This is not legal advice but rather is a discussion amongst colleagues undertaken for purely educational reasons. No person should rely on any statements made by the author for any reason other than having a collegial discussion.
I suspect they apply Mr. Justice Stewart's rule -- they know it when they see it.
Hi Ron, I hope all is well with you.
I think you mean intent when you say attempt. This is all hypothetical since the person posting admits to having been flying and characterizes the event as a landing incident - implying it happened on the runway.
But, the point you make is interesting because there are some useful distinctions and differences to understand.
FAR 1.1
Flight time means:
(1) Pilot time that commences when an aircraft moves under its own
power for the purpose of flight and ends when the aircraft comes to rest
after landing; (emphasis added)
Purpose appears to be important and purpose implies intent but, not to put too fine a point on it, not attempt.
FAR 61.3(c)
(c) Medical certificate. (1) Except as provided for in paragraph
(c)(2) of this section, a person may not act as pilot in command or in
any other capacity as a required pilot flight crewmember of an aircraft,
under a certificate issued to that person under this part, unless that
person has a current and appropriate medical certificate that has been
issued under part 67 of this chapter, or other documentation acceptable
to the Administrator, which is in that person's physical possession or
readily accessible in the aircraft. (emphasis added)
So it is pretty clear you cannot fly an aircraft without a valid medical certificate (there are exception not relevant here).
So the next question is - Does taxiing an aircraft rather than being airborne matter with regard to medical certification? I think according to 1.1 it does if you can make the case that the movement was for other than the purpose of flight and hinges on the question: is the person taxiing an aircraft for purposes other than flying a required crewmember?
Again we take a look at
FAR 1.1.
Crewmember means a person assigned to perform duty in an aircraft
during flight time.
I think one could reasonably argue that the act of taxiing an aircraft for purposes other than flight does not require a medical certificate. Note, flight time is defined differently for pilots than aircraft. For the moment let's use the pilot definition as it is broader. Here we have the following:
Flight time means operations with intent to fly,
Medical certificate is needed when a person is a required crewmember, and
a person is a required crewmember only when flight time is involved. Therefore taxiing for purposes other than flight does not result in flight time and absent flight time no crewmember requirement and absent a crewmember requirement no medical certification requirement.
I'd have to do the case law research to see if the FAA/NTSB has a different view.
Here is the kicker though.
FAR 91.13 -
(b) Aircraft operations other than for the purpose of air
navigation. No person may operate an aircraft, other than for the
purpose of air navigation, on any part of the surface of an airport used
by aircraft for air commerce (including areas used by those aircraft for
receiving or discharging persons or cargo), in a careless or reckless
manner so as to endanger the life or property of another.
I quote just sub (b) because it is new since you and I learned to fly and it basically removes the concept of intent from the regulatory structure since the purpose to go flying is a missing qualifier. It used to be that one could be involved in an aircraft movement for other than flight and escape FAA liability for bad outcomes. Old Days: "Dear FAA I was not operating an aircraft for the purpose of flight when I taxied into your lovely G-2 and therefore I am not compelled to comply with the Federal Aviation Regulations." This was a frequently used get out of jail free card for ground incidents - "I was just going to the wash rack, maintenance shop, deice pad, etc." So in the old days you could make an "intent" argument to avoid a careless and reckless finding. But, if one considers that the FAA and NTSB have through caselaw effectively redefined careless and reckless to mean any operation with a bad outcome, it is probable that they will go after someone with a license even when they are taxiing for repositioning purposes regardless of intent.
I think the phrase "air commerce" would be broadly construed to make the regulations applicable to any part of the airport that is available for public use by aircraft.
We are not done yet, lets look at NTSB part 830
Aircraft accident means an occurrence associated with the operation
of an aircraft which takes place between the time any person boards the
aircraft with the intention of flight and all such persons have
disembarked, and in which any person suffers death or serious injury, or
in which the aircraft receives substantial damage.(emphasis added).
They use similar language for incidents.
Here intent matters and once established then the reporting requirements hinge on whether the occurrence was an incident or accident as those terms are defined.
So it is quite possible that the NTSB would consider an occurance to be neither an accident nor an incident, yet the FAA finds a violation of 91.13.
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Knowledge and intent matter when issues of culpability are considered. As you and others have pointed out the FAA takes a much more lenient approach when they think the violation was unintentional. When they think it was intentional, or where they think a higher standard must be applied, for example commercial operations, they tend to be very harsh.
I think you are quite correct that it is probably the case, but this is just a guess and NOT legal advice, that the pilot will be treated very harshly by the FAA. I imagine they will move to revoke the individual's licenses. I do not think they will be amenable to civil penalties as this appears to be a pretty egregious violation. I do not think they will pursue criminal penalties because there was no commercial activity involved
and further I don't think the US attorney's office is going to be hot to pursue such a minor case to a criminal conviction and would tell FAA to go revoke the license and end it there.
All that being said, we don't have the full facts. The individual should contact a qualified attorney if keeping their license is a desired outcome.
