Airmen Can Minimize Exposure to a FAA Enforcement Action

Several times throughout the year I present a seminar to pilots titled, "Understanding the FAA Enforcement Process".  The purpose of the seminar is to educate pilots about their rights and obligations if they become involved in an enforcement action pursued by the FAA to either suspend or revoke their certificate.  In short, if an airman commits a violation of a Federal Aviation Regulation (FAR), then the FAA has the authority to revoke or suspend an airmen's certificate for that violation. There exists an administrative legal process whereby the airmen forces the FAA to prove that the violation occurred and that the sanction sought is warranted.  These administrative trials are heard by National Transportation Safety Board (NTSB) Administrative Law Judges.  Not surprisingly the process of going to trial on a revocation or suspension action is expensive and time consuming. 

Most general aviation pilots have little to no knowledge of the enforcement process.  Private Pilot & Sport Pilot training do not cover this topic.  In the absence of training, most pilots are unaware of a very useful resource that can assist them in avoiding an enforcement action altogether.  In an effort to improve safety in the National Airspace System, the federal government created the Aviation Safety Reporting System (ASRS).  Through the ASRS, an airman can submit a report, without giving identifying information, that describes an incident, operation, or procedure that could create a hazard to aviation safety.  The ASRS report is submitted to NASA, which has no enforcement authority.  NASA then redacts any identifying information and compiles the safety information for action within the National Airspace System. 

Why does this matter to GA pilots?  The answer is simple and straightforward-- if an airmen submits an ASRS form in relation to an incident that is directly related to an FAA enforcement action, then the airmen is immune to disciplinary action by the FAA.  See 14 C.F.R. section 91.25.  However, there is an exception, if the ASRS pertains to an accident or criminal activity, then the immunity does not apply. 

Allow me to demonstrate with two examples.  Recently I was flying  through Class C airspace with a VFR clearance.  I received an instruction from ATC that I did not understand.  I asked the controller to repeat the instruction twice.  The controller repeated the instruction twice, but I did not understand what she wanted me to do.  I then explained that I did not understand and the controller amended her instruction and told me to fly a heading.  During the time that our communication exchange occurred it is possible that I may have flown too close to aircraft being sequenced for landing at the Class C airport.  I don't know.  To protect myself, I filed an ASRS to identify the problem...namely the use of language and phrasing by ATC with a VFR pilot that was confusing.  Should the FAA seek to pursue any type of enforcement action against me, I am immune from any sanction because I voluntarily reported the incident to NASA. 

Now consider an instance where the airmen would not get the benefit of the ASRS immunity.  Earlier this month a private jet crashed while attempting to land in Aspen, Colorado.  If the surviving first officer were to file an ASRS form pertaining to the accident, then NASA would be obligated by law to share the identifying information with the FAA and the airmen would not get the benefit of the immunity policy.  Remember, criminal activity and the occurrence of an accident will prohibit the airman from being eligible to claim the protection of the immunity policy.

There exists more information about the ASRS form and the immunity policy.  If you are contacted by the FAA in relation to an enforcement action, then call Ronnie Gipson at (415) 692-6523 or email him at Gipson@higagipson.com to discuss whether or not you can utilize the ASRS form to avoid suspension or revocation of your certificate. 

FAA Publishes New Rule on Pilot Qualifications

On August 1, 2013, the Federal Aviation Administration ("FAA") published a new rule on pilot qualification requirements impacting pilots who fly as first officers for U.S. passenger and cargo airlines. The rule requires first officers to hold an Airline Transport Pilot ("ATP") certificate with 1500 hours of total time as a pilot. The new rule also requires first officers to have an aircraft type rating specific to the airplanes flown for the airline.

There is an allowance for current first officers with fewer than 1500 hours of flight time enabling those pilots to obtain a restricted privileges ATP certificate. The restricted privileges ATP certificate allows a pilot to serve as a co-pilot until he obtains the necessary 1500 hours.

The new rule stems from the Colgan Air flight 3407 crash in February 2009. This rule is meant to increase the safety of operations by raising the experience level for both pilots flying for passenger and cargo airlines.

If you have questions about the new rule or its implementation, then contact Aviation Attorney Ronnie Gipson by email at Gipson@higagipsonllp.com or by telephone at (415) 692-6520.

An Employee Terminated For Not Cooperating in an Internal Investigation Does Not Automatically Constitute A Wrongful Termination

Recently a supervisor working for a California company was fired for not cooperating with his employer’s investigation regarding a subordinate’s claim against him for discrimination and harassment. The supervisor had criticized the subordinate’s work performance and the subordinate responded in turn by complaining to human resources that the criticism was a result of sexual discrimination and harassment.

