According to the FAA’s Office of Inspector General (“OIG”), a former commercial pilot who flew for Vacation Express/Sky King Airlines has pled guilty in U.S. District Court in Scranton, PA to a felony charge of operating a common carrier while under the influence of alcohol. The OIG’s press release states that on May 12, 2004 the airman was scheduled to co-pilot a flight from Wilkes-Barre, PA to Myrtle Beach, SC and that particular flight was also scheduled for a Flight Standards Distric Office (“FSDO”) inspection. However, while taxing from the commuter terminal to the passenger terminal, the inspector smelled alcohol on the co-pilot’s breath. Subsequent tests indicated that the co-pilot’s blood alcohol content was in excess of the .04 allowed by FAR 91.17(a)(4). The co-pilot is currently awaiting sentencing.
This is an interesting case. Not because the airman was prosecuted or because he didn’t do anything wrong, he did. The FAA’s delay in acting following the airman’s arrest is what make the case interesting. The incident occurred on May 12, 2004 and the airman resigned his position with the airline that same day. However, the FAA did not issue an emergency revocation order until approximately two months after the incident. Given that the FSDO inspector was present at the time of the airman’s violation, it is unclear to me why it would take the FAA so long to issue the emergency revocation order if, in fact, the FAA believed that the airman was a continuing threat to public safety.
I don’t think Judge Fowler, the NTSB law judge charged with initially ruling on whether an emergency basis exists, would find that the two months delay was contrary to the case-law upholding the emergency nature of the order as alleged by the FAA. However, if the delay had been a little bit longer, perhaps a three month delay, the airman may have at least had a marginally better chance of contesting the emergency basis of the revocation. It think this would especially be true where the FSDO inspector personally witnessed the violation and the airman was not able to dispute the violation. Although it wasn’t an issue in this case, it isn’t too hard to imagine a case where this could become an issue and the FAA and the public could be on the losing end of a Judge Fowler decision.
Just to be clear, I don’t disagree that the airman’s conduct was a violation and that such a violation is a threat to public safety. I would expect emergency revocation in such a situation. However, I would also expect that, absent a good excuse or unusual circumstances, the FAA would take action much sooner.
