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A site devoted to aviation law, safety and security. February 04, 2010 FAA Asks For Input Regarding Pilot Certification For Airline Operations In the wake of the Colgan 3407 crash and the NTSB's probable cause finding of pilot error, the FAA is asking the public for comments regarding pilot certification. In a Press Release issued today, the FAA asked for recommendations to improve pilot qualification and training requirements. Specifically, the FAA wants to know the following:
It will be interesting to see both the comments and how the FAA handles the comments. Interestingly, the area of "pilot judgment and decision making" is absent from the FAA's request. At least in the Colgan 3407 case, the pilots had received training, but exercised poor judgment and decision making in dealing with the situation. Unfortunately, I am not sure that requiring 1500 hours and an ATP is going to address this issue. Also, requiring 1500 hours and an ATP will significantly decrease the pool of qualified pilots available for hire by the airlines. In any event, hopefully the FAA will give thoughtful consideration to these issues, and the flood of comments I expect it will receive, and issue a rule that will reasonably address the issues without imposing unreasonable limitations that will further damage the aviation industry. Posted by Greg February 03, 2010 NTSB Affirms Suspension Of Airman's ATP Certificate For Operation Of Aircraft After Prop Strike The NTSB recently rejected both an airman's and the FAA's appeals and affirmed an administrative law judge's ("ALJ") decision suspending the airman's airline transport ("ATP") certificate for 100 days. The case, Administrator v. Hackshaw, arose from an incident in which the airman was operating a C-402B on a flight from George Charles Airport in St. Lucia to an initial destination of E.T. Joshua Airport in St. Vincent. During approach, the aircraft displayed an intermittent green light for the right main landing gear. As the airman attempted to land, the right main landing gear began to collapse and the right propeller came in contact with the runway. In response, the airman applied power and performed a go-around. However, rather than attempting to troubleshoot the gear problem (e.g. perform a manual gear extension) and attempt another landing at E.T Joshua, the airman proceeded to fly to Hewanorra Airport in St. Lucia, which required him to fly 23 nautical miles over the ocean. At Hewanorra Airport, the airman performed a manual gear extension and successfully landed the aircraft without further incident. The aircraft owner, who also happened to be an airframe and powerplant mechanic ("A&P"), inspected the right propeller and also installed a lock securing the gear in the down and locked position. The A&P then told the airman that the aircraft was "airworthy" and "fit to fly" and the airman flew the aircraft back to George Charles Airport. When the FAA learned of the incident, it issued an order suspending the airman's ATP certificate for 180 days based upon alleged violations of FARs 91.7(a) and (b) (prohibiting operation of an unairworthy aircraft), 91.13(a) (careless and reckless), and 91.703(a)(2) and (3) (failure to comply with regulations of foreign country in which aircraft is operated). The airman appealed the order to the NTSB and, after a hearing, the ALJ determined that the FAA's witnesses were more credible and proved that the airman should have declared an emergency and landed the aircraft at E.T. Joshua without making any further flights in the unairworthy aircraft. As a result, the ALJ concluded that the airman's conduct in flying the aircraft to Hewanorra and George Charles after the prop-strike violated the regulations as alleged. However, the ALJ reduced the 180 day suspension sought by the FAA to 100 days based upon the airman's reliance upon the statements by the aircraft owner/A&P. Both the airman and the FAA then appealed the ALJ's decision to the full Board. On appeal, the airman argued that the case should have been dismissed because (1) the FAA lacked jurisdiction since the events occurred outside the United States; (2) the FAA's complaint was stale under the Board’s Stale Complaint Rule, 49 C.F.R. § 821.33; and (3) the FAA was equitably estopped from taking action because the airman successfully completed a re-examination. The Board rejected each of the airman's arguments. It determined that the FAA had jurisdiction to take action against the airman's FAA issued certificates by virtue of FAR 91.703 and had served its notice of proposed certificate action upon the airman within 6 months of the incident as required. The Board also concluded that "a successful completion of a re-examination is a separate issue from an enforcement action based on a respondent’s conduct prior to the reexamination" and did not preclude the FAA from taking action against the airman. The FAA's appeal focused on the ALJ's reduction of sanction and argued that the ALJ "exceeded his authority in lowering the sanction, because he did not find that the Administrator’s sanction was