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September 21, 2018

Operation Safe Pilot All Over Again, But This Time FAA Cross-Checks Pilots With The VA Disability Database

As some of you may know, the Department of Justice recently issued a Press Release announcing that it had indicted four pilots for lying on their medical applications. In each case, the airman failed to disclose that he was receiving Veterans Administration ("VA") benefits for a medical condition that would likely have either disqualified the airman from receiving a medical certificate, or would have certainly subjected the airman to additional scrutiny and/or testing requirements by the FAA's Office of Aerospace Medicine.

The airmen were "caught" when the FAA cross-checked its database of airmen holding medical certificates with the VA's disability benefits database. This is reminiscent of the FAA's 2002 Operation Safe Pilot in which it performed a similar cross-check, but with the Social Security Administration's ("SSA") disability database. Operation Safe Pilot resulted in prosecution of forty pilots who were receiving SSA disability benefits for conditions that would have either disqualified the airmen from receiving a medical or would have triggered further inquiry by the FAA.

After Operation Safe Pilot, the FAA revised the application for medical certificate to include language that specifically authorizes it to conduct this type of cross-check with SSA and VA. When an airman signs the medical application, he or she is agreeing that the FAA can perform this type of search.

Since the DOJ Press Release was issued, I have received multiple calls from airmen who believe they may be in a similar situation, but have not yet been "discovered" or received any notice from the FAA. In each call the airman is, perhaps justifiably, concerned regarding his or her liability exposure for criminal prosecution. Fortunately, options, albeit not great options, are available provided the airman is not yet in the FAA's cross-hairs.

Depending upon the circumstances, airmen have at least two options for dealing with the situation:

An airman can contact the FAA via letter and disclose the previously omitted information regarding both the medical condition and the receipt of disability benefits. It is also helpful to provide an explanation for the non-disclosure, to the extent that the airman has a reasonable explanation for failing to disclose the information. This may persuade the FAA that the failure to disclose was not intentional, but merely a misunderstanding etc.; or
The airman can apply for a new medical certificate and disclose the medical condition and receipt of benefits on the application. Then when the airman goes to his or her aviation medical examiner ("AME") for the medical examination the airman can explain the situation to the AME.

In either instance, the airman will want to have all of his or her VA medical/disability records available to provide to the FAA. However, an airman should keep in mind that any information he or she provides to the FAA could be used against the airman in a criminal prosecution. So it is important for the airman to be very careful about what he or she says to the FAA or AME.

Although pursuing one of these two options does not guarantee that the FAA will not prosecute the airman, coming clean and correcting the record before the airman is "caught" may convince the FAA that prosecution is unnecessary. However, even if an airman is not prosecuted, it is quite likely that the FAA will follow its standard playbook and revoke all of the airman's certificates as a sanction for falsifying the airman's medical application(s).

If you find yourself in this situation, please call and I will be happy to help you through the process.

Posted by Greg

September 14, 2018

If You Want To Be A Part 135 Check Airman Or Instructor In A Simulator, You Have To Fly The Plane

In a recent Legal Interpretation, the FAA reaffirmed its position that an individual acting as a check airman or flight instructor in a simulator must fly at least two flight segments for the type aircraft involved within the 12-month period preceding the performance to comply with 14 C.F.R. § 135.337(f). The Interpretation responded to an inquiry from a Part 142 Training Center asking whether a Part 135 check airman/instructor conducting turbine aircraft flight checks/flight instruction in a simulator could use a multi-engine piston aircraft to satisfy the requirements of §§ 14 C.F.R. § 135.337(f) or 14 C.F.R. § 135.338(f). Both sections require that the check airman/instructor

Fly at least two flight segments as a required crewmember for the type, class, or category aircraft involved within the 12-month preceding the performance of any check airman or flight instructor duty in a flight simulator; or
Satisfactorily complete an approved line observation program.

In its request the training center explained that it was either cost prohibitive or simply not feasible for a training center or contract check airman/flight instructor to be able to satisfy these requirements in an actual turbine aircraft. On the other hand, accomplishing the flight segments or line observation in a multi-engine piston aircraft was not only more economical, but was actually feasible given the availability of multi-engine piston aircraft for rent.

In response, the Interpretation states that

recency of experience in a light piston engine would not satisfy the recency requirements for serving as a check airman or instructor in an aircraft of a different type, class, or category aircraft. Because the purpose of the requirements is for experience in a similar aircraft, the aircraft type must be the same. If the aircraft does not have a type rating, then the class and category, in that order, must be the same.

So, if you are a conducting Part 135 flight checks or instruction in a simulator, you will need to make arrangements to obtain the required currency experience in a similar aircraft. Unfortunately, this will make it more difficult, and more expensive, for training centers to either obtain or maintain qualified check airmen/instructors.

Posted by Greg

September 07, 2018

If You Are Unhappy With Your ASAP Program, Suing DOT Won't Help.

An airman found this out the hard way in a recent case in Michigan. In Mark v. U.S. Dep't of Transportation the plaintiff was a flight engineer working for Kalitta Chartes II, LLC, an air carrier. During one particular flight, the captain nearly crashed the aircraft in what the Court characterized was a "nearly-disastrous unstable landing approach" which left the plaintiff "understandably shaken."

Shortly after the flight, the plaintiff failed a simulator proficiency exam and claimed his failure was the result of the post-traumatic stress disorder ("PTSD") he was suffering from the previous flight. The Plaintiff then filed a report under Kalitta's Aviation Safety Action Program ("ASAP") detailing his physical and mental condition which was then provided to the Event Review Committee ("ERC"). As you may know, ASAP programs are established via a memorandum of understanding ("MOU") between an air carrier and the FAA which detail procedures for participating in the program. The MOU establishes the ERC which includes a representative from each of the air carrier and pilot's union, as well as an FAA inspector.

In this case, the plaintiff alleged that the MOU required the ERC to report his medical issue to the FAA Regional Flight Surgeon and then comply with any instructions received in response to the report. However, the ERC did not follow this procedure, but simply determined that the plaintiff was fit to fly. Based upon this determination, the plaintiff submitted to another simulator proficiency check which he also failed, and he again claimed the failure was caused by his PTSD. After the second failure, the plaintiff's employment was terminated.

The plaintiff sued the Department of Transportation alleging that he would not have lost his job if the FAA inspector on the ERC had reported the plaintiff's medical condition to the Regional Flight Surgeon as required by the MOU. The plaintiff asserted claims against the DOT for ordinary negligence grounded in the alleged unlicensed practice of medicine by the FAA inspector and intentional infliction of emotional distress. The DOT then moved to dismiss the plaintiff's claims.

The Court agreed with the DOT and held that the plaintiff's claims were barred by the doctrine of sovereign immunity. The Court determined the plaintiff's allegations that the FAA inspector's alleged failure to comply with the MOU and the resulting termination of plaintiff's employment were really contract claims which are expressly barred by sovereign immunity and not covered under the Federal Tort Claims Act (which does permit some tort claims against the government). It also observed that the plaintiff had provided no evidence or case law to support his claims for unlawful practice of medicine or intentional infliction of emotion distress.

So, I think the takeaway from this case is that any disputes arising from an ASAP program are probably best pursued with the air carrier rather than the DOT. Although the government can be sued in tort (e.g. the plaintiff's negligence and intentional infliction of emotion distress claims), the burden is high to assert facts and precedent to support those claims. And as this case shows, contract cases against the government are, for the most part, completely barred.

Posted by Greg

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