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Unknown Or Inadvertent Ingestion: An Unconvincing Affirmative Defense To A Positive Drug Test Result

by Greg Reigel 1. July 2014 08:15
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If an airman tests positive for drug metabolites on a drug test but he or she didn't take the drugs, what can the airman do? Well, arguing that he or she somehow unknowingly or inadvertently ingested the drugs isn't going to save the day. A recent decision by the National Transportation Safety Board ("NTSB") rejected an airman's "unknowing ingestion" affirmative defense in that very situation.

In Administrator v. Hermance the airman submitted to a random drug test which indicated that the airman tested positive for cocaine metabolites. As in almost every case, the FAA revoked all of the airman's certificates based upon the positive drug test. The airman then appealed the revocation to the NTSB.

Prior to a hearing, the FAA moved for summary judgment arguing that the positive drug test and the airman's admission that the test was positive presented a prima facie case that the airman had violated the applicable drug testing and medical qualification regulations. The ALJ agreed that the FAA had proven its case, but the ALJ ordered a hearing to allow the airman to present evidence regarding his affirmative defenses, one of which was that he had unknowingly ingested the cocaine.

At the hearing before the NTSB administrative law judge ("ALJ"), the airman was adamant that he did not do drugs and had not ingested cocaine. He even paid several visits to his physician who was unable to determine how the cocaine metabolites ended up in the airman's urine. The airman's wife and several other witnesses also testified that the airman did not do drugs.

At the end of the hearing, the ALJ ruled that the airman's claim that he unknowingly ingested the cocaine was not a "reasonable medical explanation" for a positive drug test under DOT regulations. The ALJ determined that neither the airman nor any of his witnesses offered an explanation or reasonable theory for how the airman's tested urine specimen contained cocaine metabolites. In the absence of the necessary proof, the ALJ found the airman failed to satisfy his burden of proving his affirmative defense of unknown ingestion. As a result, the ALF affirmed the FAA's revocation order.

On appeal to the full Board, the airman again argued that he had proven his affirmative defense of unknown ingestion which explained and excused the positive drug test result. The Board initially observed that the airman had the burden of proving not only that unknowing ingestion was a legally justifiable excuse but also that he factually proved that affirmative defense.

The Board then cited 49 C.F.R. § 40.151(d), which specifically and categorically rejects the defense of unknown ingestion:

For example, an employee may tell [medical review officers (MROs)] that someone slipped amphetamines into her drink at a party [or] that she unknowingly ingested a marijuana brownie....MROs are unlikely to be able to verify the facts of such passive or unknowing ingestion stories. Even if true, such stories do not present a legitimate medical explanation. Consequently, [MROs] must not declare a test as negative based on an explanation of this kind.

The Board also observed that its precedent has consistently rejected unknown ingestion as a legitimate medical explanation for a positive drug test result.

However, even though the unknown ingestion affirmative defense was previously rejected, the Board concluded that the ALJ's granting a hearing to the airman regarding the affirmative defense was appropriate because it allowed the airman a full opportunity to offer evidence to support a legitimate medical explanation, if one existed. Unfortunately for the airman, the Board affirmed the ALJ's determination that the airman's evidence did not suffice to establish that he never ingested cocaine or that a legitimate medical explanation existed for the presence of the cocaine metabolites in his urine.

Thus, the affirmative defense of "unknown ingestion" or "inadvertent ingestion" will not, without more, save an airman from a positive drug test result. Fortunately, the airman should have an opportunity to prove some other legitimate medical explanation for the positive result. However, the airman will have the burden of proof; a burden that, unfortunately, is often not easy to meet. But at least it is a chance.

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Greg Reigel

Do You Have To Accept A Clearance If It Will Result In You Violating The Regulations?

by Greg Reigel 31. May 2014 18:08
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This situation was presented to the FAA's Office of Chief Counsel in a request for a legal interpretation. Specifically, an individual requested an interpretation of the phrase "necessary for takeoff or landing" as used in 14 C.F.R. § 135.183(b). Apparently the individual operated single-engine Cessna Caravan aircraft in Part 135 operations between the Bahamas and Fort Lauderdale, Florida, along the FAA's published DEKAL TWO arrival route. When the flight reached the DEKAL fix, 30 miles from shore, air traffic control (ATC) usually instructed the flight to descend to 4,000 feet to separate turboprop traffic from jet traffic.

