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.
It isn’t uncommon in aircraft purchase agreements to see language stating the parties are agreeing that the aircraft is being purchased “as-is” or “as-is, where-is.” Oftentimes the agreement will go on to also say that the seller is not making, nor is the buyer relying upon, any representations or warranties regarding the condition of the aircraft. And it may also specifically state that the buyer is only relying upon its own investigation and evaluation of the aircraft. But what does this really mean?
Well, from the seller’s perspective, the seller wants to sell the aircraft without having to worry that the buyer will claim at a later time that the aircraft has a problem for which the seller is responsible. So, the seller does not want to represent that the aircraft is in any particular condition (e.g. airworthy). When the deal closes, the aircraft is sold to the seller in its existing condition without any promises by the seller about that condition.
Here is an example of how this works: If the first annual inspection of the aircraft after the sale reveals that the aircraft is not in compliance with an airworthiness directive (“AD”) that was applicable to the aircraft at the time of the sale, the buyer could claim that the aircraft was not airworthy at the time of the sale and demand that the seller pay the cost of complying with the AD. But if the purchase agreement has “as is” language, then the chances of the buyer being able to actually force the seller to pay are low.
Not only does this “as-is” language protect the seller, but it also protects other parties involved in the sale transaction such as seller’s aircraft broker. A recent case provides a nice explanation of the legal basis for this result.
Red River Aircraft Leasing, LLC v. Jetbrokers, Inc. involved the sale of a Socata TBM 700 where the aircraft owner/seller was represented by an aircraft broker. The buyer and seller entered into an aircraft purchase agreement that included not only “as-is, where-is” language, but it also provided that the buyer was accepting the aircraft solely based upon buyer’s own investigation of the aircraft.
During the buyer’s pre-purchase inspection of the aircraft, the buyer discovered certain damage to the aircraft. However, the buyer accepted delivery of the aircraft in spite of the damage based upon alleged representations by the broker that the damage was repairable. After closing the buyer learned that certain parts were not repairable. Rather than sue the aircraft seller, presumably because the buyer recognized the legal impact of the “as-is” language in the purchase agreement with the seller, the buyer instead sued the aircraft broker alleging that the broker negligently misrepresented the aircraft.
In order to succeed on a claim of negligent misrepresentation under Texas law (the law applicable to the transaction), the buyer was required to show (1) a representation made by the broker; (2) the representation conveyed false information to buyer; (3) the broker did not exercise reasonable care or competence in obtaining or communicating the information; and (4) the buyer suffers pecuniary loss by justifiably relying on the representation.
In response to the buyer’s claim, the broker argued that the “as-is” language in the purchase agreement waived the buyer’s right to be able to prove that it justifiably relied upon any alleged representations by the broker. The buyer primarily argued that the purchase agreement language did not apply because the broker was not a party to the agreement. But the Court disagreed with the buyer.
The Court found that
the purchase agreement contains clear language evincing Red River's intent to be bound by a pledge to rely solely on its own investigation. And, because it appears that the parties transacted at arm's length and were of relatively equal bargaining power and sophistication, the court concludes that the language in the purchase agreement conclusively negates the reliance element of Red River's negligent misrepresentation claim.
So, even though the broker was not a party to the purchase agreement, the Court still held that the buyer was bound by the statements/obligations to which the buyer agreed in the purchase agreement, even with respect to third-parties. As a result, the Court granted the broker’s summary judgment motion and dismissed the buyer’s claims against it.
“As-is” language will continue to be common in aircraft purchase agreements. Aircraft sellers and those working with them will certainly want to include and enjoy the benefit from this language. Conversely, aircraft buyers need to be aware of the scope and impact of “as-is” disclaimer language in an aircraft purchase agreement. If a buyer is unhappy with the condition of the purchased aircraft, the presence of this language in the purchase agreement will significantly limit the buyer’s remedies and recourse.
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.
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 obligations. 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.
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.”