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

August 31, 2017

The Latest Lycoming Engine Airworthiness Directive: What You Need To Know

The FAA has once again issued an airworthiness directive ("AD") with respect to certain Lycoming engines. If you are one of the unfortunate aircraft owners with an engine or engines to which this AD applies (FAA estimates 778 engines are impacted by the AD) then you are probably wondering what options may be available to you. And more specifically, you are likely trying to figure out who is going to pay for you to comply with the AD. Will the cost be covered by a warranty? Will you have to sue someone? Etc.

I discuss these issues, as well as options that may be available to aircraft owners affected by this AD, in my latest article: The Latest Lycoming Engine Airworthiness Directive: What You Need To Know. I hope it helps. But if you have additional questions, feel free to contact me to discuss your situation.

Posted by Greg

August 25, 2017

What Are A Secured Party's Rights And Options After Repossessing An Aircraft In Texas?

If you hold a security interest in an aircraft in Texas, do you know what your rights and remedies are if the borrower (e.g. the aircraft owner or operator) defaults? Can you repossess the aircraft and keep it? Do you have to sell it? If so, how and for how much? For the answers to these questions, please read my latest article on the subject: What Are A Secured Party's Rights And Options After Repossessing An Aircraft In Texas?

Posted by Greg

August 14, 2017

Certificates Of Insurance In Aircraft Leasing: Are You Covered?

In aircraft lease agreements, insurance coverage for the aircraft lessee's operation of the aircraft is typically handled in one of two ways: (1) the aircraft lessee obtains its own policy insuring its operation of the aircraft, or (2) the aircraft lessor obtains a policy under which it is the "named insured" (e.g. the aircraft lessor owns the policy) and it includes the aircraft lessee as an "additional insured" under the policy. In the first instance, the aircraft lessee is the named insured and the policy specifically insures its operation of the aircraft. The aircraft lessor may also be named as an "additional insured" to make sure it is also covered for the aircraft lessee's operation of the aircraft.

In each scenario, the "additional insured" should receive a certificate of insurance that specifically provides for its coverage under the policy. Unfortunately, it isn't unusual for an underwriter who isn't completely familiar with the parties' leasing arrangement to issue a certificate that does not provide the expected coverage. Although the actual policy language may provide for coverage of the aircraft lessee (e.g. coverage for permissive users of the aircraft etc.), oftentimes the parties don't receive the actual policy until well after the insurance is issued. So, it is critical that the additional insured review the certificate before it operates the aircraft to make sure the certificate states the coverage that party is expecting to receive.

For example, I have seen situations where the insurer issues a certificate to the aircraft lessee, who is an additional insured, providing coverage to the aircraft lessee for operations by the named insured. Depending upon how the policy defines "named insured", the certificate may or may not provide coverage. The same holds true in the situation where the aircraft lessor is the "additional insured." The certificate should state that the policy is providing coverage for operations of the "additional insured" to remove any doubt.

Parties engaging in aircraft leasing, whether lessor or lessee, should provide their insurance underwriter with a copy of the lease agreement to make sure the underwriter (1) understands the relationship, (2) does not object to any of the obligations in the lease for which insurance may be applicable, and (3) issues insurance certificate(s) that are accurate and provide the coverage expected by the parties. Sometimes it may also require a conversation with the underwriter to explain the situation and the language required in the certificate. Most aviation insurers are understanding and accommodating for their aircraft lessee customers.

The moral of the story for aircraft lessors/lessees is, in the absence of the final policy language, to read the insurance certificate to confirm that it provides the coverage required by the lease. You don't want to end up in a situation where you thought you had insurance, now you need it, but you don't actually have coverage. That's a bad, but completely preventable, day.

And, as always, if you are unsure of your aircraft insurance coverage, give me a call and I would be happy to work with you to make sure your insurer is providing the coverage you need and expect.

Posted by Greg

August 02, 2017

What Should You Do When ATC Asks You To Call?

If you ever find yourself in this position, it is important to understand that you do not have to make that call. You are under no legal obligation (regulation or otherwise) to place the call. The request is not an ATC instruction under FAR 91.123. So, if you don't want to call you don't have to. But just because you don't have to call, that doesn't mean you shouldn't call. You need to analyze your situation and understand the pros/cons of making the call before you decide to simply ignore ATC's request.

Why does ATC want you to call?

For starters, ATC wants to obtain your personal information so they know who was flying the aircraft. Although ATC may have the aircraft's registration number, it may not know who was flying the aircraft. This is especially true if the flight was a VFR flight without a flight plan. Also, if the aircraft is a rental or club aircraft available to multiple pilots, ATC won't necessarily know which of those pilots is actually flying the aircraft. So, ATC wants to identify the pilot and obtain his or her information. And if you make the call, you will be providing the FAA with the connection between the aircraft operation and you, the pilot.

ATC may also want to discuss what happened. Depending upon the circumstances, it is possible that providing ATC with an explanation of what happened will resolve the situation. If the situation resulted from a simple mistake or flawed procedure, ATC may provide some informal counseling to ensure that you don't end up in the same situation in the future, and that will be the end of it. Under the FAA's new compliance philosophy, this would be considered a "compliance action." However, if the situation was more complicated or severe (e.g. an intentional deviation that resulted in loss of separation) that isn't the type of situation that would be handled as a compliance action. In that case, you may not want to make the call.

What happens to the information you provide during the call?

If you decide to make the call, you need to understand a couple of key points. First, the call will be recorded. So, the FAA will have a record of what you say during the call. Second, the FAA will use the information you provide to determine how it is going to handle the situation. That could be good for you or it could be bad, depending upon what happened and what you say. If it is bad, the FAA will not hesitate to use the information you provided against you in an enforcement action.

Should you make the call?

If you are asked to contact ATC after a flight you need to answer a number of questions to determine whether it makes sense to make the call:
  • What happened?
  • Why did it happen? Did it result from a simple mistake, flawed procedure etc.?
  • Is ATC able to connect you, the pilot, with the flight operation?
  • Is it the type of situation that the FAA should handle as a "compliance action"?
When you are considering these questions, it may make sense to discuss the matter with an aviation attorney. He or she should be able to help you analyze the situation to determine whether calling ATC will help or hurt you and, if it makes sense, what you should and shouldn't say if you do decide to make the call. You should also make sure to file your ASRS Form with NASA so you can potentially benefit from the FAA's Aviation Safety Reporting Program.

The good news is that the FAA's new compliance philosophy is resulting in fewer enforcement actions in cases of simple pilot deviations where the pilot does decide to make the call. The bad news is that you now have more to consider before you decide whether you should or should not make the call. If you find yourself in this situation, make sure you think things through and get the advice you need BEFORE you make the call.

Posted by Greg

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