In response, the Office of Chief Counsel issued a Legal Interpretation which initially observed that Section 135.183 prohibits a single engine aircraft, when carrying passengers, from operating over water unless the aircraft is within power-off gliding distance from land, or when it is necessary for take off or landing. It also noted that to determine whether an altitude is "necessary for takeoff or landing" you have to look at "whether that portion of the flight is necessary to permit the pilot to transition between the surface and the en route or pattern altitude in connection with a takeoff or landing."

Applying the facts it was provided, the FAA explained that descent to 4,000 feet at the DEKAL fix would not be necessary for landing because the altitude was assigned for traffic separation, and the Caravan's performance would not require it to be at the assigned altitude for approach into the destination airport. In response to the individual's concern regarding compliance with 14 C.F.R. § 91.123 (requiring compliance with ATC clearances and instructions), the Interpretation cited Chapter 4-4-1(a) of the Aeronautical Information Manual for the proposition that "an ATC clearance 'is not authorization for a pilot to deviate from any rule, regulation, or minimum altitude.'"

It then concluded that, rather than accepting a clearance that would put the Caravan beyond power-off glide distance from shore, and violate Section 135.183, "the operator would be required to select another route or request a different clearance in order to maintain an altitude that keeps the aircraft within power off glide distance from shore."

This Interpretation is a good reminder that the pilot is ultimately responsible for compliance with the regulations applicable to his or her flight. Yes, you need to comply with ATC instructions to avoid violating Section 91.123. However, if ATC's instructions would result in violation(s) of the regulation(s), the pilot has a duty to reject those instructions. Not an easy decision, I know. Hopefully you won't find yourself in that position.

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Greg Reigel

Aircraft Bailment And The Duties Owed By A Maintenance Facility To An Aircraft Owner

by Greg Reigel 2. May 2014 17:34
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A maintenance facility recently asked me to explain what duties it may owe to an aircraft owner when the owner leaves his or her aircraft with the facility for service, other than the responsibility for performing repair or maintenance services on the aircraft as requested by the aircraft owner. This situation creates what many states refer to as a "bailment" and it does impose certain additional duties upon the maintenance facility.

So, what is a bailment? Well, the bailment relationship is created when:

  1. the aircraft owner (the "bailor") delivers the aircraft to the maintenance facility (the "bailee");
  2. the aircraft owner/bailor does not transfer ownership of the aircraft to the maintenance facility/bailee;
  3. the maintenance facility/bailee accepts the aircraft based upon an agreement with the aircraft owner/bailor that the aircraft will be returned to the aircraft owner/bailor; and
  4. return of the aircraft to the aircraft owner/bailor, the aircraft must be in at least the same condition it was in when delivered to the maintenance facility/bailee.

Once the bailment relationship is created, as a bailee of the aircraft, the maintenance facility has a duty to exercise reasonable care with respect to the aircraft based upon the maintenance facilities acceptance of possession of the aircraft and its subsequent exclusive custody and control over the aircraft. The maintenance facility/bailee must ensure that the aircraft is in at least the same condition as it was when it was delivered to the maintenance facility/bailee.

If the aircraft is damaged while it is in the exclusive custody and control of the maintenance facility/bailee and it is damaged (e.g. the aircraft is lost, stolen, damaged or destroyed), the maintenance facility/bailee will be responsible for the damage unless the damage occurred in spite of the maintenance facility's/bailee's exercise of reasonable care. And, the maintenance facility/bailee will have the burden of proving that it was not at fault and the damage occurred despite its use of reasonable care.

To be clear, the maintenance facility/bailee doesn't become an insurer of the aircraft under the bailment relationship. However, the maintenance facility/bailee must use reasonable care; the type of care a reasonably prudent maintenance facility would exercise with respect to its own aircraft under similar circumstances which, of course, may vary depending upon the time and place or the custom and usage of maintenance facility.

Additionally, if the maintenance facility/bailee fails or refuses to deliver the aircraft to the aircraft owner upon demand, or if it uses or permits others to use the aircraft contrary to the aircraft owner's/bailor’s instructions, then the maintenance facility/bailee could also be liable for conversion. In that situation, the maintenance facility/bailee could be responsible for the value of the aircraft at the time of the conversion plus interest from that time.

