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March 27, 2008

NTSB Upholds FAA's Broad Prosecutorial Discretion

Can the FAA ignore its own published policy and guidance and pursue an enforcement action against an airman even when that action contradicts the policy and guidance? According to a recent NTSB opinion, the answer is: yes! In Administrator v. Murphy and Vernick the FAA alleged that airman Murphy violated FARs 91.13(a) (careless and reckless), 91.123(b) (Compliance with ATC clearance), and 91.111(a) (Operating near other aircraft) and that airman Vernick violated those sections in addition to FARs 91.123(a) (Compliance with ATC clearance) and 91.183(c) (IFR communications), all in connection with a 120 foot computer-detected altitude deviation that resulted in a minimal loss of separation between the airmen's aircraft and another aircraft.

After a hearing, the ALJ found that the airmen committed most violations as alleged. However, he also found that the airmen met all of the criteria for application of the FAA's policy of handling altitude deviations of less than 500 feet administratively as prescribed in FAA Order 2150.3A, Compliance and Enforcement Program, Compliance/Enforcement Bulletin No. 86-1. He further noted the absence of any aggravating circumstances that would make the airmen ineligible for administrative action, rather than enforcement action. As a result, the ALJ concluded that "[b]y bringing this matter as an enforcement action, and not handling it administratively, the Administrator violated her policy set out in [86-1], and deprived the Respondents of the benefits they were entitled to under that FAA policy." The ALJ then reversed the FAA's order and dismissed the complaints against the airmen.

Not surprisingly, the FAA appealed to the full Board arguing that the FAA's exercise of prosecutorial discretion is not subject to Board review; that the FAA has the prerogative to issue an order of suspension when the facts support one; and that the Board has no direct authority over the FAA's exercise of prosecutorial discretion. In response, the airmen argued that the FAA was bound by Order 2150.3A to pursue administrative rather than enforcement action. However, the Board agreed with the FAA.

The Board stated that it lacks the jurisdiction to review the FAA's determination to pursue a matter through legal enforcement action. Once a petition for review of an FAA order is filed, the Board's scope of review does not extend to an evaluation of the procedural steps leading to the issuance of that order. According to the Board, "[t]he discretion to pursue one remedy over another or to pursue enforcement action at all is within the Administrator’s purview." Although the Board will review prosecutorial discretion in the prosecution of an enforcement action once an order is appealed, that has no bearing on the FAA's right to prosecute an airman for an alleged violation. As a result, the Board rejected the airmen's arguments that Order 2150.3A precluded the FAA from pursuing its enforcement action.

However, fortunately for the airmen, the Board agreed with the ALJ that waiver of sanction was appropriate. First, the Board observed that the FAA did not introduce Order 2150.3A with its Sanction Guidance Table into evidence or request deference to its selection of sanction based upon the Order, as was its burden. Second, the Board agreed that the violations were "less serious" and did not involve mitigating circumstances.

Not sure about you, but it doesn't seem quite right that the FAA can publish its enforcement rule book (presumably so everyone is on notice and aware of how they will be treated) but then disregard its own policy to pursue an enforcement action for an apparently "less-serious" violation. Interestingly, Order 2150.3B (the successor to 2150.3A released this fall) contains no such recommendations for administrative action. It merely lists the criteria that must be met to qualify for administrative action. However, be forewarned, the Order apears to have a distinct preference toward certificate action, rather than administrative action. Imagine that!

Posted by Greg

March 21, 2008

NTSB Affirms Rejection Of ATP's Claim That He Was Not PIC During ADIZ Incursions

In a recent NTSB opinion, Administrator v. Moeslein, the Board affirmed an ALJ's finding that an airman holding an ATP certificate was pilot in command (PIC) during a flight in which the airman and another pilot violated the Washington, D.C. air defense identification zone ("ADIZ"). In its order seeking to suspend the airman's ATP certificate for 90 days, the FAA alleged that the airman was PIC for the flight and did not comply with the operating requirements of NOTAM 3-2126 (the NOTAM establishing the DC ADIZ and corresponding operational requirements) in violation of FARs 91.13(a) (careless and reckless), 91.139(c) (failure to comply with emergency NOTAM), 91.215(c) (failure to use transponder), and 99.7 (compliance with security instructions), typical regulatory violations for an ADIZ incursion. After a hearing, the ALJ affirmed the FAA's order on all counts.

On appeal, the airman argued that the ALJ had committed a number of errors in reaching his decision. In particular, the airman argued that the ALJ incorrectly determined that the airman was PIC for the flight. In rejecting the airman's argument, the Board held that both the facts of the case, as well as the established case law on the subject, supported the ALJ's decision. Specifically, when the airman contacted the FAA pilot deviation line after the flight, he identified himself as the pilot and did not mention a second pilot. Additionally, the private pilot with whom the airman was flying had 500 flying hours and was working toward a commercial pilot certificate, as opposed to the airman who had over 7,000 hours and was an ATP and a CFI. Further, the airman and the private pilot had an established instructor/student relationship in which the airman had provided many hours of instruction to the private pilot. Finally, the Board noted the absence of a designation of PIC by agreement between the airman and the private pilot. These facts indicated that the airman had "final authority and responsibility for the flight."

