We publish this online Newsletter periodically, on a time-permitting basis, and subject to our professional commitments to appraise clients and colleagues of recent developments in areas in which we are primarily engaged-- --FAA/NTSB/DOT, certification and enforcement, aircraft and equipment acquisition, sales and leasing, and airports matters. We provide this information, which has been derived from reliable sources and which we believe to be current at the time, but without liability therefor. We hope that you find AVIALEX ® interesting and informative. We would appreciate receiving your feedback with any suggestions or comments. You may reproduce this Newsletter or use any information from it so long as you give us credit for same. (please see our copyright notice below).

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WHAT WE'VE BEEN UP TO

As our website reflects, our last Newsletter was published some four years ago. As we publish on a time-permitting basis and subject to our professional commitments, a four-year hiatus is probably good news. Between the aviation regulatory and litigation matters that we have handled, numerous speaking engagements (throughout the U.S., as well as in Canada and Taiwan), our other professional commitments, and, not to mention, our personal lives, it's hard to believe that four years have gone by.

©Copyright 2006, Michael L. Dworkin. All Rights Reserved.
AVIALEX and the stylized logo are Registered Marks of Michael L. Dworkin

We also have new office personnel:

Cynthia Foster joined our staff in December of 2005. Cynthia is a graduate of the University of California at Davis, where she majored in Political Science and English-receiving a dual degree with High Honors.

David Randall joined our staff as an intern during his last year at the University of Santa Clara School of Law. David is currently awaiting California Bar results so that we can make him a full-fledged associate. He's a bright guy and we expect this to happen around Thanksgiving.

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WHAT'S INSIDE

Over the past two years, we've handled the defense of a number of pilots whose airman and medical certificates were revoked and who were criminally indicted and prosecuted under a Federal program known as Operation Safe Pilot. While this program presently appears to be dormant, it has far-reaching implications for the aviation industry. Thus we have included Operation Safe Pilot-Routine Use or Governmental Abuse, which we originally wrote for The National Transportation Safety Board Bar Association.

We have also been involved in a number of general aviation crash cases. In one case in particular, issues over the applicability of the General Aviation Revitalization Act (GARA) regularly resurfaced. Steve Winter, our Paralegal, has written an excellent article, GARA: When it Comes to Products Liability, Don't Believe What the Manufacturers Claim.

We did it at Whistler a few years ago (with great success)-so we were asked to do it again - i.e., put on a mock NTSB Safety Enforcement Proceeding, which we did at the Lawyer Pilots Bar Association Summer 2005 Meeting in Mackinac Island, Michigan. Notwithstanding the fact that a certain air carrier (who shall go nameless) lost our luggage, requiring an emergency shopping spree for clothes to wear during the presentation, it went over extremely well. For your reading enjoyment, we have attached Administrator v. Winger. We hope that you not only find it interesting and informative, but get a laugh as well.

Finally, we can't vouch for its authenticity, but we have uncovered a file copy of a 1944 letter written to airlines then serving New York written by Mayor Fiorello LaGuardia. If it is true, it makes for an interesting moment in aviation and aviation legal history.

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OPERATION SAFE PILOT and the PRIVACY ACT
-Routine Use or Governmental Abuse?

Introduction

In July 2005, the U.S. Attorneys in San Francisco and Sacramento, criminally indicted 40 pilots for falsification of applications for airman medical certificates, in violation of Title 18 U.S.C. Section 1001. More or less concurrently, the FAA issued Emergency Orders of Revocation to 16 of the 40 pilots, and in at least in one instance, initiated revocation action by means of a Notice of Proposed Certificate Action.

In his Press Release, the United States Attorney for the Northern District of California, stated:

Operation Safe Pilot

40 Airplane Pilots Charged Across 5 Major California Cities in Criminal Air Traffic Safety Investigation Jointly Supervised by the United States Attorneys in Eastern and Northern Districts of California ... Defendant's Charged with Lying to the Federal Aviation administration about Disqualifying Medical Conditions and Criminal Histories in Order to Obtain Pilot's Licenses...

Although, we we cannot speak as to the specifics of each of the 40 cases, we did represent 4 of the pilots in the FAA enforcement proceedings. While we cannot condone fraud or intentional falsifications in the submission of applications and records to the FAA, or for that matter, any governmental agency, the egregiousness of the pilots' acts may very well pale in comparison to what may have been the government's violation of its own laws.

The Defendants
(obviously the names have been changed)

Edward
Edward is a 62-year old medically retired airline pilot. He has had an illustrious career with a US-certificated air carrier, having received numerous safety awards and citations.

About 13 years ago, Edward was Captain of a B727 on an international flight in foreign airspace. After being handed off by approach control to the tower, his aircraft was involved in a midair collision and sustained major damage. Edward was able to regain and maintain control and land. Upon landing, his 87 passengers and 6 crewmembers gave him an ovation. His employer and union gave him several citations for his courage and skill.

Edward sustained back and neck injuries while wrestling with the aircraft, which he treated with mild analgesics. These injuries, which Edward disclosed to his employer and his FAA Aviation Medical Examiner (AME) (who also happened to be Edward's personal physician) never went away, and over the next 10 years, became more acute.

Edward also experienced recurring anxiety over the midair. Despite the passage of time, this anxiety did not dissipate. However, he continued to fly and continued to qualify for first class medical certificates.

In September, 2001, Edward, then a senior B777 Captain, was departing for Europe from New York's JFK Airport on his company's first post-9/11 international flight. From the air, he saw Manhattan smoldering. This, as well as an unanticipated F-16 fighter intercept after ATC had directed the aircraft to deviate from its flight plan, had a profound effect upon him. In addition, his neck and back were becoming more problematic-exacerbated by lugging flight bags and suitcases and prolonged sitting. All of these factors eventually led Edward to decide to take a medical leave of absence from his air carrier employment.

In 2003, Edward applied for Social Security Disability Benefits. In his application, he disclosed his back and neck problems and the psychological effects of the midair and the post 9/11 flight. Edward also disclosed that upon the recommendation of his physician (the same AME), he was taking blood pressure medication (even thought without the medication his blood pressure remained within the limits prescribed in the AME's manual), Lipitor, for elevated cholesterol (which is not medically disqualifying) and a stronger medication for his back and neck pain (which he did not use while flying and for several days prior to flying). SSA determined that Edward met all standards for disability and started paying benefits.

In 2004, Edward, now retired, applied for a Third-Class Medical Certificate. He went to his AME/personal physician and filled out the form 8500-8. For whatever reason, on the application he did not disclose his prescriptions for anti-hypertensive medication, Lipitor or back pain medication and did not disclose the psychological stress that the midair and 9/11 had upon him. Although this information was known to the physician, he neither directed Edward to include these items nor did he mention these conditions in the AME-prepared portion of the application.

