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5th Circuit Court of Appeals Makes Landmark Ruling in Favor of Pilot, Reversing FAA and NTSB

(The Woodlands, Texas – August 8, 2016) The United States Court of Appeals for the 5th Circuit has ruled in favor of airman Richard Boeta and against the Federal Aviation Administration, which had sought to suspend Boeta’s airline transport pilot’s certificate for 60 days, in a case defended by former LPBA President Gary L. Evans and his firm, Coats & Evans, P.C. In issuing this ruling, the 5th Circuit took the very rare step of reversing decisions of both a National Transportation Safety Board Administrative Law Judge, who had upheld the suspension, and the National Transportation Safety Board, which had rejected Boeta’s initial appeal.

The 5th Circuit’s decision clarifies and reaffirms Congress’ efforts to promote aviation safety through the aviation safety reporting system, or “ASRS”. The ASRS permits pilots to a waiver of sanction for violating a Federal Aviation Regulation if they submit a confidential written ASRS report to NASA, which studies aviation safety incidents. In order to qualify for the waiver of sanction, the violation must be, “inadvertent and not deliberate,” among other requirements.

Boeta had been flying as a contract pilot for a Houston-based aircraft management company, which managed a Beechjet 400 for a local business. The management company contracted with a New Jersey–based Part 135 carrier to operate the Beechjet as a commercial charter aircraft. As part of this relationship, the Part 135 carrier secured FAA approval for operation of the Beechjet above 28,000 feet, in what is referred to as reduced vertical separation minimum, or “RVSM” airspace. To legally fly in RVSM airspace, the aircraft must be properly equipped and maintained, the pilots must be properly trained, and the FAA must approve the operator for RVSM operations.

Boeta served as a crewmember on the Beechjet, flying it in RVSM airspace while this arrangement between the Part 135 carrier, the management company and the aircraft’s owner was in place, after having been trained by the certificate holder and having conducted proving runs in the aircraft. Boeta then took time off from flying after his father passed away during August, 2011, as the relationship between the Part 135 carrier and the management company deteriorated. The air carrier asked the FAA to remove the Beechjet from its certificate, but informed no one else of the requested removal, including the management company or the owner of the Beechjet, nor Boeta. In fact, no one informed Boeta of this change in status, including the management company or the aircraft owner. When Boeta returned to flying, he served as pilot-in-command on a flight from Houston to Florida, the only difference apparent to Boeta being the form of the trip sheet. The aircraft was met by the FAA upon arrival, and during the course of a lengthy ramp check, Boeta learned the RVSM approval for the aircraft had been withdrawn when the aircraft was removed from the air carrier’s Part 135 certificate. Boeta filed an ASRS form with NASA within 10 days thereafter.

While none of the facts were disputed by the FAA, the FAA sought to suspend Boeta’s airman’s certificates, contending that while Boeta may not have intended to make an unapproved flight in RVSM airspace, his violation was not inadvertent, and thus Boeta was not entitled to the ASRS waiver of sanction, which was also found by the ALJ during the hearing, and affirmed on review by the NTSB.

The 5th Circuit disagreed, concluding that the FAA’s efforts in this case to distinguish between unintentional and inadvertent conduct was simply not consistent with the English language or the intent of Congress. Further, by drawing such a distinction, the FAA would discourage airmen from voluntarily reporting the types of safety incidents ASRS is designed to catalogue, study and address. The Court noted, “it defies common sense to conclude that [Boeta] was anything but inadvertent when he, as a pilot capable of flying in restricted airspace, flew an airplane capable of flying in restricted airspace, without checking the paperwork evidencing that the operator (not the pilot!) of that craft was still authorized to commission such flights” (emphasis and exclamation point in original). The 5th Circuit also found that the air carrier, the management company, and the aircraft owner were all in much better positions to ascertain the status of the relationships than airman Boeta was, serving as a contract pilot. Furthermore, the 5th Circuit found that the agency agreement between the air carrier and Boeta had not been terminated, nor had the lease agreement between the air carrier and the aircraft owner, noting that the operator is responsible for “keep[ing] each of its employees and other persons used in its operations informed of the provisions of its [OpSpecs] that apply to that employee's or person's duties and responsibilities”. Boeta had received no notice of the changed relationship.

Coats & Evans represents clients in aviation lawsuits, aviation transactions and aviation-related administrative matters. The firm’s principals are active pilots and have over 15,000 combined flight hours. For more information about Richard Boeta’s case or the firm’s practice, contact Coats & Evans, 281-367-7732, or on the web at www.TexasAviationLaw.com.