The Board then reiterated its long-held precedent that "an instructor is always the PIC on an instructional flight, and that the PIC is not necessarily the pilot who operates the controls or directs the course of a flight." It also observed that "[a]s an ATP and CFI, [the airman] has the responsibility to make sure that he and the participants in the flight agree on such a designation of PIC. This, along with our holding that the instructor is always the PIC, promotes safety by avoiding confusion in the cockpit." The Board also observed "that an ATP is 'held to the highest degree of care,' and must accept responsibility for the events of the flight" and, in this case, the airman's "acquiescence, or even worse his obliviousness, to such violations was inexcusable." Finally, it concluded that application of the established law to the facts of the case required a finding that the airman was PIC for the flight.

This case is, indeed, consistent with Board precedent and should be a reminder to ATP's and CFI's of the responsibility they will bear in the absence of clear facts and circumstances to the contrary.

Posted by Greg

March 20, 2008

DOT "Clarifies" Airline Deregulation Act's Pre-Emptive Effect On States' Passenger Rights Legislation

The FAA recently issued a "Clarification" regarding its November 20, 2007 Airline Passenger Rights Advance Notice of Proposed Rulemaking (ANPRM). The ANPRM requested comments on whether DOT should adopt a rule to enhance airline passenger protections that would (1) require carriers to adopt contingency plans for lengthy tarmac delays and incorporate them in their contracts of carriage; (2) require carriers to respond to consumer problems; (3) deem operating a chronically delayed flight to be unfair and deceptive; (4) require carriers to publish delay data; (5) require carriers to publish complaint data; (6) require on-time performance reporting for international flights; (7) and require carriers to audit their compliance with their customer service plans. The ANPRM also discussed the issue of whether the rules, if adopted, would pre-empt the current attempts by many states to pass their own passenger rights legislation. The ANPRM concluded that it "does not propose any regulation that * * * preempts State law."

Subsequently, DOT received a number of comments that, presumably, pointed out to DOT that its statement was inconsistent with Section 41713 of the Airline Deregulation Act (ADA) which provides that "a State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier," and contrary to Supreme Court opinions that have consistently interpreted the ADA broadly so as to preclude any regulation of airline services other than by the Federal government. Based upon these comments, DOT "determined that this statement has been misconstrued in the overall context of the proposed DOT regulation and its impact upon State law."(emphasis added).

As a result, DOT's "clarification" states that "any State or local rules addressing, or related to, the services offered by air carriers are already preempted under the ADA." It also notes that "if the proposed rule addressed in the ANPRM is finalized, it is likely that the final rule would also separately preempt any such State or local regulations under other provisions of law."

I don't know about you, but this appears to be a "correction," rather than a "clarification." Regardless of how it is characterized, I think its issuance was appropriate to make sure that DOT does not unnecessarily provide any further opportunities for attempts to water down the ADA's pre-emptive effect. The "clarification" properly aligns DOT with existing law and the ANPRM, if ultimately adopted, will hopefully enhance the uniform application of the ADA to airline services in lieu of potentially, and quite likely, inconsistent attempts by states (and litigants) to regulate airline service.

Posted by Greg

March 13, 2008

Medical Application Falsification Can Result In Criminal Prosecution

Although this topic has been discussed in the past, usually in the context of medical certificate revocation proceedings or regarding the Operation Safe Pilot investigation, every so often another airman is criminally prosecuted for omitting disqualifying information from his or her FAA Application for Medical Certificate. In a Post on the Department of Transportation's Office of Inspector General site the OIG provides a summary of a recent investigation that resulted in the conviction and sentencing of a helicopter pilot for falsification of FAA Airman Medical Applications. According to the summary, the airman was sentenced to 36 months probation, fined $5,000, ordered to pay a special assessment of $100 and ordered not to pilot an aircraft of any type.

Apparently during the investigation the FAA and/or OIG discovered that the airman submitted two applications while he was also receiving 100% disability benefits from the U.S. Department of Veterans Affairs for a medical disorder he failed to disclose on his medical applications. He also failed to report that he had been convicted of two non-traffic offenses. Although this appears to be similar to the circumstances involved in the Operation Safe Pilot investigation, the summary doesn't indicate whether the falsification was discovered during a similar type of investigation.

Although the discovery of the omissions guaranteed that the FAA would seek to revoke the airman's medical certificate, and likely his other airman certificates, this doesn't automatically result in criminal prosecution. However, in this case the airman voluntarily surrendered his medical and airman certificates and then operated an aircraft on two separate occasions when he either did not have a medical certificate, did not have an airman certificate or did not have both. Shortly after discovering the flights, an indictment was issued and the airman was arrested. In addition to the criminal proceeding, the FAA also assessed a $4,000 civil penalty against the airman for the two flights.

Making the proper/required disclosures on applications for medical certificates continues to be a thorny issue for some airman. However, both FAA enforcement and criminal prosecution for falsification violations remain significant consequences for omissions. To avoid ending up in this situation, prepare for your medical examination well in advance. If you are unsure about whether something needs to be disclosed, consult with your AME or an aviation attorney before you go in for your exam. Better to know all of your options before you are sitting in your AME's office with pen and application in hand.

Posted by Greg

March 03, 2008

FAA Proposes Changes To Aircraft Registration

The FAA issued a Notice of Proposed Rulemaking ("NPRM") on February 28, 2008 proposing significant changes to its aircraft registration requirements. As with all NPRMs, it is merely a proposal at this point in time and is not a final regulation. However, the proposed changes will affect current aircraft owners, as well as future aircraft transactions. I encourage all aircraft owners to send in comments to the NPRM. To assist interested parties in providing comments to the FAA, I have provided an overview of the NPRM here.

Posted by Greg

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