JamesNoBrakes

There are better options than contacting legal counsel for an interpretation, you can work up the chain at the FSDO to the RO. The FSDO doesn't "interpret" the regs, they "apply" the regs.

And like you said, there are no conflicts, because this is an "all or nothing" regulation. Either it applies to all practical tests and associated regulations, or none, because as I said, the argument that it "doesn't apply" to ATP can be made for anything else, because it conflicts with all of them, but the purpose of the SFAR is within (and in the preamble from the Federal Register I posted) and since it was published, it applies. Otherwise, it would have never been published. As long as you have a valid exception, you should be ok, or they need to change that SFAR.

JohnBurke

The FSDO applies the regulations insofar as enforcement, but one cannot go to the FSDO and ask for an interpretation of the regulation, or even an explanation that is legally binding. If the FSDO provides an answer which is incorrect, it is not legally defensible, and it's not uncommon at all for a pilot to be told one thing at one FSDO, and that information be contradicted at another.

To seek an understanding of the regulation, one needs to look at the regulation, the Federal Register preambles, and at the FAA Chief Legal Counsel letters of interpretation.

I have met a LOT of inspectors with a poor understanding of the regulation, and some with a gross misunderstanding of the regulation. I have also met inspectors with chips on their shoulders or vendettas who enforced the regulation according to their personal biases, from the inspector who once told me "you may be right, but I may violate you out of spite," to the head of a FSDO who called me into his office and told me to buy his secretary a dozen red roses, or he would find a way to take certificate action. One may well expect them to apply it incorrectly, as I have seen. In the case of enforcement, that puts the onus on the pilot to seek relief through the appeal process.

The FSDO level should give no confidence in seeking counsel, which is best had from a dedicated study of the regulation, Federal Register preambles, and FAA Chief Legal Counsel interpretations, and where any doubt exists at all, counsel with a qualified aviation attorney.

JamesNoBrakes

If it was that rampant, which I've never seen any indication of (but I wasn't there back in the early 70s), you should have documented it. People would have been fired left and right for that kind of behavior, or at least these days, they would. Your assertions that they can just "violate you" or what you are "told" has no weight is incorrect. NTSB judges hold the FAA accountable and require significant proof and evidence, not to mention FAA counsel will not support something that has no evidence. They aren't so stupid as to bring a case forward that has no evidence. Really, like any prosecutor, they want to bring something forward when the evidence is overwhelming, so A), they don't have to go to court and B), if the other side still doesn't see the light, they are confident they will win. Sometimes new developments come out in court, rather than before, where it could have been settled, but if they were bringing cases forward that had no proof, they would be opening themselves up to investigations. It's rare that a prosecutor would wager their reputation on a case with no evidence and likewise a defense attorney will advise their client when it looks like the evidence is overwhelming. They'll fight if you tell them to, but it's often against their judgement. They'll tell you if they think they can win the case, and if they think that, they'll go at it full bore. That's because they have some form of evidence, or some kind of gross technicality to get the charges thrown out. Maybe you've seen this taken lightly at the FSDO level, I can't speak to your experience. I can say it's taken very seriously at the regional level and with counsel. They are the ones that decide if these cases go forward.

JohnBurke

It wasn't "back in the early 70's." Some of the events I could detail, which are documented, are relatively recent.

Not true.

I can think of quite a few individuals whom I know personally who wholly failed in private industry, who ended up as inspectors, and who by most accounts are quite incompetent and dangerous. Unable to make it in the private sector, they fell back to positions with the FAA where they have pressed their own wrong view of regulation, policy, and procedure.

The appeal process exists for a reason, and it's not simply to make people feel good. People survive within the FAA who don't make it in commercial industry also for a reason.

This isn't to say that everyone, or even a majority, of those working within the ranks of the FAA are bad people, or incompetent. This is addressing some cases, and I've known more than a few, that were unprofessional, and in some cases, quite dangerous. It's also irrelevant to the question of approaching the FSDO for answers on regulatory questions, which one ought not do.

I made no such assertion. Read.

I did assert, correctly so, that I was told over the desk of the head of a particular FSDO, with an attorney seated next to that individual, that I would buy his secretary roses, or that he would find a means to violate me. That happened.

It was a threat. Certainly the matter would have had to follow the same process as any other enforcement action. He didn't have anything with which to go after me at the time, but very clearly threatened to find a way to do it, as leverage for his demand that I buy his secretary one dozen red roses.

For those who don't believe that the FAA can and does go after people with no substance or a leg upon which to stand, do a little reading on Bob Hoover's battle and the financial cost and damage to his career.

When an inspector told me, as previously noted, that I was in the right and that I would eventually win on appeal, but that he might initiate enforcement action "just for spite," there was no tape recorder running, but he said it,and I heard him quite clearly. It was a threat.

We could go on about that all day, but the fact is that yes, an inspector can initiate enforcement action, and whether it's upheld or goes anywhere often doesn't stop them from trying. You also know very well, as do I, that it doesn't take an inspector much to find a reason to initiate enforcement action if he wishes to do so. The Administrator has a nasty habit of throwing things up at the wall just to see what sticks, and though the enforcement effort might lack substance, it can still be damaging and costly, and inspectors know it.

It doesn't matter. Simply being the subject of an investigation can be damaging, as can the invariable warning letter placed in one's record which states that while no evidence of wrong doing was found, xxx is still a violation of the regulation. It's a clever insinuation that follows the airman and does damage, and inspectors and attorneys know it.

All of this is well beyond the scope of this thread, but as you brought it up, I'll address it.

