All posts tagged 'FAA'

What To Do If You Have a Bird Strike

Last month I gave some tips on how to conquer summertime flying. It's hot outside, performance is decreased, the weather isn't always the best, etc. 

Well, there's one topic we didn't really discuss, and that's...

BIRDS.

Cue the dramatic music. Because they're EVERYWHERE.

Since the last post, within the past two weeks, I've had two bird strikes while instructing. Neither were catastrophic, but each one cut our flight short (so more just inconvenient).

Here's what happened each time:

Pictured above is from the first bird strike incident. A student and I were doing some laps in the pattern and were all too familiar with dodging birds from earlier lessons. So when we saw a small bird coming at us we didn't panic, just tried to curve to the side and avoid it. 

At first, it seemed we were in the clear until we heard a "ding" sound from the left side. We looked at each other then looked back at the strut and gear to see where it hit but couldn't see anything. BUT, we heard it, and even though we weren't 100% sure where it hit we decided to just make a full stop. 

After shutting down on the ramp we saw where it hit the strut. Mechanics verified our inspection and no damage was done!

Now bird strike number 2: this one was a little more dramatic (and kind of funny if you have terrible humor like me). 

Instead of a Cessna, a different student and I were in our SR20 who we named "Sherman." Don't judge, it's a great plane and therefore needed a great name! Anywho, Sherman, myself, and the student were just cleared for takeoff and started bringing the power in. As the engine instruments and airspeed were being checked we saw a black shadow hit our windshield and roll off. So, power was brought back and as we kept positive control of the plane we notified tower we had a possible bird strike and needed to taxi off to shutdown. Once approved we taxied off and shutdown as soon as possible. That's where we found some blood on the cowling...it didn't just hit the windshield.

So, I called tower back and said we'd need a tow back to the hangars. While we waited we obviously had to document the incident with a selfie! I knew this would be going on the blog too after the second time, so I wanted to capture the proof. After we got our tow back mechanics checked the engine and verified yet again no structural damage, and Sherman was back on the flight line. 

So, I know one thing you might be thinking: why did they shutdown for a bird strike? 

In both incidents, I wasn't 100% sure where the bird hit. And even then, I can't see just from the cockpit what possible damage the hit caused. Bird strikes can be kind of funny like in our selfie moment, but they can also be as serious as the famous Sully on the Hudson River case. I know another instructor who had a bird strike and kept flying because "it was fine" and later landed to find a huge dent in the flap. Even in terms of structural damage, what if it strikes the wing and ruptures a fuel tank? It's okay to be too safe and cautious in these cases. 

In the case of a bird strike, here's what to do:

  • - Try to pinpoint where the bird hit so you can estimate what kind of structural damage may have been caused, and have a game plan set to counteract any problems that could have come from it.
  • - Land as soon as possible. You can't see everything from the cockpit and there may be damage unseen to you. 
  • - Be cautious, but never panic. I can't stress this enough, don't stress!! This is when your flying will be negatively affected. 
  • - Report the bird strike. You won't get in trouble, birds can be impossible to avoid in many cases so it's likely not your fault. Report it to a controller if you're in controlled airspace or other pilots if you're at an uncontrolled field. 
  • - Do a thorough inspection after landing and shutdown, but also have a mechanic verify it before releasing it back to fly. 
  • - After landing, report it to the FAA on the FAA Wildlife Strike Database. This is used for collecting statistics and understanding how we can mitigate further incidents. 

Bird strikes usually have a minuscule impact on the flight, but imagine other cases where they come through the windshield and have even hit the pilot(s). That's a scary thought, but at the end of the day, you just have to FLY THE PLANE. Never panic, maintain control, and fly like you were taught too.

In other news, don't forget about the annual Globalair.com Scholarship! Applications close this month on August 15th. We'll be picking two recipients to help further their flight training towards a professional pilot career. 

Questions or comments to add to this article? Post below!

