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October 29, 2009
NTSB Affirms ALJ's Credibility Determinations Following Remand From 9th Circuit Court OF Appeals
In a recent decision following remand from the 9th Circuit Court of Appeals, the NTSB affirmed an administrative law judge's ("ALJ") dismissal of the FAA's emergency order revoking an airman's commercial pilot certificate. In the underlying action, Administrator v. Andrzejewski, NTSB Order No. EA-5263 (2006)
, the Board granted the FAA’s appeal and reversed the ALJ’s decision dismissing the emergency order of revocation. Although the Board acknowledged the deference it owed to the ALJ's credibility findings, it held that, "credibility of witnesses is not controlling here; the weight of relevant and material evidence is the critical determination that was improperly applied below."
However, the 9th Circuit disagreed. In Andrzejewski v. FAA
the Court held that "the ALJ made an implicit credibility finding when he determined that Andrzejewski’s witnesses gave a more accurate version of events than the version given by the FAA’s witnesses." As a result, the Court remanded the case back to the Board because the Board had "not yet addressed whether there is a 'compelling reason' to reverse the ALJ’s credibility finding or whether the finding was 'clearly erroneous,'" the second step of the analysis to determine whether an ALJ's credibility findings should be reversed.
On remand, in Administrator v. Andrzejewski, NTSB Order No. EA-5481 (2009)
, the Board initially reiterated established precedent that "resolution of a credibility determination, unless made in an arbitrary or capricious manner or unless clearly erroneous, is within the exclusive province of the law judge." Unless the testimony accepted by the ALJ is found to be inherently incredible or inconsistent with the overwhelming weight of the evidence, the Board will defer to the ALJ's credibility determination even if other evidence in the record could have been given greater weight.
The Board then concluded that "[u]pon reevaluation of this record in light of the Court’s remand and the Court’s interpretation of the Board’s precedent, we are compelled to find insufficient basis to reverse the law judge’s decision, based upon what the Ninth Circuit characterizes as exclusively credibility-based evidence." It also observed that the FAA had not demonstrated that the ALJ's determination was arbitrary and capricious or clearly erroneous. As a result, the Board affirmed the ALJ's dismissal of the FAA's charges against the airman.
Nice to see the NTSB called to task. It can be hard enough to convince an ALJ that an airman's witnesses/evidence are more credible than the witnesses/evidence the FAA presents at the hearing. However, to convince the ALJ (especially someone like Judge Fowler) and then have the NTSB ignore the ALJ's findings is frustrating, to say the least. Hopefully the 9th Circuit's remand/reprimand will encourage the NTSB to follow its precedent more closely in the future.
Posted by Greg
October 27, 2009
11th Circuit Affirms Use Of Forum Non Conveniens In Montreal Convention Case
In a case arising out of the crash of a McDonnell Douglas MD-82 in the mountains of Venezuela, the 11th Circuit of Appeals has affirmed a district court's dismissal of the case based upon the doctrine of "forum non conveniens." In Pierre Louis v. Newvac
, the plaintiffs, all residents/citizens of Martinique (a Department of the Republic of France), filed suit against the air carrier and other defendants in federal court in Florida. The defendants asked the court to dismiss the case based upon the doctrine of forum non-conveniens which provides that a court may decline to exercise its jurisdiction when a defendant can demonstrate that: (1) that an adequate alternative forum is available; (2) that relevant public and private interests weigh in favor of dismissal; and (3) that the plaintiff can reinstate his suit in the alternative forum without undue inconvenience or prejudice. The plaintiffs argued that the international treaty that regulates the liability of air carriers to passengers on international flights, the Convention for the Unification of Certain Rules for International Carriage by Air (commonly referred to as the "Montreal Convention")
precluded the court application of forum non-conveniens. The court granted the motion, finding that Martinique was the more convenient forum.
On appeal, the Court observed that the Montreal Convention allows suits for damages by passengers on international flights to be filed in the domicile or the principal place of business of the air carrier and, in the case of damage resulting from the injury or death of a passenger, suit may be brought in the passenger’s permanent residence if the air carrier operates air carriage services to or from that location. Under the Montreal Convention, the Court found that the lawsuit was properly filed in Florida.
