When Is an Aircraft Airworthy?

A. The FAA Must Prove the Aircraft is Unairworthy

The law is clear that the burden of proof is on the FAA in aviation enforcement proceedings.[14] The failure of the FAA to carry its burden of proof in a case alleging an aircraft was unairworthy is illustrated in Administrator v. Van der Horst.[15] In Van der Horst, the FAA brought an action to suspend the airman’s certificate for 180-days contending violations of 14 CFR §§ 91.7(a) [operating an aircraft in an unairworthy condition] and 91.13(a) [operating an aircraft in a careless or reckless manner][16] The balloon had suffered a burn hole extending vertically 102 inches from the throat and was 129 inches wide. There was no damage above the first four meters of the balloon envelope.[17]

Two FAA inspectors testified that the respondent could not have adequately inspected the condition of the load tapes prior to his flight since the distance at which respondent viewed the balloon (20 feet) from the balloon basket was too great for an effective inspection.[18] On the other hand, respondent testified that he had held a commercial certificate with a balloon rating since 1974 and had accumulated 3,700 hours of flight time in balloons.[19]

The respondent testified that after the burn, he determined there was no damage to the load tapes[20] Further, the respondent presented the testimony of Brent Stockwell, an experienced balloon pilot and FAA designated examiner; and Mr. Stockwell, in reviewing photographs of the balloon, declared that the balloon was airworthy and that respondent could have adequately assessed the condition of the load tapes in the balloon basket twenty feet below the envelope[21]

The law judge found the FAA had failed to prove a violation of § 91.7(a) because no one had inspected the load tapes.[22] Nevertheless, the law judge did find a violation of § 91.13(a).[23] On appeal, the airman argued that the Administrator had not put him on notice that the FAA was pursuing an independent charge under § 91.13(a) in asserting his preflight inspection of the burn damage was insufficient.[24] Reversing the decision of the law judge and granting the respondent’s appeal, the Board declared:

A fair reading of the Administrator’s complaint indicates that both the § 91.7(a) and § 91.13(a) charges were premised upon a case theory that respondent’s balloon was damaged to such an extent that it was unairworthy, but the Administrator did not prove this key fact. The complaint did not provide respondent with adequate notice that he must defend against an independent charge of carelessness based upon an inadequate preflight
…[25]

The Board’s decision in Van der Horst underscores the fact that when the FAA charges an airman with operating an unairworthy aircraft, the burden proof in on the Agency. Moreover, if the Administrator charges the airman with careless or reckless conduct on the theory the aircraft was unairworthy, if the underlying premise is not proven (that the aircraft was unairworthy), then the derivative violation of careless or reckless misconduct must fail as well unless the Complaint clearly states and independent charge against the airman for conducting an inadequate preflight inspection.[26]

B. Opinion Testimony that an Aircraft is Potentially Unsafe Does Not Equate to Unairworthiness

Nicolai v. Administrator,[27] involved an airman who was observed taxiing an aircraft by an FAA inspector with bird nesting material in the rudder.[28] The case was tried, and the FAA prevailed at the hearing on charges alleging that the airman had operated the aircraft in an unairworthy condition and had operated the aircraft in a careless or reckless manner.[29] The airman appealed, and then the FAA withdrew the complaint.[30] Because the case did not reach the NTSB, there was no decision on the merits with respect to the conclusions of the law judge, and the finding of the law judge had no precedential effect.

The airman then filed an application for attorney’s fees under the Equal Access to Justice Act arguing that the FAA was not substantially justified in pursuing the action and further arguing that the airman was the prevailing party.[31] The airman’s application for litigation expenses was denied, and he appealed to the NTSB.[32] In evaluating the airman’s appeal from the denial of his EAJA application, the Board noted the definition of when an aircraft is airworthy, i.e., conforms to its type certificate and is in condition for safe flight.[33] The Board then compared and contrasted that legal standard with the testimony of the FAA inspector (who was not a maintenance inspector) who had opined that the airworthiness of the aircraft “unknown” and the aircraft was “potentially unsafe.”[34] In contrast to the inconclusive testimony of the FAA inspector, the airman offered the expert testimony of a Mr. Howell who reviewed the maintenance manual for the aircraft that confirmed a 2 ounce weight can be added to the rudder within a range of 16 inches from the hinge center line with no adverse effect on the aircraft’s balance.[35] A study presented for consideration by the court on the bird nest showed its minimal (less than 2 ounce) weight.[36] The Administrator offered no evidence regarding the weight of the nesting material nor its exact position with the result that the airman took the position that the Administrator did not have substantial justification for asserting that the bird nesting material put the rudder out of balance and rendered the aircraft unairworthy.[37]

