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Martha Lunken got her tickets yanked.

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Martha Lunken got her tickets yanked.

Old 05-02-2021, 03:32 AM
  #61  
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The standard is guilty until proven innocent. Revoke, then appeal the revocation...in which case one must prove the revocation isn't warranted.

There is no presumption of innocence. There is no preponderance of the evidence. There is no beyond reasonable doubt. An administrative law judge may look to "substantial evidence," but only in the appeal process, which is where one first has opportunity to defend himself or herself. After the fact. The firing squad doesn't lock and load until the appeal plays out, but it's still a matter of record, and until the appeal process is done, that revocation order is in place; the pilot can't use his or her certification.

The FAA has a nasty way of taking someone even if they did nothing wrong. A simple administrative letter in the file saying that the airman has been accused of doing X, and that while no evidence was found, X is a violation of the regulation...makes it sound like the airman did it, and got away with it, and simply lacked enough evidence to violate the airman. The airman who is working sees his or her career stalled, sometimes for years, and the FAA moves on to someone else. The FAA knows what it's doing, the personnel involved know they can hurt people, mess with their careers, their lives, even without any evidence at all. I've seen it first hand. More than a few times.

A few years ago a kinder, gentler FAA appeared, seeking compliance and education, but turned out to be the same old FAA, dirty and vindictive, and often made up of those who couldn't make it in the private sector. After all, I don't know of any other job openings in the industry that advertise at such a low bar that the standard is "no more than two aircraft accidents in which the airman was at fault." Good god. Most would end their carers with one...but then they can always go work for the FAA, and I don't care who says the bar is set high. It's not. It's really not. I've seen that play too many times. Say it's not so one more thime, and that's just one more time that the lie is told.

The FAA is not your friend. Not my friend. Anything you say can and will be held against you, and that letter of investigation is nothing more than a fishing expedition to garner evidence to use against you. Period.

Not everyone has six hundred thousand dollars to build a case to save their career, and not all of us can afford F Lee Baily to show up and represent us when the FAA wrongly takes emergency authority for revocation. We've seen this material before.
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Old 05-02-2021, 07:16 AM
  #62  
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Originally Posted by JohnBurke View Post
The standard is guilty until proven innocent. Revoke, then appeal the revocation...in which case one must prove the revocation isn't warranted.

There is no presumption of innocence. There is no preponderance of the evidence. There is no beyond reasonable doubt. An administrative law judge may look to "substantial evidence," but only in the appeal process, which is where one first has opportunity to defend himself or herself. After the fact. The firing squad doesn't lock and load until the appeal plays out, but it's still a matter of record, and until the appeal process is done, that revocation order is in place; the pilot can't use his or her certification.
If you take it to court, a preponderance of evidence is required. All cases should have this to move forward. If not, you have a solid case. That is what lawyers are for.

The FAA has a nasty way of taking someone even if they did nothing wrong. A simple administrative letter in the file saying that the airman has been accused of doing X, and that while no evidence was found, X is a violation of the regulation...makes it sound like the airman did it, and got away with it, and simply lacked enough evidence to violate the airman. The airman who is working sees his or her career stalled, sometimes for years, and the FAA moves on to someone else. The FAA knows what it's doing, the personnel involved know they can hurt people, mess with their careers, their lives, even without any evidence at all. I've seen it first hand. More than a few times.
The FAA stopped giving those administrative letters years ago.

A few years ago a kinder, gentler FAA appeared, seeking compliance and education, but turned out to be the same old FAA, dirty and vindictive, and often made up of those who couldn't make it in the private sector. After all, I don't know of any other job openings in the industry that advertise at such a low bar that the standard is "no more than two aircraft accidents in which the airman was at fault." Good god. Most would end their carers with one...but then they can always go work for the FAA, and I don't care who says the bar is set high. It's not. It's really not. I've seen that play too many times. Say it's not so one more thime, and that's just one more time that the lie is told.
So you experience a catastrophic engine failure, you land the plane and keep everyone safe. That means you are a bad pilot because you had an accident?
The FAA is not your friend. Not my friend. Anything you say can and will be held against you, and that letter of investigation is nothing more than a fishing expedition to garner evidence to use against you. Period.
of course, but if you know of information contrary to what the FAA is claiming, please bring it forward to avoid going through a ridiculous court battle where only then is it brought forward. In fact, if you do not share this information until court, I guarantee the administrative law judge will not be happy, since it was most certainly asked of the subject whether they have anything to say.
Not everyone has six hundred thousand dollars to build a case to save their career, and not all of us can afford F Lee Baily to show up and represent us when the FAA wrongly takes emergency authority for revocation. We've seen this material before.
Again, standard of proof for a revocation is high. If the FAA is not bringing forth a case that warrants revocation, sanctions against the FAA are a real possibility. If you were to win the case, you could ask that the FAA pay for all of your lawyer fees, since this is administrative law. https://www.everycrsreport.com/reports/94-970.html There are also things that are automatic revocations that are just written into the rules. We all play this game when we get certificates.
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Old 05-02-2021, 04:19 PM
  #63  
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Originally Posted by JamesNoBrakes View Post
If you take it to court, a preponderance of evidence is required. All cases should have this to move forward. If not, you have a solid case. That is what lawyers are for.
No.