The FAA issued Edward an Emergency Order of Revocation for falsifications arising out of his alleged failure to disclose the post-traumatic stress disorder and related medications. The FAA also alleged that Edward lacked good moral character required of a holder of an ATP Certificate.

Edward was also indicted on a felony charge under Operation Safe Pilot. The matter went to trial. After two weeks of trial, the jury was deadlocked and the judge declared a mistrial. When the Government advised that it was going to file new charges and take the matter to trial again, Edward entered into a plea agreement stipulating to a substantial fine and probation.

William
William had been a certificated pilot for approximately 32 years. Although he is now retired, William was a vice-president of a major corporation.

In 1985, William discovered that he was HIV positive. Knowing that the FAA was not issuing medical certificates to HIV-infected individuals at that time, he voluntarily grounded himself and allowed his airman medical certificate to lapse.

By 1995, William's health had worsened and he left his job and applied for and started receiving Social Security Disability Benefits. He was placed into a then-experimental program and treated with protease inhibitors. His health improved rapidly and markedly. In 1996, William felt that he could return to work and requested that SAA terminate Disability Benefits, which it did. He returned to work, where over the next several years, he received numerous promotions and raises.

In 1998 William attempted to return to flying. He did considerable research into what, if any, guidelines and standards the FAA had with respect to HIV-infected pilots. He discovered that there was a total absence of established eligibility guidelines and substantial uncertainty and confusion within the FAA. Out of fear of being arbitrarily disqualified, William applied for and was issued a Third Class Medical, withholding information as to his HIV infection. In 2000 William saw the first published certification criteria for special issuance of medical certificates to HIV infected persons. He verified that his cell counts and viral load were within the applicable criteria. He subsequently applied for and received Third Class Medicals in 2000, 2002 and 2004, again not disclosing his HIV status. William admits that withholding such information was wrong.

HIV today is no longer, in and of itself, medically disqualifying. In fact, the FAA Aeromedical Certification Division had issued a policy statement to the effect that HIV-infected individuals who voluntarily revealed their previously unreported infections would not be subject to FAA enforcement action. William learned of the FAA policy statement in February 2005 and was in the process of gathering documents and records to submit to the FAA to avail himself of this amnesty program. However, before doing so, in March 2005, William received a telephone message from a person he later learned to be an agent with the Department of Transportation ("DOT") Office of Inspector General ("OIG"), requesting a meeting for the purpose of discussing certain "certification irregularities". A meeting was arranged for the next day (in fact, at a neighborhood Starbuck's). At the meeting William was shown numerous documents from his SSA file which, according to the OIG Agent, had been obtained as a result of a "pilot computer match" between SSA and FAA. At this meeting, William fully cooperated and spoke freely to the OIG agents. He was not advised that he was the subject of a criminal investigation, that a criminal proceeding would ensue or that anything that he said would be used against him.

The OIG Agent served William with a copy of an Emergency Order of Revocation revoking his pilot and medical certificates, and William surrendered his certificates on the spot.

As if the FAA enforcement action was not enough, William was indicted under Operation Safe Pilot. After several months, that criminal action finally settled (but only after the mistrial in Edward's case).

Mary
Mary, up until the U.S. Attorney's July 18, 2005, Press Release, which specifically identified her as one of those whom had been indicted, was employed as a bank examiner. Upon learning of the indictment, she resigned her position.

In 1987, Mary, then a college student, was involved in a head-on automobile collision, when the driver of an oncoming car lost control and crossed over into her lane. The closure rate of the two vehicles was close to 100 mph. Mary suffered a concussion, broken nose, broken vertebrae, cracked ribs and numerous lacerations. She had to undergo several reconstructive surgeries.

In 1988, Mary decided that she wanted to learn to fly and started taking lessons. She received her private pilot certificate in 1990. However, after passing her check ride, she has not flown since.

In 1993, Mary applied for a Third Class Medical Certificate. That application was denied because of a diagnosis of obsessive-compulsive disorder, which Mary believed was actually a post traumatic stress disorder arising from the automobile accident.

In 2002, Mary decided to again apply for a Third Class Medical Certificate. She did not disclose the obsessive-compulsive disorder, assuming that the FAA already was aware of such information. In 2004, the FAA wrote to Mary advising that her airman medical certification had recently come under review under a newly developed Quality Assessment Program, and pointingout irregularities in her application, specifically her responses to Items 13 and 18m of the 2002 Application. Mary responded, indicating that she had assumed that the FAA already had this information based upon her prior 1993 application, and requested that the FAA provide her with the necessary forms for her to amend her responses to Items 13 and 18. In the spirit of cooperation, she voluntarily surrendered her Medical Certificate. She received no response.

In July 2005, the FAA issued a Notice of Proposed Certificate Action, proposing to revoke her Private Pilot Certificate. She elected not to challenge the FAA action surrendered her certificate.

Under threat of indictment by the U.S. Attorney, Mary entered into a Plea Agreement, settling the criminal matter by pleading guilty to a reduced charge, 18 U.S.C. Section 1018 (a misdemeanor), and agreeing to pay a fine of $250.00 and a special assessment of $25.00, and being placed on probation for a period of two years, during which she is precluded from operating an aircraft.

In retrospect, had Mary written "No Changes" in Block 18 of her Application, it is doubtful as to whether the FAA or the Government would have had any case at all.

Albert
Albert is a retired agricultural pilot. During his career as a crop duster, he's had his share of aircraft mishaps and injuries and had undergone orthopedic surgery.

In his 2002 medical application, Albert neglected to disclose the surgery. However, Albert suffered no infirmity and was in no way debilitated as a result of the surgery. His AME, who ostensibly performed a detailed and rigorous exam, saw no evidence of any infirmity or debilitating condition.

Albert was one of the 40 pilots against whom the U.S. Attorney initiated criminal proceedings. Under threat of indictment, Albert entered into a Plea Agreement, settling the criminal matter by pleading guilty to a misdemeanor, which included several fines and two years of probation (in which he is also precluded from operating an aircraft).

How Did the FAA Obtain Information Upon Which the Falsification Charges Rest?

The source of the FAA's/OIG'S information which served as the basis for the criminal and certificate actions was the Social Security Administration (SSA). Each of these individuals had applied for and had received SSA Disability Benefits (although in William's and Mary's cases, they had not received benefits for some time-9 years in William's case and some 17 years in Mary's case). This was more than a simple database comparison or computer match. In each instance, hard copies of the pilots' complete SSA disability files, including but not limited to highly sensitive, confidential medical and treatment records, were provided by the SSA to FAA and OIG. This raised serious concerns on the part of the respondents and their counsel as to whether SSA, FAA and/or OIG had violated The Privacy Act, as amended, prompting further discovery during pendency of Edward's and William's appeals to the NTSB.

