Resolving a TSA Preliminary Determination of Ineligibility

  • ON Aug 09, 2018
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  • BY Anthony Ison
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  • IN Pilot Law

Are you a transportation worker who needs help resolving a TSA Preliminary Determination of Ineligibility? As an employee or potential employee who might need access to secure areas of the nation’s maritime facilities and vessels, the TSA will require you to have a Transportation Worker Identification Credential (“TWIC”). When applying for a TWIC, the TSA will conduct a background check to determine if you pose a security risk. As a TWIC applicant, you could be determined ineligible due to having a disqualifying criminal offense on your record. If the TSA determines that you have a disqualifying criminal offense on your record, the TSA will send you a Preliminary Determination of Ineligibility letter. This letter will identify the TSA’s rationale for determining your ineligibility for credentialing.

Resolving a  Preliminary Determination of Ineligibility requires timely attention and should be reviewed by your TSA attorney immediately.  Within 60-days of the date on the Preliminary Determination of Ineligibility letter, you or your attorney must provide a response to the TSA. If you need more time than the 60-days, you may be able to request an extension. Nevertheless, within the 60-days, you and your attorney should determine if your case is eligible for either an appeal or a waiver (or both).

Resolving a Preliminary Determination of Ineligibility through an appeal requires the applicant to prove that the TSA erroneously determined your ineligibility. An erroneous determination of ineligibility occurs when 1) you were not convicted of the offense(s) listed in the letter from TSA because the charge(s) was dismissed, nolle prossed, or you were found not guilty; or (2) you were convicted of a misdemeanor(s) only; or (3) you were convicted of simple drug possession; or  (4) the charge is an interim disqualifying felony as listed on the TSA website and the conviction date is over 7 years ago and you were released from incarceration over 5 years ago.

Resolving a Preliminary Determination of Ineligibility through a waiver requires you to prove that despite having been convicted of an interim disqualifying felony within the past 7 years or your having been released from incarceration within the past 5 years, or you were convicted of a permanently disqualifying felony at any time, the you do not pose a terror risk. Fortunately, most waivers will be granted by the TSA, so you and your attorney should carefully consider this option.

If you have any questions about resolving a Preliminary Determination of Ineligibility through appeal or waiver, call your TSA attorney at The Ison Law Firm. The TSA attorney is standing by to help and answer any questions you may have.

  

Denied FAA Medical Application

A denied FAA medical application has different consequences for general aviation pilots than it used to. Of course, a denied FAA medical application means that an airman either has a disqualifying medical condition, is taking (or has taken) a disqualifying medication, or the Federal Air Surgeon finds the airman’s medical status to be unsafe for flight. The Federal Aviation Regulations at Part 67 spell out which conditions are considered disqualifying and the FAA medical office maintains an unpublished list of which medications are disqualifying. Specifically disqualifying conditions which always lead to a denied FAA medical application (but may be certifiable via the Special Issuance process) include issues like (to name a few) substance abuse, substance dependence, psychosis, permanent implantation of a cardiac pacemaker, disturbance of consciousness without satisfactory explanation of cause, and bipolar disease.  There is a distinction, however, between specifically disqualifying conditions and the types of conditions which the Federal Air Surgeon can disqualify at his discretion.   Ultimately, whether a specifically disqualifying condition or a discretionary disqualifying condition, a denied FAA medical application means that the FAA feels the airman (in his or her current state of health) is a risk to the National Airspace System and should not be flying.

As a general aviation pilot, you may want to fly under BasicMed when you have a medical condition which you know won’t allow for a 3rd, 2nd, or 1st class medical certificate. Assuming you don’t have any of the specifically disqualifying conditions under BasicMed and you don’t mind the fairly liberal operational limitations that are associated with this type of medical certificate, it seems like a sure bet! Or does it? Airman are beginning to notice that BasicMed isn’t that helpful for pilots that otherwise can’t get a 3rd, 2nd, or 1st class medical certificate. In that, if your last medical application was denied or if your last medical certificate was revoked, you do not qualify for BasicMed. Unfortunately, this policy seems counterproductive to the whole point of BasicMed, which on its face is to allow an airman that couldn’t otherwise get a 3rd, 2nd, or 1st class medical the ability to fly.

So, if you have a denied FAA medical application (as your last application), you are ineligible to fly under BasicMed. This means that you will need to present your case to the FAA for a regular medical certificate or Special Issuance certificate. If you have a condition that is preventing you from obtaining your FAA medical certificate, call a FAA defense attorney that can review your case in accordance with FAA policy and develop a plan for a successful medical application (if possible). Call The Pilot Lawyer today if you’ve had a denied FAA medical application. Your FAA defense attorney is standing by to vector you through legal turbulence.

FAA Medical Certification with a DUI

Lots of pilots and perspective pilots wonder if they can achieve FAA medical certification with a DUI . The long and short answer is: it depends. Unfortunately, there are too many variables to be able to say “yes” or “no.” The FAA will utilize any information that they can gather from a DUI event in order to determine if that airman fits into the disqualifying category of either “substance abuse” or “substance dependence” per 14 C.F.R. §67.107. For instance, one thing that the FAA Office of Aerospace Medicine will look at carefully when considering approval for medical certification when an airman has been arrested for and/or convicted of a DUI is what the airman’s blood-alcohol-concentration (“BAC”) was at the time of the event. If the airman’s BAC was higher than .15%, that information usually tends to suggest to FAA medical personnel that that airman may suffer from alcohol “tolerance,” a disqualifying subset of “substance dependence” under the FARs. That’s not to say someone with a registered BAC under .15% couldn’t also be pegged as alcohol “tolerant”; instead, the FAA conducts an analysis of each alcohol related event on a case-to-case basis. The point, however, is that certain factors, including an elevated BAC, could be the piece of the puzzle that makes the FAA doctors deny an airman’s medical application.

