Greg Reigel's Aero Legal Services

How To Respond To A Request For Re-Examination

By Gregory J. Reigel

© February, 2018 All rights reserved.

If you are involved in an accident or incident and the FAA finds out about it, which it usually does, it is quite possible that you may receive a letter from the FAA requesting that you submit to “reexamination.” This is also commonly referred to as a “709 Ride.” If you receive a letter like this, what are your options?

What Is The Request For Re-Examination?

The request for reexamination is based upon the FAA’s authority to re-examine an airman holding a certificate or rating (pilot, flight instructor, airframe and powerplant etc.) at any time pursuant to 49 U.S.C. 44709(a). When the FAA discovers evidence that leads it to question an airman’s qualifications to exercise the privileges of the applicable certificate or rating, the FAA issues the request requiring the airman to demonstrate that he or she does, in fact, still have the qualifications for the applicable certificate or rating. Incidents such as gear-up landings and uncontrolled departure from the runway are examples of situations involving circumstances that very well may lead the FAA to question an airman’s qualifications.

You may be wondering whether a request for reexamination is proper if the accident or incident was not the airman’s fault. For example, if the accident or incident was caused by a mechanical failure is that still enough for the FAA to request reexamination? Unfortunately, unless the mechanical failure is obvious to the FAA as the sole cause of the incident, a request for re-examination is likely to be considered reasonable. Why? Because the FAA only has have “sufficient reason to believe that an airman may not be qualified to exercise the privileges of a particular certificate or rating.” If it does, the re-examination request is considered reasonable, without regard to the likelihood that a lack of competence had actually played a role in the event.

According to FAA Order 8900.1, Volume 5, Chapter 7, “[t]here must be ample or probable cause for requesting the reexamination” including reliable reports, personal knowledge, or evidence obtained through an accident, incident, or enforcement investigation. Thus, the “lack of competence” has to be supported by the facts and circumstances in the case. However, as long as a basis for questioning an airman’s competence has been implicated, rather than actually demonstrated, the request is considered reasonable.

The Re-Examination Request

The procedures for the reexamination are set out in Order 8900.1. The Flight Standards District Office (“FSDO”) responsible for the area within which the accident or incident occurred will send the airman a letter requesting re-examination, via certified mail, return receipt requested. The letter will include (1) the reasons for the re-examination; (2) the specific certificate and/or rating for which the re-examination is necessary; (3) the type of re-examination (e.g. the tasks the airman will be required to perform); (4) the category and class of aircraft required (if applicable); (5) the location of the re-examination; and (6) a time limit for accomplishing the re-examination.

After the airman receives the letter, the airman usually has fifteen (15) days within which to complete the re-examination, although this is not always the case. If an airman was injured in an accident and his or her physical condition precludes completion of the re-examination or if the airman needs more than fifteen (15) days within which to practice/prepare for the ride, the re-examination may be postponed. Under these circumstances the FAA may require that the airman surrender his or her airman certificate and the FAA will issue a 30-day temporary certificate for the airman to operate under until the re-examination.

As a practical matter, it is not uncommon for a reexamination to actually be conducted after the fifteen (15) day period. This is especially true if the reexamination has to be conducted in an aircraft requiring a type certificate since the reexamination will need to be conducted by an FAA inspector who also holds a type certificate in the applicable aircraft. It is may also be possible to schedule the reexamination to be conducted in connection with an upcoming training event. As long as the airman is communicating with the FSDO and/or inspector, it is usually possible to get the reexamination scheduled without having to surrender the applicable certificate or rating.

However, if the FAA believes the airman will be operating commercially while carrying passengers, the FAA may demand that the re-examination occur within less than fifteen (15) days. In this situation, if the airman is unable or refuses to submit to the re-examination within the time specified, the airman may actually have to surrender his or her certificate or rating.

If the airman is required to surrender his or her certificate or rating, the airman may then obtain dual instruction from a certificated flight instructor in preparation for the ride or, if the airman finds it necessary to conduct solo practice, the FAA may issue a temporary airman certificate, valid for thirty (30) days, rather than the one-hundred twenty (120) day period usually allowed with a temporary certificate. However, if a temporary certificate is issued, the certificate/ratings for which the airman is to be re-examined will have the limitation "For Student Pilot Purposes Only-Passenger Carrying Prohibited”.

If an airman wants to surrender his or her certificate, the airman should not simply show up at the FSDO and hand it over. The certificate should be delivered with a letter in which the airman confirms that the certificate is only be surrendered on a temporary basis and that the airman reserves all privileges, rights and remedies with respect to the certificate and any potential adverse action the FAA may decide to take. An aviation attorney can help to draft this letter and/or assist with the logistics of the surrender.

