The 709 Ride: What is a Reasonable Request?

On July 15, 2020, the FAA issued a Notice implementing a national policy that, with certain exceptions, all airmen who were tested by and received pilot or flight instructor certificates, ratings, or reinstatement from examiner Michael A. Puehler between October 2008 and December 2019 would be reexamined by an FAA inspector (commonly called a “709 Ride”).

Regarding the purpose for the notice, the FAA indicates the competency of airmen examined by Puehler during the indicated period is in doubt. Initial reports suggest hundreds of airmen will be impacted.

If you are one of many airmen subject to such a reexamination request or a concerned observer, you may be questioning whether the FAA is overstepping its authority by requesting wholesale reexaminations from hundreds of airmen who may not have done anything wrong. After all, the typical reexamination request is made in response to an underlying event (like an accident or incident) in which a lack of competency could have been a factor.

For better or worse, the FAA has broad authority to request reexamination under 49 U.S.C. § 44709. Precedent from NTSB cases makes clear the sole question in a challenge to a reexamination request is whether the request is reasonable. Previous wholesale reexamination requests have been upheld as reasonable even where there is no evidence of deficient testing specific to the airman. See Administrator v. Santos and Rodriguez, NTSB Order EA-4266 (1994). In such cases, the NTSB has stated, “reexamination requests … must be sustained if the evidence creates even a reasonable doubt as to whether the [airmen] were tested properly.” Id. Importantly, however, the NTSB appears to have left open the option for an airman to successfully challenge a wholesale reexamination request if she can provide persuasive proof that the test given met all applicable requirements. Id.

Large-scale requests for reexaminations such as this have happened in the past and, unfortunately, may happen again.

photos of AOPA employee Ian Arendt

Ian Arendt

Ian Arendt is an in-house attorney with AOPA’s Legal Services Plan. He provides initial consultations to aircraft owners and pilots facing aviation related legal issues through the LSP. Ian is a private pilot and aircraft owner. The AOPA Legal Services plan is offered as part of AOPA’s Pilot Protection Services.

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