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A site devoted to aviation law, safety and security.

October 30, 2007

The Value Of An Aircraft Purchase Agreement

If you are buying or selling an aircraft, whether a Cessna 152 or a Gulfstream GIV, you should use a purchase agreement. The purchase agreement can protect you in an aircraft transaction. For a discussion of the value of an aircraft purchase in a transaction that failed to close, please read my latest article discussing the case here.

Posted by Greg

October 25, 2007

Know Before You Go

A student pilot recently contacted me regarding the FAA's denial of his application for a third-class medical certificate. Apparently the airman had been taking an anti-depressant medication that, according to the airman, he didn't really need, but had been taking without adverse effect for a long period of time. When presented with Question 17(a) on FAA Form 8420-2 (medical/student pilot certificate), he disclosed this fact. Unfortunately, the anti-depressant medication was on the FAA's list of medications that automatically disqualify an airman who is taking the medication from receiving a medical certificate. As a result, and much to the airman's surprise, the FAA denied his application. Thus, his call to me.

At this point, the airman's options are limited. First, he could appeal the denial. However, given that the anti-depressant medication is automatically disqualifying, a successful appeal is highly unlikely. Next, he could request that the FAA grant him a special issuance medical certificate, which is a medical certificate with conditions or restrictions the FAA feels is appropriate to ensure that the airman is safe to fly. The FAA has discretion to issue or deny a special issuance and, if the FAA denies a request for special issuance, that decision is not appealable. Under the circumstances, the likelihood of success for this option may be limited.

A final option would be for the airman to discontinue the anti-depressant medication and then re-apply for a medical certificate. Now, I don't recommend that an airman discontinue a medication or course of treatment that he or she needs to stay healthy, regardless of whether it might allow the airman to obtain a medical. However, in this situation, if the airman truly does not need the anti-depressant medication, then replacing the medication with a non-disqualifying medication or simply discontinuing the medication may allow the airman to be issued a medical, whether unrestricted or special issuance, at some point in the future. Of course the FAA will still inquire as to the earlier denial and the airman's mental health etc. when he re-applies, but at least the airman will not be automatically disqualified.

The moral of the story is that an airman should prepare for his or her medical applications before he or she arrives at the AME's office. If the airman is suffering from a health condition or receiving medical treatment, he or she should research the issue to determine whether it will present a problem for obtaining a medical certificate. AOPA's "Turbo Medical" can help identify these issues. Better to be forewarned, and thus, forearmed.

If the airman in this example had the information he has now prior to his application for a medical certificate, he might have been able to avoid his current situation and the limited options available to him. Of course hindsight is 20/20. Regardless, I wish the airman the best of luck in obtaining a medical certificate and pursuing his flight training.

Posted by Greg

October 15, 2007

Delay In Mailing Appeal Brief Is Not Cured By Earlier Certificate Of Service

The NTSB recently dismissed an air carrier's untimely appeal of an ALJ's order affirming revocation of its air carrier certificate. In Administrator v. Angler Airways, Inc., the air carrier timely filed its Notice of Appeal May 18, 2007. The air carrier's appeal brief was then due on June 28, 2007. The air carrier filed an appeal brief along with a certificate dated June 28, 2007. However, the postmark on the envelope was dated June 30, 2007.

The NTSB began its analysis by referencing Section 821.7(a)(4) which states that where a “document bears a postmark that cannot reasonably be reconciled with the mailing date shown on the certificate of service, the document will be deemed filed on the date of the postmark.” The air carrier, on the other hand, argued that the Board consistently accepts briefs whose postmarks are within one or two days of the date on the certificate of service. In rejecting the air carrier's argument, the Board observed that the actual standard to which it strictly adheres is "a policy requiring the dismissal, absent a showing of good cause, of all appeals in which timely notices of appeal, timely appeal briefs or timely extension requests to submit those documents have not been filed.”

Since the air carrier did not provide any explanation for the postmark being 2 days later than the date on the certificate of service, did not provide any other good cause basis for the delay, nor did it submit a timely extension request for filing the brief after the deadline, the Board determined that its precedent and policy required dismissal of the air carrier's appeal as untimely filed.

Posted by Greg

October 12, 2007

ATP's Certificate Suspended For ADIZ Violation Despite Reasonable Reliance Defense

The NTSB recently upheld the FAA's suspension of an ATP's certificate for violating the Washington ADIZ. In Administrator v. Jolly, the FAA alleged that the airman had flown through the Washington ADIZ in violation of FARs 91.13(a) (careless and reckless), 91.139(c) (violating a NOTAM), and 99.7 (failure to comply with ADIZ instructions). The FAA issued an order suspending the ATP's certificate for 30 days (the standard sanction for a typical ADIZ or TFR violation). The airman appealed and, after a hearing, the ALJ affirmed the FAA's order of suspension. The airman then appealed the decision to the full Board.