The Board reversed the decision of the law judge denying the airman’s application for fees noting: “the record reflects a less than thorough investigation and a willingness to prosecute based only on assumptions based on incomplete information.”[38] As a variation on a common theme (i.e., that the burden of proof is on the Administrator to prove the aircraft is unairworthy), the Board, in reversing the law judge and finding in favor of the airman on his Equal Access to Justice Act Application declared:

. . . The Administrator did not at any point in his investigation adequately study the rudder balance issues relevant to this aircraft, nor did he make any effort to determine the weight or position of the nesting material . . .

The Administrator’s later attempt to correct for these lapses – – by arguing that an unknown condition is equivalent to an unairworthy condition and that the aircraft was potentially unsafe – was directly contrary to established case law requiring that the Administrator prove that the operation of the aircraft was actually unsafe. Under these circumstances, the Administrator was not reasonable in pursuing a charge of operating an unairworthy aircraft.[39]

To the extent the Administrator also brought charges of careless or reckless operation of an aircraft, since there was no proof the aircraft was unairworthy, the allegation of careless or reckless conduct was not substantially justified as well.[40] Nicolai, like Van der Horst confirms not only that the burden of proof is on the Administrator to actually prove the aircraft is unairworthy, but when the Administrator goes forward with a case that has not been properly or adequately investigated, the actions of the Administrator are not substantially justified giving rise to exposure to pay legal fees and expenses under the Equal Access to Justice Act.

C. The Administrator is Obligated to Review the Type Certificate before Concluding the Aircraft is Unairworthy.

In Administrator v. Thibert[41] the ALJ dismissed the Administrator’s complaint which had ordered a 120-day suspension of the respondent’s commercial pilot and flight instructor certificates based on alleged violations of 14 CFR §§ 91.7(a) and 91.13(a).[42] The Administrator’s evidence was that an Agency inspector had observed a helicopter with a broken lateral cyclic control servo mount bracket, a cork inserted in the engine oil quick drain in lieu of the approved part, and the aircraft’s records stated that the “rotor tach [was[ running hot,” but that no maintenance records indicated any repair of the rotor tachometer.[43] Two FAA inspectors testified they considered the aircraft unairworthy and that the aircraft did not conform to its type certificate.[44] The Agency inspectors opined that a qualified pilot should have known that the alleged discrepancies existed and should have insured that they were repaired.[45] On cross-examination, inspectors admitted that they did not review the aircraft’s type certificate or any accompanying data regarding the aircraft’s type design before determining the aircraft was unairworthy.[46] Further, they did not review the pre-flight inspection checklist the airman used prior to operating the aircraft.[47] The respondent testified that he would not normally inspect any of the alleged discrepancies and he was not aware of the discrepancies.[48] The law judge dismissed the Administrator’s complaint and found that the evidence in the record did not prove that any of the alleged discrepancies would render the aircraft unairworthy and that the Administrator had not proven that the airman had operated the aircraft knowing it was unairworthy.[49]

The Board, in affirming the initial decision of the law judge declared that the Administrator had the burden of proof of proving the aircraft was unairworthy by a preponderance of the evidence.[50] In affirming the conclusion of the law judge that the FAA had failed to carry its burden of proof, the Board observed:

We have also concluded, however, that when small, insignificant deviations are present, an aircraft may still substantially conform to its type design. Administrator v. Frost, NTSB Order No. EA-4680 (1998); Administrator v. Calavaero, Inc., 5 NTSB 1099, 1101 (1996). In determining whether an aircraft is airworthy in accordance with the aforementioned standard, the Board considers whether the operator knew or should have known of any deviation of the aircraft’s conformance with its type certificate. See, e.g., Administrator v. Yialamas, NTSB Order No. EA-5111 (2004); Administrator v. Bernstein, NTSB Order No. EA-4120 at 5 (1994).[51]

