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May 25, 2012

Allegedly Falsified Medical Appplication Must Be Introduced Into Evidence To Prove Charge Of Falsification

What happens when the FAA attorney forgets to introduce into evidence the very document the FAA claims an airman falsified? The FAA loses! That was the situation in a recent case in which the NTSB reversed an administrative law judge's ("ALJ") finding that an airman had falsified his application for medical certificate. In Administrator v. Mashadov, the airman was convicted of driving while intoxicated ("DWI") and failed to report the conviction to either the FAA Civil Aviation Security Division or on his application for medical certificate. As a result, the FAA issued an emergency order revoking all of the airman's certificates based upon the airman's alleged violations of FARs 61.15(e) (failure to report a DWI conviction) and 67.403(a)(1) (intentional falsification of a medical application).

At the hearing before the ALJ, the airman admitted that he had not reported the conviction as required under FAR 61.15(e). With respect to the medical application, the airman testified that he simply responded "no" to all of the questions, included Question 18v which specifically asks about drug or alcohol related arrests or convictions. At the end of the hearing, the ALJ determined the FAA had proven that the airman falsified his medical application in violation of FAR 67.403(a)(1) and failed to report the DWI conviction as required by FAR 61.15(e). As a result, he affirmed the FAA's order of revocation.

On appeal to the full Board, the airman argued, among other things, that the FAA failed present a prima facie case because it failed to seek admission of his medical file, which included the allegedly falsified application. The Board agreed stating "[s]ince the record before us fails to contain the very document the Administrator alleges respondent falsified, we will not affirm the Administrator’s order."

The Board next expressed its displeasure with the FAA by commenting that "the fact that the Administrator would bring an intentional falsification case attempting to revoke all of respondent’s certificates, yet not move to admit the very document the Administrator accuses respondent of falsifying, strains credulity." The Board concluded by warning "[w]hen the case turns on an alleged falsified document, it is imperative the Administrator produce that document to meet his burden of proof or provide good cause for why the Administrator could not produce the document."

This case certainly helps restore some of my faith in the Board. I'm not sure how or why the FAA attorney failed to offer the allegedly falsified medical application into evidence at the hearing. However, from my perspective, and, thankfully, from the Board's perspective, that should be a necessary piece of evidence in a falsification case. In this case, the airman got lucky. In the absence of the FAA attorney's error, I am pretty sure the outcome would not have been favorable for the airman.

Posted by Greg

May 24, 2012

Living History Flights Up For Review

On May 22, 2012, the FAA published a Notice of Public Meeting in which it announced public meetings on June 26, 27 and 28 to gather additional technical input on the subject of exemptions relating to Living History Flights ("LHFs"). LHFs involve the operation, for compensation, of historically significant, American- manufactured large, crew-served, piston-powered, multi-engine, World War II bomber aircraft pursuant to an exemption from the prohibition on receiving compensation for operation of non-standard category aircraft. The FAA has established the LHF policy "as a way to generate funds needed to maintain and preserve these historically significant aircraft for future generations."

Initially, the FAA limited the scope of the LHF exemptions to World War II (WWII) or earlier vintage airplanes (i.e., manufactured before December 31, 1947) and refused to include operators of supersonic jets. However, operators requesting LHF exemptions have pushed the envelope to the extent that some are now creating business models that would allow civilians the opportunity to engage in aerial combat with aircraft that the FAA did not contemplate or intend to allow when it originally developed the LHF policy (e.g. former military turbojet-powered aircraft such as the L-29, L-39, TS-11, Alfa Jet, and other aircraft that remain in active military service). As a result, the FAA has determined that it needs to comprehensively evaluate the LHF policy, with the help of public input.

The FAA is seeking comments from the public on the following areas, with more specific questions posed in the Notice of Public Meeting:

The LHF policy in general.
What should be involved or required for the issuance of an LHF exemption?
What limitations should be included in an LHF exemption?
What weather minimums should apply to LHFs?
What pilot qualifications and currency should apply to LHFs?
What maintenance and inspection requirements should apply to LHFs? and

The meetings will be held in the FAA Headquarters building auditorium on the third floor, 800 Independence Ave. SW., Washington, DC 20591. If you would like to submit written comments addressing the LHF areas listed above, rather than attend the meetings, you should submit your comments no later than June 18, 2012.

Posted by Greg

May 23, 2012

ALJ's Dismissal With Prejudice After FAA Voluntary Dismissal Satisfies EAJA "Prevailing Party" Requirement

The United States Court of Appeals for the D.C. District recently reversed the FAA Administrator's determination that an applicant seeking attorney's fees under the Equal Access to Justice Act ("EAJA") was not a prevailing party after the FAA withdrew its complaint before hearing, even though an ALJ then entered an order dismissing the case with prejudice. In Green Aviation Management Co., LLC v. Federal Aviation Administration, the FAA filed a complaint alleging that Green Aviation operated a flight with 10 passengers when the aircraft was only approved for 9 passengers. The FAA was seeking to assess a $33,000 civil penalty against Green.

Prior to the hearing, the FAA withdrew its complaint. Based upon the FAA's withdrawal, the ALJ entered an order dismissing the case with prejudice as required by 14 C.F.R. § 13.215. Green Aviation then submitted an EAJA application for attorney's fees. Although the ALJ found that Green Aviation was a prevailing party, as required by EAJA, he nonetheless found that the FAA was substantially justified in pursuing its case and, as a result, the ALJ denied Green Aviation's EAJA application.

Green Aviation appealed the ALJ's denial to the FAA Administrator. However, contrary to the ALJ, the Administrator determined that Green Aviation was not a prevailing party. The Administrator reasoned that the ALJ's dismissal was required by the regulations and, since the ALJ had no discretion, his order did not make Green Aviation a prevailing party. Green Aviation then appealed the Administrator's decision to the D.C Circuit.

On appeal, the Court initially observed that a prevailing party in an EAJA fee case must meet two requirements: the judgment must be in favor of the party seeking the fees; and the judicial pronouncement must be accompanied by judicial relief. The Court found that the ALJ's dismissal order easily satisfied the first requirement.

With respect to the second requirement, the noted that the ALJ's dismissal order was "with prejudice", which resulted in a "res judicata effect" on the parties. That is, it protected Green Aviation from having to pay damages or alter its conduct based upon the same facts and circumstances alleged in the FAA's withdrawn complaint. The Court observed "[t]he dismissal order is thus not a mere formality or a housekeeping measure; rather it is the means by which Green Aviation can obtain res judicata protection."

The Court concluded that Green Aviation obtained sufficient judicial relief to be a prevailing party. As a result, the Court sent the case back to the FAA Administrator to determine whether the FAA's filing of its complaint against Green was substantially justified. If it was not, Green should be entitled to an award of attorney's fees under EAJA.

This is a great decision for parties facing unjustified civil penalty actions. Although it may not prevent the FAA from withdrawing a complaint on the eve of hearing, after a respondent has incurred significant fees, it does allow a respondent the opportunity to hold the FAA accountable.

Posted by Greg

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