Gregory J. Reigel
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March 30, 2018

Beyond "Performance As A Pilot": What Is The Scope Of A PRIA Request?

I am frequently asked by pilots whether an employer's disclosure of certain documents is properly within the scope of a request for documents under the Pilot Records Improvement Act ("PRIA"). Answering the question usually requires analyzing whether the document being disclosed relates to the individual's "performance as a pilot." However, based upon a recent Legal Interpretation issued by the FAA's Office of the Chief Counsel, it appears that the scope of a PRIA request casts a bigger net.

The Interpretation initially noted that "the separate provisions of the PRIA work in tandem to provide a complete record of potential pilot employment issues and to capture instances relating to an individual's performance as a pilot that do not fall into one of the provided statutory categories." It then went on to discuss how these provisions overlap.

With respect to whether a document relates to an individual's performance as a pilot, the Interpretation stated "to the extent that a pilot's behavior directly disrupts safe aircraft operations, those records should be included in accordance with the 'catch-all' provision" of § 44703(h)(l)(B)(ii). Next it noted that § 44703(h)(l)(B)(i) requires disclosure of documents an air carrier must maintain under 14 C.F.R. § 121.683 (records of each action taken concerning the release from employment or physical or professional disqualification of any flight crewmember).

The Interpretation then confirmed that the records maintained under § 121.683 are not limited to those records relating to an individual's performance as a pilot. Rather, it stated "[p]ilot infractions not related to pilot performance that would rise to a level grave enough to cause an air carrier to release a pilot from employment would be captured by this recordkeeping requirement, and a hiring air carrier would be required to request and receive those records."

Based upon this Interpretation, it appears the scope of documents an air carrier must produce in response to a PRIA request potentially includes more than just documents directly relating to the individual's performance as a pilot. As a result, if you are a pilot applying for a position with an air carrier and you are concerned about what your previous or current employer may or may not disclose, I recommend that you request a copy of your employment file BEFORE you apply to the air carrier. That way you will know what is in your file and potentially subject to disclosure.

But keep in mind that if you disagree with what is in your file or what the employer may be disclosing, any recourse you may have against your employer is likely governed by applicable employment laws. As the Interpretation states, "PRIA is not a means for the FAA to arbitrate employment disputes."

If you have additional questions regarding PRIA, you should review FAA Advisory Circular 120-68G. And, as always, if you have additional questions, I'm happy to help.

Posted by Greg

March 23, 2018

If ATC Asks You To Call After You Land, Do You Have To Make That Call?

The short answer to that question is "no." But before you decide to ignore ATC's request, you should give it some thoughtful consideration.

First, you should know that you have no legal responsibility to place the call. ATC's request is not an ATC instruction that you may otherwise be obligated to follow under 14 CFR 91.123.

Next, you should ask yourself why ATC might be asking you to call? Oftentimes the request is intended to obtain your personal information (e.g. name, contact information etc.) so the FAA will know who was operating the aircraft. If you provide that information, you will have then given the FAA what it needs to place you in the aircraft at the time of the incident or situation that prompted the request for you to call ATC. If the situation results in an enforcement action, you would have given the FAA what it needs to help make its case.

Alternatively, ATC may want to advise you of procedures or provide information with respect to your flight operations. ATC may simply be trying to educate you regarding operations within its area of coverage or to help correct an aspect of your operation that may otherwise not have been in strict compliance with the regulations.

If you do make the call, you need to understand two important points:
  1. The telephone call will be recorded. So, the FAA will have a record of everything said during the call, both by you and the ATC representative; and

  2. The FAA will use the information you provide. If the situation is one that warrants treatment as a "compliance action", the FAA will use the information to help correct your regulatory deviation and to ensure that future deviations do not occur. If the situation is more serious and leads to an enforcement action, the FAA will use any information you provide against you to support its position that you violated the regulations.

With this information in mind, you should analyze your situation to determine whether it does or does not make sense to make the call. If the situation involves a potentially serious violation of the regulations, then it may not be prudent to make the call.

If the situation involves conduct that may qualify for treatment as a compliance action, or if you want to try and find out what ATC wants without providing any personal information, then making the call may be a reasonable option. After all, one of the criteria for a compliance action is that the airman shows a compliance attitude. Ignoring the request for a call could result in the FAA believing that you do not have a compliant attitude, which certainly won't help your situation.

