What Do You Have to Do to Get Fired?

If you have been reading the papers lately you no doubt have come across the flap over Southwest Airlines’ failure to perform a certain Airworthiness Directive related to 46 of its 737 aircraft. It is the one that came out after a single accident in 2001 when a fish hauling-passenger Aloha 737 lost part of the skin from its fuselage and wing due primarily to fatigue and corrosion. The AD also concerned cracks in the wing and fuselage skin structure (AD 2004-07-08 recurrent fatigue and corrosion inspections).

Well, as you know, some politicians suggested that Southwest elected to go slow on the mandated recurring inspections probably because the continuing nature of the AD takes many aircraft out of service and therefore reduces revenue. SWA said that its overflight of the AD inspection requirements was simply inadvertence and they “self-disclosed” (AC 00-58) this to the FAA in early 2007. Overflight simply means that the airline flew an aircraft beyond the time within which to complete the inspections. In this case it was reported that there were 46 aircraft involved. Some FAA inspectors on the scene apparently were aware of this problem before the self-disclosure and informed their superior who apparently did not do anything about it. The fact is that all of the required inspections have been completed and will continue to be completed as the time requirements are scheduled.

When the information got out from a whistle-blower, the company was hit with a Notice of Violation and a proposed fine of $10 million. It was said that it had violated Title 14 Section 39.7 and 121.153a2. …”Round up the usual suspects …”.

AD 2004-18-06
AD 2004-18-06 followed 2002-07-08, the original AD resulting from the Aloha accident in 2001. The later AD provided for further repetitive inspections to find out if there was more fatigue cracking in the upper and lower skin panels of the fuselage, and added further instructions on repairs and other corrective actions as necessary. The inspections also required certain additional eddy current inspections of parts of the fuselage.

In the process of getting the proposed 2004 AD on the books there was good reason to challenge this follow-on AD that came after AD 2002-07-08. There were extensive negative comments to this proposed AD by industry. This later AD provided for recurrent eddy current inspections of the affected parts of certain of the 737s. These inspections are expensive and time-consuming. The objection to this add-on AD was that it required both external detailed and eddy current inspections on a continuing basis. This was beyond what the Boeing company required in its companion service bulletin on the subject. It added additional work time to complete the mandate of the later AD. Needless to say, it also added extensive cost increases to the inspection process, no doubt beyond even what Boeing had anticipated. The requirements were nonetheless included in this airworthiness directive with minor modifications and it remains complex, time-consuming, and expensive to perform.

Criminal action?
So far there are no sanctions against anybody noted in the press. The only FAA action was that the FAA inspectors who complained about the problems early on, were removed from their job or asked to take a transfer. A third FAA inspector was removed from his job supervising at SWA. Wait a minute … is this not a violation with FAA involvement?

Congressman James Oberstar, D-MN, at a recent hearing on the case, said that …”FAA managers’ actions displayed malfeasance bordering on corruption,” and added that, “… if presented to a grand jury, the evidence would result in an indictment.”

Years ago in A&P school I was taught that an AD was Federal Law and that its violation could subject one to criminal prosecution. ADs, we were told, were different than mere FAA regulations. They were a notch above them.

The instructor taught that ADs were extremely important to follow or else dire things would result ... i.e. loss of A&P certificate, fines, and or criminal prosecution. So who’s being prosecuted?

We don’t have to go back too far to recall that there was criminal action taken against maintenance people and technicians, e.g. Eastern Airlines, Valujet, where serious airworthiness issues were involved in accidents or threats of accidents.

Criminal penalties are nothing new in the air carrier business. But they are usually aimed by FAA at technicians and others in the business. In addition to the cases mentioned, there were threats of criminal actions in the Alaska Airlines case. And we all remember the raids by U.S. Marshals and other law enforcement people in the Sun-jet Payne Stewart accident in Florida. Criminal penalties that threaten FAA managers however, as noted by Congressman Oberstar, would be something new.

Advisory Circular 00-58 self-disclosure
SWA made a self-disclosure under the instructions of AC 00-58 admitting that it may not have been in compliance with AD 2004-18-06 and that the recurrent inspection requirements of the AD may have been overflown by some of its aircraft. The self-disclosure program only applies to air carriers and is routinely used in an attempt to avoid sanctions when and if the FAA finds out about the violations. There are limitations to the rules governing sanctions exemption however.

The theory behind the self-disclosure process is that if a company finds it violated the regulations and reports these violations to the FAA before the FAA finds out about them there will be a certain level of immunity from sanctions when corrective action is prompt and effective. However, it must be clear that there is no guarantee of immunity contained in Advisory Circular 00-58, only that the FAA may dispense with a sanction if the conditions of application are satisfied. The process is designed for safety and to encourage self-disclosure by air carriers to further the overall safety mandate. The violations must be non-intentional and a process for correction has to have been started. As has been stated in the newspapers, some have described this process as a “get out of jail free” program. It clearly is not and it certainly does not insulate against any criminal charges. Even when there are no problems with the conditions of application, the FAA still has the power and discretion to impose sanctions, as it has against SWA. It is not a way to guarantee a company against sanctions for violations but it may help to mitigate sanctions.

The problem
Further recent newspaper reports say that some longtime inspectors testified before Congress that the FAA allowed SWA to fly the uninspected aircraft and continued to allow it to fly these aircraft even after defects were found. These facts, if true, should torpedo the whole FAA enforcement action against SWA and should open the door to serious sanctions against certain FAA employees. I would have little difficulty in constructing a defense in a case such as this simply because of the FAA’s conduct. This case will probably never come to a hearing where sworn testimony would be taken. I predict the case will be quietly withdrawn or compromised at an appropriate time.

The inspectors said that their FAA bosses were informed when they complained about the overflights of the AD requirements, but that they were told to hold up on pursuing safety issues under threats to their jobs!
There are two issues at work here. One, the self-disclosure was probably made too late. The FAA already knew of the overflights of the AD requirements but did not take any action. In my experience it usually does not make your case worse by self-disclosing and still may help to mitigate any sanction. The inspectors knew all along and informed their boss … the FAA.

On the other hand, if the FAA knew about the violations and acquiesced in the continuing violations then it could be said it agreed with a de facto extension of time within which to complete compliance. There is even a suggestion that FAA personnel may have had an agreement to allow the overflight extension of times. If this is true and the extension to comply was allowed with a wink and smile then serious repercussions may occur involving the FAA and the personnel involved, as stated in Representative Oberstar’s committee hearing. The ironic part is that extensions of time are sometimes routinely granted formally when there is reason to do so.

By the time you will be reading this piece more information will be available about what the FAA did and who did it. Congress will pursue the facts in this case until the bureaucrats fess up. One of Oberstar’s committee members, Representative Edie Bernice Johnson, D-TX, asked Nick Sabatini, Associate Administrator, if the FAA manager who told SWA to keep on flying its aircraft (beyond the inspection deadlines) was still on the FAA payroll. He replied “yes, ma’am.” “What do you have to do to get fired then?” she asked.

I believe the SWA enforcement action will disappear as being unfounded and ill-conceived. Send your comments to aerolaw@att.net.

Stephen P. Prentice is an attorney whose practice involves FAA-NTSB issues. He has an Airframe and Powerplant certificate and is an ATP rated pilot. He worked with Western Airlines and the Allison Division of GMC in Latin America, servicing commercial and military overhaul activities and is a USAF veteran. E-mail: aerolaw@att.net