By Ian Arendt*

This article was originally published in the January 2024 edition of AOPA’s Pilotmagazine. Editions and alterations from the original have been made by the author.

The mental health of pilots has been discussed frequently lately—usually not for good reasons. It’s an open secret that pilots underreport mental health issues and often refuse to seek treatment. Research supports this: a 2016 study concluded that hundreds of airline pilots could be managing depressive symptoms perhaps without treatment for fear of impact to their career. A 2019 study, although not specifically addressing mental health, found that over 60% of respondents admitted to delaying or avoiding medical care over concerns for their pilot certificate.

A recent report issued by the DOT stated that the FAA has “comprehensive procedures to evaluate pilots’ psychological health.” Few of us would dispute that FAA has an extremely thorough review process when it learns of potential mental health conditions. However, the report also found that pilots are reluctant to disclose mental health conditions, primarily due to “the stigma associated with mental health, potential impact on their careers, and fear of financial hardship.” Understandably so. After all, pilots who report mental health conditions or treatment are often required to obtain onerous and costly evaluations from the few (and expensive) FAA-approved psychiatrists and neuropsychologists. After obtaining these evaluations, the FAA may take many months to review before a certification decision is made (or even more information is requested). All the while pilots are unable to exercise any medical certificate privileges, which usually means they cannot work or build flight time. Even after receiving a medical certificate, continued evaluation and reporting requirements are the norm. It provides little solace that pilots rarely receive a final denial with no hope of future medical certification when they are out of work (according to the FAA, about 0.1% of applications are truly and finally denied).

While the FAA has made meaningful strides in its messaging and changes for certain mental health conditions (including situational depression, ADHD, and PTSD), the FAA must do more if it ever hopes to dispel the fear pilots face when experiencing a mental health challenge. Substantive revisions to the FAA medical certification policies and procedures are required before any meaningful progress in combating mental health issues can be achieved.

So, what could the FAA do to encourage pilots to seriously consider their mental health and to accurately report mental health conditions and treatment? For one thing, the FAA could grant AMEs the discretion to issue temporary medical certificates when pilots report mental health conditions or treatment. Latest reports indicate the FAA has a nine-month backlog for internal review of any psychiatric case. Temporary medical certificates would allow pilots to continue working or building flight time while the FAA reviews the file.

For another, the FAA could amend its reporting requirements so that mental health evaluations, counseling, or use of an employee assistance program (EAP) are reportable only when resulting in a clinical diagnosis or treatment for specific, aeromedically significant conditions. As it stands now, all visits to a psychiatrist or psychologist within the past three years must be reported on question 19 of the medial application even if the visit did not result in any formal diagnosis or treatment. Any counseling “related to a … psychiatric condition” must similarly be reported. On the other hand, use of an EAP is reportable only when “result[ing] in referral for psychiatric evaluation or treatment,” though FAA guidance on this point is inconsistent. This change would provide much needed clarity and give pilots more tools to address their mental wellness. For example, pilots would be more likely to seek informal counseling (peer-to-peer, life coaching, etc.) and take advantage of EAPs to stop a mental condition from developing into an illness. Further, pilots concerned for their mental wellbeing would be more willing to seek professional help if only required to report visits resulting in clinical diagnosis or treatment for select conditions.

Additionally, the FAA could improve its communications with pilots by explaining, in layman’s terms, the reasons for its decisions. Currently, when the FAA denies a medical certificate or requests additional information, the FAA uses form letters which, at best, reference the underlying conditions at issue but fail to provide any substantive explanation as to why the condition makes pilots unsafe to fly or why additional information is needed. Instead, pilots must request their medical certification file with “applicant notes” (which can take weeks) or track down a helpful FAA employee to clarify the information necessary to make a decision. Providing clear reasoning in corresponding with pilots would do much to dispel the distrust many harbor against the FAA. As a bonus, the FAA could assign individual case workers to a file, so pilots have a single point of contact when questions arise.

