All posts tagged 'enforcement'

When Is A Touch-And-Go Landing Not A Landing?

As pilots, we all know that with every takeoff we perform, at some point after that takeoff a landing will occur, some better than others. This is true whether we are flying to a destination or simply performing touch-and-go takeoffs and landings in the local pattern. However, the term "landing" may mean different things in different contexts.

For example, in a recent decision issued by the National Transportation Safety Board, Administrator v. Boylan, the Board determined that a touch-and-go landing did not qualify as a "landing" for purposes of determining compliance with 14 C.F.R. § 91.151(a)(1). The case involved a round-trip flight in which the airman departed from his home-airport with the intention of performing touch-and-go's at two other airports before returning to his home-airport. Unfortunately, after performing the touch-and-go's at those two airports, the airman was unable to make it back to his home-airport due to fuel exhaustion and the flight terminated in an off-airport landing.

Naturally, the FAA was not pleased. The FAA initiated an enforcement action to suspend the airman's ATP certificate for a period of 120 days for the airman's alleged violation of 14 C.F.R. §§ 91.103(a) (failure to become familiar with all information regarding the proposed flight), 91.151(a)(1) (day VFR fuel minimums requiring enough fuel to fly to the "first point of intended landing" and for another 30 minutes) and 91.13(a) (careless and reckless). The airman appealed the order of suspension and after a hearing, the Administrative Law Judge ("ALJ") determined that the airman failed to adequately preflight the aircraft because he did not ensure the aircraft contained sufficient fuel for the flight. As a result, the ALJ found the airman violated §§ 91.103(a) and 91.13(a).

However, in a surprise decision, the ALJ concluded the airman did not violate § 91.151(a)(1) because his touch-and-go landing at the first airport was a landing that occurred at the airman's "first point of intended landing." As a result, the ALJ reduced the suspension of the airman's ATP certificate to 105 days. Not surprisingly, the FAA appealed the ALJ's decision to the full Board.

On appeal, the FAA argued the ALJ's determination that a touch-and-go qualified as a landing for purposes of § 91.151(a)(1) was in error. The FAA also argued the ALJ should have deferred to the FAA's interpretation of the regulation. The Board agreed with the FAA and concluded “first point of intended landing” in § 91.151(a)(1) is "the point at which the aircraft finally comes to rest."

In support of its decision, the Board stated:

The Administrator could not achieve the safety purpose of reducing the risk of fuel exhaustion accidents if an operator only needed to have sufficient fuel to conduct a touch-and-go, as well as fly for an additional 30 minutes, notwithstanding the duration of the remaining flight before the aircraft finally comes to rest.

The Board also rejected the ALJ's reliance upon 14 C.F.R. § 61.57 (recent flight experience: pilot in command) and observed that "[w]hat constitutes a “landing” or “landing to a full stop” under § 61.57 does not define what would constitute the “first point of intended landing” under § 91.151(a)." It further disagreed with the ALJ's finding that a touch-and-go landing marks the end of one flight and the beginning of a new one. Rather the Board found such an interpretation would be illogical because a pilot performing a touch-and-go doesn't have a chance to perform a preflight checklist or visually inspect the fuel tanks before the aircraft takes off again.

Additionally, the Board observed that if the ALJ's interpretation were correct, then § 91.151(a)(1)'s fuel requirement would begin anew with each touch-and-go takeoff. As a result, even under the ALJ's interpretation, in the case before it the evidence still supported the airman's violation of § 91.151(a)(1) because the off-airport landing due to fuel exhaustion showed that he did not meet his fuel reserve minimums when he departed his second and third airports. Thus, the Board reversed the ALJ's decision regarding the § 91.151(a)(1) violation and reinstated the 120 day suspension of the airman's ATP certificate.

So, what can we learn from this case? Well, the obvious answer is to make sure you have enough fuel for your intended flight in compliance with the applicable regulations. The not-so-obvious answer is that a "landing" isn't always a "landing." Not particularly helpful, I know.

However, this not-so-obvious answer highlights the importance of understanding not only individual regulations, but also the distinctions between the regulations. Although it may seem reasonable to think that the language of one regulation should mean the same thing in the context of a different regulation, that isn't always the case, unfortunately. As airmen, we all need to understand the meaning of each regulation applicable to our flights in order to operate in compliance with the regulations and safely.

FAA Takes a More Sensible Approach to First-Time, Inadvertent TFR Violations

The FAA recently amended its enforcement guidelines for dealing with airmen who violate temporary flight restriction ("TFR") airspace. In the past, when the FAA alleged that an airman violated a TFR, and the incident was a first-time, inadvertent violation by the airman, that airman would receive a Notice of Proposed Certificate Action ("Notice") proposing suspension of his or her airman certificate for 30 days for violation of a variety of regulations. This was the FAA's "shoot from the hip", no questions asked approach. And once the Notice was issued, the FAA conceded very little, if anything, from that 30 day suspension.

Now, however, it appears the FAA may have recognized that this approach wasn't necessarily the best way of dealing with these types of violations. In June of this year, the FAA amended Order 2150.3(b), the FAA's compliance and enforcement program, to change its approach to dealing with first-time, inadvertent TFR violators. According to the FAA, it is modifying its policy to provide more flexibility in dealing with TFR violators with the intent of reducing "the number of violations occurring in security airspace by using remedial training in appropriate circumstances to prevent repeated inadvertent violations." I'm not sure why it took the FAA this long to figure out that remedial training might be a better alternative to a suspension, but better late than never, I guess.