An external investigator was hired to conduct the company's internal investigation. The investigator determined that the supervisor intentionally misrepresented some facts and was uncooperative during the internal investigation. As a result of this report, the supervisor was terminated. The supervisor then filed a lawsuit against his employer stating that he was wrongfully terminated for participating in the investigation.

The court applied California’s Fair Employment and Housing Act (FEHA) to the facts and issues and concluded that FEHA did not shield an employee against discipline, up to an including termination, for misconduct during an employer's internal investigation of a discrimination claim. Employees have a duty to be truthful and cooperate with their employers in an internal investigation; otherwise, the employer can discipline or terminate that uncooperative employee.

As employers, if you have questions pertaining to questionable conduct from an employee participating in an internal investigation, then contact Ronnie Gipson by telephone at 415.692.6520 or by email at Gipson@higagipsonllp.com.

Government Officials Conducting Questionable Searches of General Aviation Aircraft

As we near the half way mark of 2013, the aviation community has seen a startling trend emerge – there are a growing number of reports from law abiding airmen being stopped by armed federal agents on the ramp and their aircraft being searched without a warrant.  The agency reportedly conducting the searches is the U.S. Department of Homeland Security (DHS) Customs and Border Protection Division. 

 The searches seem to be targeted at General Aviation and have raised concerns regarding privacy and civil rights intrusions by the Federal Government.  To place these searches into context, a little education is required.  The Fourth Amendment to the U.S. Constitution protects people from searches by the government without a warrant.  The Amendment further provides that a warrant may be issued only upon probable cause.  Cases decided in our Fourth Amendment jurisprudence history stringently adhere to the warrant requirement for a search of a person’s property such as an automobile.  However, there are exceptions to the warrant requirement that allow government actors to conduct a search without a warrant. 

There exist a lot of questions about whether the searches are properly authorized because the reported searches were conducted by armed Customs and Border Protection agents at airports a significant distance away from the U.S. border such as in Iowa City, IA.  The Aircraft Owners and Pilots Association (AOPA) along with the Experimental Aircraft Association (EAA) have both demanded official responses from officials at the highest level of DHS with no response.  The affected airmen and AOPA have filed Freedom of Information Act requests to no avail.  The purpose of the demand for official responses is to identify the legal basis upon which the searches are being conducted to assess whether or not the searches comply with the Fourth Amendment’s warrant requirement or whether the searches qualify for one of the exceptions.  The searches, as they are reportedly being conducted, amount to harassment by government officials who wrongly believe that constitutional protections do not apply to GA pilots. 

To date, none of the airmen have been arrested in connection with the warrantless searches.  As a result, without legal action in the courts by the government agencies no one has been provided with the right set of circumstances to challenge or question the DHS’s expansion of searches before a sitting Judge.  Regardless of whether or not the government takes subsequent action, if the right set of circumstances come to pass, there may exist an opportunity to challenge the actions.

If you, as an airman encounter a situation where a law enforcement official endeavors to search the aircraft without a warrant, then there are some suggested steps for you to follow to protect your rights.  First, ask the law enforcement official(s) to explain the purpose of their search.  Next, request to see the law enforcement’s official identification and make note of their name, badge number, and agency.  Third, in response to a request for documentation, provide the information specified in the Federal Aviation Regulations (FARs) to officials from the following:   the FAA, the NTSB, Federal, State, or local law enforcement agencies.  For example, a private, commercial, or ATP pilot must present their pilot certificate, medical certificate, and a photo id[1].  Additionally, the pilot must present a valid aircraft registration upon request.  The fourth recommendation is for you to ask the official to identify the authority for the search.  Ask if you are under arrest.  If you are not under arrest, then ask if you are being detained and if you are free to go.  Next, if the law enforcement official states that they are going to search the aircraft and its contents over your objection, then you should plainly state that you do not consent to the search, but that you will not interfere.  It would also be prudent to alert the law enforcement official that disassembly of any portion of the aircraft may render the aircraft unairworthy[2].  

If feasible and allowed to do so, then take steps to document the search such as with a camera of cell phone.  Make a detailed written report as soon as practical to preserve the sequence of events as close as possible to how they transpired.  Each situation is unique and it is not the intent of Higa & Gipson through this blog entry to provide legal counsel on a specific factual scenario.  If you find yourself presented with this frightening circumstance in California, then contact Aviation Attorney Ronnie Gipson to discuss the situation at (415) 692-6523 or by email at gipson@higagipsonllp.com.      