Finally, after making these substantive changes, the FAA should provide pilots with an opportunity to reconcile their medical certification records without fear of facing revocation. This would encourage pilots who have not reported mental health conditions or treatment to come forward and disclose important information. For now, pilots with unreported conditions risk allegations of intentional falsification and revocation of all airmen certificates.

To be clear, pilots concerned for their mental wellness should seek the care and treatment they need. Often, peer-to-peer or EAP resources may not require reporting and can prevent a situation from getting worse. Nevertheless, until the FAA makes meaningful changes to the medical certification process, airmen will hesitate to receive help and may be inclined to hide a condition from the FAA.

*Ian Arendt is an in-house attorney with AOPA’s Legal Services Plan, providing consultation and legal advice to participants in the Legal Servies Plan. Ian is the Treasurer of ALA and a private pilot who owns a heavily modified Piper PA-12 Super Cruiser.

Interviewed by Elizabeth A. Vasseur-Browne

In 2021, without any fanfare because of the Pandemic, Judge Roger Mullins of the NTSB retired. Along with him went more than 30 years of judicial experience with the Board. Judge Mullins was a frequent attendee at ALA (formally the NTSB Bar Association and IATSBA) conferences and will certainly be missed by many that practiced before him. As we welcome two new judges, Judge Alisa Tapia and Judge Darrell L. Fun, we sadly bid a fond farewell to Judge Mullins, but he has promised to stay engaged with his love of aviation and may attend ALA conferences in the future. For now, he has agreed to an interview.

EVB: Tell me a bit about your background; where you were born, raised, and went to school.

Judge Mullins: I was born and raised in the Ponca City, Oklahoma area. I attended school in a small neighboring town, Burbank. There were only 11 students in my graduating class. I then attended the Oklahoma Panhandle State University and after graduating I was commissioned as a Lieutenant in the Army. After leaving active duty, I taught school for two years, one in Guymon, Oklahoma, and one in Brighton, Colorado.

EVB: What came first, your interest in aviation or your interest in law?

Judge Mullins: Well, I was always interested in aviation.

EVB: We will talk about aviation in a minute, but when and what made you decide to pursue a legal career?

Judge Mullins: During my junior year in college, the local town marshal and the deputy town marshal were murdered. Because it was a small community they needed bailiffs throughout the trial, so I volunteered. I attended the whole trial, and it was incredibly interesting. The trial judge in that case was Judge Board. This is when I got interested in the law, but also interestingly, the court reporter for this case was a flight instructor and I started flying with him. So, because of this one case, I became interested in aviation and the law at the same time.

(Interesting side note, about two to three years ago in Amarillo, Texas, I heard an NTSB case, and it was held in Judge Board’s courtroom. I asked, by chance is this “Judge Board” the son of Judge Board from Guymon, Oklahoma? I was told, no .... it’s his grandson! Small world!)

I also attended ROTC in college and was interested in going into flight school, but our ROTC department didn’t have a flight school so I would have to wait until I entered the army. I was told the best way to get a flying slot was through the Transportation Branch, and I was able to get a Transportation Branch assignment.

Before I could finish my flight school application the Army moved almost all of their flight school slots away from the Transportation Corps and my slot was delayed. I decided to get out and go to law school.

Judge Mullins and his wife Janice

After law school, we headed back to Ponca City, Oklahoma, and I began private practice. I got my pilot’s license in 1973. I served in the army for 31 years; two active and twenty-nine reserves. I retired from the Army as a Colonel.

EVB: What type of aircraft have you flown?

Judge Mullins: I have flown about all Cessna aircraft: 150, 172, 175, 182 and 210; Bonanza, Piper Cherokee 180. Over the years I’ve owned a C-182, C-175, Bonanza; and an RV8A. I have a commercial license with an instrument rating and about 1200 hours flight time.

Judge Mullins’ RV-8A Aircraft

EVB: So, tell us a bit about how your legal career progressed and how you came to the NTSB.