Arguing Aggravating And Mitigating Circumstances In Civil Penalty Cases

When the FAA assesses a civil penalty for regulatory violations, it is required to take into account both aggravating and mitigating circumstances when it calculates the penalty. Typically the FAA focuses on aggravating circumstances to support assessment of a higher civil penalty. On the other hand, respondents argue that mitigating circumstances are present that justify a lower civil penalty. But if the case ends up going to hearing, it then becomes the administrative law judge's ("ALJ") responsibility to decide (1) whether any aggravating or mitigating circumstances are present, and (2) how/whether those circumstances may impact the civil penalty assessed by the FAA.FAA

As an initial matter, the FAA has the burden of justifying the amount of the civil penalty. The ALJ must then look at the totality of the circumstances surrounding the violation to determine whether the civil penalty is sufficient to serve as a deterrent to both the respondent and the industry as a whole. As guidance, the ALJ may consider the following factors the FAA is supposed to consider per FAA Order 2150.3C FAA Compliance and Enforcement Program:

  • The nature of the violation;

  • Whether the violation was inadvertent or not deliberate. This is typically a mitigating factor, and the absence of inadvertence isn't automatically an aggravating factor;

  • If the respondent is a certificate holder, the certificate holder's level of experience;

  • The attitude or "compliance disposition" of the respondent;

  • The degree of hazard posed by the violation;

  • Any action taken by an employer or other authority;

  • The respondent's use of a certificate;

  • The respondent's violation history, if any. This is only an aggravating factor. A violation-free history is expected and is not a mitigating factor;

  • Decisional law;

  • The respondent's financial ability to absorb a sanction;

  • Consistency of sanction;

  • Whether the respondent reported the violation voluntarily; and

  • What, if any, corrective action the respondent may have taken as a result of the violation.

If you are facing a proposed civil penalty or appealing an assessed civil penalty, you should definitely determine whether any of the circumstances of your situation support any of these mitigating factors and then argue those facts to the FAA or ALJ to try and reduce the civil penalty. You can find read a good example of how this works in a recent case - In re Star Helicopters.

On the other hand, if any of your circumstances could be characterized as aggravating factors, you will also want to identify those facts, because you know the FAA will. You can then determine how best to argue against and minimize the impact those aggravating circumstances may have on the civil penalty.

Operation Safe Pilot All Over Again

As some of you may know, the Department of Justice recently issued a Press Release announcing that it had indicted four pilots for lying on their medical applications. In each case, the airman failed to disclose that he was receiving Veterans Administration ("VA") benefits for a medical condition that would likely have either disqualified the airman from receiving a medical certificate, or would have certainly subjected the airman to additional scrutiny and/or testing requirements by the FAA's Office of Aerospace Medicine.

The airmen were "caught" when the FAA cross-checked its database of airmen holding medical certificates with the VA's disability benefits database. This is reminiscent of the FAA's 2002 Operation Safe Pilot in which it performed a similar cross-check, but with the Social Security Administration's ("SSA") disability database. Operation Safe Pilot resulted in prosecution of forty pilots who were receiving SSA disability benefits for conditions that would have either disqualified the airmen from receiving a medical or would have triggered further inquiry by the FAA.

After Operation Safe Pilot, the FAA revised the application for medical certificate to include language that specifically authorizes it to conduct this type of cross-check with SSA and VA. When an airman signs the medical application, he or she is agreeing that the FAA can perform this type of search.

Since the DOJ Press Release was issued, I have received multiple calls from airmen who believe they may be in a similar situation, but have not yet been "discovered" or received any notice from the FAA. In each call the airman is, perhaps justifiably, concerned regarding his or her liability exposure for criminal prosecution. Fortunately, options, albeit not great options, are available provided the airman is not yet in the FAA's cross-hairs.

Depending upon the circumstances, airmen have at least two options for dealing with the situation:

  1. An airman can contact the FAA via letter and disclose the previously omitted information regarding both the medical condition and the receipt of disability benefits. It is also helpful to provide an explanation for the non-disclosure, to the extent that the airman has a reasonable explanation for failing to disclose the information. This may persuade the FAA that the failure to disclose was not intentional, but merely a misunderstanding etc.; or

  2. The airman can apply for a new medical certificate and disclose the medical condition and receipt of benefits on the application. Then when the airman goes to his or her aviation medical examiner ("AME") for the medical examination the airman can explain the situation to the AME.

In either instance, the airman will want to have all of his or her VA medical/disability records available to provide to the FAA. However, an airman should keep in mind that any information he or she provides to the FAA could be used against the airman in a criminal prosecution. So it is important for the airman to be very careful about what he or she says to the FAA or AME.

Although pursuing one of these two options does not guarantee that the FAA will not prosecute the airman, coming clean and correcting the record before the airman is "caught" may convince the FAA that prosecution is unnecessary. However, even if an airman is not prosecuted, it is quite likely that the FAA will follow its standard playbook and revoke all of the airman's certificates as a sanction for falsifying the airman's medical application(s).

If you find yourself in this situation, please call and I will be happy to help you through the process.

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.

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

FAA Decisions

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 obligation
s. 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.

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