Pilot Counsel: FAA Reexamination Request

January 2026 editorial comment and update:  This article first appeared in the February 2012 AOPA PILOT magazine.  While John’s article mainly addresses the reasonableness aspect of an FAA’s request for reexamination, the case we report on today involves FAA policy and an inspector’s inadequate actions following a failed reexamination.

The pilot in this 2019 case decision suffered a hard landing in his Beech Baron resulting in substantial damage.  Following the FAA’s investigation of the hard landing, they determined that 44709 reexamination of the pilot was warranted and a request was made.  It’s the pilot’s responsibility to provide the aircraft and since his Baron was not yet repaired, he requested and was granted a 60-day extension to comply.  In the meantime, just eight days later, he was PIC in a runway overrun incident in a Citation jet aircraft.  As a result of this second incident, the FAA rescinded the extension and directed the pilot to schedule the reexamination.  The pilot was able to secure a rental Baron for the reexamination ride. The ride did not go well.  The inspector was dissatisfied with the pilot’s performance starting with an inadequate pre-takeoff checklist, a premature gear retraction at takeoff and abrupt maneuvering in the air.   The inspector cancelled the continuation of the flight and once on the ground he advised the pilot that he had failed the reexamination.  

By policy, the FAA generally gives a pilot two attempts to pass a reexamination.  Upon a first failure, the FAA will request that the pilot place his/her pilot certificate on deposit with the Flight Standards District Office (FSDO) and in exchange the FAA will issue a temporary student pilot certificate so that the pilot can fly and practice (without passengers) to prepare for the second attempt.  

In the case at hand, the inspector informed the pilot that he had failed the reexamination and recommended that he surrender his certificate in exchange for a student pilot certificate, but without further elaboration on what happens next.  The pilot called his lawyer who advised him not to surrender his certificate and upon hearing that, the inspector left.  The inspector subsequently issued a written notice of failure letter, but it did not request or demand a certificate surrender, nor offer a second attempt at the reexamination.  Approximately four months later the FAA issued the pilot an emergency order of revocation alleging he lacked the qualification to hold and use a commercial pilot certificate.  The pilot appealed and at the conclusion of the NTSB hearing the administrative law judge ruled that while the allegations were supported by the evidence, the sanction of revocation was not appropriate.  Instead, the judge modified the sanction from revocation to suspension (pending a successful reexamination).  The judge based this decision on the fact that the inspector departed from FAA written policies; he failed to advise the pilot of his opportunity for a second reexamination attempt and did not notify him of the requirement to surrender (or deposit) his certificate or face revocation proceedings.  The FAA then appealed the judge’s decision to the full NTSB panel where it was upheld.  The Board (the full NTSB panel), essentially agreed with the law judge’s decision that adherence to FAA policy matters, as does adequate notification when an airman’s certificate is at risk.      

The take-away from this case is that FAA regulations AND policies have significance and import when dealing with FAA investigations and pending actions.  As John Yodice relates at the end of his column, pilots facing a reexamination request should consider seeking guidance from an experience aviation attorney before proceeding.  

From time to time in this column we try to offer guidance to pilots on how to deal with the many different FAA enforcement matters that we see in our administration of the AOPA Legal Services Plan.  That’s not because most pilots will experience some trouble with the FAA.  Most won’t.  However, some significant number will, and we can’t tell in advance, which ones will. 
 
A recent enforcement decision by the National Transportation Safety Board reminds us that there is one situation in which pilots innocently but unnecessarily aggravate a problem because they lack the legal experience on how to handle it.  It has to do with responding to an FAA request that a pilot submit to reexamination of his/her pilot qualifications.  Such a request is legal, always unwelcome, many times unexpected, and seldom felt justified.  Our experience has shown that a refusal to be reexamined is more troublesome than the alternative that we usually recommend.

It is true that under the law, the FAA request must be “reasonable.”  Indeed in the case we will describe, the pilot certainly felt that the request was unreasonable.  Rather than submit, the pilot took the FAA to court – actually an appeal to the NTSB.  The facts are that a pilot of a Cessna 177B struck a wire fence attempting a takeoff from a frozen private airstrip.  He was unsure what happened.  He thought maybe he could have hit a crosswind.  The aircraft was substantially damaged.  The pilot and his passenger were unhurt.  
The FAA decided that the incident warranted reexamination of the pilot.  According to the FAA, the pilot “failed to maintain directional control and establish a climb sufficient to refrain from striking a fence and this conduct resulted in substantial damage to the aircraft.”

The FAA sent two letters to the pilot requesting that he appear for a reexamination of his competency to hold his certificate.  The pilot failed to appear as requested.  As is usual in such a failure the FAA issued an emergency order suspending his pilot certificate pending a successful completion of a reexamination (“emergency” meaning he was grounded immediately, prior to any opportunity to defend himself).  The pilot appealed the order to the NTSB, as he had a right to do.  The pilot explained that he had completed a flight review with an FAA designated pilot examiner, feeling it should satisfy the reexamination request.  The FAA did not agree.  Under the required procedure the reexamination must be conducted by an FAA Air Safety Inspector from an FAA Flight Standards District Office, not a designated pilot examiner.  The pilot also contended that the FAA request was unreasonable in that he was asked to complete a “soft field takeoff,” even though the airfield at issue was frozen at the time.  

An NTSB hearing was held on the pilot’s appeal.  After hearing the evidence, the NTSB Law Judge determined that the FAA had a reasonable basis for requesting that the pilot complete a reexamination.  On a further appeal from the law judge’s decision, the full NTSB affirmed the judge, stating “it is well-settled that the Board’s inquiry into the reasonableness of a reexamination request is a narrow one,” and that the FAA “had a reasonable basis to request respondent complete a reexamination.”  So, the pilot remained grounded until he passes an FAA reexamination, or appeals to a higher court.

The pilot obviously felt that the FAA was unreasonable in its request.  Because of the narrowness of the “reasonableness” issue on an NTSB appeal, as the NTSB tell us, these cases are hard to win.  As an alternative, what we usually recommend is that a pilot faced with a reexamination request, take the letter to his/her flight instructor and ask to receive flight instruction specifically on the matter to be tested as specified in the request.  The letter should specify an exam tailored to the incident or accident that precipitated the request.  In reviewing many, many FAA requests, we only see a few inappropriately broad requests that ask for a complete private pilot check ride, or a complete instrument check ride, or the like.  The pilot should ask his/her instructor to detail the instruction given in the pilot’s log book. Then, the logbook should be presented to the FAA i​nspector at the time of the reexamination. 

This procedure accomplishes two objectives.  It shows to the Inspector a positive safety and compliance attitude on the part of the pilot; and it evidences to the Inspector that an FAA certificated flight instructor has found the pilot competent on the matters to be tested.  I have never seen this procedure fail.  If it happened, it is rare.  On the other hand, we have rarely seen a successful appeal to the NTSB challenging the reasonableness of the reexamination request.

If a pilot faced with a reexamination request needs more detailed guidance, the pilot should seek professional help.

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John Yodice is the former Senior Partner of the Law Offices of Yodice Associates, a law firm experienced in aviation legal matters involving DOT, FAA and TSA certification and compliance, corporate governance, aircraft transactions and more. www.yodice.com