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March 27, 2009

Revocation Of Airman's Certificate Does Not Preclude Prosecution For Assault Committed With An Aircraft

The Alaska Court of Appeals recently rejected an airman's appeal from a conviction for committing multiple assaults using an aircraft. In Lamb v. State, a jury convicted the airman of assaulting multiple individuals on separate occasions by performing what I would characterize as "dive-bombing" or "strafing" runs on the individuals with his aircraft. The judge then sentenced the airman to seven years, with four years stayed, and a fine of $40,000.00. The airman appealed the conviction arguing, among other things, that the state's prosecution of him was precluded because the Federal Aviation Administration (FAA) had previously penalized him for this same conduct by revoking his airman certificate and therefore his prosecution was barred by state statute.

In its Memorandum Opinion, the Court of Appeals rejected the airman's argument. Initially, the Court reviewed the FAA's enforcement action against the airman. It noted the FAA had determined that the airman's conduct was reckless and/or careless, endangered the life and/or property of another, and exhibited that the airman lacked the qualifications necessary to hold any airman certificate. The Court also observed that the FAA deemed revocation of the airman's certificate to be a necessary remedial measure to ensure the airman did not present a continued threat to potential passengers and others who may be endangered by his operation of aircraft. The Court then concluded that "the FAA’s decision to revoke Lamb’s pilot certificate was 'based on conduct that bears a direct relation to the government’s regulatory goals or to the proper administration and enforcement of the regulatory scheme'" and, as such, was not a "conviction or acquittal" under Alaska's double jeopardy statute that might otherwise have barred the state's prosecution of the airman for assault.

This case highlights the risks of criminal prosecution an airman could face as a result of a regulatory violation, above and beyond any enforcement action the FAA may take. Granted, the airman's conduct in this case was intentional and, some may say, deserving of criminal prosecution. Unfortunately, it isn't always easy to draw the line between intentional conduct and conduct that is simply careless or negligent. Consider also the reliance by prosecutors on the FAA, whose enforcement agenda is often overly aggressive, to say the least, and you end up in a situation where criminal prosecution of airman for regulatory violations, flight and otherwise, appears to me to be more likely in the future. Add one more threat to the list of threats that general aviation is already facing.

Posted by Greg

March 26, 2009

Aircraft Lien Requires Technical Compliance With Applicable Lien Statute

In a recent case, Flight Test Associates, Inc. v. NC Aerospace Corporation, the California Court of Appeals affirmed a trial court's refusal to enforce a mechanic's lien against an aircraft where the lien claimant failed to comply with the requirements of California's Aircraft Repair Lien Law ("APLL"). The APLL requires that all work done by a repairperson be recorded on an invoice that describes all work done and parts supplied. Specifically, the law states that "[w]ork and parts shall be listed separately on the invoice, which shall also state separately the subtotal prices for work and for parts, not including sales tax, and shall state separately the sales tax, if any, applicable to each. If any used, rebuilt, or reconditioned parts are supplied, the invoice shall clearly state that fact. If a part of a component system is composed of new and used, rebuilt, or reconditioned parts, the invoice shall clearly state that fact."

In this case, the repairperson had a written agreement with the aircraft owner to perform certain work on the owner's B737. Subsequently, after the repairperson had performed work on the aircraft, a dispute arose between the parties. The repairperson filed its lien with the FAA Aircraft Registry and then obtained an order to show cause hearing at which the repairperson sought court approval to sell the aircraft at auction to satisfy the debt owed to it by the aircraft owner. At the hearing, the court asked for proof that the repairperson had complied with the lien law's invoice requirements.

The repairperson submitted the agreement between the parties that stated the services the repairperson "will provide" as well as an invoice for additional work that was performed, but not described in the parties' agreement. However, the trial court rejected this proof as insufficient. It noted that the lien law requires the repairperson to describe in an invoice "all work done and parts supplied." The court ruled that because there was no invoice describing all of the work done and parts supplied the repairperson had not complied with the lien law and, as a result, the repairperson's lien was not valid.