However, the Court then determined that Article 33(4) of the Montreal Convention's statement that rules of procedure are governed by the rules of the forum state can only reasonably be interpreted to include the doctrine of forum non conveniens which is "firmly entrenched in the procedural law of the United States." As a result, the Court held that "a district court may—where appropriate—exercise its discretion to apply forum non-conveniens, without interfering with the implementation of the Convention, so long as another Convention jurisdiction is available and can more conveniently adjudicate the claim." The Court further concluded that the district court's dismissal of the case based upon a finding that Martinique was a more convenient forum was appropriate and not an abuse of discretion.
This case represents the proper use of a procedural rule to reasonably limit the plaintiffs' attempt to litigate in a forum that would likely provide a greater financial recovery than in their home forum of Martinique. Bad news for the plaintiffs, but good news for the U.S. based defendants.
Posted by Greg
October 23, 2009
Estate Of Arkansas Employee Killed In Aircraft Accident Allowed To Sue Pilot/Fellow Employee
On October 21, 2009, the Arkansas Court of Appeals issued an opinion allowing the estate of a deceased Arkansas employee to sue a fellow employee, who was also the pilot, for the death of the employee in an aircraft accident. The case, Honeysuckle v. Curtis H. Stout et al.
, arose out of the 2002 crash of a Model 114A Aero Commander in which the employee and the pilot, who was also the owner of the aircraft and the majority shareholder of the employer, were returning from a business trip on behalf of their employer.
The deceased employee's estate initially submitted a workers' compensation claim and received an award. The workers' compensation commission determined that the injuries suffered by the deceased employee in the aircraft accident arose out of and in the course and scope of his employment. Interestingly, the pilot also received a workers' compensation award based upon a similar determination that he too suffered injuries in the course and scope of his employment.
Subsequently the deceased employee's estate sued the pilot for wrongful death alleging negligence in the operation and maintenance of the aircraft (the estate also sued the aircraft manufacturer and the manufacturers of certain component parts of the aircraft based upon a variety of theories). However, the claims against the pilot were remanded to the workers' compensation commission and ultimately dismissed based upon a finding that the pilot was the deceased employee's employer and, thus, the pilot was entitled to immunity under the workers' compensation statute. (Most workers' compensation statutes provide that the workers' compensation system is, subject to several exceptions, the exclusive remedy for an employee's claim against an employer and fellow employees.)
The workers' compensation commission also determined that even if the pilot were not the employer, he was carrying out the employer’s duty to provide a safe workplace which, the commission reasoned, was the aircraft at the time of the accident since the flight occurred during the course of the employment of the deceased employee and the pilot.
The deceased employee's estate appealed the dismissal and the Court of Appeals reversed. The Court initially observed that the employer directed the deceased employee and pilot to travel to the meeting and the deceased employee and pilot were within the scope of their employment during the travel. However, the Court then noted that "the employer did not direct or control the means of travel, and more specifically, did not control or direct [the pilot] in maintaining and operating the aircraft with reasonable care and skill." As a result, the Court concluded that the actions of the pilot for which
the deceased employee seeks damages arise from the pilot’s failure to use reasonable care and skill in maintaining and operating the aircraft whose failure resulted in the employee's death.
This case is not good news for aviation attorneys in Arkansas defending pilots (or their estates) against claims made by fellow employees. Not only is this a narrow interpretation of workers' compensation immunity, but it also does not make sense, at least with respect to the pilot's conduct during the flight. (The argument against immunity for maintenance the pilot may have performed on the aircraft, on the other hand, at least makes some sense as being outside the scope of employment.) I am not sure how both the deceased employee and the pilot could receive workers' compensation awards for injuries arising out of an accident that the workers' compensation commission determined occurred within the scope of their employment, but somehow the pilot's operation of the flight is outside of that scope. Seems inconsistent to me.
If this case were decided in Minnesota, and in many other jurisdictions I suspect, the workers' compensation commission's decision would likely have been affirmed based upon a more expansive, and more rational, application of workers' compensation immunity. Yet another factor for consideration when determining the pros and cons of a venue/forum for a lawsuit.
Posted by Greg
October 22, 2009
Northwest Airlines Flight Overflies MSP: Asleep At The Stick?
