In a recent NTSB opinion, Administrator v. Lackey, anairman was charged with violations of FARs 91.7(a) (aircraft must be in an airworthy condition), 91.9(a) and (b)(1) (aircraft must be operated with flight manual and in conformity with operating limitations), 39.7 (failure to comply with airworthiness directive renders aircraft un-airworthy), and 91.13(a) (careless and reckless) arising from the airman’s alleged operation of a Bell 206 helicopter when the aircraft was in an un-airworthy condition and was operated contrary to the aircraft’s flight operating limitations and contrary to a special flight permit issued by the FAA for the flight. The FAA issued an order suspending the airman’s commercial pilot certificate for 150 days based upon the alleged violations. The airman appealed and after a hearing the ALJ affirmed the FAA’s order, but reduced the sanction from 150 days to 120 days. The airman then appealed the ALJ’s decision to the full NTSB.
On appeal, the airman argued that the ALJ committed a number of evidentiary errors. Prior to addressing the airman’s arguments, the Board first noted that evidentiary rulings are reviewed under an abuse of discretion standard and it will only entertain an arguments of evidentiary error when they amount to prejudicial error; that is, an error must have affected the outcome of the proceeding. The Board then reviewed the airman’s arguments and determined that the airman had failed to show how any of the errors specifically prejudiced his case. As a result, the Board affirmed the ALJ’s decision.
In my review of the Board’s opinion, it appears that the airman asserted a number of good arguments. Unfortunately, he then failed to go the extra step to show how the errors affected his case or how his case might have been tried differently in the absence of the alleged errors. Without this additional showing of prejudice, the Board will not reverse an ALJ’s decision based upon arguments of evidentiary error.
