The FAA’s typical approach to inadvertent noncompliance is to use a Compliance Action, an informal process of identifying and fixing the root cause in lieu of an Enforcement Action. This resolution may range from an informal verbal discussion to a formal training syllabus, as opposed to a certificate suspension or revocation that can result from Enforcement Action. Sometimes, though, pilots can be adversarial and defensive when they are informed of a potential pilot deviation and investigation. Note that being unwilling to participate in CP disqualifies one from being considered for Compliance Action.
Pilots reacting defensively to FAA investigations is not entirely unreasonable or unjustified. Up until late 2015, the FAA was in a strict enforcement mode where it pursued Enforcement Actions in most cases where a deviation was reported. In 2015 alone there were 1,771 legal enforcement actions taken, many of which resulted in suspensions and revocations. Consequently, many pilots developed a distrust of the FAA. By 2021, however, there were only 1,017 enforcement actions, and that number includes a spike in unruly airline passenger incidents. In contrast, there were 5,241 Compliance Actions.
Starting in late 2015, the FAA shifted its focus from enforcement and punishment to training and education to achieve its goal of aviation safety. The data shows that this has been as effective as the prior focus on harsh enforcement. Another observation we can take from these statistics is that the FAA is following up with more reports of potential deviations than they were previously. This may be because FAA staff are not tied up with Enforcement Actions.
CP, as stated earlier, requires a “cooperative attitude” from the pilot. Many may be left scratching their head in wonder at this term. This is especially true when considering the FAA’s history of strict enforcement, but also when considering the Pilot’s Bill of Rights. After all, don’t you have the right not to give a statement to the FAA? Will getting a lawyer be perceived as being suspicious or not having a “cooperative attitude”? Although getting a lawyer before responding may be perceived negatively by some, it is your right and the FAA states that they will not hold it against you. Assertion of your rights is not evidence; it is simply an assertion of your rights.
Declining to answer questions until you have had the opportunity to speak with a lawyer is also not considered an uncooperative attitude. Having the appropriate attitude is more about being polite and courteous with the inspector instead of being adversarial, defensive, or combative. Being respectful does not necessarily require a pilot to answer questions over the phone. When contacted by an FAA inspector, we often recommend that a pilot politely request any questions be sent in writing via email, then having an aviation attorney review their responses prior to sending the responses back to the inspector.
This course of action is considered “cooperative and willing.” This is because a pilot is not being rude, adversarial, or combative. They are not refusing to answer the inspector’s questions or refusing to provide requested information, i.e., aircraft annual inspection logs, pilot flight logs, etc. Many times, a pilot will hurt their case or position by having an adversarial attitude and refusing to provide information they may be obligated by the regulations to provide. Such actions can convince an inspector who was leaning towards a compliance action to instead favor an enforcement action.
In some cases, the inspector may propose a formal training syllabus which the pilot is not inclined to complete. However, completing the requested training is almost always a better alternative to a hearing where the probability of having your certificate suspended or revoked is high. Training is usually a better alternative to a re-examination of a pilot’s certificate as well.
There are certainly times when the FAA inspector may get it wrong and there may be a case to litigate, but often, it is best to work with the FAA inspector towards a common goal of aviation safety.
Ryan King is an in-house attorney with AOPA’s Legal Services Plan. Ryan is a Private Pilot and predominately flies Cessna 172s. He is a former Panel Attorney with the Pilot Protection Services program. The AOPA Legal Services Plan is offered as part of AOPA’s Pilot Protection Services.