NTSB Bar

The National Transportation

Safety Board Bar Association

www.ntsbbar.org Fall 2004





From the President… by Tony B. Jobe



Now that fall is in the air, and the NTSB’s Academy located just outside A Look Inside…

leaves are changing, and hopefully the Washington, D.C., eight miles from

hurricanes are over, we have changes at Dulles airport. Mark McDermott and

our Bar Association to report. In my my wife, Nancy, and I will attend the 4 Program Chairman’s

President’s Message to you in the invitation of the Chairman and Board Report

Spring 2004 Newsletter, paragraph Members. We all applaud the formal Brian C. Dalrymple

one (1) discussed the approval by our opening of this fabulous facility, which

Board of Directors of a $5,000 schol- approximately 30 of our members vis- 4 Publicity Chair Report

arship for SMU’s Journal of Air Law ited on our tour following our April Dean M. Drew

and Commerce for the selection of 2004 CLE Program. Dan Campbell,

two qualified students to be our former General Counsel to the Board, 5 Alaska Vice President’s

Newsletter’s Editor and Assistant was our host on that tour, which was Report

Editor. After spending approximately breathtaking, exciting and educational. Marcia Davis

seven months and countless hours If you haven’t actually seen TWA

hammering out the logistical details Flight 800 aircraft’s fuselage in its 93- 6 Legislative Affairs and

and lines of responsibility and confer- foot reconstruction, collected from the Oversight Report

ring with the Dean of SMU Law bottom of the Atlantic Ocean, and put Sid Cook

School, I determined the program together by the extraordinary skills by

would not work as we had envisioned. the employees of the NTSB, who 7 Work of Policy Committee

Thus, that program has been cancelled came together to determine the proba- Continues

for the time being. Cold reality quicky ble cause(s) which led to the crash and Hays Hettinger

set in, and I realized that all our Bar the death of 259 people, you really

Association’s past Presidents had have missed something. Hold on, you 8 Successfully Defending

orchestrated, if not completely drafted, may get another chance to visit that Enforcement Actions

our Newsletters since we were founded Academy. Mark C. Fava

in 1985. Actually, the Newsletter ide- Our Spring CLE Program, which is

ally should be a literary product, set for June 8-10, 2005, will again 11 SATS Program to Change

which is developed by our members, offer tours which will be announced. Air Travel

officers and committee heads. Thus, If you missed the tour of the NTSB J. Michael Loomis

you are looking at such an effort in Academy and would like for us to

this Fall’s 2004 Newsletter. You will request a repeat performance, please e- 12 Welcome New Members

notice several changes to our format: mail me. We will be touring the

color photos of our writers, reports Udvar-Hazy Air and Space Museum 14 Recent Developments

from our Committee Heads, and on June 9th. We also hope to arrange John S. Yodice

reports from some of our Vice a golf outing for networking and fun

Presidents. Please give me additional on Friday, June 10th. Brian Dalrymple 17 Reflections on

input in order to continue to improve is this year’s Program Chairman, who Enforcement Cases

our Newsletter, and bring it to the will be assisted by our member, Bill and Reality

level of a first class publication. This is Elder, who will work to bring together Jane Mackall

currently my number one goal as another outstanding CLE program

President. that is both dynamic, educational and 18 Membership Application

Monday, October 18, 2004, I have fun. See Brian’s article at page 4.

been invited to the dedication of the continued on page 2



1 1

From the President…

Continued from page 1

The general topic of next Spring’s

CLE program will expand past avia-

tion enforcement and accident investi-

gations, and will include a look at the Tony B. Jobe has engaged in a

Board’s other areas of independent national practice of aviation and

transportation accident investigation maritime law for 30 years based in

and their resultant enforcement and the New Orleans area with offices

legal ramifications. This would include in Madisonville, Louisiana. Juris

potential speeches and written papers Doctor, Tulane Law School (1974).

regarding rail, highway, maritime and

Hazmat accidents. As most of you

know, our Bar has not previously

examined these areas of the Board’s

responsibility in prior CLE programs.

Please e-mail Brian if you can suggest

potential speakers to present CLE

papers in these other areas. tion and discretionary distribution. our Website Committee, to determine

I received a letter on October 5, The CD Rom comes with search what should be accessible on the Bar’s

2004 from Administrative Law Judge engines to locate individual members website by our members as opposed to

William R. Mullins asking our Bar and/or government employees. We non-members. We may want the abili-

Association to consider a proposal to hope you find it more useful, since the ty of individual lay persons to be able

provide Pro Bono representation to world has gone electronic. For those of to use our website to locate counsel

indigent respondents in those rare you who cannot part with the old for representation in their area. All of

cases that may be a worthwhile project printed version, all you need to do is this can be properly designed with our

for a new Committee to administer. I minimize the page, hit the print but- webmaster, Rob Duncan. Again, I will

have written to Judge Mullins and all ton, and staple together the pages in send you a follow up e-mail letting

the other Administrative Law Judges, order to carry the Directory in your you know of these developments. Let

and General Counsel, Ron Battocchi, briefcase or have it available on your us know what you think.

indicating that I would ask our Board desk. In going electronic with the Our Treasury contains $15,984.24,

of Directors to approve the establish- Directory and the Newsletter, we are and we currently have 371 paid mem-

ment of a Pro Bono Committee to saving several thousand dollars of bers. Our membership goal is 500, so

study this proposal. I am sure you are unnecessary printing and mailing please encourage your colleagues to

familiar with the work of Pro Bono costs, which will strengthen our consider the substantial benefits the

activities of other bar associations, and Treasury, and allow us to do more for NTSB Bar Association can offer to

this proposal may be a service the you. Let me know what you think. them in their practice of law.

NTSB Bar should consider providing Subject to our Board of Directors’ Finally, please “firewall” your calen-

under approved guidelines and proce- approval, I will be recommending that dars for June 8-10, 2005 and I will see

dures yet to be determined. If you we no longer have our full Directory you in D.C., when the weather is at

have an interest, let me know. I will or the current Newsletter available for its best. You may want to consider

send a follow up report on this pro- downloading from the NTSB Bar bringing your family, particularly if

posal in my next e-mail. Website. The reason is simple, we you have children who would enjoy

Being mailed to you this weekend is want new members not freeloaders. the tours we will offer.

our, first ever, NTSB Bar Association We also do not want to make available

Directory, in CD Rom format to facil- to marketers the master address list of Tony B. Jobe, President

itate loading on your computers, palm our members. At the very least, I will

pilots, and laptops for ease of utiliza- ask that Paul Lange, our Chairman of









2 Back to Page 1

Officers of the NTSB Bar Association



National Officers Regional Vice Presidents Committees



President New England Amicus Curiae Committee

Tony B. Jobe Paul A. Lange James K. Brengle

985-845-8088 203-375-7724 215-979-1512

jobelaw@msn.com pal@lopal.com jkbrengle@duanemorris.com

jobelaw@charter.net

Eastern Program Committee

Vice President Jeffrey R. Small Brian Dalrymple

Mark T. McDermott 412-299-1265 bdalrymple@nixonpeabody.com

202-331-1955 smallj@alpa.org

mcdermott@jmr-law.com Rules Committee

Southern Rusty Allman

Secretary Harry L. Riggs, Jr. 512-795-8686

Sandra M. McDonough 513-977-8186 rallman@slackdavis.com

203-386-1215 hriggs8@insightbb.com

sandy1215@aol.com Public Relations Committee

Great Lakes Dean M. Drew

Treasurer Michael J. Loomis 716-885-1150

Peter Wiernicki 260-490-6100 dmdrew@drewanddrew.com

202-331-1955 loomisavlaw@aol.com

pjw@jmr-law.com Newsletter Committee

Central Tony B. Jobe

Past President Kent S. Jackson 985-845-8088

Michael L. Dworkin 913-338-1700 jobelaw@msn.com

415-421-2500 kjackson@jetlaw.com jobelaw@charter.net

law@avialex.com

Southwest Membership Committee

Executive Director Hayes Hettinger Jeffrey R. Small

Karen Griggs 214-745-5605 412-299-1265

410-571-1950 hhettinger@winstead.com

execdir@ntsbbar.org Legislative Affairs Committee

Northwest Mountain Sid A. Cook

Director at Large Robert F. Hedrick 214-369-2001

Christopher Poreda 206-892-2252 scook19657@aol.com

718-238-7040 hedrick@air-law.com

chris.poreda@faa.gov Website Committee

Western Pacific Paul A. Lange

George Moore 203-375-7724

925-422-4675 pal@lopal.com

gmoore@llnl.gov

Select Committee on

Alaskan Aviation Public Policy

Marcia Davis Hayes Hettinger

907-266-8325 214-745-5605

mdavis@era.aviation.com hhettinger@winstead.com

and

Bill Elder

202-637-8787

elelder@hhlaw.com









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Program Chairman’s Report by Brian C. Dalrymple