D. Minor Defects in an Aircraft do not Render it Unairworthy.

In Administrator v. Calavaero,[52] the law judge reversed an order of the Administrator suspending a respondent’s air carrier operating certificate for 120-days alleging that an aircraft had been operated in an unairworthy condition.[53] The Administrator asserted, among other things, that the aircraft had flap bearings/bushings that were excessively worn, a corrosion hole in the right aileron, a hole worn in the cowl flap, the right engine cowl was cracked in two places, that both the right and left oil coolers were covered with white paint, and the left wingtip had been damaged and repaired with bondo.[54] The position of the Administrator was that these defects rendered the aircraft unairworthy without demonstrating how the defects had an adverse impact on the level of safety afforded by conformity with the aircraft type certificate.[55] The Board, in giving deference to the credibility assessments of the law judge concluded the Administrator had failed to demonstrate that the observed defects had any impact on the safety of the aircraft. In affirming the judge, the Board declared:

We do not take issue with the Administrator’s position that an aircraft, in addition to being in a safe condition to operate, must be in conformity with its type certificate in order to be considered airworthy. However, we do not agree that every scratch, dent, ‘pinhole’ of corrosion, missing screw, or other defect, no matter how minor or where located on the aircraft dictates the conclusion that the aircraft, design, construction, or performance has been impaired by the defect to a degree that the aircraft no longer conforms to its type certificate. In this case, the Administrator essentially made no effort to show that the alleged defects or discrepancies had had an adverse impact on the level of safety that an aircraft’s conformity with its type certificate is intended to insure, or counter the substantial evidence adduced by respondent that they had not had such an impact . . .[56]

E. The Board Does Not Apply a Standard of Strict Liability in Airworthiness Violations for Pilots

In Administrator v. Frost,[57] the FAA asserted four defects with respect to a helicopter: (1) that the flight manual did not contain a permanent revision control page,[58] (2) that the turbine outlet temperature gage did not have a red line,[59] (3) that the tachometer did not have a yellow caution range marking,[60] and (4) a placard was missing from the instrument panel.[61] The law judge found violations of 14 C.F.R. §§ 91.7(a) and 91.13(a) but reduced the suspension from ninety to fifty days.[62] The airman appealed, and the Board reversed finding (1) that there was no proof the revision page to the flight manual was a required part of the manual,[63] (2) that the absence of a red line on the turbine outlet temperature gauge was normal wear and tear which, if not adversely affecting flight safety, is not considered an airworthiness violation,[64] (3) that insofar as the tachometer did not have a yellow caution range marking, the standard for pilots in charges of operating an unairworthy aircraft is not one of strict liability and there is no evidence the respondent knew or should have known that the colored yellow arch was required,[65] (4) that to the extent a placard was missing from the cockpit, the Administrator did not establish the respondent knew or should have known the placard was required.[66] The decision of the Board in Frost is important when an airman is the target of the action because the Board applies a reasonableness standard and the Administrator must show the pilot knew or should have known of the alleged defect in the aircraft.[67]

F. The Scuderi Decision – A Departure from NTSB Precedent

The Board’s decision in Administrator v. Scuderi[68] may be argued to be inconsistent with the Board precedent previously discussed in this article. In Scuderi, the airman appealed a 180-day suspension of his certificate for violations, including, flying an aircraft in an unairworthy condition and careless or reckless operation of an aircraft.[69] The law judge found that Scuderi, while operating his Cessna 182, struck the wingtip of Beechcraft King Air causing damage to both aircraft.[270] The judge found Scuderi departed in his aircraft without first taking corrective action in terms of having his aircraft inspected or repaired.[71] At the time of the incident, Scuderi did not have a current medical certificate, and he failed to present his pilot’s certificate, medical certificate, and other items upon the request of a local law enforcement officer.[72] New York State trooper, Robert Kreppein, who was the chief pilot for the aviation unit of the New York State Police testified that he saw the King Air lurch backwards as a result of the collision.[73] Kreppein also testified he heard the noise of the collision.[74] Finally, Kreppein testified he observed damage on the King Air and the Cessna 182.[75]

The Administrator called FAA Inspector Shapiro who testified that given the circumstances of the collision, the airman should have arranged for an internal, complete inspection of the aircraft before operating it again.[76] Even though following the incident, Scuderi’s mechanic certified the aircraft as airworthy, inspector Shapiro maintained that because the aircraft had departed in an unknown condition, it did not make Scuderi less culpable.[77]

