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June 30, 2005

FAA Provides Relief To U.S. Certificate Holders Assigned To Duty Outside The U.S. In Support Of Armed Forces

The FAA today published a Final Rule allowing "Flight Standards District Offices (FSDO) to accept expired flight instructor certificates, expired inspection authorizations for renewals, and expired airman written test reports for certain practical tests from U.S. military and civilian personnel (U.S. personnel) who are assigned outside the United States in support of U.S. Armed Forces operations". The Final Rule applies to all military and civilian personnel assigned overseas in support of any and all U.S. Armed Forces operations and recognizes that "[t]here are no FAA aviation safety inspectors, designated examiners, or FAA facilities readily available in the areas where these U.S. military and civilian personnel are assigned".

Th Rule "[r]eplaces SFAR 100, which expired on June 20, 2005; and ensures U.S. military and civilian personnel, who continue to preserve, protect and defend the American public, between September 11, 2001, through June 20,2010, can attain additional time for renewal of their flight instructor certificates, inspection authorizations, and airman written test reports". The Final Rule is effective June 30, 2005 through June 20, 2010.

If you have questions about the Final Rule or would like more information, you can contact John Lynch, Certification Branch, AFS-840, General Aviation and Commercial Division, Flight Standards Service, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-3844.

Posted by Greg

FAA To Solicit Customer Service Surveys For Lockheed Martin's Operation Of Flight Service Stations

The FAA today published a Notice of Proposed Information Collection in the Federal Register indicating its intent to collect customer service surveys from willing general aviation pilots regarding Lockheed Martin's operation of flight service stations. According to the Notice, "[t]he results of the survey will be used as a measure in evaluating Lockheed Martin's performance of the service".

Comments on the Notice may be mailed or delivered to the FAA at the following address: Ms. July Street, ABA-20, Room 613, Federal Aviation Administration, Information Systems and Technology Services Staff, 800 Independence Ave., SW., Washington, DC 20591 and must be received on or before August 29, 2005. You may also contact Ms. Street for more information at the above address or at (202) 267-9895.

It is nice to see that the FAA is being proactive about maintaining some oversight over Lockheed Martin's operation of the flight service stations, although this probably doesn't appease those who are opposed to any outsourcing of the flight service station operations. Also, surveying customers regarding their experiences could end up being simply "lip service" if the FAA does not act on the feedback it receives through the surveys. Personally, I will be curious to see whether this is another situation where private industry can perform the functions better and cheaper than government or whether operation of flight service stations really should remain a government function. Time will tell.

Posted by Greg

June 29, 2005

D.C. Circuit Court Of Appeals Upholds Revocation Of Airman's Certificate Based Upon Japanese Conviction For Importing Ecstasy

The D.C. Circuit Court of Appeals has upheld the NTSB's revocation of an airman's certificate based upon the airman's Japanese conviction for importing the drug Ecstasy. In Donnelly v. Federal Aviation Administration, the airman was a Fed Ex pilot occupying a passenger seat on a Northwest flight from from Detroit to Nagoya. Upon arrival at Nagoya, customs officials found 6 ecstasy pills on the airman's person. He was subsequently charged and convicted in a Japanese court of importing a controlled substance into Japan.

Back in the U.S., the FAA subsequently learned of the conviction and initiated a certificate action to revoke the airman's certificate for violation of 49 U.S.C. §44710(b)(2)(revocation where an individual knowingly carried out an activity punishable, under a law of the United States or a State related to a controlled substance (except a law related to simple possession of a controlled substance), by death or imprisonment for more than one year; and an aircraft was used to carry out or facilitate the activity; and the individual served as an airman, or was on the aircraft, in connection with carrying out, or facilitating the carrying out of, the activity).

