Page 7 - Twin & Turbine May 2017

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. T&T
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May 2017
TWIN & TURBINE • 5
Jerry H. Trachtman is a board-certified aviation attorney who has been practicing law since 1976. He is a Piper Meridian owner-pilot and regularly speaks on aviation legal topics at aviation events.