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April 24, 2007

Timely Filing Of Appeals Continues To Be An Issue With NTSB

The issues of whether an appeal was filed in time or, if it wasn't, whether good cause existed for the delay, continue to plague airman and perplex the Board. In fact, the Board recently remanded a case so that a more complete factual record could be developed in order for the Board to be able to properly analyze these two issues.

In Administrator v. Lavigne, the FAA issued an order suspending the airman's ATP certificate for 90 days for allegedly violating FAR 91.13 (careless and reckless). The FAA sent the order of suspension to the airman by certified mail on November 22, 2005. However, the Postal Service returned the certified mail to the FAA as "unclaimed" on December 10, 2005. Subsequently, on December 15 the airman's counsel filed a notice of appeal. The FAA then filed a motion to dismiss the airman's appeal as untimely arguing that service of the order of suspension was accomplished on November 22, 2005, and that, pursuant to Rule 30(a) of the Board’s Rules of Practice (requiring that notice of appeal be filed within 20 days), the airman's appeal was due no later than December 12, 2005.

In response, the airman argued that she did not receive the November 22, 2005 order and that service of the order of suspension by certified mail was thus not accomplished because the order was returned unclaimed. As a result, the airman argued that the Board’s precedent regarding actual or constructive notice applied and her appeal was thus timely.

In analyzing the FAA's motion, ALJ Pope strictly applied 49 U.S.C. § 46103(b) (date of service made by certified or registered mail is the date of mailing) and determined that the airman's notice of appeal was untimely. He then determined that the airman did not demonstrate good cause for her untimely filing because her failure to collect her certified mail sooner demonstrated a "lack of due diligence on the certificate holder’s part in monitoring … her mail." ALJ Pope then granted the FAA's motion and dismissed the airman's appeal.

On the airman's appeal of the dismissal, the NTSB observed that the following questions needed to be resolved: "(1) whether the Administrator achieved service by certified mail even though it was returned unclaimed; (2) if not, whether the Administrator otherwise served respondent with a copy of the order; (3) if the Administrator did serve respondent with the order, when such service occurred so as to determine whether respondent’s notice of appeal was timely filed; and (4) if respondent’s appeal was untimely filed, whether she has demonstrated good cause for her tardiness."

Prior to addressing the questions, the Board made it a point to observe that it was aware of the recent U.S. Supreme Court case, Jones v. Flowers (an agency must use a method reasonably calculated to reach the intended recipient for notice to be effective), and mindful of its long-standing precedent contained in Administrator v. Beissel (good cause required for untimely appeal), as well as the actual or constructive notice doctrine contained in Administrator v. Corrigan.

Based upon this precedent, the Board observed that the underlying record did not contain sufficient evidence for it to answer the questions before it: "For example, on this record, it appears that the Administrator solely relied upon certified mail to provide respondent with notice of her order of suspension. Moreover, without evidence of any other efforts by the Administrator to provide notice to respondent, or evidence regarding the timing and method of respondent’s receipt of actual notice of the Administrator’s order, we are also unable to assess accurately the relevance of Carlos, supra, and our pre-Corrigan precedent regarding actual or constructive service to the facts in this case."

As a result, the Board remanded the case to ALJ Pope for further proceedings regarding the timeliness of the airman's notice of appeal, and, if it is deemed untimely, whether the airman nonetheless acted with due diligence after receiving such notice so as to demonstrate good cause for the tardy filing.

Although this is not a complete victory for the airman, perhaps ALJ Pope will pay more attention to her arguments on remand and properly apply the applicable law and precedent. However, I wouldn't be surprised to see this case back before the Board after remand. And that wouldn't necessarily be a bad thing. With a more complete record, perhaps the Board will be able to establish some NTSB precedent that will clarify the notice issue and require the FAA to use reasonable methods under all circumstances to provide notice to airman of orders of suspension or revocation.

Posted by Greg

April 20, 2007

Order Revoking Medical Certificate Negates Stay Of Order Suspending Airman Certificates

A recent NTSB decision resulted in a paradoxical outcome for the airman. In Administrator v. Bennett the Board was faced with an airman's request for a stay, pending appeal, of an ALJ's order suspending his ATP certificate for 90 days, suspending all of his other airman certificates for 60 days and revoking his medical certificate. In analyzing the airman's request, the Board first stated its policy with respect to stays pending judicial appeals:

"We generally grant a stay when a suspension of less than six months [180 days] is affirmed, and consistently deny stays in cases involving certificate revocation because revocation incorporates a conclusion that an airman lacks the qualifications required of a certificate holder. Cases involving suspensions of six months or more are evaluated on a case-by-case basis, considering the seriousness of the violations."