Washington, D.C., June 8-10, 2005, victims and their families of transporta-

will play host to next year’s Bar Associ- tion accidents. As such, next year’s pro-

ation Continuing Legal Education gram will look at the broad ambit of the

Seminar. Entitled Law Conference — NTSB’s investigatory authority and

Aviation and Other Related NTSB the legal issues that arise, not only in

Transportation Investigations and Legal aviation, but rail, highway, maritime,

Issues; to be held at the NTSB’s pipeline and hazmat cases. We plan to

Auditorium located at 429 L’Enfant broaden your educational knowledge,

Plaza, SW, Washington, D.C. It prom- while still emphasizing the Bar’s more

ises to be one of the best law conferences traditional analyses of recent aviation

put on by our Bar Association. The CLE and enforcement related case law.

Program will run from 8:30 a.m. to As your Program Chairman, work-

5:00 p.m. on Wednesday, June 8, 2005; ing together with our President, Tony

followed by a tour of the National Air B. Jobe, and my Program Co-Chair,

and Space Museum’s UDVAR-Hazy Bill Elder, we are putting together an

Brian Dalrymple is a partner in

Center near Dulles Airport on June outstanding program designed to

the San Francisco office of Nixon

9th; and concluded by a round of golf broaden the scope of topics and speak-

Peabody LLP and he is the Deputy

for networking and fun on June 10th. ers who will address these issues. Next

Practice Group Leader for the

These are unique and challenging year’s law conference will be of interest

Nixon Peabody Product Liability,

times for our nation’s transportation to attorneys, jurists, consultants,

Mass & Complex Tort Group.

system. The NTSB’s mission is to con- experts and all those persons who

duct independent transportation acci- work in or have an interest in the

dent investigations and to foster an NTSB’s transportation mission. Please conference related activities you

environment that encourages trans- mark your calendar now for June 8- would like our Committee to consider

portation safety initiatives and techni- 10, 2005 so you too can join us in for next year’s meeting. My contact

cal research, and to promote uniform Washington, D.C. information is Office number

programs that ensure compassion, I encourage you to e-mail me any (415) 984-8275; and Cell Phone

understanding and assistance for those suggestions for speakers, subjects or (415) 994-0339.





Publicity Chair Report by Dean M. Drew



Not having found any specific job related assemblies for which our pro-

scope for the publicity chair spot, I’ve gram may hold interest.

pretty much been making this up as I Finally, to make sure that the recip-

go along. The basic goal—unless I ients of our meeting notices actually

have totally misunderstood what pub- include them in their upcoming events

licity is--is to make the NTSB Bar calendars, I want to try to make con-

Association better known in both the tact with the publicity people at the

aviation and legal spheres. various groups. Once the list is organ-

Prior to the annual meeting in ized, I will send out a ‘pre-notice’

2003 I began assembling a list of avia- intended to explain the mission of the

tion-related periodicals to receive NTSB Bar Association, and then I will

notice of the annual meeting…with follow up with telephone calls.

mixed results. The list of periodicals Although I don’t expect to be able to

was refined for the 2004 meeting and contact everyone on the list, I do Since being admitted in 1978,

we seemed to get at least marginally expect to get to many of them well in Dean Drew has practiced in the

better coverage. Now, with the extra advance of this year’s meeting. Buffalo, New York law firm of

time to get out notice for the 2005 Hopefully, my efforts will result in Drew & Drew, LLP where his

annual meeting, I plan to further the NTSB Bar Association becoming a work is concentrated in the areas

refine the list of the aviation-related bit better known and will generate of aviation law and litigation.

periodicals but, more importantly, to interest in the next annual meeting He holds a commercial/MEL

expand the list to include aviation outside of our membership. pilot certificate. He would

groups, bar associations and other law- prefer to practice more ILS’s

and less law.





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Alaska Vice President’s Report by Marcia Davis



As a brand new Vice President of This puts the Alaskan State law in

our Bar Association in Alaska, I want- conformity with federal law, but

ed to report on three pieces of legisla- makes it more enforceable at an

tion that have been recently adopted Alaskan local level.

by the Alaskan Legislature and placed 3.) The Alaskan Legislature has now

into law. These are not enforcement passed a law which requires the

related laws having to do with the Alaskan State Courts to limit an

NTSB, but in order to keep our mem- employer’s vicarious liability for

bers abreast of developments occurring punitive damages assessed against

in Alaska, I offer them to you. its employee, unless there is a

1.) Alaska has revised its state wage showing of culpability on the part

and hour laws applicable to air car- of the employer. Prior to this

riers subject to the Railway Labor statute, Alaska enforced the minor-

Act, so that the federal, and not ity view that the employer was

state wage and hour laws, applied strictly liable for such damages,

to flight crews. There was some without any fault.

conflict between the way the For all of our members who have Marcia R. Davis, Vice President

Alaskan State Department of Labor questions about Alaskan aviation or and General Counsel of ERA

and the Alaskan State Courts were transportation related NTSB investiga- Aviation, Inc. In Anchorage,

analyzing the issue with respect to tions, I look forward to being of assis- Alaska; graduated from the

flight crews, so this statute helped tance and providing a communications University of California Davis,

resolve it. link to the lower 48. In my next report, School of Law, (Order of the Coif,

2.) The Alaskan Legislature has now I will examine recent enforcement 1982); Clerked for Chief Justice

enacted a law which creates penal- cases and decisions of the NTSB and Edmond Burke, Supreme Court

ties under Alaskan State law for FAA in Alaska. of Alaska, 1982-83; and is

lawyers or air carriers or their I look forward to meeting with all Chairperson, Corporate Counsel

agents to contact passengers or of you at our next aviation law confer- Section, and Examiner of the

their family members within 45 ence, June 8-10, 2005. Alaska Bar Association.

days after an aviation accident.









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Legislative Affairs and Oversight Report by Sid Cook



This the first report from the new intended effect of this action is to pro- A case submitted by Bob Hendrick

Legislative Affairs & Oversight vide for the manufacture of safe and dealt with the Pilot Records

Committee. I invite anyone to send economical certificated aircraft that Improvement Act. A decision issued

input on any law, regulation, or court exceed the limits currently allowed by by the Washington Court of Appeals

decision that you would like to see ultralight regulation, and to allow on September 13, 2004 held that the

reported in future newsletters. operation of these aircraft by certifi- PRIA neither prohibits air carriers

“Vision 100 – Century of Aviation cated pilots for sport and recreation, from requiring applicants to disclose

Reauthorization Act” was signed into to carry a passenger, and to conduct disciplinary action that subsequently

law on December 12, 2003. This has flight training and towing in a safe was rescinded, nor prohibits the firing

resulted in amendments to 14 CFR part manner. The FAA recognizes that per- of a pilot who falsely reports that there

13 “Investigative and Enforcement sons seeking certification as airmen has been no such disciplinary action.

Procedures” to include a new section, under the rule or seeking the certifica- Committee members are Jim

14 CFR 13.18. Vision 100 modified tion of light-sport aircraft under the Gilman of the Gilman Law Firm in

the maximum amount of civil mone- rule will not be able to obtain such Albuquerque and Bev Sharkey of the

tary penalties the FAA can administra- certification immediately after the FAA in Washington.

tively assess under 49 U.S.C. 46301(d). rule’s effective date. The FAA, however,

For violations occurring on or after will work closely with the sport avia-

December 12, 2003, the FAA now has tion community to ensure that each

authority to assess administratively a milestone on the FAA’s implementa-

maximum civil penalty of $400,000 tion plan is met and that information

against persons other than individuals regarding implementation of the rule

or small business concerns. For indi- is made available in a timely manner.

viduals and small business concerns, January 31, 2008 is the date estab-

the maximum civil penalty the FAA lished to transition existing ultralight

can assess administratively remains training vehicles, single and two-place

$50,000. Congress also transferred the ultralight-like aircraft, and ultralight

authority to review the FAA’s adminis- operators and instructors to the provi-

trative civil penalty actions against sions of the final rule.

individuals acting as pilots, flight engi- A case challenging regulations was

neers, mechanics, or repairmen to the Coalition of Airline Pilots Associations,

NTSB. These proceedings are adjudi- et al, Petitioners v. FAA and TSA,

cated under the NTSB’s Rules of Practice Respondents. Several unions repre-

in Air Safety Proceedings located in 49 senting aviation workers challenged

CFR part 821. The new rules will be regulations promulgated by the TSA

effective on November 3, 2004. and the FAA to prevent individuals

On February 11, 2004 amendments who pose security threats from flying, Sid Cook of Dallas, Texas has com-

to 14 CFR part 121 became effective repairing or navigating airplanes in the bined a career in aviation and law.

regarding the Antidrug and Alcohol United States. Under the FAA’s rule, He flew for 37 years as a pilot.

