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April 29, 2008

Airman Receives 30-Day Suspension For ADIZ Incursion Even Though He Was Not PIC On Flight

An airman received a 30-day suspension of his private pilot certificate in the aftermath of an unauthorized incursion into the Washington D.C. ADIZ. In Administrator v. Blum, the FAA alleged that the airman violated FARs 91.139(c) (compliance with NOTAM), 99.7 (pilots must comply with security instruction issued for ADIZ), 91.131(a)(1) (ATC clearance required prior to entry into Class B airspace), and 91.13(a) (careless and reckless) during a flight in which he was receiving dual instruction from a certified flight instructor.

After a hearing, the ALJ affirmed the FAA's order imposing a 30-day suspension of the airman's private pilot certificate. The ALJ also rejected the airman's defense that he was eligible for a waiver of sanction based on his filing of an ASRP report, since the ALJ determined that the violations were not inadvertent. On appeal, the airman argued that the FAA did not meet its burden of proving that he was the PIC on the flight and that the ALJ erred when he refused to accept the ASRP report. However, the Board rejected both arguments.

The Board observed that the FAA only needed to show that the airman operated or flew the aircraft in the Class B and ADIZ airspace. Since the airman admitted that he did, in fact, operate and fly the aircraft, the Board held that the FAA had proven the violation. (Although the FAA also tried to prove that the airman was the PIC, the Board's precedent that an instructor is the PIC on an instructional flight, even though the instructor is not necessarily the pilot who operates the controls or directs the course of a flight, precluded a finding that the airman was the PIC).

With respect to the airman's ASRP affirmative defense, the Board concluded that the airman had not met his burden of proving both the factual basis for the defense and the legal justification. In order to qualify for the ASRP waiver of sanction, a violation must be both "not deliberate" and "inadvertent." The Board observed that "[w]hether he intended to violate the FAR, respondent was not unaware that he was flying into restricted airspace. That he chose not to ensure that he was complying with the restrictions and limitations of that airspace does not transform his actions from deliberate or advertent to not deliberate or inadvertent."

Finally, even though the airman did not raise an affirmative defense of reasonable reliance, and the Board does not ordinarily entertain arguments not presented to it, the Board determined that the airman did not meet the conditions of the reasonable reliance defense. It concluded that "as a qualified certificated pilot and, here, the flying pilot, respondent had an independent duty to comply with the requirements of the airspace in which he operated."

This case should be a reminder to certificated airmen that they must be vigilant at all times. If you are manipulating the controls of an aircraft or operating the aircraft, you can be held responsible for the conduct of the flight even if you are not technically the PIC. That is, unless you can present a stronger reasonable reliance defense than was discussed here.

Posted by Greg

April 10, 2008

Bipolar Diagnosis Is Fatal To Airman's Application For Medical Certificate

The NTSB recently affirmed the FAA's denial of an airman's application for a first-class medical certificate based upon an established medical history of bipolar disorder. In Petition of Hilton, the FAA denied the airman's application based upon an approximately 9 year old diagnosis of bipolar disorder which disqualified the airman under FARs 67.107(a)(3) (first class medical), 67.207(a)(3) (second class medical), and 67.307(a)(3) (third class medical). The airman appealed the denial and, after a hearing, the ALJ affirmed the FAA's denial. The airman then appealed the decision to the full Board.

On appeal, the airman argued that the bipolar disorder diagnosis was "invalid" and, thus, should not disqualify him from receiving a medical certificate. Specifically, the airman argued that the psychiatrist who originally diagnosed him with bipolar disorder "did not follow the specific criteria" set forth by the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition ("DSM-IV"). However, the Board agreed with the FAA's psychiatrist's opinion that there "is more to a psychiatric diagnosis than just looking at the DSM-IV" and her concurrence with the airman's bipolar diagnosis.

Additionally, the airman argued that his lack of symptoms of bipolar disorder outweighed the prior diagnosis and rendered him eligible for a medical certificate. However, in dismissing this argument the Board stated that "[w]hile petitioner apparently does not currently exhibit symptoms of bipolar disorder, we find that petitionerís original diagnosis, and the evidence of symptoms of bipolar disorder, a specifically disqualifying condition, outweigh the absence of symptoms at the current time." The Board further held that, regardless of a petitionerís current condition, a diagnosis of bipolar disorder is, in and of itself, sufficient to deny a petitionerís application for a medical certificate.

