ATEC 2009 Legal Issues for AMTs. Kent S. Jackson

Transcription

1 ATEC 2009 Legal Issues for AMTs Kent S. Jackson Jackson & Wade, L.L.C. 1

2 Appeal lprocess FAA Investigations Dealing with the FAA/DOT Voluntary Disclosure Process Normal Inspections Airmen v. Mechanic Responsibilities 2

3 Know Your Rights Appeal Rights Informal Conference Administrative Law Judge Appeal to the Full Board Circuit Court of Appeals FAA Investigative Process Facility Inspection Letter of Investigation 3

4 Informal Conference Notice of Proposed Certificate Action Freedom of Information Act Enforcement Investigative Report You Will Know What They Know 4

5 ALJ Hearing Order Has Been Issued Appeal Stays the Order Facts Established at this Time Only Judge Comes To You Preponderance Of Evidence Eid Evidentiary Rules Only Advisory 5

6 Appeal to Full Board No Hearing or Oral Argument Board is Supposed to Respect Credibility Findings of ALJ Board Decisions are Precedents 6

7 Appeal to Circuit Court of Appeals Appeal May Stay Effectiveness of Order Lowest Priority on the Docket Real Judges, But It May Not Get Past the Clerks Arbitrary & Capricious Standard Funnel Concept 7

8 FAA Investigations NEVER LIE!! Falsification= Revocation Criminal Fines Jail! 8

9 Question: If a FAA Inspector Asks to See Your Certificate, Should You Hand It Over? A: Yes B: No C: Maybe 9

10 FAA Investigations No Constitutional Rights Inspectors Are Instructed To Put You At Ease No Inspector Will Run OffWith Your Certificates 10

11 FAA Investigations They Cannot (and will not) Legally Detain You 6 Months For Notice of Proposed dcivil il Penalties/Certificate Action to Individuals 2 Years For Notice of Proposed Civil Penalties or Certificate Actions against Companies 11

12 Letter of Investigation Respond in 10 Days or the File Will Be Processed Without the Benefit of Your Comments! So what? 12

13 Letter of Investigation I Didn t Mean To Generally, Not A Defense 13

14 Letter of Investigation Only Submit Proof of Defense If You Are Positive You re Right, Or If You re Positive You re Wrong & They Can Prove It 14

15 Question: How Often Can A Mechanic or Pilot File A NASA Form? A: Once in Five Years B: Once Per Year C: Every Day 15

16 NASA Form No Accident or Crime NTSB 830 Definitions Not Intentional No Violation in 5 Years No Lack of Qualifications Sent in 10 days 1 for anyone who touched aircraft Careful with Identification Strip! 16

17 Voluntary Disclosure AC00 58 Voluntary Disclosure Reporting Program (AC Hazmat) Applies to 121, 135 and 145 Maintenance Issues (Does Not Cover Part 91 Flight Departments) IF ACCEPTED: Results in Letter of Correction to the Company Rather Than Civil Penalty Tracked By Wyvern and Argus 17

18 Voluntary Disclosure (1) The certificate holder has notified the FAA of the apparent violation immediately after detecting it and before the agency has learned of it by other means. (2) The apparent violation was inadvertent. (3) Theapparent violation does not indicate a lack, or reasonable question, of qualification of the certificate holder. 18

19 Voluntary Disclosure (4) Immediate action, satisfactory t to the FAA, was taken upon discovery to terminate the conduct tthat t resulted in the apparent violation. 19

20 Voluntary Disclosure (5) The certificate holder has developed or is developing a comprehensive fix and schedule of implementation satisfactory to the FAA. The comprehensive fix includes a follow up self audit to ensure that the action taken corrects the noncompliance. This self audit is in addition to any audits conducted by the FAA. 20

21 Voluntary Disclosure Ordinarily, the FAA will not forego legal enforcement action if the certificate holder informs the FAA of the apparent violation during, or in anticipation of, an FAA investigation/inspection or in association with an accident or incident. 21

22 Voluntary Disclosure Notification (1) A bi brief fdescription of the apparent violation, including an estimate of the duration of time that it remained undetected, as well as how and when it was discovered. d (2) Verification that noncompliance ceased after it was identified. (3) A brief description of the immediate action taken after the apparent violation was identified, the immediate action taken to terminate the conduct that resulted in the apparent violation, and the person responsible for taking the immediate action. 22

23 Voluntary Disclosure Notification (4) Verification, that t an evaluation is underway to determine if there are any systemic problems and a description of the corrective steps necessary to prevent the apparent violation from recurring. (5) Identification of the person responsible for preparing the comprehensive fix. (6) Acknowledgment that a detailed written report will be provided to the principal inspector within 10 working days. 23

24 Question: Does a Company Voluntary Disclosure Protect Individual id Employees?: A: Yes B: No C: Maybe 24

25 When Are Individuals Protected? 1) Violation involves a Dfii Deficiency of the Company s practices or procedures; (2) Employee, while acting on behalf of the Company, inadvertently violates the FAA's regulations as a direct result of the Deficiency (The voluntary disclosure policy does not apply to the airman or other agent when his/her apparent violation is the result of actions unrelated to the employing entity's deficiency); 25

26 When Are Individuals Protected? (3) The Employee immediately reports the violation to the Company; and (4) TheCompany immediately notifies thefaa of both the Employee s apparent violation and theapparent deficiency in Company practice or procedures. 26

27 Voluntary Disclosure Summary: Immediate Notification Before FAA Discovered & Before Inspection Scheduled Inadvertent Violation Does Not Question Qualifications of Company Immediate Action (grounding) Comprehensive Fix Including Follow up Self Audits 27

28 Normal Inspections Clean Floor, Organized Files Fresh Coffee, Cookies Donuts Broad FAA Subpoena Power Recently Reaffirmed, So Smile and Make & Make 2 Copies of Any Files You Are Required to Keep On Site Don t Have Anything Else On Site 28

29 Airmen v. Mechanic Responsibilities i Can Airmen Rely on Verbal Return to Service From A Mechanic? Can Mechanics Rely on Verbal Maintenance History From a Pilot? Can a Mechanic Return an Aircraft to Service with Discrepancies? Rarely is the answer to all of these questions 29

30 Conclusion Be Good Be Calm Be Paranoid Be Sure, or Be Quiet NASA Form/Voluntary Disclosures Start Writing Down Facts For Your Attorney 30