After one has attempted appeal(s), then one may seek a remedy, but it's very costly to get to that point, very time consuming, and in many cases, career ending, whether it's for the local instructor or the airline pilot or the Part 91 utility pilot.

The FAA well knows that the mere accusation is enough. Once the stink is attached, it's damn near impossible to remove.

In the meantime, the FAA has revoked the certificates. That pilot is now a glorified dishwasher until he or she gets through the long, expensive process, which can last years. Once done, every future employer that asks "have you ever" only needs the insinuation. Plenty of fish in the sea, plenty of pilots who haven't been touched by the FAA's five finger death punch...and the inspectors know this all too well. It doesn't have to stick. They just need to throw it up in the air. And they do.

So far as administrative law, a preponderance of evidence is not required. The standard is substantial evidence. You know this. And to make the accusation, not even that. Substantial evidence is only required to sustain the allegation beyond appeal, and in many cases, not even then.

Originally Posted by JamesNoBrakes View Post
The FAA stopped giving those administrative letters years ago.
In the past, you've inferred that the FAA never did that...so it's nice that you'll admit it now, but it's still not true.

At the conclusion of an investigation, if the FAA regional legal counsel elects not to move forward, the applicant will be notified, and that notification becomes a matter of record. It's typically worded to say in effect, "You've been accused of violating the regulation. We can't prove it, but you did it. Doing X is a violation of the regulation," and the effect is still a lawn dart through the career of the recipient. Particularly for those of whom it is asked, "have you ever?" Have you ever been the subject of an FAA investigation? Have you ever been the subject of FAA administrative action? Have you ever been the subject of FAA enforcement action?

I've stood adjacent to the cubicle of an inspector as he rants about a minor alleged infraction, "I'm not only going to violate him. I'm going to make him wish he was never born. I want to rip his beating heart out of his chest and hold it up for the world to see. I am going to destroy him." I've heard this in FSDO(s) personally, and the issues under discussion didn't warrant more than a polite cough. I'm personally acquainted with inspectors who have been fired repeatedly in the private sector, who go on to careers at the FSDO level, where they can promulgate that chip upon their shoulder to exact revenge on the industry and all those in it. And they do. They're the least competent to tackle the job, the most aggressive at doing it, the least repentant, and often entirely unreasonable.

The inspector who gave me a ramp inspection in a 135 airplane screamed and yelled, waved his fists, removed private things from the aircraft and threw them on the ground, including confidential medical records and x-rays, after pawing through them, raised unholy indignation over a cracked cover on an ice detector light flown in day, VFR conditions, and later called me at ten at night, a year after the fact to say I'd implicated him (he was removed from that FSDO and sent to another state...for the third time), and he'd see to it that he "ruined my life." He gave it his best shot, too. Got the tee shirt, so to speak. A stack of them.

The FAA is no more kinder and gentler today than it was then.

Originally Posted by JamesNoBrakes View Post
So you experience a catastrophic engine failure, you land the plane and keep everyone safe. That means you are a bad pilot because you had an accident?
What has this to do with the price of tea in China?

Are you talking about my reference to the low bar for hiring FAA inspectors, that they can have no more than TWO aircraft accidents for which they were at fault?

I've made forced landings following an engine failure due to oil loss due to failed components. A successful handling of an inflight abnormal or emergency condition is not at all the same thing as causing a crash or accident.

It's one thing to be a party to or a part of an event for which one had no responsibility, but quite another to be the cause.

Originally Posted by JamesNoBrakes View Post
of course, but if you know of information contrary to what the FAA is claiming, please bring it forward to avoid going through a ridiculous court battle where only then is it brought forward. In fact, if you do not share this information until court, I guarantee the administrative law judge will not be happy, since it was most certainly asked of the subject whether they have anything to say.
Absolutely not.

The FAA often goes on a fishing expedition. The FAA may send a letter of investigation to a pilot to inform him of the investigation of his operation of a flight under a bridge. Until the pilot responds with some explanation that actually puts him in the airplane, on that date and time, the FAA may not have substantial evidence. They don't need it until supporting their position during the appeals or beyond, but they may have no such evidence and only the thinnest of allegations. It doesn't matter. The firing shot across the bow is meant to elicit some response from the recipient, who often does a good job of incriminating himself. What will an attorney say? Most of the time, client, keep thy mouth shut. By responding, the only outcome one can expect is to deliver evidence to the FAA...the same ones who are investigating, and the same ones who will initiate enforcement or administrative action.

If pilot Bob wasn't in that airplane, knows nothing about it, then it may be to his advantage to say so, or to hire an attorney to say so, though it didn't help hoover and won't help anyone for whom the FAA has the proverbial stiff inclination. The inspector who is going to rip the heart from a middle aged private pilot because that pilot gave a buddy a flight and that buddy bought that pilot a tamale over a beer, to say thanks...the inspector who sees it as his crusade to crush that middle aged pilot...may press on regardless, and it doesn't matter. He initiates enforcement action by forwarding his report and the ball rolls on. That it's later closed doesn't help that pilot. Not at all.