Unfortunately, no hard and fast rule exists to help you make the decision. You will need to review your situation and give it some thought/analysis. And if you are unsure, it may make sense to discuss your situation with an aviation attorney to help you make the decision. In that case, feel free to contact me and I will be happy to help.

Posted by Greg

March 16, 2018

What Happens When A Court Doesn't Want To Decide An Aviation Case? It Uses The "Primary Jurisdiction Doctrine" To Punt.

In the case of Skybolt Aeromotive Corporation v. Milspec Products, a Florida court was faced with deciding very technical aviation issues. Rather than decide those issues, the Court relied on the "primary jurisdiction doctrine" and "punted" the case to the FAA.

Skybolt and Milspec compete in the aerospace fastener industry. Skybolt alleged that Milspec falsely advertised TSO-C148 production approval for a significant number of the fasteners it sold. The parties disagreed about a variety of documents as to authenticity and whether they actually proved that Milspec had the production approval, and, if so, whether the approval was obtained fraudulently.

Skybolt filed a motion seeking a preliminary injunction enjoining Milspec from selling parts as FAA approved parts. However, rather than decide Skybolt’s motion, the Court performed an analysis as to whether the primary jurisdiction doctrine should be applied to the case.

The primary jurisdiction doctrine permits a court to stay an action to efficiently allocate fact finding between the courts and administrative agencies. The doctrine justifies staying (not deciding) a case where issues of fact are not within the conventional experience of judges or which require the exercise of administrative discretion.

The Court observed that the FAA has the jurisdiction and regulatory authority to determine whether Milspec held the TSO approval, and whether Milspec was in violation of applicable regulations for which FAA enforcement would be required. And it went on to note that the case presented historical and technical questions, as well as issues of regulatory consistency and uniformity, all of which the FAA was best suited to answer before the Court.

As a result, the Court directed Skybolt to file a formal complaint with the FAA under 14 C.F.R. § 13.5 which would allow Skybolt, Milspec, and the Court, to provide the FAA with a complete evidentiary record sufficient for the FAA to resolve the factual issues. The Court also required Skybolt and Milspec to file status reports to keep the Court advised of the progress and resolution of Skybolt’s complaint.

At this time, after reviewing Skybolt’s complaint the FAA has initiated an informal investigation into the matter.

Posted by Greg

March 09, 2018

Falsification And The FAA’s Revocation Of Certificates: Same As It Ever Was.

As many of us know, revocation has been the FAA’s choice of sanction in medical application falsification cases for a very long time. This was especially true prior to enactment of the Pilots Bill of Rights I (the “PBR-1”), when the National Transportation Safety Board (the “Board”) was “bound by” the FAA’s choice of sanction. In all of the case law prior to PBR-1, the Board relied upon this language and deferred to the FAA’s imposition of revocation in falsification cases.

In 2012 the PBR-1 removed the “bound by” language from the regulations. Since that time, the Board has followed the traditional doctrine of judicial deference set forth in Martin v. OSHRC and subsequent cases when determining whether to defer to the FAA’s imposition of revocation in falsification cases. However, the deference the Board must accord to the FAA in sanction review is not unfettered, and it does not eliminate or replace the due process requirement for the Board’s evaluation. In each case the Board must consider aggravating and mitigating factors and compare factually similar cases to determine whether the FAA’s choice of sanction is appropriate.

In practice, administrative law judges have discussed the need to analyze and weigh the facts and circumstances of each case when they apply the principles of judicial deference to determine if the sanction selected by the FAA is appropriate. In each of those cases, the Board on appeal also considered the merits of the FAA’s sanction choice, even though in both instances it was within the recommendations of the FAA’s Sanction Guidance Table. And yet in each case the sanction of revocation was affirmed.

Although the FAA will often state that it "carefully followed the sanction guidelines when it proposed revoking all airman certificates held by the respondent", this is self-serving at best. 14 C.F.R. § 67.403(b)(1) provides for suspending OR revoking airman and medical certificates. However, contrary to Section 67.403(b)(1), FAA Order 2150.3B, Appendix B-4-b(1) (the FAA's Sanction Guidance Table) states that revocation of all of an airman’s certificates is the only available sanction.