Misuse Prevention Programs. The major any person deemed a security threat Starting with the US Air Force,

changes the FAA is making include by the TSA automatically became then with the Louisiana Air

the requirements for submission of ineligible to hold an airman’s certifi- National Guard, and had a 30

antidrug plans and alcohol misuse cate. These airline unions also brought year career with Delta Air Lines

prevention certification statements by their concerns to Congress which from which he recently retired as a

employers and contractors and the enacted a new law directing the B-767-ER captain. He went to

timing of pre-employment testing. agencies to accomplish this mission Tulane law school and practiced

Another new rule became effective in a different way, prompting the law as a JAG in the Air Force

September 1, 2004 for the manufac- agencies to pledge formally that they reserves until retirement in 1993.

ture, certification, operation and would no longer enforce the regula- His last tour was with the Air

maintenance of light-sport aircraft. tions as written. Accordingly a Force Inspection & Safety Center

Light-sport aircraft weigh less than decision issued by the US Court of where he dealt with safety investi-

1,320 pounds and are heavier and Appeals for the District of Columbia gations. He is a member of the

faster than ultralight vehicles. They on June 11, 2004 dismissed the State Bar of Texas. He is now

include airplanes, gliders, balloons, petitions “because these intervening enjoying his retirement and consid-

powered parachutes, weight-shift- events have mooted the unions’ ering new career opportunities.

control aircraft and gyroplanes. The claims”.





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Work of Policy Committee Continues by Hays Hettinger



Our Select Committee on Aviation prison sentence of 18 months and are submit the article for final publication

Policy continues to work toward a expected to appeal. in the Spring.

Spring, 2005 publication date for its The most controversial subject Committee members are: Rusty

forthcoming article on an overview of during the trial—and the concern of Allman of Slack & Davis, Austin; Jim

six foreign venues and the United States, our Committee—was the prosecutors’ Brengle of Duane Morris, Philadelphia;

and a comparison of civil aeronautical use as evidence of an investigative report Bill Elder of Hogan & Hartson, WDC;

practices in these countries with the on the accident compiled by the trans- Lorraine Halloway of Crowell &

thesis of Annex 13 of the ICAO that port ministry’s accident investigation Moring, WDC; Hays Hettinger of

stipulates : The sole objective of the committee. The presiding judge rejected Winstead, Dallas; Christopher Barth

investigation of an accident or incident the defense motion to exclude the of Lord Bissell Brook, Chicago;

shall be the prevention of accidents and report as designed to shed light on the Brandi Williamson of the Office of

incidents. Ms. Kara Grimes, the new cause of the accident, not for a criminal Chief Counsel, FAA, WDC; and

Editor in Chief of SMU’s Journal of investigation. He ruled, however, that Paul McCarthy, Marblehead, MA.

Air Law & Commerce, one of four law use of the report as evidence was proper

reviews of the Dedman School of Law, because it carried “opinions by com-

clerked at Hays Hettinger’s Winstead mittee members who have expert knowl-

firm last Summer and is working with edge and can make fair judgments.”

the committee on scheduling for the This may have been the first time

submission of this article. an aircraft accident report has been

Some delay has been experienced accepted as evidence in a criminal trial

but for good cause. Paul McCarthy, an but the Committee believes its use was

attorney in Boston and Delta captain, a violation by Japan of an international

has been deeply involved with the civil aviation treaty. This practice in

International Federation of Air Line Japan and other countries has prompted

Pilots’ Association (IFALPA) in several the International Civil Aviation

foreign incidents that have triggered Organization (ICAO) at its 35th

criminal prosecutions of air crewmem- Assembly session that just concluded

bers but involve the questionable in Montreal (Sept 28-Oct 8, 2004) to

practice of misusing civil accident adopt a resolution that instructs the

investigative information for proof in ICAO Council to “develop appropriate

the criminal proceedings. The most legal guidance that will assist States to

glaring example is Japan Air Lines enact national laws and regulations to Hays V. Hettinger

Flight 706, Hong Kong to Nagoya with effectively protect information from Consultant, Winstead, Sechrest &

179 passengers and crew members on safety-data-collection systems, both Minick, Dallas, TX

board, June 8, 1997. On that flight, mandatory and voluntary, while allow- Hays has a 33 year career as legal

the captain of an MD-11 experienced ing for the proper administration of counsel with the FAA, begun in

severe air turbulence that led to the justice in the State”. The resolution 1961 and completed with retire-

death of a flight attendant, injuries to further “urges all Contracting States to ment in 1994 as Assistant Chief

13 others aboard the aircraft, and the examine their existing legislation and Counsel for the Enforcement

captain’s indictment on a charge of adjust as necessary, or enact laws and Division, FAA WDC. Awards

criminal negligence on May 14. 2002. regulations, to effectively protect include commendations and special

In August of this year the pilot was information from safety-data-collection citations by the Chief Counsel, the

found not guilty. Ruling on an systems based, to the extent possible, Administrator, the Secretary of

unprecedented criminal trial targeting on the legal guidance developed by Transportation, and members of

a commercial pilot in Japan in ICAO”. The resolution adopted would the Bar.

connection with an in-flight accident, build upon existing ICAO provisions Cases reported in CAB, NTSB and

the Nagoya District Court acquitted protecting specific accident records CCH law reporters, Federal Supple-

54 year-old Koichi Takamoto. Presiding and incident records from admissibility ment ad the Federal Reporter.

Judge Yoji Ishiyama blamed the vio- in judicial proceedings.

lent jarring of the aircraft near Nagoya Capt McCarthy will be in Japan to Co-author of Aviation Professionals

on the captain’s abrupt movement of follow the appeal proceedings in and the Threat of Criminal Liability

the flight controls but ruled that he October. Our Committee expects to – How Do We Maximize Safety?

could not have foreseen the injuries hear his report and begin drafting this and the West Texas practice Series,

sustained by those on board and that article in time to review it for final Texas Foreclosure: Law and Practice,

there was no proof of any criminal act corrections at the next Air Law Chapter 6: Foreclosure of Aircraft

on his part. Prosecutors had sought a Symposium in February, 2005 and (2003).





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Successfully Defending Enforcement Actions by Mark C. Fava





An In House Counsel Perspective

Defending the air carrier and its discovery and includes a wealth of you to prepare for the case at that

employees in FAA civil penalty and information. Combined with an time. This should not be problematic

certificate actions is a unique field of understanding of the regulations at as such preparation can fit hand in

practice. At $25,000 per violation per issue, it forms the foundation from hand with a thorough LOI investiga-

cycle, the potential penalties for a single which to begin your defense. tion. Work up the file to include all

Federal Aviation Regulation (“FAR”) the necessary documents and witness

violation with multiple cycles on an 2. Prepare years in advance for interviews. Then, put the file on the

aircraft in a couple days can easily the formal action. shelf and wait – typically for a very

multiply to six figures. A certificate The FAA or TSA will typically send a long time. For civil penalty cases, the

action can be a significant blemish on Letter of Investigation (“LOI”) to your statute of limitations period will be

an otherwise stellar twenty-five year client prior to initiating any action. either two or five years depending on

pilot or mechanic career. In mainte- The LOI invites an explanation and the proposed penalty amount. See 28

nance cases, the subject matter can be should be carefully answered with a U.S.C.A § 2462; 49 U.S.C.A. § 46301

relatively complex, and the publicity timely written response. If you are (d)(7)(C). Presently, the tremendous

can be significantly adverse at a time unable to respond in a timely manner, workload of the FAA attorneys com-

when such bad news is not welcome ask for an extension. While some bined with the Agency’s staff shortage

for the financially struggling air carriers. counsel advise clients to provide mini- result in most cases being initiated