After a hearing and appeal to the full NTSB board, revocation of the airman's certificate was affirmed. The airman then appealed the revocation to the D.C. Circuit Court of Appeals arguing that "reliance on the Japanese criminal proceeding as evidence in his case was impermissible and therefore that the revocation was not supported by substantial evidence" and "the NTSB’s interpretation of 'use' of an aircraft under 49 U.S.C. §44710(b)(2) was arbitrary and capricious or contrary to law.

The D.C. Circuit held that the revocation was supported by corroborative evidence in addition to the evidence of the Japanese conviction which was unrebutted by the airman and properly relied upon by the NTSB. The Court also rejected the airman's argument that he did not "use" the aircraft because his mere presence on the plane is insufficient to say he "used" the plane in the commission of the unlawful activity. The Court noted that "[t]he statute requires, in addition to 'use' of an aircraft, that the individual either served as an airman or was on the aircraft in connection with the outlawed activity. 49 U.S.C. § 44710(b)(2)(C). Thus Congress clearly intended that one could 'use' an airplane within the statutory meaning without serving as an airman, or even without being on the plane."



Posted by Greg

June 23, 2005

What Do You Mean It Wasn't A Real Checkride?

The NTSB Board recently released an opinion affirming an ALJ's denial of an airman's application for airplane multi-engine land rating for his private pilot certificate. In Petition of Beamer, the FAA denied the airman's application based upon its inability to determine if the airman possessed the necessary qualifications to hold an airman certificate. Apparently the FAA Inspector with whom the airman took his checkride was in the FAA’s Certificate Management Office (“CMO”) for Delta Air Lines, in Atlanta, overseeing Delta’s operations under its FAA-issued operating certificate but was not in fact authorized to administer checkrides. The airman appealed the FAA's denial and then further appealed the ALJ's denial of his petition.

On appeal, the Board noted "that petitioner’s attempts to litigate the scope of Inspector Spych’s authority are not cognizable. It is unfortunate that petitioner was apparently led by Inspector Spych to wrongly believe that he was receiving an official, sanctioned FAA practical test, particularly so because petitioner incurred expenses to rent a multi-engine aircraft for the 2.4-hour flight portion of the practical test. Nevertheless, this is a safety proceeding, and the Administrator, as head of the regulatory agency that issues airman certificates, is entitled, solely at her discretion, to designate who is authorized to evaluate the qualifications of airman applicants on her behalf." I guess this rules out asserting any "apparent authority" arguments against the FAA. Not surprisingly, Inspector Spych is also currently subject to an FAA personnel action.

More interestingly and to the point is a footnote to the Board's opinion stating that "[w]e admit some dismay that petitioner has gone through all the effort involved in this proceeding, when he could have simply sought another, valid practical examination through the FAA’s local Flight Standards District Office or an authorized Designated Pilot Examiner." I agree. Whether the airman should have known that Inspector Spych was not authorized to administer checkrides is open to debate. However,when the airman found out the inpsector was not authorized, why didn't he just retake the checkride with a designated examiner who was authorized? What a waste of time and resources to appeal a denial when the remedy is so much quicker and easier.

I suspect that something else must have been going on that was not explained in the Board's opinion. Maybe the airman didn't think he could pass the checkride with another examiner. Maybe he just has too much time on his hands. Maybe he just likes arguing. Whatever the case, based upon what I personally believe to be a lack of good judgment exhibited by the airman in unduly burdening the administrative appeals process, I am happy he is not flying around multi-engine aircraft.

Posted by Greg

June 22, 2005

When Must You Report An Aircraft Accident Or Incident

An airman recently asked me whether he needed to report an aircraft “mishap” in which he was involved to the FAA or NTSB. When I told him it would depend upon exactly what type of “mishap” he was referring to, he provided me with a more detailed explanation of what had happened. With this information in hand, and a quick review of 49 CFR Part 830 (also known as NTSB Rule 830), I was able to tell him that he did not need to report his “mishap”.

If you would like to know more about when you do and do not need to report an aircraft "mishap", read my latest article on aircraft accident and incident reporting here.

