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May 30, 2007

ASRP Sanction Waiver Not Available For All Violations

Many airmen are familiar with the Aviation Safety Reporting Program (“ASRP”). Some view the ASRP as a “get out of jail free” card. Unfortunately, the program does have some limitations. If you would like more information on the ASRP and the circumstances under which sanction waiver is not available, you can read my latest article on the subject here.

Posted by Greg

May 16, 2007

Attorney's Incorrect Calendaring Of Appeal Brief Due Date Held To Be Good Cause In Civil Penalty Action

In a surprising civil penalty case decision, In the Matter of: Air Solutions, LLC and Air Solutions Group, Inc., the Administrator granted an attorney's "Emergency Motion for Extension of Time to File Reply Brief Out of Time" that was filed one day after the respondents' reply brief was due. In this case, the FAA appealed the decision in the underlying civil penalty action by filing and serving its appeal brief. Under 14 C.F.R. §§ 13.233(e), the respondents' reply brief was then due 35 days after service of the appeal brief, plus an additional 5 days for filing under 14 C.F.R. § 13.211(e) since the respondents were served with the FAA's appeal brief by mail. Thus, the respondents had a total of 40 days within which to file their reply brief.

However, on the day after the respondents' appeal brief was due, the respondents' attorney filed an "Emergency Motion for Extension of Time to File Reply Brief Out of Time". Respondents’ motion stated that their attorney had misinterpreted the Rules of Practice and incorrectly calendared the reply brief for a service date after the deadline. They also argued that the misinterpretation and incorrect calendaring constituted excusable neglect and further that an extension of time would not prejudice the FAA. Of course, the FAA objected arguing that the respondents had not shown good cause for the untimely filing.

However, the Administrator found that the respondents had shown good cause. According to the Administrator, the respondents' filing of their motion for an extension of time only 1 day beyond the deadline for the reply brief exhibited that their attorney acted quickly to correct the "simple human error" after discovery of the error. Additionally, the Administrator found that the FAA had not shown, or even alleged, that it would be prejudiced if the request for an extension was granted.

The Administrator cautioned that the Respondent’s explanation for the error was a marginal showing of good cause, even though sufficient under the circumstances. The decision also went on to state that "[t]his should not be construed as a holding that misinterpreting the Rules of Practice, resulting in incorrect calendaring, always constitutes good cause for a procedural default" because "[t]he facts of each case must be evaluated to determine if good cause exists in that case."

This case is a surprise to me. In almost every other case the timing deadlines for filing of appeals and appeal briefs has been strictly construed against the party filing late. Additionally, delay based upon an attorney's error has very rarely been considered excusable neglect. Perhaps this seeming break with precedent arose from the fact that this case involved a late reply brief, rather than a document perfecting appeal. Whatever the reason, it is nice to see that the respondents did not suffer from what could have been a fatal error by their attorney.

Posted by Greg

May 15, 2007

Illinois Appellate Court Affirms Dismissal Of Suit Against Lima Lima Pilots

The Illinois Appellate Court affirmed a trial court's dismissal of negligence claims based upon an exculpatory agreement in William C. Evans v. Lima Lima Flight Team et. al.. The underlying lawsuit was initiated following the death of Keith J. Evans which occurred as the result of an October 1, 1999 airplane crash during a practice session with Lima Lima, a Chicago-based formation flight team. Evans and the other Lima Lima pilots were performing a maneuver when Evans' aircraft came into contact with another team member's aircraft, damaging Evans’ aircraft and causing it to crash. Evans was killed instantly.

The executor of Evans' estate sued the individual team members alleging that the team members were negligent in the operation of their aircraft. It also sued Lima Lima, alleging that it was liable for the actions of its team members and that it was negligent for: (1) failing to have a prepared method of operation for aborting the maneuver if visual contact was lost; or (2) failing to properly instruct the pilots on procedure upon loss of visual contact; or (3) failing to alert pilots regarding the proper procedures that day.

