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Equal Access To Justice Act: When Are Fees "Incurred"?

by Greg Reigel 1. April 2015 17:14
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As you may recall from previous articles, if the FAA pursues an enforcement or civil penalty action and then loses, the Equal Access to Justice Act (“EAJA”) allows a certificate holder or target of the civil penalty action to seek reimbursement from the FAA for the attorney’s fees and expenses incurred by the certificate holder or target of the civil penalty action to defend against the claims asserted by the FAA. The EAJA is found at 5 U.S.C. 504 and is implemented in 49 CFR 826.

According to 49 CFR 826.1,

The Equal Access to Justice Act, 5 U.S.C. 504 (the Act), provides for the award of attorney fees and other expenses to eligible individuals and entities who are parties to certain administrative proceedings (adversary adjudications) before the National Transportation Safety Board (Board). An eligible party may receive an award when it prevails over the Federal Aviation Administration (FAA), unless the Government agency's position in the proceeding was substantially justified or special circumstances make an award unjust.

In order to award EAJA fees to a certificate holder or target of a civil penalty action who is requesting reimbursement of fees (the “Applicant”), one of the issues an administrative law judge ("ALJ") must decide is whether the fees were actually “incurred” by the Applicant. In a situation where the Applicant has paid an attorney for representation throughout the enforcement process out of the Applicant’s own pocket, this is easy. Conversely, when an Applicant’s employer or union pays the fees then the Applicant did not incur the fees for purposes of EAJA. However, if the employer advances the fees and the Applicant is obligated to repay those fees regardless of the outcome of the action, then the Applicant would also be considered to have incurred the fees.

Also, it may be possible for an Applicant to incur fees by retaining an attorney on a contingent fee basis under which the attorney would only receive payment in the event of an EAJA recovery. However, this type of arrangement must be documented at the time the attorney is retained in order for it to qualify under EAJA. In general, documentation of the payment of, or obligation for, the fees is critical to recovery under EAJA.

But what if an applicant doesn't have documentation to show an agreement to pay or be responsible for payment to the attorney who represented the Applicant before the Board? Well, a recent decision by the United States Court of Appeals in the District of Columbia addressed this very issue.

In Roberts v. National Transportation Safety Board the Court was asked to review a decision by the Board affirming an ALJ's rejection of Mr. Roberts' EAJA application on the basis that Mr. Roberts had not actually "incurred" attorney's fees. The ALJ found that Mr. Roberts' attorney also represented his employer and, in the absence of any written agreement between Mr. Roberts and either his employer or the attorneys to the contrary, the ALJ concluded that Mr. Roberts' employer had paid the attorneys. As a result, the ALJ held that Mr. Roberts had not personally incurred the attorney's fees as required by EAJA. The Board then affirmed the ALJ's decision, even though it reversed the ALJ's earlier finding that the employer had agreed to pay for Mr. Roberts' attorney's fees.

On appeal to the Court of Appeals, Mr. Roberts argued that the Board's determination that he had not personally incurred the fees was arbitrary and capricious. The Court agreed and found that the Board's refusal to consider that Mr. Roberts may have been obligated to pay attorney's fees under a quantum meruit theory (also called an implied contract theory) was arbitrary and capricious. The Court observed that Alabama law (the state law applicable to any relationship Mr. Roberts had with his attorney) implies a promise to pay compensation for services rendered to another that are knowingly accepted even in the absence of a valid written contract. The Court went on to observe that the Board's conclusion that Mr. Roberts had not proven that he was responsible for attorney's fees because the attorney's invoices didn't clearly say so defied logic. And the Court determined the Board's reliance upon the absence of an express contract as dispositive was in error.

However, although the Court held that Mr. Roberts had incurred attorney's fees, it noted that all of the fees and expenses claimed by Mr. Roberts may not necessarily be eligible for reimbursement. The Court remanded the case back to the NTSB for it to consider which submitted fees and expenses were supported by sufficient documentation and whether any reduction in award is appropriate.

