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January 31, 2008

When Is An Airman's Criminal Plea Deal Not Such A Good Deal?

I am frequently contacted by airmen regarding the potential implications various criminal matters may have on their airman certificates. Not surprisingly, most criminal defense attorneys have no idea about the impact certain criminal convictions may have on an airman's ability to continue to fly. Unfortunately, without this knowledge, when a criminal defendant is offered a plea deal that would be considered a "good deal" under normal circumstances, that deal could adversely affect the airman's ability to keep flying.

For example, if an airman is facing a drug-related felony charge and the prosecutor offers to allow the airman to enter a guilty plea to a drug related misdemeanor charge, this may be considered a good deal. That is, until you consider the impact that plea deal could have on the airman's operating privileges. Unfortunately, such a plea would still result in a conviction for a drug-related offense, albeit a misdemeanor. The airman would then be required to disclose this conviction to the FAA on his or her next application for medical certificate. Under FAR 61.15, the FAA could then, and quite likely would, deny the airman's application for a medical certificate, as well as any other applications for certificates, ratings or authorizations for a period up to one year. The FAA could also suspend or revoke any other certificate held by the airman. Not such a good deal after all.

What could an airman do in this situation? Aside from the obvious answer that the airman should avoid ending up in this situation, the first thing the airman needs to do is to educate his or her criminal defense attorney regarding the effects a criminal conviction might have on the airman's ability to fly. If the airman can obtain a plea deal that "continues" the criminal charge without the airman having to plead guilty, that may be the best "deal" he or she can receive under the circumstances. (This is sometimes referred to as a "continuance for dismissal" or a "continuance without prosecution" and does not result in a conviction.). However, if the prosecutor isn't amenable to such a plea and is looking for a conviction, the next option would be to try and reach a deal under which the airman enters a plea of guilty to a charge that is not drug-related. Although the conviction would still be reportable on the airman's next application for medical certificate, such a conviction would not be addressed by FAR 61.15.

Defending yourself in a criminal prosecution is no easy matter. However, in order to do so effectively, you need to have all of the information you need in order to protect your rights. If you can hire a criminal defense attorney who understands aviation, that helps. If you can't, you may want to hire an aviation attorney to advise/consult with your criminal defense attorney to make sure you have the information you need to properly defend yourself and to protect your ability to fly.

Posted by Greg

January 29, 2008

Aircraft Mechanic's Liens

When an FBO or maintenance shop provides storage, repair, maintenance or other services to an aircraft and the aircraft owner doesn't pay for those services, whether because the bill is disputed or the owner doesn't have the money, the FBO or maintenance shop typically has the ability to assert a lien against that aircraft and/or retain possession until payment is received. This is commonly referred to as a mechanic’s lien or artisan's lien. Although each state has its own laws governing aircraft mechanic's liens, the general process for perfecting and enforcing an aircraft mechanic's lien is similar throughout the states. For an overview of non-state-specific aircraft mechanic's lien law, please read my latest article on the topic here.

Posted by Greg

January 24, 2008

NTSB Is Not Required To Hold A Hearing When No Issues Of Material Fact Are In Dispute

The NTSB recently affirmed an ALJ's grant of summary judgment and entry of an order suspending an airman's commercial pilot certificate. In Administrator v. Kizer the FAA issued an order suspending the airman's commercial pilot certificate for 60 days based upon alleged violations of FARs 135.293(a)2 and (b) (Part 135 pilot must pass annual written and oral test), 135.299(a) (Part 135 pilot must pass annual competency check/flight review), and 91.7(a) (aircraft must be in airworthy condition). The airman appealed the order to the NTSB and requested a hearing.

Prior to the hearing, the FAA served the airman with Requests for Admissions regarding the key allegations of the FAA's complaint and to which the airman failed to respond. The FAA then filed a motion to have those key factual allegations deemed admitted based upon the airman's failure to respond. When the airman again failed to respond, the ALJ granted the FAA's motion. With the key factual allegations deemed admitted, the ALJ subsequently granted the FAA's motion for summary judgment. The airman then appealed the grant of summary judgment to the full Board.

On appeal, one of the airman's arguments, among many, was that he was denied his "constitutional right to a hearing." The Board rejected this argument, along with the rest of his arguments. The Board observed that "where no genuine issue of material fact exists, a hearing would be meaningless" and an airman's right to contest the facts underlying an order at a hearing "does not logically extend to facts which are not disputed." Further, the Board held that "the statutory right to a hearing does not preclude the Board’s law judges from limiting the scope of a hearing to the adjudication of those matters over which a genuine controversy continues to exist after the parties have filed their pleadings." In the absence of such a dispute, the Board affirmed the ALJ's grant of summary judgment.