Post ValuJet, fines related to hazardous mal or virtually no worthwhile infor- within days of the expiration of the

material carriage violations are phe- mation in an LOI reply, I found that applicable limitations period. After

nomenal. This article provides some the client received better results both responding to an LOI, if the client

pointers to those defending the air initially and ultimately if the LOI never received an official closure letter

carrier or individual client against response was written as a conscien- from the FAA Regional Counsel, you

administrative actions by any federal tious, yet concise explanation of the can correctly assume that the FAA has

agency, but most commonly the FAA. client’s position with respect to the not closed out the matter. Calendar

The recommendations are a collection alleged violation. Remember that the your file to remind the air carrier or

of my thoughts based on my three years written response will be an exhibit in individual client every six months that

at a major air carrier handling hundreds the government’s EIR and the FAA the case remains open to decrease the

of these cases. While this is surely a can later use it against your client. shock value when the action arrives

review for some in this talented Bar However, I found an initial credible nearly two or five years after the inci-

Association, I hope it will be a good explanation was always well received – dent. The initial post-LOI workup can

guide for others. Here are my top ten even if it was not ultimately accepted. be extremely helpful years later. For

tips in handling enforcement actions: As counsel, if you become aware of example, in one certificate action case,

the LOI, encourage the client to allow continued on page 9

1. Know the facts and the federal

regulations.

As in any potential litigation, you

must prepare the file with a complete

understanding of the alleged violation Mark C. Fava is a partner at Nelson

and your client’s position. Upon the Mullins Riley & Scarborough who

client’s receiving a Notice of Proposed practices aviation law from its

Civil Penalty (“NOPCP”) or Notice of Charleston, SC and Washington

Proposed Certificate Action DC offices. From August 2001 until

(“NOPCA”) from the FAA, you June of this year, he was the

should request the Enforcement Operations Attorney for Delta Air

Investigation Report (“EIR”) from the Lines, Inc. He is a Naval Flight

FAA so that you get a copy of the Officer and Commander in the Naval

releasable portions of the government’s Reserves and currently serves as the

investigative file. Upon receipt, ana- Commanding Officer of Patrol

lyze it thoroughly with your client. Squadron 62, a reserve P-3 squadron

Client meetings without an under- located at Jacksonville, Florida.

standing of the facts, the allegations

and the information contained in the

EIR are of little value. The EIR is free



8 Back to Page 1

Sucessfully Defending galley ladder that fell open on a firm taking a deposition and likewise allow-

Enforcement Actions landing is not as big an issue in 2004 ing the inspector to witness your sin-

when the air carrier no longer has any cerity. In these cases, the FAA inspec-

Continued from page 8 MD-90s, and the original FAA inspec- tor is the “client” of the enforcement

tor has retired. Haste to close out the attorney. Shortly after 9/11, I took

photographs of a control tower in case is usually not preferred. two days to travel from Atlanta to

Cincinnati taken within weeks of a Seattle to attend a one hour informal

pilot incident involving a land and 4. Did you do it? conference for a $7,500 civil penalty

hold short alleged violation proved The approach to handling these cases case based on a missing indicator bug

invaluable four years later after that should start with this very simple, on a 757 airspeed indicator. On that

tower had been replaced with one much direct question to the client. The trip, I hand carried on the plane (and

larger, considerably taller and much client will typically tell you in confi- painfully through security screening) a

closer to the runway intersection at dence if a FAR was violated. I found spare airspeed indicator in a big black,

issue. In that case, the ability of the that when a clear cut violation lockable case with all four removable

tower controllers to have accurately occurred, the FAA likely was going to little yellow plastic bugs attached to

seen the alleged intersection incursion be able to prove it. In those circum- demonstrate the absurdity of the pro-

was an issue. The photos combined stances, you best serve the client by posed violation. While a long and

with the anticipated deposition ques- focusing on corrective action and swift costly trip, I am confident the client

tions of the tower personnel’s visibility remediation rather than a mounting a reaped dividends by my making the

from the old tower as compared to the contentious “prove it” defense. Admit trip with the demonstrative evidence

need for the new tower were a factor the mistake, plead your client’s good in hand. I have also convinced the

in settling that case. Advance prepara- record and explain how and why it FAA to withdraw cases in their entire-

tion goes a long way in these cases due will never happen again. Many times, ty months after a polite deadlock at an

to the delay in their being initiated. sincere expressions of contrition informal conference reinforcing the

resulted in warning letters or cases precept that patience is a much

3. Time is on your side. being withdrawn rather than formal rewarded virtue in these cases.

Once you have adequately prepared a enforcement action.

case, and it is on the shelf, let it sit. 6. Know your adversary.

There should be no rush to close it 5. Always request an in person There are not a whole lot of folks who

out. Advise the clients that this might Informal Conference. do this work, but it is important to

take years to resolve and for them to In addition to always requesting the know your adversary. The FAA has

go on about their lives while you EIR, you should always request an in many experienced attorneys. The

worry about their legal defense. person informal conference with the result you achieve will depend on how

Remind them that even if they do not FAA attorney. Even for minimal fines, steadfast they or their clients are in

hear from you, the case remains open. you should go to the informal confer- their position in addition to their

Put that in writing. After months and ence and meet the FAA attorney face experience level. Do some background

years passed, I found that the memo- to face. Bring your client, too. research on opposing counsel even if

ries of the air carriers’ employees were Although the opportunity is available this entails asking other attorneys if

much better than the employees of the to do the conference by phone, the they have dealt with that attorney or

enforcement agency. This is meant not best results can be obtained in person. had a case in that particular FAA

to imply that the FAA inspectors were There are many advantages to being region. The names of the government

not tough opponents. Just as we present. First, an appearance demon- attorneys will not be readily available

remember our first traffic accident and strates the client’s sincerity and dis- in Martindale Hubbell or on a law

the investigating officer likely would plays the significance the air carrier firm website. However, it is still

not, the same is true of the employee places on compliance. Second, if you important to determine your oppo-

involved in a government investigation. are going to ask for a significant nent’s experience level and reputation

Non-compliance allegations and cer- reduction or an outright dismissal, for negotiations. Knowing such allows

tificate actions are significant matters you better do so in person. It is easy you to better evaluate the case and

in the employees’ lives. On the other for anyone to say no on the phone. manage your client’s expectation with

hand, such a matter will be one of Third, you build a reputation with respect to the ultimate result.

hundreds of investigations that the FAA opposing counsel. That relationship is

inspectors performed during their advantageous not only for the client, 7. Know your client’s violation

careers. I achieved the best results with but also for your success going for- history.

cases that were “old.” Emotions cool ward with the next civil penalty case. Compliance is critical in today’s envi-

off and memories fade. A $60,000 Finally, the FAA inspector likely will ronment. If you are going to represent

civil penalty for improper mainte- be present allowing you to further an air carrier with credibility, you

nance back in 1999 on an MD-90 evaluate the opposition without even continued on page 10



9 Back to Page 1

Sucessfully Defending depositions and serve discovery or and later was simply verbally coun-

Enforcement Actions requests to admit. As long as you han- seled by the employer as the corrective

dle depositions in a professional man- action. If the supervisor is unwilling to

Continued from page 9 ner, the FAA inspector will not con- provide the appropriate punishment

sider it harassment. However, after to the knowing violator, the company

want to be able to argue your client’s several hours in a deposition, the FAA cannot expect a substantial reduction

outstanding compliance history. In a inspector will understand your client’s in the proposed penalty amount. On

certificate action case, ask the mechan- resolve. For example, in a mechanic the other hand, termination of the

ic or pilot if they have ever been the certificate action case, we deposed employee or time off is a substantial

subject of any previous investigation. three separate FAA inspectors as to the remedial action that will justify a

When they say “no,” follow it up meaning of the word “broken” as it reduction in the proposed penalty.

with: “Are you sure?” In my experi- related to passenger seats in a Boeing In making your case for penalty

ence, many times, that follow up 757. The mechanic client was facing a reduction and mitigation, provide the

question elicited a reply that began 60 day suspension of his license because opposition with hard facts and docu-

with, “Well there was this one time the inspectors did not agree with the mentation to support your position.

