Retesting Nightmare . . . Again

A while back we looked at the retesting problem in general and at some A&P schools in particular. (The Threat From Section 609, March/April 1993; You Win Some, You Lose Some, July/August 1993; Retesting Nightmare, January/February 1995). After FAA investigations some schools were closed and many mechanics forced to retest or give up their tickets through no fault of their own. At that time many thought this process was unfair, and certainly this recent example we also consider unfair to mechanics . . . Read on . . .

Seacrest, et al., vs. FAA, Marion C. Blakey, Administrator, 12-13-05 USCA, 11th Circuit

This case was an appeal by the FAA from a decision of the U.S. District Court for the Middle District of Florida, in favor of the plaintiff mechanics who challenged and won their case involving the requirement that they retest for their airframe and powerplant certificates.

Recently, on Dec. 13, 2005, the U.S. Court of Appeals for the Eleventh Circuit decided that the lower court was wrong and reversed the district court decision. The FAA won and the mechanics lost here. This means that in order to go forward with their careers they would likely have to retest for their tickets, proceed with administrative action, or just give them up.

The Details

In this case our benevolent, caring, “we are here to help,” FAA, and its Administrator, Marion C. Blakey, were upset with their failure to convince a U.S. District Court trial judge that the mechanics should be retested, so they appealed the decision.

The school in Florida where the mechanics received their A&P tickets was found, in a criminal proceeding, guilty of fraud. The FAA designated examiner fraudulently examined and certified some applicants according to the court in the school’s case. The FAA concluded that the existence of some aircraft mechanics from this school who were unqualified to hold their certificates posed a serious threat to air safety.

The FAA said that since they could not determine which mechanics received their certificates fraudulently, they had to reexamine all of the mechanics who had been certified during a certain time period. This was nothing new. It had happened several times before with other schools.

Some 2,000 mechanics received letters from the FAA, saying that they had to take their tests over again pursuant to 49 USC 44709. This is the catch-all statute that allows for retesting of any certificate holder where there is doubt of competency.

The Proceding

Before FAA took any action on their certificates, the mechanics retained counsel and filed a lawsuit against the FAA, thereby risking further action by the FAA suspending or revoking their certificates. (Axiom: The best defense is good offense, usually.) They filed their lawsuit in the U.S. District Court in Florida seeking an injunction (Order of the Court) telling the FAA how to proceed. Their district court judge granted their petition and entered a preliminary injunction instructing the FAA how to proceed in its reexamination process.

The Order of the District Court was simple, direct, and in my opinion, reasonable. (1) It prevented the FAA from reexamining the mechanics on an emergency basis (which they always do in these cases); (2) required the FAA to give cause why each and every mechanic had to be reexamined; and further, (3) allowed each and every mechanic an opportunity to be heard on the question of why he or she should not have to submit to a reexamination. Simple, because that is what is supposed to be done in competency cases for pilots, mechanics, or anybody else with a certificate, for that matter.

The FAA appealed this Order of the District to the 11th Circuit Court of Appeals.

What the Mechanics Argued

The mechanics said that the administrative process of the FAA did not apply here, because they brought their suit before the FAA had taken any action to suspend or revoke their certificates. In addition, they said that their Constitutional due process rights would be denied by the FAA’s plan to reexamine all of the mechanics rather than those who might have been fraudulently issued certificates.