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April 30, 2010

4th Circuit Court Of Appeals Affirms NTSB's "Congested Area" Determination

Do you know what constitutes a "congested area" under FAR 91.119? In a recent unpublished decision, the United States Court of Appeals, Fourth Circuit affirmed the determinations by an administrative law judge and the NTSB that the area over which two airmen flew was a "congested area." For a discussion of the cases, please read my latest article on the topic here.

Posted by Greg

April 05, 2010

FAA To Allow Airmen Taking Certain Antidepressant Medications To Apply For Special Issuance Medical Certificates

In case you haven't already heard, the FAA has changed its position with respect to pilots taking certain antidepressant medications. In the past, if a pilot were taking certain anti-depressant medications (e.g. Prozac, Zoloft, Celexa and Lexapro) the pilot was automatically disqualified from receiving any class of medical certificate. Under the FAA's new Policy Statement effective today, the FAA will now consider airman who are being treated for depression with one of those four antidepressant medications on a case-by-case basis for a special-issuance medical certificate.

In connection with the new Policy Statement, the FAA has also issued Compliance and Enforcement Bulletin 2010-1. The Bulletin is "intended to encourage airmen to make a complete disclosure regarding a history of or current use of antidepressant medications, the underlying condition for which the antidepressant medication was prescribed, and associated visits to health professionals so that they can be considered for special issuance medical certification under the new policy on the use of certain antidepressants." Under the terms of Bulletin 2010-1, airman who have not disclosed this information on medical applications in the past will not be will not be subjected to enforcement actions for violations of FAR 67.403 (intentional falsification) if the airman discloses the previously undisclosed information on an application for medical certification made between April 5, 2010 and September 30, 2010.

Although the FAA's grant of immunity is solely with respect to enforcement actions, rather than criminal prosecution for which only the Department of Justice may grant immunity, the Bulletin also states that neither the FAA nor the Department of Transportation's Office of Inspector General will refer cases of apparent intentional falsification covered by this Bulletin for criminal investigation or prosecution.

For any airman who suffers from depression and has been keeping his or her diagnoses and/or treatment secret, this should be great news. However, those same airmen should keep in mind that a special issuance of a medical certificate is granted at the discretion of the Federal Air Surgeon. It is likely that not all airmen who take advantage of this opportunity will be granted a special issuance. However, they will at least be able to "come out of the closet," so to speak, and avoid future enforcement or criminal prosecution.

Posted by Greg

April 01, 2010

NTSB Affords Airman With Second Hearing After 9th Circuit Court of Appeals' Rebuke

After getting its proverbial wrist slapped by the 9th Circuit Court of Appeals, the NTSB has afforded an airman a second hearing. In Administrator v. Ferguson, the FAA charged the airman with violations of FARs 135.293(a)2 and (b) (requiring written/oral test and competency check within preceding 12 months), 135.299(a) (requiring line check within preceding 12 months), and, of course, the ever present residual violation of FAR 91.13(a) (the ever present careless and reckless). The FAA ordered a 90 day suspension of the airman's airline transport certificate as a sanction for the alleged violations. The airman appealed the order to the NTSB and, after a hearing, the administrative law judge ("ALJ") affirmed the FAA's order, but reduced the suspension from 90 to 85 days. The airman then appealed to the full NTSB.

On appeal to the full board, the airman argued that the ALJ made a mistake when he prevented the airman from cross-examining an inspector, the FAA's primary witness, regarding a number of issues including the definition "for compensation or hire", the inspector's understanding of flight maintenance logs, the inspector's internal deliberations concerning his investigation into the airman’s conduct, and the inspector's experience. The Board rejected the airman's appeal, finding that the ALJ had not abused his discretion nor did any alleged errors result in prejudice to the airman.

The Board specifically found that neither the inspector's understanding of "compensation or hire," nor his general perception of flight maintenance logs, were directly relevant to the evidence that he reviewed concerning the airman’s alleged violations. It also concluded that the inspector’s opinions during the course of his investigation or his discussions with other investigators were not relevant to the issue of whether the airman violated the regulations as charged by the FAA. As a result, the Board affirmed the ALJ's decision.

The 9th Circuit Court of Appeals disagreed with the Board. In its unpublished decision, Ferguson v. FAA, the Court determined that the Board had abused its discretion in upholding the ALJ's decision and that abuse of discretion was prejudicial to the airman. The Court initially observed that "[t]he Rules of Practice in Air Safety Proceedings provide that each party has the right to 'conduct such cross examination as may be required for a full and true disclosure of the facts." However, because the inspector "was the FAA’s lone witness as to the revenue-generating nature of the disputed flights," the Court determined that the ALJ erred in not allowing cross-examination of the inspector on the many aspects of his testimony regarding that central issue. The Court stated that the ALJ's "reliance on [the inspector’s] testimony, particularly as to the contents of the flight logs, makes clear that the error was prejudicial." The Court vacated the Board's decision and sent the case back to the Board for further action.

Although clearly not happy with the Court's decision, the Board complied with the decision, stating "[d]espite our well-established precedent with regard to our law judges’ evidentiary rulings, and the reasoning that forms the basis for our deference to such rulings, we recognize that the Ninth Circuit believes that the law judge should have allowed respondent’s counsel to question [the inspector] more fully in this case. As such, we are compelled to remand this case to the law judge so that he may oversee an additional hearing at which respondent’s counsel may again cross-examine" the inspector."

It is unfortunate that the airman had to appeal all the way to the 9th Circuit in order to get his full day in court. However, you have to wonder whether the additional information that will be obtained through a full cross examination at the new hearing will change the ALJ's mind or provide a sufficient basis for appeal if he doesn't. We'll just have to see how it plays out.

Posted by Greg

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