Posted by Greg

June 21, 2005

Proposed AC 23-25 Available For Comments

The FAA today published a Notice of availability; request for comments AC 23-25 on Standard Airworthiness Compliance Checklists for Part 23 Projects. The AC provides a standard compliance checklist for Part 23 Type Certificate, Amended Type Certificate, and Supplemental Type Certificate projects and includes the typical methods of compliance with the regulations. The checklists created using the information in this AC are intended to complement the Guides for Certification of Part 23 Airplanes (ACs 23-8B, 23-16A, 23-17B, and 23-19) and other more project specific guidance currently available for Part 23 certification.

As always, "[t]his AC describes an acceptable means, but not the only means, of compliance with 14 CFR part 23. The material in this AC is neither mandatory nor regulatory in nature and does not constitute a regulation." Comments are due no later than August 22, 2005. Although not currently available for download, the AC should be available in the near future here. For more information, you can contact Mark S. Orr, Federal Aviation Administration, Small Airplane Directorate, Regulations & Policy, ACE-114, 901 Locust Street, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4151; fax: 816-329-4090; e-mail: mark.orr@faa.gov.

Posted by Greg

June 20, 2005

Use Of FAA Approved Computerized Flight/Duty Time Tracking Program Does Not Guarantee Compliance

In a recent civil penalty case, the ALJ rejected an air carrier's argument that its use of an FAA-approved computerized recordkeeping system combined with the fact that the FAA found no violations of the flight, duty and rest time regulations in 14 C.F.R. Part 121, subpart Q proves that it implemented the approved system properly. In the case In the matter of: Trans States Airlines, Inc., Trans States' Principal Operations Inspector performed an inspection of the carrier's flight and duty time records contained in the carrier's Bornemann computerized software system. During that inspection, the POI determined that the records contained in the system did not accurately detail the flight and duty times for the Trans States' management and instructor personnel. As a result, the FAA sought to impose a $35,000 civil penalty for the carrier's failure to maintain current and accurate records, as required by 14 C.F.R. § 121.683.

At the hearing, Trans States argued that it had complied because it used an approved computerized software system and none of the management/instructor personnel had violated the flight, duty and rest time regulations in 14 C.F.R. §§ 121.470 and 121.471. The ALJ rejected this argument holding that the carrier had to make sure that the records contained in its Bornemann system were accurate for all flight personnel, even those who were in compliance with the flight, duty and rest regulations.

The ALJ noted that "neither the carrier nor the FAA inspector could determine whether these pilots were in compliance with the flight, duty and rest time regulations, without investing considerable time to contact the individual pilots and/or cross-check the computerized records against other types of records" in spite of the fact that [a]n ordinary person would have known that the flight, duty and rest records were not current and could not be used to determine whether these pilots were in compliance with the flight and duty limitations and rest requirement, and therefore, did not meet the requirement of Section 121.683(a)(1)." He also felt the $35,000 civil penalty sought by the FAA was too high and reduced it to $25,000.

Computers are great, but they can only do so much. If the human interaction is not what it should be, the computer's effectiveness will be limited. The phrase "garbage in, garbage out" comes to mind. This seems like a "no-brainer" to me, as I think it did to the ALJ. However, Trans States has filed a petition for review with the 8th Circuit Court of Appeals and which is still pending. I will be curious to see how the 8th Circuit views Trans States' arguments and whether they are familiar with the "garbage in, garbage out" theory.

Posted by Greg

June 16, 2005

FAA Publishes List Of NDB Approaches For Cancellation

The FAA today published a list of the NDB approaches it intends to cancel in its ongoing actions to cut costs. According to the FAA, it will save approximately $19,000.00 per year for each cancelled approach. The NDB's being eliminated are apparently either unnecessary or redundant of other navigational aids. Additionally, the money saved will supposedly allow the FAA to focus on satellite navigation (GPS) to a greater extent. However, with its pending budgetary crisis, it is questionable how the money being saved will be actually be re-allocated at the end of the day.

