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How To Respond To A Request For Re-Examination

by Greg Reigel 2. February 2018 09:41
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If you are involved in an accident or incident and the FAA finds out about it, which it usually does, it is quite possible that you may receive a letter from the FAA requesting that you submit to “reexamination.” This is also commonly referred to as a “709 Ride.” If you receive a letter like this, what are your options?

What Is The Request For Re-Examination?

The request for reexamination is based upon the FAA’s authority to re-examine an airman holding a certificate or rating (pilot, flight instructor, airframe and powerplant etc.) at any time pursuant to 49 U.S.C. 44709(a). When the FAA discovers evidence that leads it to question an airman’s qualifications to exercise the privileges of the applicable certificate or rating, the FAA issues the request requiring the airman to demonstrate that he or she does, in fact, still have the qualifications for the applicable certificate or rating. Incidents such as gear-up landings and uncontrolled departure from the runway are examples of situations involving circumstances that very well may lead the FAA to question an airman’s qualifications.

You may be wondering whether a request for reexamination is proper if the accident or incident was not the airman’s fault. For example, if the accident or incident was caused by a mechanical failure is that still enough for the FAA to request reexamination? Unfortunately, unless the mechanical failure is obvious to the FAA as the sole cause of the incident, a request for re-examination is likely to be considered reasonable. Why? Because the FAA only has have “sufficient reason to believe that an airman may not be qualified to exercise the privileges of a particular certificate or rating.” If it does, the re-examination request is considered reasonable, without regard to the likelihood that a lack of competence had actually played a role in the event.

According to FAA Order 8900.1, Volume 5, Chapter 7, “[t]here must be ample or probable cause for requesting the reexamination” including reliable reports, personal knowledge, or evidence obtained through an accident, incident, or enforcement investigation. Thus, the “lack of competence” has to be supported by the facts and circumstances in the case. However, as long as a basis for questioning an airman’s competence has been implicated, rather than actually demonstrated, the request is considered reasonable.

The Re-Examination Request

The procedures for the reexamination are set out in Order 8900.1. The Flight Standards District Office (“FSDO”) responsible for the area within which the accident or incident occurred will send the airman a letter requesting re-examination, via certified mail, return receipt requested. The letter will include (1) the reasons for the re-examination; (2) the specific certificate and/or rating for which the re-examination is necessary; (3) the type of re-examination (e.g. the tasks the airman will be required to perform); (4) the category and class of aircraft required (if applicable); (5) the location of the re-examination; and (6) a time limit for accomplishing the re-examination.

After the airman receives the letter, the airman usually has fifteen (15) days within which to complete the re-examination, although this is not always the case. If an airman was injured in an accident and his or her physical condition precludes completion of the re-examination or if the airman needs more than fifteen (15) days within which to practice/prepare for the ride, the re-examination may be postponed. Under these circumstances the FAA may require that the airman surrender his or her airman certificate and the FAA will issue a 30-day temporary certificate for the airman to operate under until the re-examination.

As a practical matter, it is not uncommon for a reexamination to actually be conducted after the fifteen (15) day period. This is especially true if the reexamination has to be conducted in an aircraft requiring a type certificate since the reexamination will need to be conducted by an FAA inspector who also holds a type certificate in the applicable aircraft. It is may also be possible to schedule the reexamination to be conducted in connection with an upcoming training event. As long as the airman is communicating with the FSDO and/or inspector, it is usually possible to get the reexamination scheduled without having to surrender the applicable certificate or rating.

However, if the FAA believes the airman will be operating commercially while carrying passengers, the FAA may demand that the re-examination occur within less than fifteen (15) days. In this situation, if the airman is unable or refuses to submit to the re-examination within the time specified, the airman may actually have to surrender his or her certificate or rating.

If the airman is required to surrender his or her certificate or rating, the airman may then obtain dual instruction from a certificated flight instructor in preparation for the ride or, if the airman finds it necessary to conduct solo practice, the FAA may issue a temporary airman certificate, valid for thirty (30) days, rather than the one-hundred twenty (120) day period usually allowed with a temporary certificate. However, if a temporary certificate is issued, the certificate/ratings for which the airman is to be re-examined will have the limitation "For Student Pilot Purposes Only-Passenger Carrying Prohibited”.

