Pilot Counsel: Lifetime Revocation

June 2024 editorial comment and Update:  This article first appeared in the July 2016 AOPA PILOT magazine.  In it, John Yodice addresses the unusual FAA enforcement sanction of lifetime revocation of a pilot certificate.  Here is a similarly unusual sanction that sounds equally severe: Permanent Disqualification.  The relevant regulation is contained in 14 CFR part 120 – DRUG AND ALCOHOL TESTING PROGRAM.  The part 120 regulations broadly apply to air carriers and operators certificated under part 119 and their employees.  The specific subsection relating to Permanent Disqualification is 120.221(b)(1).   It reads “An employee who violates subsection 120.19(c) or 120.37(c) is permanently precluded from performing for an employer the safety-sensitive duties the employee performed before such violation.”  Subsections 19(c) and 37(c) basically prohibit the on-duty use of alcohol.  An employee is performing a safety-sensitive function on duty when they are actually performing, ready to perform, or immediately available to perform a safety sensitive function.  In the context of pilots, this means alcohol consumption is prohibited while a pilot is actually performing pilot crewmember duties or is on call or stand-by while awaiting an assignment to perform pilot duties.  And, importantly, alcohol consumption remains prohibited until the pilot is officially released from duty. 
 
So what does permanent disqualification actually mean to a pilot who’s been disqualified?  It means a disqualified pilot is permanently prohibited from performing piloting duties for any air carrier or air charter company (or operator defined in 91.147).   That same disqualified pilot, however, may fly commercially under part 91 as a CFI or corporate pilot, or any other flying job where the employer-operator is not certificated under part 119 or operating under 91.147 as noted above.  Also significant, though, a disqualified pilot may perform a non-pilot safety-sensitive function for a 119 certificated air carrier or operator—think A&P mechanic or dispatcher. 
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​While a permanent disqualification is a quite severe and restrictive sanction, it would seem to be quite a bit less severe and restrictive than a lifetime revocation. 

Thankfully, neither sanction is common.

This is an unusual and interesting case.  The underlying facts are sketchy and the legal proceedings are convoluted, but neither prevents me from reporting that the FAA revoked, for a lifetime, a pilot’s commercial and other FAA certificates.  The FAA did so under a little-known law that requires lifetime revocation if a pilot uses an aircraft to facilitate the commission of certain drug offenses. In most cases, the FAA allows a pilot to reapply for his or her certificates and ratings as early as on year after their revocation.  This law does not allow the FAA that discretion, except in one narrow instance that I will discuss. 
 
Let’s look at the specific wording of this odd statute.  “The administrator of the Federal Aviation Administration shall issue an order revoking an airman certificate…after an individual is convicted, under a law of the United States or a state related to a controlled substance (except a law related to simple possession of a controlled substance), of an offense punishable by death or imprisonment for more than one year if the administrator finds that (A) an aircraft was used to commit, or facilitate the commission of, the offense; and (B) the individual served as an airman, or was on the aircraft, in connection with committing, or facilitating the commission of, the offense.”  A second part of the statute punishes the same conduct if it is “knowingly carried out,” but does not require a conviction. 
 
It is important to note that simple possession of an illegal drug does not trigger the lifetime revocation.  Also note that there are other FARs dealing with drugs that don’t carry a lifetime revocation but still could lead to the more conventional certificate revocation or suspension.  For example, FAR 91.19(a) prohibits carrying illegal drugs on board an aircraft.  

​This case involved a pilot who was criminally charged, among other charges, with transporting co-conspirators in a general aviation aircraft to various destinations in the Caribbean for the purpose of delivering the illegal proceeds of drug sales to be laundered.  He defended that he never transported any drugs, nor acted as pilot in command, nor was aboard the aircraft in any capacity that transported drugs.  Nevertheless, after a jury trial, he was convicted of conspiracy to possess, with the intent to distribute, cocaine; conspiracy to import cocaine; and conspiracy to launder money.  Based on these convictions, the FAA issued an order revoking his commercial pilot, mechanic, and ground instructor certificates.  His appeal to the National Transportation Safety Board was unsuccessful.  

​​He then filed suit the United States District Court for the District of Columbia claiming that the lifetime revocation of his certificates was unlawful.  The pilot raised a number of constitutional and procedural challenges, none of which prevailed.  The pilot claimed that the lifetime revocation of his certificates violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution.  Specifically, he claimed that the actions of the FAA and NTSB violated his “Constitutionally protected interests in traveling (privately in General Aviation Aircraft) by air,” his “Constitutional Right to Contract so as to earn a sufficient and adequate lawful living,” his “public right of transit through the navigable airspace” pursuant to [the Federal Aviation Act], and his Eighth Amendment right to be free from cruel and unusual punishment.  None of these challenges prevailed. The FAA moved to dismiss the lawsuit, and the court granted FAA’s motion, denying all the constitutional challenges.
 
The FAA Administrator has the authority to waive the lifetime revocation requirement if so requested by a law enforcement officer, and if the waiver will facilitate law enforcement efforts.  Another actual case illustrates the difficulty in getting a waiver.  An airman pleaded guilty to the crime of conspiracy to import a controlled substance.  The conspiracy involved the use of an aircraft.  The FAA issued an order revoking his airman certificate.  The Governor of Oklahoma sent a letter to the FAA Administrator asking that the certificate not be revoked.  The Governor said that the airman was from a family that he knew and respected, that the airman has been gainfully employed as a pilot for a medical flight service for the past three years; and that the airman had no criminal record or public safety violations during the past three years.  The Governor would be grateful if the lifetime revocation requirement was waived, as allowed in the statute.  The FAA Administrator refused.  According to the FAA Administrator, the letter did not address law enforcement matters, the second prong of the waiver provision.  On appeal to the NTSB, in a 1992 case, the Board ruled that it did not have jurisdiction to review the Administrator’s waiver authority.
 
An unusual and interesting case.  

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John Yodice is the 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