Aviation Law Discussions

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:

Should all pilots who transport passengers be required to hold an Air Transport Pilot (ATP) certificate with the appropriate aircraft category, class and type ratings, which would raise the required flight hours for these pilots to 1,500 hours?
Should the FAA permit academic credit in lieu of required flight hours or experience?
Should the FAA establish a new commercial pilot certificate endorsement that would address concerns about the operational experience of newly hired commercial pilots, require additional flight hours and possibly credit academic training?
Would an air carrier-specific authorization on an existing pilot certificate improve safety?

The FAA's request is part of its "Call to Action" which "aims to strengthen pilot hiring, training and performance, as well as combat fatigue and improve professional standards and discipline at all airlines." An Advance Notice of Proposed Rulemaking ("ANPRM") will be published next week in the Federal Register providing a 60-day comment period within which the public may submit comments regarding the ANPRM. The ANPRM should be available here, possibly before it is published, but definitely after publication.

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.

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.

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.