If an airman wants to surrender his or her certificate, the airman should not simply show up at the FSDO and hand it over. The certificate should be delivered with a letter in which the airman confirms that the certificate is only be surrendered on a temporary basis and that the airman reserves all privileges, rights and remedies with respect to the certificate and any potential adverse action the FAA may decide to take. An aviation attorney can help to draft this letter and/or assist with the logistics of the surrender.

The reexamination does not necessarily have to be scheduled with the FSDO that issues the request. If the accident or incident occurred somewhere other than the airman’s home area, the airman can request that the re-examination be administered by the airman’s home FSDO. Or, if the inspector or FSDO issuing the request has a less favorable reputation, which some of them certainly do, then the airman will likely benefit from having the reexamination conducted by a different inspector or FSDO. In this situation, the airman’s home FSDO would contact the FSDO issuing the letter requesting the re-examination and coordinate with that FSDO on the tasks to be re-examined and if any further enforcement action is necessary after the actual ride.

If the airman fails or refuses to submit to a reexamination within a reasonable period of time, the FAA will initiate emergency enforcement action to suspend the airman's certificate. Although the airman has the ability to respond to or appeal the emergency suspension, if the FAA has a reasonable basis for the request and the airman has no other defenses, the airman will likely end up with a suspension of his or her airman certificate pending submission to and successful completion of the re-examination.

What Happens During The Re-examination?

The re-examination is similar to a check-ride, except that the airman is not typically subject to examination on all of the required tasks in the Airman Certification Standards (“ACS”) (or the practical test standards for those certificates/ratings for which the FAA has not yet issued ACS) for the certificate or rating upon which the airman is being re-examined. Rather, the re-examination involves the tasks that were called into question by the occurrence of the accident or incident and it is conducted in accordance with the ACS for the certificate or rating involved. The tasks may include components of the knowledge test, the skill or flight test, or both.

Since the re-examination is a check-ride, it is important to make sure that the tasks are reasonably related to circumstances that gave the FAA a reason to question the airman’s qualifications. For example, if an airman was merely taxiing an aircraft and departed the taxiway, a request for re-examination based upon that incident shouldn’t include instrument navigation or cross country flight planning. If the request for re-examination includes tasks that do not appear to be reasonably related to the circumstances, the airman should object and request that those items be removed from the request. Although such a request isn’t always granted, if the airman, or his or her aviation attorney, is able to convince the inspector that the tasks are beyond the reasonable scope permitted under the regulations, then it is often possible to have those tasks removed. The inspector can fail the airman for any maneuver, procedure or knowledge deficiency in which the airman is found to be unqualified. This includes any of the specific task upon which the airman is being re-examined (which is why it is best to limit the tasks as much as possible). Additionally, if the inspector observes any deficient areas other than those that are the subject of the re-examination at any time during the re-examination, those deficiencies could also be the basis for failure of the test.

If the airman successfully completes the re-examination, one of two things will happen: (1) if the airman's certificate was suspended pending completion of the re-examination, the inspector will issue a letter of results and may issue a temporary certificate that bears all ratings and limitations from the original certificate; or (2) if the airman's certificate was not suspended pending completion of the re-examination, the inspector will simply issue a letter of results and the airman may then continue to exercise the privileges of his or her certificate and/or ratings.

If the airman fails to successfully complete the re-examination, the inspector will inform the airman in detail of each deficiency. Additionally, if the airman's original certificate was surrendered in exchange for a temporary certificate and the term of the temporary certificate has time left on it, the inspector will decide whether to suspend the certificate or to extend the temporary certificate for an additional 30 days.

In the latter instance, if the inspector believes the airman could successfully complete another re-examination if he or she obtained additional instruction, another 30-day temporary certificate will be issued with a limitation against carrying passengers. The airman will then have to submit to an additional re-examination within that 30-day period. In the first instance, when the inspector determines the airman is not qualified to hold the certificate or rating, the airman can expect to be the subject of enforcement action seeking revocation of his or her certificate and/or ratings.

Conclusion

If you are involved in an accident or incident in which pilot error is a possible cause of the accident or incident and the FAA finds out, don’t be surprised if you receive a certified letter requesting that you submit to re-examination. The first thing you need to do is review the scope of the re-examination request and objectively determine whether the FAA has a reasonable basis for making the request. Often, it will.

