The seemingly innocuous title assigned to the initial meeting between a pilot and the FAA known as an “Informal Conference” implies a friendly meeting where the bases of an alleged violation committed by the pilot are discussed in a relaxed setting, which promotes an amicable resolution for both pilot and Administration. However, despite the sanitized title, an Informal Conference can lead to the finding of very formal evidence and, therefore, it is important for the pilot to understand the potential ramifications of such a meeting and adequately plan for the possible outcomes. The FAA most commonly broaches the option for an Informal Conference in a “Notice of Proposed Certificate Action,” which is sent to the pilot within weeks or even months after the occurrence of the alleged violation. The Notice contains both a reply form and an information sheet, which briefly describes the FAA’s source of authority for the proposed action, the purpose of the FAA’s request for a reply, the routine uses for the records gathered by the request, and the effect of the pilot’s failure to respond. The most concerning aspect of the information sheet is not what it contains, but rather, what it fails to address. Specifically, the Notice, the information sheet, and the reply form fail to disclose that the pilot has the right to request the FAA’s Enforcement Investigative Report (“EIR”). The FAA’s EIR is the substantive “evidence” that the FAA has collected internally to determine whether legal enforcement is warranted and supported. Essentially, the EIR is the foundation for the FAA’s specific violations, as spelled out in the Notice of Proposed Certificate Action. Parts of the EIR are releasable to the pilot, and should be reviewed before submitting a formal reply. The reply form itself will likely contain a number of options: (1) the pilot may respond to the FAA’s proposed action by surrendering his or her certificate; (2) the pilot may dispute the proposed action in writing by proffering his or her own evidence; (3) the pilot may request the “opportunity to discuss this matter with an FAA attorney” either on the phone or in person; or (4) the pilot may ask the FAA to convert their proposed action into a full blown legal order, which enables the pilot to bypass the FAA’s administrative process in favor of moving directly into the appellate process with the NTSB. It is important to note that two of the four options make the FAA’s job very simple, as one is tantamount to a white flag surrender and the other at least results in momentary defeat. That said, the options most frequently chosen by pilots are seem to be either defending the action by submitting their own evidence or opting to discuss the matter with an FAA attorney in hopes of resolving the issue without further legal action. In a majority of these cases, there is a high likelihood that the pilot will end up facing an Informal Conference regardless of their chosen path, so it is exceedingly important for the pilot to be prepared for what the FAA’s attorneys will have in store for them. Because traveling to the FAA Regional Counsel Office is most often an expensive undertaking (and FAA Attorneys will not travel to the pilot), more often than not, the Informal Conference will be conducted over the phone. As most attorneys will agree, a telephone conference lacks the personal aspect that is so important when attempting to negotiate. This places the pilot at a distinct disadvantage; therefore, in order to gain the upper hand, the pilot must know what to expect and position him or herself accordingly to minimize the FAA’s leverage. What To Know Going Into the Conference: Parties Present The conference will be completely dissimilar to what is advertised on the notice. In addition to the FAA attorney, the FAA field Inspector (who the pilot has likely divulged information to on more than one occasion prior to the issuance of the Notice of Proposed Certificate Action) will also be in attendance. The investigator is the heart and sole of the enforcement action; as such, they will not only be present to fact check your account for the benefit of the FAA attorney, but they will also provide commentary on the circumstances of the incident based on the FAA Regulations. Stay Consistent To be frank, for the uneducated pilot, the Informal Conference serves as an opportunity for the FAA to put the nail in the coffin, so-to-speak, on the proposed Certificate Action. Everything the pilot says during the conference can and will be used against the pilot to support the suspension or revocation of his or her license. Thus, the information gathered throughout the conference can be used to further solidify the FAA’s investigative report and, may commonly be used to attack the pilot’s credibility through inconsistent statements, based on the investigator’s prior conversations with the pilot. If the pilot feels compelled to assert his or her side of the story during the informal conference, it is important that they stay consistent with any previous statements made during the initial investigation. As with an oral examination during a checkride, it is wise to stick to simple statements. Don’t Engage in One-Sided Negotiations Unfortunately, the format of the conference, which includes asking the pilot to give a narrative of the incident, allows the FAA to adopt a passive listening role. Not only does this tactic effectively allow the pilot to talk him or herself into the corner, but the majority of the FAA’s evidence to that point will be deemed work product and confidential; the effect being that the FAA attorney may develop and adjust the action in response to the pilot’s account of what occurred, without any obligation to turn over the information upon which the FAA has built its case against the pilot. Ultimately, the FAA’s position will likely echo the claims provided in the Notice of Proposed Actions. The starting point for the negotiations will then be the proposed sanction, which is tied to the punishments in the FAA’s Sanction Guidance Table. 1 Prior to the Informal Conference, the pilot should consult this Guidance Table (which is available to the public online), in order to ascertain the range of offers available to the attorneys based on the circumstances of the violation, which will then, in turn, assist the pilot in making a reasonable and educated counter offer. Assuming that the FAA takes the position that they cannot produce any of their collected evidence that is subject to confidential attorney work product the pilot must be careful to avoid arguing against himself. Without an abundance of caution, the pilot can easily begin making counter offers to his or her own offers, while providing evidence that the FAA can use in the enforcement action. Hire An Attorney It should be clear at this point that an Informal Conference is not as informal as advertised and contains many pitfalls that may result in self-incrimination. Due to the latent risks associated with such administrative actions, the benefits of hiring an aviation attorney who is familiar with the FAA’s strategies during these actions are untold. Aviation counsel will be better positioned to request the EIR and make determinations about the weight of evidence most likely possessed by the FAA, while understanding the importance of records preservation in such an action. Perhaps most important,, an aviation attorney will possess the ability to control the conference in a manner that ensures that it is most beneficial to the pilot or, at the very least, will prevent the pilot from making an unpleasant situation worse. Joseph LoRusso is a managing partner of LoRusso & LoRusso, Ltd. in Broomfield, Colorado, in addition to being of counsel at Ralston, Pope & Diehl, LLC in Topeka, Kansas. Joseph is an airshow pilot and practices in the areas of aviation litigation, transactions, certificate defense, and drone certifications. For further information, please contact LoRusso & LoRusso, Ltd. at (303) 466-3200 or visit them on the web at www.lorussolegal.com. 1 FAA Order 2150.3B
Disclaimer: This article is intended merely to provide an informational overview of the steps involved in preparing an aviation crash case for litigation. It is not intended for the purpose of providing legal advice, nor is it an exhaustive list of issues to consider when handling this type of case. Contact a local aviation attorney if you have questions regarding any aspect of the crash litigation process.