Almost anyone working in the aviation maintenance industry is acutely aware that there are regulations, manuals, bulletins, and directives that must be consulted, followed, and complied with in the performance of aircraft maintenance. This is a regulatory responsibility as well as a practical safety responsibility. But, how many of us are as acutely aware of the consequences of our failure to properly follow the instructions contained in those publications? Certainly, it is simple to understand that there are safety-related consequences associated with maintenance that you perform, but what other consequences may you need to be prepared for?
Two possible consequences come quickly to mind: first, the potential liability for the damages and injuries that may result from the maintenance that you performed; and second, the potential to lose your job. A third consequence that can sometimes send us scrambling to know what to do is the potential consequence that the FAA may take a legal enforcement action to suspend or revoke your FAA certificate, or to collect a civil monetary fine from you, based on allegations that you violated a regulation in the performance of aviation maintenance.
Years ago, Congress gave the FAA the authority to promulgate minimum standards and regulations to promote aviation safety. Congress also gave the FAA the authority to enforce compliance with those standards and regulations by allowing the FAA to investigate information indicating a violation and to impose sanctions on persons who have committed a violation. The FAA exercises its sanction authority in many different ways, ranging from a compliance action determination to a referral for criminal prosecution. In between these extremes are administrative actions, certificate actions, and civil penalty actions.
The compliance action noted above stems from what the FAA calls their New Compliance Philosophy. It is a well-intentioned policy that, on its face, allows for greater prosecutorial discretion in taking less formal action against regulated persons for noncompliance. The FAA acknowledges that some deviations arise from simple mistakes or misunderstandings and that future compliance might be better secured through remediation rather than legal enforcement. That seems like a sound policy. We caution, however, that the mere existence of the policy should not influence airmen to let their guard down when dealing with an FAA investigation.
Investigations generally start when an FAA inspector receives information that a violation of the regulations may have occurred, or they can begin with an FAA inspector who comes across evidence of a violation during routine surveillance or while investigating an aircraft accident. At the outset of an investigation, the inspector will usually attempt to interview the target of the investigation, or at the very least, send him or her a Letter of Investigation (LOI). In accordance with the Pilots Bill of Rights, which extends to certificated mechanics, the inspector is required to notify the targeted individual about the nature of the investigation, and among other things, indicate that an oral or written response to the inspector is not required. Whether or not it’s advisable to talk to an inspector, or reply to an LOI, is debatable. However, the consequences for responding to the FAA without thoughtful guidance can be dire if unintentional or good faith admissions against interest are made—think certificate suspension or revocation or a hefty fine without any meaningful ability to defend. We therefore, always recommend that anyone caught up in this process seek competent counsel before speaking with an FAA inspector and before responding to the FAA inspector's LOI.
Once the investigation is completed the FAA will determine what action to take, if any. There are rare instances where no action is taken at all, such as when there turns out to be no reliable or credible evidence that a violation was committed or if the supposed violator is misidentified. As previously noted, the inspector has other non-legal enforcement options available, including a request for reexamination or a compliance action and administrative action, but let’s focus on enforcement action. If the inspector recommends legal enforcement, the file, otherwise known as the Enforcement Investigation Report or EIR, is forwarded through the FAA inspector's managers to the FAA's legal office to initiate the legal enforcement action. Here, the law affords the person very specific, important procedural rights. That is, the law requires that before taking the action, the FAA must advise the person of the specific charges or other reasons for the action and, except in an emergency, must provide the person with an opportunity to answer or explain why the action should not be taken. This advisement from the FAA comes in a Notice of Proposed Certificate Action or a Notice of Proposed Civil Penalty, and the FAA gives the person several options for responding, including the option to attend an informal conference with an FAA attorney to discuss the charges made by the FAA. The person may appear at the conference on his or her own, or be represented by an attorney. The conference may be held telephonically or in person at any of the FAA regional offices or FAA headquarters office. How to handle the informal conference is a strategic question.
If the matter is not settled or dropped after this right to be heard has been fulfilled, the FAA will issue an order, which the person then may appeal to the National Transportation Safety Board (NTSB). Once an order is appealed, the case will be assigned to an NTSB administrative law judge who will hold a trial-type hearing at which the FAA bears the burden of proving the charges alleged in the FAA’s order. The person being charged will have the opportunity to offer evidence in defense against those charges, including calling witnesses and presenting documentary information. The NTSB's rules allow the person to represent themselves at this hearing, or they may appear with and be represented by an attorney. At the conclusion of the hearing, the judge issues an oral decision, and either affirms, modifies, or reverses the FAA’s order. If either the FAA or the person is dissatisfied with the judge's decision, a further appeal may be taken to the full five-member board of the NTSB, and even further appeals may be available after in the federal appeals courts.
Many aviation maintenance personnel have found themselves caught up in this legal enforcement process, and have been faced with making tough decisions whether to spend time and money to defend themselves against the FAA's action. At the core of all this is the risk that it poses to their continued ability to maintain a livelihood. Many of these cases have involved first-time, inadvertent incidents where safety has not been seriously compromised. And while we’re seeing many cases handled with compliance actions, it’s not a given. There is a cadre of FAA attorneys available that can make a "federal case" out of most any incident, often at the bidding of an FAA inspector that is not fairly evaluating the case. Unfortunately, because these maintenance personnel may not fully understand their rights and the defensive options available to them or they don't have the resources to mount a defense, they may feel compelled to accept the FAA's action and suffer the consequences, including a suspension or civil penalty and a permanent mark on their FAA record.
I think that most of us would agree that those who intentionally violate the regulations or seriously compromise safety should be subject to vigorous FAA enforcement. It is an effective FAA tool in ensuring compliance with the regulations designed to keep the system safe. This makes sense, as the threat of FAA enforcement for a violation of a regulation that impacts safety is a meaningful deterrent. However, the system is not always even handed or fair and sometimes well-intentioned mechanics get caught up in the enforcement vortex. Mechanics and other aviation maintenance professionals should, of course, always strive to follow the FAA regulations and associated guidance material, and to keep up to date with maintenance procedures and standards, but sometimes mistakes or misunderstandings occur.
If you find yourself the target of an FAA investigation, at a minimum, you should be familiar with the enforcement process and understand your basic rights. Your livelihood may depend on it.
Copyright © Yodice Associates 2018
Kathy Yodice is the Managing Partner of Yodice Associates, a private practice law firm with a special emphasis on aviation law. She has more than 30 years experience representing airman in FAA enforcement actions, regulatory compliance matters, accident investigations, and aviation-related business issues.