Next, you need to decide how you want to respond. Although the request for re-examination can be intimidating and frustrating, especially if it follows an accident or incident in which your aircraft and/or your pride has been damaged, it is possible to treat it as a positive experience and use it as an opportunity to improve your skills as an aviator. This is especially true if you take the ride with an inspector who approaches the situation from a similar perspective.

However, if you find yourself facing a request for reexamination with an inspector who does not approach the ride from this perspective or if you have questions regarding the basis for the request or the procedures that should be followed, an aviation attorney can certainly assist you in the process. After all, you worked hard to obtain your certificate(s) and/or rating(s). Make sure you protect your ability to exercise those privileges and to fly safely.

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Greg Reigel

What Do You Do When The FAA Denies Your Medical Application Because Your Doctor Made The Wrong Diagnosis?

by Greg Reigel 28. November 2017 15:09
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I was recently asked this question by an airman in this very difficult situation. When the airman was younger, the airman was diagnosed as having bipolar disorder. More recently the airman was evaluated by a new doctor who told the airman that, in the doctor’s opinion, the previous diagnosis was wrong and the airman did not, in fact, have bipolar disorder.

Based upon the current doctor’s opinion, the airman applied for a medical certificate. However, despite submitting all of the airman’s medical records, including the earlier bipolar diagnosis as well as the current doctor’s opinion and evaluation, the FAA denied the airman’s application.

So, what are the airman’s options? Well, an airman may appeal the FAA's denial of a medical certificate by filing a petition with the NTSB requesting a hearing before an administrative law judge ("ALJ"). But an airman may only appeal the denial of an unrestricted medical certificate. Since the decision to grant a special issuance is at the discretion of the FAA, the NTSB will not entertain an appeal of the denial of a special issuance.

A hearing is then held at which both the airman and the FAA present evidence through documents and testimony from doctors, medical experts, the FAA and the airman. Oftentimes the airman's treating physician(s), who usually don't have aviation medicine training or experience, will testify that the symptoms and/or condition do not pose a threat to aviation safety and that the airman should be able to fly safely. However, when this type of opinion is presented at the hearing in contradiction to the FAA's expert witnesses, the Board will usually give greater weight to the FAA's expert witnesses based upon the Board’s perception that they have "superior" qualifications in aviation medical standards.

Also, depending upon the condition, an actual diagnosis of a disqualifying medical condition may not be required for the FAA to deny a medical application. Simply presenting with the disqualifying symptoms or condition, or having experienced the symptoms or condition in the past, regardless of whether the airman currently has the symptoms or condition, may be sufficient justification for the FAA to deny the medical certificate.

In order for the ALJ to reverse the FAA's denial, the airman must prove by substantial, reliable and probative evidence that the airman is qualified for the medical certificate for which he or she applied, without limitations. In light of the NTSB's deference to the FAA's medical experts, this can be a very difficult burden to meet. Additionally, an appeal is expensive: Expert medical testimony and attorney fees required for the appeal process can be quite costly.

In this airman's situation, bipolar disorder is a disqualifying condition that prevents the FAA from issuing an unrestricted medical certificate. While the FAA may consider the airman for a special issuance, that decision is solely up to the FAA and may not be appealed. So, the airman would have to fight the FAA's determination that the airman has bipolar disorder.

In order to have the FAA’s denial reversed, the airman has to convince the ALJ. This means the airman would need to have the current doctor testify not only that the airman does not suffer from bipolar disorder, but also that the airman’s current condition, to extent the airman has other disclosed medical conditions, still meets the standards for issuance of an unrestricted medical certificate. It may also be beneficial to have an independent doctor evaluate the airman and provide an opinion that athe airman does not have bipolar disorder.

Additionally, the current doctor would need to explain why the earlier bipolar diagnosis was incorrect. Depending upon the circumstances, this can be a very tough battle for the airman to win.

Unfortunately, at a time when more and more doctors are “diagnosing” kids with ADD, ADHD and other such conditions, this situation is becoming more and more common. And as we have seen, a misdiagnosis as a youth may come back to haunt an adult who wants to become a pilot and needs a medical certificate.

