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Beyond "Performance As A Pilot": What Is The Scope Of A PRIA Request?

by Greg Reigel 29. May 2018 09:59
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I am frequently asked by pilots whether an employer's disclosure of certain documents is properly within the scope of a request for documents under the Pilot Records Improvement Act ("PRIA"). Answering the question usually requires analyzing whether the document being disclosed relates to the individual's "performance as a pilot." However, based upon a recent Legal Interpretation issued by the FAA's Office of the Chief Counsel, it appears that the scope of a PRIA request casts a bigger net.

The Interpretation initially noted that "the separate provisions of the PRIA work in tandem to provide a complete record of potential pilot employment issues and to capture instances relating to an individual's performance as a pilot that do not fall into one of the provided statutory categories." It then went on to discuss how these provisions overlap.

With respect to whether a document relates to an individual's performance as a pilot, the Interpretation stated "to the extent that a pilot's behavior directly disrupts safe aircraft operations, those records should be included in accordance with the 'catch-all' provision" of § 44703(h)(l)(B)(ii). Next it noted that § 44703(h)(l)(B)(i) requires disclosure of documents an air carrier must maintain under 14 C.F.R. § 121.683 (records of each action taken concerning the release from employment or physical or professional disqualification of any flight crewmember).

The Interpretation then confirmed that the records maintained under § 121.683 are not limited to those records relating to an individual's performance as a pilot. Rather, it stated "[p]ilot infractions not related to pilot performance that would rise to a level grave enough to cause an air carrier to release a pilot from employment would be captured by this recordkeeping requirement, and a hiring air carrier would be required to request and receive those records."

Based upon this Interpretation, it appears the scope of documents an air carrier must produce in response to a PRIA request potentially includes more than just documents directly relating to the individual's performance as a pilot. As a result, if you are a pilot applying for a position with an air carrier and you are concerned about what your previous or current employer may or may not disclose, I recommend that you request a copy of your employment file BEFORE you apply to the air carrier. That way you will know what is in your file and potentially subject to disclosure.

But keep in mind that if you disagree with what is in your file or what the employer may be disclosing, any recourse you may have against your employer is likely governed by applicable employment laws. As the Interpretation states, "PRIA is not a means for the FAA to arbitrate employment disputes."

If you have additional questions regarding PRIA, you should review FAA Advisory Circular 120-68G. And, as always, if you have additional questions, I'm happy to help.

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Greg Reigel

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

by Greg Reigel 7. May 2018 17:21
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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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Fixed Based Operators (FBO) | Airports | Greg Reigel

Falsification And The FAA’s Revocation Of Certificates: Same As It Ever Was.

by Greg Reigel 2. April 2018 08:38
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As many of us know, revocation has been the FAA’s choice of sanction in medical application falsification cases for a very long time. This was especially true prior to enactment of the Pilots Bill of Rights I (the “PBR-1”), when the National Transportation Safety Board (the “Board”) was “bound by” the FAA’s choice of sanction. In all of the case law prior to PBR-1, the Board relied upon this language and deferred to the FAA’s imposition of revocation in falsification cases.

In 2012 the PBR-1 removed the “bound by” language from the regulations. Since that time, the Board has followed the traditional doctrine of judicial deference set forth in Martin v. OSHRC and subsequent cases when determining whether to defer to the FAA’s imposition of revocation in falsification cases. However, the deference the Board must accord to the FAA in sanction review is not unfettered, and it does not eliminate or replace the due process requirement for the Board’s evaluation. In each case the Board must consider aggravating and mitigating factors and compare factually similar cases to determine whether the FAA’s choice of sanction is appropriate.

In practice, administrative law judges have discussed the need to analyze and weigh the facts and circumstances of each case when they apply the principles of judicial deference to determine if the sanction selected by the FAA is appropriate. In each of those cases, the Board on appeal also considered the merits of the FAA’s sanction choice, even though in both instances it was within the recommendations of the FAA’s Sanction Guidance Table. And yet in each case the sanction of revocation was affirmed.

Although the FAA will often state that it "carefully followed the sanction guidelines when it proposed revoking all airman certificates held by the respondent", this is self-serving at best. 14 C.F.R. § 67.403(b)(1) provides for suspending OR revoking airman and medical certificates. However, contrary to Section 67.403(b)(1), FAA Order 2150.3B, Appendix B-4-b(1) (the FAA's Sanction Guidance Table) states that revocation of all of an airman’s certificates is the only available sanction.