Applying this standard, the Board granted the airman's request for a stay with respect to the suspension of his airman certificates, but denied his request for a stay of the order revoking his medical certificate. Noting the paradoxical result of its decision, the Board commented in a footnote that:

"Because of the range of sanctions imposed on respondent, across different certificates, our adherence to precedent results in respondent's retention of pilot certifications but a loss in the ability to utilize them. We are cognizant that the practical result of our refusal to stay the revocation of respondent’s medical certificate will be that respondent likely cannot exercise the privileges of his airman certificates, suspension of which have technically been stayed. This outcome is consistent with the precedent of this Board."

This is a good example of winning a battle, but losing the war. Unfortunately for the airman, his victory in obtaining a stay of the suspensions of his airman certificates pending his appeal is negated by the Board's unwillingness to grant a stay of the revocation of his medical certificate. However, from a legal perspective, it is helpful to know that the Board will be consistent in the application of its policy regarding stays of orders suspending a certificate for less than 180 days, regardless of whether application of the policy results in a paradoxical outcome.

Consistency in the application of law/policy is, for the most part, a good thing, whether you agree with the law/policy or not. With consistent application, at least you know what to expect.

Posted by Greg

April 19, 2007

FAA Changes Definition Of Certain Light Sport Aircraft

In a direct final rule published today, the FAA is revising certain aspects of its definition of light sport aircraft. The changes expand the definition so that lighter-than-air aircraft with a 1,320-pound MTW limit will be considered light sport aircraft and a light sport aircraft intended for water operation may now have "retractable" landing gear (as opposed "repositionable" landing gear in the current regulation).

The FAA believes that the direct final rule will "result in a common land-based LSA maximum takeoff weight limit and allow the LTA LSA industry to design and build safe, functional LTA aircraft." Further, by allowing retractable landing gear for LSA intended for operation on water, the rule change "recognizes the realities of the operation of these LSA and will also enhance the growth of that industry."

In the absence of adverse comments, the direct final rule will be effective June 4, 2007. Comments to the final rule must be received by the FAA on or before May 21, 2007. If you would like more information, you may contact Larry Werth, Federal Aviation Administration, Aircraft Certification Service, Small Airplane Directorate, ACE-114, 901 Locust, Room 301, Kansas City, MO 64106; telephone 816-329-4147; fax: 816-329-4090; e-mail:

Posted by Greg

April 18, 2007

Airman's Pro Se Representation In Enforcement Action Results In 120 Day Suspension

In a classic example of why an airman should retain an aviation attorney to represent him or her in an FAA enforcement action, the NTSB recently affirmed a 120 suspension of a private pilot's certificate after he represented himself ("pro se") in the enforcement proceeding. In Administrator v. Danko, the FAA charged the private pilot with violating FARs 61.56(c)(flight review), 91.13(a)(careless and reckless), 91.409(a)(annual inspection), and 91.203(a)(1)(airworthiness certificate) and issued an order suspending the airman's certificate for 120 days. The airman, representing himself without the aid of an aviation attorney, appealed the order to the NTSB.

In his answer to the FAA's complaint, the airman admitted the majority of the factual allegations which were then deemed established. Subsequently, during the course of discovery and in later submissions by the airman, the airman made statements that effectively admitted the remaining allegations in the complaint. For example, with respect to the allegation that the annual inspection was not performed when required the airman stated "TIME FLIES. AN ANNUAL WAS DUE IN 2003. I WAS TARDY IN GETTING IT DONE (2004). MY MISTAKE." In addressing the flight review claim the airman responded that "SINCE 1999 MUCH OF MY FLYING HAS BEEN DONE WITH A CFI. I COULD HAVE BEEN SIGNED-OFF (BFR) MANY TIMES. NOT HAVING IT DONE OFFICIALLY WAS AN OVERSIGHT ON MY PART."

Based upon the airman's answer and subsequent statements, the ALJ found that no material issues of fact were present (since the airman had effectively admitted to all of the allegations). The ALJ then granted the FAA's motion for summary judgment and affirmed its order of suspension. The NTSB subsequently rejected the airman's arguments on appeal finding that, indeed, no issues of material fact were present and the ALJ acted appropriately in entering summary judgment.

