30-year Air Ambulance Operator Wins Against FAA
An 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.
Since 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.
The 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).