Hypothetical about the NW Pilot's revocation

[Greg Bockelman]

I personally think the NW pilots' "punishment" does not fit the "crime". But that isn't the point of this thread.

From what I have been able to figure out, the pilots' ATP certs have been revoked. What that means is that they need to take writtens and checkrides to get their certificates back. I just learned that prior hours count so after the one year mandatory period, they could have their ATP's back in a very short period of time.

My question is this. If they had CFI certificates and various ground instructor certificates, would they still be valid? I know they couldn't exercise the privileges of their CFI's without a current Commercial Cert, but after their revocation was up, would they have to take the CFI ride again? I think not, but not sure.

Also, could they exercise their ground instructor privileges while their pilot certs were revoked?

Inquiring minds and all that.

 

[Dave Siciliano]

Greg: I can't answer your question but feel a benefit of using them in some safety enhancing mode--like teaching in the sim or some such thing is being lost. These are very high time guys with a clean record that erred. They should be punished, but if they're anything like me--they'll never do anything like this again. I don't know if they should be allowed to fly for hire for some period, but I could understand allowing them to fly not for hire after some corrective action. Anyway, my two cents is immediate actions like may hinder the process in the future where pilots are forthcoming in the best interest of safety---that is if you believe their story.

Best,

Dave

 

[HPNPilot1200]

It depends what certificates the FAA suspends. There have been cases in the past where the FAA suspends an individual's CFI certificate, but not his/her commercial certificate and subsequent ratings, thus allowing commercial flying except dual instruction.

If they only suspend their ATP, they legally would still hold a CFI certificate but it would not be valid until they regain commercial privileges (either a commercial or ATP certificate).

 

[steingar]

Personally, I think the FAA did it wrong. The pilots told the truth, but received the maximum penalty. They could have lied, claimed they fell asleep due to scheduling and airline policies, and had their union behind them blaming aeromedical factors. In the future pilots will see this and perhaps lie to get past it.

 

[poadeleted20]

From what I have been able to figure out, the pilots' ATP certs have been revoked. What that means is that they need to take writtens and checkrides to get their certificates back. I just learned that prior hours count so after the one year mandatory period, they could have their ATP's back in a very short period of time.

...assuming the Administrator doesn't involve 14 CFR 61.13(a)(2)(ii):

(2) An applicant--
(ii) May be refused issuance of any U.S. airman certificate, rating,
or authorization by the Administrator.

... as apparently happened in the case of Smoketown Bandit Jim Shaffer.

My question is this. If they had CFI certificates and various ground instructor certificates, would they still be valid? I know they couldn't exercise the privileges of their CFI's without a current Commercial Cert, but after their revocation was up, would they have to take the CFI ride again? I think not, but not sure.

Depends on what the FAA did -- whether the FAA just revoked their pilot certificates or all their pilot/instructor tickets. If all tickets, then yes, they'd have to take the CFI written and practical tests again, too.

Also, could they exercise their ground instructor privileges while their pilot certs were revoked?

That would depend on just which tickets the FAA revoked, but if it was just their pilot certificates, then yes, they can still exercise their GI privileges.

BTW, I won't debate the appropriateness of their punishment, but given Administrator Babbitt's public statements on improving professionalism among pilots, I would not be surprised if he gave the order personally. While I think he's going to be very supportive of improvements in scheduling rules to avoid fatigue issues, this is the wrong Administrator for pilots to err before, especially when it involves a willful and deliberate act (i.e., pulling out the laptops).

 

[wsuffa]

Personally, I think the FAA did it wrong. The pilots told the truth, but received the maximum penalty. They could have lied, claimed they fell asleep due to scheduling and airline policies, and had their union behind them blaming aeromedical factors. In the future pilots will see this and perhaps lie to get past it.

Consider Ron's statement, and the "rumor" that I heard that the White House was involved in this (and wanted to make an "example" out of these folks). I suspect that itc would have been even worse (as in felony charges) if they'd lied. Having that kind of case would eliminate any chance of them working in any capacity in aviation in the future.