Conclusion

This decision will certainly help anyone applying for an EAJA award after having to defend themselves against an unjustified certificate or civil penalty action. However, properly documenting both the obligation to pay fees, as well as the amount of the fees is still recommended. But at least the Court's decision provides the opportunity for an applicant to claim fees have been incurred even in the absence of a written agreement. And that's a "win" in my book.

Logging Safety Pilot Time

by Greg Reigel 5. January 2015 17:43
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In order to operate an aircraft in simulated instrument conditions, certain requirements must be met. 14 C.F.R. § 91.109(b) allows this type of operation in an aircraft equipped with fully functioning dual controls as long as "(1) the other control seat is occupied by a safety pilot who possesses at least a private pilot certificate with category and class ratings appropriate to the aircraft being flown; and (2) the safety pilot has adequate vision forward and to each side of the aircraft, or a competent observer in the aircraft adequately supplements the vision of the safety pilot." Unfortunately, Section 91.109(b) doesn't address the logging of flight time in connection with operations involving a safety pilot.

In order to understand how a pilot may "log" his or her flight time, it is important to keep in mind that "acting" or "serving" as a pilot in command ("PIC") or second in command ("SIC") during a flight is different than "logging time" for that flight. 14 C.F.R. 61.51(e) states that a pilot may log PIC time when (i) the pilot is the sole manipulator of the controls of an aircraft for which the pilot is rated; (ii) when the pilot is the sole occupant in the aircraft; or (iii) when the pilot acts as pilot in command of an aircraft for which more than one pilot is required under the type certification of the aircraft or the regulations under which the flight is conducted. Section 61.51(f) states that a pilot may log SIC time only for that flight time during which that person: (1) Is qualified in accordance with the second-in-command requirements of § 61.55 of this part, and occupies a crewmember station in an aircraft that requires more than one pilot by the aircraft's type certificate; or (2) Holds the appropriate category, class, and instrument rating (if an instrument rating is required for the flight) for the aircraft being flown, and more than one pilot is required under the type certification of the aircraft or the regulations under which the flight is being conducted.

Under these regulations, it is not possible for two pilots to "act" or "serve" as PIC simultaneously during a flight. However, it is possible for two pilots to log PIC flight time simultaneously. PIC flight time may be logged by both the PIC responsible for the operation and safety of the aircraft during flight time in accordance with 14 C.F.R. § 1.1 (e.g. the pilot "acting" or "serving" as PIC), and by the pilot who acts as the sole manipulator of the controls of the aircraft for which the pilot is rated.

So, in a typical simulated instrument flight, the pilot under the hood may log PIC time for that time in which he or she is the sole manipulator of the controls of the aircraft, provided that he or she is rated for that aircraft. The safety pilot may concurrently log as SIC time that time during which he or she is "acting" or "serving" as safety pilot (e.g. when the other pilot is actually under the hood) because the safety pilot is a required crewmember for operations under Section 91.109(b).

However, the two pilots may, prior to initiating the flight, agree that the safety pilot will be the PIC responsible for the operation and safety of the aircraft during the flight (e.g. the safety pilot will "act" or "serve" as PIC). In this situation, the safety pilot may log all the flight time as PIC time under Section 61.51(e)(iii), provided he or she is otherwise qualified to "act" or "serve" as a PIC (e.g. having a current flight review, appropriate ratings and endorsements etc.) and the pilot under the hood may log, concurrently, all of the flight time during which he or she is the sole manipulator of the controls as PIC time in accordance with Section 61.51(e)(i).

So you can see, depending upon the circumstances, a safety pilot may be able to both "act" as second in command or pilot in command and "log time" as second in command or pilot in command. In other situations, he or she may only be able to do one or the other. Although it can be tricky, airmen need to make sure they understand the distinction to ensure that they are logging their time accurately and in compliance with the regulations.

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Greg Reigel

Can You Buy Replacement Aircraft Data Plates on the Internet?

by Greg Reigel 2. December 2014 09:44
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The internet can be a wonderful thing. From the convenience of your computer you can buy most things aviation. Whether you are looking for pilot supplies, aviation paraphernalia or even an aircraft, it is quite likely that you can locate, and complete, your purchase via the internet. But, the convenience of buying through the internet doesn't always mean that you are really receiving the item for which you paid, or that you will be able to actually use the item as anticipated. A recent Legal Interpretation issued by the FAA's Office of the Chief Counsel illustrates this point.

