AOPA Pilot Magazine - April 2014 - 22

PILOT COUNSEL

Careful consideration

BY JOHN S. YODICE

FAA demands for medical information

JOHN S. YODICE

is the legal advisor
for the AOPA Pilot
Protection Services
program.

22 | AOPA PILOT April 2014

LAST MONTH I talked about a demand from the FAA
for the reexamination of a pilot's qualifications to
hold his or her certificate or ratings ("Pilot Counsel:
Reexamination," March 2014 AOPA Pilot). This is a
typical weapon in the FAA enforcement arsenal that a
surprising number of pilots face. I then warned against
the futility of challenging the FAA in an appeal to the
NTSB. Instead, I recommended taking the demanded
reexamination, but only after logging some additional
training, a procedure that is virtually always successful
and is less troublesome than an NTSB appeal.
I am now prompted by a recent NTSB decision that
presents a very similar procedural situation, and a similar problematic appeal, but this time in the context
of a pilot's application for renewal of his FAA airman
medical certificate. The FAA demanded that the pilot
undergo a mental evaluation by a board-certified forensic psychiatrist. The pilot believed that the demand was
unjustified. He refused. His refusal triggered an order by
the FAA suspending the pilot's medical certificate on an
emergency basis (meaning immediate grounding) until
the pilot complied with the FAA demand.
The NTSB acts as an appeal "court" for FAA orders
that suspend or revoke an airman's certificate. The pilot
appealed the suspension order to the NTSB, challenging
the reasonableness of the FAA demand for a psychiatric
evaluation. His appeal was unsuccessful. After a hearing before an NTSB law judge, and a further appeal to
the full board, the board affirmed the FAA-ordered
suspension. In deciding the case, the board recited
the applicable law: "By regulation, the administrator
may require an airman to provide additional information concerning an airman's qualifications to possess a
medical certificate whenever the administrator finds that
additional medical information or history is necessary.
The FAA may suspend or revoke an airman's medical
certificate if the airman fails to comply with a reexamination demand; any suspension remains in effect until
the airman provides the required information." The
board's precedents consistently show that its review of
the FAA's "reasonableness" in demanding further medical information is very narrow.
The facts of this case could be considered as justifying the FAA's demand and the subsequent order of
suspension. What is important is that in less-compelling
cases, it is not unusual for a pilot (including his or her
doctors) to believe that FAA's demand is unreasonable.

The pilot involved in this case is a former Eastern
Airlines captain. His mental health issues relate almost
exclusively to the 1970s, when he was evaluated by
doctors in connection with his employment-one of
whom diagnosed a clinical disorder related to paranoia. Subsequent evaluations by four psychiatrists and
psychologists, still in the 1970s, conducted at Eastern's
request, produced varying conclusions but did not
result in definitive diagnoses of clinical disorders. For
example, in 1974, one doctor did not diagnose a mental
condition but recommended Eastern "ground [the captain] until further psychiatric appraisal." Then there is
a long, unexplained gap in time in which the pilot was
apparently successful in obtaining various airman medical certificates.
What brought the matter up in 2012 is that the pilot,
while holding a third class medical certificate, wrote
a letter to the acting FAA administrator complaining
that an FAA employee made inappropriate comments
to unnamed individuals regarding the pilot's deceased
daughter and asked the administrator to address the
employee's behavior. The pilot described the statements as "material false and detrimental statements
published to airports, airlines, and other innocent parties, concerning the brutal unsolved murder of my
beloved 21-year old daughter." In response to the letter, an FAA psychiatrist took the occasion to review the
pilot's FAA airman medical file. The review disclosed
the 1970s history. The FAA psychiatrist then recommended that the pilot undergo a psychiatric evaluation
in view of "instances of suspected paranoid ideation dating back to the early 1970s" and the "highly improbable"
allegations of his 2012 letter to the then-acting administrator. The time lapse was not a problem. The board, in
sustaining the FAA, cited an earlier precedent that held
that a clinical diagnosis of a nervous or mental disorder
26 years prior was not too remote in time to conclude
that the administrator reasonably sought additional
information.
So, the message of this case-and the one reported
last month-is that an appeal to the NTSB challenging
the reasonableness of an FAA request for additional
medical information, or a demand for a reexamination
of a pilot's qualifications, should be carefully considered
in light of these precedents.
AOPA
WEB

www.aopa.org/yodiceassociates

http://www.aopa.org/yodiceassociates

AOPA Pilot Magazine - April 2014

Table of Contents for the Digital Edition of AOPA Pilot Magazine - April 2014