A Tale of Two FAAs

After 24 years of flying fighters in the U.S. Air Force, including a tour with the Thunderbirds, I retired in 2006 and started a new career as an airline pilot. Concurrently, the Patriots Jet Team, flying Experimental Aero L-39s, invited me to join its aerobatic team. After coming up as a pilot in general aviation in the early 1980s, I was excited to recultivate my civilian aviation roots. I had always believed that the FAA existed to promote a safe and mature approach to aviation. Little did I know that my assumptions would be severely challenged after a series of flights in January 2014.

This article is about two FAAs. One comprises cogent, smart, experienced administrators who approach aviation regulation and safety with maturity. The other FAA is an agency with self-absorbed individuals wielding unbridled authority as vigilantes of the skies. In telling my story, I hope to encourage the former approach to governmental aviation regulation.

After flying the L-39 Albatros for eight years, with 350 PIC hours and nearly 50 CFI hours in the jet, I met Dr. Mark Hale. He was a new L-39 owner who hired me to help him obtain an Experimental authorization that required a minimum of 1,000 hours so he could pilot his jet solo. Hale was a 600-hour pilot, so it was clear the syllabus would take years to complete, especially since I insisted his training reflect my military discipline gained as an instructor/evaluator pilot in the A-10, F-5 and F-16.

Having flown with the Patriots Jet Team, I was keenly aware of the Experimental operating limitations issued by the FAA. As such, my syllabus included rigorous high-performance and cross-country training and high-density altitude preparation following a rigid methodology that included a military-style grade book documenting each sortie in excruciating detail. I was committed to making Hale the safest L-39 pilot in the sky.

The L-39 is an Experimental exhibition aircraft and is issued operating limitations by the FAA that state, “Except for takeoff and landing, pilots will not fly over densely populated areas (DPA).” Therefore, DPA drew the focus of all our sorties, and Hale and I meticulously planned to avoid DPAs during training flights. Unfortunately, the FAA definition of DPA is intentionally nebulous, and FAA safety inspectors often interpret them to suit their own whims.

The flights in question occurred on January 17–19, 2014. I can only write about it now because it took more than two years to painstakingly fight the FAA bureaucracy and defeat the renegade authority of many within the agency thanks to a few caring and intellectual FAA officials who saw their administration’s folly.

The story begins with our January 17 training sortie from Northern California to Southern California's Santa Monica Airport (KSMO). Recognizing KSMO’s sensitivity to noise and the political issues there, we methodically planned the flight to SoCal, coordinating directly with the KSMO noise-abatement official and airfield operations manager. We telephoned KSMO officials regarding the L-39 and planned our flight by communicating to SoCal Approach and KSMO Tower, thus complying with the L-39 operating limitations’ intent.

Following our arrival, Hale and I briefed the next day’s training mission. Our plan was to comply with KSMO noise-abatement procedures, fly to Camarillo (KCMA) from over water and practice traffic patterns before returning over the Agoura hills to Santa Monica. We’d fly back to Northern California the next morning.

Unexpectedly, another L-39 landed at KSMO. At dinner that night we met the pilot. It was suggested that after our Camarillo training mission, we should join up over the Hollywood sign near Griffith Park and execute a brief photo mission. Clearly, it was a change to our plans, so we considered the issues of legality and practicality to such an endeavor.

After studying the proposal, we considered multiple issues. Were there any TFRs or airspace restrictions adjacent to the Hollywood sign? No. Were there any flight restrictions or airspace conflicts? No. Were there previous photo missions over the Hollywood sign? Yes, in fact there were numerous examples in which general aviation, Experimental, military aircraft and even the space shuttle (on the back of a Boeing 747) had flown past the Hollywood sign for a photo op. Moreover, we carefully scrutinized the ingress and egress over the Agoura hills to specifically avoid densely populated areas as depicted on the Los Angeles VFR aeronautical charts. We felt the mission was practical, safe, met our training objectives, adhered to FARs and operating limitations, and provided for a simple photo opportunity.

The next morning, Hale and I flew our training sortie to KCMA, all the while in contact with SoCal and Point Mugu Approach and KCMA Tower. After practicing patterns at KCMA, and in contact with Point Mugu Approach, we transited over the Agoura hills and joined the other L-39 and a Bonanza photo aircraft for two 360-degree turns over the Hollywood sign. We remained in contact with Burbank Tower, and then switched to KSMO for landing clearance. The mission was accomplished safely and according to plan.

