AOPA Turbine Pilot Magazine - November 2017 - 28

PILOT COUNSEL

Pile it on

BY JOHN S. YODICE

When a 'careless or reckless' charge is one too many
ONE OF THE FLIGHT RULES that pilots and aircraft
owners must know and understand is FAR 91.13. The
important part provides: "No person may operate an aircraft in a careless or reckless manner so as to endanger
the life or property of another."
How the FAA has historically applied this rule is a
concern to pilots and owners faced with an alleged regulatory violation. The FAA should reconsider its practice.
I maintain that the two legitimate purposes of the rule
are obvious. The general operating and flight rules of
FAR Part 91 are extensive and comprehensive. But the
rules do not specifically cover every possible careless
or reckless act that should constitute a regulatory violation. I believe FAR 91.13 is an attempt to fill the gap.
It is a good rule if properly applied according to this
obvious purpose-it applies if no other flight rule specifically covers a particular careless or reckless dangerous

In addition to legitimate purposes, the FAA has
adopted the practice of adding a charge of
violating FAR 91.13 to every alleged violation
of an operational rule.

JOHN S. YODICE

is a longtime
aviation attorney,
flight instructor,
and Cessna 310
owner.

operation. For an actual but rare example, a pilot lost
his certificate for 60 days for landing his aircraft on a
closed runway. There is no FAR that specifically prohibiting landing on a closed runway. Rather, he was found
in violation of FAR 91.13 ("Pilot Counsel: Landing on a
Closed Runway," October 2016 AOPA Pilot).
Another legitimate purpose of the rule is to apply
the "reckless" language to a violation of a specific flight
rule if the violation was committed recklessly. To me
there is a clear distinction between a regulatory violation committed carelessly and unintentionally (as most
are), and one committed recklessly.
But, in addition to these legitimate purposes, the
FAA has adopted the practice of adding a charge of
violating FAR 91.13 to every alleged violation of an operational rule. Here is a case that provides an unusual
opportunity to illustrate the error in this position. The
FAA charged a pilot with violations of FAR 91.7(a) ("civil
aircraft airworthiness"), and added the charge of "careless or reckless operation" in violation of FAR 91.13(a).
The FAA alleged that the pilot operated a Bombardier
CL 600 aircraft while it had damage to the louvered
vents under the number one engine of the aircraft.

28 | AOPA PILOT November 2017

The pilot appealed the FAA charges to the National
Transportation Safety Board. At an NTSB appeal hearing before an administrative law judge, the judge
affirmed the administrator's unairworthiness charge of
violation of FAR 91.7(a), but with a better understanding of the legitimate purpose of the rule, did not affirm
the FAR 91.13(a) "careless or reckless" charge, because
the damage was minor and the subsequent flight was
uneventful. The judge reduced the period of the ATP
certificate suspension from 45 days to 30 days. Both
the pilot and the FAA administrator appealed to the full
board. The board denied the pilot's appeal and granted
the FAA's appeal. The board said, supporting the FAA:
"Under our jurisprudence, when the administrator has
proven an operational violation of the federal aviation
regulations, the administrator has also established a violation of Section 91.13(a), because the action of violating
an operational violation is unequivocally careless or
reckless." The board reinstated the 45-day suspension.
To add to its misunderstanding, the board in this
case (and earlier ones) has written out of FAR 91.13(a)
the requirement that the FAA prove endangerment-
that is, that the carelessness or recklessness must
"endanger the life or property of another." Notice
that the rule specifically requires endangerment as an
element of the violation: "No person may operate an aircraft in a careless or reckless manner so as to endanger
the life or property of another."
To be fair to the FAA, the agency says that it does
not add to the penalty (certificate suspension or monetary fine) for adding the careless or reckless charge.
Good. But automatically adding the charge of recklessness establishes a record available to the public
indicating a formal "reckless" finding by a government
agency. In my experience, pilots are enraged at being
automatically found in reckless violation but forced
to suffer it in the course of litigation or settlement.
Again, in my experience in settling FAA enforcement
cases against pilots, I have many times been able to
persuade reasonable FAA prosecutors to drop the 91.13
charge in consideration of not contesting the substantive violation, and sometimes getting the FAA to drop
the "reckless" finding part of it.
Relying on the reasonableness of the FAA in settling
many of these cases (late in the enforcement process),
I believe it is time for the FAA and NTSB to reconsider
their positions on the application of this rule.
AOPA

AOPA Turbine Pilot Magazine - November 2017

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