And although the FAA may deny it, a review of the Board’s past and present docket, as well as Board precedent, clearly shows the FAA very rarely seeks any sanction other than revocation of all airman certificates in cases where it alleges falsification. So, to say the FAA "carefully followed the sanction guidelines" implies analysis and consideration that the FAA’s own guidance does not permit.

Also, the FAA almost always claims its chosen sanction is appropriate because the alleged falsification shows the airman lacks qualification to hold any airman certificate or airman medical certificate. Yet after one year from the date of the order of revocation the airman will typically be allowed to reapply for airman certificates, and provided the airman is otherwise qualified, the prior revocation will not prohibit the airman from being issued airman certificates.

And in the meantime, the airman can apply for and be issued a new medical certificate provided he or she is able to demonstrate that he or she is qualified to hold a medical certificate under 14 C.F.R. Part 67. The fact that the regulations and the FAA permit application for and issuance of both airman and medical certificates after the FAA concludes that an airman is not qualified to hold those certificates, as a matter of course, belies both the accuracy and the legitimacy of the FAA’s conclusion.

It is hard to understand how revocation of all of an airman’s certificates, rather than suspension, is anything other than a punitive sanction that the FAA automatically assesses without thought or consideration to the factual circumstances of each case. Further, the FAA’s often-heard claim that it "has limited its decision to what is prescribed by the sanction guidelines" is an admission that it has disregarded the clear language of the regulation permitting revocation OR suspension. The FAA's singular selection of sanction to the exclusion of what is otherwise provided in the regulation is, both on its face and in application, arbitrary and capricious, and should not be entitled to deference.

But, in spite of the above, both the Board and the courts continue to defer to the FAA’s imposition of revocation in falsification cases and to rely upon pre-PBR-1 precedent to support those decisions. It isn’t clear to me why the Board and the courts may rely upon those cases as precedent when they were decided based upon the requirement that the Board was “bound by” the FAA’s choice of sanction, and that requirement is no longer present. Unfortunately, in falsification cases where the FAA’s continued "knee-jerk" reaction is to revoke all of an airman’s certificates, the words of The Talking Head’s seem apropos: “same as it ever was.”

 

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Greg Reigel

Aircraft Management Services Are Now Exempt From Federal Excise Tax

by Greg Reigel 27. February 2018 14:35
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When the 2017 Tax Cuts and Jobs Act (the "Act") became law, its provisions immediately and significantly impacted business aircraft owners and operators in a number of ways. One of the key provisions of the Act resolved an issue between the IRS and aircraft management companies. Prior to the Act, the IRS was taking the position that fees paid for aircraft management services were subject to Federal Excise Tax ("FET"). Of course, the business aviation community objected to the IRS's position. As a result of the ongoing dispute (and discussions aimed at obtaining guidance from the IRS and/or changing its position), although the IRS had audited aircraft management companies and assessed FET, it was not attempting to enforce those assessments.

The Act addressed this situation and now provides a specific exemption to FET for aircraft management services. The following amounts paid by an aircraft owner for management services related to maintenance and support of the owner’s aircraft or flights on the owner’s aircraft are exempt from FET:

  • Payments for support activities related to the aircraft itself (e.g. storage, maintenance, and fueling);

  • Payments for the aircraft’s operation (e.g. hiring and training of pilots and crew);

  • Payments for administrative services (e.g. scheduling, flight planning, weather forecasting, obtaining insurance, establishing and complying with safety standards); and

  • Payments for other services as are necessary to support flights operated by an aircraft owner.

It is important to keep in mind that these payments are exempt from FET only to the extent that they are attributable to flights on an aircraft owner’s own aircraft. Payments for services that apply to other aircraft in addition to the aircraft owner’s aircraft are still subject to Federal excise tax. Also, to the extent that monthly payments are allocated to flights on the aircraft owner’s aircraft and other non-owned aircraft, then FET must be collected on the portion of the payment attributable to flights on the non-owned aircraft.

But, you might be wondering, what about the many aircraft owned by single-purpose entities and leased to operating companies who operate the aircraft in connection with their businesses? How does the Act affect the operating company lessees? Well, with respect to aircraft lessees, the Act considers an aircraft lessee to be an aircraft owner to which the exemption is available provided that the lease is for a term of more than thirty one (31) days and the aircraft is not leased from the aircraft management company or a related party.

So, within the parameters of the Act, we now have clarity on when payments for aircraft management services are, and are not, subject to FET.

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Greg Reigel

How To Respond To A Request For Re-Examination

by Greg Reigel 2. February 2018 09:41
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If you are involved in an accident or incident and the FAA finds out about it, which it usually does, it is quite possible that you may receive a letter from the FAA requesting that you submit to “reexamination.” This is also commonly referred to as a “709 Ride.” If you receive a letter like this, what are your options?