For a listing of the approaches being cancelled, you can review the Final Rule containing the approaches being cancelled here.

Posted by Greg

June 14, 2005

FAA Issues Guidance On Part 135 Operational Control Responsibilities

The FAA today released Notice 8400.83 relating to operational control responsibilities for part 135 operators. The Notice is being sent to all FAA Principal Operations Inspectors ("POI's") for use in "their certificate management and surveillance of operations by part 119 certificate holders" operating under part 135 and is intended to provide POI's "with information concerning the appropriate use of fictitious business names (doing-business-as or DBAs) by part 135 air carriers and commercial operators." This Notice doesn't come as a surprise following the February 2005 crash at Teterboro airport. (As a side note, the FAA also issued an emergency order suspending the part 119 certificate holder's certificate following that accident in part based upon the operational control issues addressed in the Notice. You can read more about that case here).

In the Notice, the FAA focuses on how an air carrier exercises operational control and also discusses the use of DBAs that may have no apparent business connection to the air carrier (one of the issues in the Darby case). The FAA states that a part 135 operator "may not franchise or lease out its authority to engage in part 135 operations to third parties. Persons and entities not certificated by the FAA to engage in part 135 operations may not be directly or indirectly authorized by a part 135 operator to conduct flights under its name or under a fictitious business name placed by the operator on its certificate." The Notice then discusses the nine characteristics the FAA believes constitute operational control and also identifies five other characteristics the FAA believes "may affect whether a part 135 operator properly maintains operational control..." Regarding the DBA issue, the Notice provides POI's with specific items they must review and inspect to ensure that part 135 operators are properly using such DBA's.

In general, the Notice is likely to result in greater scrutiny of part 135 operators entering into management type agreements/relationships, as well as their intra-company structuring and use of DBA's. Part 135 Operators should review the Notice in advance and be able to answer/address questions posed by POI's relating to these issues. If you have questions regarding the notice, you can contact AFS-200, at (202) 267-8166.

Posted by Greg

June 13, 2005

NTSB Board Critical Of FAA's Service Procedures In Enforcement Actions

In a recent NTSB opinion, Administrator v. Ordini, the Board criticized the FAA's practices relating to service of Orders of suspension/revocation on certificate holders. Although the Board upheld Judge Pope's dismissal of the airman's appeal from an order of suspension as untimely, it noted that "this case provides us with an opportunity to make some general observations about the need for improvement in FAA’s practices and policies concerning service." The Board pointed out that the majority of orders do not note the date of service nor do they include a certificate of service. Thus, the certificate holder is not readily provided with a date certain from which to calculate the twenty day appeal period.

Further, the Board noted "that some of the FAA orders we have reviewed do specify the service date in one or more of these ways, and we commend the FAA for the clarity of those orders,"... but "the FAA’s practices are inconsistent among, and even within, its regions. Thus, there is clearly room for further improvement." The Board concluded that "we think many of the orders issued by the FAA still create a significant potential for confusion regarding determination of the appeal-filing deadlines. This potential confusion could be reduced or eliminated by more careful attention to the format and wording of these orders."

Additionally, Board member Healing wrote a concurring opinion that was equally as pointed as her dissenting opinion in Administrator v. Tu which identified the "flawed" system used by the FAA. Member Healing begins by stating "[t]his case once again illustrates how the FAA’s reliance on a flawed system of delivery can cause confusion and potentially unwarranted damage to an airman’s livelihood." After discussing the flaws in the system, Member Healing concludes that "[i]t is unfortunate that we have to dismiss cases on procedural grounds for late appeals. If we had in place a system of delivery in which we had confidence and assurance that recipients have been actually and properly served, it would make these decisions much easier and remove the ambiguity that continually clouds these appeals. I would urge the FAA to examine its process and seek solutions to repair this flawed notification delivery system."