arbitrary, capricious, or otherwise not in accordance with law." The FAA also asserted that the sanction reduction was inconsistent with Board precedent. Noting that the FAA did not submit the Sanction Guidance Table into evidence at the hearing and did not explain the computation of, and reasoning for, the sanction until the FAA filed its appeal brief, the Board concluded that the ALJ properly reduced the sanction based upon his findings that mitigating circumstances were present. What can we learn from this case? First, although the airman's arguments for dismissal sounded good, existing case law and precedent were clearly inconsistent with those arguments. Second, the FAA's appeal likely would have been granted if the FAA had properly presented and substantiated its request for sanction at the hearing. The Board wouldn't hesitate to defer to the FAA's sanction request if the record included the Sanction Guidance Table and a proper explanation of the basis for the sanction, other than "hey, the airman violated the regulations." In this case, the airman received the benefit of the FAA's mistake. That will not always be the case. Posted by Greg February 02, 2010 Drug Testing Refusal Cases Are Fact Specific The NTSB recently affirmed an administrative law judge's ("ALJ") dismissal of an emergency order revoking all of an airman's certificates for allegedly refusing to submit to a drug test. In Administrator v. Rojas, the FAA alleged that the airman, a pilot for Pinnacle Airlines, refused to submit to a drug test in violation of FAR Part 121, App. I, FAR 67.107(b)2 and 49 C.F.R. § 40.191(a)(1). As a result, the FAA issued an emergency order revoking all of the airman's certificates. The airman then appealed the FAA's order to the NTSB. At the hearing, the FAA presented evidence in support of its allegations that the airman had been selected for a random drug test, was notified of the drug test and then refused to submit to the drug test. The airman presented evidence that the airline employee who allegedly notified him of the drug test never received training relating to drug-testing and, in fact, after notifying the airman of his selection for testing then told the airman that he did not need to submit to the test until a later time. At the conclusion of the hearing, the ALJ determined that the airman's evidence was more credible. He specifically found that although the airman did not take the drug test, he did not lack the qualifications to hold an ATP or first-class medical certificate as alleged by the FAA. Further, he credited witness testimony that the airline employee withdrew her request for a drug test, and did not notify the airman that she would consider his statement concerning the lack of sufficient time to complete the test to be a refusal. Of course, the FAA then appealed the ALJ's decision to the full Board. On appeal, the Board initially observed that much of the ALJ's decision was based upon his credibility determinations and 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." It went on to note that it could not withhold deference to an ALJ's credibility findings simply because other evidence in the record could have been given greater weight by the ALJ. Next, the Board stated that "cases concerning refusals to submit to drug tests involve fact-specific inquiries." It then held that, based upon the evidence credited by the ALJ, it could not find that the airman's conduct constituted a refusal. The Board further concluded that the ALJ's credibility determinations were not arbitrary, capricious, or contrary to the weight of the evidence. This case highlights the merit of appealing a revocation order based upon an alleged refusal to submit to drug-testing. Given the appropriate facts, it is possible to have the FAA's order dismissed, if the airman can persuade the ALJ that he or she did not refuse to submit to the drug test. Not always possible. But if the airman is successful, the Board should defer to the ALJ's decision if/when the FAA appeals. Posted by Greg January 29, 2010 International Registry Update The International Civil Aviation Organisation ("ICAO") has approved reappointment of Aviareto to operate the International Registry for a second five year term from 2011 to 2016. Additionally, despite the weak US dollar, reduced number of transactions being processed and necessary capital investment, Aviareto has not requested a fee increase. And, although it hasn't ruled out future fee adjustments, it is interesting to note that the fees have actually remained unchanged since the International Registry opened in 2006. According to Aviareto, it is also proposing the following changes to the International Registry:
Posted by Greg January 27, 2010 FAA Clarifies New DUI Policy For AMEs In the Spring Issue of the Federal Air Surgeon's Medical Bulletin Dr. Warren Silberman, manager of the FAA's Aerospace Medical Certification Division, responds to an aviation medical examiner's ("AME") confusion regarding the FAA's new DUI policy. Specifically, the AME wanted to know when he was required to obtain court documents and defer the medical application. The AME also asked about how to handle an airman who has had one or more certificates issued since a DWI conviction and whether a history of 0.15 or above blood alcohol content ("BAC") before the previous medical certificates were issued now requires a deferral? Responding to the questions, Dr. Silberman stated:
