All posts tagged 'FAA Enforcement' - Page 3

Why Did The FAA Send Me A Request For Re-Examination?

As you may know, if the FAA discovers evidence that leads it to reasonably question an airman’s qualifications to exercise the privileges of the airman’s certificate, the FAA may issue a "request for re-examination." The "evidence" is usually a situation or circumstances involving the airman and his or her operation of an aircraft. And, unfortunately for airmen, it doesn't take much for the FAA to have a reasonable basis for requesting the re-examination. As long as the FAA can show that an airman's lack of competence or qualification was a factor in causing the situation, then the request will be considered reasonable.

So, what types of situations may result in a request for re-examination? Here are a few, in no particular order:

  1. Running out of fuel.

  2. Landing with the gear up.

  3. Landing or taking off in a manner that results in damage to your aircraft (e.g. prop strike, tail strike, scraping a wingtip on the ground, striking runway lights etc.).

  4. Continuing a VFR flight into IMC.

  5. Getting caught on top of an overcast layer of clouds when you are not instrument rated or equipped.

  6. Taking off or landing on a runway at a tower controlled airport when you have not received take-off or landing clearance.

  7. Taking off from or landing on a taxiway.
  8. Getting into an accident with your aircraft.

  9. Getting caught operating your aircraft over gross.

  10. Landing at the wrong airport.

  11. Entering Class B, C or D airspace without first establishing communications with ATC controlling the airspace.

  12. Colliding with another aircraft in flight, or on the ground.

  13. Operating an aircraft on a flight without appropriate or current charts necessary for that flight.

This is only a partial list of some of the more obvious situations that may trigger a request for re-examination of an airman by the FAA. The list can, and does, go on.

Hopefully this will never happen to you. But if it does, it isn't the end of the world. Pilots survive, and even learn from, requests for re-examination all the time. For more information and tips on responding to requests for re-examination, please read my article: The 709 Ride.

NTSB No Longer "Bound By" FAA's Choice Of Sanction

As you may be aware, the Pilot's Bill of Rights mandated changes to the way FAA enforcement cases are handled by the NTSB. One of the significant changes to the conduct of hearings relates to the deference the administrative law judge ("ALJ") must give to the FAA's choice of sanction (e.g. suspension versus revocation). Before the Pilot's Bill of Rights, 49 U.S.C. 44703(d)(2) provided that the NTSB was

"bound by all validly adopted interpretations of laws and regulations the [FAA] administrator carries out and of written agency policy guidance available to the public related to sanctions to be imposed under this section unless the Board finds an interpretation is arbitrary, capricious, or otherwise not according to law."

And prior to the Pilot's Bill of Rights the NTSB had, in fact, consistently held that it was bound by (1) the FAA's choice of sanction derived from the Sanction Guidance Table contained in FAA Order 2150.3B and (2) previous cases approving the FAA's choice of sanction for particular types of violations.

The Pilot's Bill of Rights expressly eliminated this "bound by" language. The NTSB is no longer required to simply accept the sanction proposed by the FAA in an enforcement case. Rather, the NTSB is permitted to select what it believes to be the appropriate sanction based upon the facts of the cases and any mitigating or aggravating circumstances. However, the Pilot's Bill of Rights did not address what impact this change in language might have on the Board's reliance upon prior case law and precedent. Fortunately, a recent Board decision addressed this issue.

In Administrator v. Jones, the Board was reviewing an ALJ's decision in an intentional falsification case in which the ALJ adopted the FAA's time-tested assertion that revocation of all airman certificates is the appropriate sanction in such cases. Consistent with the Pilot's Bill of Rights, the Board initially recognized that it was not bound by the FAA's choice of sanction. It then went on to state that "we are reluctant to engage in sanction comparison to cases decided prior to the enactment of the Pilot's Bill of Rights." Thus, rather than rely upon case law and precedent developed while the NTSB was still subject to the "bound by" requirement, the Board will now perform its own analysis to determine whether the sanction sought by the FAA in a particular case is reasonable and appropriate.