Despite extensive discovery efforts, the FAA has not been particularly forthcoming. The existence of "Operation Safe Pilot" and the FAA/SSA file sharing program were withheld during the discovery process. The government's first acknowledgment as to their existence was in the July 18, 2005, Press Release. Moreover, it was not until October 2005, and in connection with the defense of the criminal cases that the rationale and methodology of the program was finally disclosed.

So how did this program arise?

According to court-filed documents, "Operation Safe Pilot" was an outgrowth of the events of September 11, 2001 (although it did not come into being until sometime in 2003). The purpose of the program was to ensure that pilots with FAA certificates were who they claimed to be and to cross-check FAA certificates and social security numbers. In other words, the government's inquiry was confined to verifying that pilots were not misrepresenting their identities. It is submitted that once the pilots' identities were established, the inquiry should have ended.

But the government went further. SSA discovered that there were a number of pilots who had current medical certificates and were drawing disability benefits. SSA thereupon undertook individual fraud investigations to verify the health status of the pilots who had applied for and received disability benefits. These investigations did not reveal any instances of Social Security fraud. SSA thereupon provided FAA and OIG with highly sensitive, personal and confidential information pertaining to pilots who had applied for or who had received or were receiving disability benefits.

The Privacy Act of 1974 and its Progeny

The Privacy Act protects records that can be retrieved from a system of records by personal identifiers such as a name, social security number, or other identifying number or symbol. The Privacy Act prohibits disclosure of such records unless one of twelve disclosure exceptions enumerated applies:

No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would be

1. to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties;
2. required under section 552 of this title;
3. for a routine use as defined in subsection (a)(7) of this section and described under subsection (e)(4)(D) of this section;
4. to the Bureau of the Census for purposes of planning or carrying out a census or survey or related activity pursuant to the provisions of title 13;
5. to a recipient who has provided the agency with advance adequate written assurance that the record will be used solely as a statistical research or reporting record, and the record is to be transferred in a form that is not individually identifiable;
6. to the National Archives and Records Administration as a record which has sufficient historical or other value to warrant its continued preservation by the United States Government, or for evaluation by the Archivist of the United States or the designee of the Archivist to determine whether the record has such value;
7. to another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the agency or instrumentality has made a written request to the agency which maintains the record specifying the particular portion desired and the law enforcement activity for which the record is sought;
8. to a person pursuant to a showing of compelling circumstances affecting the health or safety of an individual if upon such disclosure notification is transmitted to the last known address of such individual;
9. to either House or Congress, or, to the extent of matter within its jurisdiction, any committee or subcommittee thereof, any joint committee of Congress or subcommittee of any such joint committee;
10. to the Comptroller General, or any of his authorized representatives, in the course of the performances of the duties of the General Accounting Office;
11. to a consumer reporting agency in accordance with section 3711(e) of title 31.

Unless one of the twelve exceptions to The Privacy Act applies, no agency can disclose such records to any other person or agency.

In these cases, the only arguable bases for disclosure are exceptions nos. 3 and 7 above-routine use and for civil or criminal enforcement purposes. Did the government meet these exceptions?
Edward and William contended that the process was totally misused since the FAA went farbeyond verifying identities-FAA apparently obtained hard copies of thousands of pages of sensitive and privileged medical records and documents from SSA and then compared SSA records with its own aeromedical records. They asserted that they had a reasonable expectation of privacy in that the highly sensitive and privileged medical records which they submitted to SSA should have been kept inviolate by their very nature.

Two amendments to The Privacy Act underscore the significance of the database sharing which apparently occurred between SSA and FAA, SSA and OIG and OIG and FAA. The Computer Matching and Privacy Protection Act of 1988 (Public Law 101-503) and the Computer Matching and Privacy Protection Amendment of 1990 (Public Law 100-508) supplemented the protections of The Privacy Act and made it clear that at least thirty days prior to initiating computer matching programs between and among government agencies, a notice must be published in the Federal Register which identifies the participating agencies, the purpose of the matching program, the authority for conducting the matching program, the categories of records and individuals conducting the matching program, and inclusive dates of the matching program. However, in these instances, no such notice exists.

While guidance, as published in the Federal Register, specifically excludes "pilot matches" from the matching definition, it requires that such pilot matches be used only for gathering statistical data without personal identifying information; or in the alternative, if personal identifying information is used, it must be part of a criminal investigation already in progress of a named person or persons. (54 Federal Register, 25818 et seq, June 19, 1989). Here, the government agencies involved cannot justify their computer matching based upon the "pilot program" exception, unless they can show that a criminal investigation preexisted the computer matching program. What occurred here was just the opposite-the computer matching program predated, and in fact served as the basis for, criminal investigations.

The government agencies involved may have also failed to obtain a written agreement between the source and recipient agencies. Under 5 U.S.C. 552a(o)(2)(A)-(J) such agreements must contain:

1. The purpose and legal authority for conducting the program;
2. The justification for the program and the anticipated results, including a specific estimate of any savings;
3. A description of the records that will be matched and the projected starting and completion dates of the program;
4. Procedures for providing notice to applicants for and participants in federal benefit programs and applicants and holders of federal personnel positions, at the time of the application and periodically thereafter, that any information provided may be subject to verification through matching programs;
5. Procedures for verifying information produced in the matching program;
6. Procedures for retention, use, timely destruction, and return of records;
7. Procedures for ensuring security of the records matched and the results of the matching program;
8. Prohibitions for retention, use, timely destruction, and return of records;
9. Information on assessments of accuracy of records to be used in the program;
10. A specification that the Comptroller General may have access to all records of the receiving agency.

Despite extensive discovery efforts the government never provided evidence of any preexisting, or even subsequent, agreement between the SSA and FAA, SSA and OIG or OIG and FAA.

Fourth Amendment

The question of whether the record sharing was tantamount to an illegal search and seizure under the strictures of the Fourth Amendment is of utmost importance.

The rule with respect to the reasonable expectation of privacy in the context of search and seizure is most often states as follows:

1. Did the challenged search and seizure violate the rights of the defendant who seeks to exclude evidence obtained during it? Rakas v. Illinois (1978) 439 US 128; and
2. Did the government violate any legitimate expectation of privacy or security held by the defendant? Minnesota v. Olson (1990) 485 US 91.