This particular Legal Interpretation responded to a request from an individual regarding an advertisement on an internet auction site promoting the sale of "high quality reproduction aircraft identification plates." Specifically, the individual wanted to know how to determine "whether a reproduction plate is 'eligible for installation on a type certificated product.'"

The Interpretation initially notes 14 C.F.R. § 21.8 states that a part which must be approved by the FAA, such as an aircraft data plate, must be approved for production under a parts manufacturing authority (PMA), a type supplemental order (TSO), in conjunction with type certification procedures, or the catchall: "in any other manner approved by the FAA." It goes on to observe that, not surprisingly, when it comes to installation of data plates on aircraft, the FAA usually relies upon the original aircraft manufacturer to install the data plates on its aircraft.

According to the FAA Chief Counsel, the FAA views the aircraft manufacturer's installation of the data plates as a declaration or representation that the aircraft conforms to its type design. If for some reason the aircraft manufacturer refuses to issue or install data plates, the FAA assumes (yes, the Legal Interpretation actually uses the word "assumes") the aircraft does not conform to its type design.

With that background, the Interpretation then addressed several situations in which the aircraft owner may not have original identification plates issued by the aircraft manufacturer. First, if the data plate is lost, stolen or damaged during maintenance operations, the Interpretation states that the aircraft owner should "seek a replacement from the aircraft's original manufacturer." Unfortunately, since product liability exposure is always a concern for manufacturers, they are reluctant to issue a new data plate and expose themselves to additional potential liability for an aircraft whose condition they have been unable or unwilling to verify. As a result, that option is seldom successful.

Next, the Interpretation addressed the situation in which "the aircraft's original manufacturer is no longer in business or is otherwise unable or unwilling to produce a replacement plate for reasons unrelated to the condition of the aircraft. It observed that FAA Advisory Circular 45-2D, Identification and Registration Marking provides a means of compliance. Referencing Section 6(i)(3) of AC 45-2D, the Interpretation states than an owner or operator may only buy data plates from an approved source after "going through the process" of contacting the local Flight Safety Standards District Office (FSDO) or Manufacturing Inspection District Office (MIDO) for assistance and approval in obtaining a replacement. Unfortunately, neither the Interpretation nor AC 45-2D provide any explanation for what this "process" involves or requires from the aircraft owner or operator, nor does it state what the FSDO or MIDO are obligated to do in assisting or providing approval of a replacement data plate. As a result, it is unclear whether this is truly a practical or viable option.

Finally, in addressing the specific request before it, the Interpretation concludes that "[a] reproduction identification plate sold on an online auction website would presumably be produced by neither the manufacturer nor an FAA-approved alternative source (such as a PMA holder for the article), and therefore it could not indicate to the FAA that an aircraft conforms to its type design." And without an approved data plate to "prove" conformity with the type design, the aircraft would be ineligible for a standard airworthiness certificate.

So, the moral of the story: Simply because you can buy replacement data plates on the internet (or anything else for that matter), that doesn't mean you can use them. At least the individual in this case asked the question before, rather than after, spending good money on "reproduction" data plates. But, as with most purchases, some degree of "caveat emptor" is almost always a good thing.

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Greg Reigel | Maintenance

Does Your CFI Have to Look Over Your Shoulder When You Are Maintaining Instrument Currency in a Simulator?

by Greg Reigel 3. November 2014 17:12
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An instrument rating provides both options and opportunities that are not available to a VFR pilot. But in order for an instrument rated pilot to legally exercise the privileges of the instrument rating, he or she must be current. 14 C.F.R. § 61.57(c) lists the tasks that must be accomplished within the six calendar months preceding the month of the IFR flight, and logged under 14 C.F.R. § 61.51 in order for the pilot to be instrument legal for that flight.

But what happens if you are a pilot who lives in an area of the country where the weather, along with personal scheduling issues (since we few of us have the luxury of flying whenever we want, even though we wish we could) make it difficult to complete these tasks? Or maybe you are looking for a way to lower the cost of flying. Is it possible to safely stay instrument current while saving some money?