If you find yourself in this situation or have a medical condition that may disqualify you from obtaining a medical certificate, get help BEFORE you apply for a medical certificate. Talk to an aviation attorney or the medical certification professionals at AOPA or NBAA.

By taking a pro-active approach and getting help, you will be able to "pick your battles" wisely to maximize your chances of being able to earn your wings and/or successfully obtaining a medical certificate if necessary.

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Greg Reigel

How Does The FAA Calculate A Civil Penalty?

by Greg Reigel 28. February 2017 08:16
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Every so often the Federal Aviation Administration ("FAA") will issue a press release about its proposed assessment of a civil penalty action against an air carrier, maintenance facility or some other business. In some instances the penalties proposed by the FAA may be millions of dollars. And while the FAA’s press release may cite to some of the violations the carrier or facility allegedly committed, the FAA never explains exactly how it arrived at the amount of the civil penalty it proposes to assess.

To provide a little background, when the FAA believes a certificate holder (whether an airman, air carrier, repair station or otherwise) has violated a regulation, it may pursue legal enforcement action against the alleged violator. The action can be against the party's certificate, also known as a "certificate action." In this situation the FAA seeks to suspend or revoke the party's certificate. Alternatively, the FAA could seek to impose a civil penalty or fine against the alleged violator, also known as a "civil penalty action."

Civil penalty actions are typically used against companies or entities, as opposed to individuals, that hold FAA certificates. The FAA may also pursue civil penalty actions against companies or individuals who do not hold FAA certificates (e.g. companies or individuals who violate hazmat regulations or individuals who violate passenger regulations such as interfering with a flight crewmember).

Sometimes, the FAA will bring a civil penalty action to avoid the six month limitation of the NTSB's stale complaint rule in a certificate action, and benefit from the longer two year limitation applicable to civil penalty actions. For example, if the FAA fails to initiate a certificate action within six months of discovering an alleged violation, it will resort to a civil penalty action which allows the FAA two years within which to initiate the action.

In order to determine the appropriate amount of the civil penalty for a given regulatory violation, the FAA uses the Sanction Guidance Table in FAA Order 2150.3B, Appendix B. If the amount of the proposed civil penalty is less than $50,000, then the FAA handles the action. However, if the proposed civil penalty is more than $50,000, then the United States Attorney's office handles prosecution of the action.

The Sanction Guidance Table provides a range of penalties based upon the type and size of the violator, the type of alleged violation and the number of alleged violations. The sanction guidance indicates a minimum and maximum range civil penalty for each instance of a violation of various regulations. And while the Sanction Guidance Table’s sanction ranges generally account for different types of violations, as well as the nature, extent and gravity of each general type of violation, a sanction isn’t calculated through a “strict mathematical formula”, but rather is determined based upon a judgment “of where a case lies along a spectrum of gravity.”

To calculate a civil penalty sanction, the FAA first determines the type and size of the violator and also whether the violator is a Small Business Concern. Next, the FAA starts with the middle of the range for the particular act or omission that caused the violation. It then specifically looks at a variety of factors that may be considered aggravating factors, which would result in increase in sanction, or mitigating factors which would decrease the sanction. These factors include:

  1. the nature of the violation;

  2. whether the violation was inadvertent and not deliberate;

  3. the certificate holder’s level of experience;

  4. the attitude of the violator (Note: The FAA does not consider a good compliance attitude, by itself, a basis for reducing a sanction. Fortunately, the FAA also does not consider a violator’s failure to respond to a letter of investigation, representation by counsel or contesting of a violation a poor compliance attitude);

  5. the degree of hazard;

  6. whether an employer or other authority has taken any action (i.e. if the employer took disciplinary action or criminal prosecution was involved);

  7. use of a certificate;

  8. violation history (i.e. a history of prior violations. Since compliance is expected, a violation-free history is not considered a mitigating factor);

  9. decisional law;

  10. the violator’s ability to absorb the sanction (i.e. whether the violator is able to pay a civil penalty and the effect the civil penalty will have on the violator’s ability to continue in business);

  11. consistency of sanction;

  12. whether the violation was reported voluntarily (this takes into consideration whether the violator reported the violation through a program such as the Aviation Safety Reporting Program, the Voluntary Disclosure Reporting Program or the Aviation Safety Action Program); and

  13. corrective action (e.g. corrective action that exceeds the minimum regulatory or statutory requirements. Corrective action taken after the violator becomes aware of the deficiency and before the FAA learns of the violation warrants greater mitigation than if the action is taken after the FAA takes enforcement action).

