There is nothing new about this procedure. The FAA has targeted many schools; both old and new, accelerated and traditional, for inspection. When there seems to be a large number of military personnel attending, the FAA wants to check on the testing procedures. Many believe that the military people are targeted as customers by the accelerated schools. When they find out through a "survey" of the graduates that some part of the procedure was not followed, an inspection with random re-testing can follow.
Another event that can trigger an inspection is a dispute among examiners. There can even be turf wars in regard to who gets the customers. When this happens, the FAA steps in and looks carefully at the whole procedure. Many times defects are noted.
The bottom line is that the FAA sometimes has a fairly weak basis for random re-testing of the airmen graduates. In general, they are already out in the field, gainfully employed in various areas of the industry. If the FAA decides that their designated inspector did not perform the tests correctly (usually by not spending the time required), they should pull his examining authority, not chase after the technicians already out in the field doing their job.
The FAA should refrain from summarily suspending the tickets of those who refuse to be re-tested in these situations. It would be more practical to contact their employers and seek information about their performance. This would save much time and effort on the part of the FAA people and reduce the need for hearings on re-testing. Simply because their own selected examiner allegedly did not perform testing to their liking is no reason to conclude that safety is somehow compromised. Furthermore, if testing is necessary, they should inquire if such testing can be accomplished at the place of employment. Who else can better determine the performance of these people? Most of these men and women are under constant supervision in their employment and the question of their so-called threat to safety can best be answered by their employers — not the government.
What’s the authority?
Let’s review the regulation. It does not happen very often but when it does, it throws fear into the hearts of airmen when their qualification to hold a certificate is questioned.
When an accident or other event occurs, both pilots and technicians are subject to re-test of their certificates, in specific areas, when it is clear there may be a question of competency involved.
Technicians and pilots should be aware that the FAA could, at any time, exert its re-examination authority and force you to submit to a re-exam for whatever certificate you hold.
49 USC Section 1429(a) (Section 609 FAA Act of 1958)
"The Secretary of Transportation may—re-examine any civil airman. If he determines that safety in air commerce—requires, the Secretary—may issue an order—suspending or revoking —any certificate."
Re-examination can take place at any time at the total discretion of the Secretary of Transportation and this means the FAA — as has been stated in many of the NTSB cases on the subject.
"The Administrator has broad discretion under Section 609 of the Act to order re-examination of airmen. Further, the Board will not review the Administrator’s exercise of his discretion except to determine that there is a reasonable basis for objectively believing that there is a reason to question competency—"
What to do
If you get into a re-testing situation, you can agree to the re-test request, get prepped, and have at it. But, you have to remember that you can challenge this request. Simply wait until they take action to formally suspend or revoke your certificate and then appeal their action to the NTSB. You can have a hearing on the re-test demand.
Another factor to keep in mind is this: When you refuse to re-test, the FAA may take no further action. Or, they and you can suggest some sort of remedial training in place of re-testing. There are several alternatives available.
Burden of proof
The burden of proof is on the Government in all these cases. There is always the issue of whether or not the request is reasonable. It is essentially the only question. Further, there is a laundry list of time-consuming things to be done by both the FSDO and the Regional Counsel’s Office, not to mention the law judges, in preparation for a hearing.
You may luck out since sometimes there will be no interest in pursuing an otherwise weak case. Alternatives can be suggested but, even if you do lose at a hearing, the most you can be forced to do is re-test. You have only lost your right to refuse the test. In addition, keep in mind that re-testing cannot be broad- based and include everything concerned with your certificate. Case law supports the idea that re-testing, if it becomes necessary, must be reasonably focused on those areas in which the airman has demonstrated a lack of knowledge.
Maybe if everybody demanded a hearing, the Government may be more inclined to be reasonable. Just like in your local courts, if everybody demanded a trial, the system would grind to a halt.
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