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February 26, 2009

Is An Airman Required To Disclose An Expunged Conviction On An Application For Medical Certificate?

A recent NTSB opinion hints at, but does not expressly state, how the Board would view an airman's failure to disclose an expunged criminal conviction on an application for medical certificate. In Administrator v. Spyke, the FAA issued an emergency order revoking all of the airman's certificates based upon his alleged failure to disclose a criminal conviction on his application for medical certificate. At the hearing, the airman argued that he did not disclose the conviction because he believed that his criminal attorney had obtained an expungement of the conviction. However, the administrative law judge ("ALJ") found that the airman's conviction had not been expunged and the airman's claim that he reasonably believed otherwise was not credible. The ALJ affirmed the FAA's order of revocation and the airman appealed the decision to the full Board.

On appeal, the Board initially observed that it will not disturb the ALJ's credibility determinations "absent a showing that they are clearly not supported by the record evidence." It then found that the airman's claims that he did not attempt to ensure his conviction was expunged prior to completing his application for medical certificate and that he believed his conviction was expunged when he submitted his application were "inherently incredible." With respect to the issue of whether an airman's failure to disclose a conviction would be justified by an expungment of the conviction, the Board refused to decide the issue because the airman's conviction had not, in fact, been expunged. However, the Board did give some indication of how it might decide the issue in a situation where such a decision was required.

The Board initially stated that "we are skeptical whether an expunged felony conviction should justify answering “no” to question 18w notwithstanding an applicant’s knowledge of the underlying conviction giving rise to any expungement." However, it went on to note that if an "expungement could in some limited circumstances (depending on the terms and scope of the expungement or other deferred adjudication) exonerate an applicant on a charge of intentional falsification for answering “no” to question 18w, we think this would be in the nature of an affirmative defense that a respondent would have to prove. In other words, the exculpatory effect, if any, of an expungement would be through legal operation of the applicable terms of the expungement agreement to nullify culpability for an answer that would otherwise be factually, but not legally, incorrect."

What does this mean to airmen? First, since it did not actually decide the issue, the Board's comments are not precedent and do not guarantee how it would rule on the issue. In fact, based upon the Board's language, the Board may not even consider an expungement as a defense at all. Second, it appears that any decision relying based upon an expungement argument will be very fact-dependent and will rely heavily upon the exact terms and conditions of the expungement. Although this opinion does not give us a definitive answer on the issue, it does provide some indication of how the Board might view the issue. An airman may then be able to tailor his or her arguments accordingly. At least its something, I guess.

Posted by Greg

February 25, 2009

FAA Issues "Known Icing Conditions" Legal Interpretation

The FAA's Office of Chief Counsel recently issued a Legal Interpretation on the topic of flight into "known icing conditions." The Legal Interpretation attempts to clarify come of the confusion it has created regarding this issue in the past several years. For more information on the FAA's current position on flight into "known icing conditions," please read my latest article on the topic here

Posted by Greg

February 17, 2009

Three DUI's/DWI's In A Lifetime Will Result In Denial Of Medical Application

According a note on page 6 of the spring 2009 issue of the Federal Air Surgeon's Medical Bulletin, "[t]hree DUIs in a lifetime are considered alcoholism until proven otherwise." The Bulletin goes on to state that an airman with this history would be required to provide the FAA "with the court documents, a typewritten letter explaining the details of all of the DUI events, a typewritten accounting of the history of their alcohol consumption, and a substance abuse psychiatric and psychological evaluation." If the airman cannot "prove otherwise", an airman with this history may still be able to obtain a special issuance medical certificate if the airman can show that he/she has successfully completed treatment, abstained from use for a minimum of two years and received positive evaluations, among other things. It isn't impossible, but it will take a lot of time, effort and money.

Posted by Greg

February 10, 2009

Washington, DC ADIZ Training Now Mandatory

As of yesterday, pilots who fly VFR within 60 miles of the Washington, DC (DCA) VOR/DME must have completed the FAA's airspace awareness training. The online training course is designed to familiarize pilots with the Washington, DC Air Defense Identification Zone (ADIZ), which will be known as the DC Special Flight Rules Area (SFRA) after February 17. It is important that pilots completing the course print and retain their certificate of completion so they can later verify that they have met the requirement. The FAA, TSA, NTSB or any federal, state or local law enforcement officer may ask to see the certificate of any pilot operating in the airspace.