However, the duty to return the aircraft is qualified: a maintenance facility/bailee may condition return of the aircraft upon the aircraft owner proving that the owner has title or right to possession of the aircraft, so long as the maintenance facility/bailee then does, in fact, provide an opportunity for the aircraft owner/bailor to present proof of title or right to possession. This rule is intended to protect the maintenance facility/bailee from being placed in the difficult position of risking a suit by the rightful owner of the aircraft for converting the aircraft when the maintenance facility/bailee gives the aircraft to another person who claims to be the owner of the aircraft. If the maintenance facility/bailee does not receive such proof, the maintenance facility/bailee will likely not be liable for conversion.

Unfortunately, this can potentially leave a maintenance facility/bailee in the unenviable position of having to decide to whom it should release the aircraft and to suffer the consequences if its decision turns out to be incorrect. In situations where the maintenance facility/bailee may be presented with multiple bills of sale or documents indicating security interests held by creditors, it may be difficult to figure out which party has the right to delivery and possession of the aircraft.

Another situation that may impact the decision to deliver the aircraft may arise if the maintenance facility/bailee has no been paid for its services. Depending upon the state in which the maintenance facility/bailee is located, it may be necessary for the maintenance facility/bailee to retain possession of the aircraft if it wants to assert a mechanic's or artisan's lien against the aircraft to secure payment of the amount owed for the work it performed. Retaining possession of the aircraft to perfect the lien would excuse the maintenance facility/bailee from complying with the aircraft owner's request for return of the aircraft and, as long as the lien claim was valid, the maintenance facility/bailee would likely not be liable for conversion of the aircraft.

So, what can a maintenance facility do to protect itself from potential liability under a bailment relationship? For starters, the maintenance facility should ensure that it is, in fact, exercising reasonable care with respect to the aircraft in its custody. Maintaining custody and control of the aircraft and taking reasonable precautions to minimize the opportunities for damage to aircraft will go a long way to avoiding claims.

Another option is to include language in the work order or service request signed by the aircraft owner that limits the maintenance facilities liability for negligent damage to an aircraft. This may include exclusion of damages for loss of use or diminution of value and it may cap or limit the total amount of damages for which the maintenance facility could be liable. Other language may be included to require that the aircraft owner carry certain minimum insurance and that the maintenance facility be protected by the owner's insurance.

In the end, when the maintenance facility accepts an aircraft owner's aircraft for service, in most cases a bailment relationship will result. Maintenance facilities should understand the duties and liability to which they may be exposed as a bailee in that relationship. With proper procedures and contractual planning, maintenance facilities can comply with their duties and limit their liability exposure in the bailment relationship.

What Is A Security Violation Worth?

by Greg Reigel 28. February 2014 15:06
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Have you ever wondered just how much trouble you would be in if, for example, you forgot that your Zippo lighter was still in your pocket when you tried to go through the security checkpoint at an airport? Well, a quick review of the TSA's Enforcement Sanction Guidance Policy indicates that you could be facing a fine of $250.00 to $1,500.00. A firearm, depending upon whether or not it is loaded, could net you a fine anywhere from $1,500.00 to $7,500.00 plus a referral for criminal prosecution. Of course, where you end up in these ranges will depend upon the circumstances of the violation and whether any of the aggravating or mitigating factors identified in the Policy are present.

In addition to sanctions for individual violations, the Policy also includes sanction guidance for security violations by aircraft operators, airport operators and by "indirect air carriers" such as cargo operators. The Policy provides ranges of fines, which opens the door for discretion in the actual amount that is assessed against a violator. This discretion presumably takes into account any aggravating or mitigating factors. Enforcement of a violation for which a fine is the penalty proceeds as a civil penalty action pursuant to a Notice of Proposed Civil Penalty.

So, if you want to assess your liability exposure (both civil and criminal), in addition to the delay and embarrassment associated with being caught, you can review the Enforcement Sanction Guidance Policy to get an approximate idea of just how much hot water you would be in for a particular type of violation. Not something I would recommend. But it makes for interesting reading.

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Greg Reigel

Administrative Actions: The FAA's "Slap on the Wrist"

by Greg Reigel 1. January 2014 21:33
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In past articles we have talked about FAA legal enforcement actions in which the FAA has suspended or revoked a mechanic's certificate or the certificate of an air carrier or repair station, or has assessed a civil penalty against the certificate holder.  In those situations, the FAA believed the regulatory violations committed by the certificate holders warranted the "pound of flesh" the FAA extracted with suspension or revocation of the offending party's certificate(s) or the assessed civil penalty.