On appeal, the Court agreed with the trial court. The Court observed that "[a]n agreement simply listing the work that the repairperson 'will' do does not suffice because it does not, and cannot, describe 'work done' when no such work has yet been done." The Court then simply repeated, verbatim, the trial court's ruling and rejection of the repairperson's defenses, finding that the trial court had "thoroughly and painstakingly" analyzed the repairperson's failure to comply with the lien law.

This case serves as a good example of the necessity of strictly complying with a lien statute's requirements if you want to be able to enforce a lien against an aircraft. Although in some circumstances it may require substantially more paperwork and/or documentation, it is better to have more and know you have complied with a statute's requirements, rather than having less and being in the less than enviable position of having to convince a court that you "substantially complied" with the statute.

Posted by Greg

March 24, 2009

Avoiding An Untimely Appeal To The NTSB

As you may recall from past posts on the subject, the NTSB is very unforgiving of untimely appeals. In the absence of "good cause" to excuse an applicant’s failure to file a timely notice of appeal, NTSB regulations and precedent require the dismissal of the applicant’s appeal. However, in a recent case dismissing an untimely appeal, the Board provided a strategy for avoiding such a dismissal in a situation where you just can't get the notice of appeal or appeal brief filed by the deadline.

In Application of Tommy Hue Nix, the Board stated that if an extension of time is needed, all an airman need do to preserve his or her right of appeal is file a one-sentence statement so indicating. The Board also noted that "when an applicant is aware that a filing deadline may be near, he must timely ensure that the Administrator, the Office of Administrative Law Judges, and/or the Office of General Counsel is aware of any circumstances that may affect or prevent correspondence regarding the proceeding, particularly when a decision is pending."

Thus, if you know are going to be unable to file within the required deadline or some circumstances may arise that will prevent a timely filing, you should simply file a request for an extension prior to the filing deadline. This is far preferable to the daunting and exceedingly difficult burden of demonstrating "good cause" for an untimely filing.

Posted by Greg

March 13, 2009

International Operations Now Require "English Proficient" Endorsement On Airman Certificate

As of March 5, 2009, if you fly internationally you are now required to meet an ICAO standard for language proficiency and must have a an airman certificate containing an "English Proficient" endorsement. If you currently have a certificate that is paper, or that is plastic but without the endorsement, you will need to request a replacement certificate from the FAA. For airman who have a paper certificate, the replacement will kill two birds with one stone: The new certificate will be plastic, thereby complying with the FAA's February 28, 2008 Final Rule mandating that all pilots upgrade to a plastic pilot certificate by March 31, 2010, and it will contain the "English Proficient" endorsement.

You may order a replacement certificate on the FAA's website here (you will need to create a user account if you don't already have one) or you may request a new or replacement certificate by mail by writing to Federal Aviation Administration, Airmen Certification Branch, AFS-760, P.O. Box 25082, Oklahoma City, OK 73125-0082. The fee for the replacement certificate is $2.00.

Posted by Greg

March 10, 2009

Cape Town Convention Update

Five more countries have ratified the Cape Town Convention in 2009 including: China (Effective 01 June 2009); Cuba (Effective 01 May 2009) ; Kazakhstan (Effective 01 May 2009); Singapore (Effective 01 May 2009); and United Republic of Tanzania (Effective 01 May 2009). As you may recall, the Convention applies to a transaction involving (1) aircraft that are type certified to transport at least 8 persons including crew or to transport goods in excess of 2750 kilos, engines that are rated at least 550 hp or 1750 pounds of thrust, and helicopters that are type certified to transport at least 5 persons including crew or to transport goods in excess of 450 kilos; and (2) a. For aircraft: If the Aircraft is registered in a contracting state (a country that has ratified Cape Town) or the debtor is "situated" in a Contracting State at the time of the "conclusion" of the relevant agreements or if the Aircraft is not registered in a Contracting State but as part of the relevant transaction there is an agreement to register the aircraft in a Contracting State or b. For engines: If the debtor is "situated" in a Contracting State at the time of the "conclusion" of the relevant agreements.