To complete the training course, visit the FAA web site here.

Posted by Greg

DOT Revises First-Half 2009 SIFL Rates

The U.S. Department of Transportation has revised the Standard Industry Fare Level (SIFL) rates for the six-month period from January 1, 2009, to June 30, 2009. These rates are needed in order to apply the IRS's aircraft valuation formula to compute the value of non-business transportation aboard employer-provided aircraft and impute the income of the employee as required by the Internal Revenue Service Rules Section 1.61-21(g). The SIFL rates for the six-month period from January 1, 2008, to June 30, 2008, are: 0500 miles $0.2484; 501-1,500 miles $0.1894; over 1,500 miles $0.1821; and Terminal Charge of $45.41.

If you are an employer and you fly an employee or a non-employee guest or family member on your aircraft, the flight is potentially taxable to the individual receiving the ride. The aircraft valuation formula applies on a per-flight, per-person basis and will be calculated using the distance in statute miles from where the individual boards the aircraft to where the individual deplanes.

Posted by Greg

February 05, 2009

FAA Holding Ground Safety Cartoon Contest

In an effort to promote awareness about safe ground operations, the FAA is having a cartoon contest. The contest presents you with a a 1939 vintage "Tailspin Tommy" cartoon showing two airmen who appear to be running in front of or from an aircraft. The cartoon has a blank dialog balloon for which you are to provide a "catchy or memorable" safety message. You simply fill in your message, provide your name and then click the "submit by e-mail" button and you are then entered into the contest.

The winner will be announced on March 15, 2009 and will receive a "beautifully printed and framed copy of the cartoon withthe winning entry slogan printed into the bubble." You may enter as many times as you would like. To enter the contest, click here. If you have any questions regarding the contest, you may contact Dick Engle, richard.f.engle@faa.gov, (858) 502-9882. Good luck!

Posted by Greg

February 04, 2009

Criminal Charges Filed Against Executives Arising From 2005 Teterboro Overrun Accident

According to an article in a New Jersey newspaper, The Star-Ledger, federal charges have been filed against six executives of Platinum Jet Management, LLC ("PJM"), a Ft. Lauderdale company that performed illegal charter flights back in 2005, one of which ran off the end of the runway at Teterboro. At the time, PJM was attempting to operate under the Part 135 certificate held by Darby Aviation through certain DBA arrangements. As you may recall, Darby's Part 135 certificate was subsequently revoked (see Administrator v. Darby Aviation d/b/a Alphajet International, Inc.). The accident and subsequent investigation resulted in the FAA's rabid and often overzealous "operational control" rampage.

The indictment alleges that PJM instructed its pilots to falsify weight-and-balance, and that it routinely flew commercial charter flights (allegedly more than 25) with weights that exceeded aircraft center of gravity limits. Interestingly, neither Darby Aviation nor its executives were charged in the indictment. I am not sure why it has taken them this long to bring charges. However, I will be curious to see how this case plays out.

Posted by Greg

February 03, 2009

NATA Establishes Hotline For Reporting "Illegal Charter"

According to a recent FAA Notice, the National Air Transportation Association (NATA) has set up a toll-free Hotline, funded by a grant from the FAA, for people to use in reporting suspected illegal commercial activity where an aircraft operator without an FAA Part 135 certificate is accepting compensation for transportation, in violation of both FAA and Department of Transportation regulations.

The NATA Illegal Charter Reporting Hotline is: 1-888-SKY-FLT1 (1-888-759-3581). The Hotline is staffed by an independent third-party with knowledge of the air charter industry. Reports of suspected illegal charters can be filed anonymously if desired, and the Hotline will provide all reporters with a case code for follow-up. NATA will then provide the FAA with details to initiate an investigation, and will follow up with the FAA to ensure that it is, in fact, investigating and taking appropriate action.

The original press release for the Hotline can be found here. If you have questions regarding the Hotline, you may contact Chris Monteleon at the FAA Air Transportation Division (chris.monteleon@faa.gov) or refer to the NATA website, http://www.nata.aero/.

Posted by Greg

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