process technicality thwarts defense

​The National Transportation Safety Board is known to many of us as the government agency that investigates transportation accidents and determines the cause of those accidents in order to make changes in the industry to prevent future tragedies.  The NTSB also has a smaller function of adjudicating FAA enforcement actions to suspend or revoke FAA-issued certificates on the basis of alleged violations of the Federal Aviation Regulations.  NTSB hearings, like all trial-like legal proceedings, have procedural rules that need to be followed.  As you’ll see in the noted case, a failure to follow the rules can seriously handicap a respondent’s (defendant) ability to mount a defense. 
 
The case at hand, which was decided on final appeal by the full NTSB in July of 2021, involves an A&P mechanic whose certificate was suspended 180 days for a violation of FAR section 43.13(a) relating to an allegedly improper repair of a nose strut and the non-repair of flap damage on a Cessna 172.  While we will address some of the details of the repair issues, additional focus will be on the importance of adhering to the procedural rules for an NTSB appeal hearing—rules which are established for the benefit of all parties.  Non-adherence to certain rules in this case, hindered the mechanic’s attempt to refute the FAA’s allegations. 
 
Back in 2016, the FAA ramp-checked a Cessna 172 owned by a flight school.  The FAA inspector identified two issues requiring maintenance: severe corrosion on the nose gear strut and severe chafing on the leading edge of the left-wing flap. The inspector returned a week later to conduct a follow-up inspection and found the airplane still in maintenance.  He observed that the nose strut was now painted half-way up the chrome and that the flap chafing/gouging had not been addressed.  A few weeks later, the inspector conducted a third follow-up inspection and subsequently issued a condition notice identifying the continued presence of strut corrosion and noting that it was “an imminent hazard to safety.”  He did not reference the flap issue.  An ensuing investigation revealed that the mechanic had previously approved the aircraft’s return to service with the following maintenance record entry: “Removed corrosion on nose strut and treated per Cessna SRM 51-11-00-6 page 5…” and “[a]djusted upper TE Wing to Flap clearance and Ops Check-OK.”
 
Ultimately, the FAA issued an Order of Suspension of the mechanic’s A&P certificate based on their assertion that the repairs were contrary to the regulations.  The mechanic appealed the FAA order to the NTSB.  Initial appeals are heard by an NTSB administrative law judge and further appeals (at the NTSB) are heard by the full NTSB, sometimes referred to as the full board.  At issue, as noted above, was the FAA’s contention that the respondent-mechanic had improperly performed repairs on the nose strut chrome area and did not repair the gouging on the left-wing flap.  The respondent-mechanic, on the other hand, contended that the FAA and the manufacturer give mechanics discretion on making repairs and his determination to conduct an interim repair (he did ultimately replaced the strut) was based on his experience as an engineer and mechanic.  He did not believe the that the structural integrity of the strut was compromised.  As for the wing flap, the respondent-mechanic had adjusted the flap for proper clearance and maintained that the surface damage was negligible and didn’t require repair. 
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Here’s where the procedural issues come into play.  In the normal course of an NTSB appeal, or for that matter most any legal proceeding, there is a preliminary process for filing pleadings, making discovery requests, answering interrogatories, disclosing witness information, identifying evidence, and so forth.  The judge assigned to the case oversees all this pre-hearing activity.  The mechanic-respondent and his attorney were initially responsive to the process requirements, but for reasons not clearly indicated in the hearing record, the mechanic-respondent and his attorney failed to provide adequate details such as the identification of fact and expert witnesses and their curricula vitae (CV).  This is an important process requirement that affords the parties the opportunity to object to witnesses and/or otherwise prepare for and conduct meaningful depositions and cross-examination.  Respondent’s counsel ultimately provided a list of witness names and certain summary information, but not the detailed contact information or CVs requested.  The FAA subsequently issued a Motion to Compel Discovery and the judge granted same, providing further notice to respondent-mechanic and his attorney that submission of the noted details was required.  They never did comply.  In fact, what the attorney did do was to file a Motion to Withdraw as Counsel of Record due to a conflict of interest with his paralegal who was subpoenaed as one of respondent’s witnesses—regrettably, there’s nothing much in the case record that casts light on this highly unusual conflict issue.  Meanwhile, the FAA filed a motion to prohibit respondent-mechanic from introducing any expert testimony at the hearing since he had failed to provide this information in the pre-hearing process.  The judge granted the FAA’s motion, thus striking all of respondent’s witnesses and exhibits.  Respondent-mechanic’s new attorney requested a continuance of the hearing in order to learn about the case and get prepared to defend against the FAA’s charges, and it was denied, essentially, on the grounds that respondent-mechanic was given adequate opportunity to provide the requested information.  It didn’t seem to help that the attorney conceded that they’d be ready for the hearing in the event that the judge denied their motion, thus apparently obviating any unfairness in the judge’s decision to hold the hearing as scheduled.   

The parties proceeded to a multi-day hearing where the FAA called several witnesses supportive of its arguments and the respondent-mechanic was the sole witness for the defense.  The law judge deemed the FAA’s witnesses more credible and its evidence more persuasive than respondent-mechanic’s testimony, and he sustained the FAA’s order including the 180-day suspension.  The respondent-mechanic then appealed the judge’s decision to the full NTSB.
The NTSB board consists of 5 presidential appointees who, amongst other duties, serve as a court of appeals for airmen and certificated entities.  The board bases its decisions on the record of the hearing before the judge and appeal briefs submitted by the parties—there is no trial-like setting. 
On appeal, the respondent-mechanic alleged that the law judge: “(1) committed prejudicial error and denied his right to due process by striking his witnesses and exhibits, thus warranting a new trial or remand under 49 C.F.R. § 821.49(a)(4); (2) abused his discretion in denying his request for a continuance; and (3) deviated from law, precedent, and policy in finding for the F.A.A.” 
The full board denied the respondent-mechanic’s appeal citing, among other things, “…respondent’s own inaction and refusal to comply with the NTSB Rules of Practice and the prehearing order that prevented him from offering witnesses.”  Yes, this was a technicality, held up on appeal, that resulted in the respondent-mechanic not being able to call witnesses.  Would witnesses have enabled the respondent-mechanic to mount a more persuasive argument at the initial NTSB hearing?  Maybe.  This case is an example where a procedural rule or technicality, if you like, may have impacted the outcome of a mechanic’s certificate suspension hearing.