Well, one way to meet instrument currency requirements is to use a flight simulator, flight training device or aviation training device ("simulator"). In addition to the lower costs and safety benefits a simulator provides to a pilot, one of the specific advantages is that a pilot may use time in a simulator for instrument currency experience.

However, use of a simulator for logging instrument flight time isn't without conditions. First, the simulator must be "approved" by the FAA (a topic for another day, but if you are curious you can review the FAA's Advisory Circular AC 61-136 for more information). Second, and equally important, in order for a pilot to log simulator time and have it count towards instrument currency, 14 C.F.R. § 61.5l(g)(4) requires that "an authorized instructor is present to observe that time and signs the person's logbook or training record to verify the time and the content of the training session."

As all instrument rated pilots should already be aware, this second condition is different than simply performing the necessary instrument approaches and procedures in an actual aircraft. In the aircraft, an instructor's presence is not required. And, unfortunately, some instructors and flight schools believe that if an instructor is not required to be present when a pilot is performing the necessary approaches etc. in an aircraft, then an instructor should not be required to be present when the pilot is performing the same tasks in a simulator. However, that is not the case.

Additionally, keep in mind 14 C.F.R. § 61.57(c)(3) requires that a pilot who accomplishes instrument experience exclusively in a simulator must have performed the instrument tasks and maneuvers listed in that section within two calendar months before the month of the flight.

If you are going to use a simulator for instrument currency, make sure you are familiar with the requirements that apply to your training. When in doubt, review the regulations and associated FAA guidance. If you still have questions, contact your CFI or a knowledgeable aviation attorney.

When Does an Individual's Employment Record Relate to Pilot Performance or Professional Competence Under PRIA?

by Greg Reigel 2. October 2014 11:03
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When an individual applies for a pilot position with a Part 121 or 135 air carrier, 49 USC §44703(h)-(j), the Pilot Records Improvement Act ("PRIA"), requires that air carrier to make certain requests to the FAA and the pilot's other employers for records relating to the pilot. In addition to certain specific information air carriers must request from the FAA, air carriers and employers, PRIA also includes a catch-all provision requiring a pilot's other employers (both past and present) to furnish other records maintained by the air carrier or person pertaining to the individual's performance as a pilot and that relate to

  • the training, qualifications, proficiency, or professional competence of the individual, including comments and evaluations made by a check airman;

  • any disciplinary action taken with respect to the individual that was not subsequently overturned; and

  • any release from employment or resignation, termination, or disqualification with respect to employment.

Advisory Circular (AC) 120-68F provides guidance to air carriers and other employers for compliance with PRIA by identifying and explaining the information that must be disclosed in response to a PRIA request. Although AC 120-68F provides examples and methods of compliance, not all situations and circumstances are addressed. As a result, sometimes situations arise that are not specifically addressed in AC 120-68F, leaving the pilot or his/her employer(s) with questions regarding PRIA compliance.

Fortunately, an individual in this situation who has a question regarding interpretation of PRIA, or any of the other aviation regulations, and who doesn't feel he or she has received a consistent or correct answer from the FAA (e.g. the local FSDO or FAA aviation inspectors), may submit a request to the FAA's Office of the Chief Counsel for an official interpretation that will be binding upon all of the FAA's inspectors and FSDOs. A pilot did just that recently when he asked the FAA's Office of Chief Counsel for a legal interpretation regarding PRIA compliance by one of his former employers.

In his request, the pilot asked for an interpretation regarding the meaning of PRIA's reference to "other records pertaining to the individual's performance as a pilot" and also the meaning of the phrase "other records...concerning...professional competence." The pilot was specifically concerned about disciplinary records from two events, as well as his employment termination, and whether those records would have to be disclosed in response to a PRIA request.

In the first disciplinary event, the pilot received a written warning for failing to follow company procedure when he incorrectly entered Hobbs time in place of airframe time in an aircraft logbook entry after the pilot discovered a discrepancy during a flight. This error delayed the aircraft's return to service. The second disciplinary event involved the pilot's operation of one of his employer's aircraft to a public relations event on behalf of the employer where the employer claimed the pilot did not have permission to attend the event in the its aircraft and on its behalf. The pilot received a written warning for this event based upon his alleged insubordination and failure to follow company procedures. Although the pilot disputed the merits of each disciplinary action, for purposes of the pilot's request the Office of Chief Counsel treated the information in the employer's disciplinary records as true.