This case is certainly consistent with Board precedent. However, what I found interesting was the ALJ's initial decision. Early in the decision the ALJ confirmed the significant burden faced by an airman in appealing the FAA's denial of an application for medical certificate when he stated that the airman "is faced with a formidable if not almost insurmountable, obstacle here in this proceeding." No surprise there.

But then, in an apparent attempt to empathize with the airman, the ALJ made the, in my opinion, cruel statement that "perhaps the door isn't completely closed yet where your certification is concerned." False hope, or not? I, along with many others, I suspect, would be curious to know under what circumstances the ALJ would actually find that the airman qualified for a medical certificate given the existence of the bipolar diagnosis. Unfortunately, Board precedent on the issue certainly doesn't provide a lot of hope in that regard.

Posted by Greg

April 09, 2008

Employee's Termination After Being Directed To Report For Random Drug Test Does Not Excuse Subsequent Failure To Appear For Test

A mechanic recently found himself on the wrong end of an emergency revocation order when he was ordered to submit to a random drug test but then failed to appear for the test. In Administrator v. Hendrix, the FAA issued an order revoking the airman's mechanic certificate with airframe and powerplant ratings based upon a finding that the mechanic refused to submit to the testing. The mechanic appealed the order and subsequently admitted the FAA's principle allegations in his responses to the FAA's discovery requests. The FAA filed a motion for summary judgment arguing that no material issues of fact existed and that it was entitled to a judgment affirming the emergency revocation order. The ALJ agreed and affirmed the FAA's order.

On appeal to the full Board, the mechanic argued that his termination of employment (apparently he quit after being directed to report for testing but before he reported to the testing center) removed him from the scope of 49 C.F.R. 40.191, which refers to "employee" and "employer." Thus, the mechanic argued, he was not required to submit to the drug test and, therefore, did not refuse when he failed to appear for the test. The Board took little time rejecting this argument. It held that "[h]e was an employee at the time he was directed to submit to random drug testing; he was therefore required to submit to the test. What he did after the directive to the drug testing center has no bearing on his regulatory duty to submit a urine specimen for testing."

I am not surprised by this decision. If the Board were to agree with the mechanic's argument, this would create a huge loophole in random drug testing compliance because any employee who was smart enough to know that he or she had a risk of a positive test (and granted, not all employees who would test positive are that smart) would simply quit after receiving the the random drug testing directive. These employees would be able to circumvent the random drug testing requirement and merely have to start looking for another job in the aviation industry, rather than losing their airmen certification and being precluded from continuing to work in the industry at all.

Posted by Greg

April 04, 2008

"Collision Hazard" Is Distinguishable From "Near Midair Collision"

In a recent NTSB decision, the Board clarified the "collision hazard" requirement of FAR 91.111. In Administrator v. Round, the FAA issued an order suspending the airman's ATP certificate for 120 days based upon alleged violations of FARs 91.13(a)2 (careless and reckless) and 91.111(a) (operating near aircraft). The charges arose out of an incident in which the airman approached a Mitsubishi MU-2 aircraft while flying his red T-33 aircraft, overtook the MU-2 from underneath, and pulled up very close in front of the MU-2. After a hearing, the ALJ affirmed the FAA's order of suspension and the airman then appealed the decision to the full Board.

On appeal, the airman argued that the ALJ erred in his credibility determination regarding the distance between the two aircraft. The airman argued that the distance was greater than 500 feet and, thus, according to the definition of "near midair collision" in the Airman's Information Manual ("AIM"), no collision hazard was present. (Section 7-6-3.b of the AIM defines the term "near midair collision "as an incident associated with the operation of an aircraft in which a possibility of collision occurs as a result of proximity of less than 500 feet to another aircraft, or a report is received from a pilot or a flight crew member stating that a collision hazard existed between two or more aircraft.)

