Gregory J. Reigel
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August 17, 2018

No, A Court Can't Force The NTSB To Explain Why It Hasn't Completed An Investigation.

In a recent case, In re Show Cause Order Dated December 15, 2017, a federal court in Maryland has quashed a state court's order requiring the NTSB to designate a person to appear on its behalf and explain why the NTSB had not yet finished an investigation into a gas explosion. Although this case doesn't involve an aircraft accident, it is both analagous and instructive with respect to the autonomy the NTSB has with respect to its investigations.

The case arose out of a gas explosion which the NTSB was investigating and during which it had taken certain physical evidence into custody for analysis in making its determination regarding the probable cause of the explosion. As you might expect, around the same time multiple lawsuits were filed alleging that the explosion was caused by the negligence of the defendants and seeking to recover damages suffered as a result of the explosion.

Although the case does not provide the full background, I suspect that at least some of the physical evidence being held by the NTSB was of interest to the parties in the litigation and they were frustrated by the length of time it was taking the NTSB to complete its investigation and release the physical evidence. Certainly not an uncommon situation and, given the NTSB's limited manpower and the broad scope of its investigatory charge, the lengthy time required to complete an investigation is, in many cases, understandable.

In any event, at some point in the underlying state court litigation the court entered an order requiring the NTSB to "designate an official to appear before the court in order to show cause as to why the agency should not be held in contempt for its failure to complete its investigation regarding the cause of the explosion and to provide dates by which the NTSB would complete its investigation and release the physical evidence in its custody."

Well, when the NTSB received the order it promptly removed the case to federal court and asked the federal court judge to quash (reject or void) the order based upon the doctrine of sovereign immunity. (Sovereign immunity precludes lawsuit against the government unless the government has consented to the type of lawsuit). The Court found that the state court order "seeks to compel the NTSB, a federal agency, to send a federal official to appear in state court for the purpose of divulging information obtained in his or her official capacity", and thus the action was barred by sovereign immunity unless the government consented. Since the NTSB did not consent, neither the state nor the federal court had jurisdiction to compel the NTSB to comply with the order.

As this case shows, motions and orders will simply incur time and expense that will not, at the end of the day, get the NTSB to move any faster than it otherwise would and, in fact, may even create delay arising from the NTSB having divert its attention from its investigation to deal with the distraction of such motions/orders. So, the moral of the story, as frustrating as it may be, is: Litigants (and others) just have to wait for the NTSB to complete an investigation and/or release physical evidence in its custody.

Posted by Greg

August 10, 2018

Understanding and Complying With Aircraft Truth in Leasing Requirements

If you lease an aircraft that is a "large civil aircraft", as defined in 14 C.F.R. § 1.1 (12,500 pounds, maximum certificated takeoff weight), you should be aware of the truth-in-leasing ("TIL")requirements of 14 C.F.R. § 91.23. Section 91.23(e) defines a lease as "any agreement by a person to furnish an aircraft to another person for compensation or hire, whether with or without flight crewmembers." Assuming your arrangement for use of the large civil aircraft falls within this definition, then you must also comply with the following TIL requirements:
  • The lease agreement must be in writing;

  • The lease must include a written TIL clause that is in bold print, at the end of the lease, and immediately preceding the space for the parties' signatures, which includes:

    1. Identification of the Federal Aviation Regulations ("FAR") under which the aircraft has been maintained and inspected during the 12 months preceding the execution of the lease and certification by the parties that the aircraft is in compliance with applicable maintenance and inspection requirements for the operations contemplated by the lease (e.g. typically Part 91 since TIL requirements don't apply to Part 121 or 135 air carrier lessees);

    2. The name, address and signature of the person responsible for operational control of the aircraft under the lease, and certification that each person understands that person's responsibilities for compliance with applicable FAR;

    3. A statement that an explanation of factors bearing on operational control and pertinent FAR can be obtained from the responsible Flight Standards District Office ("FSDO");