Records Related to the Pilot's Performance

Based upon the pilot's interpretation of the meanings of in PRIA terms as applied to the facts of each disciplinary event, the pilot contended that the records from the disciplinary actions in the examples he provided were unrelated to the pilot's performance of aeronautical duties and thus did not have to be disclosed under PRIA. The FAA partially agreed.

In its September 12, 2014 Legal Interpretation, the Chief Counsel initially determined that records related to a pilot's performance include records of an activity or event that is related to his or her completion of the core duties and responsibilities of a pilot, whether assigned by the employer or established by the FAA, to safely operate aircraft. This entails more than just records relating to events while the pilot is seated at the controls of an aircraft. It also includes records in relation to the pilot's compliance with his employer's established procedures during all aspects of aircraft operations, including occurring during ground pre-flight or post-flight, as well as those records relating to the pilot's duty to ensure the safety of crewmembers, passengers, cargo, and the aircraft.

The Chief Counsel further explained that

[r]ecords required to be reported would include records of any relevant disciplinary action as a result of any incident or event that occurs in an operation under any part of title 14 CFR, provided the operation is conducted by a pilot as part of the pilot's duties for that employer. All disciplinary records meeting this definition must be reported in accordance with the statutory requirements. However, records of disciplinary action arising out of the pilot's noncompliance with company policies unrelated to safe aircraft operations (e.g. attendance, company dress codes and other morality or behavior-based policies) are not the type contemplated by PRIA.

Applying this interpretation of the phrase "a pilot's performance", the Chief Counsel concluded the pilot's operation of the aircraft to a public relations event without the employer's permission did not need to be disclosed in response to a PRIA request. The Chief Counsel observed that

the crux of the pilot's dispute with the employer appears to be whether the pilot, in fact, had permission to attend the public relations event, not whether the pilot's actions indicated an error in judgment or performance during any part of the operation of the aircraft for purposes of the public relations event attended.

However, with respect to the records relating to the incorrect maintenance log entry, the Chief Counsel determined those records were subject to disclosure because the event "indicates the pilot failed to comply with post-flight procedures related to the condition of the aircraft for continued flight."

Records Concerning the Pilot's Professional Competence

Turning its attention to the pilot's request for an interpretation of the meaning of the phrase "professional competence", the Chief Counsel stated

[a]s this term is used in PRIA and as it relates to the federal aviation regulations applicable to the aircraft pilot profession, the competency of a pilot to serve as a flightcrew member is dependent upon the sufficiency of the individual's knowledge, skills, judgment and flight experience. In addition, the competency of a pilot is dependent upon the individual's demonstration of compliance with the applicable operating standards.

Thus, "professional competence" is considered merely an extension of PRIA's requirement to provide pilot training, qualifications and performance records. As a result, the phrase did not change the Chief Counsel's conclusion that records related to the public relations flight were not subject to disclosure while records relating to the maintenance logbook error did need to be disclosed.

Records Regarding the Pilot's Termination of Employment

Finally, the Chief Counsel addressed the records relating to the pilot's termination of employment by confirming that

records related to 'any release from employment or resignation, termination, or disqualification with respect to employment' must be furnished in response to a PRIA request if that record 'pertain[s] to the individual's performance as a pilot'...and that record dates within the five years preceding the PRIA request.

Since the pilot had resigned from his position in order to attend school full time, the Chief Counsel concluded that any record related to the pilot's termination of employment was not subject to disclosure under PRIA because it did not relate to "pilot performance."

Conclusion

Not surprisingly, sometimes the meaning of terms or phrases in an aviation regulation or statute are not as precise as we need in order to apply the terms or phrases to actual factual circumstances. That is certainly the case with respect to PRIA. And although AC 120-68F certainly provides examples to assist with PRIA compliance, that isn't always enough. In those situations, it is nice to be able to get the FAA's opinion of how those terms or phrases may apply.





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