The Board's opinion along with Member Healing's concurring opinion make it very clear that the FAA's current procedure has problems and is not acceptable. Unfortunately, the Board does not have the ability to dictate policy for the FAA. It is required to follow the rules. Hopefully someone at the FAA will pay attention to this opinion, if they haven't paid attention to the other recent cases addressing this issue. However, don't hold your breath waiting.

Posted by Greg

June 10, 2005

What Do You Do With Your Airline Ticket When The Airline Ceases Operation?

The Department of Transportation today published a Notice on Honoring Tickets of Insolvent Airlines Pursuant to the Requirements of Section 145 of the Aviation and Transportation Security Act offering "guidance to the aviation industry regarding the responsibility pursuant to section 145 of the Aviation and Transportation Security Act of certain air carriers to transport under certain conditions the ticketed passengers of a carrier that has ceased operations on a particular route or routes due to bankruptcy or insolvency". The Notice is in a question-and-answer format and updates and expands upon advice previously provided to airlines and the public about Section 145.

DOT also reconsidered its earlier estimates of the direct costs to carriers of providing alternate transportation required by Section 145 ($25.00 one-way and $50.00 round-trip) and decided that the maximum amount that a carrier may charge a passenger accommodated under the law should be increased to $50.00 each way. With respect to long-haul international flights, when a carrier ceases operations without having paid the foreign government's fees and taxes on the ticket on behalf of the passenger, if the carrier providing alternate transportation is required to pay the tax, then the $50 may be increased by the amount the foreign government directly assesses the carrier. It is important to note that DOT is not requiring that the carrier charge all or a portion of these fees. However, given the current state of the Part 121 airline industry, I would be shocked and amazed if a carrier didn't charge the full amount allowed.

For further information regarding the Notice or the requirements of Section 145, you can contact Dayton Lehman, Jr., Deputy Assistant General Counsel, or Jonathan Dols, Supervisory Trial Attorney, Office of Aviation Enforcement and Proceedings (C-70), 400 7th Street, SW., Washington, DC 20590, (202) 366-9349.

Posted by Greg

June 09, 2005

Former America West Pilots Found Guilty Of Operating Aircraft While Intoxicated

A Florida jury has returned a guilty verdict against both of the former America West pilots for operating an Airbus 319 while intoxicated. This isn't a big surprise. I am not sure about Florida law, but I know this decision is consistent with Minnesota law regarding being in control of a motor vehicle for DWI purposes. The threshold for establishing control is very minimal. If the law in Florida is similar, I am sure the jury found it very easy to decide that the pilots were in control of and operating the aircraft.

I would have been surprised if the jury had actually bought into the argument that the pilots were not "operating" the aircraft. After all, the pilots had to have completed multiple operational and systems checks prior to push-back. Not to mention the fact that regardless of who was steering the aircraft during pushback, the pilots still had sufficient control of the Airbus that they could have started the engines if they so desired.

It will be interesting to see whether the defendants appeal the verdict and also what type of sentence the judge imposes.

Posted by Greg

June 07, 2005

IRS To Publish Guidance For Taking Deductions For Entertainment Use Of Business Aircraft

On June 13, 2005, the IRS will publish a Notice providing guidance for taking deductions for entertainment use of business aircraft. This Notice is intended to clarify the changes imposed by the Jobs Creation Act of 2004 relating to these types of deductions. The Jobs Act effectively reversed the earlier Sutherland Lumber tax case which provided greater deductibility for aircraft expenses even if the aircraft were used for entertainment purposes more than for strictly business purposes. The deductions were not limited by the amount of income imputed to the individuals using the aircraft. As a result, a deduction greater than the amount included in the recipient’s income was allowable.