back in …..” More importantly, if mechanic’s work on the seats that ulti- If the employee was counseled, bring a

your air carrier client has a “not so mately hinged on an interpretation of copy of the counseling sheet. If the

stellar” record in recent hazardous the word “broken” as it was used in mechanic who “pencil whipped”

material violations, you want to know the maintenance manuals. Deposing maintenance was fired, show the ter-

that when asking for a reduced penal- all three inspectors resulted in two giv- mination record. If the pilot was re-

ty at an informal conference for a haz- ing vastly different meanings of “bro- trained, bring documentation of her

mat violation. In addition to past vio- ken” and one admitting that he just re-training. If the company spent

lations, ask the client if there are any “didn’t know what it meant.” When $500,000 on new flight attendant

pending investigations. Unknown to asked how he would find out, he hon- training materials, bring a copy of the

you, the client might have received an estly exclaimed: “I guess I would have new training CD and a spread sheet

additional LOI for the same type of to ask someone else.” Case closed. The from the accounting department. If the

violation while you are arguing what a FAA withdrew the certificate action a manager distributed memos focusing

great job the client has done in the few weeks later — more than three on compliance as a result of the inci-

last few years. It is much too late to years after it was originally brought. dent, bring a copy of the read and sign

ask that question when the FAA memo. If the penalty is for several

inspector sitting across the table at the 9. Argue the important factors hundred thousand dollars, work for

informal conference starts shaking her and provide tangible evidence months to build a presentation and a

head in disagreement during your to the FAA. few three ring binders full of exhibits to

presentation because she (and possibly I found the majority of the FAA and tell your remedial story. If your airline

your client) is aware of another more TSA attorneys to be skilled and very client has lost millions in the past three

recent investigation and you obviously professional. I also found that they are years, bring a copy of its most recent

are not. not interested in the pound of flesh SEC filing.

they can extract, but like the air carrier, In civil penalty cases, focus on the

8. Make them prove it. they desire true compliance and swift, seven elements for consideration of

Many times, air carriers might be remedial corrective action that ulti- the imposition of the penalty contained

inclined to avoid the potential adverse mately leads to safe air travel. If your in 14 C.F.R. § 13.16(a)(4). While

publicity by settling the case. client is guilty as charged and you originally applicable to hazmat cases

Mechanics and pilots might want to know the Agency can prove it, provide only, these factors can now be applied

just get “this thing behind them.” the opposing counsel with the sub- to all civil penalty cases. Those consid-

After a thorough analysis of the case, stantiation and supporting documen- erations are as follows: (1) the nature

if (a) you are not certain that a viola- tation that warrant a reduction in the and circumstances of the violation; (2)

tion occurred or (b) even if think it proposed sanction. The FAA is con- the extent and gravity of the violation;

might have occurred, but you do not stantly being criticized for allowing too (3) the degree of culpability; (4) the

think the Agency can prove the viola- many reductions in civil penalty cases, history of prior violations; (5) the abil-

tion, make them prove their case. so you must provide opposing counsel ity to pay; (6) the effect on the ability

Discuss the ramifications of doing so with materials that will support their to continue in business; and (7) other

with your client. I have settled an decision and withstand future scrutiny. such matters as justice may require. At

$110,000 hazardous material case for However, do not expect a significant the informal conference or before the

$1,000 simply because we were able to reduction from the TSA in an air car- judge, provide a credible assessment of

argue successfully that we did not rier civil penalty case for an employee those considerations acknowledging

think the FAA could prove their case. who knowingly took her friends around your weaknesses if appropriate, but

Further, be prepared to take a few security screening for a lunch break continued on page 16



10 Back to Page 1

SATS Program to Change Air Travel by J. Michael Loomis





Point-to-Point Travel To Create New Legal Issues

We’re on the verge of a transporta-

tion revolution, and it isn’t going to 1978, and in 1981 graduated from

occur where you might think it the University of Dayton School of

would. Most of us would probably Law in Dayton, Ohio (“the birth-

guess that the next major change in air place of aviation”).

transportation will occur in the way He is a member of the Allen

airlines do business. That might hap- County Bar Association; the Indiana

pen, but a more significant change State Bar Association; and the

will occur in on-demand travel. The Lawyer-Pilots Bar Association. He is

nation’s entire population will be a member of the Aviation

affected, but in ways that you would- Association of Indiana, and, is a

n’t have imagined only a short time panel attorney for the AOPA legal

ago. The end result is that you, as an services plan. He is a private pilot

air traveler, will have more options and engages in a law practice that

from which to choose. These changes includes aviation matters and busi-

are occurring in the aviation industry ness litigation.

at a pace so fast it makes one dizzy. He is admitted to practice before

The technological advances have the Supreme Court of Indiana, all

already begun to transfer to other Indiana trial courts, the U.S.

industries. J. Michael Loomis is a native of District Court for Northern

This is exciting stuff, and it is Fort Wayne, Indiana. He began fly- Indiana, and the U.S. District

caused by a convergence of several ing at the age of 19. He attended Court for Southern Indiana. He

events in the same period of time. Indiana University in Bloomington, serves as Great Lakes Regional V.P.

First, the aviation industry is now bet- completing his Bachelor’s Degree in for the NTSB Bar Association.

ter protected from frivolous and costly

lawsuits with the rollback of product

liability included in the General of information, leading to better fuel-efficient, not to mention quicker

Aviation Revitalization Act. This fed- avionics in what has become known as to get out the door. The effect is simi-

eral legislation was passed ten years the “glass cockpit”, a name identifying lar to what fiberglass Corvettes did for

ago, and the debate continues about the types of display boxes featured in the sports car industry nearly forty

whether and to what extent it may be refurbished and new aircraft. In other years ago, only in a more pronounced

helping the industry now. While many words, the types of cockpit instru- fashion. Sixth, add to these shapely

questions in the debate remain unan- ments that started going into airliners new airframes jet engines that are

swered, we do know that aircraft man- twenty years ago are now being found smaller, lighter, more fuel-efficient,

ufacturers face less economic and legal in small airplanes, with a multitude of more powerful, and more reliable than

risk now than before the legislation. improvements. Fourth, information those of the past, and you see a whole

Second, more powerful computer from GPS about navigational posi- new market of “Very Light Jets” about

chips and improved cellular efficiency tioning contributes to giving pilots to predominate the sale of new air-

are already leading to changes in our in General Aviation aircraft far more craft, not just in the United States but

lifestyles, but they are particularly situational awareness. throughout the world. These jets will

important in aviation in terms of the Fifth, the General Aviation industry be able to carry 6-7 people with great

ability to transfer more information to has changed its logistics. The produc- range and comfort, and will be able to

pilots in cockpits about weather, ter- tion of small aircraft is being accom- land at airports with smaller runways.

rain, and traffic. Third, we’re also see- plished with improved manufacturing This new class of aircraft will begin

ing changes in the way that this infor- processes and techniques. Mass pro- receiving certification from the F.A.A.

mation is presented to pilots, with dis- duction is more economical, and new in only the next three years. These

plays that operate in much the same companies have started to produce Very Light Jets will be the backbone

manner as a child’s electronic video new and quite different airplanes than of new air-taxi systems about to come

games. The displays make acquisition have been parked on the ramp in years on the scene. They won’t threaten the

of the information more intuitive, and past. Composite materials allow aero- existence of the airline system, but will

far easier to interpret and assimilate dynamic designs that feature lighter supplement it.

with other flight information. We’re and more streamlined airframes, mak- In a departure from its focus on

also seeing dynamic changes in capacity ing small airplanes faster and more continued on page 13



11 Back to Page 1

The NTSB Bar Association Welcomes 20 New Members…

David H. Abrams Marcia R. Davis Charles R. Morgenstein

Full/Regular Full/Regular Full/Regular

2905 N. Settlers Boulevard Era Aviation, Inc. Aviation Legal Group, PA

Tallahassee, FL 32303 6160 Carl Brady Drive 5525 NW 15th Avenue, #200

Work: 850-339-5721 Anchorage, AK 99502 Ft. Lauderdale, FL 33309

Work: 907-266-8325 Work: 954-763-5565

Email: mdavis@eraaviation.com Email: charlesm@aviationlegalgroup.com

Vincent J. Allen

Full/Regular Alaska Regional VP – NTSB Bar Transactional; Administrative; Litigation;

Carstens, Yee & Cahoon, LLP Association. Contract Law; Business Law; Appellate.