The facts could support a reasonable inference that a person who submits the most private of all records to a federal agency (here, SSA) would expect that the agency would obey the law and keep the records confidential and private. Wong Sun v. United States (1963) 371 US 47.

Conclusion

Privacy is a concern to all citizens in this country. To protect the public and to maintain the public's respect for the federal government and particularly how the government treats highly sensitive, personal and confidential information that members of the public provide to the government, Congress enacted laws aimed at prevent the sharing of computer databases between federal agencies. Operation Safe Pilot leaves many unanswered questions, including:

1. Did the Government comply with The Privacy Act, and specifically its own rules relating to Computer Matching Programs?
2. Why has Operation Safe Pilot been so cloaked in secrecy that the FAA virtually thwarted all discovery efforts?
3. Will Operation Safe Pilot be reversed and/or extended beyond the Northern and Eastern Districts of California?

Endnotes

1. Section 10001 prohibits (i) falsification, concealment or cover up of a material fact, (ii) materially false, fictitious or fraudulent statements or representations and (iii) the making or use of any knowingly false writing or document. Violation of this provision is a felony.
2. The names of the individuals are fictitious. The factual situations and status of the legal proceedings, both administrative and criminal, are not.
3. The FAA Emergency Action was commenced prior to the issuance of the U.S. Attorney's Press Release and before the Government's disclosure of the existence of "Operation Safe Pilot" and the existence of that program were not disclosed until July 18, 2004.
4. Statement from Dr. Warren S. Silberman, Manager, Aeromedical Certification Division, as reported on the National Gay Pilots Association website (http://www.ngpa.org).
5. As in Edward's case, the FAA initiated Enforcement Action before the Government publicly acknowledged the existence of "Operation Safe Pilot."
6. Section 1018, violation of which is a misdemeanor punishable by fine and/or imprisonment for up to one year, prohibits the making or giving of any certificate or writing containing any statement which is knowingly false.
7. Title 5, U.S.C. Section 552a.
8. Even in these instances, the government did not voluntarily provide this information. It was only provided in response to Edward's and William's Motions to Suppress Illegally Obtained Evidence. A similar motion was filed in William's NTSB appeal, which the Administrative Law Judge denied. Given the Motion's disposition in William's case, no motion to suppress was filed in Edward's case, which is before the same ALJ.
9. It is this writer's opinion that the SSA's requirements for establishing disability and the FAA medical requirements contained in FAR Part 67 are mutually exclusive and that the government has never established any nexus between the two.
10. Based upon our court filings by the government, it appears that SSA, after conducting individual fraud investigations and having found no evidence of fraud or misrepresentation in obtaining SSA benefits and having determined that all such individuals were qualified for the benefits that they had received or were receiving, provided copies of their files to the OIG and FAA.
11. As used in the Federal Register, "pilot matches" refers to an interim, developmental or experimental program.

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GARA:
When it Comes to Products Liability, Don't Believe What the Manufacturers Claim
by Steven P. Winter

In 1994, after years of intense lobbying by manufacturers, Congress enacted the General Aviation Revitalization Act ("GARA"). As we are all aware, the law imposes an 18-year cut off for product liability suits (statute of repose for defective non-commercial general aviation aircraft). During the decade prior to GARA's enactment, the small aircraft market experienced a significant decline in production and a loss of thousands of industry jobs. Manufacturers blamed this decline primarily on product liability costs, which they contended forced companies to charge higher aircraft prices (although, apparently, they presented no verifiable evidence to support this claim). The general aviation industry contended that if Congress protected them from litigation, aircraft prices for consumers would drop due to savings from decreased product liability costs, and that within five years, 25,000 jobs would be created.

Now, almost 12 years after GARA's enactment, manufacturing interests pushing products liability reform legislation are now making the sweeping claim that its impact is providing a resurgence in the entire industry brought about by the passage of GARA. However, a closer examination of the facts indicates that GARA, in and of itself, has not led to an industry resurgence and has not led to tens of thousands of new jobs. And why? Because the pre-GARA industry downturn was not simply due to costs associated with products liability cases.

The State of the General Aviation Industry Prior to GARA

General aviation aircraft manufacturers point to the growth of the industry between 1972 and 1979 and the decline after 1979 concluding that the decline was a direct result of products liability litigation. But further scrutiny reflects that the decline was clearly associated more with the cyclical pattern of the industry's production which has always experienced periods of growth and decline for reasons totally unrelated to liability litigation costs. A look at 1972 data indicates that the general aviation industry had always been a "feast or famine" business which continuously experienced cyclical growth and decline. As an example, it experienced a significant increase in production between 1960 and 1965, and then a significant decline between the years of 1965 and 1970.

The industry's growth prior to 1979 was fueled by numerous factors which artificially boosted demand leading to the flooding of the market with new aircraft. General aviation production peaked in 1978 with 17,811 aircraft, most of which were small piston powered aircraft, in no small part due to changes in the G.I. bill and coverage of flight training for veterans. This was especially critical for production of single-engine aircraft. Additionally, higher inflation rates in the late 1970's created an incentive for brokers to speculate and order new aircraft. The result -- an artificial or, at the very least, an unsustainable demand had been created.

The general aviation industry's decline in the early 1980s was the result of a variety of factors. Economic difficulties hit the industry while it suffered from a saturated market. In 1980, the general aviation cost index peaked in large part because of increases in fuel costs. Interest rates peaked in 1981, the Investment Tax Credit was abolished shortly thereafter and, in general, economic conditions bottomed out.

While other industries recovered after the early 1980s, the small aircraft industry remained depressed due to factors totally unrelated to product liability lawsuits.

Limited Demand

The industry, for the most part, produces high quality products, so the used aircraft market has provided an attractive alternative. As New Piper Aircraft's Chief Financial Officer put it, "Another factor causing the decline was our success in building long lasting products". Our airplanes are well designed and well built, often remaining in service for 30 years or longer." As a result, pilots, businesses, flying clubs, and fixed based operators simply have no incentive to buy new airplanes in that they could get essentially the same thing for a third of the price buying a used airplane.

A Decline in Pilots

A major decline in the number of active pilots occurred after the early 1980s. The ratio of pilot to aircraft went from 7 pilots per aircraft to 3.5 pilots per aircraft. Student pilot certificates dropped from 200,000 in 1977 to 101,000 in 1995. According to Cessna, 1995 showed the lowest number of individuals taking flight instruction in over three decades and, similarly, the lowest number of licensed pilots since the FAA began keeping those records in 1968.

Other Factors

It appears that the industry is unable to keep pace with technological demands as some aircraft enthusiasts have turned their attention and money to the experimental and kit aircraft market. By its own admission, the general aviation industry dropped the ball in its marketing and developing for the next generation of pilots and aircraft owners.