Click Here to the published opinion.



May 30, 2015

Ron Herold, Sustaining member of LPBA and Senior Aircraft Appraiser, dedicates valuable time to fly both Angel and Veterans flights

Ron HeroldOn Saturday May 30, 2015 Ron Herold and his good friend Esther departed Manassas, Virginia (HEF) in his privately owned twin-engine 1976 Piper PA-23 Aztec to pick up four disabled Veterans at the Baltimore-Washington Airport (BWI), so that these warriors could enjoy a much-deserved New York Mets baseball game. These Veterans were in residence at Walter Reed hospital and had been scheduled for discharge from the military due to their combat related injuries.

Ron and the group departed BWI and landed at Republic Airport (FRG) in Farmingdale, NY around noon, and after a quick check in at a local motel, the Veterans were treated to transportation to and from Citi Field by the New York City Fire Department. After the game, the Veterans enjoyed a wonderful dinner in a local restaurant, and engaged in a little sightseeing. The group flew home on Sunday, and enjoyed excellent weather along the route, which allowed magnificent views of Manhattan from the aircraft.

Ron pays all aircraft related expenses himself, which is part of his individual program to give back to his community, while still doing the activity that he loves the most – flying airplanes. Ron is a member of both Patient Airlift Services (PALS) and Angel Flight Mid-Atlantic, and he generally accomplishes one or two flights per quarter. Ron prefers to accept longer flights that involve groups of people, as his mighty Aztec is perfectly suited for the task.

As testimony to his commitment to his community, Ron is typically on standby 24 hours/day, ready to fly to Allegheny County (AGC), which is just outside Pittsburgh, to transport patients awaiting kidney or lung transplants.

Both Angel Flight and PALS have strict requirements for currency and experience. On occasion, a tax-deductible donation to Angel Flight results in a fuel reimbursement, which is always much appreciated. Ron often provides local pilots with the opportunity to fly his twin by offering dual in the Aztec at no charge when seats are available on Angel and PALS flights. Many local Washington D.C. pilots have taken advantage of Ron's offer and received dual/training at no instructional cost.

If you know someone that would benefit from an Angel Flight or PALS, or if you are interested in flying with Ron, or if you are an aircraft owner that is interested in offering your aircraft or services, please contact Ron through his membership account at LPBA.
 



April 16, 2015

2016 Aviation Law and Insurance Symposium Planning Committee Co-Chairs Announced

Gary W. Allen and Paul H. Leonard will co-chair the 2016 Aviation Law and Insurance Symposium program committee.

KANSAS CITY, Mo. - Cecile Hatfield, former Chair of The Aviation Law and Insurance Symposium (ALIS), has announced that the 2016 Program Committee will be Co-Chaired by Gary W. Allen, Former Director, Aviation and Admiralty, Torts Branch, Civil Division, Department of Justice, Williamsburg, VA, and Paul H. Leonard, CEO, Charles Taylor Aviation (USA), Dallas, TX.

Gary W. Allen is an attorney and consultant specializing in aviation matters. He retired in September 2005 after serving for 20-years as Director of the 50-person Aviation & Admiralty Litigation staff of the Torts Branch, Civil Division of the Department of Justice with responsibility for the prosecution and defense of all aviation and admiralty tort litigation brought by or against the United States and its departments and agencies. He is an active member of the Virginia Bar and recently served as a Special Master in the Northern District of Texas for discovery-related issues in a putative class action against an air carrier and worked abroad on a private aviation arbitration matter in London.

Paul Leonard is Senior Vice President and Chief Executive Officer of Charles Taylor Aviation and Adjusting in Dallas, Texas, a subsidiary of Charles Taylor Consulting PLC in London. Paul is a licensed pilot with 38-years of aviation insurance experience. He is a former Senior Vice President of AIG Aviation; Executive Vice President of Signal Aviation Underwriters; and Chief Operating Officer of Universal Loss Management, Inc. Specializing primarily in Liability claims, he has been responsible for the defense of insureds in hundreds of cases under a wide variety of aviation insurance policies, including Aircraft Liability, Airport CGL and Hangarkeepers Liability, and Manufactured Products and Completed Operations.