13760 Noel Road, #900 Labor and Employment Law; Aviation

Dallas, TX 75240 Litigation; Aviation Regulatory

Compliance; Environmental Compliance. Wendy Mia Pardew

Work: 972-367-2001

Full/Regular

Email: allen@cyclaw.com

Carlton Fields

Aviation Litigation; FAA Enforcement; IP. Peter L. Foster 450 S. Orange Avenue, #500

A&P/IA Private Instrument; Electrical Full/Regular Orlando, FL 32819

Engineer. 1266 Barry Avenue, #7 Work: 407-244-8229

Los Angeles, CA 90025 Email: wpardew@carltonfields.com

Work: 310-473-2715

Shannon L. Campbell Email: pnpfoster@aol.com Aviation Related Matters; FAA

Full/Regular Enforcement; Aviation Litigation; Prod.

Wicker, Smith, O’Hara, et al. Specializing in FAA enforcement actions. Liab; Mass Tort. Member LPBA, AOPA,

515 East Las Olas Blvd, #1400 Certification of Start Up 121, 135 opera- WAI, IAWA.

Ft. Lauderdale, FL 33301 tors, airline mergers, acquisitions and

Work: 954-467-6405 take-overs. Pt. 129 operators certification.

Specialize in airline fleet expansion and Richard Plezia

Email: scampbell@wickersmith.com

acquisition of transport category aircraft Full/Regular

Admitted in FL State and Federal Courts. and aircraft import. ATP, B-737, Pt. 121, Abraham, Watkins, Nichols, Sorrels

A&P, FAA accident safety counselor. 800 Commerce Street

Houston, TX 77002

Thomas H. Cassel, III Work: 713-222-7211

Full/Regular Bret A. Glenn Email: rplezia@abrahamwatkins.com

Webb, Sanders & Williams, PLLC Full/Regular

P. O. Box 496 Atkinson, Haskins, et al.

Tupelo, MS 38802 525 S. Main Street, #1500 Forrest Reid

Work: 662-844-2137 Tulsa, OK 74103 Full/Regular

Email: thc@webbsanders.com Work: 918-582-8877 Reid Law Firm

Email: legalair@yahoo.com P. O. Box 577

Comm/Inst; ME/SEL; CFI/I/MEI; Albany, OR 97321

Insurance & Defense Litigation; Work: 541-926-3823

Product Liability; Insurance Coverage Erik J. Kientzy Email: forrest@reidlawfirm.com

Law; Employment Law. Full/Regular

Aviation Law; Trial Attorney;

Kientzy Law, LLC

Enforcement Actions.

Bernard J. Coogan 7905 Big Bend Blvd, #200

Full/Regular Webster Groves, MO 63119

Law Office of Bernard J. Coogan Work: 314-422-1871 James R. Sanislow

257 Spencer Road Email: ejk362@earthlink.net Full/Regular

St. Peters, MO 63376 Comm: ASEL/AMEL; Inst; Pvt; RH; Moran Towing Corporation

Work: 636-928-3850 CFI: ASEL/AMEL; CFII; IGI. Former Pt. 50 Locust Avenue

Email: flyairco@aol.com 135 PIC (MU-2, PA-31, BE-58); SIC New Canaan, CT 06840

(LR25, LR35); Instructor (PA-31). Work: 203-442-2101

Email: james@morantug.com

Asst. VP of Quality & Safety, corporate

Ronald C. McCallum

atty with Moran Towing Corp., a marine

Full/Regular

towing and transportation company.

Hahn Law Firm, PC

Corporate regulatory and policy compliance;

900 Jackson Street, #180

crisis response and safety management.

Dallas, TX 75202

Work: 214-744-3200

Email: rmccallum@sbcglobal.net

continued on page 13

New Members as of September 29, 2004



12 Back to Page 1

SATS Program to 98% of the nation’s population lives The SATS program is coming to

Change Air Travel within 20 miles of a public use airport fruition with a technical demonstra-

is sufficient information to justify sup- tion in Danville, Virginia in June,

Continued from page 11 port for the SATS project. 2005. The demonstration will show

The SATS Project is being conduct- how the emerging technology will

space travel in the last forty years, ed through a public-private partner- work in the real world. It is bound to

NASA has been busy with a new pro- ship. The project is jointly managed change the way we think and feel

gram that recognizes these changes. by NASA, FAA and the National about air transportation. One of the

The Small Aircraft Transportation Consortium for Aviation Mobility results of this transportation revolu-

(NCAM). This consortia include 130 tion will be a body of new legal issues

System (SATS) is designed to take members. The SATSLab members are: to explore. Spirited discussion has

advantage of the emerging technolo- already begun in some areas, as in the

gies, and put them to work in an inte- • Maryland Mid-Atlantic SATSLab

case of insurance requirements for

grated fashion. The program was (University of Maryland Research

pilots of the Very Light Jets and the

funded with $69 million for five years. Foundation)

effect that new requirements will have

The SATS project office is based at • North Carolina and

on the Federal Aviation Regulations,

the Langley Air Research Center in Upper Great Plains SATSLab

and vice versa. There will be many

Hampton, Virginia, where the train- (Research Triangle Institute)

other challenging issues evolving in

ing for the original astronauts was first • Southeast SATSLab

this segment of the aviation industry.

conducted. Chief among the SATS (Embry Riddle Aeronautical

NASA and the FAA are to be com-

project objectives are “Highway in the University)

mended for their vision in supporting

Sky” displays, and automated air traf- • Virginia SATSLab

this project. For more information,

fic separation and sequencing tech- (Virginia Department of Aviation)

visit http://sats.larc.nasa.gov. (For a

nologies. The SATS project will ulti- • Michigan SATSLab

delightful background about the

mately make single-pilot IFR more (Munro and Associates)

changes in the aviation industry, read

safe, and it will also make better use of • Indiana SATSLab

“Free Flight”, by Atlantic Monthly’s

the nation’s under-utilized 5,400 gen- (including Ball State, Purdue and

national correspondent James

eral aviation airports. Knowing that Indiana Universities)

Fallows.)







Welcome New Members…

Continued from page 12



Robert D. Schulte David J. Stein, Jr. Elizabeth A. Vasseur-Browne

Full/Regular Full/Regular Student

Wheeler, Thompson, Parker & Counts, LLP Stein Law Office, LLP 67 Sands Point Road

129 N. Washington Street 926 Okoboji Avenue Port Washington, NY 11050

Easton, MD 21601 Milford, IA 51351 Home: 516-944-3436

Work: 410-822-1122 Work: 712-338-2431 Email: elise322@hotmail.com

Email: rschulte@wtpclaw.com Email: davidjr@steinlawoffice.com

Law Student, class of 2005; Private Pilot;

General Law. USAG (Ret); Undergrad, Embry-Riddle;

Len Scott BS Aeronautics.

Full/Regular

David J. Stein, Sr.

Flight Accident Investigation

Full/Regular

110 Indian Knoll Drive

Boerne, TX 78006 Stein Law Office, LLP

Work: 210-789-0281 926 Okoboji Avenue

Email: len@flightaccident.com Milford, IA 51351

Work: 712-338-2431

Aircraft Accident Investigation; Aviation Email: davidsr@steinlawoffice.com

Safety Consultant; Aviation Safety

General Law.

Inspector; ATP; CFII; AGI; Avionics.









13 Back to Page 1

Recent Developments by John S. Yodice



This column is intended as a help of this circuit except as provided by

to practitioners to keep abreast of Ninth Circuit Rule 36-3,” a limited

recent developments in the law rule that is set to expire July 1, 2005.

and procedures governing FAA Regardless, we should hope that the

enforcement cases before the National Board and its General Counsel would

Transportation Safety Board. Your abide by the clear expression of the

comments and suggestions are Court. And, there does not appear to

welcome. be anything in the Rule that would

prevent practitioners from citing this

decision to the National Transportation

Credibility. Safety Board in an appropriate case.

Full Board Owes A “High Level Of

Deference” To Law Judge’s Credibility The Aviation Safety

Determination. Here is a welcome Reporting Program, But

case that we would hope would damp-

en the inclination of the National

Not Really.

