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April 28, 2009

DOT More Forgiving Of Untimely Answer Than NTSB

A Department of Transportation Administrative Law Judge ("ALJ") recently accepted an untimely answer from a respondent under circumstances where the NTSB certainly would have rejected the answer. In In re Dennis Kaill, the FAA was pursuing a civil penalty action against the respondent for unspecified violations. When the FAA did not receive a timely answer to its complaint, the FAA filed for a default judgment. However, the respondent objected to the motion.

The respondent acknowledged that he had failed to submit his answer in timely fashion, but he cited ignorance and confusion about procedural requirements to explain his tardiness. His filing also addressed matters raised in the FAA's complaint. The ALJ denied the FAA's motion and held that the respondent had shown good cause for failing to submit a timely answer. The ALJ also accepted the respondent's objection in lieu of an answer because it addressed the issues raised in the FAA's complaint.

This individual is fortunate that civil penalty matters are heard by the DOT Hearings Office and not the NTSB. As you may recall from the many cases I have discussed here, ignorance and confusion do not constitute "good cause" in the eyes of the NTSB and have been repeatedly rejected as valid reasons for failing to timely file documents with the Board. Perhaps the NTSB could take a lesson and relax, even if ever so slightly, its scarcely defined and rarely met definition of "good cause."

Posted by Greg

April 20, 2009

Aircraft Kit Manufacturer's Liability Requires Proof Of Causation

A judge in Reno, NV recently granted an aircraft kit manufacturer's motion for summary judgment based upon the plaintiffs' failure to provide proof of causation. According to an AP Article, the case was initiated after the pilot's Lancair experimental aircraft crashed at the Grand Canyon, killing the pilot and his three passengers. The families sued Lancair alleging that the aircraft was defective. Lancair's denied that the aircraft was defective and asserted that the crash resulted from the pilot's incapacitation or by the pilot's attempt to perform an aerobatic maneuver that the plane couldn't handle.

Before trial, Lancair moved for summary judgment arguing that the plaintiffs had not presented any issue of fact regarding the cause of the accident. A week before trial, the judge granted Lancair's motion. The judge found that the plaintiffs' aeronautics expert was unable to identify a specific part of the plane that had failed, which would have made the company liable. The judge further held that the expert's blanket determination that the accident was caused by a "catastrophic failure" was insufficient. In the absence of a material factual dispute regarding causation, the judge dismissed the claims against Lancair.

This is an unusual case because the element of causation is typically not appropriate for summary judgment. Usually the plaintiff's expert is able to state a theory that is sufficient to, at a minimum, create a factual dispute regarding causation that precludes a judge from granting summary judgment. That isn't to say that it has to be a good theory. Rather, it simply has to be plausible enough to create that factual dispute.

Not sure whether the plaintiffs here needed a different expert or, perhaps, the expert was simply unable to identify a failed or defective part that the expert could have reasonably argued caused the accident. Since the plaintiffs' attorneys have indicated that they will likely appeal the judge's decision, the case is not over. We will have to wait to see whether the appeals court agrees with the judge's decision.

Posted by Greg

April 17, 2009

Failure To List Aircraft On Operations Specifications Is Not A Violation Unless The Air Carrier Also Operated The Unlisted Aircraft

In Administrator v. Air Sunshine, Inc. the FAA initiated a civil penalty action against an air carrier alleging that a specific aircraft was not listed on the air carrier's operations specifications. However, the FAA's complaint did not allege that the air carrier had actually operated that particular aircraft. In response, the air carrier filed a motion to dismiss on the grounds that the FAA had not charged the air carrier with a violation of the FARs. Interestingly, the FAA did not file a response to the air carrier's motion.

The administrative law judge agreed with the air carrier and dismissed the FAA's complaint. The ALJ held that "[t]he claim that a specific aircraft was not listed on a carrier's operations specifications does not allege a violation of the Federal Aviation Regulations in the absence of a further allegation that the carrier operated that aircraft in one or more operations subject to the jurisdiction of the Federal Aviation Administration."

This really makes me wonder what the FAA attorney was thinking when the complaint was drafted. Was this simply a pleading error or something more serious (e.g. incompetence)? I doubt it was the former because the FAA could have simply amended its complaint when the obvious error was discovered. That didn't happen. If the latter, then the FAA should have, at least in my opinion, dismissed the complaint voluntarily when the error was discovered. However, because the FAA did not dismiss and since the air carrier was forced to spend money filing its motion to dismiss, I hope the air carrier files for an award of costs and attorney's fees under the Equal Access to Justice Act. Should be an easy win.

Posted by Greg

April 06, 2009

Claim Against United States Arising From Aircraft Accident Must Be Asserted Within Two Years

In recent decision, the Sixth Circuit Court of Appeals affirmed a district court's dismissal of a plaintiff's claim against the United States for failing to assert the claim within two years. In Hertz v. United States of America, the plaintiff's husband was killed in an aircraft accident. Within a month of the accident, an NTSB investigator informed the plaintiff that the Board believed that the accident resulted from negligence by air traffic control. However, plaintiff's attorney did not assert a claim against the United States until more than two years after the accident. The United States denied the plaintiff's claim as untimely and the plaintiff subsequently sued the government. The United States moved to dismiss the plaintiff's claim and the district court granted the motion. The plaintiff then appealed the dismissal to the Sixth Circuit Court of Appeals.