Unfortunately, the opinion does not disclose why the airman missed several opportunities to respond to the FAA. He could have to responded to the requests for admissions. Next, he could have responded to the FAA's motion to have the requests deemed admitted by either responding to the requests or objecting to the motion in general. Finally, he could have responded to the FAA's motion for summary judgment by arguing that a factual dispute existed. It seems to me that if you are going to request a hearing, (1) you better have some a factual or legal basis for the appeal; and (2) you should actively pursue and defend your rights. Although I am not sure whether the airman had a legitimate basis for appeal in this case, I am certain that the airman failed to properly take advantage of the opportunities to defend his rights.

Posted by Greg

January 23, 2008

NTSB Chastises FAA In Mechanic's Untimely Appeal Of Order Of Suspension

In a recent opinion issued by the NTSB, the Board has reiterated its recommendation that the FAA make procedural changes to its issuance of orders to reduce the number of untimely appeals the NTSB is forced to dismiss. In Administrator v. Graham, the FAA issued an order suspending a mechanic's inspection authorization certificate for 90 days. The mechanic appealed the order, but his appeal was submitted to the NTSB two days late. In response to the FAA's subsequent motion to dismiss the appeal as untimely, the airman argued that the FAA's order was unclear as to its date and the resulting due date for his appeal. He also argued that the untimely filing was due to the "excusable neglect" of his attorney. Relying upon Board precedent, which only allows untimely filings if based upon "good cause," the ALJ granted the FAA's motion and dismissed the airman's appeal of the FAA's order. The mechanic then appealed the dismissal to the full Board.

On appeal, the mechanic repeated the arguments he submitted in opposition to the FAA's motion to dismiss. Not surprisingly, the Board rejected the mechanic's arguments based upon the same well established precedent upon which the ALJ relied. However, the Board went on to chastise the FAA for its procedures and handling of the case. The Board stated that "the deadline for submitting an appeal of the Administrator’s order may confuse respondents who are inexperienced in interpreting such administrative rules. We admonish the Administrator to reconsider the standard text included in orders, and encourage him to amend the text to include a definition of 'service' and to include the actual deadline on which each respondent’s appeal is due." With respect to the case record, the Board observed that "[w]here the Administrator seeks to establish that the Board must dismiss a case based on a respondent’s lack of timeliness, the Administrator should be prepared in the future to provide a certificate of service, an affidavit from a person who mailed the subject notification or, at a minimum, establish the office’s common course of business through the affidavit of someone who regularly affixes date stamps and handles the transmittal of such orders."

The Board then concluded that the FAA "should have included all the evidence regarding the timeliness of the appeal, including, where direct evidence is not available, items such as affidavits as to the notification and mailing practices of the FAA regional counsel’s office that is serving process in a particular case" and "should have produced more evidence, including a more particularized declaration from the office that dealt with the order." However, since the mechanic admitted the tardy filing and did not actually contest the date of mailing of the order, the Board found that the minimal evidence of mailing presented by the FAA was sufficient to establish that fact.

We can learn several things from this case. First, keep in mind that the FAA has the burden of proof. Demand that the FAA prove its case and provide the additional evidence that the Board seems to be indicating it will require regarding proof of service. If you do not contest the date of service, the Board may simply accept the date on the order. Second, remember that untimely appeals must be supported by "good cause." Board precedent clearly establishes that this is more than simply being confused about the due date for the appeal or that the appeal wasn't mailed/sent when intended. The Board will require something more compelling, and an airman's attorney's mistake will not save the appeal.

Posted by Greg

January 22, 2008

TSA Approval Required For Foreign Students Seeking Aircraft Simulator Training

I was recently asked by a flight training facility whether they could provide aircraft simulator training to foreign students for large, civil aircraft (over 12,500 lbs) without the necessity of the students obtaining TSA approval. They also asked whether associated ground school training would require TSA approval.

As you may know, 49 C.F.R. 1552 governs flight training for aliens and dictates that aliens obtain TSA approval before they may begin flight training. Under 49 C.F.R. 1552.1, training in an aircraft simulator is considered flight training. According to a TSA Interpretation, this includes training that "could be used" for a certificate or rating. However, it does not include recurrent training or ground training. Ground training includes classroom or computer-based instruction in the operation of aircraft, aircraft systems, or cockpit procedures, but does not include instruction in an aircraft simulator. Further, with respect to small, civil aircraft (less than 12,500 lbs.), an earlier TSA Interpretation states that flight training only applies to training for a recreational, sport pilot, private pilot certificate, a multi-engine rating, or instrument rating and does not include recurrent training such as flight reviews, proficiency checks, or other checks whose purpose is to review rules, maneuvers, or procedures, or to demonstrate a pilot's existing skills.

