PILOT-COUNSEL: The $5,000 Fine

​October 2021 editorial comment and update:  This article first appeared in the May 2012 issue of AOPA PILOT magazine.  John Yodice’s advice not to surrender an FAA issued certificate without first consulting a qualified aviation attorney remains valid.  We recently encountered a situation where an FAA Regional Flight Surgeon sent a letter to an airman threatening a “…suspension, revocation, of a civil penalty of up to $1,548 for each day you fail and refuse to surrender the Airman Medical Certificates.”  The FAA letter referred to issuance dates on two medical certificates that were roughly two and four years old and clearly past the 60-day reversal period.  The FAA in general, and this Regional Flight Surgeon in particular, doesn’t have the authority to deny and demand surrender of medical certificates that were previously affirmed (not denied within 60 days of issuance). This is not to say the FAA doesn’t have the authority to assert that an airman is not qualified due to a particular medical condition, but in doing so and acting upon it, they must afford the airman certain legal protections—they cannot just take a medical certificate!  Rather, to affect the suspension or revocation of an affirmed medical certificate, the matter must be referred to the FAA’s legal office who can then pursue certificate action.  And, if an order of suspension or revocation is issued and not appealed by the airman, the airman must surrender his or her medical certificate or face the prospect of a civil penalty.  In the noted instance, the Regional Flight Surgeon’s demand for medical certificate surrender was inappropriate, as was her threat of civil penalty action for not doing so.  

A recent decision of the National Transportation Safety Board came across my desk that assessed a $5,000 fine against a pilot for failing to surrender his medical certificate to the FAA.  The case illustrates one of the few circumstances in which the FAA can make such a demand without affording the pilot all of the legal protections we have written about in this column over the years.  Faithful readers of this column will recall our frequent advice that pilots should never voluntarily surrender a pilot or medical certificate to anyone including the FAA until he or she has gotten some expert advice.  These are valuable documents, hard to get, and hard earned.  Once surrendered, they may be very difficult to get back.  As we will see, the FAA medical certification process has an unusual, but limited, aspect that short circuits our frequent advice. 
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The FAA receives and processes approximately 450,000 applications for airman medical certification each year.  Most medical examinations conducted in connection with these applications, the ones involving most pilots, are performed by physicians in private practice who have been designated to represent the FAA for this purpose.  A medical certificate issued by such an Aviation Medical Examiner can ripen into a certificate to which the general legal protections apply, but only after 60 days after the date of issuance (date of examination).  Within that 60-day period the issuance of the medical certificate, which is already in the pilot’s possession, can be reversed by the Federal Air Surgeon, or a Regional Flight surgeon, or the Manager of Aero Medical Certification Division (AMCD).  The 60-day reversal period can be extended if the FAA requests additional information from the pilot within 60 days after the issuance.  Then, the above-named officials have 60 days after receipt of the additional information to reverse the issuance.

This case tells us what can happen if an airman refuses to surrender a medical certificate that has been timely reversed by the FAA.  In this case, under the circumstances, it was a $5,000 fine.  The pilot had earlier reported to the FAA, as he was required to, that he had suffered an alcohol-related suspension of his driver’s license/privileges.  Some months later, the pilot applied to an Aviation Medical Examiner for a third-class medical certificate, and in routine fashion received it.  When the application was routinely reviewed by the Manager of the AMCD, the Manager, noting the driver license suspension, asked for additional information to determine the pilot’s eligibility to hold a medical certificate.  After the pilot failed to provide the requested information, the Manager reversed the issuance of the certificate within the 60-day period as extended by the request for additional information.  The Manager asked the pilot to return the certificate to the FAA, and offered a grace period.  The pilot again failed to respond, and the FAA initiated a civil penalty assessment proceeding seeking a $5,000 fine.  The FAA has a sanction guidance table that provides a range of sanctions for various violations, including for failure to surrender a certificate when legally demanded.

The FAA correspondence warned the pilot that he was subject to a civil penalty of up to $1,100 for each day the violation continued, but did offer to close the matter out if the pilot surrendered the certificate within 10 days.   The pilot did not surrender the certificate until 16-days after the grace period expired.
The pilot tried to avoid the fine by appealing to the National Transportation Safety Board.  He told the Board that “this whole process has been quite confusing and, regrettably, I did not act within the timelines requested of me.  As a father and business owner/operator, I am constantly busy with various activities that require my time.  Unfortunately, I did not always respond to the issues outlined in this case in a timely fashion.  For that, I regret allowing this issue to become a case at all….I submitted my information to [the Aerospace Medical Certification Division manager] and subsequently have surrendered my medical certificate.  I hope this letter makes it clear that the $5,000 penalty is not appropriate considering the nature of the case and I hope that you feel the same way.” 

But the Board, stressing that the FAA provided the pilot with ample opportunity to avoid the fine, affirmed the assessment of a $5,000 civil penalty.  The Board noted that the penalty assessed was at the low end of what the FAA could have sought under the sanction guidance table, representing a fraction of the $17,600 maximum that could have been made for the 16-day period, at $1,100 per day.

Nevertheless, we continue to advise that pilots should never voluntarily surrender a pilot or medical certificate to anyone including the FAA until he or she has gotten some expert advice.  This case represents a very limited exception.

​                                      Copyright © Yodice Associates 2012.  All rights reserved.
       
    
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