Gregory J. Reigel
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September 22, 2017

An Appeal Of An ALJ's Decision Requires Both A Notice And A Brief

If a certificate holder defends against an FAA certificate action all the way through hearing and is unhappy with the results (e.g. the ALJ sides with the FAA and rules against the certificate holder), it is still possible to appeal the ALJ's initial decision. The FAA could be wrong. The ALJ may have made mistakes or decided the case incorrectly. Or all of the above. However, in order to stand any chance of being successful, an appeal requires compliance with the NTSB's rules of procedure.

Where certificate holders sometimes fail is complying with the requirement that a party appealing an ALJ's decision file both a Notice of Appeal AND an Appeal Brief. The Notice of Appeal is filed first. In a non-emergency case the Notice of Appeal must be filed within ten (10) days after the date on which the oral initial decision was rendered or the written initial decision or appealable order was served. In emergency cases the Notice of Appeal must be filed within two (2) days.

In order to then "perfect" the appeal, the party appealing the decision must file an Appeal Brief with the Board. In non-emergency cases the Appeal Brief must be filed within within fifty (50) days after the date on which the oral initial decision was rendered, or thirty (30) days after the date on which the written initial decision or appealable order was served. In emergency cases the Appeal Brief must be filed within five (5) days after the date on which the Notice of Appeal was filed.

If a party appealing a decision files the Notice of Appeal after the deadline, the Board will dismiss the appeal unless the appealing party shows "good cause" for the late filing (a ridiculously high standard set by the Board that is very difficult to meet). If a party appealing a decision does not file an Appeal Brief, or in the absence of good cause fails to file the Appeal Brief within the permitted time, the Board will dismiss the appeal.

Thus, the key points to remember for an appeal are (1) file your Notice of Appeal, (2) file your Appeal Brief, and (3) file them within the time permitted by the Board's rules. The Board is very strict about compliance with its rules and requirements. So, if you don't comply with the Board's rules and you don't have a really, really good reason for your non-compliance, the Board will dismiss your appeal.

Posted by Greg

September 14, 2017

Aircraft Mechanic Liens In Texas

Do you provide fuel, storage, repairs, or maintenance to aircraft in Texas? Have you ever had problems getting paid for the services you provide? If so, then a mechanic lien may be a handy tool to use with those aircraft owners/operators who do not pay you in a timely manner.

For more information on asserting a lien against an aircraft in Texas, please read my latest article on the topic: Aircraft Mechanic Liens In Texas. And if you have additional questions, I would be happy to provide you with a Consultation.

Posted by Greg

September 08, 2017

Pencil Whipping Has No Business In Aviation

To this day, I am still amazed at the number of pilots and aviation professionals I run into who think it is OK to "pencil whip" a document. Some pilots trying to build time toward their next certificates/ratings may add "parker pen time" to their pilot logbooks. A CFI may provide a flight review endorsement when none, or only some, of the flight review was actually conducted. Sometimes a mechanic will add an entry to a maintenance record when the item was not yet performed, or backdate the record to show the item was performed at a date/time before the work was done. Training records may be "doctored" to correct errors. Unfortunately, even when this "pencil whipping" occurs with the best of intentions and when the spirit of the regulation has been met, it is still not the correct way to handle these types of situations.

As many of you may know from my past articles and posts, the FAA, and the TSA for that matter, take a dim view of pencil whipping, which they consider falsification. The FAA will not hesitate to revoke all of an airman's certificates, or an air carrier's or repair station's certificate, when it discovers intentional falsification. Although the majority of falsification cases involve applications for medical certificates, the FAA also pursues legal enforcement action against individuals in the situations I mentioned above. And both the FAA and TSA have authority to assess significant civil penalties in falsification cases.

Although it should go without saying, the easiest way to avoid this risk is to simply be honest and accurate when you are providing information and/or completing documents required by the regulations. And, fortunately, in situations where someone has pencil whipped a document and it is clear that the individual was not trying to intentionally deceive (something the FAA rarely acknowledges), alternatives to pencil whipping usually existed to address the situation without risking certificate or civil penalty actions.

So, what should you do? Well, even though the temptation may be great, don't pencil whip documents. Make sure what you write down to show regulatory compliance is accurate. If you aren't sure what you should write, then do some more investigation and talk to someone who can help (like an aviation attorney). The risks/liabilities associated with pencil whipping are simply not worth the perceived rewards. It is better business and practice to simply not do it. But if you do, and you find yourself facing a legal enforcement or civil penalty case as a result, let me know and I will be happy to defend you.

Posted by Greg

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