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Source: AviationLawExperts.com
Gregory S. Winton, Esq.

NTSB Reverses FAA Revocation Order Issued Against Air Trek;
30-year Air Ambulance Operator Wins Against FAA

Tue, 21 Oct '08
Aero-News.Net

An NTSB Administrative Law Judge, William Pope, has issued an oral initial decision reversing an Emergency Order issued by the FAA on June 10, 2008. The Emergency Order revoked the Air Carrier Certificate held by Air Trek, Inc., an air ambulance operator based in Punta Gorda, FL. The nine (9) day hearing took place during three separate sessions over a five week period.

According to Legal Counsel for Air Trek, Inc., the case initially began five months ago on May 23, 2008, when the FAA first issued an Emergency Order indefinitely suspending Air Trek's Air Carrier Certificate pending compliance with the Federal Aviation Regulations (FARs). Prior to the suspension, Air Trek had been in operation for 30 years with no violation history. On May 24, 2008, Air Trek retained counsel and immediately appealed the suspension order.

On June 5, 2008, less than two weeks following the emergency suspension, and while litigation was in progress, FAA attorney Brendan Kelly, Esq., ordered a surprise inspection of Air Trek's Punta Gorda facility for the stated purpose of obtaining additional evidence to "push the case from suspension to revocation." When two FAA inspectors arrived at Air Trek's facility unannounced, the company had already ceased operation and surrendered its Air Carrier Certificate pursuant to the emergency order. Accordingly, the FAA inspectors stated that they were going to inspect aircraft and records pursuant to 14 C.F.R. Part 91 only.

Since the company had already retained counsel concerning the suspension, Air Trek's Director of Operations, Dana Carr, suggested that the FAA inspectors wait at a nearby airport diner while he contacted his attorney. However, before Air Trek's attorney could coordinate an inspection, the inspectors reported to Mr. Carr that they had been instructed by the Special Emphasis Inspection Team (SEIT) leader to abort the inspection and return to home base. Although the inspection never took place, the FAA withdrew its suspension order and issued an Emergency Order of Revocation instead.

The law judge found that since Mr. Carr had initially suggested that the FAA inspectors leave Air Trek's facility while he attempted to contact his attorney, a technical violation of 14 C.F.R. section 119.59 had occurred (i.e., refusal to allow an inspection). However, he stated that any apparent violation was "de minimus" (i.e., "of minimum importance" or "trifling") and did not warrant revocation.

By the fourth day of the hearing, the FAA had withdrawn 6 of the 10 Counts in the revocation order and dismissed 9 of the 14 regulatory violations. At the termination of the hearing, the remaining two findings of violation by the law judge related only to flight operations that occurred at Air Trek's Winchester, Virginia (OKV) base of operations, which had been closed since January 2007 (more than 1 1/2 years prior to issuance of the revocation order).

Specifically, the law judge found that the Winchester pilots did not follow the company's Operations Specifications and General Operations Manual concerning the reporting of mechanical irregularities and calculation of weight and balance. As a result, the law judge found a violation of 14 C.F.R. sections 119.5(g) (i.e., violation of operations specifications), and a residual violation of 91.13(a). These findings were limited to the Winchester pilot operations only.

Throughout his decision, the law judge credited testimony from Wayne Carr, Air Trek's President and Chief Pilot, finding that regulatory violations by the Winchester pilots were not "directed, caused, or permitted" by management. As a result, the FAA did not present evidence to support a finding that Air Trek "lacks the qualifications necessary to hold an Air Carrier Certificate", as alleged in the revocation order. By contrast, the law judge found the testimony of former Winchester pilots, Garrett Lunde and John Roberts, to be unreliable. He found that both pilots were obviously biased against Air Trek's management, and therefore, were not credible.

The current practices of Air Trek pilots to report mechanical irregularities either verbally or by placing a hand written note in a vice located in the maintenance shop, as well as the use of an Excel computer program to calculate weight and balance, were found to be in accordance with the company's Operations Specifications, General Operations Manual, and the Federal Aviation Regulations.

The judge held that the FAA failed to present any evidence that aircraft were actually operated in an unairworthy condition, as alleged throughout the revocation order. Nevertheless, he ordered that Air Trek's certificate be suspended until the company provides adequate safeguards to ensure ongoing future compliance with the Federal Aviation Regulations.

Air Trek was represented by Gregory S. Winton, Esq. of Aviation Law Experts, LLC, along with co-counsel, Darol H.M. Carr, Esq. of the Farr Law Firm located in Punta Gorda, FL.

According to Mr. Winton, "this case is just another example of an inadequate FAA investigation leading to protracted litigation without substantial justification. In fact, during the hearing the law judge described certain allegations as 'absurd'." As a result, Air Trek will apply for reimbursement of attorney fees and expenses pursuant to the Equal Access to Justice Act (EAJA).

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Gregory S. Winton, Esq.
AviationLawExperts.com
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Phone: 301-529-5660 (Direct)
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