The team members and Lima Lima moved for summary judgment arguing that Evans' claims were barred by an exculpatory agreement he had signed and by his voluntary assumption of the risk. The trial court denied the motion based upon the theory of assumption of the risk, but granted the motion based upon the exculpatory agreement and dismissed the action as to the individual team members and Lima Lima. The estate then appealed the dismissal.

On appeal, the Court rejected the estate's arguments that the exculpatory agreement did not clearly reflect the intention of the parties and that the agreement violated public policy. But, the Court only affirmed the dismissal as to the individual team members, who were members of the organizations who signed the exculpatory agreement along with Evans. This affirmed the trial court's dismissal of the claims against the individual team members and the agency liability claims against Lima Lima based upon the conduct of its team members.

However, with respect to the separate claims alleged directly against Lima Lima, the Court found that the exculpatory agreement did not release Lima Lima from liability because Lima Lima was neither a signatory or a member of one of the signatory organizations nor was it an implied beneficiary of the agreement. As a result, the Court reversed the dismissal of Lima Lima based upon the direct claims and remanded the case back to the trial court to resolve the issues of fact relating to the direct claims and Lima Lima's assumption of the risk defense.

Although exculpatory agreements are not always enforced, being able to argue that you are released by such an agreement is better than nothing. However, at a minimum, you need to be a party to the agreement or an implied beneficiary of the agreement. Unfortunately in this case, Lima Lima was neither. Perhaps after this case that will change.

Posted by Greg

May 08, 2007

DeMinimus Breach Of Drug Testing Guidelines Does Not Automatically Invalidate Positive Test

The NTSB recently reviewed some of the procedural requirements of drug testing regulations in Administrator v. Flores. After testing positive for marijuana, the FAA issued an order revoking the airman's first-class medical certificate pursuant to FARs 67.107(b)(2), 67.207(b)(2), and 67.307(b)(2). The airman appealed the order and, after a hearing, the ALJ found that the positive drug test disqualified the airman from holding a medical certificate and he affirmed the FAA's order of revocation. The airman then appealed the ALJ's decision to the full Board arguing that the positive test result was invalid because the "administration of the test and collection of the urine specimen, and subsequent chain of custody of the specimen, were contrary to DOT regulations regarding drug tests."

Initially, the Board summarized the specific procedural requirements under 49 C.F.R. Part 40 that were established to ensure the authenticity of specimen samples and the accuracy of the results from drug tests on such samples. The regulations require that the person collecting the specimens effectively restrict access to the collection materials and specimens, secure the facility against access during the procedure and keep an employee’s collection container within view of both the collector and the employee between the time the employee has urinated and the specimen is sealed. The regulations also require collectors to prevent unauthorized personnel from entering any part of the site in which urine specimens are collected or stored.

The Board then observed that "a de minimus procedural violation may not automatically render a drug test result invalid." Further, once the FAA has presented a prima facie case on the authenticity of the specimen and accuracy of the test, the airman is then required to present circumstantial or other evidence which would support a finding that the integrity of the specimen was somehow compromised.

In this instance, the Board determined that the FAA had presented a prima facie case and the airman had failed to produce any evidence or to even allege that someone compromised the integrity of his specimen. He merely argued that the slight deviations from procedure in and of themselves invalidated the test. The Board concluded that the collector had essentially complied with the testing regulations and, as a result, the positive drug test was valid and disqualified the airman from holding a medical certificate.

Posted by Greg

May 07, 2007

EAJA Attorney's Fees Applicants Are Not Guaranteed Further Proceedings

An ALJ's rejection of a request for further proceedings in connection with a application for attorney's fees under the Equal Access to Justice Act ("EAJA") was recently affirmed in Application of Downey and DeSantis. After successfully obtaining dismissal of the FAA's charges against them in the underlying enforcement action, the airmen applied for an EAJA award of attorney's fees arguing that the FAA was not substantially justified in pursuing its claims against them. The airmen also requested additional proceedings in connection with their claim that the FAA was not substantially justified. However, the ALJ denied both requests and held that the evidence presented at the underlying enforcement hearing was sufficient to establish that the FAA was substantially justified in pursuing the action against the airmen.