On appeal, Scuderi maintained that the damage Mr. Shapiro referenced was merely a “scuff.”[78] Scuderi maintained that Mr. Kreppein testified he did not see any damage to the aircraft and Scuderi’s mechanic certified the aircraft as airworthy shortly after the incident.[79] Finally, Scuderi maintained that a photograph on which the Administrator relied did not show damage that would render the aircraft unairworthy.[80] The Board, in affirming the law judge’s decision declared it was “mindful of the fact that the Administrator has the burden of proving that the aircraft was unairworthy by a preponderance of the evidence.”[81] Also, the Board declared that it understood that airworthiness was a two prong standard, i.e., (1) whether the aircraft conforms to its type certificate, and (2) whether the aircraft is in the condition for safe operation.[82] Affirming the decision of a law judge, the Board declared: “. . . [W]hile the Administrator has not presented evidence to prove that Respondent’s aircraft did not conform to its type certificate, the Administrator has nevertheless shown that the aircraft was not in a condition for safe operation when respondent operated the aircraft . . . respondent’s awareness of the potentially unsafe condition leads us to conclude that his operation of the aircraft resulted in a violation of § 91.7(a).”[83] The Board went on to find that since a violation of § 91.7(a) had been proven,” . . . [W]e also conclude that respondent’s operation of the aircraft subsequent to the collision was careless or reckless, in violation of § 91.13.”[84]

In both Scuderi and Nicolai, the testimony of the Agency Inspector was that the airworthiness of the aircraft was unknown.”[85] In Scuderi, the Board did not premise the violation on the finding the aircraft did not conform to its type certificate but rather on the premise the aircraft was not in a condition for safe operation.[86] However, the Board which had disapproved of the “potentially unsafe” standard in Nicolai[87] but then said in Scuderi: “Respondent’s awareness of the potentially unsafe condition leads us to conclude that his operation of the aircraft resulted in a violation of § 91.7(a).”[88]

[14] 49 CFR § 821.32
[15] Administrator v. Van der Horst, NTSB Order EA-5179, 2005 WL 2477523 (N.T.S.B.)
[16] Id. at 1.
[17] Id. at 2.
[18] Id. at 3.
[19] Id.
[20] Id.
[21] Id.
[22] Id.
[23] Id.
[24] Id.
[25] Id.
[26] Id.
[27] Nicolai v. Administrator, NTSB Docket No. 108-EAJA-SE-10353 (1993).
[28] Id. at 2.
[29] Id.
[30] Id.
[31] Id. at 2, 3.
[32] Id. at 1.
[33] Id. at 4.
[34] Idat5.
[35] Id. at 6.
[36] Id.
[37] Id. at 6.
[38] Id.
[39] Id. at 7.
[40] Id.
[41] Administrator v. Thibert, N.T.S.B. Order No. EA-5306 (2007).
[42] Id. at 1,2.
[43] Id. at 2.
[44] Id. at 3.
[45] Id.
[46] Id. at 3, 4.
[47] Id. at 4.
[48] Id.
[49] Id. at 4, 5.
[50] Id. at 5.
[51] Id.at6,7.
[52] Administrator v. Calavero, 5 NTSB 1099, NTSB Order No. EA-2321, 1986 WL 82413 (N.T.S.B.)
[53] Id. at 1.
[54] Id. at 3.
[55] Id. at 2.
[56] Id. at 2.
[57] Administrator v. Frost, NTSB Order No. EA-4680, 1998 WL 400002 (N.T.S.B.)
[58] Id. at 1.
[59] Id. at 2.
[60] Id.
[61] Id. at 3.
[62] Id. at 1.
[63] Id. at 1, 2.
[64] Id. at 2.
[65] Id.
[66] Id. at 3.
[67] See Frost supra at 2 citing Administrator v. Parker, 3 NTSB 2997, 2998 (1980).
[68] Administrator v. Scuderi, NTSB Order No. EA-5321, 2007 WL 2846495 (N.T.S.B.).
[69] Id. at 2.
[70] Id.
[71] Id.
[72] Id.
[73] Id.
[74] Id.
[75] Id.
[76] Id.
[77] Id.
[78] Id. at 3.
[79] Id.
[80] Id.
[81] Id.
[82] Id.
[83] Id. at 4.
[84] Id.
[85] Scuderi at 2; Nicolai at 5.
[86] Scuderi at 4.
[87] Nicolai at 5.
[88] Scuderi at 4 (italics supplied).