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[1] Code of Federal Aviation Regulations § 61.51(i) (1) (WEST 2013).   

[2] Portions of the recommended steps were adopted from AOPA’s brochure titled, “What To Do If Stopped by Law Enforcement” dated June 19, 2013, and appearing on the Internet at http://www.aopa.org/-/media/Files/AOPA/Home/News/All%20News/2013/June/CBPGuildelinesKneeboard.pdf

Changes to the FAA's Medical Certification Process

As pilots age, their focus includes maintaining their health and mitigating/eliminating any health concerns. In the past, certain medical conditions complicated the process of a pilot renewing his medical certificate.

The Federal Aviation Administration (FAA) recently revised its medical certification process to make it easier for pilots to obtain their medical certificate by shifting the decision as to whether or not an airman is medically qualified to fly from the FAA’s offices in Oklahoma City & Washington D.C. to your local Aviation Medical Examiner (AME). The new “Certificates an AME Can Issue” (CACI) program empowers AMEs to directly issue pilots with certain qualifying medical conditions a medical certificate. Pilots must still provide certain documentation proving the condition is under control to obtain certification, but now the pilots avoid the lengthy and oftentimes frustrating process of obtaining approval from the FAA’s Air Surgeon Office.

Now pilots with the following conditions may be able to take advantage of the CACI program to obtain their medical certification quickly:

• Arthritis;
• Asthma;
• Glaucoma;
• Chronic Hepatitis C;
• Hypertension;
• Hypothyroidism;
• Migraine and chronic headaches;
• Pre-diabetes; and
• Renal cancer.

The FAA has also issued a new policy regarding cardiac special issuances after a stent procedure. Instead of waiting six months for follow-up testing, now pilots only need to wait three months. That’s less time waiting and more time flying!

For more information on the CACI program, contact Ronnie Gipson by telephone at 415.692.6520 or by email at Gipson@higagipsonllp.com.

Federal Government Cracks Down on Offenders Who Point Lasers at Aircraft

The Federal Government has gotten tough on people who point lasers at aircraft in flight. Recently, a nineteen year old man was sentenced to 30 months in prison for pointing a laser at an aircraft as it was on approach to land at Burbank airport. The man was charged with a violation of federal statute 18 U.S.C. § 39A. The statute, passed into law in 2012, makes it a crime for anyone to knowingly point a laser pointer at an aircraft in U.S. Airspace. The statute calls for either a prison term not to exceed 5 years, a fine or both.

“Why does this issue require such stiff penalties?” The answer may not be patently obvious. In 2011, there were more than 3,600 reported laser pointer incidents. The beam of a laser pointer disperses and fills the cockpit. The light can blind the pilots making it impossible for them to see the controls and maintain control of the aircraft. If the laser light is green, then the danger to the pilots escalates exponentially because the human eye is susceptible to injury from light in the yellow-green spectrum. The tiny beam from the laser pointer that makes a dot on the ground expands with distance. A mere five hundred feet away the dot expands to a width of 6 feet. The beam disperses into the cockpit that blinds the cockpit crew. The resulting blindness can cause catastrophic loss of life to the people in the aircraft and the loss of life to people on the ground. In addition to the law recently passed, shining a laser pointer into an aircraft constitutes interference with the operation of an aircraft, which carries a possible penalty of a prison term of 20 years and/or a fine of $250,000. The recent sentence from the Federal Judge sends a clear message, don’t point lasers at aircraft.

To report a laser pointer incident in flight, pilots should contact the FAA or dial 911. If you have questions about the laser pointer law, then contact Ronnie Gipson by email at Gipson@higagipsonllp.com or by telephone at 415.692.6523.

Glider Pilot Arrested When Local Sheriff Oversteps the Authority of His Office

Recently, a glider pilot in South Carolina was arrested for posing a threat to national security by the local County Sheriff. The pilot flew his "unpowered" glider in close proximity to a nuclear power plant. An official at the plant contacted the Sheriff’s Office. The Sheriff’s Office dispatched a team to the local airport where they established radio communication with the pilot via the Unicom frequency. What happens next is nothing more than an affront to the American justice system. The County Sheriff then instructed the glider pilot to land at the airport within his jurisdiction. The pilot initially indicated that he would land at his home field. In response the County Sheriff renewed his order to the pilot to land at the local airport. The pilot complied. After landing, the pilot was taken into custody and arrested for flying in the airspace too close to the nuclear facility which allegedly posed a risk to national security. As a lawyer, I am outraged that an overzealous peace officer had the gall to exert official authority into an area beyond his jurisdiction. I consider it to be my duty to assist other peace officers and the pilot population with the correct state of the law and the limits of the local peace officers’ powers with respect to airspace use and it corresponding regulation.

