The NTSB recently rejected both an airman’s and the FAA’s appeals and affirmed an administrative law judge’s (“ALJ”) decision suspending the airman’s airline transport (“ATP”) certificate for 100 days. The case, Administrator v. Hackshaw, arose from an incident in which the airman was operating a C-402B on a flight from George Charles Airport in St. Lucia to an initial destination of E.T. Joshua Airport in St. Vincent. During approach, the aircraft displayed an intermittent green light for the right main landing gear. As the airman attempted to land, the right main landing gear began to collapse and the right propeller came in contact with the runway. In response, the airman applied power and performed a go-around. However, rather than attempting to troubleshoot the gear problem (e.g. perform a manual gear extension) and attempt another landing at E.T Joshua, the airman proceeded to fly to Hewanorra Airport in St. Lucia, which required him to fly 23 nautical miles over the ocean.
At Hewanorra Airport, the airman performed a manual gear extension and successfully landed the aircraft without further incident. The aircraft owner, who also happened to be an airframe and powerplant mechanic (“A&P”), inspected the right propeller and also installed a lock securing the gear in the down and locked position. The A&P then told the airman that the aircraft was “airworthy” and “fit to fly” and the airman flew the aircraft back to George Charles Airport.
When the FAA learned of the incident, it issued an order suspending the airman’s ATP certificate for 180 days based upon alleged violations of FARs 91.7(a) and (b) (prohibiting operation of an unairworthy aircraft), 91.13(a) (careless and reckless), and 91.703(a)(2) and (3) (failure to comply with regulations of foreign country in which aircraft is operated). The airman appealed the order to the NTSB and, after a hearing, the ALJ determined that the FAA’s witnesses were more credible and proved that the airman should have declared an emergency and landed the aircraft at E.T. Joshua without making any further flights in the unairworthy aircraft. As a result, the ALJ concluded that the airman’s conduct in flying the aircraft to Hewanorra and George Charles after the prop-strike violated the regulations as alleged. However, the ALJ reduced the 180 day suspension sought by the FAA to 100 days based upon the airman’s reliance upon the statements by the aircraft owner/A&P. Both the airman and the FAA then appealed the ALJ’s decision to the full Board.
On appeal, the airman argued that the case should have been dismissed because (1) the FAA lacked jurisdiction since the events occurred outside the United States; (2) the FAA’s complaint was stale under the Board’s Stale Complaint Rule, 49 C.F.R. § 821.33; and (3) the FAA was equitably estopped from taking action because the airman successfully completed a re-examination. The Board rejected each of the airman’s arguments. It determined that the FAA had jurisdiction to take action against the airman’s FAA issued certificates by virtue of FAR 91.703 and had served its notice of proposed certificate action upon the airman within 6 months of the incident as required. The Board also concluded that “a successful completion of a re-examination is a separate issue from an enforcement action based on a respondent’s conduct prior to the reexamination” and did not preclude the FAA from taking action against the airman.
The FAA’s appeal focused on the ALJ’s reduction of sanction and argued that the ALJ “exceeded his authority in lowering the sanction, because he did not find that the Administrator’s sanction was arbitrary, capricious, or otherwise not in accordance with law.” The FAA also asserted that the sanction reduction was inconsistent with Board precedent. Noting that the FAA did not submit the Sanction Guidance Table into evidence at the hearing and did not explain the computation of, and reasoning for, the sanction until the FAA filed its appeal brief, the Board concluded that the ALJ properly reduced the sanction based upon his findings that mitigating circumstances were present.
What can we learn from this case? First, although the airman’s arguments for dismissal sounded good, existing case law and precedent were clearly inconsistent with those arguments. Second, the FAA’s appeal likely would have been granted if the FAA had properly presented and substantiated its request for sanction at the hearing. The Board wouldn’t hesitate to defer to the FAA’s sanction request if the record included the Sanction Guidance Table and a proper explanation of the basis for the sanction, other than “hey, the airman violated the regulations.” In this case, the airman received the benefit of the FAA’s mistake. That will not always be the case.