Additionally, the Board rejected the airman's apparent argument that his pro se representation should somehow justify reversal of the ALJ's decision. The Board observed that the Office of Administrative Law Judges informed the airman it was advisable to have an attorney for the proceeding the Office even provided a pamphlet to the airman that stated, "...If an airman can afford it, it is advisable to have legal representation...." The Board then noted, albeit in the context of a hearing, "[t]hat an attorney may have argued his case more effectively or presented evidence differently is not a sufficient reason to require a rehearing."

In enforcement actions, the FAA has the burden of proving its allegations by a preponderance of the reliable, probative and substantial evidence. However, in this case, the airman clearly made the FAA's case for it. And, unfortunately for the airman, the fact that such errors occur during pro-se representation, or even representation by counsel for that matter, by itself, is not grounds for appeal. Although representation by an aviation attorney in the matter may not necessarily have changed the ultimate decision by the ALJ, it is quite likely that the airman would have at least had the opportunity to fully respond to the FAA's case and present his own at a hearing on the merits.

Posted by Greg

April 17, 2007

Submission To A Request For Re-Examination Precludes Later Claim That The Request Was Unjustified

In a recent NTSB opinion, Administrator v. Vargas, the Board affirmed an ALJ's entry of summary judgment affirming the FAA's emergency revocation of the airman's mechanic certificate. The case arose out of the FAA's issuance of a request for re-examination regarding the airman's mechanic certificate. After receiving the request, the airman submitted to the re-examination, which resulted in an unsatisfactory performance by the airman. Approximately one month later, the airman submitted to a second re-examination that was again unsatisfactory. The FAA then initiated an emergency revocation proceeding to revoke the airman's mechanic certificate.

The airman appealed the emergency revocation order. Prior to a hearing, the FAA moved for summary judgment and requested that the ALJ affirm its order revoking the airman's mechanic certificate. In response, the airman argued that the FAA had not established cause for the re-examination and that the testing associated with his original qualification for his mechanic certificate was adequate and otherwise legitimate. The ALJ granted the FAA's motion and affirmed the emergency revocation order. The airman then appealed the ALJ's decision to the full NTSB Board.

On appeal, the airman repeated the arguments he made in response to the FAA's motion for summary judgment. However, the Board rejected his arguments noting that the arguments became moot as soon as the airman submitted to the re-examination. It went on to cite its well established precedent that "[T]he only relevant question after the [reexamination] test has been given is not whether the Administrator’s doubts about the airman’s competence were reasonably justified, but, rather, whether his competence was in fact successfully demonstrated."

The Board concluded that the airman's failure to establish a genuine dispute regarding his submission to, and subsequent failure of, two re-examinations in combination with the fact that revocation in such circumstances is consistent with the FAA's written sanction guidance, supported the ALJ's entry of summary judgment in favor of the FAA.

Although this case is an unfortunate decision for the airman, at least the Board's decision does a nice job of recognizing an airman's instinctive opposition to a request for re-examination and then explaining the necessity for the request when an airman's qualifications are in doubt:

"It is understandable that a certificate holder whose qualifications are perceived as having come under attack for reasons beyond his control may be displeased, even resentful, because of the possible burden and inconvenience that a reexamination might entail. At the same time, we would hope that such certificate holders would eventually appreciate that whatever personal hardships they may face are far outweighed by the risks to the public that may flow from permitting aircraft to be serviced by the inadequately trained or unqualified. We would add, moreover, our view that the Administrator's efforts to ensure the competence of certificate holders where genuine doubts arise should be applauded, not reviled."

If you find yourself on the receiving end of a request for re-examination, don't panic. First, understand your rights (you can do this by reading my article on the subject here). Next, as this case shows, if you believe that the FAA's request is unjustified, you will need to dispute that issue with the FAA prior to submitting to the re-examination. If you don't, and then you submit to the re-examination, you will not be able to raise that defense in the future.

