Pilot Deviations

If you ever asked by ATC to take down their phone number, the first thing you need to say is “standby”, and fly the airplane. There is never a rush to copy a phone number while you are flying the airplane. Telling ATC to standby allows you to make sure you are at a safe altitude, on course, and the aircraft is fully under control. Once you are settled, you can take down the phone number.

Do not try to explain or describe the situation over the radio. Getting your side of the story can wait until you are safely on the ground. Otherwise, you can become distracted from the most important task of flying the airplane. Moreover, you are probably going to be a little nervous because something happened and you need to put that behind you for the time being. Arguing with ATC is a gross distraction for you, ATC, and other aircraft. Adding unnecessary distractions erodes safety. If practical, ask them to relay the phone number to ground control and take the information after landing.

Always keep in mind that under the Pilots Bill of Rights, anything you say can and will be used against you. ATC’s primary goal is to identify you as the pilot in command. Rest assured they will ask you your name and if you are the pilot who flew the airplane in question. Once you say yes, they got you. This doesn’t mean you should withhold your name if asked. If the issue is rather minor and likely to result in participation in the “Compliance Program”, feel free to give them your name and politely tell them you want to speak to Aviator Law before answering any further questions. It’s OK to tell them you will get back to them.

The best way to handle the situation is to call them and ask them what the issue is even if you already have an idea. Let them do the talking and take notes. Do not volunteer information because they are attempting to gather information from you. If they are alleging you violated an FAR (ie. entering Class B airspace without a clearance), you should not try to talk your way out of it. ATC personnel have limited discretion to let you get away with anything. It is likely the person you are talking to on the phone is not the same person on the radio. Always keep in mind they are required to file a report that will be forwarded to the FAA Air Safety Inspector (ASI).

You can and should truthfully give them your name, address, and phone number if asked. If you are guilty, do not admit to anything. Just politely tell them that you disagree and are “willing to get to the root cause” of the issue. There will be ample opportunity to address the issue at a later time. This is especially true after you had a chance to consult with Aviator Law.

Depending on the severity of the allegation, the FAA has the authority to use its emergency revocation authority. This is used when the FAA believes what you did was a gross deviation and presents an imminent and significant risk to air safety. If you get a notice of Emergency Revocation, call Aviator Law right away because you have only 2 days to challenge the revocation. Otherwise, the revocation will stand until you go through a formal appeal which can take months if not years.

Again, depending on the severity, the FAA will then institute Compliance, Administrative, or Legal Enforcement actions.

There are a lot of details but in summary, these actions are designed to get to the root cause of the deviation and then find the appropriate remedy. Compliance and Administrative actions generally do not result in an actual violation. A Legal Enforcement Action is formal and will result in a permanent violation on your record.

The goal of this program is to restore the full privileges of the airman certificate (pilot, mechanic, etc.) This option is available to the alleged violator only if the FAA is convinced the airman is willing and able to fully participate in becoming fully compliant with regulatory standards.
The FAA defines “willing” as one who;

1. acknowledges responsibility for the event,
2. openly shares information with the FAA to determine the root cause of the event and,
3. the airman agrees to implement a plan of corrective action.

A person is “able” if the person has;

1. personal, time, and financial resources to implement the plan,
2. access to data, equipment, facilities, and other resources to comply with regulatory requirements, and
3. the ability to develop the knowledge and technical competence required of the certificate held.

The ability to complete the plan is an essential part of the program. If a pilot does not complete the program, the FAA may then pursue Administrative or Legal Enforcement Action.

Depending on the type of certificate, the FAA has a limited time to initiate legal enforcement. For pilots, they must initiate punitive certificate action within 6 months starting from the date of the event. This is known as the “Stale Complaint Rule”. For this reason, you can expect the FAA will want a compliance program participant to complete their plan within that time frame.

An administrative occurs when the FAA has made a good faith determination that compliance action will not remediate past non-compliance and ensure future compliance, and legal enforcement action is not required or warranted. This can occur when the FAA has insufficient evidence that a violation has occurred or the time limit for legal enforcement has expired. There are two types of administrative actions the FAA may take. They may either issue a “Warning Notice” or “Letter of Correction”.

A warning notice is a written notification that warns the airman that based on the facts and circumstances they have determined that noncompliance with a safety regulation has occurred. It also is a request for the airman to comply into the future. It may also include a statement requesting the airman provide additional information to explain or mitigate to alleged noncompliance. If a response is given, the FAA will evaluate it to determine whether or not to withdraw the notice. Care must be taken if you decide to respond and it is advisable to seek legal assistance from Aviator Law before drafting any response.