 

[flyersfan31]

I'm still kinda surprised. I think falling asleep (if that were the case) is a better excuse than fiddling with laptops.

 

[Commander Dave]

Not positive on this.

But I thought I had read somewhere that their Commercial Certificates were being revoked. In which case the CFI's obviously go with it.

(( Excerpt from another thread ))

"The revocations, which apply to the pilots' commercial licenses, are
effective immediately, FAA said."

 

[HPNPilot1200]

Not positive on this.

But I thought I had read somewhere that their Commercial Certificates were being revoked. In which case the CFI's obviously go with it.

(( Excerpt from another thread ))

"The revocations, which apply to the pilots' commercial licenses, are
effective immediately, FAA said."

A CFI isn't a commercial certificate, it's an instructor certificate. If the FAA only suspends their ATP, then they still hold a CFI, but are not authorized to exercise the privileges of that certificate.

 

[Commander Dave]

It was a loose comment somewhere

"apply to the pilot's commercial license" If interpreted to mean their ATP alone, yes you are correct.

If interpreted to mean their Commercial license - then they can no longer exercise their CFI.

Ground School, and Sim training is another story.

 

[poadeleted20]

Anybody seen a copy of the letters sent to the two pilots? That would clear things up.

 

[t0r0nad0]

I'm glad that they didn't lie about it and say they fell asleep. The CVR would have debunked that one right away, and then they would not be eligible to regain their ATP certificates. One of the requirements for the ATP is that you must be 'of good moral character.' Lying negates that.

 

[TMetzinger]

If a CFI isn't acting as PIC or required crew (i.e. a safety pilot), he doesn't need a medical... Does he still need a valid commercial pilot certificate?

Certainly he needed it to get the CFI, but does he still need it to exercise instructor, but not pilot privileges?

I'm not sure what happened on the flight deck, but if they did what the NTSB factual release says they claim they did, they both deliberately dropped the airplane to pick up the laptops. That meets my definition of gross negligence, and merits revocation, in my opinion.

And I think "texting while driving" falls in the same category, and should result in a revocation of a driver's license. "Talking while driving" does not.

 

[dmccormack]

If a CFI isn't acting as PIC or required crew (i.e. a safety pilot), he doesn't need a medical... Does he still need a valid commercial pilot certificate?

Certainly he needed it to get the CFI, but does he still need it to exercise instructor, but not pilot privileges?

For Primary flight instruction, I would certainly hope the CFI has pilot privileges... If this loophole is in place, it's a bad one.

 

[poadeleted20]

If a CFI isn't acting as PIC or required crew (i.e. a safety pilot), he doesn't need a medical... Does he still need a valid commercial pilot certificate?

Read what it says on the back of your CFI certificate (section XIII LIMITATIONS) -- the part that says, "Valid only when accompanied by pilot certificate No. xxxxxxx." It's hard for a certificate that's in a drawer in the FSDO to "accompany" your CFI certificate.

 

[dmccormack]

And I think "texting while driving" falls in the same category, and should result in a revocation of a driver's license. "Talking while driving" does not.

Hmmm.

I've driven on the LIE during rush hour (lots of cars, lots of high speed dashed punctuated by screeching halts).

LIE Drivers read books, consult maps, work on laptops, eat breakfast, and apply makeup.

I drive on some pretty empty roads on my commute in and out of WV each day.

I'd probably be fine reading a book, consulting a map, working on a laptop, and eating breakfast on some of these roads for extended periods.

( I don't, but for sake of argument...)

There are and will always be people who can't discriminate, can't multitask, and can't judge when and if it's appropriate to do some activity while driving.

The hands-free rule in NY is a joke -- it's note the position of the phone that's the issue, it's the zone-out that happens while talking that ruins some motorist's day.