Transportation Safety Board to reverse ATC Failure to Notify Pilot of Devi-

credibility determinations made by its ation Warrants Waiver of Sanction.

administrative law judges. In an This case resolved an issue that has John Yodice is senior partner in

unpublished decision, a federal appel- been debated since the FAA air traffic

late court reversed and remanded a control manual was changed in 1995. the law offices of Yodice Associates

Board decision that reversed a law If Air Traffic Control does not con- with offices in Washington, D.C.

judge’s Initial Decision. The law judge temporaneously notify a pilot of a and Frederick, Maryland, with an

had dismissed an emergency order of deviation, and as a result the pilot does extensive practice in aviation law.

revocation on the ground that the not know to timely file a NASA Aviation He is general counsel of the

FAA had failed to prove its case. The Safety Report, is the pilot nevertheless Aircraft Owners and Pilots

law judge chose to believe the testimo- entitled to a waiver of sanction? This Association and the AOPA Air

ny of the respondent over the testimo- case says, “yes,” with a subtle but Safety Foundation. He holds

ny of the FAA’s inspector. On appeal probably academic qualification. Commercial Pilot and Flight

by the FAA to the full Board, the The facts of the case were admitted. Instructor Certificates with

Board claimed that it is the ultimate The Captain was the pilot-flying and

finder of fact and that, while it typi- the First Officer was the pilot-not-fly- airplane single engine, multi-

cally defers to the law judge, it may ing, of a United Airlines Boeing 737 engine, helicopter, seaplane, and

reverse an initial decision if it does not flight approaching Cedar Rapids, instrument ratings. He owns and

agree with the credibility determina- Iowa, its destination. The flight was flies a Cessna Turbo 310 and a

tion of the law judge. The Board then told to plan on landing on Runway Piper J3 Cub.

reversed the decision of the law judge. 13, and a little later told that Runway

But, the Court of Appeals had the 9 had become available. In the course

final say. The Court said: “The Board of this handling, the flight had been and the First Officer’s ATP for 7 days.

owes a high level of deference to a instructed to descend to and maintain The FAA charged that the pilots vio-

credibility determination made by the 2,500 feet. It did so. Then it was lated FAR 91.123(b) (“ATC clearances

Administrative Law Judge,” citing a instructed to turn to a heading of 50 and instructions”) and FAR 91.13(a)

number of the Board’s own prece- degrees. For reasons not relevant to (“careless or reckless”).

dents, and holding that the Board did this digest, the flight instead turned to On appeal to the National

not apply this high deferential stan- a heading of 250 degrees, climbed to Transportation Safety Board, the pilots,

dard in this case. Notice that while the 3,000 feet, and then didn’t descend while admitting the facts, claimed the

Board claims it does typically give def- back down to 2,500 fast enough. This “affirmative defense of entitlement to

erence to a law judge’s credibility resulted in a loss of standard separa- waiver of sanction.” The pilots point-

determination, the Court says that the tion with a TWA airliner. The aircraft ed to FAA’s manual on Air Traffic

Board owes a “high level” and not came within 500 feet vertically and Control (FAA Order No. 7110.65M).

mere deference. Wedding v. NTSB, two and one-half miles laterally of It says: “When it appears that the actions

United States Court of Appeals for the each other. of a pilot constitute a pilot deviation,

Ninth Circuit, May 3, 2004. As a result of this incident, the FAA notify the pilot, workload permitting.

This decision is unpublished. It suspended the Captain’s Airline Phraseology – (Identification)

“may not be cited to or by the courts Transport Pilot Certificate for 15 days, continued on page 15





14 Back to Page 1

Recent Developments A Skywest Airlines passenger carry- that a communication had not been

ing flight was proceeding from Los stepped on. He did so based not only

Continued from page 14 Angeles to Ontario International on the testimony of an FAA witness

Airport, California. As the flight was but also on him personally listening to

POSSIBLE PILOT DEVIATION approaching Ontario on a vector to the tapes. The FAA witness testified,

ADVISE YOU CONTACT (facility) intercept a VOR radial, it was south presumably as an expert based on his

AT (telephone number).” The pilots of the field on a northeasterly heading. listening of hundreds of such record-

said that because ATC did not notify At the same time, a Southwest Airlines ings, that he listened to the recording

them of a possible deviation, it left flight was heading toward the airport of the communications in this case,

them unaware of the possibility of a from the north. According to ATC, and there was no step-on. He said that

legal enforcement action, and they the Skywest flight seemed to be devi- for there to be a step-on of the nature

were prejudiced due to the length of ating from the vector. It seemed to be that the Captain alleged, both parties

time that had passed before receiving starting a gradual descending left turn would have had to commence and

notice from the FAA of a possible vio- towards the Ontario airport. ATC stop their communications at exactly

lation. The Board agreed. It held that instructed the Skywest flight to reduce the same time. According to the wit-

“a failure by ATC to provide a required speed for a landing sequence behind ness, there was no discernable click of

notice of a deviation generally requires the Southwest Airlines flight, which a receiver being on or off or any break

that sanction be waived for the associ- was a faster aircraft that had already in a transmission. There was no

ated FAR violation.” But, it should be been cleared for the approach to squelch, no squeal. And so, he con-

noted, not a dismissal of the charges. Ontario. Skywest didn’t reduce speed. cluded, no step-on. The judge agreed

It may be academic, and maybe The flight was then instructed to with the FAA witness. “In my view [the

even too subtle, but the basis of the “turn right heading zero eight zero.” judge’s view based on his personally

Board’s decision is not that the failure Skywest said it “couldn’t do it,” but listening to the tapes], there is simply

of the required notice made it impos- gave no reason. Then it was instructed not sufficient evidence here to warrant

sible for the pilots to timely file a to “climb and maintain six thousand,” a conclusion that there was any type

NASA safety report, but rather that twice. It didn’t climb. The controller, of stepped-on communication.”

the failure of notice prejudiced their saying he became concerned about Turbulence and the Emergency

ability to defend the FAA charges. As separation as the traffic situation Defense. FAR 91.3(b) tells us that “in

the Board said in this case: “The pur- developed, cancelled Southwest’s an in-flight emergency requiring

pose of the ASRS is not to grant approach clearance. The judge who immediate action, the pilot in com-

immunity…. Were ASRS the only basis eventually conducted a hearing into mand may deviate from any rule of

for respondents’ appeal, it would fail.” the matter, formed his own conclusion this part [FAR Part 91] to the extent

So, while this is not an ASRS case at about what was happening. “Looking required to meet that emergency” (and

all, I caption it as one because of the at the communications [the ATC tran- replicated in Part 121, for example,

way a case will likely present itself to a script] and listening to the communi- FAR 121.557 and 559). The Captain

practitioner – a client will have failed cations, it appears to me that Skywest asserted that his deviations from ATC

to file an ASRS report because he or was simply not happy with the idea instructions were justified because he

she was not aware that FAA might later that they were going to be sequenced thought the moderate turbulence his

charge a pilot deviation. This defense second.” aircraft was experiencing might

may then be available. Administrator The FAA suspended the Skywest become severe. What doomed this

v. Pate and Yoder, NTSB Order No. Captain’s Airline Transport Pilot cer- defense was the captain’s failure, at the

EA-5105, July 26, 2004. tificate for 90 days, alleging violations time, to advise ATC of the reasons for

of FAR 91.123(b) (operation contrary the deviations, and the absence of

A Race for the Runway. to ATC instructions) and FAR other objective evidence. “In the con-

91.13(a) (careless or reckless). The text of this case, at least, where there

A Potpourri of Insights for Practi- Captain appealed the suspension to was no objective evidence, such as

tioners. Here is a case providing the National Transportation Safety pilot reports or weather forecasts, to

insight into several matters that could Board. An NTSB administrative law support a genuine belief that worse

be relevant to cases being handled by judge upheld the suspension, as did turbulence requiring immediate action

practitioners: the defense of an emer- the full Board on further appeal, based more likely than not lay ahead, we

gency caused by turbulence, a NASA on the evidence presented. agree with the law judge’s essential

report held ineffective because the vio- Stepped-on communications. Here conclusion that the possibility of

lations were deemed to be intentional, is how one NTSB judge handled an encountering more than moderate tur-

an interesting discussion about allegation by a pilot that a communi- bulence is not an emergency.”

stepped-on communications, and a cation that he or she was supposed to The Aviation Safety Reporting

rare finding of recklessness in a “care have received, was stepped on. In this Program. In the Aviation Safety

ess or reckless” charge. case, the judge ultimately determined continued on page 16