Cecile Hatfield will remain a member of the Program Committee along with S.V. (Steve) Dedmon, Esq., Embry-Riddle Aeronautical University, Daytona Beach, FL; James Kreindler, Esq., Kreindler & Kreindler, LLP, New York, NY, Marc Moller, Esq., Kreindler & Kreindler, LLP, New York, NY; Mia Wouters, LVP Law, Brussels, Belgium.

The Aviation Law & Insurance Symposium is endorsed by Embry-Riddle Aeronautical University (ERAU) and is one of the most prestigious and well attended Aviation Law programs nationwide. This symposium provides a forum for aviation attorneys, insurance personnel, and other professionals involved and interested in aviation law and insurance to discuss relevant issues. The focus is on present conditions, practices and future trends.


 

April 27, 2013

Past President Charlie Finkel to Bike from
LA to Boston in Support of Angel Flight

CFinkel AFW JerseyTwo of Charlie Finkel's passions in life are flying and bicycling. He is combining the two in an effort to raise money for Angel Flight West. AFW covers 13 western states, and is aligned with other air care organizations throughout the United States. Charlie Finkel is serving his second stint as a Board member for AFW, a wonderful organization which has been awarded a Four Star Rating by Charity Navigator.

AFW’s primary mission is to arrange for air transportation, free of charge, to those with compelling human needs. On missions for Angel Flight, Charlie has flown cancer patients, burned children, wounded soldiers, and others with a wide variety of needs. Charlie has a particular affinity for the burn victims, having spent two months suffering in a burn ward himself, and then having to overcome the hurdles of rehabilitation.

Now, at 62, Charlie is about to embark on a “bucket list” adventure of riding his bicycle from Los Angeles to Boston between May 12th and June 28th - approximately 3,400 miles. His ride across America will honor Angel Flight West. With a custom jersey advertising AFW, Charlie will bring the good work of this organization, and all other Air Care Alliance member organizations, to the attention of those with whom he comes in contact.

If you would like to help Charlie celebrate this journey, consider pledging a per mile donation to Angel Flight West, be it $1.00, 10cents, or even a penny per mile. It all adds up, and will help AFW continue with its mission. You can visit the website at angelflightwest.org, where you can learn more about what we do, and how others are helped. There is information about Charlie's ride on the website. Donations can be made by contacting AFW either through email at CharliesRide@angelflightwest.org, or by calling 310.398.6123, Ext. 110.



January 8, 2009

Congratulations to LPBA Past President Marty Weiss

Marty WeissQ&A: Pilot helps fly needy animals to better life

By EMILY GROVES Norwich Bulletin Posted Jan 07, 2009 @ 12:13 AM Step into Martin Weiss’ law office at Weiss & Associates in Danielson and the numerous airplane photographs and magazines quickly identify his hobby.

But the photographs fail to display how Weiss, a Woodstock resident, donates his time and fast, high-performance plane as a member of the nonprofit Pilots-N-Paws to fly dogs from overcrowded shelters to rescue groups and shelters several states away.

Q: What is Pilots-N-Paws?

A: It’s a nonprofit organization, started in February out of South Carolina. Most of us are just private pilots, donating their time. People who have a pet that needs to be rescued can go to our Web site, find a pilot and make a request for transport assistance. Instead of the dog spending three to four days in a car, which is very taxing for a dog, especially puppies, we can do the flight in probably three to four hours.

Q: How are the trips scheduled?

A: Most of my requests have come from the Internet. But if there was something local, I would certainly try to work it out. We get them mostly from kill shelters. We fly a lot of older dogs and sick dogs, but there are people up here who want to adopt them. Once we have the request, we have a couple pilots who work together to make the full trip. We had a pilot bring a dog and some puppies from Kentucky to West Virginia, another pilot brought them from West Virginia to New Jersey, and I brought them from New Jersey to Maine.

Q: How did you become involved with Pilots-N-Paws?

A: I’m a member of the Aircraft Owners & Pilots Association, a national group, which has a Web site. There was a link, “Pilots rescuing animals,” and I said, “That’s interesting.” So I joined. When they saw I was a lawyer, they asked me to be on their board of directors. I really love animals. The hard part is not keeping the animals myself.

Q: Have you had any problems with some of the rescue dogs in your plane?

A: The rescue dogs we have to have in a crate. The animals are a little freaked out, but dogs, unlike people, are usually trusting. If I have a dog that is panting or scared, I’ll spend a little extra time with it on the ground. I try to limit it to a two- to three-hour flight and try to focus on having a smooth flight.

Q: Do you donate your flying services to any other organizations?