What Is The Request For Re-Examination?

The request for reexamination is based upon the FAA’s authority to re-examine an airman holding a certificate or rating (pilot, flight instructor, airframe and powerplant etc.) at any time pursuant to 49 U.S.C. 44709(a). When the FAA discovers evidence that leads it to question an airman’s qualifications to exercise the privileges of the applicable certificate or rating, the FAA issues the request requiring the airman to demonstrate that he or she does, in fact, still have the qualifications for the applicable certificate or rating. Incidents such as gear-up landings and uncontrolled departure from the runway are examples of situations involving circumstances that very well may lead the FAA to question an airman’s qualifications.

You may be wondering whether a request for reexamination is proper if the accident or incident was not the airman’s fault. For example, if the accident or incident was caused by a mechanical failure is that still enough for the FAA to request reexamination? Unfortunately, unless the mechanical failure is obvious to the FAA as the sole cause of the incident, a request for re-examination is likely to be considered reasonable. Why? Because the FAA only has have “sufficient reason to believe that an airman may not be qualified to exercise the privileges of a particular certificate or rating.” If it does, the re-examination request is considered reasonable, without regard to the likelihood that a lack of competence had actually played a role in the event.

According to FAA Order 8900.1, Volume 5, Chapter 7, “[t]here must be ample or probable cause for requesting the reexamination” including reliable reports, personal knowledge, or evidence obtained through an accident, incident, or enforcement investigation. Thus, the “lack of competence” has to be supported by the facts and circumstances in the case. However, as long as a basis for questioning an airman’s competence has been implicated, rather than actually demonstrated, the request is considered reasonable.

The Re-Examination Request

The procedures for the reexamination are set out in Order 8900.1. The Flight Standards District Office (“FSDO”) responsible for the area within which the accident or incident occurred will send the airman a letter requesting re-examination, via certified mail, return receipt requested. The letter will include (1) the reasons for the re-examination; (2) the specific certificate and/or rating for which the re-examination is necessary; (3) the type of re-examination (e.g. the tasks the airman will be required to perform); (4) the category and class of aircraft required (if applicable); (5) the location of the re-examination; and (6) a time limit for accomplishing the re-examination.

After the airman receives the letter, the airman usually has fifteen (15) days within which to complete the re-examination, although this is not always the case. If an airman was injured in an accident and his or her physical condition precludes completion of the re-examination or if the airman needs more than fifteen (15) days within which to practice/prepare for the ride, the re-examination may be postponed. Under these circumstances the FAA may require that the airman surrender his or her airman certificate and the FAA will issue a 30-day temporary certificate for the airman to operate under until the re-examination.

As a practical matter, it is not uncommon for a reexamination to actually be conducted after the fifteen (15) day period. This is especially true if the reexamination has to be conducted in an aircraft requiring a type certificate since the reexamination will need to be conducted by an FAA inspector who also holds a type certificate in the applicable aircraft. It is may also be possible to schedule the reexamination to be conducted in connection with an upcoming training event. As long as the airman is communicating with the FSDO and/or inspector, it is usually possible to get the reexamination scheduled without having to surrender the applicable certificate or rating.

However, if the FAA believes the airman will be operating commercially while carrying passengers, the FAA may demand that the re-examination occur within less than fifteen (15) days. In this situation, if the airman is unable or refuses to submit to the re-examination within the time specified, the airman may actually have to surrender his or her certificate or rating.

If the airman is required to surrender his or her certificate or rating, the airman may then obtain dual instruction from a certificated flight instructor in preparation for the ride or, if the airman finds it necessary to conduct solo practice, the FAA may issue a temporary airman certificate, valid for thirty (30) days, rather than the one-hundred twenty (120) day period usually allowed with a temporary certificate. However, if a temporary certificate is issued, the certificate/ratings for which the airman is to be re-examined will have the limitation "For Student Pilot Purposes Only-Passenger Carrying Prohibited”.

If an airman wants to surrender his or her certificate, the airman should not simply show up at the FSDO and hand it over. The certificate should be delivered with a letter in which the airman confirms that the certificate is only be surrendered on a temporary basis and that the airman reserves all privileges, rights and remedies with respect to the certificate and any potential adverse action the FAA may decide to take. An aviation attorney can help to draft this letter and/or assist with the logistics of the surrender.