According to an NTSB Advisory
issued today, the NTSB is investigating an incident in which a Northwest Airlines Airbus A320 overflew the Minneapolis-St Paul International Airport (MSP), its intended destination. Apparently the flight departed San Diego and at 5:56 pm MDT became NORDO (no radio communications). At 7:58 pm CDT the aircraft flew over MSP and continued northeast for another 15 minutes (approximately 150 miles) until the MSP center controller was able to re-establish contact with the crew. The crew's response? They were in a heated discussion over airline policy which distracted them and resulted in their loss of situational awareness. Since the NTSB lab will be reviewing the cockpit voice recorder (CVR) and flight data recorder (FDR) we should learn what, if anything, was actually said in that "heated discussion."
Personally, this looks to me like a repeat of the February 13, 2008 go! flight 1002 incident in which the flight crew fell asleep and flew past their destination. The NTSB determined in that case that the probable cause of the incident was the captain and first officer inadvertently falling asleep during the cruise phase of flight with the captain's undiagnosed obstructive sleep apnea and the flight crew's early-morning start times as contributing factors. If that is the case, it will only add more fuel to the NTSB's August 7, 2009 Safety Recommendations A-09-61 through -66
addressing pilot fatigue and sleep apnea.
As I discussed in my post yesterday, you will definitely be hearing more about sleep apnea and pilot fatigue in the future. Hopefully the FAA's response (and I fully expect a regulatory/rulemaking response from the FAA) will use some common sense. However, pilots who snore, or are overweight, or have high blood pressure, or have any of the other "risk factors" associated with sleep apnea, should beware. These issues are on the radar screen and will likely be the cause of additional frustration for airmen seeking medical certificates.
Posted by Greg
October 20, 2009
FAA Publishes Correction To Final Rule On Pilot, Flight Instructor, And Pilot School Certification
The FAA has published a "Correction"
to the final rule published in the Federal Register on August
21, 2009 that amended FAR Part 61
. The corrections include standardizing certain time period durations within the rule from "60 days" to now read "2 calendar months and correcting the duration of a student pilot
certificate to 60 calendar months for a student pilot seeking a sport
pilot certificate. Significantly, the correction also fixes an omission and errors to the prerequisite eligibility requirements for use of flight simulators.
Although the FAA intended to consolidate and clarify the uses of flight simulators and flight training devices in the final rule without substantive changes to the uses of or prerequisite eligibility requirements to flight simulators and flight training devices, that didn't happen. However, the correction revises the final rule to require the use of a qualified and approved Level C flight simulator if a flight simulator is used for the entire practical test, as previously required. In addition to several other clarifications, the correction also explains that the final rule still provides for partial use of the aircraft for performing the pre-flight inspection, normal takeoff, normal instrument landing system approach, missed approach, and normal landing tasks, or the applicant will receive the supervised operating experience.
The corrections are effective today. If you have questions regarding the corrections or the final rule, you may contact John D. Lynch, Certification and General Aviation Operations Branch, AFS-810, General Aviation and Commercial Division, Flight Standards Service, Federal Aviation
Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-3844; e-mail to email@example.com. Or, for legal interpretative questions about the corrections or final rule, you may contact: Michael Chase, AGC-240, Office of Chief Counsel, Regulations Division, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-3110; e-mail to firstname.lastname@example.org.
Posted by Greg
DOT OIG Announces Audit Of Commercial Aviation Accidents, Pilot Experience, And Pilot Compensation
According to an October 16, 2009 Memorandum
, the Department of Transportation Office of Inspector General
("DOT OIG") will be conducting an audit "to identify and assess trends in commercial aviation accidents including any correlations between pilot experience and compensation." The audit is in response to a request from the Chairmen and Ranking Members of the Senate Committee on Commerce, Science, and Transportation and Subcommittee on Aviation Operations, Safety, and Security following the National Transportation Safety Board's
("NTSB") determination that pilot performance was a contributory factor in four of the last fatal commercial aviation accidents involving regional carriers. Specifically, the NTSB cited pilot training, fatigue, qualifications, and compensation as potential safety issues.