 

[TMetzinger]

Read what it says on the back of your CFI certificate (section XIII LIMITATIONS) -- the part that says, "Valid only when accompanied by pilot certificate No. xxxxxxx." It's hard for a certificate that's in a drawer in the FSDO to "accompany" your CFI certificate.

Ah, thanks. Haven't gotten the CFI yet, so haven't seen that wording, and I didn't see any similar language in the FAR.

No such limitation exists on the GI certificate. So, if you only got the CFI and didn't get the GI certs, then you would have no privileges when your pilot certs are revoked or suspended. With the GI, you'd still have ground/sim instruction privileges.

Now, let's take it farther. Let's assume the FAA revokes the pilot certificates but not the CFI. After a year, the pilot takes the appropriate tests and regains his pilot certificates. Will they have the same number, thus revalidating the CFI if it hasn't expired? Or will they have to apply for a reissuance of the CFI certificate with the limitation altered to match?

 

[TMetzinger]

On the cell phone issue - with hands-free, the hands remain on the controls, the eyes remain on the road, and (as we've seen in flying) a good multitasker can divide attention.

I believe a good multitasker may be able to adequately divide attention, but it does no good if they can't physically detect something (because they're reading), or manuever (because they're holding something other than the wheel).

I put bluetooth handsfree in my car, but I give the call less attention than driving (resulting in a lot of pauses and "say again"), and if I need to give more attention to the call I pull over.

 

[SkyHog]

So - when you get your ATP, do you surrender your commercial certificate? If not, and the FAA only suspends the ATP, would they not still have Commercial certs?

 

[poadeleted20]

So - when you get your ATP, do you surrender your commercial certificate?

Yes -- you normally physically turn in your old certificate when the examiner hands you your new Temporary, and it goes in with the paperwork. In some cases, particularly when they're using IACRA, you can keep the old one as a souvenir, but the examiner is supposed to punch a hole in it, signifying that it is no longer valid. In any event, your old certificate is officially void when the new one is issued, and if they catch you using it while your current one is suspended or revoked, you're in even more trouble than you were before.

Now, there are procedures for surrendering a pilot certificate in exchange for another of lower level, e.g., turning in your ATP ticket for another with only Private on it, but that's another story, and not an option once they order your ticket suspended or revoked.

 

[Areeda]

So - when you get your ATP, do you surrender your commercial certificate? If not, and the FAA only suspends the ATP, would they not still have Commercial certs?

The ATP is a class of certificate (private/commercial/ATP) so you don't really surrender the commercial but you give it to the examiner in exchange for the new temporary. You have only one pilot certificate with all the ratings

 

[Greg Bockelman]

So - when you get your ATP, do you surrender your commercial certificate? If not, and the FAA only suspends the ATP, would they not still have Commercial certs?

In other words, Nick, when you get your ATP, you no longed HAVE a commercial cert.

 

[poadeleted20]

The ATP is a class of certificate (private/commercial/ATP) so you don't really surrender the commercial but you give it to the examiner in exchange for the new temporary. You have only one pilot certificate with all the ratings

Right -- technically, you are not "surrendering" your old certificate in this situation, just returning it to the FAA because it is no longer valid. That specific term only applies to a process in which you voluntarily give up privileges and can't get them back without going through the training/testing process for them again. This is sometimes done as a negotiated alternative to a 709 ride or an enforcement action.

 

[JeffDG]

Anybody seen a copy of the letters sent to the two pilots? That would clear things up.

Gotta find the link, but the NYT had it and I'm looking at the PIC one right now...

"Under 49 USC 46105(c), the Administrator has determined that an emergency exists related to safety in air commerce and that immediate action to revoke your Airline Transport Pilot certificate is required..."

So, looks like ATP only.

 

[JeffDG]

Read what it says on the back of your CFI certificate (section XIII LIMITATIONS) -- the part that says, "Valid only when accompanied by pilot certificate No. xxxxxxx." It's hard for a certificate that's in a drawer in the FSDO to "accompany" your CFI certificate.

