AOPA Pilot Magazine - January 2020 - 26

FOR THE RECORD

They get you coming
and going

BY JARED ALLEN

Revoked, suspended, denied, or surrendered?

JARED ALLEN is

AOPA's Legal
Services Plan senior
staff attorney and
an instrument-rated
private pilot.

26 | AOPA PILOT January 2020

WHETHER YOU'RE LOOKING TO KEEP your third class
medical or are one of the growing number of pilots
thinking about leaving it behind to fly under sport pilot
or BasicMed rules, it's worth noting a recent FAA letter to AOPA that provides some helpful guidance about
the medical certification process. Two of the issues
addressed concern pilots in vastly different scenarios:
those whose medicals have been denied, and those who
are seeking to voluntarily surrender their medicals.
Denial of a medical may already be one of a pilot's biggest certification fears, but some are not aware that even
when an aviation medical examiner (AME) grants a medical certificate, FAR 67.407 allows the FAA to reconsider
the AME's decision within 60 days. The FAA may reverse
the AME's decision and deny the application, or demand
that the pilot provide additional medical information. If
the FAA does not take either of these actions within 60
days, the medical granted by the AME is "affirmed."
With this rule in mind, AOPA proposed a scenario
based on an actual situation where a pilot received a
denial letter months after the AME's decision granting a medical should have been considered affirmed. In
response, the FAA confirmed that "a medical certificate
cannot be denied after the medical certificate is affirmed"
and that "the FAA uses enforcement action to revoke or
suspend a medical certificate that is issued by the FAA."
Enforcement action isn't required because the pilot did
anything wrong; it's necessary because a pilot with an
affirmed medical is a certificate holder under federal law,
and is therefore entitled to a specific legal process.
Should the FAA believe that a pilot isn't qualified to
hold a medical, it's critical that the correct process be
followed, as appealing a medical denial is significantly
different than appealing a suspension or revocation.
Although both types of cases are heard by an NTSB
administrative law judge, under the board's rules of practice the pilot who is appealing a medical denial has the
burden of proof in showing that he or she is qualified to
hold a medical; in an enforcement action to suspend or
revoke a pilot's medical, the burden of proof is on the FAA
to show that the pilot is not qualified to hold the medical.
On the opposite end of the spectrum from those
pilots fighting to keep their medical are those seeking to
leave it behind. In these cases, the pilot has determined
that his or her future flying-whether it's gliders, light

sport aircraft, or aircraft flown under BasicMed- won't
require a third class medical. While pilots may hold a
medical and fly under any of these alternative rules, some
decide that they'd rather not hold a medical if they don't
need it, perhaps for no other reason than to not be subjected to the FAA's Office of Aerospace Medicine.
For pilots who've decided they no longer want their
medical, the options are to either wait until the certificate expires or voluntarily surrender the certificate.
However, at the time AOPA submitted its questions, the
FAA's Compliance and Enforcement Program and the
federal aviation regulations addressed the surrender of
other certificates, but not medicals.
In response to AOPA's question as to whether voluntary surrender of a medical was permitted, the FAA stated
that "an airman may surrender a medical certificate issued
under Part 67, provided the airman is not under investigation and the purpose of the surrender is not to avoid
certificate action. Further, an airman may not surrender his or her medical certificate if the FAA determines
that the airman does not meet the qualification requirements of 14 CFR Part 67 after the period in which the FAA
may issue a denial." The FAA cited a new version of the
Compliance and Enforcement Program Order, 2150.3C,
which officially adopts this policy. AOPA has observed
that if a pilot attempts to surrender a medical contrary
to this policy, the FAA will almost certainly refuse it and
return the certificate to the pilot. Pilots considering surrendering a certificate, voluntarily or otherwise, should
always consult with an attorney before doing so.
Two of the most common pieces of advice we provide to pilots about medical-related issues are first, consult
with AOPA's medical certification staff before you complete a medical application where you're disclosing a new
condition; second, if there is any doubt about your FAA
medical history, request a complete copy of your FAA
medical record by completing FAA Form 8065-2 and submitting it to the FAA's Aerospace Medical Certification
Division. These two steps can go a long way in keeping
you flying, whether it's avoiding a denial of a medical or
knowing that you're qualified to fly without one. AOPA
EMAIL jared.allen@aopa.org

The AOPA Legal Services Plan is offered as part of
AOPA's Pilot Protection Services (aopa.org/pps).
http://www.aopa.org/pps
AOPA Pilot Magazine - January 2020

Table of Contents for the Digital Edition of AOPA Pilot Magazine - January 2020