On appeal to the full Board, the airmen argued that the ALJ erred in refusing to order additional proceedings on their EAJA fee request. However, the Board deferred to the latitude granted to the ALJ under 49 U.S.C. 826.36 and rejected this argument. The Board observed that under Section 826.36(a), the ALJ's determination of whether an EAJA award is appropriate is usually based on the written record of the case. Further, Section 826.36(b) requires that a request for additional proceedings specifically identify the information sought or the disputed issues and explain why the additional proceedings are necessary to resolve the issues.

The Board found that the airmen had not demonstrated that further proceedings were necessary for a full and fair resolution of the EAJA attorney's fees issue. It noted that the airmen's brief did not specify why an additional hearing or further discovery was necessary for full and fair resolution of the issue, and it did not state how such further proceedings would assist the ALJ or the Board in resolving the issue. As a result, the Board concluded that the ALJ's refusal to order additional proceedings was not error because the airmen did not meet the standard required by Section 826.36.

This case makes sense. If an airman has fully developed the airman's case at the enforcement hearing, which is quite likely if the airman was successful, then the hearing record is probably sufficient for an EAJA analysis. If for some reason circumstances that were not developed at the hearing are relevant for the EAJA analysis, Section 826.36 allows for further proceedings provided that a specific explanation is given as to what information is to be obtained in the additional proceedings and how that information will assist in the EAJA analysis. However, keep in mind that the ALJ has the discretion to grant or reject further proceedings on the issue and the Board will typically defer to that discretion.

Posted by Greg

May 04, 2007

Intentional Operation Of Aircraft Into IMC Negates Sanction Waiver Of Timely Filed ASRP Form

Many airman are familiar with the Aviation Safety Reporting System. Under that program, if an airman files a program form (also somewhat inappropriately referred to as the "NASA form" since NASA is only the administrator of the ASRS program) within 10 days of an accident or incident, any sanction that may be imposed in a subsequent enforcement can be waived. However, one of the exceptions under which the waiver is not available is a situation in which the FAR violation was deliberate or intentional. A recent NTSB case illustrates the consequences of an intentional or deliberate violation and the loss of the sanction waiver that would otherwise be available with a timely filed ASRP form.

In Administrator v. Simmons, the FAA alleged that the airman violated FARs 91.13(a) (careless and reckless), 91.111(a) (causing a collision hazard), and 91.155(a) (VFR weather minimums) when he departed in VFR conditions, entered instrument meteorological conditions without activating his IFR flight plan or obtaining the appropriate ATC clearance and then created a collision hazard when he passed within 400-700 feet of a passenger carrying commercial aircraft.

After the airman failed to file an answer, the ALJ granted the FAA's motion for summary judgment and affirmed the violations as alleged by the FAA. The ALJ also determined that a hearing was required regarding the 240 day suspension the FAA was seeking to impose upon the airman. However, after a hearing solely on the issue of sanction, the ALJ affirmed the 240 day suspension and refused to waive the sanction pursuant to the airman's timely filed ASRP form, finding that the airman's operation of the aircraft in the IMC environment was not inadvertent.

On appeal to the full Board, the airman argued that the ALJ's failure to waive the sanction was error. However, the Board agreed with the ALJ's conclusion that "when one places oneself at a significantly increased risk of committing a violation, then the violation is foreseeable and therefore not inadvertent." It observed that "the ASRP will not obviate the imposition of a sanction when an operator’s conduct is deliberate or intentional such that it reflects a 'wanton disregard of the safety of others' or a 'gross disregard for safety.'"

