In, Robinson v. NTSB, 28 F.3d 210 (D.C. Cir. 1994), the United States Court of Appeals for the District of Columbia reversed an NTSB order affirming the FAA's emergency revocation of a pilot's Air Transport certificate.
The court held that the NTSB's affirmance was arbitrary and capricious because the NTSB failed to adequately explain why it discounted evidence in favor of the pilot. The court then remanded the matter for further explanation.
The Division did, however, file a civil case under section 2 of the Sherman Act, charging American and Crandall with attempting to monopolize the airline market in Dallas/Fort Worth. The case was eventually settled in a consent decree. In the wake of the Crandall case, the Division has sought to prosecute such attempts to violate section 1 by charging parties with mail fraud or wire fraud. (18 U.S.C. 1341 and 1343).
In Booher v. United States Department of Transportation, 28 F.3d 1208 (4th Cir. 1994), the court upheld an NTSB order suspending petitioner's pilot license.
Petitioner a commercial pilot landed his plane on a state highway and parked it on the side of the road. Petitioner was discovered by a state trooper putting automobile gasoline in the plane's fuel tank. Petitioner told the trooper that he had received adulterated fuel which necessitated his emergency landing.
Petitioner filed a report of the landing as required by the Aviation Safety Reporting Program. The FAA filed an administrative action against the petitioner on the theory that the landing was caused by insufficient rather than contaminated fuel.
The Administrative Law Judge suspended the petitioner's license after finding that the plane had insufficient fuel and that the petitioner fueled his plane with automobile gasoline.
Petitioner argued that he should not be penalized since he filed the report of the landing voluntarily. Petitioner argued that FAA guidelines prohibit the use of the report as evidence in an administrative hearing and require waiver of violations that are "inadvertent and not deliberate." The court agreed with petitioner's interpretation of the guidelines but found that the FAA had not admitted the report as evidence at the hearing and that the violation was deliberate.
In Henderson v. FAA, 7 F.3d 875 (9th Cir. 1993), petitioner challenged 60 day suspension of his pilot's license for operating helicopter at altitudes and airspeeds to low to allow for an emergency landing and for violating the 300ft minimum altitude for helicopter flights over congested areas.
The Ninth Circuit affirmed the suspension on the basis that the petitioner did fly too low but reversed the violation of the 300 ft minimum altitude rule on the basis that the exemption for photography clearly applied.
In Nehez v. NTSB, 30 F.3d 1165 (9th Cir.), a commercial airline pilot was charged with operating an aircraft carelessly or recklessly
The pilot took off with half of the minimum visual range required.
The court held that the appropriate standard for reviewing the pilot's action was whether or not the pilot endangered life or property.
Applying that standard, the court found that NTSB decision suspending the pilot's license was supported by the evidence.
In Sue v. NTSB, 8 F.3d 30 (9th Cir.) (unpublished opinion available at 1993 WL 366559), a pilot's medical certificate revoked for lying about past convictions for driving under the influence on his application for a medical certificate.
The court rejected the pilot's contention that the medical application form was confusing and ambiguous and to penalize him for his false statements would violate due process. The court held that even though other courts accepted the due process argument in criminal cases, the greater protections associated with a criminal proceeding were inapplicable to a civil administrative proceeding.
In, Turv v. FAA, 4 F.3d 766 (9th Cir. 1993), the FAA used emergency procedures to revoke a pilot's commercial pilot certificate for lack of qualifications. Pilot had flown too close to a fire causing a hazard to the firefighters and had illegally flown in formation with fire department helicopters.
On appeal, pilot complained that violations were more than six months old and the use of emergency procedures by the FAA was prohibited under the "Stale Complaint Rule" which bars the introduction of evidence more than six months old.
The court upheld the Administrative Law Judge's ruling that the old allegations were not barred because they evidence presented directly related to the issues of the pilot's lack of qualifications, an exception to the "Stale Complaint Rule."
The pilot also complained that use of the expedited procedures was a violation of his due process rights. The pilot, however, had the right to waive the emergency procedures and take more time to prepare a defense. Since it was the pilot's choice to proceed with the expedited proceeding, the pilot was not denied due process.
The court also noted that the sixty day time period for the NTSB to serve the final order on the pilot does not begin to run until the NTSB receives notice of the revocation from the Administrator of the FAA.
In Hernandez v. NTSB, 15 F.3d 157 (10th Cir. 1994), FAA revoked a commercial pilot's certificate for drug offenses unrelated to the operation of a plane. The Administrative Law Judge overturned the revocation and ordered a twelve month suspension instead.
The NTSB overruled the Administrative Law Judge and reinstated the revocation.
The court affirmed the NTSB holding that the NTSB had not supplanted the ALJ's factual findings and that the FAA's policy of revoking a certificate for non-certificate-related drug offenses was not a new policy.
In Woznick v. Richards, 16 F.3d 1224 (6th Cir. 1994) (unpublished opinion available at 1994 WL 33970), petitioner received his airman's medical license in September 1990. In completing the application for the certificate, petitioner noted in response to certain questions that he had been convicted of a DUI and another alcohol related offense and that he had penile implant surgery.
The FAA then requested further documentation on the DUI and the surgery but the petitioner failed to respond to this request. After failing to respond, the FAA notified petitioner that he was no longer qualified to hold the certificate and requested that he relinquish the certificate to the FAA.
Petitioner then sent some records of his surgery to the FAA but failed to send any records concerning his criminal convictions. The FAA continued to demand the requested records and that petitioner surrender his medical certificate. Petitioner responded with an affidavit that he couldn't locate the certificate. The FAA then issued an emergency order suspending the medical certificate.