  • A copy of the lease must be carried in the aircraft during all operations under the lease;

  • A copy of the lease must be sent to to the Aircraft Registration Branch, Attn: Technical Section, P.O. Box 25724, Oklahoma City, OK 73125, within 24 hours of execution; and

  • At least 48 hours before takeoff of the first flight under the lease the lessee must inform the responsible Flight Standards office by telephone or in-person of:

    1. The location of the airport of departure;

    2. The departure time; and

    3. The registration number of the aircraft involved.

In the past, the regulation required that the 48-hour notification be provided to the "Flight Standards district office nearest the airport where the flight will originate." However, when the FAA recently updated Section 91.23, it replaced this language with the a less specific reference to "the responsible Flight Standards office." And, unfortunately, this change in language has now created some confusion as to which FSDO the notice must be given: the FSDO where the first flight will originate, or the FSDO responsible for the lessee's home base?

However, based upon a review of the Final Rule that made the language change, as well as AC 91-37B, Truth in Leasing, I think the notice must still be provided to the FSDO with jurisdiction over the airport from which the first flight will originate consistent with past practice. Here's why:

The Final Rule states "[t]his rule does not change any existing processes. Processes for public interaction with AIR and AFS (such as application processes, reporting processes, and oversight processes) are documented in orders, notices, advisory circulars (ACs), and policy statements. Where general references to "the FAA" are introduced in specific sections, existing advisory material for the affected section specifies the AIR and AFS offices responsible for the function identified in that Section."

And then going back to AC 91-37B, Paragraph 10 states that the 48 hour notification must be made "to the FAA", with further clarification in Paragraph 10.1 that the "notification must be made to the FSDO nearest the airport where the lease or contract flight will originate." So, I don’t think the Final Rule’s language changes past practice – which was to provide notification to the FSDO with jurisdiction over the airport where the first flight under the lease originates.

However, I do think that it would make more sense for the notification to be made to the FSDO nearest the operator’s home base (and the language in AC 91-37B "where the lease or contract flight will originate" could support this position since it could be read to require notification to either the FSDO where the lease originates (home base) or where the first flight originates). And since one of the policy factors underlying the TIL requirement is FAA oversight lessees/operators, it would certainly make sense for the notification to be provided to the FSDO with jurisdiction over the lessee/operator rather than a FSDO with no connection to the lessee/operator and within whose jurisdiction the first flight under the lease only happens to originate.

But for now, the conservative approach is to provide notice to the FSDO with jurisdiction over the airport where the first flight under the lease originates. And rather than providing the notice via telephone, the notice may also be provided via facsimile which then provides the lessee with proof of delivery of the notice in the event that a dispute ever arises as to whether the notice was given to the FAA.

Posted by Greg

August 03, 2018

Paperwork Tips For Smooth Border Crossings In General Aviation Aircraft

For those of you who have flown into or out of the U.S. in a general aviation aircraft, you know that extra thought and planning are involved in these flights. And while the process may seem daunting to the uninitiated, it really isn't if you pay attention to the necessary details. Here are a couple of the paperwork "gotchas" that can create problems for pilots if they are not considered and addressed prior to a cross border flight:
  • Aircraft Documents. The aircraft must have a current and valid registration certificate and an airworthiness certificate. If the registered owner of the aircraft is a corporation or a limited liability company, that entity must be an "active" entity. If it isn't, then the aircraft's registration is likely invalid. Operating an aircraft without a valid registration could subject the pilot/operator to both prosecution and civil penalties.

    If the aircraft is not owned by the pilot/operator, a copy of a lease, use agreement or other documentation authorizing use of the aircraft by the pilot/operator will be required. If the aircraft was recently purchased and is being operated with a temporary registration pending receipt of the hard-card registration certificate from the FAA, the aircraft may not be operated internationally unless a Declaration of International Operations is filed with the FAA. The FAA will then fax a 30-day Temporary Certificate of Aircraft Registration or "fly wire" permitting flights outside the U.S.

