Expert Witness overcomes FAA’s Presumed Knowledge in SkyWest Maintenance Case

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FAA v. SkyWest Airlines–NTSB ALJ Goodwin Opinion 2010nm060081-initial-decision-alj


The decision to contest an FAA civil penalty decision before an NTSB Administrative Law Judge is a difficult one. At a minimum, litigation incurs legal fees and consumes the time of the company’s witnesses while all of those costs are fixed for the government. At worst, there may be hidden reactions by the FAA to the challenge of their position without regard to whether the petitioner wins or loses. SkyWest did the mental calculus between letting a bad FAA decision stand or going to the NTSB.

They challenged a Civil Penalty assessment which alleged that an aircraft was operated in an unairworthy state because one of the company’s mechanics used the Quick Reference Handbook (QHR) to reset the air conditioning pack, an “operational” document. The FAA contended that the mechanic could not rely on such a document, rather than its Continuous Airworthiness Maintenance Program, for a maintenance action.

At the hearing, the company called its Director of Quality (and a qualified A&P mechanic with experience on the CRJ-200) who said that the airplane had known problems relating to the air conditioning pack and the QHR established an appropriate response to the condition which the pilots experienced.

Another witness was called as an expert, Craig Fabian, ARSA counsel and also an A&P. His testimony characterized the mechanic’s logbook entry, referencing the QRH, as a “mixture of maintenance.” His expert witness opinion was that the aircraft was airworthy.

ALJ Goodwin found that the FAA failed to meet its burden. Specifically he determined that Mr. Fabian’s explanation was both “pity and persuasive.” The Judge also concurred with Mr. Fabian’s opinion that mechanics may refer to operating manuals.

What is telling here is that the Judge’s opinion relied almost exclusively on the outside expert’s conclusions and virtually ignored the interpretation of the FAA’s Aviation Safety Inspector. The experience of Mr. Fabian and the way in which he articulated his opinion as a lawyer and an A&P overcame the presumed expertise of the FAA.

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