FAA Has Sole Jurisdiction over US Airspace

First, the establishment and regulation of airspace for the entire United States to include its territories, and dependencies rests with one agency, the Federal Aviation Administration (FAA). The FAA’s power to regulate airspace emanates from the Federal Aviation Act of 1958 section 307. Under the legal doctrine of pre-emption, State and local governments are prohibited from making laws that conflict with the FAA’s regulation of airspace under this Act.

In the incident that took place in South Carolina, the County Sheriff overstepped his authority. Only the FAA has the authority to establish airspace restrictions and to enforce those rules. If the glider pilot did indeed violate an airspace restriction, then the pilot would have been subject to a formal enforcement proceeding. In a suspected airspace violation, the FAA conducts an investigation and determines whether or not there is enough evidence to proceed with a formal enforcement action. If enough evidence exists and the severity of the infraction warrants it, then the FAA issues a Notice of Revocation/Suspension of the pilot’s license. There are established rules and procedures in place for the appropriate government agency to address airspace violations. Only the FAA is empowered to take such action against Airmen.

Interestingly, in this case, the Sheriff’s Office altered the formal charge against the pilot to one of “breaching the peace.” The FAA is in charge of regulating airspace to avoid meritless criminal charges being lobbied against pilots from around the country. Quite simply a local or State agency cannot seek to impose local laws on pilots in flight with respect to navigating through airspace. Those rules fall squarely within the FAA’s area of responsibility.

Designation of Prohibited or Restricted Airspace Is Governed by 14 C.F.R. Section 73

Granted, there are airspace locations throughout the United States that warrant special protection from the transit of pilots without specific permission. A great example is the airspace surrounding a military installation, like an Air Force base. In Northern California, Travis Air Force Base, located in the San Francisco Bay Area, merits and receives such protection. The airspace south of the Air Force Base up to 3,000’; and the airspace north of the Air Force Base up to 6,000’, is designated as an Alert area. Without question, everyone would agree that transiting into the airspace surrounding Travis Air Force Base, as depicted on the chart, raises serious National Security concerns. Herein lies the difference. The chart clearly depicts the Alert Area, the pilot has notice of its existence; the applicable times of operation; and only needs to spend 60 seconds to determine whether to circumvent the airspace. The nuclear plant involved in this incident, like almost all of the other nuclear facilities, was not depicted on charts released by the FAA. Legally, as a matter of due process, in order to advance a claim of an airspace infraction, the FAA must prove that the pilot has notice of the restrictions accompanying airspace. Without a reference on the chart, how is a pilot to know which areas to avoid? Short answer, they can’t.

There exists a procedure available to other Federal agencies, State agencies, and local government agencies to impress upon the FAA the need to alter airspace. Pursuant to 14 C.F.R. section 73, if an agency determines that a change in airspace is necessary, then that agency must submit a written request to the FAA for consideration. In the glider pilot’s case, the nuclear facility had not submitted a request to the FAA for alterations of the airspace above its facility. To be fair, the bad actor in this situation is not the nuclear facility but is instead the Sheriff’s Office.

The glider pilot was eventually released from custody after waiving his right to sue the Sheriff’s Office in a civil action. By no means, should you interpret this blog article as an attack on the glider pilot’s decision not to pursue civil litigation against the Sheriff’s Office for overstepping its bounds. Civil litigation is expensive in both money and time. However, the best procedure for clearly establishing the limits of local authority and prevent future, similar encroachments on the FAA’s authority, would be to bring suit against the local authority for overstepping its authority. If a similar situation happens to you or a friend, then the wrongfully accused pilot should consider bringing a claim with the goal of establishing a written precedent in the case law against such egregious conduct. Until a local law enforcement agency oversteps its bounds, the issue won’t be ripe for a court to decide the issue. In the interim, the best offense is a good defense. Know your rights and the limits to the local government’s exercise of authority. 

If you want further information or you believe that a local government agency exceeded its authority in relation to your airmanship, then contact Ronnie Gipson at 415.692.6520 or by email at gipson@higagipsonllp.com.