  • Pilot/Passenger Documents. The pilot will need a valid airman certificate, a valid medical certificate, and although not required for operation in the U.S., depending upon the destination the pilot may also need a restricted radiotelephone operators permit. Also be aware that if the pilot is operating under the provisions of 14 C.F.R. Part 68 ("Basic Med"), very few other countries currently recognize Basic Med in lieu of a valid medical certificate. As a result, for most international destinations the pilot will need to hold at least a third-class medical certificate.

    The pilot and each passenger must have a valid U.S. passport or other valid DHS approved travel document. And it is critical that the information on the pilot/passenger documentation matches the information provided to U.S. Customs Border Patrol ("CBP") through its eApis system. If the information does not match, entry into the U.S. could be denied or delayed, and the pilot/operator could be subject to civil penalties.

If you pay attention to the paperwork/document requirements for operating a general aviation aircraft to/from the U.S., you will avoid the turbulence and build-ups that can otherwise complicate cross border flights. For more information on cross border travel requirements, you can review the CBP website or the U.S. State Department website.

Posted by Greg

July 10, 2018

Timing Is Critical When Appealing An Emergency Order Of Revocation

A recent NTSB decision highlights the imperative of appealing an emergency order of revocation in a timely manner, and the continuing, near-insurmountable hurdle of trying to prove "good cause" if the appeal deadline is missed. In Administrator v. Muriuki the FAA issued an emergency order revoking the airman's medical certificate. Per 49 C.F.R. § 821.53(a) the airman had 10 days within which to appeal the order. The airman did not file his appeal until 4 days after it was due. However, it is possible for the Board to accept a late-filed appeal if the airman is able to show "good cause" for delay in filing. Unfortunately, the Board rejected the airman's "good cause" argument and rejected the late-filed appeal.

What is noteworthy about this case isn't the fact that the Board is strict about timing requirements for filing appeals. That isn't new. But what is important about this case is how the Board continues to reject legitimate "good cause" arguments asserted by airmen.

In this case, the FAA issued a notice of proposed certificate action ("Notice") in December 2017 with respect to the airman's medical certificate. The emergency order revoking the airman's medical certificate was not issued until April 13, 2018. During the time period from December 2017 through mid-April 2018 the airman was traveling away from his home but had made arrangements for someone to check his mail. However, the person who was supposed to be checking the airman's mail never checked the mail when the FAA issued the emergency order and so the airman was not aware that the order was issued.

Rather, on April 20, 2018 the airman went in to apply for a new medical certificate and was told by the aviation medical examiner ("AME") that he could not issue a medical and the airman should contact the FAA directly for more information. The airman called the the FAA on April 20, April 23, and April 24, and, finally, on April 25, 2018 someone from the FAA told the airman that the FAA had sent him something in the mail, although the individual apparently did not tell the airman exactly what had been sent.

So, the airman then contacted the person who was supposed to be checking his mail who then confirmed to the airman that the emergency order was sent to the airman. The airman retained an attorney that day and, after the attorney contacts the FAA attorney the following day to obtain a copy of the order, the attorney filed an appeal on behalf of the airman on April 27, 2018 - a mere 4 days after it was otherwise due.

In analyzing the case the Board observed that "good cause" is defined by two criteria: (1) factors outside of respondent's control prevented him from knowing or acting upon the emergency order, and (2) once he was aware, he acted diligently to initiate his appeal. Based upon the facts, the Board believed that the airman's arrangements for having his mail checked were inadequate because the airman did not explain how often his mail was being checked and admitted that during the week when the emergency order was issued the mail was not checked at all.

It was also unhappy with the fact that the airman followed the AME's instructions and attempted to contact the FAA to find out what was going on, rather than going back and checking his mail. According to the Board, the airman also could have contacted the FAA investigator handling the case and he should have done more to assure that the mail was checked and he was notified if/when something from the FAA was received. Thus, it concluded that it was not convinced circumstances beyond the airman’s control prevented him from knowing about the emergency order.

