As a young pilot learning the FARs, I was told that “[FAA] Part 61 is about how you get your certificates and ratings, and Part 91 is about how you lose them.”
What is the most common way to get your certificates revoked? The FAA’s most frequently used allegation against a pilot has always been FAR 91.13: “No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.” I have been following enforcement cases for more than 30 years, and I am pleased to report that FAR 91.13 cases have dropped dramatically. In 1993-2002, there were more than 200 cases citing FAR 91.13. From 2016 until the end of last year, there were less than 20 cases. Maybe the FAA’s new approach to enforcement is working—or maybe pilots have just gotten smarter.
The most revealing discussion of FAR 91.13 comes from an FAA case against a professional pilot in 1986: “As Hogan Air Flight 816 taxied on Taxiway C and passed by the Guard ramp area, the cadets observed you abandon your position in the left seat, stand up, remove your trousers, slide the window open and expose your buttocks.”
The bare-bottomed pilot was charged, among other things, with being “careless or reckless.” The pilot was also charged with one of the least common allegations: “lack of good moral character.”
The FAA sought to revoke the pilot’s airline transport pilot (ATP) certificate.
The administrative law judge for the case made an interesting comment: “I do not find that the act of mooning comes up to the level requiring the revocation of an ATP. We have not yet reached the point where stupidity alone is grounds for revocation of an ATP.” The judge reduced the pilot’s punishment from revocation to a 20-day suspension.
The FAA was unwilling to “turn the other cheek” and filed an appeal.
For a case involving a stupid prank by this pilot, the NTSB devoted serious analysis to proving a careless or reckless violation. Although the board viewed the pilot’s actions as careless, “the remaining and more difficult issue is whether his action created potential endangerment, the remaining element of a section 91.13 violation.
“Considering all of the pertinent circumstances—respondent’s removing his seatbelt and standing up and turning sideways in a moving aircraft, the distraction of the co-pilot and the blockage of the co-pilot’s view out the left cockpit window—the board concludes, unlike the law judge, that a potential endangerment was created that is not so remote as to remove the incident from the coverage of the regulation,” the NTSB stated. “The board therefore deems the violation of section 91.13 to be established by a preponderance of the evidence.”
Note that the FAA did not have to prove that anyone was actually endangered by the mooning. The NTSB will affirm a violation if the agency can show the potential for endangerment.
Lawyers love to debate “potential endangerment,” but pilots continue to find new ways to “endanger.” In a 2013 case, a Learjet pilot who was upset with a Cessna 172 pilot turned his jet blast on the Cessna. The Cessna allegedly left a 75-ft. skid mark on the taxiway and had flat-spotted tires, but its pilot managed to keep his aircraft from flipping over in the blast. The Learjet pilot received a 90-day suspension.
The most common FAR 91.13 cases are “buzz jobs.” Older cases involved lengthy discussions about witness testimony and whether the aircraft’s N number could be observed by the naked eye. In today’s world, video evidence is more tantalizing than eye-witness reports.
One extreme example in 2008 involved a flight in which the pilots of a Gulfstream II made two low passes just off a beach and a low pass down a runway with gear and flaps retracted. Low flights near the beach are a common violation. With a Gulfstream? Not so common. But consider the quote from the NTSB decision that sets this case apart, “Respondent’s maneuvers, as depicted in the video and testified to by the administrator’s witnesses, were clearly reckless and apparently intended to provide exciting footage for the ‘Girls Gone Wild’ film crew.” The pilot received a 150-day suspension.
The FAA adds a FAR 91.13 violation to almost any other violation; case law refers to it as a “residual” violation. In the majority of cases, the additional charge under FAR 91.13 does not increase the length of the pilot’s certificate suspension. However, when the pilot is truly “reckless” and not merely “careless,” sanctions range from 180 days' suspension to a complete revocation.
A Robinson R44 helicopter pilot decided to “self-train” to be a rescue pilot by repeatedly picking up swimmers from a lake with the skids of his helicopter, taking them up 20 ft. to 30 ft. in the air and letting them jump off the skids. A witness sent a video of the event to an FAA inspector. Neither the agency nor the NTSB bought his “self-training” defense. He received a 180-day suspension.
When a check airman failed to report that engine temperatures were exceeded during a stall recovery and then flew the aircraft to several other destinations, the NTSB agreed with the FAA that revocation was appropriate.
Why revocation? The stall occurred during an airline flight, and the hearing included this testimony from an Air Jamaica captain riding in the cabin: “The poor passengers. . . they were crying, they were praying, they were screaming and they were cursing. . .”
Using the search terms “screaming” and FAR 91.13 produces too many results. The line between merely stupid and truly reckless is often determined by whether people are screaming in the cabin or on the ground.
Kent S. Jackson is founder and managing partner of Jetlaw. He has contributed this legal column to BCA since 1998 and is also a type-rated airline transport pilot, flight instructor and repairman.
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