Finally, it cannot be overemphasized that while the small piston aircraft market remained depressed, the general aviation industry began to grow on the strength of high-priced turboprop and jet aircraft. Generally speaking, the general aviation industry demand shifted to turboprops and business jets. In 1986, this resulted in Cessna's decision to focus production on this type of aircraft and to halt production of its smaller piston aircraft. In 1993, the average business jet sale resulted in about $7.4 million per unit sold while the average piston aircraft pulled in only about $140,000. Apparently, Cessna realized it could make a lot more money producing a few high-end aircraft rather than large quantities of small piston aircraft. Cessna became profitable and by 1991, its pre-tax profits were about $130 million. At the time of GARA's enactment, total revenues for the general aviation industry had increased to over $2 billion per year -the highest levels since 1981.

Post - GARA

The drop in the prices of small aircraft after GARA, as promised by the industry, did occur. The industry realized no product liability savings due to GARA. A Mooney single engine aircraft that sold for $165,000 in 1994 is selling for more than $400,000 today and a Piper Saratoga that sold for $209,000 in 1991 is selling for more than $500,000 today. This can be said for most of the small aircraft market. Other than avionics, the present-day aircraft contain the same technology and are substantially similar. As Cessna's Senior Vice President acknowledged before the Senate Commerce Committee on March 6, 1997, the company had experienced no decrease in its product liability insurance costs.

Although the small aircraft market has experienced a very modest revival over that last 12 years, it does not come close to robust demand of 20 to 30 years ago. Moreover, because small aircraft prices have not dropped, this modest increase in demand can be attributed still, in part, to other factors. For example the used fleet is finally beginning to wear out. Additionally, foreign markets have begun to open up for U.S. manufactured small aircraft. In 1995, Cessna's dealer in Brazil made a surprise order for 100 single-engine piston-powered aircraft. At that time, order doubled the number of orders Cessna had in hand for new piston powered aircraft.

The effects of GARA cannot be isolated from the effects of other efforts by government, industry and organizations of aircraft owners and operators to revive the industry. The general aviation industry is improving its marketing efforts in order to develop the next generation of pilots and aircraft owners. By their own admission, companies such as Cessna and New Piper have restructured the way they do business. NASA and academia have joined forces with the general aviation industry through the Advanced General Aviation Transport Experiments consortium, to help develop technologies and disseminate information to the industry. One aim of this project will be to develop piston engine technology that will cut the cost of flying 160 knots in half, thereby hopefully creating a demand for new small aircraft.

Interesting, if not telling, is the fact that Cessna's decision to resume single engine manufacturing in 1994 was not the result of any financial savings due to GARA, but because Cessna's Chairman, Russell Meyer, Jr., promised Congress that production would resume if GARA were enacted. Cessna's Senior Vice President, testified on March 6, 1997, that the company made a commitment that if meaningful product liability reform was enacted, Cessna would reenter the single engine aircraft business. Calling GARA meaningful product liability reform, Cessna began manufacturing again, with the state of Kansas providing financial and other incentives to the company. However, as he acknowledged during his testimony, as of that date, the company experienced no decrease in their product liability insurance costs.

So what effect has GARA had on the current state of general aviation today? By the industry's own admission, it has realized little, if any, savings in product liability insurance costs which would be passed on to the general aviation consumer through revitalization of small aircraft manufacturing. Just because they were able to sell this to Congress, don't believe what they claim.

The Shift is On - The of Reality GARA

The technical shortcomings of GARA, however, pale in comparison to the potential harm to the general aviation community. GARA undermines incentives for better design and innovation in aircraft for long term use. The basic, if not singular, function of tort law is to create incentives for reducing tortious risks. Optimally, potential product liability achieves this goal by threatening potential injurers with liability for all losses their tortuous conduct may cause, compelling them to internalize the costs of tortuous harm before they take action. Essentially, GARA displaces general aircraft manufacturers for the liability cycle after 18 years when they would have been in the best position to cover claims made from aircraft manufactured and to improve the long term integrity of the aircraft they will produce in sell in the future. So, if the general aviation industry is displaced from the liability cycle after 18 years, who bears the burden in product liability litigation? You've got it. GARA has shifted the liability burden to aircraft repair stations, aircraft mechanics, fixed based operators, pilots and aircraft owners. This has increased the unavailability of reasonably priced insurance thereby maximizing their exposure should one be named as a defendant. One can imagine a situation where a defendant might be 10 percent negligent but shoulder 100 percent of any liability.

In essence, GARA reduced general aircraft manufacturers of accountability and gave the general aviation community little, if anything, in exchange. This is not incomprehensible. In fact, the reasoning is all too understandable. Who would not like to be excused of responsibility for negligent acts, omissions and other misconduct?

* * * *
...AND NOW FOR YOUR READING ENJOYMENT,

hopefully, here's some proof that lawyers do have a sense of humor:

Administrator v. Zoltan Winger

(Appeal of FAA Order of Suspension to National Transportation Safety Board)

Materials Prepared for:

LAWYER PILOTS BAR ASSOCIATION
Summer 2005 Meeting
Mackinac Island, Michigan

PREFACE
(and disclaimer)

The facts of this case are not true. The names of the persons, businesses, organizations, aircraft and vehicle types, aircraft registration numbers and airport identifiers are intended to be fictitious. There are, to the author's knowledge, no airport named Podunk Municipal Field (PMS) nor any airline doing business as IHOPAir. The Fernwood Area Community Orchestra and Community Theatre Association (FACOCTA) is intended to be fictitious.

Any resemblance to actual persons, living or dead, businesses, entities, locations, or registered aircraft is purely coincidental.

NARRATIVE

Background

The Winger Family is Fernwood's foremost family of flyers (please excuse the alliteration). Zoltan "Wingman" Winger and his wife, Akilina "Wingmate" are two of three members of a limited liability company, A2Z Wings, LLC, formed solely for the acquisition, ownership and operation of two general aviation aircraft, Iditirod Malamutes, small, two-place, tandem seat, conventional gear, high wing, single-engine aircraft, N24AZ and N42ZA. The third member of the LLC is Seymour Cashman. Cashman is not a pilot, but is the Vice President of Aircraft Financing of World Commercial ("WorldCom") Savings and Loan, the bank which holds the aircraft chattel mortgages on the two Malamutes. WorldCom also finances the Wingers' SUV, a Super Behemoth Twin-Cam V-12 AWD, which is also registered in the name of the LLC.