Posted by Greg

April 10, 2007

FAA Proposes To Extend Duration Of 1st And 3rd Class Medical Certificates For Airmen Under 40

The FAA today published a Notice of Proposed Rulemaking containing proposed revisions to 14 CFR Part 61 that would extend the duration of 1st and 3rd class medical certificates for airmen under 40 years of age. In addition to other technical amendments, the FAA proposes to amend 14 FAR 61.23(d) to extend the duration of first- and third-class medical certificates for individuals under the age of 40 by increasing the duration of validity from 6 months to 1 year on first-class medical certificates and from 36 months to 60 months on third-class medical certificates. According to the FAA, "this would reflect the FAA's assessment of the current, appropriate interval for younger airmen" and "[i]t also would decrease routine workflow thereby allowing the FAA to focus on the most safety-critical certification cases and provide more efficient service to other applicants waiting to be processed."

Comments to the NPRM are due on or before June 11, 2007. If you would like further information regarding the NPRM, you may contact Judi Citrenbaum, Office of the Federal Air Surgeon, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-9689; e-mail:

Posted by Greg

April 09, 2007

9th Circuit Holds That FAA Must Use Method Reasonably Calculated To Reach An Airman To Notify Of Suspension

The 9th Circuit Court of Appeals has followed the recent U.S. Supreme Court Opinion in Jones v. Flowers in holding that due process requires the FAA to use a method reasonably calculated under all of the circumstances to reach an airman when providing notice of a suspension or revocation. For more information regarding this case and its implications for airmen appeals of FAA orders to the NTSB, please read my article on the topic that, in addition to appearing in the spring 2007 edition of the Lawyer-Pilot Bar Association's Journal, is also available here.

Posted by Greg

April 05, 2007

Pilot Is Charged With Negligent Homicide Arising Out Of Aircraft Accident

According to a listing on the Wisconsin Circuit Court Access website, a private pilot in Wisconsin has been charged with negligent homicide under Wis. Stat. 940.10(1) for the death of a passenger when the pilot's aircraft crashed after striking power lines. The NTSB factual report states that on August 28, 2004, the pilot was giving rides in a Boeing A75 when the aircraft struck power lines over the Wisconsin River near Wisconsin Rapids, Wisconsin, and subsequently impacted the water. The aircraft sustained substantial damage. Although the pilot received minor injuries, unfortunately his passenger died in the accident.

After completing its investigation, on July 7, 2005 the NTSB issued its probable cause finding which determined that the accident was caused by the pilot's improper in-flight decision when he decided to fly at a low altitude over the river and his failure to maintain clearance from the power lines. Subsequently, on January 29, 2007 criminal charges were filed against the pilot in Wood County, Wisconsin.

This case highlights an airman's potential criminal liability arising out of the operation of an aircraft. Although criminal prosecution in the aftermath of an aircraft accident has always been available to the government, the decision to prosecute has been problematic in all but the clearest of cases because it is oftentimes difficult to distinquish between cases of negligence and mere accidents. In this case, I think the airman's admission that he was flying only 40-50 feet above the water coupled with the death of his passenger strongly influenced the prosecutor's determination that this was a case of negligence rather than merely an accident.

An additional issue that arises in this circumstance is the conflicting rights and responsibilities of an airman in an NTSB investigation versus a criminal investigation. By complying with his or her obligations in an NTSB investigation, the airman may end up providing incriminating evidence that could be used against him or her in a subsequent criminal prosecution. Not a good situation. If you find yourself in this situation, you should retain an aviation attorney who is also familiar with criminal proceedings to assist you in complying with your obligations while still protecting your rights.

Posted by Greg

April 04, 2007

FCC Ban On Cellular Telephone Use In Flight To Continue

The FCC yesterday released an Order terminating the proceeding in which it was considering relaxing 47 CFR 22.925's ban on the use of cellular telephones on aircraft in flight. According to the Order, the FCC feels a decision on the matter would be premature at this time. The FCC's decision is based upon: (1) the insufficient technical information that would allow the FCC to assess whether the airborne use of cellular phones may occur without causing harmful interference to land-based networks; (2) the lack of data that would allow the FCC to evaluate the potential for interference between PED (personal electronic device) operations onboard aircraft and land-based wireless systems; and (3) the fact that airlines, manufacturers, and wireless providers are still researching the use of cell phones and other PEDs onboard aircraft. However, the Order also indicates that the FCC would re-visit the issue once appropriate technical data is available for review.

In the absence of action by the FCC, the FAA's position on the issue will remain the same: The FAA does not expressly prohibit the use of cellular telephones in flight, but it has indicated its support of the FCC regulation in AC 92.21-1A. It is also important to note that 47 CFR 22.925 does not prevent the use of cellular telephones while the aircraft is on the ground. As long as the wheels are still touching the ground, the regulation does not prevent you from using your cellular telephone. However, keep in mind that airline or charter operator procedures may be more restrictive. Finally, even if the operator and/or pilot in command allows the use of cellular telephones on the ground, he or she is still required to make a non-interference determination before they may be used.

