FSDO Question(s) after an incident

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FrequentPilot said:
Definitely. If anyone else is in this situation, consult with an aviation attorney before responding to any government entity's request to answer questions.
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Unless you have a lawyer on speed dial, there's rarely enough time to consult before calling the Tower in response to a Brasher warning. But if you call, it's best to limit yourself to name and contact information unless you are pretty good at reading the room and can tell that it's just a discussion that is not going further. Controllers actually tend to be pretty sensitive about this. If it's going to go further, the more they speak with you, the more work they have to do. My favorite example is Harrison Ford's phone call to the Tower after the landing on the taxiway over the top of the airline. Ford is so upset that he's doing mea culpas. All the controller wants is his name and phone number.

OTOH there is almost always enough time to consult before any follow-up from a FSDO.
 
midlifeflyer said:
Unless you have a lawyer on speed dial, there's rarely enough time to consult before calling the Tower in response to a Brasher warning. But if you call, it's best to limit yourself to name and contact information unless you are pretty good at reading the room and can tell that it's just a discussion that is not going further. Controllers actually tend to be pretty sensitive about this. If it's going to go further, the more they speak with you, the more work they have to do. My favorite example is Harrison Ford's phone call to the Tower after the landing on the taxiway over the top of the airline. Ford is so upset that he's doing mea culpas. All the controller wants is his name and phone number.

OTOH there is almost always enough time to consult before any follow-up from a FSDO.
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You should have one on speed dial. For example, you suffer a traumatic brain injury, heart attack, stroke, etc. and wake up in the ER. What do you do? You call your attorney! You then call a doctor you really trust (I know that's an oxymoron, but still), preferably a retired AME. You figure what to tell your treating physician that will give you the best chances of getting back in the sky at some point. You then figure out which tests to accept and which to refuse. Remember, you have a medical to save!

If you don't have an attorney on speed dial (which you definitely should as mentioned previously). You can also call AOPA the very next day or in a few hours depending on when it happens and then you can conference in the tower. They send me a card every year that basically says call them before calling the tower. However, if you must call, give as little information as possible. I suppose it would be reasonable for you to call and give them just your name and phone number, but what if they ask more questions? You could always say, "I would like to invoke my fifth amendment rights and not answer any further questions without consulting my attorney." Though, this may irritate them, which may encourage them to report this matter to the FAA, which in my opinion, could have been very avoidable if you just had an attorney present on the call.

The FSDO is another animal entirely. That's the federal government, not some guy in some tower who may or may not report you. They're the feds! In my opinion, you would have to be insane to answer a government inquiry (regardless of whether it's the FAA (FSDO), IRS, DOT, FBI, etc., etc.) without an attorney. This is how people at best lose their flying privileges and at worst end up in jail. NEVER TALK TO THE FEDS WITHOUT AN ATTORNEY!!!
 
FrequentPilot said:
You should have one on speed dial. For example, you suffer a traumatic brain injury, heart attack, stroke, etc. and wake up in the ER. What do you do? You call your attorney! You then call a doctor you really trust (I know that's an oxymoron, but still), preferably a retired AME. You figure what to tell your treating physician that will give you the best chances of getting back in the sky at some point. You then figure out which tests to accept and which to refuse. Remember, you have a medical to save!
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If I'm in the ER I'm not going to worry about anything but surviving. I can't fly if I'm dead.

People these days are way too quick to lawyer up at the first sign of trouble. Granted that an attorney is helpful or even critical in some situations, it can also often mess up situations that could have been easily resolved without one. Your attitude, whether you're in the wrong or not, is usually the most important factor in determining how things will go, and bringing in an attorney changes a friendly discussion to an adversarial confrontation.

When I was in the ER two years ago I already knew my medical was toast, so I was browsing Barnstormers for LSAs from my hospital bed.

When I had a forced landing that didn't end well (for the plane), I had a nice friendly conversation with the two FAA guys who drove up into the mountains to look at the wreckage where I had stored it. They were satisfied that I and the plane were current and legal, and there was no fallout.

My other FAA story is here. Again, it ended well for me.
 
Dana said:
People these days are way too quick to lawyer up at the first sign of trouble. Granted that an attorney is helpful or even critical in some situations, it can also often mess up situations that could have been easily resolved without one. Your attitude, whether you're in the wrong or not, is usually the most important factor in determining how things will go, and bringing in an attorney changes a friendly discussion to an adversarial confrontation
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You get that impression by reading that post, which is my biggest disagreement with it. Too many people think in those terms, as though having an attorney automatically means creating a fight and the ASI is somehow afraid of that and will back down. Consulting with an attorney really means obtaining targeted advice from someone who understand the system and has an opportunity to understand you and the situation. When I client came to me, one of this first things I did was make a judgment call whether to introduce myself to the ASI to remain in the background. It was rare for the FAA to even know I was involved.
 
...but the attorney rarely realizes, that what Dana posts, is actually so....and is the perception from the ASI's point of view. And when they go attorney to attorney it then certainly becomes adverserial.
 