In some cases, where the degree of the violator’s fault is minimal, the potential hazard is very low, and no aggravating circumstances are present, the FAA may select a civil penalty amount that is below the range specified in the Sanction Guidance Table. Conversely, the FAA may select a civil penalty above the range if the violator’s fault was significant, the violation involved significant safety risks, the violator failed to take corrective action over an extended period of time, the violator has a poor compliance attitude or history, or the FAA feels it needs to make an example of the violator (or, as the FAA puts it, “to provide an economic disincentive or regulatory noncompliance”).

What happens if the case involves multiple violations (e.g. multiple violations of a single regulation, a single violation of multiple regulations, or multiple violations of multiple regulations)? Fortunately, the FAA doesn’t just determine the amount for each violation and then add them up. Rather, the FAA is required to consider the totality of the circumstances relating to the multiple violations, paying special attention to the seriousness of the potential hazard caused by the violations as well as the degree of the violator’s fault for the multiple violations.

At the end of the day, the Sanction Guidance Table is just that, guidance. And while the FAA, and its inspectors and attorneys, are required to follow the guidance, the FAA still has prosecutorial discretion. That is, the FAA ultimately has the discretion and authority to determine not only whether to pursue a civil penalty action, but also the type and amount of the sanction. But at least the Sanction Guidance Table provides some insight as to how the FAA may have arrived at a proposed sanction and what aggravating or mitigating circumstances it may, or should, have considered.

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Greg Reigel

What Happens To A Certificate When The FAA Suspends Or Revokes It?

by Greg Reigel 3. January 2017 10:06
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Is a certificate suspension or revocation the end of the story for a certificate holder? Not usually. A certificate holder (whether airman, mechanic, air carrier, medical etc.) has some additional responsibilities, as well as liability exposure if he or she fails to fulfill those obligations. However, before we talk about the aftermath of certificate suspension or revocation, we should briefly discuss how a certificate holder can find him or herself in that position.

Once the FAA has determined that legal enforcement action is appropriate, the FAA will either issue a Notice of Proposed Certificate Action (“NPCA”) to the certificate holder seeking to suspend or revoke a certificate for alleged violation of the FARs, or it will issue an emergency order suspending or revoking the certificate. The difference between the two is significant: the emergency order is effective immediately (e.g. the certificate is revoked as soon as the FAA issues it), while the NPCA is not.

Both an NPCA and an emergency order will provide a recitation of the facts supporting the FAA’s allegations. The NPCA also includes a list of options from which a certificate holder may choose how he or she wants to respond to the NPCA. Under the first option, the certificate holder may elect to simply admit or concede the FAA’s allegations and surrender the certificate to the FAA. The emergency order, on the other hand, requires the certificate holder to immediately surrender the certificate to the FAA.

Suspension or revocation of a certificate may also be imposed by an NTSB administrative law judge (“ALJ”) after the certificate holder has received a hearing on the merits of the allegations contained in the NPCA. In the case of suspension or revocation following a hearing, the ALJ will order that the certificate holder surrender the suspended or revoked certificate to the FAA. The FAA may also follow up with a letter to the certificate holder demanding surrender of the certificate. But, does the certificate holder really have to surrender the certificate? If the case is not appealed, the answer is “yes.”

If a certificate holder fails to surrender the certificate, the FAA can and oftentimes will try to assess a civil penalty against the certificate holder for failure to surrender the certificate as required by the order of suspension or revocation. Under 14 CFR 383.2, depending upon the type of operator (e.g. individual, small business, air carrier etc.), the civil penalties for failure to surrender a certificate can range from $1,414 for an individual (and in some cases a small business) up to $32,140 per day.