Add this to the list of activities currently being undertaken within the aviation industry regarding the issues of pilot fatigue and pilot qualification. However, it will be interesting to see what the DOT OIG has to say about pilot compensation and its impact on safety. Further, if the DOT OIG determines that the current level of pilot compensation does, in fact, have a negative impact on aviation safety, I will be curious to see what types of recommendations it may make to "correct" the situation. Stay tuned. You will likely be hearing more on these issues in the near future.
Posted by Greg
October 16, 2009
DOT Publishes Guidance Regarding Passenger Reimbursement For Lost, Damaged Or Delayed Baggage
The Department of Transportation
today published a Notice Providing Guidance on Reimbursement of Passenger Expenses Incurred as a Result of Lost, Damaged or Delayed Baggage
to provide "guidance on air carrier contract terms and policies relating to reimbursement of passenger expenses incurred in connection with lost, damaged or delayed baggage." The Notice was issued after the DOT discovered that some of the airlines have adopted policies that appear to limit reimbursement for such expenses in certain circumstances (e.g. denying any reimbursement "for necessities" where the baggage is "expected" to reach the passenger within 24 hours of filing a delayed baggage report, limiting reimbursement to actual expenses up to a fixed maximum amount per day after the first day or only reimbursing passengers for incidental expenses incurred after the outbound leg of a roundtrip).
As you may or may not know, DOT's baggage liability rule, 14 CFR Part 254
, does not contain the limitations the airlines are attempting to impose. As a result, DOT's Office of Aviation Enforcement and Proceedings (Aviation Enforcement Office) considers "any such arbitrary limits on expense reimbursement incurred in cases involving lost, damaged or delayed baggage to violate part 254 and to constitute an unfair and deceptive practice and unfair method of competition in violation of 49 U.S.C. 41712
." In support of its position, DOT cites Section 254.4
which states that an air carrier "an air carrier shall not limit its liability for provable direct or consequential damages resulting from the disappearance of, damage to, or delay in delivery of a passenger's personal property, including baggage, in its custody to an amount less than $3,300 for each passenger."
In order to meet the regulatory requirements, the Notice states that airlines should reimburse passengers for "all reasonable, actual and verifiable expenses related to baggage loss, damage or delay up to the amount stated in part 254." Accordingly, air carrier contracts of carriage etc. should not include terms setting arbitrary limits on reimbursement that are inconsistent with Part 254. If an air carrier has not removed such limitations within 90 days from the date of the Notice, the Aviation Enforcement Office "will pursue enforcement action in appropriate cases where unlawful reimbursement policies are not corrected."
Although this should ultimately benefit airline passengers, it is important to note that neither the Notice nor Part 254 gives an airline passenger a private cause of action against an airline for violation of those regulations. Only DOT has the authority to pursue enforcement action against an airline for violation of Part 254. If you would like further information regarding the Notice or possible violations of Part 254 by an airline, you should contact Nicholas Lowry, Attorney, Office of Aviation Enforcement and Proceedings (C-70), 1200 New Jersey Ave., SE., Washington, DC 20590, (202) 366-9349.
Posted by Greg
October 15, 2009
Aircraft Logbook Entry Creates Question Of Fact Regarding Replacement Part Under GARA
The Court of Appeals of Ohio recently reversed a district court's grant of summary judgment to an aircraft parts manufacturer based upon the "rolling provision" of the General Aviation Revitalization Act ("GARA"). The case, Hetzer-Young v. Precision Airmotive et al.
, arose out of an aircraft accident in which the pilot and his two passengers were killed. The plaintiff alleged that the aircraft experienced a sudden loss of engine power when the aircraft's muffler’s flame tube separated and blocked the exhaust. The defendant responsible for the manufacture of the muffler, Unison Industries, Inc. (successor to the actual manufacturer, Elano corp.), argued that GARA barred the plaintiff's action because the aircraft was manufactured in 1974, more than 30 years before the crash. However, the plaintiff argued that an entry in the aircraft's logbook dated August 28, 1987 stating "replaced muffler," established that the original muffler was replaced with a new muffler and, thus, the 18 year limitation period under the "rolling provision" of GARA began anew when the muffler was replaced. As a result, the plaintiff contended, the action was not barred by GARA.