Judge Mullins:  I was a schoolteacher before I attended law school at the University of Colorado. I graduated from law school in 1969 and began private practice. In 1971 there was an opening for a special district judge position; this is similar to a county judge. Three local attorneys approached and encouraged me to apply for the position and I did get that appointment. One year later I was appointed by the [Oklahoma] Governor to fill an unexpired term of a district judge that passed away. I then ran and was elected for three more four-year terms. Most of the cases were very interesting. As a general jurisdiction district judge, I heard all kinds of cases from simple traffic cases to capital murder cases. Civil cases—million-dollar tort cases. Divorces, child custody cases, probate. I held that position until 1986.

In 1977 while attending the National Judicial College I met and by chance had lunch with Judge Fowler [William E. Fowler, Jr], who was the Chief Judge of the NTSB and Judge Davis [Jerrell R. Davis], who was an NTSB Judge in Los Angeles. They told me about traveling around the country and hearing aviation cases. I decided at that time that is what I wanted to do. It sounded much more interesting than hearing divorce cases. But they also told me that the Board has never appointed an ALJ off the register, and still to this day they don’t do that. You have to be appointed from another agency.

So, I started the process and in 1986, I was appointed as an administrative law judge with Occupational Safety and Health Review Commission in Denver, so I resigned my political appointments and moved to Denver. That first month I sent a letter to the Safety Board and let them know I am a judge, I’m in the system, I am a pilot and I would like to work for you. I received a letter back saying that there were no vacancies, but they would keep my letter. About three years later, I got a letter that there was a vacancy, so I applied, got the appointment, and started with the NTSB in January 1989. I spent the next thirty years hearing hangar stories for a living. (Chuckles). I love aviation. This was the perfect way to combine both my interest in aviation and the law.

EVB: Do you have any memorable cases that you would like to share with the readers?

Judge Mullins: I do. Speaking from the legal perspective, the Bob Hoover case, not just the case itself, but also the fallout. The hearing was held in Oklahoma City and attorney F. Lee Bailey represented Mr. Hoover. Mr. Bailey was really good in the court, but at the time he was also a consultant for a news program; [this was during the same time as the Menendez Brothers trial who were convicted of murdering their parents]. Every time there was a recess, Mr. Bailey would leave the courtroom and be interviewed about the Menendez trial out in the hall.

The Hoover case, however, turned on the issue of cognitive deficit. The FAA spent $500k to develop a test for this type of condition. They had a doctor testify that Mr. Hoover was not fit to fly. Defense experts testified that Mr. Hoover’s cognitive deficit did not affect his aviation abilities and skills .... I found for Hoover and the Board reversed me.  The Board suggested that once an expert is qualified as an expert, you cannot
question his credibility. That was contrary to anything I ever studied. However, more recently one of the FAA doctors that testified in that case has since told me that he thinks CD should be established in a simulator as opposed to some written test. That makes sense to me. Mr. Hoover continued to fly unlike anyone who has ever flown, long after they said he had this condition.

Another legal case of note was held in Independence, Kansas. This case involved turbine powered aircraft that crashed on a county road. The pilot (husband) was not injured, but the passenger (wife) was so the pilot/husband accompanied her in the ambulance. In a briefcase that was on the aircraft were two marijuana candy bars. These were purchased legally in Colorado. There was no evidence of use or possession with intent to sell. The FAA revoked the pilot’s certificate and based on these facts I did not think revocation was proper. This is the same sanction that a pilot got that was found with 200 lbs. of marijuana. The Board however disagreed, and I got reversed.

I got paid to hear these types of cases. I do believe that having an interest in and love of aviation should be a factor in hiring new NTSB judges. Or at least some training— ground school, rides, you really need to know a little about aviation. FAA hires some very bright young attorneys right out of law school. But a lot of them don’t know the difference between one seven left and a vertical stabilizer and this is pretty critical. Not the medical cases, but you need to know what is going on as a pilot.

EVB: Do you have any thoughts on how hearings and appeals to the Board are conducted?