Posted by Greg

April 03, 2007

FAA's Office Of Chief Counsel Issues Draft Letter Of Interpretation Regarding Known Icing Conditions

The FAA's Office of Chief Counsel today published a Draft Letter of Interpretation regarding "known icing conditions". The Letter is a response to an AOPA request that the Chief Counsel's office rescind an earlier letter of interpretation issued by the Eastern Region that defined "known icing conditions" in a manner that could have the effect of placing severe constraints on when individuals in aircraft without deicing equipment could fly. (The Eastern Region stated that "high relative humidity" constitutes known icing conditions, which meant that in high relative humidity conditions when the temperature is near or below freezing, pilots would have to fly an aircraft with deicing equipment.) Rather than rescinding this narrow interpretation, the Chief Counsel's office published a draft interpretation seeking comments on its proposed interpretation of the term "known icing conditions".

Although the Letter appears to remove the rigidness of the Eastern Region's interpretation, it doesn't provide a precise definition of what constitutes "known icing conditions". The Letter begins its analysis by restating the NTSB precedent which provides that "known icing conditions exist when a pilot knows or reasonably should know of weather reports in which icing conditions are reported or forecast". It then states that any assessment of "known icing conditions" is fact-specific and "[w]hether a pilot has operated into known icing conditions contrary to any limitation will depend upon the information available to the pilot, and his or her proper analysis of that information in connection with the particular operation (e.g., route of flight, altitude, time of flight, airspeed, and aircraft performance characteristics), in evaluating the risk of encountering known icing conditions."

Known icing conditions will likely exist "[i]f the composite information indicates to a reasonable and prudent pilot that he or she will encounter visible moisture at freezing or near freezing temperatures and that ice will adhere to the aircraft along the proposed route and altitude of flight." The Letter also reiterates that a pilot has a duty to evaluate the weather conditions both before an anticipated flight, as well as continuously during a flight. Clear as mud, right?!

At the end of the day, I am not sure this Letter helps much, other than removing the "high relative humidity" restricting language. Pilots will still need to evaluate all available information both before and during a flight in order to make a reasonable determination as to whether "known icing conditions" are present along the proposed route of flight.

Comments to the draft letter are due no later than May 3, 2007 and depending upon the comments received, the FAA could decide to re-evaluate its position on known icing conditions. If you would like further information, you may contact Bruce Glendening, Regulations Division, Office of the Chief Counsel, Federal Aviation Administration, 800 Independence Ave., Washington, DC 20591; telephone (202) 267-3073.

Posted by Greg

April 02, 2007

Congressional Report Recommends Expansion Of Operation Safe Pilot Type Investigations

In a Congressional Report prepared on behalf of MN Representative Oberstar, the Committee on Transportation and Infrastructure Oversight and Investigations Majority Staff recommends that the FAA exercise more oversight of the medical certification process to uncover more of the falsifications that were discovered during Operation Safe Pilot. The report summarizes Operation Safe Pilot's cross-check of Social Security disability recipients against the airmen medical database and the discovery of airmen with medical certificates who were also receiving disability benefits for conditions that would otherwise be disqualifying.

In response to criticism from the DOT Inspector General, the FAA argued that pilot falsification on medical applications is not widespread and not worth the resources that would be required to expand the investigation beyond California. However, the report then observes that the FAA doesn't even "spot-check" medical applications and, in fact, penalizes airmen who do answer the application questions honestly (disclosure of a disqualifying condition could result in the FAA denying the airman a medical certificate).

The report concludes that the FAA should establish "a strategy to coordinate with providers of disability benefits to periodically sample and verify medical information provided on Airman Medical Certificate applications" and "[i]f nothing else, the knowledge that FAA is spot-checking disclosures—and that swift and meaningful consequences will follow if falsifications are found—should provide a powerful incentive for applicants to be more forthcoming on their applications for Airman Medical Certificates."

The report doesn't really reveal anything new or surprising. However, coming from Rep. Oberstar this report will likely get some attention and/or response. Don't be surprised if Operation Safe Pilot is expanded or some other mechanism is implemented to review/confirm airmen's responses on medical applications.

Posted by Greg

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