In rejecting this argument, the Board observed that the AIM is only advisory in nature and not regulatory. It went on to note that the AIM definition is not determinative of whether FAR 91.111 has been violated because "it does not matter whether respondent caused or almost caused a near midair collision; it does not matter whether respondent came within 50 feet or 5,000 feet of the MU-2. What matters is whether respondent operated his aircraft so close to another aircraft as to create a collision hazard." The Board also referenced previous holdings indicating that, in addition to proximity, an experienced pilot's evasive action to avoid a collision can also be acceptable evidence of a potential collision hazard. As a result, the Board affirmed the ALJ's credibility determinations.

On a separate note, the Board took issue with a comment the ALJ made during his explanation of his credibility findings. The ALJ stated that the airman was "entitled to less credibility, particularly in light of his history involving a similar incident" (a reference to an admission by the airman regarding a prior incident in which an aircraft piloted by the airman approached a law enforcement helicopter that an acquaintance was piloting, overtook it from underneath, and pulled up very close in front of the helicopter, when the helicopter was only 300 feet above the ground). The Board concluded that such "evidence would not likely be allowed under the Federal Rules of Evidence, which generally forbid the admission of evidence of other crimes, wrongs, or acts to show that a person acted in conformity therewith." However, the Board did not feel that this error was prejudicial to the airman.

Although the airman asserted an interesting argument, the Board's rejection of the argument was fairly predictable. What is ironic is that the result would likely be the opposite in a similar situation if the FAA argued that the AIM definition applied. In that situation the FAA would presumably argue, and the Board would likely agree, that the Board had to defer to the FAA's use of the AIM definition to interpret the regulation. Fair? No. Level playing field? No, again. But that is what happens when the Board is required to give deference to the FAA.

Posted by Greg

April 03, 2008

NTSB Wants To Include Unmanned Aircraft In Accident/Incident Reporting Requirements

According to a Notice of Proposed Rulemaking ("NPRM") published yesterday, the NTSB is proposing to amend 49 C.F.R. 830 concerning notification and reporting requirements with regard to aircraft accidents or incidents to require reporting of an "unmanned aircraft accident." The amended rule would define an "unmanned aircraft accident" as "an occurrence associated with the operation of a public or civil unmanned aircraft that takes place between the time that the aircraft is activated with the purpose of flight and the time that the aircraft is deactivated at the conclusion of its mission, in which any person suffers death or serious injury, or in which the aircraft receives substantial damage."

According to the NTSB, the NPRM's additions to Part 830 will provide it with notification of events in which persons are injured or the aircraft sustains substantial damage and the reports will enable the NTSB "to conduct investigations, influence corrective actions, and propose safety recommendations with regard to unmanned aircraft in a timely manner."

Comments to the NPRM are due no later than June 30, 2008. If you would like further information regarding the NPRM, you may contact Dana Schulze, Office of Aviation Safety, (202) 314-6323.

Posted by Greg

FAA Still Pursuing 75 Out Of 2,000 Mechanics Issued Certificates By St. George Aviation

According to a April 3, 2008 USA Today Article, the FAA is still trying to resolve 75 of an initial 2,000 cases in which students were suspected of having fraudulently obtained mechanic certificates and/or ratings from St. George Aviation in Florida. As you may know from several of my past posts, the FAA requested that all 2,000 certificate holders submit to re-examination unless the certificate holder had obtained some type of advanced rating/certification (e.g. inspection authorization) from a different source subsequent to the rating/certification he or she obtained from St. George. The article indicates that the FAA has refused to identify how many of the 2,000 certificate holders passed, failed or voluntarily surrendered their certificates. However, based upon NTSB opinions, we know that at least several have had their certificates suspended for failure to submit to re-examination and/or revoked for failing the re-examination.

The article does not focus on the FAA's enforcement efforts against the mechanics, per se. Rather, the situation is identified as only one component in the larger picture of airline aviation safety, or questionable safety depending upon your perspective, being painted by FAA whistleblowers and congressional investigation into the, at times, less than arms-length relationship between the FAA (the enforcement authority) and the airlines (those subject to that authority). It will be interesting to see whether the congressional investigation results in any meaningful conclusions and whether any significant changes in the relationship between the FAA and the airlines occur.

Posted by Greg

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