An airman found this out the hard way in a recent case in Michigan. In Mark v. U.S. Dep’t of Transportation the plaintiff was a flight engineer working for Kalitta Chartes II, LLC, an air carrier. During one particular flight, the captain nearly crashed the aircraft in what the Court characterized was a “nearly-disastrous unstable landing approach” which left the plaintiff “understandably shaken.”
Shortly after the flight, the plaintiff failed a simulator proficiency exam and claimed his failure was the result of the post-traumatic stress disorder (“PTSD”) he was suffering from the previous flight. The Plaintiff then filed a report under Kalitta’s Aviation Safety Action Program (“ASAP”) detailing his physical and mental condition which was then provided to the Event Review Committee (“ERC”). As you may know, ASAP programs are established via a memorandum of understanding (“MOU”) between an air carrier and the FAA which detail procedures for participating in the program. The MOU establishes the ERC which includes a representative from each of the air carrier and pilot’s union, as well as an FAA inspector.
In this case, the plaintiff alleged that the MOU required the ERC to report his medical issue to the FAA Regional Flight Surgeon and then comply with any instructions received in response to the report. However, the ERC did not follow this procedure, but simply determined that the plaintiff was fit to fly. Based upon this determination, the plaintiff submitted to another simulator proficiency check which he also failed, and he again claimed the failure was caused by his PTSD. After the second failure, the plaintiff’s employment was terminated.
The plaintiff sued the Department of Transportation alleging that he would not have lost his job if the FAA inspector on the ERC had reported the plaintiff’s medical condition to the Regional Flight Surgeon as required by the MOU. The plaintiff asserted claims against the DOT for ordinary negligence grounded in the alleged unlicensed practice of medicine by the FAA inspector and intentional infliction of emotional distress. The DOT then moved to dismiss the plaintiff’s claims.
The Court agreed with the DOT and held that the plaintiff’s claims were barred by the doctrine of sovereign immunity. The Court determined the plaintiff’s allegations that the FAA inspector’s alleged failure to comply with the MOU and the resulting termination of plaintiff’s employment were really contract claims which are expressly barred by sovereign immunity and not covered under the Federal Tort Claims Act (which does permit some tort claims against the government). It also observed that the plaintiff had provided no evidence or case law to support his claims for unlawful practice of medicine or intentional infliction of emotion distress.
So, I think the takeaway from this case is that any disputes arising from an ASAP program are probably best pursued with the air carrier rather than the DOT. Although the government can be sued in tort (e.g. the plaintiff’s negligence and intentional infliction of emotion distress claims), the burden is high to assert facts and precedent to support those claims. And as this case shows, contract cases against the government are, for the most part, completely barred.