Greg Reigel - Page 19 Aviation Articles

Is A U.S. Senator Subject To FAA Enforcement Action For Landing On A Closed Runway?

According to an Article in the Tulsa World, the United States Senator from Oklahoma, James Inhofe, landed his Cessna 340 on a closed runway at the Port Isabel-Cameron County Airport in Texas. At the time, the closed runway was marked with large X's to protect a crew that was working on the runway and a corresponding NOTAM regarding the runway closure had been issued.

The Senator stated that he only saw the X's about 20 seconds before he landed, which, according to him, was too late to change course. However, he was able to land on a part of the runway that was away from the location where the work was being performed. When asked about the NOTAM, the Senator stated "I did not know it because it was not given to me." Later, when the Senator wanted to leave, he used the airport's taxiway to take off.

What is interesting about this incident is that, after apparently notifying the FAA soon after landing and then talking with the FAA several days later, the Senator "expressed assurance that the agency will not take any action against him." I find that hard to believe.

Any other airman would be looking at an enforcement action alleging, at a minimum, violations of FARs 91.103 (requiring a pilot to become familiar with all available information concerning a flight), 91.139(c) (requiring compliance with a NOTAM) and 91.13(a) (careless and reckless) and seeking suspension of the airman's pilot certificate for a period of at least 30-90 days based upon FAA Order 2150.3B Appendix B (the FAA's Sanction Guidance Table).

[more]Don't get me wrong, I am not trying to encourage an enforcement action against the Senator. After all, he has always been a stalwart supporter of general aviation. Also, as we all know, stories reported in the media never include all of the facts. Perhaps the Senator has some viable defenses. However, it seems to me that the Senator should be subject to the same regulatory enforcement as every other airman. No more, no less.

It will be interesting to see what, if anything, happens. If the FAA does pursue an enforcement action, I hope the Senator filed his NASA/ASRP Form, and hires a good aviation attorney to defend him!

Why You Need To Read The Questions On An FAA Medical Application Before Answering

An airman recently found out the hard way that failure to read the questions on an FAA medical application was not a defense to a charge of intentional falsification under FAR 67.403(a)1. In Administrator v. Cooper, the FAA alleged that the airman checked "No" in response to question 18(v) on the medical application which asks about convictions and/or administrative actions relating to the applicant's driver's license. However, the airman's driver's license had, in fact, been suspended in connection with an alcohol related motor vehicle action.

As a result, the FAA issued an emergency order revoking the airman's airline transport pilot (ATP), certified flight instructor (CFI), and second-class medical certificates based upon alleged violations of FARs 67.403(a)(1) (prohibiting an airman from making fraudulent or intentionally false statements on an application for a medical certificate), 67.403(c)(1) (providing that the making of an incorrect statement in support of an application for a medical certificate may serve as a basis for suspending or revoking a medical certificate) and 61.15(e) (requiring an airman to provide a written report of each motor vehicle action to the FAA, Civil Aviation Security Division within 60 days).

The airman appealed and presented a number of arguments at the hearing. Although the airman admitted that he failed to answer question 18v correctly, he argued that he did not intentionally falsify the application because he had simply failed to read the question or the instructions that accompanied the medical application before answering. Rather than reading the questions, the airman stated that he had just copied his answers from a previous application. However, he also admitted that, if he had read question 18(v), he would have answered "Yes."

The administrative law judge ("ALJ") determined that the airman's incorrect answer was "inadvertent," and that the FAA had not shown that the airman had an intent to falsify the application. As a result, the ALJ dismissed the FAR 67.403(a)1 charge. However, because the airman did answer question 18(v) incorrectly, the ALJ concluded that revocation of the airman's medical certificate was appropriate for violation of FAR 67.403(c)1. The FAA appealed the ALJ's decision to the full NTSB, arguing that the ALJ erred in finding that the airman had not intentionally falsified the application simply because he did not read it.

[more]

The Board initially observed that an airman must read the questions on a medical application carefully before answering them. It went on to state that an airman who does not read the questions on a medical certificate application "should be determined to have intended that whatever answer he gave be utilized in the review of his qualifications." Finally, the Board concluded that "failure to read a question before answering it renders the entire medical certificate application process pointless, and does not provide a defense to a charge of [FAR] 67.403(a)(1)." As a result, the Board granted the FAA's appeal and affirmed its revocation of all of the airman's certificates.