However, it is important to understand that this does not change the deference the Board must give an administrative agency's interpretation of its regulations and proposed sanctions for violation of those regulations. If the agency's interpretation and choice of sanction is reasonable and not otherwise arbitrary, capricious, or manifestly contrary to the regulation, the Board must still defer to that position. But, at least the NTSB is no longer required to simply "rubber stamp" the FAA's choice of sanction without performing some analysis as to whether it is reasonable. And that is good news for airmen.

When Aircraft Touch On The Ramp

It's a beautiful day. You are sitting in a chair outside your favorite FBO at the local, uncontrolled airport watching the traffic. An aircraft is taxiing onto the ramp towards an aircraft that is poorly parked too close to the taxiway line. From your perspective, it looks like it will be close, but you can't tell for sure whether the taxiing aircraft has enough room to pass the parked aircraft. The next thing you hear is the unmistakable sound of metal scraping against metal. Not good.

Fortunately, this situation doesn't occur too often. However, it does happen. A recent enforcement case involved this very scenario. In Administrator v. Smith, an airman was taxiing his Cessna 210D aircraft equipped with Flint Aero tip tanks following the taxiway lines. At the time, the tail cone of a Citation XL extended approximately four feet over the line delineating the perimeter of the taxiway. The Cessna 210 collided with the Citation's tailcone resulting in a scratched area on the Cessna's wing tip/tip tank.

Shortly after the collision, the airman allegedly inspected the Cessna and observed that the wing tip/tip tank merely had a paint scratch. Believing that the Cessna was in an airworthy condition despite the collision, the airman then flew the aircraft to his home airport. At some point thereafter, the FAA became involved.

After investigating, the FAA issued an order seeking to suspend the airman's private pilot certificate for 60 days based upon alleged violations of 14 C.F.R. §§ 91.7(a) (operating an aircraft in an unairworthy condition), and 91.13(a) (careless and reckless). The airman appealed the order and a hearing was held before a National Transportation Safety Board administrative law judge ("ALJ").

At the hearing, the FAA argued that after the collision the Cessna was not airworthy because it did not conform with its type certificate until someone inspected it and compared it to the Cessna manual to confirm that it did, in fact, conform to the type certificate. Ironically, both of the FAA inspectors who testified at the hearing admitted they did not review the Cessna's type certificate or the supplemental type certificate ("STC") applicable to the Flint Aero tip tanks to determine whether the Cessna complied with its type certificate.

The airman argued that the STC was a modification to the Cessna's original type certificate and, as a result, it was necessary to actually review the aircraft’s type certificate, as modified by the tip tank STC in order to determine whether the aircraft was unairworthy under § 91.7(a). However, the ALJ disagreed and held the airman should have had the aircraft inspected after the collision before flying it.  As a result, he concluded that the airman was aware of the potentially unsafe condition when he operated the aircraft after the collision in a violation of § 91.7(a). The airman then appealed to the full Board arguing, among other things, that the FAA did not meet its burden of proving the § 91.7(a) violation.

The Board initially observed that the FAA may prove a § 91.7(a) violation by either showing that (1) an aircraft did not comply with its type certificate or (2) the aircraft was not in a condition for safe operation. With respect to the first prong of the test, the Board noted the absence of the Cessna's type certificate, type certificate data sheet, applicable airworthiness directives, or STCs in the record and the lack of testimony that the FAA inspectors reviewed those documents to determine whether the Cessna complied with its type certificate or STCs.

Regarding the second prong, the Board cited its precedent which allows the FAA to simply prove whether the airman "knew or should have known" the aircraft was not in a condition for safe operation, rather than proving the airman had "actual knowledge" that the aircraft was not in a condition for safe operation. It also noted that "a collision resulting in visible damage further requires an aircraft to undergo an inspection to ensure its continued airworthiness."