A: There’s an organization, Angel Flight, which flies sick children to doctor’s appointments in other states. I’m going to be getting involved with that one once I get my instrument rating, which allows me to fly in bad weather. If I could do both at the same time, that would be great — have an animal to keep the child company. It’s something that if you have a plane and the time and money to donate to helping sick children and animals, I think you should do it — bottom line.

How to help Monetary donations may be made to Pilots-N-Paws through the Web site, www.pilotsnpaws.org.

To join or for more information, e-mail Weiss at flyinlawyr@aol.com.


 

Congratulations to LPBA Member Greg Winton!

NTSB Reverses FAA Revocation Order Issued Against Air Trek

Tue, 21 Oct '08

30-year Air Ambulance Operator Wins Against FAA

Air TrekAn NTSB Administrative Law Judge, William Pope, has issued an oral initial decision reversing an Emergency Order issued by the FAA on June 10, 2008. The Emergency Order revoked the Air Carrier Certificate held by Air Trek, Inc., an air ambulance operator based in Punta Gorda, FL. The nine (9) day hearing took place during three separate sessions over a five week period.

According to Legal Counsel for Air Trek, Inc., the case initially began five months ago on May 23, 2008, when the FAA first issued an Emergency Order indefinitely suspending Air Trek's Air Carrier Certificate pending compliance with the Federal Aviation Regulations (FARs). Prior to the suspension, Air Trek had been in operation for 30 years with no violation history. On May 24, 2008, Air Trek retained counsel and immediately appealed the suspension order.

On June 5, 2008, less than two weeks following the emergency suspension, and while litigation was in progress, FAA attorney Brendan Kelly, Esq., ordered a surprise inspection of Air Trek's Punta Gorda facility for the stated purpose of obtaining additional evidence to "push the case from suspension to revocation." When two FAA inspectors arrived at Air Trek's facility unannounced, the company had already ceased operation and surrendered its Air Carrier Certificate pursuant to the emergency order. Accordingly, the FAA inspectors stated that they were going to inspect aircraft and records pursuant to 14 C.F.R. Part 91 only.

NTSBSince the company had already retained counsel concerning the suspension, Air Trek's Director of Operations, Dana Carr, suggested that the FAA inspectors wait at a nearby airport diner while he contacted his attorney. However, before Air Trek's attorney could coordinate an inspection, the inspectors reported to Mr. Carr that they had been instructed by the Special Emphasis Inspection Team (SEIT) leader to abort the inspection and return to home base. Although the inspection never took place, the FAA withdrew its suspension order and issued an Emergency Order of Revocation instead.

The law judge found that since Mr. Carr had initially suggested that the FAA inspectors leave Air Trek's facility while he attempted to contact his attorney, a technical violation of 14 C.F.R. section 119.59 had occurred (i.e., refusal to allow an inspection). However, he stated that any apparent violation was "de minimus" (i.e., "of minimum importance" or "trifling") and did not warrant revocation.

By the fourth day of the hearing, the FAA had withdrawn 6 of the 10 Counts in the revocation order and dismissed 9 of the 14 regulatory violations. At the termination of the hearing, the remaining two findings of violation by the law judge related only to flight operations that occurred at Air Trek's Winchester, Virginia (OKV) base of operations, which had been closed since January 2007 (more than 1 1/2 years prior to issuance of the revocation order).

Specifically, the law judge found that the Winchester pilots did not follow the company's Operations Specifications and General Operations Manual concerning the reporting of mechanical irregularities and calculation of weight and balance. As a result, the law judge found a violation of 14 C.F.R. sections 119.5(g) (i.e., violation of operations specifications), and a residual violation of 91.13(a). These findings were limited to the Winchester pilot operations only.

Throughout his decision, the law judge credited testimony from Wayne Carr, Air Trek's President and Chief Pilot, finding that regulatory violations by the Winchester pilots were not "directed, caused, or permitted" by management. As a result, the FAA did not present evidence to support a finding that Air Trek "lacks the qualifications necessary to hold an Air Carrier Certificate", as alleged in the revocation order. By contrast, the law judge found the testimony of former Winchester pilots, Garrett Lunde and John Roberts, to be unreliable. He found that both pilots were obviously biased against Air Trek's management, and therefore, were not credible.

FAAThe current practices of Air Trek pilots to report mechanical irregularities either verbally or by placing a hand written note in a vice located in the maintenance shop, as well as the use of an Excel computer program to calculate weight and balance, were found to be in accordance with the company's Operations Specifications, General Operations Manual, and the Federal Aviation Regulations.

