Fairness in FAA Enforcement Matters: Steps to Take Right Now Continued from page 19 Offering the public flight operations without having the proper FAA or DOT certifications constitutes a serious offense. Aviation Business Journal | 4th most vulnerable position. The FAA will charge the pilots with heavy suspensions (180 to 270 days) and use those actions as the basis for issuing investiga- tory subpoenas against company officials to develop the case against the company. And, under the pres- ent organization of the enforcement practice within FAA’s Legal Office, there is a good possibility that the pilot cases may not be all assigned to the same attor- ney or even assigned to attorneys in the same physi- cal office. Finally, because actions against individual certificate holders must generally be initiated sooner than any action against the company, Flight Standards will refer the individual cases to the FAA Legal Office before any action is taken against the company. Accordingly, individual pilots get squeezed into trying to protect their own livelihood by seeking a settlement with the FAA, but at a cost of agreeing to provide testimony against the company. That puts the individual pilot at risk of an adverse person- nel action or worse, an adverse flight check result– which could follow the pilot under the Pilot Records Improvement Act of 1996, Pub. L. 104-264, ¶502 (PRIA) to new future employers. Yes, such practices by companies are actionable under whistleblower protection statutes (such as 49 USC 42121) and some state statutes, but we all know how the litigation process can be protracted and sometimes unfulfilling. The FAA can stop this apparent unfairness, or at least change the practice so that the focus remains on the company. Yes, pilots have a responsibility to make sure that the flights they conduct are properly autho- rized. But, pilots often have no reason to believe their flight does not fall within their com- pany’s authorization, and have no rea- sonable method to independently verify what their employer has told them about the flight. Pilots in that situation should not get caught up in the ensuing enforce- ment firestorm. A Quarter 2017 new commercial pilot just starting out in the business ought not be marked for life because that pilot was unlucky enough to be hired by an uncertified company. Flight Standards should not forward any of the individual pilot cases to the FAA Legal Office until the company case is ready to prosecute. And, Flight Standards should ask that the FAA Legal Office assign any pilot cases to the same attorney handling the company case. Flight Standards management, and the FAA Legal Office, should also look critically at each case before proceeding to make sure that any allega- tions against pilots are ones for which the individual pilots are liable. Finally, while the standard is high, Flight Standards should consider asking the FAA Legal Office for the authority to provide “special enforcement consideration” to the pilots willing to come forward. Offering the public flight operations without hav- ing the proper FAA or DOT certifications constitutes a serious offense, and the FAA should prosecute it vigorously. As I previously said, it harms the industry and puts passengers at risk. And, as the Administrator stated in his “Compliance Philosophy” Order, Flight Standards should put their resources toward the matters that make the most difference, the action against the company, not the actions against the individuals who find themselves pawns in the game. ■■ Encourage the Program Offices to respond to and communicate with a pilot’s counsel rather than insisting on only dealing with the pilot. It is axiomatic that attorneys do not contact indi- viduals directly if those individuals are represented by counsel, without the consent of their counsel. Imagine, then, my surprise (or naivety, depending on your perspective) when I learned from Flight Standards Inspectors and Medical Office administrative assis- tants that they would not honor my request to contact me instead of contacting my client directly for future communications. The FAA’s response to my inquiry as to why the Program Office followed that policy, was that the agency “deals only with the certificate holder.” I was surprised because this policy appar- ently existed while I was serving as an FAA attorney; and I did not know about it. When I asked current Continued on page 23 21