Under the amended guidelines, the FAA will apply the following sanction policy to TFR violations:

  1. A single, first-time, inadvertent violation will result in a 30 day suspension EXCEPT in circumstances involving:

    1. Inadvertent, first-time violations resulting from aircraft intruding one mile or less into the security airspace and then turning and exiting directly when there are no resulting complications for air traffic control or other aircraft; or

    2. Inadvertent, first time violations resulting from aircraft briefly (two minutes or less) squawking a 1200 code or failing to squawk an assigned discrete code, in security airspace that requires the aircraft to squawk a discrete code when there are no resulting complications for air traffic control or other aircraft.

    3. In situations 1(a) and (b), the FAA will use remedial training, assuming the airman has no prior history of violations. This means the airman would receive a warning letter, remedial training and the airman would not have a finding of violation placed in his or her airman record. (In my opinion, a more appropriate response to this type of situation rather than preventing an airman from staying current and competent by suspending his or her airman certificate, as was the case in the past.)
  2. A new inadvertent violation and a history of 1 prior inadvertent TFR violation will result in a 45 to 90 day suspension of the airman's certificate.

  3. A new inadvertent violation and a history of 2 prior inadvertent TFR violations will result in a 90 to 150 day suspension of the airman's certificate.

  4. A new inadvertent violation and a history of 3 or more inadvertent TFR violations will result in revocation of the airman's certificate.

  5. If the facts and circumstances surrounding the TFR violation call into question the qualifications of the airman, the FAA may also issue the airman a request for re-examination under 49 U.S.C. § 44709 (a "709 Ride").

  6. Intentional TFR violations or "aggravated" violations (which isn't defined or explained in the amended policy) will result in revocation of the airman's certificate.

Unfortunately, informal counseling, whether oral or written, is not a permitted alternative for the FAA to deal with TFR violations. However, at least now the FAA has the option of remedial training to educate, rather than punish, inadvertent violators. Of course, this amended policy begs the question of what constitutes an "inadvertent" violation. Depending upon the FAA's interpretation of "inadvertent", which in the past hasn't always been the most reasonable, the amended policy may be for naught.

But the amended policy definitely appears to be a step in the right direction. Hopefully, this more enlightened approach, and the voice of reason, will prevail in the future. In any event, airmen should continue to check for NOTAMS, understand the scope of any TFR NOTAMS issued for their route of flight, obtain appropriate flight service briefings and updates, and either avoid TFRs or comply with the applicable requirements for operation within the TFR.

Fly smart and stay safe.

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

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.

What Is A Security Violation Worth?

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.

ALJ's Dismissal With Prejudice After FAA Voluntary Dismissal Satisfies EAJA "Prevailing Party" Requirement

The United States Court of Appeals for the D.C. District recently reversed the FAA Administrator's determination that an applicant seeking attorney's fees under the Equal Access to Justice Act ("EAJA") was not a prevailing party after the FAA withdrew its complaint before hearing, even though an ALJ then entered an order dismissing the case with prejudice. In Green Aviation Management Co., LLC v. Federal Aviation Administration, the FAA filed a complaint alleging that Green Aviation operated a flight with 10 passengers when the aircraft was only approved for 9 passengers. The FAA was seeking to assess a $33,000 civil penalty against Green.

Prior to the hearing, the FAA withdrew its complaint. Based upon the FAA's withdrawal, the ALJ entered an order dismissing the case with prejudice as required by 14 C.F.R. § 13.215. Green Aviation then submitted an EAJA application for attorney's fees. Although the ALJ found that Green Aviation was a prevailing party, as required by EAJA, he nonetheless found that the FAA was substantially justified in pursuing its case and, as a result, the ALJ denied Green Aviation's EAJA application.

Green Aviation appealed the ALJ's denial to the FAA Administrator. However, contrary to the ALJ, the Administrator determined that Green Aviation was not a prevailing party. The Administrator reasoned that the ALJ's dismissal was required by the regulations and, since the ALJ had no discretion, his order did not make Green Aviation a prevailing party. Green Aviation then appealed the Administrator's decision to the D.C Circuit.

On appeal, the Court initially observed that a prevailing party in an EAJA fee case must meet two requirements: the judgment must be in favor of the party seeking the fees; and the judicial pronouncement must be accompanied by judicial relief. The Court found that the ALJ's dismissal order easily satisfied the first requirement.

With respect to the second requirement, the noted that the ALJ's dismissal order was "with prejudice", which resulted in a "res judicata effect" on the parties. That is, it protected Green Aviation from having to pay damages or alter its conduct based upon the same facts and circumstances alleged in the FAA's withdrawn complaint. The Court observed "[t]he dismissal order is thus not a mere formality or a housekeeping measure; rather it is the means by which Green Aviation can obtain res judicata protection."

The Court concluded that Green Aviation obtained sufficient judicial relief to be a prevailing party. As a result, the Court sent the case back to the FAA Administrator to determine whether the FAA's filing of its complaint against Green was substantially justified. If it was not, Green should be entitled to an award of attorney's fees under EAJA.

This is a great decision for parties facing unjustified civil penalty actions. Although it may not prevent the FAA from withdrawing a complaint on the eve of hearing, after a respondent has incurred significant fees, it does allow a respondent the opportunity to hold the FAA accountable.

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