The reexamination does not necessarily have to be scheduled with the FSDO that issues the request. If the accident or incident occurred somewhere other than the airman’s home area, the airman can request that the re-examination be administered by the airman’s home FSDO. Or, if the inspector or FSDO issuing the request has a less favorable reputation, which some of them certainly do, then the airman will likely benefit from having the reexamination conducted by a different inspector or FSDO. In this situation, the airman’s home FSDO would contact the FSDO issuing the letter requesting the re-examination and coordinate with that FSDO on the tasks to be re-examined and if any further enforcement action is necessary after the actual ride.

If the airman fails or refuses to submit to a reexamination within a reasonable period of time, the FAA will initiate emergency enforcement action to suspend the airman's certificate. Although the airman has the ability to respond to or appeal the emergency suspension, if the FAA has a reasonable basis for the request and the airman has no other defenses, the airman will likely end up with a suspension of his or her airman certificate pending submission to and successful completion of the re-examination.

What Happens During The Re-examination?

The re-examination is similar to a check-ride, except that the airman is not typically subject to examination on all of the required tasks in the Airman Certification Standards (“ACS”) (or the practical test standards for those certificates/ratings for which the FAA has not yet issued ACS) for the certificate or rating upon which the airman is being re-examined. Rather, the re-examination involves the tasks that were called into question by the occurrence of the accident or incident and it is conducted in accordance with the ACS for the certificate or rating involved. The tasks may include components of the knowledge test, the skill or flight test, or both.

Since the re-examination is a check-ride, it is important to make sure that the tasks are reasonably related to circumstances that gave the FAA a reason to question the airman’s qualifications. For example, if an airman was merely taxiing an aircraft and departed the taxiway, a request for re-examination based upon that incident shouldn’t include instrument navigation or cross country flight planning. If the request for re-examination includes tasks that do not appear to be reasonably related to the circumstances, the airman should object and request that those items be removed from the request. Although such a request isn’t always granted, if the airman, or his or her aviation attorney, is able to convince the inspector that the tasks are beyond the reasonable scope permitted under the regulations, then it is often possible to have those tasks removed. The inspector can fail the airman for any maneuver, procedure or knowledge deficiency in which the airman is found to be unqualified. This includes any of the specific task upon which the airman is being re-examined (which is why it is best to limit the tasks as much as possible). Additionally, if the inspector observes any deficient areas other than those that are the subject of the re-examination at any time during the re-examination, those deficiencies could also be the basis for failure of the test.

If the airman successfully completes the re-examination, one of two things will happen: (1) if the airman's certificate was suspended pending completion of the re-examination, the inspector will issue a letter of results and may issue a temporary certificate that bears all ratings and limitations from the original certificate; or (2) if the airman's certificate was not suspended pending completion of the re-examination, the inspector will simply issue a letter of results and the airman may then continue to exercise the privileges of his or her certificate and/or ratings.

If the airman fails to successfully complete the re-examination, the inspector will inform the airman in detail of each deficiency. Additionally, if the airman's original certificate was surrendered in exchange for a temporary certificate and the term of the temporary certificate has time left on it, the inspector will decide whether to suspend the certificate or to extend the temporary certificate for an additional 30 days.

In the latter instance, if the inspector believes the airman could successfully complete another re-examination if he or she obtained additional instruction, another 30-day temporary certificate will be issued with a limitation against carrying passengers. The airman will then have to submit to an additional re-examination within that 30-day period. In the first instance, when the inspector determines the airman is not qualified to hold the certificate or rating, the airman can expect to be the subject of enforcement action seeking revocation of his or her certificate and/or ratings.

Conclusion

If you are involved in an accident or incident in which pilot error is a possible cause of the accident or incident and the FAA finds out, don’t be surprised if you receive a certified letter requesting that you submit to re-examination. The first thing you need to do is review the scope of the re-examination request and objectively determine whether the FAA has a reasonable basis for making the request. Often, it will.

Next, you need to decide how you want to respond. Although the request for re-examination can be intimidating and frustrating, especially if it follows an accident or incident in which your aircraft and/or your pride has been damaged, it is possible to treat it as a positive experience and use it as an opportunity to improve your skills as an aviator. This is especially true if you take the ride with an inspector who approaches the situation from a similar perspective.

However, if you find yourself facing a request for reexamination with an inspector who does not approach the ride from this perspective or if you have questions regarding the basis for the request or the procedures that should be followed, an aviation attorney can certainly assist you in the process. After all, you worked hard to obtain your certificate(s) and/or rating(s). Make sure you protect your ability to exercise those privileges and to fly safely.