On appeal, one of the defenses reiterated by the airman was that he reasonably relied upon his co-pilot, acting as second in command on the flight, to ensure compliance with the ADIZ NOTAM (e.g. to oversee all communications with ATC and to obtain clearance to enter the ADIZ), and that his reliance absolved him of the violations charged by the FAA. In affirming the ALJ's rejection of the defense, the Board noted that the doctrine of reasonable reliance is a narrow one and may apply to cases "involving specialized, technical expertise where a flight crew member could not be expected to have the necessary knowledge." It also observed that the airman asserting the defense must establish that the reliance was reasonable.

The Board then went on to discuss the circumstances that supported the ALJ's finding that the airman's reliance was not reasonable. First, the airman knew that he was adjacent to the ADIZ, and knew that he had to be on an IFR flight plan or cleared to enter the ADIZ prior to entering the restricted airspace. However, he did not ensure that he had fulfilled this duty. Next, in spite of the fact that the airman had never operated an aircraft in the area under VFR conditions, he did not question his co-pilot to ensure that they were operating the aircraft in compliance with the requirements of the NOTAM nor did he establish that he did not have the ability to ascertain whether the co-pilot had brought them into compliance with the NOTAM. (The Board felt that the airman was required to question the co-pilot based upon the fact that the airman had never operated an aircraft near the ADIZ under VFR conditions).

Finally, the Board concluded that, under FAR 91.3, the PIC of an aircraft is ultimately responsible for the operation of the aircraft. Interestingly, in a footnote to this conclusion, the Board also noted that "we will defer to the Administrator’s interpretation of her own regulations, unless her interpretation is arbitrary, capricious, or not in accordance with the law." I am not sure whether the Board was somehow trying to indicate that the FAA could interpret FAR 91.3 to override the reasonable reliance defense and that it would then be required to defer to that interpretation. If so, that would potentially open the door for the FAA to override board precedent on many issues. Such excessive deference to the FAA would certainly change the complexion of enforcement actions.

However, at least as far as this case is concerned, the outcome and the sanction are not a surprise. An airman's burden of proving the reasonable reliance defense is fairly heavy and, as with all things "reasonable", the airman's success will depend upon the facts and circumstances of the case.

Posted by Greg

October 03, 2007

FAA To Use ICAO Definition Of Runway Incursion

According to an October 1, 2007 Fact Sheet, the FAA is starting to use the International Civil Aviation Organization ("ICAO") definition of runway incursion. Prior to adopting the ICAO definition, the FAA defined an incident without an aircraft in potential conflict (e.g. an unauthorized aircraft crossing an empty runway) as a "surface incident" and not a runway incursion. Now, any unauthorized intrusion onto a runway, regardless of whether or not an aircraft presents a potential conflict, will be considered a "runway incursion."

According to the Fact Sheet, "[t]he FAA is making the change so the worldwide aviation community will have a single runway incursion definition, which in turn could help in the search to determine common factors that contribute to these incidents." Interestingly, the FAA helped ICAO come up with its definition of "runway incursion," which was adopted in November 2005.

I don't think this change means a lot for airmen, at least not in the enforcement context. Whether an event is "classified" as a "surface incident" or a "runway incursion," the FAA will likely still pursue enforcement for the associated operational violation(s).

Posted by Greg

October 02, 2007

Airmen Responsibility For Airworthiness

An airman recently asked me about a situation in which he had operated an aircraft and then shortly after his flight an inspection of the aircraft disclosed that one or more of the aircraft's systems or components were broken during the airman's flight. He was concerned regarding the risk of an enforcement action if the FAA ever learned of the situation. Under the FARs, airmen are, for the most part, responsible for the airworthiness of the aircraft they fly. As such, an airman's operation of an unairworthy aircraft could result in enforcement action by the FAA. However, just because the FAA pursues an enforcement action in this situation, that doesn't necessarily mean that the FAA will prevail. For a more detailed discussion of this issue, please read my latest article on the subject here.

Posted by Greg

October 01, 2007

FAA Issues Updated Compliance And Enforcement Program Order

The FAA today published an updated Compliance and Enforcement Program, Order 2150.3B, that replaces Order 2150.3A which was originally issued back in 1988. The new order "articulates the FAA's philosophy for using various remedies, including education, corrective action, informal action, remedial training, administrative action, and legal enforcement action, to address noncompliance with statutory and regulatory requirements enforced by the FAA. It provides for the public a written statement of the Administrator's policy guidance for imposing sanctions for violations of such requirements."

Order 2150.3B is effective today. However, the sanctions guidance in Order 2150.3B applies to violations occurring on or after October 1, 2007. Order 2150.3A applies to violations occurring before October 1, 2007. If you have any questions regarding Order 2150.3B, you should contact Cynthia A. Dominik, Office of the Chief of Counsel, Enforcement Division (AGC-300), Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-7158, e-mail Cynthia.Dominik@faa.gov.

The FAA has been promising an updated order for many years. A close reading of the 339 page Order, including the Sanction Guidance Table in Appendix B, will be necessary to determine what effect it will have on the FAA's future enforcement activities.

Posted by Greg

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