FAA Fails to Exercise Appropriate Prosecutorial Discretion (Again)

Many of us see the world and its problems in shades of gray. We realize with respect to most moral or ethical issues we confront, there are often arguments on both sides, and people may disagree in good faith. 

This is true even when rules are broken. Indeed, our legal traditions have long recognized the doctrines of justification and excuse when laws are alleged to have been violated. These doctrines allow for penalties to be lessened or avoided altogether when an adequate justification or excuse exists. The powers-that-be at the FAA, however, apparently missed this day in law school as the FAA often continues to see matters in black and white and has applied its rules in a heavy-handed manner when wisdom or empathy might suggest a softer approach.


A recent example involves a young aviatrix who was alleged to have cheated on her FAA Flight Instructor Airplane (FIA) knowledge test. She held a commercial pilot certificate and graduated at the top of her class from one of the most renowned flight universities in the world. She had no history of careless or reckless flight, nor any prior disciplinary conduct. Sadly, as she was preparing to take her FIA, her father became hospitalized with the same strain of COVID-19 that had just killed her grandmother earlier that year. The pilot elected to continue with the FIA but made the unfortunate decision to bring her cellphone into the testing center to monitor any urgent communications from her family regarding her father’s precarious medical condition. The testing center caught her looking at her phone during the testing.

Without any meaningful investigation, the FAA not only alleged but summarily concluded that during the FIA test, the pilot was observed to be using her cellphone to cheat—an alleged violation of FAR 61.37(a)(6). Importantly, FAR 61.37(a)(6) states: “An applicant for a knowledge test may not … use any … aid during the period that the test is being given.” For this alleged violation, the FAA issued an emergency order to revoke all the pilot’s airman certificates, effective immediately—the most severe certificate enforcement action at the FAA’s disposal.


The pilot, however, did not possess her cellphone for any illicit purpose. It was not used to conduct searches for answers to the test or to otherwise cheat. In other words, the cellphone was not used as an aid during the test as was intended by the regulation. 

The only evidence the FAA has to support its unfounded conclusions are the surveillance video and the testimony of individuals who watched the video feed. The contrary evidence from the pilot was ignored. By ignoring alternative evidence, the FAA is essentially arguing that because the pilot had her cellphone on her person, it must have been used for cheating. This is what we in the legal system call a strict liability offense. The conduct is either a violation or it's not, regardless of justification or excuse—a black and white way to view the regulations.

Even assuming this conduct is a violation of the regulation, a less severe remedy is warranted. While the FAA’s sanction policy in Order 2150.3C says “cheating on any required test or check” is a “single act generally warranting revocation,” the policy leaves room for alternative remedies—remedies the FAA is choosing to ignore. To be clear, there are several less severe alternatives available—compliance action, administrative action, certificate suspension, or retesting. Given the complete lack of evidence that the pilot intended to use the cellphone as an aid during the test together with the fact that her cellphone was her only connection to her seriously ill father warrants a less extreme remedy. Instead, the FAA is viewing its sanction policy as black and white when reality paints with shades of gray. By doing so, the FAA, once again, has failed to exercise appropriate prosecutorial discretion.

The case is ongoing and set to be heard by an NTSB administrative law judge later this month (March 2024). On appeal, the pilot seeks relief from the emergency order of revocation, the reinstatement to active flight status, and the return of all flight certifications along with the dismissal of all allegations containing inferences of her cheating to pass an FIA test.


Regardless of how this matter is resolved, the FAA’s immediate and arbitrary leap into enforcement and revocation of all this airman’s certifications has forever tarnished the career path of this top university graduate with unequal, heavy-handed punishment. As a result of the government’s black and white view, the pool of top qualified flight instructor candidates has shrunk. In the end, it is the flying public and the nation that loses.

The opinions expressed in this article are those of the author.


Alexander Penalta, Esq., is the Chief Litigation Counsel for The Penalta Law Firm. He is an active pilot and provides services to passengers, pilots, aviation powerplant mechanics involving repairs, accidents, collisions, catastrophic injury, investigations by the NTSB, FSDO, and FAA investigations, FAR licensing actions, Medical, Alcohol Substance Abuse, HIMS, criminal prosecutions, and FBO Flight Operations. Mr. Penalta has been a panel attorney with the AOPA Legal Services Plan since 1994.

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