So, let's say in a year one or both goes through all the hoops and reapplies for their PP and CP...

Would they receive their old certificate number back? If they get a new one, that would, effectively, invalidate a CFI tied to the old certificate number, right?

 

[TMetzinger]

Now, let's take it farther. Let's assume the FAA revokes the pilot certificates but not the CFI. After a year, the pilot takes the appropriate tests and regains his pilot certificates. Will they have the same number, thus revalidating the CFI if it hasn't expired? Or will they have to apply for a reissuance of the CFI certificate with the limitation altered to match

So, let's say in a year one or both goes through all the hoops and reapplies for their PP and CP...

Would they receive their old certificate number back? If they get a new one, that would, effectively, invalidate a CFI tied to the old certificate number, right?

Is there an echo? Seriously, thanks for asking again, I haven't heard an answer yet.

In a suspension, you get your number back, of course. In a revocation, I don't know if they'd want to issue you a new number so that it would clearly be different.

 

[poadeleted20]

Gotta find the link, but the NYT had it and I'm looking at the PIC one right now...

"Under 49 USC 46105(c), the Administrator has determined that an emergency exists related to safety in air commerce and that immediate action to revoke your Airline Transport Pilot certificate is required..."

So, looks like ATP only.

A check of the files says neither was a CFI, but both also held FE tickets. One supposes they would be legal to get a job as an FE somewhere, if anyone would hire them at this point.

 

[poadeleted20]

In a suspension, you get your number back, of course.

...because in a suspension, you get back the actual certificate you handed over.

 

[Obi Heed Kenobi]

Ron,

Have there ever been any rulings - by either an ALJ or a "higher" judge - as to the constitutionality of the unilateral emergency revocation?

Without getting too far into the legalities, there are certain things in which you have an interest significant enough to require some degree of due process. I'd think that an ATP - that is, your likely career if you have one - would qualify for at least some kind of process.

But, I also think it likely that the appeal procedure (you have something like 10-15 days to appeal the revocation, right?) would be deemed to be enough "process."

Then, of course, you get into the burdens on appeal. Is it on the gov't to show that the revocation was proper, or is it on you to show that the revocation was improper? While seemingly trivial, that's a big-time difference.

Just curious.

 

[dmccormack]

Ron,

Have there ever been any rulings - by either an ALJ or a "higher" judge - as to the constitutionality of the unilateral emergency revocation?

Without getting too far into the legalities, there are certain things in which you have an interest significant enough to require some degree of due process. I'd think that an ATP - that is, your likely career if you have one - would qualify for at least some kind of process.

But, I also think it likely that the appeal procedure (you have something like 10-15 days to appeal the revocation, right?) would be deemed to be enough "process."

Then, of course, you get into the burdens on appeal. Is it on the gov't to show that the revocation was proper, or is it on you to show that the revocation was improper? While seemingly trivial, that's a big-time difference.

Just curious.

Wouldn't this be subject to state law (such as "Right to Work" states -- PA and WV, for example -- have no implied contract between employed and employer)?

 

[Obi Heed Kenobi]

Wouldn't this be subject to state law (such as "Right to Work" states -- PA and WV, for example -- have no implied contract between employed and employer)?

I don't think so. I think you're getting at more of a "when does a person have a right to work" (which *could* be argued to be a state law issue, even if it's the Feds involved); I'm getting at more of a "relationship with the government" issue.

The issue I'm thinking of is one arising under the U.S. Constitution, and concerns the Due Process Clause. Let me see if I can explain it in a way that might make more a little more sense.

Due process is the requirement that the government act with fairness. An actual result has to be fair, as does the process used to reach that result. Among other things, it's why you're entitled to an impartial judge at a trial.

Pretty much every government action regarding an individual (or even a readily discernible group) implicates due process. Any decision that the government makes with regard to such an individual or group is subject to due process. It covers zoning determinations, it covers criminal trials, it governs revocation of licenses (be it a hunting license or an ATP), to name just a few.