And even if that weren't the case, the Board went on to find that the airman's actions after the AME refused to issue him a medical did not show diligence. The Board faulted the airman for only trying to call the FAA and waiting 5 days before going back to have his mail checked. (Of course this ignores the fact that it took the airman 5 days to get an answer out of the FAA, and an incomplete answer at that).

At the end of the day, this case makes clear, yet again, that you can expect the Board to be almost completely unforgiving if you file an appeal late. Although you may request that the Board accept the late-appeal based upon "good cause", please realize that the burden of proving "good cause" is nearly insurmountable.

So, if you are the subject of an FAA investigation, make sure you check your mail every day. If you can't, have someone you trust check it for you. And if you receive something from the FAA, don't ignore it. Open it immediately. The time for you to defend and protect your rights may already be ticking. And if you do receive an order, emergency or otherwise, from the FAA, do not delay in taking action. It is much better to argue the merits of an FAA decision rather than whether you met the timing requirements for an appeal of the FAA's decision.

Posted by Greg

July 02, 2018

"As-Is, Where-Is" Language In An Aircraft Purchase Agreement: Does It Mean What It Says?

The majority of aircraft purchase agreements I come across these days include language stating that the aircraft is being purchased “as-is” or “as-is, where-is.” Additional disclaimer language will say that the seller is not making, nor is the buyer relying upon, any representations or warranties regarding the condition of the aircraft, and may even go so far as to state that the buyer is only relying upon its own investigation and evaluation of the aircraft.

But does this language really mean what it says? Is it enforceable? The answer to both questions is "yes."

If you would like to read more about why this language is included in purchase agreements and its potential scope, please read my latest article on the topic: Does The “As-Is” Language In An Aircraft Purchase Agreement Make A Difference?

Posted by Greg

May 04, 2018

If You Want To Appeal An FAA Order/Decision, Make Sure It Is Final.

It isn't uncommon for someone to be unhappy with an FAA decision. Fortunately, our laws provide a mechanism for appealing or objecting to certain final orders or decisions issued by the FAA. Specifically, 49 U.S.C. § 46110(a) provides that a person with a substantial interest in the FAA's order/decision "may apply for review of the order by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit or in the court of appeals of the United States for the circuit in which the person resides or has its principal place of business." The petition must be filed not later than sixty (60) days after the order is issued unless reasonable grounds exist for filing later than the 60th day.

However, in order for an FAA order to be subject to review by a court, the order must be "final." What does it mean to be "final"? Well, the courts have held that two requirements must be met: (1) the FAA's action must evidence the completion of the agency's decisionmaking process, rather than simply tentative or subject to further consideration; and (2) the FAA's action must determine certain rights or obligations, or result in legal consequences. Courts also consider whether the decision or order is at a stage where judicial review would interfere with or disrupt the FAA's administrative/decisionmaking process.

So, for example, if the FAA issues a letter merely restating a previously adopted interpretation of a regulation, that would not be considered a a "final" decision. However, if the FAA issued a new interpretation or clarified an existing interpretation, in either of those instances it is quite possible that the FAA's action would be considered a "final" decision subject to appeal.

Additionally, if the FAA issues a letter or notice in which it indicates that a party's practices may potentially violate the law, that letter or notice may not necessarily be the completion of the agency's decisionmaking process such that it determines a party's legal rights or obligations. For example, neither a letter of investigation nor a notice of proposed certificate action is considered final agency action because the FAA hasn't yet determined whether it will actually pursue enforcement action and issue a final order subject to appeal.

As a result, if you are concerned about something the FAA says or does, before you run to the courthouse to file a petition asking a Judge to tell the FAA it is wrong, make sure the FAA's action is actually a "final" action subject to judicial review. Otherwise, you could end up wasting time and money only to have the Judge tell you that the Court doesn't have the authority to even consider your arguments.

Posted by Greg

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

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