Although the FAA is currently applying its “Compliance Philosophy” to resolve many cases involving unintentional pilot deviations or regulatory violations that result from issues like simple mistakes, flawed procedures, or diminished skills, the FAA still requires some violations of the Federal Aviation Regulations (FARs), such as those involving intentional or reckless acts, to be resolved with a legal enforcement action.
Kirk Pittard is a partner with Kelly, Durham & Pittard in Dallas, Texas. He is an appellate and aviation attorney, an instrument rated pilot and serves as an AOPA Panel attorney. Kirk can be reached at 214-946-8000 and at [email protected]. His firm’s website is www.kdplawfirm.com.
As an AOPA Panel attorney, I have represented numerous pilots in FAA enforcement proceedings. Fortunately, I have been able to resolve almost all of their enforcement actions at the informal conference level. However, one thing I’ve noticed over the years is that most airmen are not familiar with the FAA’s Enforcement or informal conference process. That stands to reason since pilots don’t expect to find themselves in this situation. As such, I thought it would be informative to explain how I prepare for the informal conference with the FAA attorney.
Once an FAA attorney has issued a notice of proposed certificate action or assessment of a civil penalty, the airman alleged of the violations may request an informal conference (except in emergency cases). The informal conference typically includes the FAA attorney and the FAA Inspector who investigated the matter, as well as the airman and his or her counsel. The purpose of the informal conference is to allow the airman to present any information that he or she believes the FAA should consider concerning the alleged violations and ultimately may involve what is essentially a pre-trial negotiation to resolve the matter.
First, I always encourage my pilot clients to timely file an ASRS form regarding the alleged incident for reasons previously covered in AOPA publications. Second, I always have my client appear in person at the informal conference. I believe it is important for the FAA attorney to be able to look my client in the eyes, and it conveys to the FAA attorney how important my client views the situation which cannot otherwise be conveyed if my client only appears by telephone. Third, I always have my client take an hour or so worth of time to obtain flight or ground instruction regarding the exact issue and regulations involved and an endorsement from the instructor regarding such training to demonstrate that my client not only takes the matter seriously, but has already gone the extra mile to obtain voluntary instruction. Fourth, I prepare an outline regarding the following information to present orally to the FAA attorney.
1. FAA’s Proposed Suspension: As contained in the FAA’s enforcement letter.
2. Enforcement Sanctions Guidance Table: Usual sanctions for the particular violations as derived from FAA Order 2150.3B - the FAA’s Compliance and Enforcement Program - Appendix B .
3. Mitigating and Aggravating Factors: I prepare a list of circumstances and factors for the FAA to consider which relate to mitigating or aggravating facts. These include the significance in degree of hazard to the safety of other aircraft, persons or property in the aircraft or on the ground, created by the alleged violation particularly in light of the regulations alleged to have been violated. This also includes a summary of the facts from my client’s perspective regarding what he or she did under the circumstances and a discussion regarding what the air traffic controller or investigator alleged to have occurred. This also includes any relevant data or material that I have obtained from the FAA pursuant to a formal letter requesting all relevant and releasable portions of the FAA investigative file.
4. Nature of the violation – inadvertent or deliberate. While sometimes overlapping with the discussion above regarding the relevant facts, I include a discussion regarding the inadvertent or deliberate nature of the alleged actions. This may have particular implications not only with the enforcement proceeding itself but also with whether the waiver of sanction provided as a result of filing a timely ASRS form will be applicable to my client’s case, as one requirement of the ASRS is that the violation was inadvertent and not deliberate. Read the Advisory Circular about the Aviation Safety Reporting Program here.
5. Past violation history. While this is usually only relevant when a greater than normal sanction is being proposed by the FAA, I always am aware of my client’s past history with prior violations. It is extremely inadvisable to go into an informal conference without this information and having the FAA attorney confront your client with it during the conference.
6. Pilot’s level of experience. This includes all certificates held, total hours, total hours in type of aircraft and any other relevant information regarding my client’s level of experience at the time of the alleged incident.
7. Attitude of the pilot. This can be best conveyed by having my client show up in person for the informal conference. I always advise my client to be contrite without admitting guilt if possible. I also advise my client to be deferential, respectful and non-confrontational with the FAA attorney. This is also where I present to the FAA attorney the actions my client has taken since the incident in the way of additional flight or ground training as reflected in the endorsements from an instructor.
8. Nature of the activity involved (private, public or commercial). To the extent that it matters to the FAA the nature of the activity, I am always prepared to discuss this with them.
9. Ability of the pilot to absorb the sanction. While the FAA does not allow financial circumstances to excuse any violation, to the extent a suspension would adversely affect my client’s ability to make a living, make payments, provide for family, etc., I will often emphasize that a suspension would be extremely disruptive to my client’s life, that it is better to have my client flying, learning, and training than being sidelined. And in some circumstances, if I believe a violation will be found, I suggest a monetary sanction my client could absorb in lieu of having their license suspended.
10. Pilot’s qualifications. I am always prepared to discuss my client’s qualifications for the relevant flight situation including currency, medical, flight hours, etc.
11. ASRS forms. If my client qualifies for the protections provided by filing an ASRS form, I provide the FAA attorney with the receipt showing that my client timely filed the form and discuss the consequences of having filed it.
12. Relevant documents. I always bring copies of any relevant documents which may include endorsements, pilot logbook entries, maintenance logbook entries, receipts (e.g. showing replacement of troublesome equipment that may have contributed to the situation), etc. While the FAA is limited as to how it may use information you present at the informal conference, it is still in your best interest to carefully review any information prior to showing it to the FAA and consider whether it could be used against you.
13. Conclusion. Finally, I conclude with a summation of my presentation which includes a discussion of the FAA’s new compliance philosophy which I hope will guide the FAA attorney in their analysis of whether to withdraw the allegations, propose additional or remedial training such as flight or ground instruction, an absorbable civil monetary penalty or other possibilities to avoid a suspension or revocation of my client’s certificates.
I derived this strategy from attending AOPA’s FAA Enforcement Seminar for Attorneys, reviewing the seminar materials provided and through experience representing numerous pilots in enforcement proceedings. And this strategy has served my pilot clients well over the years.