Posted by Greg January 19, 2010 NTSB Affirms Dismissal Of Falsification Claim Against Mechanic Following recent Court of Appeals' reversals in falsification cases, the NTSB has affirmed an administrative law judge's ("ALJ") dismissal of a claim in an FAA emergency order revoking a mechanic's airman certificates for allegedly falsifying an application for a mechanic certificate in violation of FAR 65.20(a)1. In Administrator v. Alvarez, the FAA alleged that the mechanic provided a false answer to a question which asks, "have you ever had an airman certificate suspended or revoked?" when, in fact, the mechanic's private pilot, flight engineer, and medical certificates had previously been suspended for his failure to report a DUI conviction on his medical certificate application. (The FAA also alleged that the airman had violated 49 U.S.C. 44709 when he failed a re-examination and subsequently failed to surrender his certificate while he scheduled another test. However, I will discuss the issues associated with the results of that claim another time.) At the hearing before the ALJ, the mechanic testified that he checked "no" on the application because he assumed that the question only applied to mechanic certificates. The mechanic explained that he previously completed an application for renewal of his inspection authorization ("IA") and was told by a local FAA inspector that he should check "no" in response to that application's question of whether his "mechanic certificate and/or ratings [had] been revoked or suspended during the 3-year period preceding [the] application." The ALJ determined that the airman did not falsify the application because he had no knowledge of falsity. The ALJ found that the mechanic was credible and had trusted the FAA inspector who advised him to answer "no" on the IA application, which asked a similar question. As a result, the ALJ dismissed the claim. Not surprisingly, the FAA appealed the ALJ's dismissal to the full Board. On appeal, the FAA cited 49 U.S.C. § 40102(a)(8) (defining "airman" as a pilot, mechanic, or crewmember) in support of its argument that the mechanic should have answered "yes" to the question of whether he ever had an airman certificate suspended or revoked, since the question included all airman certificates, and not just the mechanic certificate. The FAA also contended that the mechanic's previous falsification violation rendered him generally not credible and the mechanic knew that the reference to "airman certificate" on the application includes all certificates because the mechanic had "a great deal of experience in completing such applications." The Board initially noted that the ALJ made a credibility determination in favor of the mechanic regarding his lack of knowledge of the falsity of his answer. As a result, in order to succeed the FAA had the burden of proving that the ALJ's credibility determination was "arbitrary, capricious, or clearly erroneous." The Board went on to observe that the FAA did not deny that an inspector may have instructed the mechanic that the question only referred to his mechanic certificate, nor did the FAA provide evidence that the inspector did not or would not do so. Although the Board recognized its precedent regarding the plain meaning of questions on FAA application forms, it found that the case presented "a unique fact pattern." As a result, the Board "decline[d] to intrude into the province of the law judge" and rejected the FAA's appeal in a decision consistent with the admonitions it received in the Dillmon and Singleton cases decided by the District of Columbia Circuit of the U.S. Court of Appeals. It is nice to see the Board following the law and its own precedent in spite of the fact that it meant the FAA lost. I think the Board's reference to the "unique fact pattern" is a signal that it will be closely scrutinizing falsification cases in which an airman is able to persuade the ALJ that he or she did not have knowledge the false answer contrary to the FAA's allegations. Thus, although it will still be a challenge, the door remains open for airmen to challenge revocation orders based upon allegations of falsification. Posted by Greg January 15, 2010 One Disqualifying Condition Is All It Takes A recent NTSB opinion highlights the need to "pick your battles carefully" based upon the facts and proper procedure. The case, Petition of Cooper, involved an airman's appeal of the FAA's denial of his application for a first class medical certificate. The FAA denied the application based upon the airman's "history and clinical diagnosis of diabetes mellitus requiring oral hypoglycemic medication for control and bipolar disorder." The FAA cited FARs 67.113(a)(b)(c), 67.213(a)(b)(c), and 67.313(a)(b)(c) in support of its denial (all three regulations identify diabetes