The Notice explains what types of activities are considered entertainment and provides the procedure for applying the JOBS act in this situation. It also provides specific examples applying the JOBS act. You can review an unpublished version of the Notice here. The official notice will be published in the Federal Register on June 13. The Notice will be effective June 30, 2005. Comments to the Notice must be received on or before August 1, 2005.

Posted by Greg

June 06, 2005

WI Court Of Appeals Affirms Dismissal Of Deep Vein Thrombosis Claim

The Wisconsin Court of Appeals has affirmed a trial court's dismissal of a state common-law negligence claim alleging that an airline negligently failed to warn passengers about the dangers of deep vein thrombosis ("DVT") holding that such claims are impliedly preempted by the Federal Aviation Act of 1958, 49 U.S.C. § 40101. In Miezin v. Midwest Express Airlines, Inc., the Court held that the imposition of state standards would conflict with the federal law and objectives of the comprehensive scheme of federal regulation applicable to the aviation and the airline industry.

The Court felt that "[t]he pervasive regulations concerning the warnings that must be given to airline passengers indicate that 'Congress left no room for the States to supplement' these regulations." and "[i]f state requirements for announcements to airline passengers were not impliedly preempted by the Federal Aviation Act, each state would be free to require any announcement it wished on all planes arriving in, or departing from, its soil." It concluded that "on the narrow topic before us - warnings that are given to airline passengers - we conclude that the Federal Aviation Act impliedly preempts the application of state common-law negligence standards to failure-to-warn claims like that presented here."

It is important to note that the Court did not decide whether a state claim for failure to warn passengers of air travel risks is entirely preempted, or, is preempted to the extent that a federal standard must be used but that state remedies are available. Since Miezin did not claim that Midwest violated any federal standards in failing to give a warning about DVT, this issue was not before the Court.

Posted by Greg

NTSB Board Dismisses Airman's Untimely Appeal Of Emergency Revocation Order

The NTSB Board continues to practice strict adherence to the timing requirements for appealing an FAA emergency revocation order. In Administrator v. DeLuca, the FAA issued an emergency revocation order on November 1, 2004 revoking all of the airman's certificates. The order was sent via regular and certified mail, and via Federal Express delivery. However, it wasn't until April 1, 2005 that the Board received a letter from the airman appealing the emergency revocation and attempting to justify his delay in filing the appeal with the explanation that he had been out of the country.

The ALJ granted the FAA's motion to dismiss the appeal as untimely. He relied upon the airman's statement that he "forgot to open all of the letters that were sent to me" in holding that the airman failed to exercise the required diligence and thus did not have good cause for his delay in appealing the emergency revocation. The Board agreed with the ALJ noting that the airman admitted having access to his mail in December 2004 when he was back in the country. They also noted that the airman admitted returning home on March 15, 2005, but that he dated his notice of appeal March 25th and it was not actually received by the Board until April 1st. Based upon this evidence, the Board held that the airman had not demonstrated good cause for his delay in filing a notice of appeal.

This decision is consistent with Board precedent. The "out of the country" argument has been raised before and has been equally unsuccessful. Also, I don't think the airman did himself any favors with some of his admissions. However, this case is once again a good example of how failure to attend to personal affairs, in this case reading your mail, can have dire consequences if FAA action against you or your airman certificates is involved.

Posted by Greg

June 03, 2005

Revised APIS Rules Require Reporting Of Both Arrivals And Departures

Effective Monday June 6, 2005, the Advance Passenger Information System ("APIS") operated by U.S. Customs and Border Protection will require not only transmission of manifest information for passengers and crewmembers onboard commercial vessels and aircraft in advance of arrival in the U.S., but operators will now be required to transmit information in advance of departure from the U.S. Operators will also be required to transmit information for crewmembers and non-crewmembers onboard commercial aircraft that overfly the U.S.

Operators can transmit the required information online directly to CBP at its eAPIS site here. For more information on the APIS rule you can review the NBAA webpage on the subject here.

Posted by Greg

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