FAA Emergency Action Revisited
What's the solution?
By Stephen P. Prentice
Some time ago, we described a sad episode in the life of a working A&P who happened to fall into the grip of an uninformed inspector who instituted an emergency revocation of this airman's certificates in error (AMT March 1997). The incident was extremely painful for the airman and the sad part is that he suffered a stroke and expired not long after the matter was concluded in his favor.
The heavy hand of government and again
We just heard of another case where emergency action was taken basically on the representations of a disgruntled purchaser of an engine. The FAA seemed to have attempted to aid the purchaser by inspecting the engine, finding alleged violations as usual, and then putting pressure on the mechanic to turn the sale around by threatening enforcement action. When the mechanic refused to accommodate the purchaser, the emergency enforcement action followed. Nice!
Now this event sounded a little more egregious on the bare facts than that of the previous event where the mechanic died, although death is certainly dreadful. This case, on the surface, sounded like someone attempting to use the force of the government to achieve a result in what was clearly a civil beef between two people. Needless to say, the FAA jumped right in to help out.
Emergency action by FAA
As we all should know by now, there is a law that gives the FAA power to suspend or revoke a certificate without notice or an opportunity for a prior hearing. They can do this when they represent that an emergency exists. Typically, this occurs in situations where they can allege a lack of qualification on the part of the certificate holder. The basic and often repeated statement,"... safety in air commerce requiresÉ" is always given as the support for the summary action. All the cases involve a form of this trite statement. It simply means that the potential for harm to the public outweighs any hardship to the certificate holder. In other words, Tough! Usually, all of your FAA certificates are suspended or revoked, and you are required to hand them back immediately!
In the standard enforcement case, the certificate holder is allowed to stay in business and retain a certificate pending a resolution of the case. In other words, he or she is afforded reasonable notice and an opportunity to be heard. This could be anywhere from several months to several years depending on the complexity of the case. Emergency action is authorized by statute whenever, in the opinion of the administrator (and this means an FAA inspector or regional counsel), an emergency regarding safety in air commerce requires immediate action. All of the cases involve a governmental taking of property or the government imposing its will on somebody, thus giving rise to the constitutional due process argument. However, it becomes obvious that the use of emergency procedures is an advantage to the FAA in many ways.
FAA use is popular and widespread
The FAA has increased their use of this summary procedure at least five-fold in recent years for a variety of reasons, including the fact that it makes their case easier to prosecute. Faced with an early hearing date, the certificate holder must quickly marshal his facts and witnesses to defend his position. He is forced to an early hearing (60 days), many times ill-prepared to address the case, ergo, he loses. The other common alternative is simply to surrender your certificate, which those without adequate defense funds proceed to do. This pressure is what the FAA counts on — they come out ahead either way.
Pilots Bill of Rights Public Law 112-153; FAA enforcement cases will change dramatically.
Scienter and the FARs
If your company holds any sort of FAA certification, air carrier or repair station, or even if you personally are certificated as a pilot or mechanic, you are under the surveillance of the FAA.
Common Mistakes "I certify . . . or do I?" By Stephen P. Prentice FAR 65.92(a) Inspection Authorization: ". . . the holder of an inspection authorization may exercise the privileges...