The Board then concluded that the damage to the Cessna constituted both actual and implied knowledge on the airman's part that an inspection was necessary. However, that wasn't the end of the story. The Board then determined that the absence of the type certificate or substantive testimony on either of the two requisite prongs of the airworthiness test meant the FAA had only shown the aircraft "might not have been" in a condition for safe operation.

The Board stated "[a]t this juncture, it is not clear to us that the Administrator fulfilled his burden in this regard by proving either the aircraft did not comply with its type certificate or was not in a condition for safe operation." As a result, the Board remanded the case to the ALJ asking him to provide specific factual findings to support his conclusions of law that the aircraft was not in a condition for safe operation.

What can we learn from this? Well, if you are ever involved in a situation that results in visible damage to your aircraft, even if it appears to be only scratched paint, the safe/conservative approach is to have an A&P inspect the aircraft and sign off on its airworthiness. Yes, this may cost a little money. However, it will be a lot less money than you would otherwise have to spend defending yourself in an enforcement action. And, if the FAA comes knocking alleging that you knew or should have known of a potentially unsafe condition with your aircraft and you operated it anyway, and you know the FAA will, you will have proof to the contrary.

EAJA Attorney Fee Awards are Hard to Get, Even When the FAA Can't Get It's Story Straight

A recent NTSB decision illustrates, once again, how difficult it can be for an airman who successfully defends against the FAA to obtain an award of attorney fees under the Equal Access to Justice Act ("EAJA"). In Administrator v. Kamm the FAA alleged the airman violated FARs 91.155(a) and 91.13(a) when he allegedly operated a passenger-carrying flight under visual flight rules ("VFR") through clouds in Alaska. After a hearing, the administrative law judge ("ALJ") concluded that video and photographic evidence, as well as the testimony presented by the FAA, failed to prove it's case because none of the evidence showed the aircraft flying through clouds. Not only did all four of the tourist passengers testify that the aircraft did not fly through clouds, the ALJ also found the testimony of two FAA inspectors who were passengers on the flight to be unreliable.

The ALJ noted inconsistencies between the inspectors' written statements, drafted approximately two weeks following the flight at issue, and their testimony at the hearing. He also found that the inspectors' stories were not corroborative because one inspector stated the aircraft's left wing disappeared into clouds for a matter of moments on two specific instances but the other inspector stated that the aircraft flew through small clouds approximately eight times during the flight.

As a successful party, the airman then applied for an award of attorney fees under EAJA. However, the ALJ denied the fee request finding the FAA was substantially justified in pursuing the case. The ALJ rejected the airman's argument that based upon the evidence and testimony, a fee award was appropriate because the FAA shouldn't have pursued the case at all. The ALJ stated that a hearing was necessary to assess the reliability and credibility of the inspectors' and other witnesses' testimony. The airman then appealed the denial to the NTSB.

On appeal, the airman argued the ALJ erred in finding the FAA's pursuit of the underlying case was reasonable and that the FAA should have known the inspectors' recollections of the flight were inconsistent and, as a result, it should have abandoned the case before the hearing. With respect to the first argument, the Board observed that the FAA is substantially justified in pursuing a complaint if key factual issues hinge on witness credibility. Since the ALJ's decision hinged on his credibility findings at the hearing, the Board found it was reasonable for the FAA to pursue the case against airman.

In analyzing the airman's second argument, the Board initially observed that the FAA will be liable for an award of attorney fees under EAJA if the FAA does not abandon the investigation of a case when it knows or should know the case is neither reasonable in fact nor law. Next, the Board noted the FAA's investigation of the case included reviewing the physical evidence and interviewing the witnesses, including the four tourist passengers and only then did it decide to pursue the case against the airman. As a result, the Board found the FAA did not disregard or fail to give meaningful consideration to the airman's defense. It then concluded by stating "[g]iven the evidence before the Administrator, consisting of photographs and the first-hand observations of experienced FAA inspectors, we find the Administrator's pursuit of the case was reasonable."