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bbchien said:
...but the attorney rarely realizes, that what Dana posts, is actually so....and is the perception from the ASI's point of view. And when they go attorney to attorney it then certainly becomes adverserial.
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I don't know what other attorneys do or do not realize. Yeah, I've met those who think the only proper advocacy is yelling and screaming and picking fights. Fortunately, over a fairly extensive litigation career - both civil and criminal - those have been few and far between. They almost always end up screwing their clients. That was definitely true of the two worst offenders I came across over the course of almost 50 years. One was a jerk miking his clients. The other was downright incompetent.

That's what one of my personal tests comes down to - does this need to be adversarial? Once the answer is, "no," the other question is, does this particular client need someone to speak for them? And even in the second one, the "no" to adversarial still applies. FSDOs have personalities, but I have been involved with several where I have represented clients directly with ASIs without it becoming an attorney-to-attorney battle. In one, my initial contact suggested that the ASI run dealing with me directly by legal counsel. The FAA lawyers never got involved and we resolved it.
 
midlifeflyer said:
I don't know what other attorneys do or do not realize. Yeah, I've met those who think the only proper advocacy is yelling and screaming and picking fights. Fortunately, over a fairly extensive litigation career - both civil and criminal - those have been few and far between. They almost always end up screwing their clients. That was definitely true of the two worst offenders I came across over the course of almost 50 years. One was a jerk miking his clients. The other was downright incompetent.

That's what one of my personal tests comes down to - does this need to be adversarial? Once the answer is, "no," the other question is, does this particular client need someone to speak for them? And even in the second one, the "no" to adversarial still applies. FSDOs have personalities, but I have been involved with several where I have represented clients directly with ASIs without it becoming an attorney-to-attorney battle. In one, my initial contact suggested that the ASI run dealing with me directly by legal counsel. The FAA lawyers never got involved and we resolved it.
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Yeah, I can't even count the number of times I've said, "I could make that call/send that letter, but it might work out better if it comes from you."
 
midlifeflyer said:
I don't know what other attorneys do or do not realize. Yeah, I've met those who think the only proper advocacy is yelling and screaming and picking fights. Fortunately, over a fairly extensive litigation career - both civil and criminal - those have been few and far between. They almost always end up screwing their clients. That was definitely true of the two worst offenders I came across over the course of almost 50 years. One was a jerk miking his clients. The other was downright incompetent.

That's what one of my personal tests comes down to - does this need to be adversarial? Once the answer is, "no," the other question is, does this particular client need someone to speak for them? And even in the second one, the "no" to adversarial still applies. FSDOs have personalities, but I have been involved with several where I have represented clients directly with ASIs without it becoming an attorney-to-attorney battle. In one, my initial contact suggested that the ASI run dealing with me directly by legal counsel. The FAA lawyers never got involved and we resolved it.
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I was told of one instance where the airman was adversarial with “talk to my attorney.” The outcome didn’t change (airplane was accidentally flown out of annual by a fair margin), but it took longer and was more expensive to go through the attorney.
 
To redirect back to the OP’s experience…I was enroute from KSRR (Ruidoso, NW) yesterday and, after a refueling stop at Stephensville, TX, I suffered a partial power loss on climb out and had to make an off field landing on a highway. All safe and sound and with help of a Sidewinder tug and a little grunt from my passenger and a couple of locals, was able to get it into a freshly cut corn field. I had about 2 minutes to find a landing spot and declare an emergency on Waco approach frequency…which got no response. I called 911 first and then the Waco area FBO’s for a mechanic. The local 911 operator basically said “no injuries to people or property…glad you’re safe, see ya’”. ??? After contacting a mechanic, the NTSB and DFW FSDO called me to discuss the situation. NTSB kinda repeated what the 911 operator said and got off the call but the FSDO assigned an investigator to drive out to see the aircraft. By the time she was 30 minutes out, we had the failed induction coupling fixed and a couple of full power run ups performed. The nice and kind FSDO gal said, if I felt safe doing so, she was OK with blocking the hwy for a departure and landing at KCNW (Waco) since we were losing daylight. All went well and we met at the FBO, provided documentation, a narrative, photos we took at the scene, etc. Thirty minutes and we were on our way to a hotel. She seems to think that, since it was an emergency and necessary off field, and we handled the situation with expediency, it should be a nothing burger. All of my required currencies for pilotage and for the aircraft are up to date so it shouldn’t require further investigation, according to her. I did save a corn shuck for my first corn field…kinda like cutting the shirt tail of a freshly soloed pilot, eh?
 
AvNavCom said:
Sounds like you did everything right. Well done!
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Thanks. Although the outcome was good, I should have turned back to the departure airport when I first felt something was amiss. I think I could have made it back there...however, if I had to make an off field landing near that airfield, the options weren't as good as where I ended up. Serendipitous, I suppose.
 
robin ardoin said:
Although the outcome was good, I should have turned back to the departure airport when I first felt something was amiss.
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That's a tough call. Prior to my own forced landing for partial power loss and runaway oil temps, there was just the tiniest power hitch in the engine during run-up and subsequently on application of take-off power. The run-up was otherwise completely normal, as was the take-off. In retrospect, that was a cylinder trying to tell me it was unhappy and about to fail. In the moment, I attributed it to the aircraft not flying for several weeks as everything otherwise seemed completely baseline.