So, what do you need to know if you find yourself in this situation? First, if you receive a NPCA or emergency order you need to take action immediately (especially in the case of an emergency order where the time limits are very short) and, if you dispute the FAA’s allegations, you need to properly and timely appeal the order and request an evidentiary hearing. Second, if your appeal is unsuccessful and your certificate is suspended or revoked, you are required to physically surrender your certificate to the FAA. If you fail to do so, you risk being assessed a civil penalty that could potentially be very expensive. And, of course, if you receive an emergency order or NPCA and are unsure of your rights and responsibilities, contact an aviation attorney who can answer your questions and help you through the process.

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Flying | Greg Reigel

As Long As You Hold An Airman Certificate You Must Report Motor Vehicle Actions To The FAA

by Greg Reigel 4. October 2016 09:29
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If you hold an airman certificate you know, or at least you should know, that you are subject to the reporting requirements of 14 C.F.R. §61.15. That is, §61.15(e) requires an airman to report a motor vehicle action ("MVA") to the FAA Civil Aviation Security Division within 60 days. The written report must include: “(1) The person's name, address, date of birth, and airman certificate number; (2) The type of violation that resulted in the conviction or the administrative action; (3) The date of the conviction or administrative action; (4) The State that holds the record of conviction or administrative action; and (5) A statement of whether the motor vehicle action resulted from the same incident or arose out of the same factual circumstances related to a previously reported motor vehicle action.”

What is an MVA? According to the regulation an MVA is (1) a violation of any Federal or State statute relating to the operation of a motor vehicle while intoxicated by alcohol or a drug, while impaired by alcohol or a drug, or while under the influence of alcohol or a drug; (2) the cancellation, suspension, or revocation of a license to operate a motor vehicle, for a cause related to the operation of a motor vehicle while intoxicated by alcohol or a drug, while impaired by alcohol or a drug, or while under the influence of alcohol or a drug; or (3) the denial of an application for a license to operate a motor vehicle for a cause related to the operation of a motor vehicle while intoxicated by alcohol or a drug, while impaired by alcohol or a drug, or while under the influence of alcohol or a drug.

It is important to realize that this definition includes more than just being arrested for or convicted of a DWI, OWI etc. A civil action that often accompanies a DWI arrest in most states and that results in suspension of the driver's license is also considered an MVA. Thus, an arrest for DWI could create the obligation for an airman to provide multiple reports to the FAA depending upon how the civil and criminal cases proceed. And if an airman fails to report an MVA, §61.15(f) states that he or she could be subject to (1) Denial of an application for any certificate or rating for a period of up to 1 year after the date of the arrest; or (2) Suspension or revocation of any certificate or rating.

But what happens if you hold an airman certificate but you no longer hold a medical certificate, or you have "retired" from flying? Are you still subject to this reporting requirement? The short answer is "yes", as a recent NTSB decision explains. In Administrator v. Street, the airman was an experienced airline pilot who failed to report four MVAs arising from two DWIs. When the FAA found out, it issued an order suspending the airman's ATP certificate for 240 days. On appeal, the administrative law judge ("ALJ") agreed that the airman had violated sections 61.15(d) and (e) but determined that the sanction should only be a thirty day suspension.

Not surprisingly, the FAA was unhappy with that decision and appealed to the full Board. The FAA argued that the 240 days should stick and, of course, the airman argued that the ALJ's decision should stand. Specifically, the airman argued that at the time of the violations he did not have a medical certificate and was not actively flying, which should serve as mitigating factors in support of the lower sanction. However, the Board rejected that argument stating the reporting requirements of §61.15(e) are applicable to an airman who temporarily “retires” from flying. The Board explained that "[w]hile respondent testified that he did not plan to return to flying, his obligation to comply with the FARs continued regardless of whether he was actively flying at the time the MVAs occurred. Sections 61.15(d) and (e) are exclusively concerned with conduct outside the scope of an airman’s certificate. It is immaterial whether respondent was actively flying or had a medical certificate at the time the MVAs occurred because his status as an ATP certificate holder rendered the requirements of §§ 61.15(d) and (e) applicable to him."

So, the moral of the story is: If you hold an airman certificate, you need to be familiar with, and comply with, the requirements of §61.15. Until you no longer hold your airman certificate (whether the certificate has been surrendered, suspended or revoked) you will need to report any MVA to the FAA.

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Greg Reigel



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