15 Back to Page 1

Recent Developments Sucessfully Defending employee training or needed equip-

Enforcement Actions ment with the purpose of increasing

Continued from page 15 overall compliance in lieu of paying

Continued from page 10 the penalty. This is a “win-win” for

Reporting Program, the FAA agrees both the carrier and the agency who

not to impose any certificate suspen- forcefully pointing out those favorable both desire compliance. Additionally,

sion or fine if “the violation was inad- to your case. In today’s financial crisis although I used it judiciously, remem-

vertent and not deliberate.” This case for most air carriers, factors (5) ber the rights for reimbursement of

is one of the few in which these terms through (7) are especially significant attorneys’ fees and costs provided by

are interpreted. Both the FAA and the when weighed against factors (1) the Equal Access to Justice Act

NTSB had little trouble finding that through (3). Does it really make sense (“EAJA”) 5 U.S.C.A. § 504; see 14

the Captain’s violations were deliberate for an air carrier on the verge of bank- C.F.R. Part 14. If you think the FAA

and therefore not entitled to a waiver ruptcy reducing pay and cutting thou- has a tough case to prove, diplomati-

of sanction. “He made deliberate sands of job to have to pay a $66,000 cally remind opposing counsel in per-

choices that negatively affected the penalty for an alleged failure more son and perhaps later in writing that

safety of operations at Ontario than three years ago of a mechanic to you might be forced to seek your fees

International Airport by, among other insure proper “break over tension” on and costs pursuant to EAJA if you pre-

things, forcing ATC to cancel another 757 passenger seat backs? I argued vail or the case is later withdrawn. Try

aircraft’s approach clearance to elimi- unsuccessfully against such a fine more to gain efficiency through consolida-

nate the traffic conflict the deviations than a year ago at an informal confer- tion. If you have three similar violations

caused.” Of course, what is “inadver- ence and refused to settle the case. I for the same region or airport during

tent” and what is “deliberate” is often found it helpful to humanize the cor- the same time period, consider

subject to dispute. Here is an insight poration by equation such fines to an bundling them together and settling

to FAA and NTSB thinking. equivalent headcount – in this case them in the aggregate as a “systemic

“Careless or Reckless.” Almost every perhaps the salaries of entry level cer- problem” rather than a series of cases.

time that the FAA charges a pilot with tificated mechanics. In September of You will likely be able to negotiate a

an operational violation, the FAA also this year, after the client released more significant reduction of the

charges violation of FAR 91.13(a). another bleak set of financial informa- aggregate penalty than you would by

“No person may operate an aircraft in tion, I again raised the issue with the trying to negotiate each one individu-

a careless or reckless manner so as to FAA attorney who kindly withdrew the ally. Finally, propose a compromise

endanger the life or property of anoth- case. I attribute that success to patience order in which there is no finding of a

er.” In such a charge, carelessness, but and persistence, a sound analysis of violation in lieu of a penalty payment.

not recklessness, is most often found. the seven conditions stated above, and The advantage to a compromise order

A finding of recklessness is rare. But, a good professional relationship with is that the FAA cannot use such orders

recklessness was found in this case: “By the FAA attorney established years ago as evidence of prior history in a subse-

turning toward the airport instead of at the informal conference. quent civil penalty or certificate

extending his down action. See 14 C.F.R. 13.16(l).

wind, as ATC tried unsuccessfully to 10. Consider all settlement options.

get him to do, respondent placed his There are a wide variety of outcomes Conclusion

aircraft on a head-on collision course to these cases and a successful settle- Enforcement defense work can be

with the Southwest 737 aircraft.” ment might hinge on creative options. extremely rewarding. If you successfully

Both the FAA and NTSB consid- Many times the NOPCP includes represent a pilot or mechanic after a

ered such conduct reckless. multiple FAR violations for the same three year certificate action, you walk

Administrator v. Heras, NTSB Order occurrence. In a hazardous material away with a sense of accomplishment

No. EA-5102, June 28, 2004. case, one occurrence of illegally trans- in helping an individual in an intimi-

porting a single oxygen generator can dating battle against the government.

be the source of a $165,000 penalty Success in the civil penalty cases allow

and as many as seventeen alleged FAR you to point the client to calculable

violations - many of which can be dollar savings that usually are minimal

quite duplicative. Analyze the alleged compared to your fees or in house

specifications and persuade the FAA to salary. The work can be highly chal-

remove the duplicative ones. Negotiate lenging. Like most practice areas,

to have the most egregious violations advanced preparation combined with

dropped if the penalty cannot be unblemished credibility and passionate

reduced further. Another constructive advocacy can lead to significant results.

option is to offer to spend the equiva-

lent amount of money for additional





16 Back to Page 1

Reflections on Enforcement Cases and Reality by Jane Mackall



In addition to my part-time work I teach my Aviation Law students,

for the Board, I also teach various in part, from the NTSB enforcement

law-related subjects at Embry-Riddle’s case database. The law courses are a

Prescott, AZ campus. On August sideline for these students; they all

28th, two College of Aviation faculty, want to be pilots and don’t take the

Bob Swegginis and Mike Corradi, law classes so seriously. They are

died in a midair collision near the young and fearless. Accidents happen

campus while they were practicing to someone else, not to them. In addi-

acrobatics for an upcoming air show. tion to basic principles of law with

Both were retired Air Force Officers aviation highlights, I try to teach them

and both had served in Vietnam. Each what I have learned from working on

had thousands of flight hours. What enforcement cases all these years: bad

an awful thing to happen, and at a things happen, and not because pilots

place that prides itself on teaching purposely shirked their responsibili-

safety above all else. Witnesses stated ties. No one goes flying with the atti-

that a wing got clipped. An NTSB air tude, “I think I will skip the checklist

safety investigator from the LA office today,” or “I know I can’t fly IFR, but

is conducting the investigation. I I’ll fly into this storm anyway.” As

would like it not to be operator error, they say, everyone has reasons for what

but I’m not so confident based on they do, they just may not be good Jane Mackall has worked at the

public information. reasons. At ERAU, I make my stu- Safety Board for over 10 years, in

In 1991 when I came to the NTSB dents read the cases, write reports on both the Office of General

to work for Dan Campbell (who I had subjects like see and avoid and fuel Counsel and as Deputy Managing

known for many years at the Interstate exhaustion, and, if they learn any- Director. She is now semi-retired,

Commerce Commission), he had thing, I hope they learn that they can works for the Board out of her

wanted all the General Counsel’s Office go a long way towards avoiding harm home in Arizona, and teaches at

attorneys to learn to fly. I went to the to themselves and others, and FAA the Prescott campus of Embry-

FAA’s OkCity 3-week course for lawyers, enforcement to boot, if they are as Riddle Aeronautical University.

was taken up in some GA aircraft, and careful the 1,000th hour, as they were

was terribly uncomfortable without a the first hour they flew.

rear view mirror. The inability to see all Those of you who are lawyers and (1999)? How about Administrator v.

around was disconcerting, especially aviators can play a special role. You Kohorst, NTSB Order No. EA- 3799

given my Type-A control freak mentality. should be “officers of the air,” not just (1993), a midair when both aircraft

Through the years, I have worked officers of the court. You have a spe- were 100 feet from the approach end

on many enforcement cases involving cial background, knowing the enforce- of the runway and one hit the other

midairs. One I especially remember: ment docket – knowing what got peo- from above and behind? I expect you

Administrator v. Blanc, NTSB Order ple into trouble, not just trouble with all remember a few. Teach them; tell

No. EA-4112 (1994). PIC Blanc, Mel the FAA but safety trouble. Do you stories. It’s not just about getting

Blanc’s son, was taking off in a Bell Jet remember the case of the basketball respondents a fair shake, and the

Ranger helicopter at the Santa Paula, team? They all sat in the back of the FAA’s enforcement is not just about

CA airport. He was hit from the rear small charter and the pilot failed to do punishing pilots. I think we have lost

by a Pitts biplane, both of whose a weight and balance (Administrator v. track of the ultimate goal of the

occupants died. The helicopter had Hite, NTSB Order No. EA- 3652 enforcement process: prevention of

entered the runway airspace without (1992). What of the Cessna and the unsafe behavior. And what about the

seeing the Pitts, which had already helicopter approaching head on with NTSB? My students think our job is

begun its take off roll. Regardless of the helicopter shearing off the tail to investigate accidents. I know it is to

your toys, eternal vigilance is the wheel of the Cessna (Administrator v. issue recommendations, in the hope

minimum price of GA safety. Roderick, NTSB Order No. EA-4803 that we all will learn to do better.









17 Back to Page 1

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