This case is different from other recent cases that have held that an airman's confusion about a question may present a defense to an intentional falsification charge. Here the airman admitted to not reading the question, rather than not understanding the question. As a result, the defense of "failing to read the question" is no longer a legitimate defense. However, the defense of "confusion" or "misunderstanding" of a question remains a viable defense which an ALJ may or may not find credible, although it is still not a particularly strong defense.

Handguns at the Security Checkpoint: Don't Do It.



According to a recent post on The TSA Blog, at least two passengers a day are caught at security checkpoints with a gun in their carry-on luggage. According to the post, when the passengers are caught, the most common response is "I didn't know it was in the bag." Unfortunately, that excuse works for the TSA just about as well as "the dog ate my homework" works for a high school teacher.

Once caught, a passenger potentially faces a number of consequences. First, the subsequent interaction with and interrogation by local law enforcement will quite often result in the passenger missing his or her flight. Next, the passenger could face criminal prosecution for violation of 49 C.F.R. 1540.111 which prohibits carriage of a weapon on your person or accessible carry-on luggage if security screening was required before boarding of the aircraft. The passenger may also be prosecuted under other local statutes that prohibit possession of a handgun at a checkpoint or in the secured area of an airport. [more]

Finally, and in addition to criminal prosecution, the TSA could also initiate a civil penalty action seeking to impose a civil penalty/monetary fine against the passenger for violation of 49 C.F.R. 1540.111 The penalty could range in amount from $1,500 to $7,500, depending upon whether or not the handgun was loaded. The civil penalty action is similar to an FAA enforcement action and does not provide as many constitutional rights and protections as a passenger would have in a criminal proceeding.

The TSA recommends, and I concur, that all passengers double check their carry-on baggage BEFORE arriving at the security checkpoint to confirm that they do not have a handgun or other prohibited item(s) in their luggage. Seems like a "no-brainer" to me. But, if you are caught "packing" at a checkpoint or in the secured area of an airport, hire an aviation attorney to help protect your rights.

For more information on the restrictions placed upon firearms at airports and in aircraft, please read my article on the topic: Carrying Firearms On Aircraft.

Understanding The FAA's New Aircraft Re-Registration And Renewal Requirements



On July 20, 2010 the FAA published a Final Rule amending the FAA's regulations regarding aircraft registration. As a result, if you own an aircraft that is registered with the FAA's Aircraft Registry (the "Registry") you are going to have to renew the registration for your aircraft.

Background

The Registry is responsible for developing and maintaining the system of registration for United States civil aircraft. One of the Registry's primary responsibilities is to maintain an electronic database for all U.S. registered aircraft. The database identifies each registered aircraft by its registration number (N- number), its complete description, and the name and address of its registered owner.

According to the FAA, "approximately one-third of the 357,000 registered aircraft records it maintains are inaccurate and that many aircraft associated with those records are likely ineligible for United States registration." Although the current regulations require aircraft owners to report the sale of an aircraft, the scrapping or destruction of an aircraft, or a change in the aircraft owner's mailing address, apparently many aircraft owners have not complied with these requirements. As a result, the FAA has implemented its Final Rule to improve the currency and accuracy of the Registry's database.

The Final Rule requires re-registration of all U.S. civil aircraft over a 3 year period in order to update the Registry's database and to enable the Registry to cancel the registrations of those aircraft that are not re-registered. Thereafter, aircraft owners will need to renew their aircraft registrations every 3 years.

The Re-Registration/Renewal Process

Under the Final Rule, aircraft registrations will now be limited to a 3-year period. At the end of each 3-year interval, an aircraft's registration will expire and the aircraft will need to be re-registered. This rule establishes the expiration of registration for all aircraft registered before October 1, 2010, and provides for the re- registration of all aircraft over a 3-year period according a schedule contained in the rule.