The Board then reviewed the facts underlying the violations and found that the close proximity to the other aircraft at the time of the relevant events presented a significant safety issue. Additionally, the Board felt that the airman's entry into the IMC area very soon after taking off, and his climbing over 2,000 vertical feet while in foreseeable IMC conditions without having activated his IFR flight plan or obtaining the requisite ATC clearance indicated that the airman's encounter with the IMC area was foreseeable and reckless. As a result, the Board concluded that waiver of sanction would be inappropriate.

The ASRS program can provide a great benefit for airmen. I encourage airmen to file an ASRS form after any flight in which a potential FAR violation occurred or that involved circumstances that may have affected the safety of the flight. However, the program is not without limit. Airmen are well advised to be familiar with and use the program, but to also undersand the circumstances under which sanction waiver will not be available.

Posted by Greg

May 03, 2007

NTSB Accident Briefs Allow Assessment Of An Airman's Post-Accident/Incident Conduct

A recent NTSB accident brief raises some interesting issues regarding an airman's post-accident/incident conduct. The accident involved a 15,000 hour commercial pilot who took off in his C-210 and shortly thereafter realized that he was unable to retract or extend the main landing gear. Fortunately for the airman, the nose landing gear continued to function normally and this allowed him to return to the airport and land on a grassy area adjacent to an asphalt runway with the main landing gear only partially extended. The aircraft slid across the grass until it came to rest upright, tilting to the left and leaning on the left horizontal stabilizer.

The airman then had the aircraft towed to a hangar where he manually locked the main landing gear in the down position. Here is where it gets interesting. Although the airman indicated that the horizontal stabilizer sustained minor damage, he nonetheless elected to depart the airport and flew to another airport without incident. Subsequently, several photos taken by witnesses revealed that the aircraft's left horizontal stabilizer had sustained structural damage, and, in fact, the outboard section had bent upwards.

It is unclear how the NTSB learned of the accident. It may be that the airman provided notification pursuant to 49 C.F.R. Part 830 (for more information regarding accident/incident reporting requirements you can read my article on the topic here). Or perhaps one of the witnesses taking pictures notified the FAA, who then notified the NTSB. What is clear to me, is that notification was likely required given the extent of the damage to the horizontal stabilizer.

What is more important for the airman is not how or whether the NTSB was notified, but rather that the FAA likely learned of the accident and post-accident flight either as a result of the NTSB notification or by some other method. This should raise the concern about possible enforcement action. Probably not relating to the accident itself, since the NTSB was unable to determine the cause of the gear malfunction. But certainly with respect to the airman's post-accident flight.

If the damage to the horizontal stabilizer was in fact substantial, which it probably was if the stabilizer was bent upwards, then the aircraft was not in an airworthy condition when the airman flew it post-accident. At a minimum, this could expose the airman to claims that he violated FARs 91.7 (operating an unairworthy aircraft) and, of course, 91.13 (careless and reckless).

What could the airman have done differently? Ideally, the airman should have had an A&P inspect the aircraft to determine whether the damage rendered the aircraft unairworthy. If the A&P determined that the aircraft was airworthy, but later investigation revealed to the contrary, at least the airman could then assert his reliance upon the A&P's opinion as a defense. If the aircraft was unairworthy, the airman would then have two options: 1) Leave the aircraft at the airport until the aircraft is repaired and returned to service; or 2) Obtain a ferry permit from the FAA to fly the aircraft to another airport where the repairs can be performed.

These NTSB accident briefs rarely tell the whole story. The brief doesn't include pictures or a more detailed description of how the horizontal stabilizer appeard to the airman post-accident. So we don't know exactly what the airman based his assessment on when he determined that the damage was minor. Also, we don't know whether the FAA is pursuing enforcement action against the airman in this case. It wouldn't surprise me if it is. However, the limited information that is provided in an accident brief can give us insight into some do's and do not's in a post-accident/incident situation.

Posted by Greg

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