You are landing on runway 9 at your towered home airport, which has only an east-west runway. You have received the current ATIS, and it is reporting wind as 020 at 18, gust 25. The maximum demonstrated crosswind component of your aircraft is 17 knots. You are proficient, and have never had an issue landing in a stiff crosswind. You touch down on the runway centerline and are surprised when your aircraft suddenly and unexpectedly departs the runway despite your efforts to bring it back, and you end up in the grass off the runway. The tower asks if you require assistance, and since the only damage is to your ego you decline and taxi back onto the runway, not quite sure about the cause of what just happened.
A month after your runway excursion you receive a letter from the local FSDO:
Dear Mr. Smith:
The FAA has conducted an investigation of an accident/incident that occurred at KXYZ on [date]. Based on that investigation, the FAA has reason to believe that your competence as a certificated airman is in question, and that re-examination of your qualification to be the holder of an airman certificate is necessary in the interest of safety. Therefore, under the authority in 49 U.S.C. § 44709, the FAA requests that you call or appear at this office or a Flight Standards District Office more conveniently located to you no later than 10 days after you receive this letter, to make an appointment for a re-examination. The re-examination will consist of crosswind landing technique and include the knowledge and skill necessary to be the holder of [your airman certificate] with emphasis on in-flight decision making and aircraft control. If you make an appointment with a Flight Standards District office in another area, please advise this office. If you do not accept the opportunity for re-examination by the date set forth above, we will begin proceedings to suspend your airman certificate until such time as you demonstrate your competence to exercise its privileges. If, for reasons beyond your control, you are unable to be re-examined at this time, please contact me immediately so that the FAA can determine whether to grant an extension of time to you. Please note that the incident that occurred on [date] is still under investigation to determine whether other enforcement action is appropriate. If additional enforcement action is to be taken, you will be advised in a separate letter. We will be pleased to discuss this matter with you and provide any further information that may assist you. Our office is open from 8 a.m. to 4 p.m., and our telephone number is (555) 555-5555. Your cooperation in this matter will be appreciated.
Title 49 of United States Code, section 44709 provides that the Administrator of the FAA may re-examine anyone holding an airman certificate. No ifs, ands or buts. A request for re-examination is not appealable as long as the FAA has a reasonable basis to question whether an airman is qualified to hold his or her certificate. The bad news is that it is virtually impossible to challenge the reasonableness of a re-examination request, and most incidents or accidents are likely to result in a request for re-examination.
As long as the FAA has a reasonable basis for believing that pilot competence could have been a factor, it does not matter that some other factor may have been responsible in whole or in part for the accident or incident underlying the request for re-examination. In a case involving a DC-3 takeoff, at an altitude of 300 feet the PIC noticed a burning odor and observed that the left engine fire warning light had illuminated. He followed the in-flight fire emergency checklist and determined that the left engine should be shut down. After shutting down the engine, he feathered the propeller, but the aircraft would not climb on one engine. He was forced to make an emergency landing in an open field and none of the aircraft occupants were injured, but the aircraft sustained major damage. The FAA investigation determined that the aircraft was unable to climb on one engine due to one or more possible reasons: crewmember lack of competence; or inadequate power available from the right engine; or incorrect engine or aircraft performance indication. A letter requesting re-examination was sent to the PIC, and the PIC challenged the reasonableness of the request. He argued that if the FAA had performed a more thorough investigation, it would have discovered that his competence had nothing to do with the accident because the propellers were nonconforming and the ailerons drooped. He lost the argument, since all that matters when a re-examination is requested is that pilot competence could have been a factor.
What happens if you fail to appear for the requested re-examination? Failing to appear for the re-examination will always result in the FAA issuing an emergency order suspending your airman certificate until you successfully complete the re-examination. If you need an extension of time, ask for it.
Does a successful 61.58 PIC proficiency check by a DPE substitute for a requested 709 re-examination? No, it does not. The 709 re-examination must be administered by an FAA inspector. However, it does not have to be done by an inspector at the requesting FSDO. Sometimes it is necessary to go to a different FSDO that has an FAA inspector with a type rating in the aircraft in question.
The good news is that as long as you did not violate any regulations (you were cleared to land, right?) the matter will end with the re-examination, if you complete it timely and satisfactorily. If you have any doubts, it’s always a good idea to get some dual instruction in the areas to be tested before appearing for a 709 re-examination.