For those unfamiliar with the Malamute, it has exceptional STOL capabilities, taking off and landing at an airspeed of 33 knots. Zoltan and Akilina, and their two teenage children, Zoe "Winglet" and Attilla "Wingover", love the outdoors and use the aircraft to fly to their mountain top cabin at Sasquatch Peak from the suburban airport, Podunk Municipal Field (PMS), near their home in Fernwood. As there is no airport or even an airstrip at Sasquatch Peak, the Wingers' land in a clearing just behind the cabin. For this reason, they have installed large tundra tires on the Malamutes. While the tundra tires are advantageous for landing on unimproved areas, they wear rapidly and are very costly.

PMS is a public airport. It has no operating control tower and has a single 5,000 foot north-south paved runway. To the west of the runway, and between the runway and the taxiway is a 300-foot wide grassy area, which runs the length of the runway. Hangar and aircraft tie down areas are to the west of the taxiway. The grassy area is not designated as a runway. PMS is certificated by the FAA under FAR Part 139, as the airport is served by a scheduled air carrier, IHopAir, albeit on a frequency of only one daily arrival and departure utilizing a 30-seat twin-engine turboprop, and the only designated landing area is the runway. (See airport diagram, Attachment A).

Concerned with the limited tire life that he was getting from the tundra tires, particularly due to frequent landings on PMS's paved runways, Zoltan persuaded a PMS airport maintenance worker, Erasmus B. Dragon, to keep the grassy area mowed so that he and his family could land the Malamutes in that area rather than on the runway. Dragon, and his assistant, Vern Monger, did this and the Wingers' openly used this area for takeoffs and landings. No other aircraft used this area-just the Malamutes and the area became known, at least by airport locals as the "Dogpatch". This went on for several years without any objection from either airport locals, airport management or the FAA.

However, in 2003, the local FAA Flight Standards District Office (FSDO)'s Manager, I. M. Wright (no relation to Orville or Wilbur) retired, taking on a second career, as PMS Station Manager for IHopAir. From the time he started his new job with IHopAir, Mr. Wright became concerned over theWingers' use of the Dogpatch as he believed that such use could interfere with IHop's scheduled air carrier operations at PMS, or worse, create a safety hazard. Mr. Wright expressed his concern to PMS Airport Manager, Ned "Bud" Kannezzer. However, Mr. Kannezzer seemed to be unimpressed by Mr. Wright's stated concerns and did nothing to stop Dogpatch operations. Mr. Wright, peeved by the Airport's waffling, went to the FAA, and to his successor FSDO Manager, D. Arthur "Darth" Vader. Mr. Vader took Mr. Wright's concerns to heart and directed one of his Principal Operations Inspectors (POI), Harlow Wien, to see to it that PMS and the Wingers' put a stop to these practices at once.

On October 31, 2003, Harlow Wien sent a letter (Attachment B) to Ned "Bud" Kannezzer advising that although PMS was an uncontrolled airport and that there was no FAR specifically prohibiting the use of the Dogpatch for takeoffs and landings, the FAA had some concerns over the safety of such operations, specifically, an increased risk of midair or ground collisions. Mr. Wien requested that Mr. Kannezzer issue a directive to PMS-based pilots admonishing of the risks inherent in the use of the Dogpatch. Mr. Kannezzer did not issue any such directive. Likewise, no FAA NOTAM was ever published prohibiting use of the Dogpatch. Instead, Mr. Kannezzer showed the letter to Mr. Winger and said something to the effect, "Zoltan, this is from the FAA. Perhaps you ought to stop using the Dogpatch. Besides, I don't want this to screw up my chances of getting FAA airport development funds in the future." In response, Mr. Winger advised that he and his family would refrain from using the Dogpatch for their Malamute operations. For the most part, they lived up to those assurances, but still used the Dogpatch on occasion. Airport workers Erasmus B. Dragon and Vern Monger were never instructed by the Airport to stop mowing the Dogpatch and accordingly, continued to maintain that area for the occasional Malamute operations. (The Airport did eventually obtain FAA grants totaling $25 million for the construction of a new terminal building, which commenced on January 1, 2005. With this terminal development, PMS is actively attempting to attract additional air carrier service, soliciting the interest of other regional and commuter carriers. In fact, Mr. Cashman, and a number of local business people, including Mr. Winger, are attempting to start a new airline to be based at PMS and with plans to initiate first-time ever international non-stop flights between PMS and Saskatoon, but we digress).

Incident

During the late afternoon of April 15, 2004, Zoltan Winger was flying N24AZ and his teenage children, Zoe and Attilla, were flying N42ZA, from Sasquatch to PMS. N42ZA departed first. Although the two aircraft are substantially similar, N42ZA has the new, improved Belchfire Turbocharged engine, and as a result, that aircraft cruises about 3 knots faster than N24AZ. Zoltan carried no passengers, other than the family's two dogs, Zeus and Apollo, who were sharing the back seat. (The dogs liked to fly with Zoltan, and Zoltan had crafted a harness for the two dogs that affixed onto the aircraft's existing seatbelt. Taking his flying very seriously, and attempting to do things the right way, Zoltan even obtained an STC for this harness, in fact marketed by AtoZ Wings, LLC as "the Dog Catcher".) Mrs. Winger had no involvement in the incident, as she was working that day in her capacity as the Fundraising Chairperson for the Fernwood Area Community Orchestra and Community Theatre Association ("FACOCTA").

Zoe and Attilla's flight to PMS was without incident. After landing on the runway and turning off onto the taxiway, and while enroute to the Winger Family hanger, they saw two of their friends, Pete "Pitot" O'Toole and Luke "Sky" Walker (both having part-time line boy jobs at the local FBO, Hawkin-Dove Aviation). As things were very quiet at PMS that afternoon, Pitot and Sky were out on the ramp throwing a frisbee. As Zoe and Attilla were taxiing in, they elected to join up with their friends. Well, kids will be kids and rather than continuing towards the hangar, Zoe and Attilla parked the aircraft in a transient tie-down area (rarely used, and in fact, one of the vestiges of airport improvements hastily undertaken when Fernwood hosted the World Championship Tractor and Taffy Pull back in 1958).