The 31 countries who have ratified the Convention so far include the following:

Afghanistan, Albania, Angola, Bangladesh, Cape Verde, China, Colombia, Cuba, Ethiopia, India, Indonesia, Ireland, Kazakhstan, Kenya, Luxembourg, Malaysia, Mexico, Mongolia, Nigeria, Oman, Pakistan, Panama, Saudi Arabia, Senegal, Singapore, South Africa, Syrian Arab Republic, United Republic of Tanzania, United States of America, United Arab Emirates, Zimbabwe.

Finally, the Third Edition of the Regulations and Procedures governing the International Registry of Mobile Assets have been published and are now effective. The new edition contains significant and complex changes and anyone using the the International Registry should review the new edition carefully.

Posted by Greg

March 04, 2009

ALJ Rejects FAA Attempt To Limit Substitution Of Instrument Proficiency Check Under FAR 135.295(c)

In a recent civil penalty case, an administrative law judge ("ALJ") rejected the FAA's attempt to limit the ability of an air carrier to substitute an instrument proficiency check in lieu of a general proficiency check that must otherwise be passed by line pilots under FAR 135.295. The case of In the Matter of Darby Aviation arose when the FAA issued an order assessing civil penalty against the FAR Part 135 air carrier alleging that a line pilot was not properly qualified to operate certain flights because the check airman who administered the line pilot's general proficiency check under FAR 135.293 had not himself completed a general proficiency check within the previous year. Although the check airman had completed an instrument proficiency check under FAR 135.297 within the previous year, which substituted for the general proficiency test under FAR 135.295(c), the FAA argued that the substitution was not proper because the instrument proficiency check did not cover all of the subjects that are required to be tested in a general proficiency check.

In response to the air carrier's motion to dismiss, the ALJ agreed with the air carrier. First, the ALJ observed that none of the language in FAR 135.295(c) "suggests that in order to use the instrument proficiency check as a substitute for the general proficiency check, the pilot must have been tested on those subjects which, although irrelevant to an instrument proficiency check, would be subjects tested during a general proficiency check."

Second, the ALJ determined that the FAA's analysis, as a practical matter, would read paragraph (c) out of the regulation. If the FAA were correct, the ALJ surmised, allowing those who pass the instrument proficiency test to substitute it for the general proficiency would serve no purpose because the instrument proficiency check would include all of the elements of the general proficiency check. Under this scenario, a pilot would then simply take both tests. In rejecting the FAA's arguments, the ALJ concluded that the very purpose of FAR 135.295(c) is to avoid such unnecessary multiple testing.

Finally, the ALJ sympathized with the FAA's position to the extent that it is concerned with "the possibility of licensing a pilot who is capable of passing the instrument proficiency test but who cannot successfully complete the general proficiency check." However, he then went on to note that if the FAA wanted a line pilot to complete a general proficiency check on an annual basis, regardless of whether the pilot also completes an instrument proficiency check, then it would have to change the language of the regulation. He then state that "[t]hat is something that I cannot do, nor is it something the FAA can accomplish through the medium of prosecuting a civil penalty claim."

This appears to be a back-door attempt by the FAA to "interpret" a regulation in a way that is more beneficial for it in the litigation. Although "due deference" is typically granted to an agency, that deference isn't without limits. In light of the clear language in FAR 135.295(c), it may not be too hard to convince a court that the FAA's position isn't entitled to deference because it is arbitrary, capricious and inconsistent with the clear language of the regulation. It will be interesting to see whether the FAA appeals the decision which, strange as it may sound, would initially be decided by the Administrator and later, if it makes it that far, by the U.S. Court of Appeals.

Posted by Greg

March 03, 2009

FAA Updates Aviation Instructor And Pilot Handbooks

The FAA has updated the Aviation Instructor’s Handbook (FAA-H-8083-9A) and the Pilot’s Handbook of Aeronautical Knowledge (FAA-H-8083-25A). The Instructor's Handbook now includes information on scenario-based training (SBT) which teaches concepts and maneuvers in a "real-world" context. The Instructor’s Handbook also offers updated guidance on "collaborative critique" as a way for instructors to develop pilot judgment and selfassessment capability and to allow greater assessment of the pilot’s aeronautical decisionmaking skills.

