FAA Abandons Appeal in Failed Prosecution of Counterfeit Aircraft Parts Case

by Aug 16, 2016FAA, Legal, NTSB

Press Release



FRIDAY, AUGUST 19, 2016:

Yesterday, the Federal Aviation Administration withdrew its appeal from an Initial Decision of Judge Stephen R. Woody of the National Transportation Safety Board exonerating an airman from charges that he had put into service counterfeit aircraft parts. The case was tried over the span of two weeks between September 8, 2014, and September 18, 2014, in Charlotte, North Carolina before Judge Woody. The transcript of the trial consumed 2,414 pages. The Administrator placed into evidence approximately 230 exhibits, while the airman placed into evidence approximately 154 exhibits. Due to the complexity of the case, Judge Woody ordered the parties to file their closing arguments in the form of written briefs that were submitted in December 2014.

On July 22, 2016, Judge issued an Initial Decision consisting of 147 pages. The Administrator brought two counts in his Complaint. Count I related to false representations on FAA documents that would authorize the revocation of the airman’s aircraft and powerplant certificate. At trial, counsel for the airman conceded Count I of the Complaint and maintained the only certificates that should be revoked were the aircraft and powerplant certificate and his inspection authorization certificate. However, in Count II of the Administrator’s Complaint, a lifetime revocation of all of the certificates of the airman was sought, including his commercial pilot’s license. The Administrator maintained that the airman had returned to service an oil pan with a hole in it and had returned to service a crankshaft subject to an airworthiness directive that required the crankshaft be removed from service at the time of engine overhaul.

Judge Woody rejected the contentions of the Administrator in Count II of the Complaint seeking a lifetime revocation of all airman certificates concluding that based upon his credibility determinations, the FAA had failed to make out a case for a lifetime revocation under the pertinent fraudulent aircraft parts statutes, 18 U.S.C. §38 and 49 U.S.C. §44726.

After issuance of Judge Woody’s 147 page Initial Decision exonerating the airman with respect to the lifetime revocation charges under Count II, the Administrator of the FAA filed an appeal with the National Transportation Safety Board from the Initial Decision on August 1, 2016. The Administrator then filed a Motion for Extension of Time to file its appeal brief that was due within 30 days of the date of Judge Woody’s Initial Decision. The airman opposed the Motion for Extension of Time, and the General Counsel of the NTSB, on August 11, 2016, denied the Administrator’s Motion for Extension of Time.

On Thursday, August 18, 2016, the Administrator withdrew its appeal with the result that the Decision of Judge Woody on Count II of the Complaint exonerating the airman from a lifetime revocation of his certificates stands.

The airman was represented by Alan Armstrong, an aviation lawyer practicing in Atlanta, and Bruce Brandon, an aviation attorney who practices in North Carolina. The case against the airman is the second time the Administrator has failed to prevail in a lifetime revocation charge based upon the counterfeit aircraft statutes.

In most instances, a charge of counterfeit aircraft parts is brought in Federal District Court as a criminal charge under 18 U.S.C. §38. The government bears the burden of proving its case beyond a reasonable doubt. If the government prevails, the airman suffers a lifetime revocation under 49 U.S.C. §44726(a).

This case was different. No criminal charge was brought in Federal District Court. There was no proof of a violation of the counterfeit aircraft parts statute beyond a reasonable doubt. Instead, the FAA sought a lifetime revocation before the NTSB that applied a lower burden of proof – proof by a preponderance of the evidence – which is a civil standard, not a criminal standard. The statute, 49 U.S.C. §44726(b), in theory permits the FAA to win a lifetime revocation using a lower (civil) burden of proof if the judge finds the airman acted with intent to defraud.

Before trial, the airman filed several pretrial motions and moved to dismiss the counterfeit aircraft parts charges asserting due process required the application of a criminal burden of proof standard that could only be applied in a criminal prosecution in Federal District Court. The defense was asserted the lifetime revocation statute, when applied in civil proceedings before the NTSB, violated the airman’s rights to due process of law under the Fifth Amendment. Judge Woody denied the airman’s pretrial motions.

The successful outcome for the airman marks the second time the Administrator has failed to succeed in counterfeit aircraft parts charges litigated before the National Transportation Safety Board. The first time the Administrator failed was in the case of Administrator v. Therol Wayne Law decided in 2009. In the Law case, the Administrator failed to carry its burden of proof at trial, filed an appeal and then withdrew the appeal. Mr. Law then succeeded in recovering attorney’s fees under the Equal Access to Justice Act.

The airman’s lawyer, Alan Armstrong, noted that the FAA pushed the counterfeit aircraft parts statute to the limit in pursuing charges before the NTSB. Mr. Armstrong noted that the victory is a victory for all aviators for the reason that if the FAA wants to impose a lifetime revocation of an airman’s certificates for counterfeit aircraft parts, the proper venue is Federal District Court where the government bears the burden of proving its case beyond a reasonable doubt. The victory in the present case underscores the fallacy of litigating a criminal statute with a lifetime revocation penalty in a civil tribunal with a lower (civil) burden of proof. The proper venue for the lifetime revocation charges is in Federal District Court employing the criminal statute on counterfeit aircraft parts, and the criminal burden of proof of beyond a reasonable doubt.

The airman expressed appreciation to his attorneys, Mr. Armstrong and Mr. Brandon, for their effective defense of the charges brought by the FAA in the Agency’s attempt to secure a lifetime revocation of his certificates.

Further information on this significant case may be found on the docket of the National Transportation Safety Board in the case of Administrator v. Randall E. Bernard, NTSB Docket No. SE-19640.

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