Now I'm completely paranoid about engine failures, to the point that I started flying with Clarity Aloft earbuds since the regular ANR headset had a subtle change in engine tone when I turned my head and it was freaking me out. My engine monitor has been a saving grace though, as I can look at it and be reassured that all of the cylinders and supporting items seem to working normally. Finding that line between "auto-rough" and "this is genuinely an issue" can be challenging!
 
midlifeflyer said:
I don't know what other attorneys do or do not realize. Yeah, I've met those who think the only proper advocacy is yelling and screaming and picking fights. Fortunately, over a fairly extensive litigation career - both civil and criminal - those have been few and far between. They almost always end up screwing their clients. That was definitely true of the two worst offenders I came across over the course of almost 50 years. One was a jerk miking his clients. The other was downright incompetent.

That's what one of my personal tests comes down to - does this need to be adversarial? Once the answer is, "no," the other question is, does this particular client need someone to speak for them? And even in the second one, the "no" to adversarial still applies. FSDOs have personalities, but I have been involved with several where I have represented clients directly with ASIs without it becoming an attorney-to-attorney battle. In one, my initial contact suggested that the ASI run dealing with me directly by legal counsel. The FAA lawyers never got involved and we resolved it.
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The worst one was one in which the attorney would not allow me to communicate (cc the atty) with the client, which prevented progress on the guts underlying the case. I eventually fired the attorney (and the client). That guy is holding the airman hostage at $400/hr. It was an unethical setup which I recognize and do not tolerate.
 
bbchien said:
The worst one was one in which the attorney would not allow me to communicate (cc the atty) with the client, which prevented progress on the guts underlying the case. I eventually fired the attorney (and the client). That guy is holding the airman hostage at $400/hr. It was an unethical setup which I recognize and do not tolerate.
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This was the client’s attorney, I assume?
 
bbchien said:
The worst one was one in which the attorney would not allow me to communicate (cc the atty) with the client, which prevented progress on the guts underlying the case. I eventually fired the attorney (and the client). That guy is holding the airman hostage at $400/hr. It was an unethical setup which I recognize and do not tolerate.
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Sounds nuts, but I learned long ago not to quarterback others’ legal strategies when I don’t have the details. Sounds a little bit like possible concerns about required litigation disclosures and the confidentiality differences between consulting and testimonial experts. Or just someone being unnecessarily overcontrolling for no good reason.

Yeah, I’ve fired clients too.
 
The ASI expects to have a conversation with the pilot as in a pilot-to-pilot conversation. If he doesn't feel he got that, then the accused violator needs an attorney. The pilot needs to have his big boy pants on.
 
bbchien said:
The ASI expects to have a conversation with the pilot as in a pilot-to-pilot conversation. If he doesn't feel he got that, then the accused violator needs an attorney. The pilot needs to have his big boy pants on.
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No such thing as a Compliance Program disposition without it.
 
Right. And then the counselor advises no contact....so it becomes immediately adversarial.
 
bbchien said:
Right. And then the counselor advises no contact....so it becomes immediately adversarial.
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Unfortunately, sometimes it has to be. It's not like the FAA never starts from an adversarial position. The key for the attorney is knowing the difference. The problem for the non-attorney is their skewed view of what lawyers do. Fortunately most of the times I've been directly involved, it's been with ASIs who were reasonable.

I think of it in terms of three different types of situations.
• Can be resolved informally (through the Compliance Program or something similar) and the client is capable of working on their own with the attorney's advice.​
• Can be resolved through the Compliance Program, but the attorney needs to be involved. This might be a client limitation or it might not. And it doesn't have to be fully adversarial. Unfortunately, whether the FAA accepts a lawyer's involvement for negotiating purposes depends mostly on the ASI involved.​
• Not likely to be a Compliance Program resolution.​
 
bbchien said:
Yup...And your average barrister has no clue. That's why YOUR phone rings for sure.
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I wouldn't expect an "average barrister" to have much of a clue about any area they have no experience practicing in (you know, like an "average physician" dealing with CAMI?). I'm reminded of a comment a judge made ages ago. A well-known, very highly respected commercial lawyer (indeed, one of the best litigators I've ever known), came into the courtroom to see the judge about a continuance concerning a criminal matter. After he left, the judge just shook his head. "I can't believe it. [Name of lawyer] on a criminal case? Like taking candy from a baby."

I actually take this a step further. When AOPA does a referral to a panel attorney, they recommend the panel attorneys in the area where the client lives. Made a lot of sense in a time when client and attorney had to meet in person. But in a time of face to face online meeting capability and rapid written communication, I think the better choice is to get someone who is familiar with - has a clue about - the personality of the FDSO district where the deviation occured.
 
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I’d keep it simple and cooperative, but I’d also want to understand the process before going in. An aviation attorney can probably tell you where the line is between being helpful and saying more than you need to.
 
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