For the most part, Zoltan's flight to PMS was also without incident. Out of concern for premature wear of the brand new tundra tires that he had just purchased and had installed on N24AZ, and in the interest of saving a few minutes in taxiing, Zoltan elected to land in the Dogpatch. His landing was normal. After landing, and while taxiing to his hangar, and again in the interest of saving time (particularly due to biological needs), Zoltan cut across the grassy area, heading east to west. It was late in the afternoon and close to sunset and the sun was in his eyes. As the Malamute is a tail-dragger, with limited visibility over the nose, Zoltan taxied in a zig-zag fashion. He assumed that Zoe and Attilla had taxied to the hangar and had parked their aircraft in it. Moreover, he did not expect any aircraft to be parked on the seldom-utilized tie-down adjacent to the north-south taxiway. In any event, he did not see N42ZA when he hit it. The left wing of N24AZ hit the vertical stabilizer of N42ZA, literally chopping off the top six inches of the stabilizer, the rotating beacon and an antenna. N24AZ's left wing also sustained damage. Post-impact inspection revealed structural damage to the left wing. Although the costs of repairs were substantial, they were covered by the Wingers' insurance, subject to reasonable deductibles, and the aircraft were repaired and placed back into service (although some months later).

Post-Incident Events

The FAA did not learn of the incident until August 30, 2004, when one Brunhilda Gertz, the former lead (and in fact, the sole) FOCOCTA tubist and glockenspielist, called Inspector Wien and told him of it. Apparently, Ms. Gertz and Mrs. Winger had a falling out when the Orchestra's powers that be decided to eliminate tubas and glockenspiels from the Orchestra (apparently an effort to update and modernize the FACOCTA image and sound). Although Ms. Gertz and Mrs. Winger had been close friends (and confidantes) at one time, Ms. Gertz felt that Mrs. Winger had not done enough to prevent this adverse decision. Additionally, Ms. Gertz was extremely distressed over Zoe Winger's having jilted her beloved son, Otto, just three days prior to the Fernwood High School Senior Prom only to take up with Pitot O'Toole. Police Captain Gustav Gertz' (Brunhilda's husband) having found Zoe and Pitot in the back seat of Zoltan's Super Behemoth SUV on the night of the Senior Prom didn't help matters, either.

On September 10, 2004, the FSDO issued a letter of investigation ("LOI") to Mr. Winger (Attachment C). On the same day, the FAA sent another letter to the Winger family and to PMS Airport Director Ned "Bud" Kannezzer emphatically stating that take-offs and landing from/to the Dogpatch were contrary to the FAR's and should cease at once (Attachment D).

Mr. Winger responded to the LOI on September 12, 2004 (Attachment E). He had neither consulted nor retained legal counsel prior to doing so.

Enforcement Action

On October 14, 2004, the FAA, by and through its Regional Counsel, Dudley DuRight, issued a Notice of Proposed Certificate Action, proposing to suspend Mr. Winger's Private Pilot Certificate for a period of 90 days (Attachment F). As the FAA was coming up on the six-month limitations period for initiating an action, the NOPCA was FEDEXed to Mr. Winger at his home, and scheduled to be delivered on October 15, 2004. However, the Wingers' were not home, but were at their Sasquatch Peak cabin and did not return home until the evening of October 19. As a result, FEDEX did not deliver the NOPCA to the Winger home until October 20, 2004. However, earlier that day, Mr. Winger and Mr. Cashman went out of town to meet with some potential financiers for the new start-up airline. Mr. Winger did not return home until October 24 and did not receive the NOPCA until October 25, 2004.

Although the FAA afforded Mr. Winger the opportunity to attend an informal conference, he elected not to-figuring that if the FAA didn't like the letter that he wrote in response to the LOI, there was nothing to be gained by attending an informal conference. The FAA issued its Order of Suspension on December 24, 2004. Mr. Winger then engaged legal counsel (Attorney Y. I. Getimoff) through whom he filed his appeal to the National Transportation Safety Board (Attachment G). The FAA filed its Order as its Complaint and Mr. Winger, through counsel, timely filed an Answer to that Complaint (Attachment H).

Neither the FAA nor Mr. Winger have conducted any prehearing discovery.

ATTACHMENT A

FEDERAL AVIATION ADMINISTRATION
PODUNK/FERNWOOD FLIGHT STANDARDS DISTRICT OFFICE

October 31, 2003

Mr. Ned "Bud" Kanezzer
Airport Manager
Podunk Municipal Field
Fernwood, USA

Re: Use of Grassy Area for Aircraft Operations

Dear Mr. Kanezzer:

It has come to our attention that pilots are using the grassy area west of the runway and east of the north-south taxiway for takeoffs and landings.

While we recognize that PMS is an uncontrolled airport and conceded that there is no specific Federal Aviation Regulation prohibiting such use, we are concerned that continued operations of this type may create both airborne and ground collision hazards.

We urge you and PMS Management to take all necessary efforts to curtail this practice and to counsel pilots that such practices should be avoided.

Should you wish to discuss this matter further, please give us a call.

Very truly yours,

Harlow Wien
Principal Operations Inspector

ATTACHMENT B

FEDERAL AVIATION ADMINISTRATION
PODUNK/FERNWOOD FLIGHT STANDARDS DISTRICT OFFICE

September 10, 2004

Mr. Zoltan Winger
12345 Easy Street
Fernwood, USA

Re: Letter of Investigation, File No. 2004WOW007007

Dear Mr. Winger:

Personnel of this office are investigating the operation of Iditirod Malamute, FAA Registration No. N24AZ at Podunk Municipal Airport on April 15, 2004. This aircraft was involved in a post-landing taxiing incident/accident. We have been informed that you were the pilot in command of the aircraft. Such operations may be contrary to the Federal Aviation Regulations.

We offer you the opportunity to provide us with any information concerning this incident/accident. If we do not hear from you within 10 days from the date of this letter, our file will be forwarded without the benefit of your reply.

Very truly yours,

Harlow Wien
Principal Operations Inspector

ATTACHMENT C

FEDERAL AVIATION ADMINISTRATION
PODUNK/FERNWOOD FLIGHT STANDARDS DISTRICT OFFICE

September 10, 2004

Mr. Zoltan Winger
12345 Easy Street
Fernwood, USA

and

Mr. Ned "Bud" Kanezzer
Airport Manager
Podunk Municipal Field
Fernwood, USA

Re: Use of Grassy Area for Aircraft Operations

Dear Messrs. Winger and Kanezzer:

By letter dated October 31, 2003, we advised PMS Airport Management of our concerns over the use of the grassy area west of the runway and east of the north-south taxiway for takeoffs and landings. Specifically, we are concerned that continued operations of this type may create both airborne and ground collision hazards.

Moreover, under the Airport's FAR Part 139 certification, the only approved area for takeoffs and landings is the paved 5,000 foot north-south runway.

We direct you to immediately cease and desist from the use of the grassy area for takeoffs and landings. Moreover, taxi operations should be confined to the paved taxiways.

Should you wish to discuss this matter further, please give us a call.

