An airman was recently involved in an accident. Although the subsequent company disciplinary action found that the airman had not done anything wrong, the airman later received a request for re-examination from the FAA. I was asked whether the FAA could take this action even though the airman was not disciplined. The answer is, yes, the FAA can.
Under 49 USC 44709, the FAA can request re-examination “at any time”. The FAA is not bound by an employer’s determination regarding discipline arising out of and accident or incident. The standard that the FAA must meet to justify a request for re-examination is whether the request is objectively reasonable. Re-examination requests have been held proper where the request arose out of an incident or accident that “could have been caused” by a deficiency in airman skill or knowledge and requests have been improper where the technical competence of an airman could not have been the cause of the FAA’s regulatory concern.
If lack of competence could have been a factor in the incident or accident that drew the FAA’s attention, the re-examination request will be considered reasonable, without regard to the likelihood that a lack of competence had actually played a role in the event. The FAA only needs to show that such a basis for questioning competence has been implicated, not that a lack of competence has actually been demonstrated.
If an airman receives a request for re-examination, he or she may only refuse the request in very limited circumstances in which the airman is physically unable to undergo the re-examination. Otherwise, failure to submit to re-examination will expose the airman to suspension of his or her airman certificates pending completion of the re-examination.