On appeal, the Court observed that 28 U.S.C. § 2401(b) provides that "[a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues[.]" The Court also noted that a tort claim generally accrues at the time of the plaintiff's injury. With respect to aircraft accidents, the Court stated that they "by their nature typically involve negligence somewhere in the causal chain; and the mere fact of the event is thus typically enough to put the plaintiff on inquiry notice of his claim."

Finally, the Court concluded that the plaintiff "not only should have been able to determine in the two-year period whether to file a claim, but that she in fact made that determination, when the NTSB investigator told her, less than a month after the crash, that 'the NTSB believed that the cause of the accident was related to air traffic controller negligence.'" Unfortunately, the plaintiff's attorney simply waited too long to assert the claim.

Posted by Greg

April 02, 2009

Federal Aviation Act Does Not Preempt Choice Of Law Provision In Maintenance Contract

An aircraft mechanic's lien claimant recently lost its lien rights when a bankruptcy court judge enforced a maintenance agreement's choice of law provision. In In re ATA Airlines, a maintenance provider had entered into an agreement with ATA to perform maintenance services on ATA's aircraft. A choice of law provision in the agreement required that New York law govern the agreement. Subsequently, the maintenance provider serviced ATA's aircraft with the majority of the work being performed in Texas. When ATA filed for Chapter 11 bankruptcy protection, the maintenance provider perfected its lien rights pursuant to Texas law. However, the maintenance provider did not have possession of any of ATA's aircraft when it filed its lien claim. (New York law required possession of the aircraft in order to assert a lien claim where Texas law did not require possession).

The mechanic's lien claimant then initiated an adversary proceeding to enforce its lien rights. In response, ATA filed a motion for summary judgment arguing that the maintenance provider's lien was invalid pursuant to New York law, which was required by the agreement's choice of law provision. The maintenance provider opposed the motion by arguing that its lien was proper under Texas law because the Federal Aviation Act preempted application of the agreement's choice of law provision. The Judge granted ATA's motion and dismissed the maintenance provider's lien claim. The Judge ruled that conflicts of law doctrine required that the choice of law provision be enforced. He also concluded that the Federal Aviation Act did not preempt application of the law dictated by a choice of law provision that was agreed to by the parties.

The moral of the story: If you have a written agreement designating the laws of a state other than the one in which you provide your services, you need to understand that state's lien laws and comply with those requirements. Ideally, this issue should be addressed when the agreement is negotiated to ensure that you will be protected by the agreed upon law. Alternatively, the agreement could carve out an exception to the choice of law provision that excludes application of that state's law to the perfection and enforcement of a mechanic's lien claim.

Posted by Greg

April 01, 2009

Confusion About Question On Medical Application Does Not Excuse False Answer

The NTSB recently affirmed an Administrative Law Judge's ("ALJ") grant of summary judgment to the FAA in an intentional falsification case despite the airman's argument that questions of fact existed regarding the issue of his "intent" to falsify. In Administrator v. Singleton, the FAA issued an emergency revocation order revoking the airman's certificates based upon the airman's alleged false answer to Question 18v on his application for medical certificate (no history of alcohol/drug convictions or drivers license suspensions/revocations) in violation of FAR § 67.403(a)(1)(Prohibiting a person from making fraudulent or intentionally false statements on an application for a medical certificate). At the time, the airman's driver's license had been suspended in connection with an arrest for driving under the influence ("DUI").

The airman appealed the emergency order and the FAA subsequently moved for summary judgment. The FAA argued that the airman's medical application along with the court documents the airman previously provided to the FAA regarding the DUI arrest and license suspension demonstrated all elements of an intentional falsification claim. In response, the airman argued that "whether or not he had actual knowledge of falsity or intentionally made false statements presents a material issue of fact to be resolved after a hearing on the merits." The ALJ concluded that no material issues of fact existed and the undisputed evidence proved the FAA's claim. He granted the FAA's motion and the airman then appealed to the full Board.

On appeal, the airman reiterated his argument that a genuine issue of material fact existed that could not be decided without a hearing to examine the "intentionality" of the airman's answer on the application. The Board began its analysis by observing that the FAA must prove that a pilot (1) made a false representation, (2) in reference to a material fact, (3) with knowledge of the falsity of the fact in order to prevail on an intentional falsification claim.

In response to the airman's argument, the Board initially noted that an airman's failure to consider a question on a medical application carefully before providing an answer does not establish a lack of intent to provide false information. Further, it reiterated that the two questions on the medical application about traffic and other convictions are not confusing to a person of ordinary intelligence. The Board then observed that the term "administrative action" has a plain meaning and is not confusing.

The Board held that the question was not confusing and "where the DUI infraction at issue clearly begs candidness with the Administrator," the airman is precluded from claiming he did not knowingly provide a false response. It also concluded that the airman "was aware of the statement’s falsity, in that he knew that his driving privileges had been revoked, and he knew that the reason for that revocation was because of an alcohol-related incident."

This case in an unfortunate reminder of the hard-line, unforgiving position the FAA takes with respect to intentional falsification cases and of the NTSB's deference to, and support of, that position. It should also put airman on notice that if you have any question regarding how you need to respond to questions on the medical application, you should seek clarification and advice from an aviation attorney in advance to make sure your answers are truthful. You will not be able to fix it after the fact.

Posted by Greg

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