatic in real life, they do not like to move ahead with anything unless they are absolutely certain of it. If there's a technicality that favors either side, you can bet they will take full advantage of it, yet they have to be careful not to step out too far and make a false statement or other similar error, as it will often result in losing the case for whichever side made the error.

But yes, realize what the FAAs role is. They are responsible for certificating pilots and printing out certificates that represent proficient and safe pilots. When there's a violation, the FAA has to determine whether it was a normal human error, or whether the certificate holder is not capable of holding that certificate because they do not have the competence to do so. That is rare, but it does happen. The FAA isn't trying to establish a baseline of pilot standards for the benefit of pilots, they are doing it at the mandate of congress to protect the traveling public. In this sense, they aren't your enemy or your friend, they are the regulator, making sure things happen according to standards and comply with the regulations in place.

JohnBurke

It's not a slap on the wrist, and it's often used punitively. It's often used when the FAA can't make their case; they put the warning letter in the file stating that the airman has been accused of the event, and though evidence may not be found, the airman has done wrong none the less. It's a de facto of placing something in the airman's record stating that while there's nothing to prove the airman is guilty, he's guilty. It's often worded in such a way to appear that the airman has been let off easily, but that the airman did do wrong, and it's often used in cases where the FAA has no case. It sits in one's record for two years. That's a big chunk of time to mess with a career, and mess with it it does. It's not a slap on the wrist.

Cubdriver

Warning letters are not PRIA reportable if I understand them, so it's between the pilot and the FAA and by definition and it is a completely confidential item not to be disclosed by anyone even when asked if about it if they do not wish to (ie. on job apps). As JNB said, the FAA uses a warning letter to let a pilot know there is a penalty coming soon if they do the same kind of thing again. It is not meant to slow or stop a career, but if the pilot is doing things he shouldn't then what else can the FAA do to correct them? And how could the letter have any adverse career effect if the pilot does not disclose it? It's a private document and does not have to be disclosed to anyone other than the pilot who gets it. There is no official or unofficial (ie. ethical) need to disclose it even on a job application. Consulting a lawyer is a waste of money over minor, non-recurring violations when the pilot is indeed guilty of doing the deed, they are not a repeat offender and they probably won't do it again any time soon. The only way a warning letter might be viewed as out of line in my opinion, is the occasional instance where the FAA actually has the wrong man. In such cases you should be able to get the FAA to drop it anyway during the first phone conversation with the investigator.

What I think USMC was saying (or I'll say) is, that if you did the crime then do your time, take your lumps and grow up. Nobody is perfect and anybody arguing otherwise is a fool. If you lose a job because you disclosed a private warning letter voluntarily, then that's your fault. In my view, hiring a lawyer to get you out of some minor infraction is 1) disingenuous, 2) undermines the basic penalty system, 3) costs money, 4) wastes everybody's time and 5) does not make anyone a better pilot.

WhistlePig

I'll take a crack at this:

1. Disingenuous: No, it's not disingenuous in any circumstance to consult an expert on the law, ensure your rights (few as they are) are protected, and ensure the regulatory agency correctly follows its regulations and statutes.

2. Undermines the Basic penalty System: I don't know what this means.

3. Costs money: It doesn't cost the government anything and if the case is complex it will save money. A lawyer is held to a higher standard than the pilot. The costs of missing filing deadlines, failing to preserve issues for appeal if required thus waiving them, failing to fully comply with reasonable requests falls on the lawyer and the lawyer will be sanctioned for unethical or incompetent behavior, and probably sued by the client as well.
If you're referring to the pilot, well, if he prevails then it is money well spent; if not, then he can sleep at night with full confidence that he completely understood the issue, his rights were protected, the process was correctly followed, and the penalty, if any, was fair.

4. Wastes everybody's time: I'm sorry, no. The regulator controls the process and time here. Do you mean it prevents the regulator from bullying a pilot into waiving rights and due process because the pilot doesn't understand the enforcement side of the law thus saving the regulator time by not having to provide fair and equitable due process? I'm sure that's not what you mean.
A lawyer will identify discrepancies or points of disagreement and clearly and efficiently identify those points so the regulator may quickly address and respond in the appropriate manner as they interpret the law. You mentioned technicalities above. I would be interested in learning what you consider a technicality. Failing to provide adequate notice (the certified letter) to the proper party at the proper address (the pilot's burden to keep that updated), failing to preserve evidence, failing to follow the C.F.R.s and local procedural rules, abuse of discretion, etc ... are not technicalities; they are violations of due process and an affront to fairness and freedom. If a regulatory agency cannot follow it's own rules, regardless of whether the violation happened or not, it cannot proceed with enforcement. Regulatory compliance is a two-way street.
Additionally, the process entitles the accused to a hearing and an appeal to the Administrator. Asking for the full process required by law be followed is not a waste of time, it's a right protected by regulation and statute. Statutes are intentionally vague and crafting regulations to accurately empower those statutes is tough. Sometimes the language the is misinterpreted by the agency and that interpretation does not fully contemplate congressional intent. Challenging agency interpretation of regulations is the only way to flesh out the meaning and operation of regulations. It makes good law better, and exposes weaknesses in bad law.

5. Does not make anyone a better pilot: Yes, I agree with you here. The adjudication phase is separate from the penalty phase. And no, it is not wrong to work with a lawyer in the penalty phase to ensure the agency does not overreach or punitively penalize the pilot for ensuring his rights were protected throughout the process.

Administrative law is designed to provide a fair, equitable, and consistent process over an infinite number of possible situations from the most minor to the most egregious. Competent and knowledgeable parties on both sides ensure the best outcomes.
For those of you who take a moral or "good character" approach to regulatory compliance and whether to retain counsel, your argument only has any relevance in the situation where the regulator does absolutely everything right, and the violator does everything wrong. A very rare circumstance indeed.
It matters not if the penalty for the violator is the same whether he "confesses" immediately or lawyers up first. (In fact it better not be any worse if he lawyers up first) There is no plea bargaining in administrative law and there should not be a trial tax either.


Administrative law changes frequently and can get convoluted and complex. If you read FAR's cover to cover every year on January 1, Great! Now how well do you know the statutes that enact the laws that the regulations provide the operational language? Do you even know where to find them? If you are an agency employee charged with enforcement, it is your foundational duty to know them well and be up to date on the changes.

Hawker Driver

Well said JamesNoBrakes. I stand corrected.

Thanks!