If pilot Bob was in that airplane and elected to file an ASRS report (perhaps his event was inadvertent, perhaps he had no intention of receiving compensation, but the insinuation has been made by Angry Charter Charlie who got wind of that tamale and resents carrying charter insurance while the pilot bobs of the world get fed. Perhaps pilot Bob didn't have intent, perhaps he didn't actually do anything wrong, but he files the ASRS report out of fear for his hard-earned, precious pilot certification, the only thing he has left to his name after his wife Betsy took him to the cleaners and ran off with Milk Man Dave. Perhaps pilot Bob only wants to protect what he's got left...responding to that FAA letter is not in his interest. You'd say it is, but you're the guy who starts that ball rolling and who goes after other pilots. When buying a used car, one ought not ask the salesman which car is best. Conflict of interest, and all. Better information from other sources. Perhaps those who've been at the hollow end of the barrel.

Originally Posted by JamesNoBrakes View Post
Again, standard of proof for a revocation is high. If the FAA is not bringing forth a case that warrants revocation, sanctions against the FAA are a real possibility. If you were to win the case, you could ask that the FAA pay for all of your lawyer fees, since this is administrative law. https://www.everycrsreport.com/reports/94-970.html There are also things that are automatic revocations that are just written into the rules. We all play this game when we get certificates.
The standard to uphold revocation is high. Not the standard to do it in the first place. There are a lot of pilots who knuckle under and whither away because they don't know better, or who think they can't win, or who can't afford the battle, and the FAA knows this too. Moreover, with precedent set twenty years ago, the FAA can, and does, re-interpret or interpret regulation in the middle of the appeal process. This enables the Administrator to reset or change the bar. It's a double standard and a massive conflict of interest, but the precedent was set two decades ago. The FAA can and does lean on interpretations of the regulation made not only prior to the alleged violation, but well after, and even after action has been taken against the airman, and in the middle of the enforcement process (FAA v. Merrell, 1999).

Giving the FAA advance information is much like sending a thief one's wallet in advance of the mugging. Not necessarily the best advised course of action.

The FAA certainly isn't going to tip their hand. Pilot Bob ought not, either. Pilot Bob could use an attorney. If he cannot afford one, an attorney will not be provided. Pilot Bob will not receive a Miranda warning. Anything pilot Bob puts in writing or says can, and certainly will be held against him. Pilot Bob thinks he's explaining himself. The FAA thinks he's confessing.

We're investigating an alleged flight of N1234HappyWorm by a beach of coeds on April third.
I wasn't anywhere near that beach. I never got below a thousand feet.
So you were the pilot, then, and you did fly the airplane on that day? Thanks. You've been VERY helpful.

And so it goes.

This is just the game we play when we get our certificates, you say. This has never been a game for me. It's my life. It's unfortunate that its a game to you.

Very, very unfortunate that it's a game to those who couldn't make it in the private sector, and instead chose to wreak their vindictiveness on those who could. That's not you, of course, but your poor choice of words is reflective of a great many who work for the Administrator, especially given the low bar set.

It's not a game, and it shouldn't be treated like one. The FAA does, however, and after enforcement action is taken, the presumption of guilt in the administrative process leaves it to the accused to prove his or her innocence...but only after they've already been imprisoned, and only after the firing squad has already been convened.

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Old 05-02-2021, 08:46 PM
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Originally Posted by JohnBurke View Post
In the past, you've inferred that the FAA never did that...so it's nice that you'll admit it now, but it's still not true.
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I never said that the FAA did not do Administrative Action (warning notices). You are probably mistaking something else I said.
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Old 05-02-2021, 09:01 PM
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Perhaps it was you trying to suggest that they weren't used as weapons? You did say that, on several occasions, and argued it valiantly. Your assertion was not true. Unfortunately, inspectors and regional legal counsel have often weaponized the enforcement process, rather than used it for safety, to promote aviation, or to simply regulate the system.

They continue to do so.
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Old 05-03-2021, 04:48 AM
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Originally Posted by JohnBurke View Post
So far as administrative law, a preponderance of evidence is not required. The standard is substantial evidence.
You are incorrect, sir.
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Old 05-03-2021, 04:56 AM
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No, I am not.

In fact, you can have enforcement action brought against you with zero evidence.
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Old 05-03-2021, 07:24 AM
  #68  
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Bob Hoover's suspension was nothing more than an ASI's poorly formed opinion...
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Old 05-03-2021, 10:13 AM
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That poorly formed opinion was an emergency revocation that cost six hundred thousand in legal fees, and a lot more in terms of reputation, loss of availability, certification, and other damages.

Hoover's case had no evidence, either. Far from substantial, or a preponderance. Light on substance. Heavy on bull****.

Weaponized regulation, abuse of power. Typical.
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Old 05-03-2021, 01:56 PM
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Originally Posted by Electrickjet View Post
Bob Hoover's suspension was nothing more than an ASI's poorly formed opinion...
He was not permitted to do what he did, because he was the only person who could do it successfully, repeatedly. And no one could do that repeatedly at his age, except him.
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