The reexamination does not necessarily have to be scheduled with the FSDO that issues the request. If the accident or incident occurred somewhere other than the airman’s home area, the airman can request that the re-examination be administered by the airman’s home FSDO. Or, if the inspector or FSDO issuing the request has a less favorable reputation, which some of them certainly do, then the airman will likely benefit from having the reexamination conducted by a different inspector or FSDO. In this situation, the airman’s home FSDO would contact the FSDO issuing the letter requesting the re-examination and coordinate with that FSDO on the tasks to be re-examined and if any further enforcement action is necessary after the actual ride.

If the airman fails or refuses to submit to a reexamination within a reasonable period of time, the FAA will initiate emergency enforcement action to suspend the airman's certificate. Although the airman has the ability to respond to or appeal the emergency suspension, if the FAA has a reasonable basis for the request and the airman has no other defenses, the airman will likely end up with a suspension of his or her airman certificate pending submission to and successful completion of the re-examination.

What Happens During The Re-examination?

The re-examination is similar to a check-ride, except that the airman is not typically subject to examination on all of the required tasks in the Airman Certification Standards (“ACS”) (or the practical test standards for those certificates/ratings for which the FAA has not yet issued ACS) for the certificate or rating upon which the airman is being re-examined. Rather, the re-examination involves the tasks that were called into question by the occurrence of the accident or incident and it is conducted in accordance with the ACS for the certificate or rating involved. The tasks may include components of the knowledge test, the skill or flight test, or both.

Since the re-examination is a check-ride, it is important to make sure that the tasks are reasonably related to circumstances that gave the FAA a reason to question the airman’s qualifications. For example, if an airman was merely taxiing an aircraft and departed the taxiway, a request for re-examination based upon that incident shouldn’t include instrument navigation or cross country flight planning. If the request for re-examination includes tasks that do not appear to be reasonably related to the circumstances, the airman should object and request that those items be removed from the request. Although such a request isn’t always granted, if the airman, or his or her aviation attorney, is able to convince the inspector that the tasks are beyond the reasonable scope permitted under the regulations, then it is often possible to have those tasks removed. The inspector can fail the airman for any maneuver, procedure or knowledge deficiency in which the airman is found to be unqualified. This includes any of the specific task upon which the airman is being re-examined (which is why it is best to limit the tasks as much as possible). Additionally, if the inspector observes any deficient areas other than those that are the subject of the re-examination at any time during the re-examination, those deficiencies could also be the basis for failure of the test.

If the airman successfully completes the re-examination, one of two things will happen: (1) if the airman's certificate was suspended pending completion of the re-examination, the inspector will issue a letter of results and may issue a temporary certificate that bears all ratings and limitations from the original certificate; or (2) if the airman's certificate was not suspended pending completion of the re-examination, the inspector will simply issue a letter of results and the airman may then continue to exercise the privileges of his or her certificate and/or ratings.

If the airman fails to successfully complete the re-examination, the inspector will inform the airman in detail of each deficiency. Additionally, if the airman's original certificate was surrendered in exchange for a temporary certificate and the term of the temporary certificate has time left on it, the inspector will decide whether to suspend the certificate or to extend the temporary certificate for an additional 30 days.

In the latter instance, if the inspector believes the airman could successfully complete another re-examination if he or she obtained additional instruction, another 30-day temporary certificate will be issued with a limitation against carrying passengers. The airman will then have to submit to an additional re-examination within that 30-day period. In the first instance, when the inspector determines the airman is not qualified to hold the certificate or rating, the airman can expect to be the subject of enforcement action seeking revocation of his or her certificate and/or ratings.

Conclusion

If you are involved in an accident or incident in which pilot error is a possible cause of the accident or incident and the FAA finds out, don’t be surprised if you receive a certified letter requesting that you submit to re-examination. The first thing you need to do is review the scope of the re-examination request and objectively determine whether the FAA has a reasonable basis for making the request. Often, it will.

Next, you need to decide how you want to respond. Although the request for re-examination can be intimidating and frustrating, especially if it follows an accident or incident in which your aircraft and/or your pride has been damaged, it is possible to treat it as a positive experience and use it as an opportunity to improve your skills as an aviator. This is especially true if you take the ride with an inspector who approaches the situation from a similar perspective.

However, if you find yourself facing a request for reexamination with an inspector who does not approach the ride from this perspective or if you have questions regarding the basis for the request or the procedures that should be followed, an aviation attorney can certainly assist you in the process. After all, you worked hard to obtain your certificate(s) and/or rating(s). Make sure you protect your ability to exercise those privileges and to fly safely.

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Greg Reigel



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