Based upon these regulations and the TSA's interpretations, the flight school would not be able to provide aircraft simulator training to foreign students until the students obtain TSA approval. However, they would be able to provide ground instruction to the students pending receipt of TSA approval.

Posted by Greg

January 19, 2008

Isle of Man Establishes Aircraft Registry

Here is an interesting piece of information I ran across recently: The Isle of Man, located in the British Isles, has established its own aircraft registry. The registry started accepting aircraft registrations in May, 2007. According to the registry website, the registry was established primarily for private and corporate jet register, but will also accept helicopters. However, the registry does not register aircraft below 5,700 kgs other than for residents or businesses operating from the Isle of Man. Aircraft receive an "M" number designation comparable to the "N" number designation received by aircraft registered with the FAA Registry.

The registry touts the Isle of Man’s favorable tax regime, a zero rate of corporation tax, the resulting lower costs of operating aircraft from the Island, and the quality of service they are able to offer due to the smaller size of the registry. Although The Isle of Man is neither a member state nor an associate member of the European Union, under Protocol 3 to the United Kingdom's Treaty of Accession the Isle of Man is part of the customs territory of the Union. This means that industrial and agricultural goods move freely in trade between the Island and the Union. Presumably, this would also include aircraft.

This isn't for everyone. However, the Isle of Man may present a lower cost registration/importation alternative for corporate jet aircraft operating in the European Union. If you would like more information, you may contact the registry at: Department of Trade & Industry, Isle of Man Government, Hamilton House, Peel Road, Douglas, Isle of Man, IM1 5EP, British Isles, Tel + 44 (0)1624 682358, Fax + 44 (0)1624 682355, Email aircraft@gov.im.

Posted by Greg

January 14, 2008

9th Circuit Court Of Appeals Affirms Federal Pre-Emption Of Deep-Vein Thrombosis Failure To Warn Claims

In Montalvo v. Spirit Airlines, a group of consolidated cases, the 9th Circuit Court of Appeals affirmed a district judge's grant of summary judgment on behalf of various airlines facing state law claims that the airlines failed to warn passengers about the danger of developing deep vein thrombosis ("DVT"). The district court determined that the Federal Aviation Act of 1958, 49 U.S.C. 40103 and associated regulations promulgated by the FAA regarding aviation safety, preempt state law standards of care, including any state-imposed duty to warn about the risks of DVT.

The 9th Circuit held that "[t]he FAA and the relevant federal regulations preempt Plaintiffs’ failure to warn claim, because the FAA preempts the entire field of aviation safety through implied field preemption. The FAA and regulations promulgated pursuant to it establish complete and thorough safety standards for air travel, which are not subject to supplementation by, or variation among, state laws." The Court noted that "[h]ere, the regulations enacted by the Federal Aviation Administration, read in conjunction with the FAA itself, sufficiently demonstrate an intent to occupy exclusively the entire field of aviation safety and carry out Congress’ intent to preempt all state law in this field."

The Court also concluded that "[b]ecause the FAA preempts the entire field of aviation safety from state and territorial regulation, the Airlines are under no obligation to warn of the risk of developing DVT, absent a federal mandate to do so." Since no existing federal regulations require airlines to warn about the risks of DVT, the airlines had no duty to warn.

Posted by Greg

January 07, 2008

Be Careful Drafting LLC Statements In Support Of Aircraft Registration

I recently had the opportunity to review an "LLC Statement in Support of Aircraft Registration" prepared by another attorney. This statement is required when the registered owner of an aircraft is a limited liability company ("LLC"). As you may know, 49 U.S.C. §44102 requires that the owner of a U.S. registered aircraft be a U.S. Citizen. The LLC Statement helps the FAA confirm that the LLC and its members (owners) are all U.S. citizens as defined in 49 U.S.C. § 40102(a)(15).

When the LLC Statement is prepared, it is important to make sure the information provided to the FAA is not only accurate, but also consistent. For example, if the LLC Statement states that the LLC is managed by its members, then the individual signing the form needs to be a member and his or her title on the signature block should include the word "member." If the individual's title is listed as "manager" or some other officer (e.g. CEO, CFO etc.) the FAA will not accept the statement and will require either a corrected LLC Statement, organizational documents to show that the individual signing is a member of the LLC, or both.

This type of situation can result in additional administrative time and energy to correct the situation and, ultimately, will delay registration of the aircraft with the FAA. To avoid this delay, it is best to either review the FAA's guidelines to confirm that the LLC Statement is prepared properly or consult with an aviation attorney familiar with aircraft registration matters. For further information on LLC aircraft registration you can review the FAA's information sheet on the topic here.

Posted by Greg

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