Four weeks later, on February 17, 2014, I received an FAA letter of investigation (LOI) for operating an Experimental L-39 outside its operating limitations and program letter on January 17, 2014. The letter mentioned overflying a DPA, but was suspiciously vague. There was no attempt by the Los Angeles FSDO to contact any of us involved in the flight to simply ask about our intent or planning or whether there were legality issues. Moreover, the LOI did not mention the flights on January 18 or 19, questioning only the flight from Northern California to KSMO on January 17.

I was perplexed, and elected to call the FAA’s Los Angeles FSDO referenced in the letter. To my surprise, after asking for more specifics on the LOI, the inspector asked if I was willing to waive my Pilot’s Bill of Rights (PBR). Partially stunned by the question, and having never heard of the PBR, I declined and asked if I could send an email explaining our intent and planning of the January 17 flight. To this, the inspector agreed.

After responding via letter detailing the comprehensive military orientation and planning of our training flight, I received a warning letter, dated March 26, 2014, from the FAA, stating: “No law-enforcement action warranted,” but the warning letter would remain in my records for two years. While satisfied that the FAA had rightly concluded we were complying with the FARs and operating limitations, I was aghast that they assumed I was guilty of violating FARs and had the authority to retain a warning letter in my records. I consulted an aviation lawyer, whose advice was, “You can’t beat the FAA,” so accept their assumption of guilt and tolerate the warning letter. Unfortunately, my education on the FAA’s unchecked authority was just beginning.

One day shy of six months went by when, to my shock, an FAA notice of proposed certificate action (NPCA) surfaced in my mailbox. This NPCA had the same case number as the originally closed LOI but now stated the enforcement action was for both flights of January 17 and 18. The proposed penalty was a six-month suspension of my airman certificate, which would not only negate six months’ airline income but also destroy my spotless airman record of 30 years. Stunned, I immediately sought legal counsel.

The FAA accused us of operating an Experimental L-39 over a DPA outside the aircraft operating limitations by flying adjacent to the “iconic” Hollywood sign. From documents obtained under the Freedom of Information Act (FOIA), I learned we were considered clowns out for a joyride and it was their duty to squash this aggressive behavior. I learned the Los Angeles FAA technical specialist and FSDO prosecuted us based primarily on a Facebook video, with no input from the actual pilots.

In their zeal to punish us, the Los Angeles FAA technical specialist and FSDO violated FAA Policy Order 2150.3B and the PBR by not issuing an LOI for any subsequent investigations. To be exact, I was issued an LOI and warning (with no enforcement action) under the PBR. The FAA then continued to investigate me with the same case number, even though the case was closed. This is unheard of, and is contrary to Public Law 112-153. Moreover, I learned that the FAA inspector asking me if I would “waive my Pilot’s Bill of Rights” was illegal.

The FAA inconsistencies glared like lasers. How to fight this injustice? At first, our lawyers said there was a valid argument against the reopening of the case without issuing an LOI in direct violation of the PBR and Policy Order 2150.3B. However, that argument was untested in court and that made it circumspect. The issue of flying over a DPA was a conundrum. One could challenge the FAA at a National Transportation Safety Board hearing, but counsel advised that administrative law judges almost always sided with the FAA (sometimes without reviewing the evidence) and there was no definition of a DPA other than previous case law. A legal challenge could cost $150,000 or more in attorney fees, only to lose and still pay the FAA penalties and fines.

Given the options, I had little choice but to agree to my counsel’s advice and settle with the FAA. Let me re-emphasize that Hale and I did nothing wrong; we complied with FARs, flew within the operating limitations and followed a rigid training program with maximum safety and professionalism. Yet, in the eyes of the FAA technical specialist and Los Angeles FSDO, we were criminals. What was worse, they knew we would bankrupt ourselves challenging their false assertions.

After an informal hearing with the Los Angeles FAA technical specialist and FSDO, my lawyers described the meeting as “vindictive” behavior by the FAA. The fine was negotiated to $12,000, and the penalty was settled at a one- month airman certificate suspension. I was devastated.

While I absorbed the shock of losing a month’s flying income and paying an outrageous fine, Hale also fell under the FAA’s renegade authority. After receiving a warning letter that resulted in “no enforcement action,” he got a call from the Oakland FSDO where his L-39 was based. The FSDO arranged a hangar meeting with Hale, and with a witness present the FAA inspector verbally threatened Hale to reapply for his airworthiness certificate (even though he already had a valid, nonexpiring certificate) so he could be reissued operating limitations with greater restrictions or have his airplane grounded. The inspector mentioned that our cowboy act was drawing fire from the Southern California FAA offices. Hale was coerced to accept the restrictive operating limitations.