And although the FAA may deny it, a review of the Board’s past and present docket, as well as Board precedent, clearly shows the FAA very rarely seeks any sanction other than revocation of all airman certificates in cases where it alleges falsification. So, to say the FAA "carefully followed the sanction guidelines" implies analysis and consideration that the FAA’s own guidance does not permit.

Also, the FAA almost always claims its chosen sanction is appropriate because the alleged falsification shows the airman lacks qualification to hold any airman certificate or airman medical certificate. Yet after one year from the date of the order of revocation the airman will typically be allowed to reapply for airman certificates, and provided the airman is otherwise qualified, the prior revocation will not prohibit the airman from being issued airman certificates.

And in the meantime, the airman can apply for and be issued a new medical certificate provided he or she is able to demonstrate that he or she is qualified to hold a medical certificate under 14 C.F.R. Part 67. The fact that the regulations and the FAA permit application for and issuance of both airman and medical certificates after the FAA concludes that an airman is not qualified to hold those certificates, as a matter of course, belies both the accuracy and the legitimacy of the FAA’s conclusion.

It is hard to understand how revocation of all of an airman’s certificates, rather than suspension, is anything other than a punitive sanction that the FAA automatically assesses without thought or consideration to the factual circumstances of each case. Further, the FAA’s often-heard claim that it "has limited its decision to what is prescribed by the sanction guidelines" is an admission that it has disregarded the clear language of the regulation permitting revocation OR suspension. The FAA's singular selection of sanction to the exclusion of what is otherwise provided in the regulation is, both on its face and in application, arbitrary and capricious, and should not be entitled to deference.

But, in spite of the above, both the Board and the courts continue to defer to the FAA’s imposition of revocation in falsification cases and to rely upon pre-PBR-1 precedent to support those decisions. It isn’t clear to me why the Board and the courts may rely upon those cases as precedent when they were decided based upon the requirement that the Board was “bound by” the FAA’s choice of sanction, and that requirement is no longer present. Unfortunately, in falsification cases where the FAA’s continued "knee-jerk" reaction is to revoke all of an airman’s certificates, the words of The Talking Head’s seem apropos: “same as it ever was.”

Posted by Greg

March 01, 2018

Other Aspects Of The 2017 Tax Cuts And Jobs Act Impacting Business Aviation

In addition to clarifying the exemption of aircraft management services from FET (which I discussed in my February 9, 2018 post), the 2017 Tax Cuts and Jobs Act (the "Act") also included several other provisions with a direct impact on business aviation:
  • Repeal of 1031 Like-Kind Exchanges for Aircraft and Other Personal Property. Aircraft owners will now no longer be able to take advantage of the benefits of a Section 1031 like-kind exchange to defer the recognition of gain on an aircraft used in trade or business when it is sold and replaced with similar/like-kind property. However, if a 1031 exchange was initiated before 12/31/2017, then the exchange may still be completed. For tax planning purposes, it is anticipated that the advantage of the 100% expensing (at least until 1/1/2023) discussed below should offset the loss of the 1031 exchange mechanism.

  • 100% Expensing of Purchase Price of Business Aircraft. Purchasers of business aircraft (e.g. purchase of an aircraft for use in the business) may now expense 100% of the purchase price subject to the following:

    1. Must be placed in service after 9/27/2017 and before 1/1/2023;

    2. No contract for purchase prior to 9/27/2017;

    3. Aircraft must still satisfy primary business use test; and

    4. Personal use must be imputed as income to an employee.

    5. A transition rule also allows a 50% deduction rather than a 100% deduction.

  • Commuting Expenses Disallowed. An employer may no longer deduct the costs of reimbursing an employee for the expense of commuting on the company’s aircraft from the employee’s home to the place of employment, unless that transportation is provided for the safety of the employee. Employers may need to obtain security study/survey to support use of company aircraft for security reasons that are related to the employee’s safety.

  • “Related to Business” Expenses Disallowed. Starting in 2018, a business will no longer be allowed to deduct entertainment, amusement, or recreation expenditures, even though they are directly related to business. Travel on the company aircraft with business customers, prospective clients before, during or after entertainment, is likely no longer deductible.

So, if you use business aircraft, you should familiarize yourself with the aspects of the Act that may impact your aircraft operations, for either the good or the bad. And, as always, if you have questions or need help, please contact me to Request a Consultation.

Posted by Greg

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