A few years ago, an old recreational pilot visited my law office with that “deer-in-the-headlights” look.  He received a letter from the FAA that demanded the pilot should submit to what we call a “709 Check Ride” within 30 days of the date of the letter.  Under 49 USC 44709, the Federal Aviation Administration has the power to re-examine a pilot’s proficiency as an aviator, and the re-examination can include a check ride.  The client was understandably terrified that he would spend his retirement years in a rocking chair instead of flying.

The FAA typically targets pilots who were observed making some mistakes that, even if they were minor or harmless, would warrant some concern for the local Flight Standards District Office (FSDO).  In this case, the pilot’s mistake stemmed from a miscommunication with an air traffic controller that led to him to being re-aligned with the rest of the cue waiting to land at a small airport. No big deal right? Wrong. The air traffic controller saw the incident as a possible deficiency in the pilot’s skill and reported it to the FSDO.

The recreational pilot was terrified when he received the notice to go ride with an FAA inspector.  However, adequate preparation can soothe all fears about an ominous exam.  After a brief consultation at my office, the recreational pilot rightly concluded that he should:

  1. Contact the FAA inspector to schedule his check ride.
  2. Take some remedial lessons at a local flight school.  A few hours of flight training, focusing on the deficiencies claimed in the FAA’s notice, can significantly help your ability to survive a test.
  3. Take the check ride with the FAA inspector.

A few weeks later, the recreational pilot received a notice that he had passed his check ride.  Problem solved.  Case closed.

Remember, the FAA inspector can only examine an airman on areas where a lack of knowledge was previously demonstrated.  Section 44709 does not allow for broad exams that fish for other airman deficiencies.  See the case of Hinman, 2 NTSB 2496 (1976) (“A re-exam must be limited to those areas where a lack of knowledge is demonstrated, and may not be overly broad”).

Under 49 U.S.C. §44709, the FAA can reinspect at any time an aircraft, engine, propeller, appliance, air navigation facility, or agency, or  reexamine an airman holding a certificate.  This can include check rides.  The FAA has significant discretion in determining reexaminations. See the case of Bakhit, EA-5489 (2009).

The FAA request must be reasonable, but a refusal warrants emergency suspension. See the case Gamble, EA-4789 (1999).

A successful re-exam does not preclude certificate action. See the case of Thomas, EA-4309 (1994) (but it may help demonstrate certificate action was unwarranted. See the case of Evans, 7 NTSB 1278 (1991)).

Mohammad Faruqui is an attorney in Fort Lauderdale, FL, servicing aviation clients throughout the United States and abroad. Mr. Faruqui is a member of the Florida Bar Aviation Law Committee, the International Air Transportation Safety Bar Association, the Lawyer-Pilot Bar Association and the Aircraft Owners and Pilots Association. He serves as a panel attorney on the AOPA Legal Services Plan. Mr. Faruqui has been licensed to practice law in Florida since 2006, and graduated from Nova-Southeastern University Shepard Broad Law Center in 2005. He is an instrument-rated private pilot with experience in Cessna 172s and Cirrus SR-20s.

Mr. Faruqui can be contacted at Mohammad@Aerolawoffices.com or at (954) 641-2220.
All content Copyright (c)2013-Present Aerolaw Offices PLLC


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