The NTSB recently affirmed the suspension of an airman’s private pilot certificate until he submitted to and successfully completed a re-examination of his qualifications. In Administrator v. Green, the airman struck a fence on take-off and substantially damaged the aircraft. After the incident, and pursuant to 49 U.S.C. 44709, the FAA sent the airman two letters requesting that he appear for a re-examination of his competency to hold his private pilot certificate. When the airman failed to appear for the examination, the FAA issued an emergency order revoking his private pilot certificate.
The airman appealed the order and at the hearing before the administrative law judge (“ALJ”) he admitted that he was involved in the incident and that he had not submitted to the re-examination. He argued that he didn’t know how the incident occurred and that his recent flight review under FAR 61.56 was conducted by an FAA designated pilot examiner and, therefore, it met the requirements of 49 U.S.C. 44709. The ALJ disagreed and concluded that the evidence concerning the incident indicated the FAA had a reasonable basis to question airman’s competence. He also stated that the airman hadn’t provided any evidence of his alleged flight review. As a result, the ALJ issued an order suspending the airman’s private pilot certificate pending his successful completion of the re-examination.
On appeal to the full Board, the airman argued that the FAA did not prove that he lost directional control of the aircraft on the flight in question. He also argued that the FAA’s request improperly stated that he should complete a “soft field takeoff” when the airfield at issue was frozen at the time of the incident. Finally, he argued that his satisfactory completion of a flight review with “an FAA examiner” after the incident should count as a re-examination.
Not surprisingly, the Board rejected the airman’ arguments. The Board initially observed that the FAA has significant discretion in determining whether a re-examination is warranted. Additionally, since the scope of the Board’s review of re-examination requests is very narrow and limited to the reasonableness of the request, the Board refused to consider the airman’s argument that he shouldn’t have to perform soft-field take-offs. The Board concluded that the evidence showing the damage to the airman’s aircraft after the incident, coupled with his failure to dispute that the incident occurred, supported the ALJ’s finding that the FAA had a reasonable basis for requesting re-examination of the airman’s qualifications.
With respect to the airman’s argument that his flight review met the re-examination requirement, the Board observed that a flight review under FAR 61.56 has different requirements from those of a reexamination under 49 U.S.C. § 44709(a). A request for re-examination occurs upon request, rather than on a periodic basis. Additionally, since the airman did not provide any authority for his argument, nor did the Board find any authority for the proposition, the Board refused to substitute a flight review for a re-examination.
Fortunately for the airman, his certificate was only suspended, rather than revoked. Unfortunately, the airman wasted time, energy and money appealing a case where the FAA’s burden is so low that it is very, very difficult for an airman to win. Had the airman talked with an aviation attorney prior to appealing the FAA’s order, he would likely have been told to focus his resources on preparing for and successfully completing the re-examination rather than filing an appeal. Oh well. At least now the airman simply needs to successfully complete the re-examination to get his certificate back.