For aircraft registered on or after October 1, 2010, the aircraft registration's expiration date will be printed on the registration certificate and will be 3 years from the last day of the month in which registration or re-registration occurred. Once renewed, an aircraft's registration will expire 3 years from the previous expiration date. Replacement registration certificates issued on or after October 1, 2010, will display the same expiration date that was shown on the replaced registration certificate. If the replaced registration certificate did not display an expiration date, the replacement certificate will display an expiration date from the above-schedule based on the month of issue of the replaced registration certificate.

The FAA will issue replacement certificates after an address update, an N-number change, or when a certificate is reported as lost or mutilated. However, it is important to note that a replacement registration certificate will not constitute re-registration or renewal. Similarly, the replacement certificate will not change the registration expiration date applicable to the aircraft at the time the replacement registration certificate is issued.

When an aircraft's registration is approaching expiration, the Registry will send an aircraft owner two reminder notices. The first reminder notice will be sent 180 days before an aircraft's registration is scheduled to expire. This notice will identify the aircraft, its expiration date, and the 3-month filing window during which a registration or renewal application should be submitted. It will also provide instructions for completing the registration or renewal process.

In order to receive a new registration certificate before the old certificate expires, an aircraft owner will need to file the re-registration or renewal application within the assigned window. However, once an aircraft has completed re-registration and is approaching a required renewal, the aircraft owner may submit the required renewal information as soon as the first reminder notice is received.

The Registry will send a second reminder notice at the end of the 3-month filing window if the aircraft owner has not yet re-registered or renewed the aircraft's registration. The 3- month filing window will close 2 months prior to the scheduled expiration date for the aircraft's registration to allow the Registry sufficient time to process the application and mail the new certificate. If an aircraft owner files an applications after the filing window has closed, the application will still be processed; however, the new certificate may not arrive until after the current certificate has expired.

To avoid confusion between the normal registration process and the re-registration process, the Aircraft Registration Application, AC Form 8050-1, will not be used for re-registration. The Registry has created a separate application form that will be available online, here. Aircraft owners should be aware that the re-registration/renewal application does not grant any temporary authority for operation of an aircraft, unlike that provided by retaining the pink copy of Form 8050-1. As a result, if a re-registration/renewal application is filed late and a new registration certificate is not received by the time the current registration certificate expires, the aircraft owner would not be able to operate the aircraft between the time when the current certificate expires and when the new certificate is received.

The Final Rule provides for both online re-registration and renewal when no changes are required. However, if changes to the registration are required (e.g. address change, etc.), then the re-registration/renewal application may not be submitted online and must be mailed to the Registry. According to the Final Rule, the Registry will post information on its website identifying aircraft as they move through the various stages of re-registration and renewal so aircraft owners and other interested parties can track the process.

Aircraft owners will need to pay $5.00 to re-register their aircraft and then another $5.00 each time the aircraft's registration is renewed. (Although this doesn't seem like a lot of money, unfortunately the registration and administrative fees may increase over time, depending upon whether the latest version of the FAA reauthorization bill passes. Under that bill, the FAA would be required to increase fees to $130 for initial registration and $45 for renewals.)

Consequences For Failure To Re-Register/Renew

If an aircraft owner fails to re-register or renew an aircraft's registration, the registration will not end immediately. Rather, the Registry will wait 30 days to ensure that any late filed requests from the aircraft owner have been processed. In the absence of such requests, and assuming the Registry has a good address on file for the aircraft owner, the Registry will then send a letter to the aircraft owner providing notice of the pending cancellation of the aircraft's registration. The aircraft owner will then have 60 days within which to reserve the N-number or register the aircraft. If the Registry does not receive a reply within 60 days, the aircraft's registration will then be cancelled. If the Registry does not have a good address for the aircraft owner, cancellation of the aircraft's registration will be scheduled for no sooner than 90 days from the date of expiration. Once an aircraft's registration is cancelled, the N-number will be unavailable for assignment for a period of 5 years.

Conclusion

The Final Rule is effective October 1, 2010. Thus, all aircraft owners will need to comply. How can you minimize the hassle associated with the Final Rule? First, since the re-registration notice will be sent to the address on file with the Registry, verify now that your address in the Registry is correct. If you need to update the information, you can do that directly with the Registry or through an aviation attorney. Second, submit your application as early as possible once you receive your first reminder notice to allow the Registry time to process and mail your new registration.

