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A site devoted to aviation law, safety and security.

July 24, 2008

FAA Issues Final Rule Extending Duration Of Certain Medical Certificates

The FAA today published its Final Rule amending FAR 61.23(d) to extend the duration of certain medical certificates. Under the Final Rule, for airmen who obtain their medical certificates while they are under the age of 40, the duration of a third class medical is extended from 36 calendar months to 60 calendar months (five years) and the duration of a first class medical is extended from six calendar months to 12 calendar months. The extended durations are effective as of today, July 24, 2008, and also apply to medical certificates that were issued prior to today.

As a result of the extended durations, a medical certificate that was issued prior to today's effective date and expired under the old rule, but that would otherwise continue to be valid under the Final Rule, will be valid from July 24, 2008 until it would expire under the Final Rule. However, it does not appear that the Final Rule is retroactive. Thus, for a previously issued medical certificate whose duration is extended by the Final Rule, the Final Rule does not retroactively cover any gap in time between when that medical certificate may have expired under the old rule and today's effective date.

If you would like further information regarding the Final Rule, 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; Judi.M.Citrenbaum@faa.gov. Also, you can download a nice, printable summary card explaining the impact of the revised rules from the AOPA website here.

Posted by Greg

July 23, 2008

Florida Mechanic Pleads Guilty to Falsifying Maintenance Records

According to a Department of Transportation Office of Inspector General report, on July 18, 2008, the owner and operator of Engine Air, Inc., pled guilty to falsifying maintenance records for the overhaul of aircraft engines. Apparently the mechanic continued to repair general aviation aircraft engines and return them to service as airworthy even though the mechanic's A&P certificate had previously been revoked for falsification of engine repair documents. In connection with his plea, the mechanic admitted he illegally returned an engine to service that was to be used on an aircraft belonging to a commercial air carrier.

Although the mechanic hasn't been sentenced yet, it will be interesting to see what type of sentence is imposed. Perhaps the sentence will be similar to a 2007 Alabama case in which a court barred a mechanic guilty of similar charges from working in the aviation industry during his 5 year probation period. Unfortunately, that won't be much help to the owners of the aircraft engines that the mechanic falsely returned to service. Those owners will all need to have the engines re-inspected and properly returned to service in order for them to be airworthy. An ugly and expensive situation all the way around!

Posted by Greg

Three Additional Countries Accede To The Cape Town Convention

According the the International Registry, Zimbabwe, Luxembourg and Saudi Arabia have now acceded to the Cape Town Convention, including the Aircraft Protocol. To date, 21 contracting states have fully ratified the treaty including Afghanistan, Albania, Angola, Cape Verde, Columbia, Ethiopia, India, Indonesia, Ireland, Kenya, Malaysia, Mexico, Mongolia, Nigeria, Oman, Pakistan, Panama, Senegal, South Africa, UAE and the USA. The Registry expects additional contracting states to be added during 2008.

Posted by Greg

July 17, 2008

10th Circuit Court Of Appeals Rejects Ineffective Assistance Of Counsel Argument In Appeal Of NTSB Decision

In a recent unpublished opinion, Nadal v. Federal Aviation Administration, the airman appealed an NTSB order affirming the sixty-day suspension of his airman certificate. On appeal, one of the arguments raised by the airman was that he received ineffective assistance of counsel at the evidentiary hearing before the ALJ. In considering the argument, the Court observed that "the only context in which courts have recognized a constitutional right to effective assistance of counsel in civil litigation is in immigration cases." The Court then concluded that "[w]e see no reason to extend this right to FAA certification proceedings."

Although this case is unpublished (meaning it doesn't have direct precedential effect on other cases), it is a clear indication of how the 10th Circuit views the argument and how it will likely rule on the argument in the future.

Posted by Greg

Untimely Appeal Briefs Continue To Result In Dismissal Of Airmen's Appeals

In three recent decisions (Administrator v. Holt and Pierson; Administrator v. Griffin; and Administrator v. Hanger), the NTSB has continued its longstanding practice of dismissing airmen's appeals when the airmen fail to comply with the timing requirements for filing and perfecting an appeal. In order to appeal an ALJ's initial decision, NTSB Rule of Practice § 821.47 requires an airman to file a "notice of appeal" within 10 days of the ALJ's decision. Then, in order to perfect the appeal, NTSB Rule of Practice § 821.48 requires that an airman file an appeal brief within 50 days after the date on which the oral initial decision was rendered, or 30 days after the date on which the written initial decision or appealable order was served. An airman may request to file an appeal brief out of time, provided that request is made before the appeal brief is due. In the event that an airman files an appeal brief late, he or she must show "good cause" for the late filing in order for the NTSB to consider the appeal. However, the "good cause" standard is extraordinarily difficult to meet.

In the Hanger case, the airman's counsel argued that "[t]he appellate brief could hardly be filed in a cogent manner absent the final and signed initial decision nor the full transcript of the proceedings," and that, "the filing of the brief within the accustomed time and before receiving the full transcript and the signed edited copy of the initial decision was unachievable." However, the Board determined that the full transcript was mailed by priority mail to the airman's counsel over two weeks before the appeal brief was due. The Board also observed that even if the transcript had been mailed later, "this would not suffice to establish good cause for the filing of an untimely appeal brief, particularly in the absence of a request to file a brief out of time before the brief is due." Finally, the Board noted as its final nail in the coffin that the airman's counsel was provided a written copy of the Board’s appeal procedures (basically implying that counsel should have known better).

Airmen and their counsel must ensure that either their notice of appeal and appeal brief are timely filed or, in the event that it is not possible for the appeal brief to be filed in time, file a request to file the brief out of time. Otherwise, an airman will be forced to argue "good cause" for the late filing and, as we unfortunately know from NTSB precedent, this argument will, more often than not, be unsuccessful.

Posted by Greg

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