Judge Mullins: When I was at OSHA, we were the only agency using the Federal Rules of Evidence, and later was an advocate for them to be used in Safety Board cases. It wasn’t until the Pilot’s Bill of Rights made them applicable that I thought was the right way to handle cases, but it didn’t make as big a difference as I expected.

With respect to the NTSB, practicing attorneys need to understand that typically Board members are not attorneys, do not have trial experience and are not former judges. Their decisions are researched and prepared by the general counsel’s office and submitted to the Board members for review. One chairman told a group of judges that he read every “slip opinion” that the general counsel office sent him, suggesting he did not read the appellate briefs, or transcripts or consider the evidence offered at the hearing before issuing the Board’s final decision. This is no different than an appellate court judge rendering a decision on a law clerk’s memorandum. This is likely the result of the Board’s vast responsibilities that are not related to enforcement cases.

EVB: What are your thoughts about being reversed by the Board?

Judge Mullins: Hmmm... Well, there is a case where I really feel they got it wrong. A young pilot was getting his ground instructor rating. When he took the written test, he had something in his pocket and the FAA revoked him for cheating on the exam. However, no one ever saw him take the device out of his pocket or use it. I found in his favor and the Board reversed. A few years later this young man came to me, he was in law school at SMU and interested in an extern program with my office. He was the Editor in Chief of the Law Review and with his aviation background I was thrilled to offer that position to him, however, the Board refused because of cheating. I felt so strongly that this was so unfair that when the Texas bar called a hearing to decide if this incident should preclude him from being admitted to the practice of law, I took leave, traveled to Austin, and testified on his behalf. The members of the Bar were out for just a few minutes and came back in and said—he’s good.

Another case involved a hot air balloon in Albuquerque, New Mexico. The allegation was that the balloon was operated too low to the ground in violation of the FARs; the premise being, if the balloon lost power it could not be landed safely. But that just didn’t make sense to me, that applies to fixed-wing aircraft, not hot air balloons. Logically, if there is a mechanical malfunction in a hot air balloon, the higher you are the more dangerous it is. I found in favor of the balloon operator and was reversed by the Board.

EVB: In your opinion, what is the biggest downfall with respect to NTSB cases?

Judge Mullins: Emergency cases. There are only two bad choices when defending these cases. If the emergency designation is not waived, defense counsel has less than 30 days to prepare for the hearing that the FAA attorneys and investigators have been preparing for months. The FAA is ready or close to ready for the hearing when they issue the emergency order, where often defense counsel is just beginning. On the flip side, if the emergency is waived, it could take years for a final outcome.

It's also worth pointing out that the FAA does change its emphasis from time to time. A while back the emphasis was on type ratings. Now and over the last several years the focus has been on intentional falsifications of medical applications. However, it is important to understand that applicants are not lawyers and if they read a question and then answer it in a way that the FAA deems a false answer, it may not be if that is what the applicant believed was the appropriate answer.

EVB: The NTSB has two fairly new administrative law judges. Do you have any advice for them with your decades of experience?

Judge Mullins: If the new judges don’t have aviation backgrounds the board should help them prepare for these sometimes very technical cases, for example, ground school.

EVB: Can you share with us a feel-good story from your time as an ALJ?

Judge Mullins: Well .... Yes. This falls in the category of bounding back from a bad situation. I had a case where a young second officer on an MD11 about to make Captain, tested positive for marijuana on a random drug test. He was not under the influence when he flew, but that does not matter, if you have traces in your system, you get revoked and he was revoked. Because he couldn’t fly, he decided to and did go to law school. I am not advocating using marijuana, just simply, if someone does lose an NTSB case, sometimes other things work out...

EVB: So, Judge, now that you are retired, how do you spend your free time?

Judge Mullins: My wife and I are enjoying retirement and may start playing golf soon.

EVB: Judge Mullins, do you plan to stay involved in any way with aviation, maybe speaking or in some other way?