mellitus as a disqualifying condition, although FAR 67.113(a)(b)(c) is the regulation specifically applicable to a first class medical certificate). However, the FAA did not cite FARs 67.107, 67.207, nor 67.307 even though those regulations identify bipolar disorder as a disqualifying condition. The airman appealed the denial to the NTSB. However, the administrative law judge ("ALJ") dismissed the airman’s petition and terminated the case on his own accord without holding a hearing and without any request from the FAA for such a dismissal. The ALJ concluded that a hearing "would serve no useful purpose" because the Board did not have the discretion to reverse the FAA's denial. The ALJ also rejected the airman's argument that he did not have bipolar disorder as moot because the airman had admitted to having diabetes mellitus, a specifically disqualifying condition. Of course the airman then appealed the dismissal to the full Board. On appeal the airman argued that the ALJ erred when he determined that the FAA’s denial of his application based on bipolar disorder was moot in spite of his diagnosis of and treatment for diabetes. The airman contended that whether he had bipolar disorder was a factual issue that the ALJ must resolve after a hearing, and that bipolar disorder is the only condition that might disqualify him since he would otherwise meet the criteria for a special issuance medical under FAR 67.401 in spite of his diabetes mellitus. The Board agreed with the ALJ. It held that the diabetes mellitus was a specifically disqualifying condition and that alone justified the FAA's denial of the airman's application for a first class medical certificate. The Board noted that whether the airman qualified for a special issuance in spite of the diabetes mellitus was not an issue before it. Finally, the Board concluded that although the airman had presented evidence that potentially refuted the allegation that he suffered from bipolar disorder, the issue was moot in light of the diabetes mellitus. The Board's decision is not a surprise. When an airman is denied a medical based upon an admitted disqualifying condition, an appeal will, in almost all cases, be unsuccessful. In that situation, the only recourse for a denied airman is to seek a special issuance. If the FAA refuses to grant a special issuance, an airman may appeal that denial. However, since the Board defers to the FAA's discretion in denying a special issuance, the only way to be successful is to show that the denial is arbitrary or capricious (e.g. that the FAA has granted a special issuance in circumstances that are very similar to or identical with those of the denied applicant). Fortunately for the airman in this case, he can still apply to the FAA for a special issuance and, if he meets the criteria, the FAA may grant a special issuance in spite of his diabetes mellitus. (This is what he should have done before appealing the initial denial). However, the airman may, unfortunately, still have to fight the FAA's determination that he has bipolar disorder. But if the airman is able to present evidence and facts that convince an ALJ that he does not suffer from bipolar disorder, the airman may ultimately be able to receive a medical certificate. Posted by Greg 12/01/2003 - 12/31/2003 01/01/2004 - 01/31/2004 02/01/2004 - 02/29/2004 03/01/2004 - 03/31/2004 04/01/2004 - 04/30/2004 05/01/2004 - 05/31/2004 06/01/2004 - 06/30/2004 07/01/2004 - 07/31/2004 08/01/2004 - 08/31/2004 09/01/2004 - 09/30/2004 10/01/2004 - 10/31/2004 11/01/2004 - 11/30/2004 12/01/2004 - 12/31/2004 01/01/2005 - 01/31/2005 02/01/2005 - 02/28/2005 03/01/2005 - 03/31/2005 04/01/2005 - 04/30/2005 05/01/2005 - 05/31/2005 06/01/2005 - 06/30/2005 07/01/2005 - 07/31/2005 08/01/2005 - 08/31/2005 09/01/2005 - 09/30/2005 10/01/2005 - 10/31/2005 11/01/2005 - 11/30/2005 12/01/2005 - 12/31/2005 01/01/2006 - 01/31/2006 02/01/2006 - 02/28/2006 03/01/2006 - 03/31/2006 04/01/2006 - 04/30/2006 05/01/2006 - 05/31/2006 06/01/2006 - 06/30/2006 07/01/2006 - 07/31/2006 08/01/2006 - 08/31/2006 09/01/2006 - 09/30/2006 10/01/2006 - 10/31/2006 11/01/2006 - 11/30/2006 12/01/2006 - 12/31/2006 01/01/2007 - 01/31/2007 02/01/2007 - 02/28/2007 03/01/2007 - 03/31/2007 04/01/2007 - 04/30/2007 05/01/2007 - 05/31/2007 06/01/2007 - 06/30/2007 07/01/2007 - 07/31/2007 08/01/2007 - 08/31/2007 09/01/2007 - 09/30/2007 10/01/2007 - 10/31/2007 11/01/2007 - 11/30/2007 12/01/2007 - 12/31/2007 01/01/2008 - 01/31/2008 02/01/2008 - 02/29/2008 03/01/2008 - 03/31/2008 04/01/2008 - 04/30/2008 05/01/2008 - 05/31/2008 06/01/2008 - 06/30/2008 07/01/2008 - 07/31/2008 08/01/2008 - 08/31/2008 09/01/2008 - 09/30/2008 10/01/2008 - 10/31/2008 11/01/2008 - 11/30/2008 12/01/2008 - 12/31/2008 01/01/2009 - 01/31/2009 02/01/2009 - 02/28/2009 03/01/2009 - 03/31/2009 04/01/2009 - 04/30/2009 05/01/2009 - 05/31/2009 06/01/2009 - 06/30/2009 07/01/2009 - 07/31/2009 08/01/2009 - 08/31/2009 09/01/2009 - 09/30/2009 10/01/2009 - 10/31/2009 11/01/2009 - 11/30/2009 12/01/2009 - 12/31/2009 01/01/2010 - 01/31/2010 02/01/2010 - 02/28/2010 < ? law blogs # > |
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