This case highlights the high hurdle applicant's must vault in order to show that the FAA was not substantially justified in pursuing it's case. But if the FAA's own employees/witnesses can't get their stories straight, I'm not sure how it can be justified in pursuing your case. Unfortunately, when the ALJ couches his decision in terms of credibility, as is the case more and more often, it can be very difficult to win an EAJA attorney fee award.

Wonder What The Term "Congested Area" Means? Some FAA Inspectors Wonder That Too.

One of the frustrating aspects of aviation faced by airmen is the lack of concrete, objective definitions in the FARs. Rather than giving us a definition we can use and apply, oftentimes the FAA and the NTSB have opted for taking a "case-by-case" approach in determining how to apply certain terms. Unfortunately, this "I'll know it when I see it" approach isn't particularly helpful for airmen out in the real world.

The FAA recently reiterated this position in a Memorandum issued by the Office of Chief Counsel in response to a request for a legal interpretation submitted by Melvin O. Cintron, manager of the FAA's General Aviation and Commercial Division. Specifically, Mr. Cintron was looking for a legal interpretation regarding the definitions of limitations on experimental aircraft, particularly with regards to Living History Flight Experience (LHFE) flights operations. However, the Memorandum addressed the issue of these definitions more broadly.

The Memorandum initially observed that these terms, along with other terms such as "congested areas," "other than congested areas," "sparsely populated," and "open air assembly of persons" appear in a number of the FARs including:

§ 91.119 (Minimum Safe Altitudes: General);

§ 91.303 (Aerobatic Flight);

§ 91.313 (Restricted Category);

§ 91.319 (Aircraft having experimental certificates: Operating limitations);

§ 133.33 (Operating rules);

§ 137.49 (Operation over other than congested areas)

§ 137.51 (Operation over congested areas: General); and

§ 137.53 (Operation over congested areas: Pilots and aircraft.

Unfortunately, it then stated "[w]e are unable to provide you with discrete definitions for these terms." And the FAA is apparently satisfied with this fact because the Memorandum goes on to state "there has been a long history stretching back over 40 years of using a case-by-case approach in determining how to apply those terms and how they relate to one another" and "[t]his approach 'is well documented and supported by many legal opinions issued by the FAA, the National Transportation Board (NTSB) and federal courts.'"

With respect to "densely populated", "congested area" in the context of FAR 91.119 cases the Memorandum observed that "[t]here is no precise density of population, ground traffic or congestion, or description of the proximity of buildings, or number of residences." It went on to note the term "congested airway" has not been specifically referenced or defined by interpretation. Although the Memorandum speculated as to why that was the case, it did not attempt to provide any guidance or interpretation of that term.

Next, the Memorandum rejected Mr. Cintron's suggestion that pilots should be able to easily determine the meaning of any definitions during their preflight planning using existing navigation aids and charts. According to the FAA, aeronautical charts and NOTAMs only provide "general guidance" for use in complying with FAR 91.119 and a pilot should obtain local information from their local Flight Standards District Office for use with the pilot's prior knowledge of the area and information the pilot obtains from other sources. After all, the Memorandum observed, "[u]ltimately, it is the pilot's responsibility to maintain the minimum safe altitudes required by § 91.119."

Finally, the Memorandum concluded that Mr. Cintron should "review of the appropriate FAA guidance material to determine whether further explanation of these definitions through examples may help users and inspectors to better understand what is meant by these terms." From my perspective, and, I suspect, the perspective of most pilots, this isn't very helpful.

What is troubling for me is that the confusion regarding the meaning of these undefined terms isn't limited to pilots. Inspectors don't know what these terms mean or how they are to apply them to pilots' operations. Unfortunately, this Memorandum tells me that the situation won't be changing anytime soon. As a result, airmen should make sure they are familiar with the areas over which they fly and remember that the FAA, NTSB and the Court will judge a flights compliance with FAR 91.119 using 20/20 hindsight.

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