In other words, whenever the gov't acts in regard to any of us, it has to provide us with both a fair procedure and a fair result.

As regards this ATP emergency revocation, I'm not really questioning the result - can any of us say that losing your certificate for playing on a laptop during flight, which causes you to both lose communication and overfly your destination by a long way, is unfair?

What I'm wondering is: does allowing a unilateral revocation, which is appealed after the fact, provide a fair process?

Does that incredibly drawn-out explanation help any?

 

[poadeleted20]

What I'm wondering is: does allowing a unilateral revocation, which is appealed after the fact, provide a fair process?

Considering it's a federal law passed by Congress (Title 49 USC Section 44709), that's a question only the US Supreme Court can answer.

 

[TMetzinger]

So far, unless the goverment is depriving you of life, or liberty (meaning they're locking you up), the entire suite of criminal protections do not apply. Admin law is like traffic law, a weird parallel universe.

 

[poadeleted20]

So far, unless the goverment is depriving you of life, or liberty (meaning they're locking you up), the entire suite of criminal protections do not apply.

More accurate, I think, to say that you don't have all the protections, rather than "the entire suite of criminal protections do not apply." You still have the right against self-incrimination, for example, but they don't have to warn you of that or provide an attorney. That's something those two NWA guys might have thought about before making statements to the FBI right after landing -- statements which are not subject to the protections they have if reported under ASAP and FOQA as discussed by R&W and the ALPA Pres in the letter R&W quoted.

After that, it was all downhill for them -- either they 'fess up to the NTSB and face the aviation consequences, or face criminal charges for withholding information in their statements to the FBI. Their union can whine all they want, but it appears they may have done it to themselves when they made statements to the FBI instead of zipping lips and calling ALPA, and not providing any information other than by means protected by ASAP/FOQA. I'm pretty sure that by making their statements directly to the NTSB investigators, they gave up any protections they might have had for things reported via ASAP/FOQA (rather than declining to make any statements directly to the investigators, as was their right), and thus made those statements fair game for the FAA to use in taking action against them.

 

[Obi Heed Kenobi]

So far, unless the goverment is depriving you of life, or liberty (meaning they're locking you up), the entire suite of criminal protections do not apply. Admin law is like traffic law, a weird parallel universe.

Ron's post about got it - you are still entitled to procedure, but simply not all of the procedure that comes with a full-blown criminal proceeding.

The term of art for it in the law is a "sliding scale." The amount of process increases or decreases, depending on the situation.

Remember, you're entitled to "process." You're entitled to "due process" - that is, you're entitled to the "process which is due."

In other words, the more serious the consequences you face, the more "process" - procedural protections and safeguards - you get. For a felony trial, that's generally 12 jurors, an impartial judge, and the beyond a reasonable doubt standard. For a misdemeanor charge, it might be 6 jurors, an impartial judge, and the BRD standard.

For a traffic case, it's an impartial judge and a BRD standard.

For an administrative violation, it's an impartial adjudicator and a "preponderance of the evidence" standard.

For a rezoning of your property, it's a neutral board of adjudicators, with the right to an appeal to a judge.

For a government job (remember, it's still government action vis-a-vis the individual), it's a review based on facts with your supervisor, with right to appeal to a higher neutral authority.

And so forth.

 

[flyersfan31]

That's something those two NWA guys might have thought about before making statements to the FBI right after landing -- statements which are not subject to the protections they have if reported under ASAP and FOQA as discussed by R&W and the ALPA Pres in the letter R&W quoted.

That kind of surprised me (that they opened up like that) but I guess when two mirror-glassed feds show up flashing badges and asking questions, one tends to forget one has rights. I suppose that's the reason for the federal dog and pony show.

 

[Obi Heed Kenobi]

That kind of surprised me (that they opened up like that) but I guess when two mirror-glassed feds show up flashing badges and asking questions, one tends to forget one has rights. I suppose that's the reason for the federal dog and pony show.