But what happens when the FAA believes that compliance can best be obtained through some other action short of a legal enforcement action?   (Yes, it does happen.)  In those situations, the FAA has the option of addressing the certificate holder's alleged violations with a "slap on the wrist" through an administrative action.

When Does The FAA Use Administrative Action?

The decision of whether to use administrative action is usually made by the FAA inspector investigating the alleged violation, or his or her local office.  An FAA inspector may pursue an administrative action when the following criteria are satisfied:

1.         Where legal enforcement action is not required by law and administrative action would serve as an adequate deterrent to future violations;

2.         The violation does not indicate that the certificate holder lacks qualification to hold a certificate;

3.         The violation was inadvertent and was not the result of intentional conduct;

4.         The violation was not a substantial disregard for safety or security and the circumstances of the violation are not aggravated;

5.         The alleged violator has a constructive, compliance oriented attitude; and

6.         The alleged violation does not indicate a trend of noncompliance with, or a disregard for, the FAA’s regulations

Administrative Actions: The FAA's

By way of example, administrative action has been considered warranted in situations where a mechanic failed to make an appropriate approval for return to service maintenance record entry in an aircraft's logs after maintenance was performed or failed to accurately track airworthiness directive compliance in an aircraft's logs.  However, keep in mind that each situation is different.

And although FAA Order 2150.3B indicates that administrative action shouldn't be taken "solely as a matter of convenience or when evidence to support a finding of a violation is lacking, or in cases that are stale", in many cases I personally believe that is exactly what happens.  Thus, depending upon the facts and the FAA's analysis of the above six criteria, the FAA may not consider administrative action appropriate for all incidences of these examples of violations.

If the FAA determines that legal enforcement action is not necessary in a particular case, 14 C.F.R. § 13.11 provides the FAA with the authority to issue a warning letter or letter of correction.

The Warning Letter

The warning letter will identify the conduct at issue and the regulation(s) that the conduct allegedly violates.  The warning letter will usually state that the FAA expects the alleged violator's future compliance with the regulations.  It may also offer the opportunity for the certificate holder to submit additional information in explanation or mitigation for inclusion in the file, in the event that you hadn't already provided information in response to the letter of investigation which preceded the warning letter.

Although the warning letter is not a formal finding of violation, it stays in the certificate holder's file at the FAA for a period of two years and is then expunged from the file.  In the event of a future investigation or enforcement action prior to being expunged, the FAA will consider the warning letter when it decides how to proceed in that later case.

The Letter of Correction

The letter of correction is similar to a warning letter.  However, in addition to reciting the conduct and regulations that were allegedly violated, the letter of correction also contains an agreement under which the certificate holder agrees to take certain corrective action to address the alleged violation.  The corrective action may require the certificate holder to participate in remedial training or counseling with the FAA inspector, adopt policies or procedures to address deficiencies identified by the FAA, verify compliance with respect to matters that were not at issue in the investigation or take any other actions agreed to by the certificate holder and the FAA.

If the certificate holder fails to complete the agreed upon corrective action within the time period specified in the letter, the FAA could then proceed with legal enforcement action based upon the alleged violations.  Once completed, the letter of correction is included in the certificate holder's file at the FAA and will stay in the file for a period of two years until it is expunged.

As with the warning letter, the letter of correction is not a formal finding of violation.  However, in the event of a future investigation or enforcement action, the FAA will also take the letter of correction into consideration when it decides how to proceed in that later case.

Before agreeing to a letter of correction, it is important that the certificate holder understand the corrective action required and the criteria that will be used for determining whether action has been satisfactorily completed.  This will hopefully prevent a situation in which the certificate holder and the FAA disagree upon whether the certificate holder has completed the corrective action as required.

Conclusion

The slap on the wrist of an administrative action is definitely more acceptable to a certificate holder than having to defend against a certificate or civil penalty action, or having a finding of violation in the certificate holder's record.  Administrative action also makes more sense from an aviation safety perspective.  After all, are certificate holders actually going to be safer after a suspension or assessment of a civil penalty?  Probably not.

Unfortunately, up until recently it seemed like the majority of investigations resulted in the FAA pursuing enforcement action rather than resolving those cases through administrative action.  However, now, with the fiscal restraints imposed by sequester, it seems the FAA's use of administrative actions may increasing.  And that's good news, both for certificate holders and for aviation safety.

 

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Greg Reigel





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