The NTSB has affirmed an ALJ’s dismissal of an FAA suspension order based upon the FAA’s failure to offer sufficient evidence to support its claims. In Administrator v. Opat the FAA alleged that the airman violated FARs 91.7(a) (operating an aircraft in an unairworthy condition) and 91.13(a) (careless and reckless) when he flew a Gulfstream IV with the landing gear safety-wired and pinned in the down position without a ferry permit. Apparently the aircraft’s landing gear light failed to illuminate during a preceding flight and, after the airman confirmed that the gear was down and landed the aircraft, the airman then instructed a mechanic to wire and pin the gear so he could fly the aircraft a short distance to an airport where the failure could be corrected. The FAA subsequently issued an order seeking a 90-day suspension of the airman’s ATP certificate.
After a hearing, the ALJ dismissed the charges against the airman finding that the airman had “proceeded cautiously and obtained verification from experts that the aircraft was airworthy, despite the failure of the landing gear light and the fact that respondent had used gear pins to secure the landing gear.” The ALJ also determined that the aircraft was safe for flight even though the airman did not ensure that the aircraft conformed to its type certificate. The FAA then appealed the decision to the full Board.
On appeal, the Board observed that the FAA bore the burden of proving by a preponderence of the evidence that the aircraft was in an unairworthy condition. It then noted that “the standard for airworthiness consists of two prongs: (1) whether the aircraft conforms to its type certificate and applicable Airworthiness Directives; and (2) whether the aircraft is in a condition for safe operation.” In this case, the FAA had conceded that the aircraft was in a condition for safe operation despite the fact that the landing gear was wired and pinned in the down position.
With respect to the first prong of the test, the Board held that the record introduced by the FAA did not indicate that the aircraft, under the circumstances at issue in the case, did not conform to its type certificate. Noteably, the Board observed that the FAA only introduced the Type Certificate Data Sheet into evidence, rather than submitting the Type Certificate, in spite of the fact that the type certificate contained information about the landing gear, or information that would allow the Board to infer that the landing gear must be retractable.
The Board then concluded that “[w]ithout evidence that the aircraft’s type design requires that the landing gear be retractable, the record is insufficient for the Board to determine that respondent operated the aircraft when the aircraft did not conform to the requirements in its type certificate.” The Board made it clear that it did not condone the airman’s conduct and felt that the discrepancy should have been corrected or a ferry-permit obtained. However, the Board then pointed its collective finger at the FAA’s counsel when it stated that it was “confident that, had the Administrator’s counsel introduced evidence concerning the actual type certificate with the type design that identified retractable landing gear as a major system or component, the Administrator would have met her burden of proof.”
Based upon the Board’s findings, it is pretty clear that the airman “lucked out” in this case. If the FAA’s counsel had introduced the G-IV’s type certificate and the supporting data and documentation that go along with it, the result would have been very different. However, sometimes you get lucky. I bet the airman is glad he chose to take the case to hearing.