You'd think that the right to remain silent is one that's common knowledge. You'd also think that, as any good police officer explains that before any kind of interrogation (simply on the off chance that it might be subject to Miranda), people would exercise it.

But, no. So many criminal cases result simply from people not keeping their yappers shut. Not that I'm suggesting that I'm in favor of the guilty going unconvicted - but, rather, it just amazes me that people don't just say, "I'm not going to talk to you."

At the same time, however, the show of authority is compelling. The adrenaline is going. You're not really hearing what the officer tells you when the rights are read - but you're nodding your head and saying "I understand."

Nevertheless, I alwasy find it somewhat remarkable the number of things learned from people not keeping their mouths shut.

At the same time, it's remarkable the number of confessions that are supressed because the police didn't follow the right procedures (it ain't hard to do - you read the Miranda rights whenever you're talking to someone, even if you think you don't really need to -- what you stand to lose if they're required is greater than anything you stand to gain if they're not and you don't read them).

 

[poadeleted20]

At the same time, it's remarkable the number of confessions that are supressed because the police didn't follow the right procedures (it ain't hard to do - you read the Miranda rights whenever you're talking to someone, even if you think you don't really need to -- what you stand to lose if they're required is greater than anything you stand to gain if they're not and you don't read them).

I wonder if LEO's avoid reading the Miranda warnings until they absolutely have to in order to avoid frightening the subject into "lawyering up."

However, in this case, I don't see the requirement to read the pilots their rights because at that point, they weren't suspected of any criminal behavior. Further, since the only potentially criminal behavior I've seen in the story is that "concealing a material fact" thing during that interview, not what they were being interviewed about, I don't see the lack of that warning being an issue if they were prosecuted for that concealment rather than for what they admitted to doing, but perhaps someone more knowledgeable on that can comment, eh, Obi?.

 

[sba55]

I'm glad that they didn't lie about it and say they fell asleep. The CVR would have debunked that one right away, and then they would not be eligible to regain their ATP certificates. One of the requirements for the ATP is that you must be 'of good moral character.' Lying negates that.

It wouldn't have AFAIK because the CVR was an older type that only captures the last 30 minutes. They could have said anything they wanted.

I don't know, I still feel like there's more to this story, and I also don't think that the punishment is appropriate.

-Felix

 

[Obi Heed Kenobi]

I wonder if LEO's avoid reading the Miranda warnings until they absolutely have to in order to avoid frightening the subject into "lawyering up."

I think it happens frequently - and, if you've got a detective with good judgment (knowing when you've reached a line you can't cross without the proper warnings), there's absolutely nothing wrong with it.

But, the trick is to know when the line is. And, if you're not sure, you err on the side of caution - like I said, you stand to lose more by choice A than you do to gain by Choice B.

However, in this case, I don't see the requirement to read the pilots their rights because at that point, they weren't suspected of any criminal behavior. Further, since the only potentially criminal behavior I've seen in the story is that "concealing a material fact" thing during that interview, not what they were being interviewed about, I don't see the lack of that warning being an issue if they were prosecuted for that concealment rather than for what they admitted to doing, but perhaps someone more knowledgeable on that can comment, eh, Obi?.

That sounds right to me. The only time Miranda warnings are required is during "custodial interrogation."

Plain English: Custodial interrogation = when a person subjectively believes that he is not free to leave, and when questions are being asked that would elicit information.

Here, while you've got the second, you don't have the former.

I'll actually have to do some looking to see if Miranda warnings are required during custodial interrogation that isn't necessarily related to something criminal. That is, an FAA enforcement action. I suspect not, simply because you're not looking at jail.

To tell you the truth, the only situations in which I deal with Miranda is when there's something that's obviously criminal involved...so it's a situation I haven't run across first-hand before!

But, here's something to think about: when they were being interviewed, were there criminal concerns? I.e., hijacking, drugs/alcohol, maybe even reckless endangerment? If so, that would muddle the question even more....