A letter of correction serves the same purpose of as a warning letter as it describes the facts and circumstances of the alleged noncompliance. However, it differs in that it serves as an agreement between the Airman and FAA of a particular corrective action to be taken within a specific time frame to effectuate compliance. Since it is an offer of agreement, it does not solicit explanation or mitigation information so the only response necessary is acceptance or rejection of the agreement. Keep in mind the time frame offered by the FAA is designed to preserve their ability to take legal enforcement action should the airman fail to fulfill the agreement to take corrective action. Meaning, they will time the LOC so as to not violate the “Stale Complaint Rule”.

No. The purpose of these actions is to encourage compliance. The FAA philosophy is that airman who are compliant with regulations improve the safety of the National Airspace System. They believe that remediation is better at improving safety than punishing someone through the legal enforcement action.

Legal enforcement action occurs when the Air Safety Inspector has referred the matter the FAA Office of Legal Counsel. The ASI is required to refer the matter to the FAA lawyers anytime one of the following occurs;

• Intentional Conduct
• Reckless Conduct
• Failure to Complete Corrective Action
• Conduct that creates a high likelihood of significant risk to air safety
• Legal Enforcement is Required by law

The ASI may refer the matter and has discretion to pursue legal enforcement under the following conditions;

• Multiple non-compliances discovered during a single inspection
• Recurring non-compliance of the same or similar regulation discovered during multiple inspections
• Non-compliance with different regulations arising from a common root cause.

No. You are not legally required to cooperate with the FAA. The Pilots Bill of Rights serves to protect you from disclosing any information that may be used against you.

Depending on the severity of the situation, cooperating with the FAA can lead to favorable outcomes. If the alleged violation is minor or isolated, cooperating to find the root cause and agreement to take remedial action will not result in a violation and you can return to flying status without any record on your ticket.
However, if your alleged violation is more severe as a result of an intentional, reckless, or otherwise is perceived by the FAA has a significant risk to air safety, you can expect legal enforcement is forthcoming. Even during legal enforcement, cooperation or lack thereof can have a profound impact on the outcome of your case. In these situations, you should have Aviator Law by your side in order to ensure the FAA does not overreach in whatever punishment they may deem appropriate.

In most cases you cannot take the FAA directly to court. If you believe that the FAA has overreached, the best option is to file a petition for a hearing to appeal the FAA decision before an NTSB Administrative Law Judge (ALJ).

An NTSB hearing is a quasi-judicial court within the Department of Transportation. The NTSB has sole jurisdiction to hear appeals of FAA decisions affecting air safety. Although it is an administrative proceeding, it resembles a court setting. The judge works for the NTSB and is both the finder of fact and issues conclusions of law. Both sides get to present present evidence supporting their side of the story. The process follows the Federal Rules of Civil Procedure and presentation of evidence follows the Federal Rules of Evidence. Expert witnesses give their written and oral testimony and is weighed by the ALJ. After hearing, the judge then issues either an oral or written decision.

Any finding of fact by the ALJ is generally final. The only way to appeal the decision is to request the matter be heard before the full NTSB. Since the full board was not at the hearing, they defer to the ALJ the credibility of witnesses and introduction of evidence. That leaves the board to determine whether the ALJ made errors in applying the law or in abuse of the judges discretion.

There is a misconception that after hearing, the judges decision creates a precedent for future decisions. This is not technically accurate. Binding precedent within the NTSB occurs when the NTSB reviews the judges order then issues an NTSB Appeal Order. The NTSB order will either affirm the ALJ decision or reject it.

The order has the effect of making a final determination as to the facts and applies those facts to the matter taking into consideration prior NTSB orders and existing regulations. For example, if the NTSB finds that the ALJ made errors during the hearing, the NTSB will either reverse the decision or send the matter back to the ALJ to render a new decision based on the order.

The order itself is binding precedent on the ALJ and all future cases can rely on those orders as being final. NTSB orders are stored on the NTSB case database and can be accessed by the public on their website.

Maybe. If it is appealable, the appeal is generally taken before the Federal Circuit Court of Appeals in the State where the alleged violation occurred or where the alleged violator resides.

The Federal Courts will only accept the appeal if they think the NTSB has violated due process rights of the aviator. If they accept the appeal, they will not disturb the factual findings of the ALJ and will defer interpretation of regulations to FAA unless the aviator can show that the government activity was arbitrary and capricious or is otherwise contrary to the law.