In Administrator v. Ashmore, the NTSB denied the airman’s appeal of a $5,000.00 civil penalty assessed against him by the FAA for failing to surrender his third-class medical certificate. Initially, the airman was issued a third-class medical certificate even though the airman had reported an alcohol related driver’s license suspension approximately six months before the medical certificate was granted. However, the FAA’s Aerospace Medical Certificate Division subsequently requested additional information from the airman to determine his eligibility to hold a medical certificate (e.g. court records from the arrest and suspension, a chemical dependency/substance abuse evaluation etc.). When the airman failed to provide the requested information, the FAA denied the airman’s medical certificate application and requested the airman to surrender his previously issued medical certificate.
After the airman failed to surrender his medical certificate, the FAA served him with a notice of proposed assessment (“NOPA”) seeking to assess a civil penalty not to exceed $1,000.00 per day for each day the airman failed to surrender his certificate. The NOPA provided the airman with a ten day grace period within which the airman could still surrender his medical certificate and avoid assessment of the civil penalty. Unfortunately, the airman did not surrender his certificate until 16 days after the grace period expired. The FAA then served the airman with an order assessing a $5,000.00 civil penalty for failing to timely surrender his medical certificate.
The airman appealed the order to the NTSB, but then failed to file a timely answer to the FAA’s complaint. As a result, the Administrative Law Judge (“ALJ”) subsequently issued an order entering partial judgment on the pleadings in favor of the FAA and deemed the factual allegations in the FAA’s complaint as admitted by the airman. However, the ALJ deferred ruling on the propriety of the civil penalty and provided both parties twenty days to submit written arguments. The ALJ affirmed the civil penalty order, finding that the airman had offered no legitimate reason to mitigate the sanction. He then observed that the assessed civil penalty was at the low end of what the FAA could have sought under the FAA’s Enforcement Sanction Guidance Table (FAA Order 2150.3B), and noted that the “$5,000 civil penalty … in this case thus represents a fraction of the $17,600 maximum assessment that could have been made for that 16-day period, at $1,100 per day.”
On appeal to the NTSB, the airman alleged that the ALJ erred in affirming the civil penalty and he requested that the Board “show [him] grace and dismiss the assessment of [the civil penalty].” The Board determined that the civil penalty was at the low end of the scale and was appropriate. It then observed that the FAA “provided respondent with ample opportunity to avoid this result; and respondent repeatedly failed to comply with the Administrator’s requests in a reasonably diligent manner” and “[A]t every turn, respondent failed to respond or act in a timely manner to avoid imposition of this civil penalty.”
This is an unfortunate result for the airman. No medical certificate and a $5,000.00 civil penalty to rub salt in the wound. I have to wonder why the airman failed to respond to the FAA and the NTSB. However, regardless of the reason, this case is a good example of why you cannot ignore the FAA. Although $5,000.00 seems harsh for failing to surrender a certificate, I don’t doubt that the airman’s continuing failure to respond factored into the amount of the civil penalty.
At the end of the day, this airman ended up owing more than he otherwise might have had to pay to have an aviation attorney resolve the case for him. Penny wise and pound foolish? You make the call.