If you follow these steps, hopefully the re-registration/renewal process will be nothing more than a minor inconvenience. And, as always, if you have problems contact an aviation attorney for help.

D.C. Circuit Affirms NTSB's Rejection Of EAJA Fees When FAA Dismisses Its Complaint Before A Hearing



In a recent decision, Turner and Coonan v. National Transportation Safety Board, the D.C. Circuit Court of Appeals has affirmed the NTSB's refusal to allow two airmen to recover under the Equal Access to Justice Act ("EAJA") when the FAA dismissed its complaints before the cases can be heard by an NTSB administrative law judge ("ALJ"). The case began when the FAA suspended the airmen's airline transport certificates for their alleged operation of an aircraft that was in an unairworthy condition in violation of FAR 91.7(a). The airmen appealed the suspensions and their cases were assigned to the same ALJ who scheduled hearings for June 2008.

In April 2008 the ALJ granted motions to continue the cases and re-scheduled the hearings for August. However, after the continuance was granted, the FAA withdrew the complaints against the airmen, stating only: "The Administrator hereby withdraws its [sic] complaint in this matter." The ALJ then terminated the proceedings against the pilots with an short order that, unfortunately, did not specify whether the termination was with or without prejudice. The airmen then applied for an award of attorney's fees and expenses under EAJA.

The Equal Access to Justice Act

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 determine whether EAJA fees are available, the key inquiries for an "applicant" (a certificate holder or target of a civil penalty action who is applying for an award of fees) are: (1) Is the Applicant a "prevailing party"? (2) Was the Applicant involved in an "adversary adjudication"? (3) Was the FAA’s position "substantially justified"? and (4) Were the fees actually "incurred" by the Applicant?

The Case Before The ALJ And The Board

The ALJ granted the airmen's EAJA requests finding that the airmen were prevailing parties as a result of the FAA's total withdrawal of all of the charges against the airmen. He also determined that the FAA was not substantially justified because it had "proceeded on a weak and tenuous basis with a flawed investigation bereft of any meaningful evidence." The FAA then appealed the decision to the full Board who reversed the ALJ's award. The Board concluded that the airmen did not satisfy the prevailing party standard because the airmen did not receive an enforceable judgment on the merits of their case, nor did they obtain a court-ordered consent decree that resulted in a change in the legal relationship between the airmen and the FAA.

Specifically, the Board found that the airmen did not prevail on any portion of the merits of the case because the FAA withdrew the charges before the ALJ could hold a hearing. It further noted that the ALJ's order dismissing the case merely accepted the FAA's withdrawal of the charges against the airmen and was not the same as a court-supervised consent decree. Finally, the Board observed that the ALJ did not dismiss the case with prejudice or in any way alter the relationship between the FAA and the airmen. The Board then concluded that "[w]e believe ourselves compelled to find that the Administrator’s withdrawal of the complaint does not confer prevailing party status on applicants under the EAJA."

The Court Of Appeals Affirms

On appeal to the D.C. Circuit Court of Appeals, the airmen argued that they were, in fact, the prevailing parties and entitled to the EAJA award granted by the ALJ. However, the Court concurred with the Board and concluded that the airmen were not prevailing parties. The Court found that the ALJ dismissed the cases without prejudice (meaning that the withdrawal did not prevent the FAA from trying to pursue its cases against the airmen at a later time). As a result, the Court held that the airmen did not receive any sort of "judicial relief." According to the Court, when the FAA unilaterally withdrew its complaints, the FAA ended its adversarial relationship with the airmen and the airmen were left in the same position they were in before the enforcement actions began.

Conclusion

In my opinion, this case is bad law. It places procedure before substance and is contrary to the legislative intent behind EAJA. Rather than deterring frivolous and unsubstantiated litigation by the FAA, the Court's decision certainly makes it more difficult to ensure that the FAA is justified in pursuing its cases. The decision also ignores the realities of litigation. To say that the airmen were simply in the same positions after withdrawal as they were before initiation of the action overlooks the time and expense necessarily incurred by the airmen in defending themselves in the case.

EAJA was enacted to allow recovery of those attorney's fees and expenses. Unfortunately, both the Board and the D.C. Circuit Court of Appeals have significantly impaired EAJA's deterrent effect, for now.

End of content

No more pages to load