Fairness in FAA Enforcement Matters: Steps to Take Right Now Continued from page 17 were engaging in medically disqualifying conduct (such as drug use), or had suffered a medically dis- qualifying event (such as a heart attack). Often, the Flight Surgeon would seek our counsel in how to deal with those complaints and anonymous tips. While anonymous tips are valuable tools for the FAA to use to ensure pilots do not operate aircraft with medi- cally disqualifying conditions, the FAA needs to first do some basic investigation to verify the substance of the tip. Unfortunately, it appears that some Regional Flight Surgeon’s offices routinely accept such tips as true until proven otherwise, instead of as just an inves- tigative lead to verify the pilot’s medical condition. The result is a letter sent from the Regional Flight Surgeon to the pilot seeking additional informa- tion about the pilot’s medical history, invoking the broad authority of the FAA under 49 USC 44709(a) to “re-examine” an airman. The letter, a form letter constructed by the Office of Aerospace Medicine, is accusatory in tone, threatens legal action if the request is not complied with, implies that the pilot may already be unable to exercise the privileges of any medical certificate the pilot holds, and intimidates pilots into thinking that they should surrender their medical cer- tificate to the FAA forthwith. If a pilot does surrender a medical certificate under such circumstances, then it may take months before the FAA reviews the infor- mation provided and determines whether the pilot qualifies under Part 67 to hold a medical certificate. When I recently asked a Regional Medical Office why they take such tips as true instead of attempt- ing to investigate first, the answers startled me. First, I was told that the medical office does not have a cadre of investigators to conduct even a basic vet- ting of the allegations in the tip. Second, I was told that “in the experience of the office” such tips are more likely true than not, so why shouldn’t the FAA accept them as true? I find both of those answers disingenuous. And, when I told the Counsel’s office about this practice, I found that there is little com- munication between the two offices. But the lack of communication between FAA offices did not surprise me based on my experience working at the agency. The medical office does have investigators at its disposal, who could perform basic vetting of these tips. 18 And, realistically, I believe it would not take much effort for the medical office to use its electronic data- base to look up the medical history of the pilot. The investigators in the agency’s Security and Hazardous Materials Safety Office are available to perform inves- tigations, and do so to support other offices. While the medical office I spoke with believes that most tips pan out, the tip might also have come from a jilted lover or vengeful former employer (I saw both while at the agency). Such requests include a level of detail that most pilots, on their own, will not likely respond to the satisfaction of the medical office. Therefore, the resulting FAA legal action will be based on the failure to completely respond to the request, not the substance of the tip. That might lead the medical office to the false conclusion that the tip was based on fact. I believe the Office of Aerospace Medicine should first investigate any complaint or anonymous tip before sending a request for additional information to a certificate holder. The Office of Aerospace Medicine should also engage with the FAA Legal Office to better craft individualized letters seeking that infor- mation once the tip is verified. The Administrator can direct these changes in policy immediately. ■■ Limit the use and scope of requests to “re- examine” an airman under 49 USC 44709. Flight Standards could also act more fairly in invok- ing the authority to re-examine certificate holders. In June 2015, the Administrator issued FAA Order 8000.373 (Compliance Philosophy), in which he stated that the agency “recognizes that some devia- tions arise from factors such as flawed procedures, simple mistakes, lack of understanding, or diminished skills” and that deviations of that nature can be most effectively dealt with through training and educa- tion, rather than legal enforcement action. Since the Compliance Philosophy Order was issued, Flight Standards management has implemented it with a full educational effort at FSDOs across the nation. The other Program Offices (Aerospace Medicine, HazMat, Drug Abatement, Airports, Commercial Space), however, appear to have shown less enthusiasm. While Flight Standards management has fully embraced this policy change, the field inspectors seem Aviation Business Journal | 4th Quarter 2017