Judge Mullins:  Absolutely. As I said, I was fortunate to be able to mix my love of

aviation with my love of the law. I have made great friends during my time on the Board and hope to catch up and visit with many of them.

EVB: Well, thank you for your time, Judge Mullins. I know I speak for all the members of ALA, that we wish you and Janice the best in your retirement—you’ve certainly earned it and we hope to see you in the future, please consider joining us at our annual conferences.

Article by Joe Vacek

We’re trying a reconfiguration of our former newsletter/journal, which will be a shorter piece delivered to you monthly instead of quarterly. This month, I’ll kick it off with a comment relevant to anyone whose client operates drones: The Remote ID Rule.

FAA now requires anyone operating a drone to broadcast a “digital license plate” via Remote ID technology installed on the drone. Despite the rule’s effective date being delayed by the FAA and by litigation last year in BRENNAN V. DICKSON, 45 F.4TH 48 (D.C. CIR. 2022), the requirement is on track to be in force on September 16, 2023. That means all drone operators will need to be compliant to operate in the National Air Space, outside special drone-only parks for enthusiasts, otherwise known as “FRIAs.”

New drones come with the required hardware and software installed to be compliant. Older models need to be retrofitted, and the cost is not unreasonable--spending between $100 and $200 will purchase a module that can be easily added to an existing drone and is compatible with US, Canadian, and EU remote ID requirements. They do add a bit of weight (1-2 oz) and power consumption, which will slightly reduce the drone’s performance or endurance.

Make sure your clients know about the requirement and are compliant, as willful non-compliance can result in FAA enforcement actions beyond a compliance action, up to and including revocation and civil penalties.

Personally, I have wondered how FAA will detect and locate a non-compliant drone, since one not broadcasting its “digital license plate” is essentially running dark. I would suggest acknowledging this with your client, along with a reminder that compliance is generally cheaper than paying you in an enforcement action!

The BRENNAN case mentioned above was a facial challenge to the rule’s constitutionality; the DC Circuit held that there was no 4th Amendment violation in requiring drone operators to broadcast a “digital license plate” because they were operating in public airspace. The Court left unresolved however the question of whether low altitude airspace--airspace that the U.S. Supreme Court has decided belongs to the landowner--is navigable or not, and whether FAA has regulatory authority over that low altitude airspace. Until that issue is ripe and decided, even drone operators flying down low right over their own field must comply with Remote ID.

A longer version of this in law review format is available at https://law.und.edu/_files/docs/ndlr/pdf/issues/98/2/98ndlr233.pdf

I've been a member of ALA (formerly IATSBA and the NTSB bar association) for about 15 years. I was most recently the VP for Great Lakes region, and I am located in Grand Forks, ND. I'm best known for my work in drone law at the University of North Dakota.

Over the past 3 years, our organization has been facing some headwinds--declining membership, a hiatus in our newsletter, and having to cancel a conference and postpone another due to the pandemic. I'm confident we can adjust our throttle settings and get back on course. We're actively working on all of those now, and I'm thrilled to invite you to our Nov. 1-3 conference in Washington, D.C., where we can reconnect and get back to business! Please register as soon as you can and invite your friends and colleagues. It's going to be a great event, with a catered dinner at the Smithsonian National Air and Space Museum on Nov. 2!

One of my goals as president is to seek new members. As you may know, the University of North Dakota offers the nation's only formal certification in aviation law by a law school, and plans to open it up soon not only to all law students in the US but also to practicing lawyers to obtain the certificate, using remote teaching technology. I plan to explore a potential agreement between UND’s certificate program and ALA, creating a pipeline for new members to enter our organization from the certificate program. I would appreciate the assistance, wise counsel, and help from all interested members of our bar association to get it going.

I'm looking forward to reconnecting with you in Washington, D.C. in November, getting a regular newsletter into your inboxes, and watching our membership roster grow! And of course I'm interested in hearing your ideas. Please feel free to call me at 701 885 2486 or email me at joevacek@gmail.com. Thank you,

 Joe