by Gregory J. Reigel
Attorney At Law
Copyright 2017. All Rights Reserved
Published in Midwest Flyer – February/March 2017
Is a certificate suspension or revocation the end of the story for a certificate holder? Not usually. A certificate holder 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.
Any certificate issued by the FAA (e.g. airman, mechanic, medical, dispatcher, air carrier, repair station, etc.) may be suspended or revoked in a legal enforcement action. Of course, this assumes that the matter cannot be resolved through a compliance action under the FAA’s new compliance philosophy. This typically means that the certificate holder charged with the alleged violation(s) was either unwilling or unable to comply.
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 Federal Aviation Regulations (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 a National Transportation Safety Board (“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) 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.
EDITOR’S NOTE: Greg Reigel is an attorney with Shackelford, Melton, McKinley & Norton, LLP, and represents clients throughout the country in aviation and business law matters. For assistance, call 214-780-1482, email firstname.lastname@example.org, or Twitter @ReigelLaw.