The district court judge agreed with Unison and granted summary judgment, although the judge's exact basis for granting the motion is not clear from the Court of Appeals opinion. The plaintiff appealed, arguing that the aircraft logbook entry was admissible evidence that created a genuine issue of material fact as to whether the muffler was actually replaced. Unison contended that the logbook entry was inadmissible and, even if admissible, it did not create a material fact that prevented dismissal based upon GARA.
The Court of Appeals agreed with the plaintiff and reversed the grant of summary judgment. The Court determined that the logbook entry was admissible under both the business records and ancient document exceptions to the hearsay rule. It next found that the plaintiff's experts provided proof that the generally accepted meaning in the aviation industry for "replaced muffler" was that a new muffler was installed on the aircraft. The Court concluded that the plaintiff "presented sufficient evidence from which a reasonable jury could conclude that it is more likely than not that the muffler found on the accident aircraft, which is alleged to have caused the accident, was installed as a new replacement part in August 1987."
As a result, whether the plaintiff's claim was barred by GARA was an issue involving a question of fact that would have to be decided by a jury. Summary judgment was therefore inappropriate on plaintiff's claims against the muffler manufacturer.
Posted by Greg
October 09, 2009
FAA Issues Revised Policy On "Fifty One Percent Rule"
In a victory for the Experimental Aircraft Association
and the amateur-built aircraft community, the FAA has released Order 8130.2F Change 4
, its final order revising the amateur-built aircraft certification policy (commonly known as the "51 percent rule"), and corresponding Advisory Circular 20-27G, Certification and Operation of Amateur-Built Aircraft
(the guide for amateur builders on how to properly certify every step of the building process). The revised policy is intended to "update existing language related to experimental amateur-built aircraft airworthiness certification to be consistent with recommendations from the 2006 and 2008 Amateur-Built Aircraft Aviation Rulemaking Committee." Highlights of the revised policy include:
The opportunity to build and fly almost any aircraft an amateur builder may can create
Existing home-built kits previously approved by the FAA are grandfathered in under the revised rule
Creation of a uniform standard for approval of new kits
Elimination of the previously proposed percentage-based build formula
Definition of "fabrication" as it applies to the build process
Guidance for amateur-builders who want to hire professionals to assist them in the building process
The revised order and AC are both effective immediately.
Posted by Greg
October 07, 2009
FAA Issues Revocation Order Following L-29 Crash
According to an article
in the LA Times
, the FAA has issued an order revoking an airman's ATP and ground instruction certificates in the aftermath of an aircraft accident. According to the article, the airman was one of three pilots performing a formation flyover of three Aero Vodochody L-29 Delfins. During the flyover, one of the Delfins fell out of formation and crashed, killing the pilot and passenger.
The FAA subsequently issued its revocation order against the airman alleging that the airman flew his aircraft over densely populated areas at less than 1,000 feet, improperly carried a passenger on the flight and falsely claimed in the deceased pilot's log that the airman had checked the deceased pilot out in the L-29 before the crash. As it turns out, the airman was an FAA designated examiner in the L-29.
The airman has indicated that he will appeal the revocation order and has argued that the L-29s avoided populated areas by following the area's railroad tracks which were not within the city and flew between 1,200 and 1,500 feet, well above the minimum required altitude.
Interestingly, the article does not mention any enforcement action against the third pilot in the formation. Presumably the FAA would also allege an altitude violation against that pilot. However, such an operational violation typically involves suspension, rather than revocation. The revocation action against the first airman resulted from the allegation that he made a false/improper entry in the deceased pilot's logbook. According to the FAA, logbook falsification warrants revocation because it demonstrates that an airman lacks the required care, judgment and responsibility to hold any airman certificate.
As is often the case with the media, especially these days, the article does not include all of the facts, some of which will hopefully support the airman's defenses. However, this situation is a good example of how an enforcement action is typically preceded by some type of incident or accident. Once the event occurs, the FAA's subsequent investigation will quite often uncover some information that leads the FAA to believe that a regulatory violation has occurred.
It is important for an airman involved in an incident or accident to have an aviation attorney assist him or her in responding to the subsequent investigation in order to minimize the airman's exposure to a possible enforcement action. In that situation, the FAA is definitely not there to help the airman. However, given the opportunity, an aviation attorney certainly can help.
Posted by Greg
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