You're very aware of this as an inspector, are you not?

You didn't actually type that with a straight face, did you?

Let's not insult intelligence; the FAA has a long track record of takign pot shots at airmen with nowhere to go, and the FAA sometimes defends its position in the process, and sometimes bows out with a parting shot across the stern with a damaging letter for the airman anyway.

Absolutely the FAA will press for administrative action without evidence. The FAA doesn't require it until the appeal process, and the FAA may drop it at any time. The airman is presumed guilty until proven innocent. This is a key element of dealing with the administrative law that many pilots don't understand. It's not at all the same as dealing with civil or criminal law in which one is presumed innocent. Not in the least.

The beauty of the enforcement process for the inspector is that he simply initiates the process. He sets the ball in motion. Others take it from there. While the regional legal counsel may elect not to defend the matter, at that stage, it can already have become very damaging and very expensive to the airman.

The "pilots' bill of rights" exists for a reason, not the least of which is that each of the "rights" enumerated the developments thus far have been widely trampled in the past. Just as regulatory developments often follow on the heels of bloodshed, pilot protections follow the long patter of harassment, intimidation, and persecution by various FAA employees who game the system. Guilty until proven innocent; the airman is well advised to take that to heart.

You already have spoken to my experience: you've dismissed it and gone so far as to tell me that my assertions carry no weight and are incorrect. That's untrue, of course, but you are correct in that you can't speak to my experience.

Yes, it's taken lightly in many cases at the FSDO level, because the FSDO simply initiates the action. After that it passes to the region legal counsel, and by then, the damage can already be done. Taking it lightly at the FSDO level, especially when there's no basis for the action in the first place, can do significant damage to one's career, as well as one's finances, and yet it happens all the time.

Do you recall the experience of the airline pilot in Alaska several years ago, who commented in an article that on departure he overflew his son's grave, and always said a silent prayer for his son? Touching, human. The FAA sought emergency revocation of his medical certificate, citing mental issues, saying that the pilot was unnecessarily grieving well after his son's death and therefore not fit to fly. The pilot won, eventually, but at great expense to bank account and reputation. Not an isolated case, unfortunately.

The FSDO administers the regulation at the grassroots level. It's not the place to seek clarification of the regulation, particularly as the understanding of the regulation among inspectors varies so widely, even with the same FSDO, and certainly FSDO to FSDO. The FSDO level is not authorized to interpret regulation, and any advice, insight, or counsel received at the FSDO level is neither defensible nor authoritative.

One can never defend one's self by saying "but the FSDO told me so." It won't work. Accordingly, seeking insight and information at the FSDO level is no more beneficial than seeking it on a web forum such as this, or asking the guy in the hangar next door.

JamesNoBrakes

This is a little ridiculous, as you seem to pride yourself on being technically correct and correcting everyone else who may not be. A warning notice is not a violation, nor does it state that it is a violation. It is not a violation. It's that simple.

As far as threats being made against you, hopefully you had an attorney with you. I don't see that kind of stuff, ever, and that points to gross misconduct, the level that would cause a major shake up if brought up.

I'll end with this. You read about cases, you think you know everything about some of these situations. I'm not discounting your particular encounters that might have been negative, but I will say that with many of these stories of other people, there's a lot more going on that you might not know about, that the pilot and their attorney won't comment on or release, but that is known to them and the FAA. There'sat least two sides and sometimes the other side will surprise you, even when you think you know everything about it. One thing you always have to be prepared for in this business is that things can always take a 180° turn in a direction you never expected. This can be for the better, or the worse, but keeping an open mind is key. I'd wager in many of these cases there's much more than "meets the eye".

JohnBurke

It's not ridiculous at all, as these matters destroy careers and consequently ruin lives. This is not the thread to have this discussion, however, and if you do wish to continue, then you should start a new thread.

So far as a violation is concerned, a favorite tactic of FAA legal counsel, upon determining that insufficient exists to pursue enforcement action, is to fall back to administrative action in a warning letter that's placed in the airman's file for two years. The warning letter will state that while insufficient evidence was found to pursue the violation, the action of which the airman is accused IS a violation of the regulation, and the regulation is cited. The wording is crafted to state that the airman has violated the regulation, and make it appear that the airman simply "got away with it."

To suggest you aren't aware of this would be an outright lie. The effect on an airman's career can be very damaging; every bit as much as if the FAA has completed the enforcement process and issued a penalty.

Employers will ask about FAA enforcement, investigations, letters of warning. Insurance companies ask about it. A number of government employers ask about it. Being the subject of an investigation can be damaging; the warning letter, though representative of NO wrongdoing, can be considerably more damaging, and every bit as damaging as a completed enforcement process that ends in penalty.

If you wish to pursue this subject any further off topic for this thread, perhaps a different forum, and a different thread would be best.

Archa3opt3ryx

Hi all, just want to get clarification on a point: you can use an expired ATP written to take an ATP checkride within 6 months of returning after an overseas assignment, even if the written test expired before the start of the assignment, correct?

I took the ATP written in June 2013. It expired June 2015. In August 2015 I was stationed overseas, and will return in Feb 2017. Can I use that expired written test to take the ATP checkride within 6 months of returning? My understanding is that SFAR 100.2 was designed to allow military pilots who were stationed overseas shortly after taking their written enough time after they returned to take the practical, but the way it reads, the test doesn't actually have to have expired during your overseas tour.

FYI, I have 700TT, about 450 of which are single engine turbine and 100 multi engine turbine. I should have no problem hitting 750 by the time I get back to the US or shortly thereafter.