On Memorial Day weekend, the world of Wayne and Dana Carr turned upside down. FAA inspectors hit their company, Air Trek air ambulance of Punta Gorda, FL, with an Emergency Order indefinitely suspending the Part 135 carrier’s Air Carrier Certificate. It was followed by a revocation on June 10. On October 17, NTSB Administrative Law Judge William A. Pope II issued an oral initial decision reversing the FAA emergency order, a ruling subsequently appealed by FAA. By December, Air Trek officials expect to know their fate. “We want to get back in the air; it’s as simple as that,” relates Wayne Carr.
[The Federal Aviation Adminis-tration declined to comment on the Air Trek case; however, an agency spokesperson offered a clarification: “According to our General Counsel’s office, the NTSB judge did not rule ‘in favor’ of Air Trek. The judge changed our emergency order of revocation to an order of suspension, pending Air Trek’s ability to demonstrate compliance with FAA regulations. The FAA has appealed the ruling, so the revocation technically remains in effect until the judge rules on the appeal...which, of course, could go in the FAA’s favor.”]
According to Carr, the situation came about as a result of an FAA hotline complaint filed by a former disgruntled employee. “In the summer of 2006 one employee filed an FAA hotline complaint,” explains Carr. “That complaint was totally investigated by our local FSDO [Flight Standards District Office]. It was in reference to maintenance recordkeeping. Over the course of this hearing we’ve gotten copies of the records where it had been totally investigated and finding no fault or improprieties by our company. That came out during the hearing.
“That same employee also filed a complaint with the Department of Defense, who we had a contract with for air ambulance. They looked at it and thought there was nothing there, until a competitor went to them with information claiming that we were fraudulently signing pilots’ names into maintenance logs. The DOD investigated us in February; at that point they confiscated some of our maintenance logbooks, which we’ve gotten back since.”
That activity, he says, sparked an investigation by an FAA Special Emphasis Investigation Team, or SEIT [pronounced ‘See-It’]. Carr says a SEIT team had earlier investigated Air Trek in January of 2006.
“They found no problems,” he says. “Also, as part of their preliminary investigation leading up to this SEIT team inspection done in May, they requested information from our local FAA. I have a copy of a letter from our primary operations inspector at the Tampa FSDO, to Atlanta, explaining to them that he had inspected us in excess of 20 times over eleven months and found no problems. In February, we passed a surprise full-base inspection; he did it a week ahead of schedule.
“So here we go from a company that at that point was 29 and a half years old, had never had one violation in that time, which alone is pretty phenomenal. We had just passed a base inspection.
“Then this SEIT team comes in in May and based on a week-long inspection, they felt they had enough against us to warrant a suspension.
“Obviously, if we knew we really did something wrong, we wouldn’t be in a position to fight it. But none of this stuff was correct. They were claiming that airworthiness directives weren’t completed that had been completed. One of their charges was that we hadn’t complied with an airworthiness directive that wasn’t even applicable to our aircraft.”
The October 17 decision followed a nine-day hearing in Washington, D.C. Representing Air Trek was Gregory S. Winton, Esq. of Rockville, MD-based Aviation Law Experts, LLC. Winton is a former FAA and Department of Justice attorney who works exclusively in aviation law.
Comments Winton, “In this particular case, during the closing argument, we argued why this case is different from other cases in which revocation was found. We cited two other cases, and those also were my cases. So, here I am before a judge arguing two cases I handled, telling you why this one doesn’t apply and you should not find revocation. Ultimately, the judge agreed.”
Winton says he is optimistic about the outcome. “FAA has 50 days to actually file an appeal brief,” he explains. “The likelihood of them continuing with the appeal brief is slim, I think. The people who make the decision are at FAA headquarters, and once they read the judge’s written decision they may reconsider.”
Central to the judge’s ruling was his issue with the credibility of witnesses, says Winton.
“The judge did make a lot of what they call credibility findings on the part of the witnesses; specifically, on an appeal the NTSB will not overturn the law judge’s credibility determinations, because the NTSB says the judge was in a better position to view the person as they testified to determine whether or not they were telling the truth.
“The legal issues in which they can appeal are pretty limited. I think the FAA will withdraw their appeal; or, if they do go through with the filing of an appeal brief, they would not win with that.”
Both Carr and Winton relate that they see it as FAA having an overheated inspection regime of late.
Comments Carr, “This whole ordeal has been nothing but the FAA dragging us out. Quite frankly, I’m convinced that this is part of their modus operandi. If they can’t put you out of business with their trumped up accusations, then they’ll put you out of business by just dragging it out.”
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