On review of the suspension the NTSB held that the FAA had reasonable grounds to seek the information regarding the surgery and the petitioner's criminal records. The court upheld the NTSB findings stating that they would be upheld unless "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, or that the Board's factual findings were not supported by substantial evidence." Additionally, the court ruled that the FAA was authorized to suspend an airman's medical certificate for failure to comply with reasonable information requests.
In Bullwinkle v. FAA, 23 F.3d 167 (7th Cir. 1994), the FAA refused to renew airman's medical certificate for medical reasons on the basis of his taking lithium to control a manic-depressive disorder.
The court rejected the FAA's "no lithium" rule as being an unreasonable interpretation of 14 C.F.R. 67.17(f) which governs the eligibility for medical certificates. The court noted that "not even a cursory glance at section 67.17 makes it clear that this regulation is aimed at underlying medical conditions, not medications." Accordingly, the court vacated the NTSB order affirming the FAA's denial of the certificate and remanded the matter for consistent proceedings.
In Hinson v. Hoover, 1994 WL 57006 (Feb. 18, 1994), the FAA revoked Hoover's medical certificate under an emergency order because the pilot allegedly suffered from a "cognitive defect."
After observing Hoover's performance at an air show, two FAA inspectors questioned Hoover's fitness. The Federal Air Surgeon asked Hoover to submit to various neurological, psychological and psychiatric evaluations. The test results were unfavorable and he was retested.
In reviewing the suspension of his certificate, Hoover argued that he was the victim of a conspiracy conducted by the two FAA inspectors and he provided expert medical testimony regarding his fitness to fly to counter the testimony provided by the doctors who performed the original tests on him.
The NTSB upheld the revocation of Hoover's certificate finding that Hoover's evidence failed to rebut the poor results from his original testing and merely suggested other explanations for his poor test results.
In Greenwood v. FAA, 28 F.3d 971 (9th Cir. 1994), petitioner challenged suspension and non-renewal of his pilot examiner (PED) authority which enabled him to test pilots and issue pilot certificates. The PED is a one-year designation terminable or non-renewable under internal FAA guidelines.
The court ruled that petitioner's due process rights were not violated by the suspension of his license. The suspension of petitioner's PED was temporary and taken after an incident involving a student's safety. Petitioner had an opportunity to respond to the suspension and the suspension was lifted.
The court also ruled that the FAA's decision not to renew the petitioner's PED authority did not violate due process. The court held that the petitioner did not have a liberty or property interest in the renewal because the renewal was within the FAA's sole discretion. Since the petitioner has no legitimate claim of entitlement, the petitioner was not entitled to procedural due process.
In Olsen v. NTSB, 14 F.3d 471 (9th Cir. 1994), the FAA revoked a mechanic's certificate for intentionally falsifying an aircraft logbook entry. The NTSB affirmed the FAA's revocation of the certificate.
The court affirmed the revocation on the basis that substantial evidence supported the charge against the mechanic. The mechanic knowingly failed to update entries in the logbook for the aircraft which resulted in false entries regarding engine time at the sale of the aircraft. The mechanic also misrepresented the date he last conducted an annual inspection.
On five different occasions, air craft mechanics taxied aircraft onto runways, one of them active, without clearances from Air Traffic Control. The FAA fined the air carrier $2,000 for the careless and reckless operation of the aircraft.
The FAA found that the air carrier was liable for the actions of the mechanics since the mechanics were air carrier employees acting within the scope of their employment when they operated the aircraft.
Further, the FAA held that the decision to proceed against the air carrier was reasonable since the runway incursions appeared to be systematic and as a result of the proceeding the air carrier changed its taxi operations throughout the country. In The Matter Of Westair Commuter Airlines, Inc. d/b/a United Express, Docket no. CP92NM0042, Federal Aviation Decisions, Civ. Pen. Dec. 1993-18.
The FAA fined Delta $4,000 for violating security standards. Two FAA special agents who were not wearing any identification badges walked through an open walkway door at a gate, onto the airport operations area and past Delta's open aircraft. The agents were not challenged by the Delta employees who saw them. In The Matter of Delta Airlines, Inc., Docket No. CP90**0022, Federal Aviation Decisions, Civ. Pen. Dec. 1994-1.
Passenger flew on American Airlines aircraft with a loaded gun accessible in his carry-on baggage. FAA fined American Airlines $5,000 for the breach of its security program. Under American Airlines' security program, American Airlines was responsible for screening persons and carry-on baggage boarding its aircraft.
American Airlines cannot avoid its responsibility under the security program by suggesting, without any evidence to support it, that the passenger went through a security screening checkpoint operated by another carrier. In The Matter of American Airlines, Docket No. CP93SOO286, Federal Aviation Decisions, Civ. Pen. Dec. 1994-44
FAA regulations require air carriers to adopt FAA-approved security programs and as part of that program to provide and use a ground security coordinator. Three Westair flights departed from the airport without a ground security coordinator present. The FAA found that Westair was responsible for the violation even though Westair had a contract with United Airlines under which United was supposed to provide Westair with a security coordinator for each of its flights.
The FAA held that an air carrier may contract with other parties to fulfill its security obligations, its duty of care is non-delegable and the certificate holder is primarily responsible for any failure to comply with FAA regulations. In The Matter Of Westair Commuter Airlines, Inc. d/b/a United Express, Docket No. CP94WP0019, Federal Aviation Decisions, Civ. Pen. Dec. 1996-16.
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