The judge held that the FAA failed to present any evidence that aircraft were actually operated in an unairworthy condition, as alleged throughout the revocation order. Nevertheless, he ordered that Air Trek's certificate be suspended until the company provides adequate safeguards to ensure ongoing future compliance with the Federal Aviation Regulations.

Air Trek was represented by Gregory S. Winton, Esq. of Aviation Law Experts, LLC, along with co-counsel, Darol H.M. Carr, Esq. of the Farr Law Firm located in Punta Gorda, FL.

According to Mr. Winton, "this case is just another example of an inadequate FAA investigation leading to protracted litigation without substantial justification. In fact, during the hearing the law judge described certain allegations as 'absurd'." As a result, Air Trek will apply for reimbursement of attorney fees and expenses pursuant to the Equal Access to Justice Act (EAJA).

FMI: www.faa.gov, www.ntsb.gov, www.AviationLawExperts.com


 

FAA Ordered to Pay Attorney Fees and Expenses

September 3, 2008

WASHINGTON, Sept. 3 /PRNewswire/ -- The Chief Administrative Law Judge of the National Transportation Safety Board (NTSB) ordered the Federal Aviation Administration (FAA) to pay two corporate pilots $12,475.00 for attorney fees and expenses pursuant to the Equal Access to Justice Act ("EAJA") 49 C.F.R., section 826.1 et. seq. (NTSB Docket Nos. 331-EAJA-SE-18212 and 332-EAJA-SE-18213). Pursuant to the EAJA, the FAA shall award to the prevailing party, fees and other expenses incurred, unless the agency was substantially justified. By Order dated August 29, 2008, the Chief Judge stated that "the agency proceeded on a weak and tenuous basis with a flawed investigation bereft of any meaningful evidence against applicants, this highlights the lack of substantial justification not having a reasonable basis in both law and fact. Therefore, applicants' application for attorney fees and expenses must be granted." The EAJA award followed a withdrawal of the suspension orders issued against the Airline Transport Pilot Certificates of two Learjet pilots.

The FAA initially alleged that operation of an aircraft "without the two-place divan installed" rendered the aircraft unairworthy. The FAA further alleged that the aircraft was operated "when the ELT (emergency locator transmitter) was not operational." As a result, the pilots were charged with a violation of 14 C.F.R. sections 91.7(a) (operation of an unairworthy aircraft); 91.207(a)(2) (operation without an operable emergency locator transmitter); and 91.13(a) (operating an aircraft in a careless or reckless manner).

Prior to the flight, the Captain of the Learjet 60 model aircraft contacted the FAA Flight Standards District Office (FSDO) in Albuquerque, NM, in order to determine the proper procedure for removal of the divan. The Captain was told by the FAA inspector to consult an airframe & powerplant (A&P) mechanic with Inspection Authorization to have the seat removed. Accordingly, a duly authorized A&P mechanic removed the divan, recalculated the weight and balance of the aircraft, and prepared a maintenance record returning the aircraft to service. Upon arrival at Teterboro, NJ, local FAA inspectors determined that removal of the divan was in violation of the regulations, alleging that a Supplemental Type Certificate (STC) was required.

While at Teterboro, another A&P mechanic removed the ELT and performed a battery inspection. The battery failed a bench test and a new battery was ordered. While awaiting arrival of the new battery, the old battery was placed back into the aircraft and the mechanic prepared a maintenance record for the work performed. The FAA alleged that operation of the aircraft without the new ELT battery installed was a violation of the regulations.

On March 21, 2008, the FAA filed a complaint against each of the pilots. The cases were consolidated and a hearing was scheduled for August 19, 2008. A related case was brought against the owner of the aircraft seeking a $9,900.00 civil penalty. On June 17, 2008, the FAA withdrew its civil penalty case. Three days later, the FAA withdrew all charges against the pilots.

The pilots and aircraft owner were represented by Gregory Winton, a former FAA senior trial attorney, who has been practicing aviation law for the past 19 years. Winton is the President of Aviation Law Experts, LLC (http://www.AviationLawExperts.com), a national law practice and consulting firm based in the Washington, DC metropolitan area. According to Winton, "the FAA has once again wasted valuable agency resources prosecuting frivolous enforcement actions." Since 2005, Winton has received seven (7) EAJA awards against the FAA on behalf of his clients.

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