In a recent NTSB opinion, Administrator v. Vargas, the Board affirmed an ALJ’s entry of summary judgment affirming the FAA’s emergency revocation of the airman’s mechanic certificate. The case arose out of the FAA’s issuance of a request for re-examination regarding the airman’s mechanic certificate. After receiving the request, the airman submitted to the re-examination, which resulted in an unsatisfactory performance by the airman. Approximately one month later, the airman submitted to a second re-examination that was again unsatisfactory. The FAA then initiated an emergency revocation proceeding to revoke the airman’s mechanic certificate.
The airman appealed the emergency revocation order. Prior to a hearing, the FAA moved for summary judgment and requested that the ALJ affirm its order revoking the airman’s mechanic certificate. In response, the airman argued that the FAA had not established cause for the re-examination and that the testing associated with his original qualification for his mechanic certificate was adequate and otherwise legitimate. The ALJ granted the FAA’s motion and affirmed the emergency revocation order. The airman then appealed the ALJ’s decision to the full NTSB Board.
On appeal, the airman repeated the arguments he made in response to the FAA’s motion for summary judgment. However, the Board rejected his arguments noting that the arguments became moot as soon as the airman submitted to the re-examination. It went on to cite its well established precedent that “[T]he only relevant question after the [reexamination] test has been given is not whether the Administrator’s doubts about the airman’s competence were reasonably justified, but, rather, whether his competence was in fact successfully demonstrated.”
The Board concluded that the airman’s failure to establish a genuine dispute regarding his submission to, and subsequent failure of, two re-examinations in combination with the fact that revocation in such circumstances is consistent with the FAA’s written sanction guidance, supported the ALJ’s entry of summary judgment in favor of the FAA.
Although this case is an unfortunate decision for the airman, at least the Board’s decision does a nice job of recognizing an airman’s instinctive opposition to a request for re-examination and then explaining the necessity for the request when an airman’s qualifications are in doubt:
“It is understandable that a certificate holder whose qualifications are perceived as having come under attack for reasons beyond his control may be displeased, even resentful, because of the possible burden and inconvenience that a reexamination might entail. At the same time, we would hope that such certificate holders would eventually appreciate that whatever personal hardships they may face are far outweighed by the risks to the public that may flow from permitting aircraft to be serviced by the inadequately trained or unqualified. We would add, moreover, our view that the Administrator’s efforts to ensure the competence of certificate holders where genuine doubts arise should be applauded, not reviled.”
If you find yourself on the receiving end of a request for re-examination, don’t panic. First, understand your rights (you can do this by reading my article on the subject here). Next, as this case shows, if you believe that the FAA’s request is unjustified, you will need to dispute that issue with the FAA prior to submitting to the re-examination. If you don’t, and then you submit to the re-examination, you will not be able to raise that defense in the future.
