Recently a case came down out of the U.S. Court of Appeals for the D.C. Circuit in Washington that caught my attention. It supported an individual’s right to seek immunity from certificate action or civil penalties under the terms of AC 00-58b. He was successful. Here is the story.
Basically AC 00-58 was written to induce air carriers and other certificated entities to fess up and voluntarily disclose their violations of the FAR to the FAA before they are detected by FAA inspectors. The FAA believed that the open sharing of apparent violations and a cooperative as well as an advisory approach to solving problems would enhance and promote aviation safety. It was designed primarily for air carriers and not individuals, except in narrow circumstances. By complying with the terms of the AC, air carriers and in some cases employees can be protected from any certificate action or other penalty much like the Aviation Safety Reporting Program (ASRP) (AC-46b) supervised by NASA at Moffett Field in California.
We all might recall the recent Southwest Airlines flap over AD compliance on its B737 fleet and how SWA attempted to avoid sanctions by filing a statement and hoped to self-disclose the violations. The terms of 00-58b clearly state however that you must self-disclose before the FAA becomes aware of the violations. In this case of course the FAA was advised directly by whistleblowers who were in fact FAA employees. Thus SWA could not comply with the requirements for immunity from sanction. As I recall, there were no particular actions brought against any individual employees of SWA anyhow, so the issue was not present. The company recently agreed to pay $7.5 million as a civil penalty to close the case. AC 00-58 did not provide any immunity.
The employee in this case was a pilot flying for the Part 135 air-freight company. A common problem among some operators is the reluctance of some pilots to log mechanical discrepancies in the aircraft log either during flight or at the end of their flight activities for the day. The reason being that if the discrepancies were logged it might result in the aircraft being grounded at a remote station, causing great inconvenience and additional operating costs to get to it and have maintenance fix the problem. Sometimes it was found that the carrier itself may have encouraged this procedure and in others it was confined to a maintenance department practice.
This failure to log discrepancies is usually a clear violation of FAR 135.65b or 121.563 which has similar language: “The pilot in command shall enter or have entered in the aircraft maintenance log each mechanical irregularity that comes to the pilot’s attention during flight time …”
While on a revenue flight the pilot had a problem getting the landing gear down. After landing he told a mechanic about his problem and the mechanic said that it was because of the cold weather. He did not enter anything in the aircraft logbook about the problem nor did he tell any mechanic to log it. On a subsequent flight he had further problems getting the landing gear to extend. He told another mechanic about it and this mechanic also said that it was a cold weather problem. There was no log entry made by this mechanic. But, he did pass on the pilot’s report to maintenance supervision and scheduled the aircraft for an inspection in several days. Still no log entry was made by anyone. Before the inspection of the landing gear another pilot took the plane on a revenue run and had the same difficulty getting the gear down. He landed safely and the inspection found the landing gear was damaged from the start causing the landing gear extension difficulty.
The company decided to self-disclose its failure to get on the landing gear problem immediately, because of the obvious seriousness of the problem. The FAA had not detected this discrepancy yet so the company was in compliance with the 00-58 self-disclosure rule in that regard. In the company’s report it also disclosed that the pilot did not make the appropriate log entries concerning the landing gear problem, expecting that he would be protected from any punitive action by the FAA because of the company’s self-disclosure. (The pilot had not filed any Aviation Safety Report, in accord with AC 00-46.)
The FAA accepted the self-disclosure and so did not take any action against the airline or the mechanics involved. However, the first pilot was hit with a certificate action complaint suspending his pilot’s license for 60 days. He alleged as an affirmative defense that the certificate action was barred by the self-disclosure. The Administrative Law Judge (ALJ) at his hearing thought otherwise and imposed the sanction. The pilot appealed to the NTSB. It agreed with the hearing officer. Suspension upheld. He then appealed to the U.S. Court of Appeals for the D.C. Circuit. The Circuit Court reversed the decision.
The ALJ stated that he lacked jurisdiction to hear and consider the pilot’s affirmative defense, and refused his effort to introduce evidence showing how he had complied with the self-disclosure program. Since this was his only defense, the ALJ upheld the suspension of his license. The board upheld the ALJ’s suspension. As an aside, the board said that even if they had jurisdiction to hear the pilot’s self-disclosure affirmative defense he may not have satisfied the specific requirements of the voluntary disclosure rules anyway.
The U.S. District Court ruling
Among other statements, the FAA reiterated the argument …”that 00-58 is unavailable to the pilot because it purportedly “does not relate to the sanctions to be imposed.”
The court said that: … ”we find unreasonable the efforts of the FAA and the Board to attempt to evade AC 00-58 in this way.
… ”We think that a Circular (00-58) that says no sanction will be imposed in a case of voluntary disclosure is quite obviously “related to sanctions”…
The court in its analysis was trying to be kind to the ALJ and the board and at the same time setting down the rules for employee coverage of the voluntary disclosure program and the immunity attached to it.
The FAA obviously does not like the “breadth” and reach of the 00-58 program as far as immunity goes. It thought it had taken sufficient steps in its drafting to limit and narrow its application only to the air carrier or corporate entity. However, this court clearly states that as long as the employees are acting and have acted, in furtherance of the company deficiency (violation) and that causes it (the company) to be in violation of the regulations then they should be granted immunity with the company under the self-disclosure program.
The rules of the self-disclosure program also state: “The voluntary disclosure policy does not apply to the airman or other agent when his apparent violation is the result of actions unrelated to the employing entity’s deficiency.” AC00-58b para. 13(2).
So, yes, there might be some argument that the pilot’s actions in not reporting flight or other irregularities in the logbook were unrelated to the company’s maintenance conduct. So that he was somewhat removed from the carrier’s deficiencies in regard to its maintenance practices. If this argument prevailed he would be denied immunity under any 00-58 filing.
What you should do
If you work for an air carrier or other certificated entity and suspect you might be nailed for a violation, along with your company … get the company chief inspector or director of safety to file an AC 00-58 self-disclosure statement immediately. It has to comply with the requirements outlined in the AC and of course your own violation or deficiency must be tied up with the company’s involvement. In other words your error must be directly related to the company deficiency.
If you can’t tie your violation to a company deficiency at least file a NASA safety report in accord with the AC 00-46 Aviation Safety Report Program. You should seek protection under either or preferably both programs.
But be aware that if you are covered under an acceptable 00-58 self-disclosure program you most likely will have no record of an FAR violation in your personal file at the FAA simply because it is buried in the company self-disclosure and there was no complaint filed against you personally. In essence any attempt at enforcement action would be invalidated by the self-disclosure program.
On the other hand, keep in mind that your 00-46 safety program filing is private and anonymous. If a complaint for certificate action is laid on you there will always be a record of the violation in your personal file at the FAA, even though you may be immune from sanction because of your valid NASA filing. There is some dispute in this area and many would maintain that any complaint filed after a safety report filing would simply be invalidated (no record) from its beginning. Although there seems to be a lack of cases on the point there is abundant dicta (court discussion) that suggests invalidation. There seems to be abundant authority to invalidate the attempt at enforcement. Forward your comments to email@example.com.
Stephen P. Prentice is an attorney whose practice involves FAA-NTSB issues. He has an Airframe and Powerplant certificate, is an ATP rated pilot, and is a USAF veteran. E-mail: firstname.lastname@example.org