The updated Pilot’s Handbook of Aeronautical Knowledge still includes the basics: aerodynamics, weather, airmanship etc. However, it also includes an entirely new chapter on aeronautical decision-making that provides tips for maintaining situational awareness while making effective use of the new technically advanced avionics and automation devices found in most new and many pre-owned aircraft today. The FAA is also working on a revised version of the Airplane Flying Handbook and a brand-new Risk Management Handbook, both of which should be released later this year.

Posted by Greg

FAA Changes Inspection Authorization Renewal From Annual To Biennial

The renewal process for inspection authorization (IA) holders has changed from an annual to a biennial requirement. IA's must now submit their renewal paperwork by March 31 of each odd-numbered year, rather than the previous annual March 31 deadline. However, IA's must still maintain currency requirements each year under FAR 65.93(a). To apply for renewal, an IA must show completion of one of the following activities by March 31 in each year of the two-year inspection authorization period:

(1) Perform at least one annual inspection for each 90 days that the IA held his or her current inspection authorization.

(2) Perform at least two major repairs or major alterations for each 90 days that the IA held his or her current inspection authorization.

(3) Perform or supervise and approve at least one progressive inspection in accordance with standards prescribed by the FAA.

(4) Attend and successfully complete a refresher course of no fewer than eight hours of instruction.

(5) Pass an oral test by an FAA inspector to determine that the IA’s knowledge of applicable regulations and standards is current.

If an IA does not complete one of the above activities by March 31 of the first year of the two-year inspection authorization period, he or she may not exercise IA privileges after March 31 of the first year. At that point, the only option for an IA to regain his or her inspection authorization privileges is to pass an oral test administered by an FAA inspector. Although many IA's easily satisfy requirements (1), (2) and (3) each year, for those who do not, your local FSDO or FAASafety.gov can provide you with a schedule of free IA renewal seminars.

Posted by Greg

March 02, 2009

Confusion About Due Dates Does Not Establish "Good Cause" For An Untimely Filing

The NTSB General Counsel recently rejected an airman's argument that confusion about the dates for filing an appeal brief constituted "good cause" for an untimely filing. In Administrator v. McCabe, the airman filed a timely notice of appeal from an administrative law judge's ("ALJ") oral initial decision. However, the airman then filed his appeal brief, along with a motion to accept a late-filed brief, six days after the due date. The FAA did not respond to the motion.

In his motion, the airman argued that good cause existed for his untimely filing because he was confused as to the due date of the appeal brief. The airman specifically cited 49 C.F.R. § 821.48(a) of the Board’s Rules of Practice in Air Safety Proceedings and suggested that the rule provides "alternative" dates for when the appeal brief is to be served. The airman appears to have been relying upon the fact that the rule provides for different service dates depending upon whether the ALJ's decision was rendered orally or in writing.

In rejecting this argument, the General Counsel observed that "[w]hen the law judge orally renders an initial decision at the close of a hearing, he has rendered an oral initial decision as provided in the Board’s rules, and an appeal brief is then due 50 days from the rendering of that decision. Only if the law judge does not orally render a decision at the close of the hearing do the provisions regarding a written initial decision come into play." Additionally, the General Counsel also reiterated that parties are responsible for knowing the Board's Rules of Practice.

Finally, the airman's counsel argued that his efforts to communicate with colleagues and the airman were frustrated by the intervention of three significant national holidays. (Interestingly, the airman's counsel asserted in his correspondence with the General Counsel that he did not know if the accompanying brief was late, even though he had been previously informed by the staff of the Office of General Counsel that the brief was already late.) In the end, none of the airman's arguments constituted "good cause." As a result, the General Counsel dismissed the airman's appeal.

This situation is unfortunate for the airman because it appears that the untimely filing was due to his counsel's unfamiliarity with the Board's rules. This is another example of why it is important to use an aviation attorney who is familiar with the rules and the laws applicable to FAA enforcement actions and practice before the NTSB.

Posted by Greg

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