For two years, we fought with weapons of political advocacy and fierce tenacity. We initiated a two-pronged attack, using our state senators as well as aggressively requesting investigative documents through FOIA. We spent months pressing the FAA with case-specific factual information, even to the point of addressing the FAA chief counsel and the administrator, demanding a response to the formal complaints we’d filed. We spent hours and months chasing phone calls to Washington, D.C., and the FAA, and dissecting every detail of the FAA’s investigative process. After years of relentless pursuit, Hale received an acknowledgment that the FAA would investigate the Oakland FSDO’s threatening action to alter his L-39 operating limitations. It was a glimmer of hope.

Several months later, after prodding for results, Hale received a peculiar investigation response. The FAA found nothing wrong with the Oakland FSDO’s process, but it was passing “lessons learned” to unspecified entities to correct the situation. We saw through this ruse and asked what lessons were learned and who was receiving corrective enlightenment. The FAA’s response was revealing: When challenged, the FAA told Hale this was a regional issue only, and Washington should not be informed. From sifting through FAA investigative reports obtained through FOIA, we found the very same individuals who were “learning lessons” about abusing their authorities were the Los Angeles technical specialist and FSDO that prosecuted us. Hale and I had smoking-gun evidence that proved clear FAA maleficence.

Fortunately, Hale worked with a new, competent Oakland FSDO inspector who was shocked at his agency's rogue behavior. He proved that the Los Angeles regional FAA technical specialist had directed the previous Oakland FSDO to force the rewrite of the operating limitations or else threaten to ground the aircraft. Additionally, this excerpt from an email from the Los Angeles FAA regional counsel attempted to justify how they circumvented the PBR and Policy Order 2150.3B and reopened a closed investigation:

One thing that perhaps could have been explored more is the mitigating factor identified by the respondent that he was prevented from conducting his own investigation into his flight operation of January 18, 2014, because: (1) The LOI did not mention January 18 (thus the LOR only addressed the January 17 flight operation); and (2) He believed the matter closed after receiving the warning notice. I would like to ask how (1) and (2) prevented the respondent from conducting his own investigation?

The circular FAA lack of logic was astounding. FAA counsel admitted I had not been notified of a new investigation (with the same case number), but queried why I didn’t investigate myself over something I knew nothing about in the first place. It was clear that the FAA was incapable of adhering to the true intent of the PBR.

Now the question was, would anyone at the FAA listen and admit their mistakes? We were naturally skeptical after two years of FAA denial and a skewed legal process that assumed guilt before innocence.

Undaunted, we continued to prod the FAA chief counsel to respond to our formal complaints. Two years in, when most people would give up, I received a phone call from the FAA assistant chief counsel. I fully expected him to (politely) tell me to pound sand. Our conversation, instead, was refreshing, logical and unlike any other previous dialogue I’d had with the FAA. Additionally, an FAA aviation safety inspector who knew my reputation from working with the Patriots Jet Team at the Reno Air Races got directly involved with the case. These individuals took the time and effort to scrutinize and correct the abusive actions.

The assistant chief counsel reviewed our case and concluded that the Los Angeles FAA regional officials, the FAA technical specialist and the FSDO had acted arbitrarily and capriciously, abused their discretion and were not in accordance with the law. He concluded that the fine and penalty imposed was exorbitant and, by all accounts, the FAA failed to follow the PBR and Policy Order 2150.3B. I nearly fell out of my chair.

Here were two FAA officials who got it. Through a simple conversation, the assistant chief counsel comprehended that we were not clowns joyriding in an L-39. He understood our intent to comply with FARs and the operating limitations, and that we did nothing wrong. He absorbed the wildly interpreted definition of DPA and admitted that regional FSDOs were not held accountable for their broad variances in applying DPA definitions in enforcement actions. He acknowledged the FAA abuse of authority and ultimately informed me that my airman record would be expunged and the FAA would refund the $12,000 fine.

On the one hand, the FAA is rife with power-hungry individuals bestowed with unbridled authority and a penchant for pursuing pilots with police-like tactics that assume guilt before innocence. On the other, there are hardworking professionals who approach aviation regulation from a mature perspective, focused on safety and efficiency. The problem for pilots is that no one knows whom they'll get when encountering the FAA after flying their aircraft on a bright, sunny day.

In 2015, the FAA announced a new “compliance philosophy.” The FAA chief counsel explained that the FAA wanted to find ways to help well-intentioned certificate holders learn from unintentional mistakes, get retraining or education, and limit the use of significant monetary sanctions to a narrower range of noncompliance.

Although there is good reason to be skeptical, my hope is for a major, lasting shift within the FAA thanks to the compliance philosophy.