Deference to FAA’s Safety Knowledge may have impacted ATS; Involvement of Independent 3rd Party Expert may balance the Proceeding

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ARTICLE: Everett Aircraft Maintenance Company Agrees To Pay $275,000 and Implement Enhanced Compliance Policies

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The FAA has a substantial advantage, whether its inspectors are appearing before the NTSB or a federal district court. Beyond any statutory or regulatory rules, an FAA inspector has a certain presumption of authority when he or she testifies.

The press release, issued by the US Attorney about Aviation Technical Services’ agreement to pay $275,000 in civil penalties, makes it clear that the Everett company did not admit to violating any Federal Aviation Regulations. Why then did it agree to pay such a substantial fine?

It is presumed that the repair facility was aware of the deference a federal district court would give to the FAA employee, who would testify about what was allegedly done wrong. The language, which is used by the FAA in issuing an airworthiness directive (AD) and/or the manuals of the manufacturer of the airplane, is always very technical. The wording is usually very complicated in describing the specific techniques to be used. These texts often vary between very vague and incredibly detailed.

The triers of the facts are not likely to be familiar with the terms and the phraseology. The interpretation espoused by the FAA person will be given some credibility because, after all, their job is safety.

On the other hand, if the company is so presumptuous to challenge the FAA and to offer the company’s technical expert on the subject, that witness is not cloaked with the same credibility as the fed. The employee works for a profit making organization and any deviation from the FAA gospel will be characterized as a short cut from the FARS.

If the repair station takes this option, the possible results are a larger penalty than could be agreed to in a compromise settlement. It is also very likely that the trial will get added negative press.

Unfortunately, precisely this FAA leverage often precludes forceful litigation in defense of the company’s practices and procedures. A knowledgeable independent expert can explain the vagaries of the AD or manufacturer’s manual. As noted in this Skywest case, the FAA’s infallibility can be overcome.

Many of the FAA inspectors have neither benefitted from much general training on the MX rules nor are likely to have taken the OEM’s courses on its maintenance philosophy. In contrast, a consultant may have done both: worked on this aircraft in many different contexts and carefully researched the documents which were the basis for the AD or procedure.

The regulatory documents involved in these cases are not written by the descendants of Hammurabi or Thomas Jefferson. In fact, in some drafting decisions, ambiguity was intended to allow future flexibility and/or to permit permutations for unexpected problems. Those are important points which an outside expert can add to such proceedings and who are more likely to contribute to a just result.

Yes, it is correct that the legal and expert fees might exceed the dollar amount of the settlement. However, if a credible third party authority is incorporated in the early response to the FAA allegations, the financial costs may be minimized.

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