Be careful, however, because an airman that has had a DUI where his or her BAC was over .15% doesn’t necessarily mean that that airman is completely ineligible for FAA medical certification. Instead, a careful analysis of an airman’s case and referral to qualified medical professionals could prove that that airman, while having had an elevated BAC in the past, does not necessarily qualify as a “substance abuser” or “dependent” under the FARs. Furthermore, even if the facts indicate that an airman is an “abuser” or “dependent” under the FARs, the airman can always apply for a special issuance authorization at the discretion of the FAA. Achieving FAA medical certification with a DUI is not impossible!

There are two key pieces of advice when and airman is attempting to achieve FAA medical certification with a DUI: 1) start early; 2) conduct a thorough case analysis with an aviation attorney. The Ison Law Firm always counsels airmen currently holding airman certificates (including student pilots) to be cognizant of the 60-day reporting requirement for qualifying motor vehicle actions; furthermore, The Ison Law Firm always suggests that new pilots and/or individuals that do not yet hold a medical certificate but are interested in starting flight training within a few months, to start early. If an airman’s medical application is deferred to the FAA for certification, it is empirical to note that the FAA could take months to evaluate your case, if that airman has a DUI. So, airmen should do themselves a favor and start early. Secondly, airmen should always consult with an aviation attorney if they’ve gotten a DUI. In that, an aviation attorney can help an airman determine if it is necessary to report an event under 14 C.F.R. §61.15, as well as how to report an event on the FAA medical application, FORM 8500. Also, a thorough case evaluation with an aviation attorney can help determine if the facts surrounding an airman’s DUI event is expected to be contrary to the FAA’s policy for airman certification.

Stop wondering if you can obtain FAA medical certification with a DUI! If you have a DUI on your record and are interested in FAA medical certification, contact the aviation attorney at The Ison Law Firm. The Pilot Lawyer at The Ison Law Firm is standing by to vector you through your FAA medical certification turbulence. Call 855-FAA-1215, today!

*No medical or legal advice is given, nor should be perceived, from this article.

The FAA Issued an Emergency Revocation for My Airman Certificate, What Should I Do

“The FAA issued an Emergency Revocation for my airman certificate, what should I do?” No airman wants to ask this question; however, more often the FAA is issuing Emergency Revocations (because they have the authority to do so per the FARs) for airman and medical certificate for issues of unreported DUI convictions, unreported driver’s license suspensions, and failed DOT drug tests. If your airman certificate is subject to an Emergency Revocation, what should you do? Well, the first thing you should do is note the timeframe you have to file a Notice of Appeal. From the date of the Emergency Order (the date on the top of the document) you will have only 10 days to file your appeal with the National Transportation Safety Board (and carbon copied to the FAA attorney). If you don’t file your appeal in a timely fashion (within 10 days), your appeal will be considered stale. So, there is no room for procrastination when you receive an emergency order.

 

Next, you should consult with an aviation attorney. Perhaps this seems like a plug for our services here at The Ison Law Firm; however, the FAA will couch the Emergency Revocation in such a way that it will look like there is no way out. Do not fall for this trap. It is possible that a competent aviation attorney can review the EIR (the numerous evidentiary documents the FAA sends with the Emergency Revocation) and develop a defense in your case. There are lots of defenses available in an Emergency Revocation situation, so please consult with an aviation attorney and allow him or her to review your potential defenses.

 

If you are facing an Emergency Order of Revocation for your airman certificate, do not despair! Call an aviation attorney as soon as you receive your Emergency Revocation- at least before the 10 day Notice of Appeal deadline. Your aviation attorney at The Ison Law Firm is standing by to vector you through your legal turbulence; call today at 1-855-FAA-1215.

The FAA Is Revoking My License

Have you recently said those words: “the FAA is revoking my license?” Unfortunately, what with the FAA’s new “compliance philosophy,” the majority of the enforcement actions coming from the FAA are emergency revocations…which means that instead of giving you an opportunity to respond to the allegations prior to issuing a revocation order, the FAA is immediately revoking your pilot license. Make no mistake, however, when the FAA revokes your certificate immediately (or pursuant to an “emergency,”) you still have an opportunity to appeal such an order to the National Transportation Safety Board.

 

Currently, there seems to be an influx of such “emergency” orders – a lot of people are saying “the FAA is revoking my license.” The reason for that is likely that the FAA’s “compliance philosophy” seemingly thwarts enforcement actions where there are actions or behavior that is for the most part not intentional or reckless. As such, when an airman violates the FARs intentionally (although perhaps unknowingly in some cases) or recklessly, the FAA does not have to comply with their new “kinder, gentler” policies. For example, when an airman fails to report a DUI conviction or administrative action to the FAA via 14 C.F.R. §61.15 or DUI conviction, DUI arrest, or administrative action via the FAA medical application, the FAA deems those actions “intentional” and outside the scope of the “compliance philosophy.” So, if your question is “why is the FAA revoking my license,” the answer is that likely you’ve taken an action which is intentional or reckless and is otherwise in violation of the Federal Aviation Regulations.

 

If you are saying “the FAA is revoking my license,” it is time to immediately call a FAA defense attorney at The Ison Law Firm. It’s possible that your right to an appeal will exhaust if you do not act quickly. Your aviation attorney at The Ison Law Firm can competently and efficiently address your defense and assist you in the appeal process going forward. Call your FAA attorney at The Ison Law Firm today!