Very truly yours,

Harlow Wien
Principal Operations Inspector

ATTACHMENT D

September 12, 2004

Mr. Harlow Wien
Principal Operations Inspector
FAA/PMS FSDO
Fernwood, USA

Re: Letter of Investigation, File No. 2004WOW007007

Dear Mr. Wien:

This is in response to your letter of investigation of September 10, 2004.

I was flying N24AZ into PMS on April 15, 2004. My passengers were my two dogs, who were secured in the back seat by an STC'd harness.

I had just replaced the tundra tires, which as you know are very expensive. In order to preserve tire life, I landed in the grassy area. PMS is uncontrolled and there is no FAR prohibiting me from landing in the grassy area.

After touchdown and rollout, and as I turned towards the west, the sun was in my eyes. I was also hurried, as I had just completed two-hour flight and I needed to go to the bathroom. I did not see N42ZA, and I did not expect that there would be any aircraft parked in this seldom-used area. My kids had been flying N42ZA and they were supposed to have taxied it to and parked it in my hangar.

This was an expensive ordeal for me and my insurance company.

Very truly yours,

Zoltan "Wingman" Winger

ATTACHMENT E

December 24, 2004

ORDER OF SUSPENSION

Through a Notice of Proposed Certificate Action dated October 14, 2004, you were advised of our proposal to suspend your Private Pilot Certificate.

It has been determined by the Administrator of the Federal Aviation Administration, acting by and through her Regional Counsel that:

1. You are now, and at all times mentioned herein were, the holder of Private Pilot Certificate No. 1234567.
2. On or about April 14, 2004, at approximately 6:00 p.m., you acted as pilot in command of an Iditirod Malamute aircraft, N24AZ, the property of another, on a flight that terminated at the Podunk Municipal Field (PMS), Fernwood, USA.
3. Incident to said flight, you landed a N24AZ in a grassy unpaved area of PMS between taxiway and an aircraft tie down ramp. Said unpaved area was not a designated runway.
4. Incident to said landing, you allowed your aircraft to collide with N42ZA, another Iditirod Malamute, the property of another, that was parked at the tie down ramp described above in paragraph three.
5. Your operation of N24AZ as set forth above was careless or reckless in that it endangered the life and property of others.

By reason of the foregoing facts and circumstances, you violated the following Federal Aviation Regulation:

Section 91.13(a) in that you operated an aircraft, in a careless or reckless manner so as to endanger the life or property of another.

By reason of your actions as hereinbefore described, you failed to exercise the degree of care, judgment and responsibility required of the holder of an Private Pilot Certificate.

The Administrator has determined that, by reason of the foregoing circumstances, safety in air commerce and the public interest require suspension of your Private Pilot Certificate No. 1234567 and any other airman pilot certificate held by you.

NOW, THEREFORE, IT IS ORDERED, pursuant to the authority vested in the Administrator by 49 U.S.C. Section 44709(a), that:

1. Private Pilot Certificate No. 1234567 now held by you be and it hereby is suspended;
2. Said suspension shall become effective on January 23, 2005, and shall continue in effect until said certificate hasbeen suspended for a period of 90 days;
3. Said certificate may be surrendered on or before the effective date in this Order by mail or delivery to the Regional Counsel of the Federal Aviation Administration, Post Office Box 707727737747, Anytown, USA the Office of the Regional Counsel, Room 666, 15000 Hades Boulevard, Anytown, USA;
4. If you fail to surrender your certificate on or before January 23, 2005, the effective date of this Order, said suspension shall continue in effect until subsequent to the actual date of surrender thereof to the Federal Aviation Administration; and
5. No application for a new certificate shall be accepted from you, nor shall any certificate be issued to you, during the period of suspension imposed by this Order.

Dudley DuRight
Regional Counsel

By:________________________
C. Noevil
Attorney

APPEAL
You may appeal this Order within twenty (20) days from the time of its service upon you by submitting an original and 4 copies of your Notice of Appeal to the Office of Judges, National Transportation Safety Board, Room 4704, 490 L'Enfant Plaza East, S.W., Washington, D.C. 20594, telephone: 1-800-854-8758. A copy of your Notice of Appeal should be furnished this office. In the event of an appeal of this Order, Part 821 of the National Transportation Safety Board Regulations will be applicable to and govern the proceedings, and a copy of this Order will be filed with the Board and constitute the Administrator's Complaint. Such appeal will stay the effectiveness of this Order.

ATTACHMENT F

UNITED STATES OF AMERICA
NATIONAL TRANSPORTATION SAFETY BOARD
OFFICE OF ADMINISTRATIVE LAW JUDGES

MARION C. BLAKEY,Administrator

DOCKET NO.____________
FAA Case No. 2004WOW007007

Federal Aviation Administration,

Complainant,

v.

ZOLTAN WINGER

Respondent.

NOTICE OF APPEAL

TO THE NATIONAL TRANSPORTATION SAFETY BOARD AND ITS CHIEF ADMINISTRATIVE LAW JUDGE, AND TO THE ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION AND HIS ATTORNEYS OF RECORD:

ZOLTAN WINGER, by and through his undersigned counsel, hereby appeals the Order of Suspension, issued on December 24, 2004, by the Administrator, Federal Aviation Administration, acting by and through her Regional Counsel.

Respondent requests that this matter be set for hearing in Fernwood, USA after filing of the required pleadings and completion of anticipated discovery.

Dated: Y.I. GETIMOFF, ESQ.
FINDIM AND GETIMOFF, LLP
1000 Enron-Tyco Plaza
Fernwood, USA
Telephone: 1-666-438-4663
FAX: 1-666-438-4664

ATTACHMENT G

UNITED STATES OF AMERICA
NATIONAL TRANSPORTATION SAFETY BOARD
OFFICE OF ADMINISTRATIVE LAW JUDGES

MARION C. BLAKEY, Administrator,

DOCKET NO.____________
FAA Case No. 2004WOW007007

JUDGE: Unassigned

Federal Aviation Administration,

Complainant,

v.

ZOLTAN WINGER

Respondent.

ANSWER TO COMPLAINT

TO THE NATIONAL TRANSPORTATION SAFETY BOARD AND ITS CHIEF ADMINISTRATIVE LAW JUDGE, AND TO THE ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION AND HER ATTORNEYS OF RECORD:

Respondent, ZOLTAN WINGER ("Respondent"), by and through his undersigned counsel, answers Complainant's Order of Suspension dated December 24, 2004, which has been filed as the Complaint in this matter on or about January 5, 2005.

1. Answering Paragraph 1. of the Complaint, Respondent admits that he is now and at all times herein, was the holder of Private Pilot Certificate No. 1234567. Except as expressly admitted above, Respondent denies each and every, all and singular, allegations contained therein, and each and every part thereof, both generally and specifically, conjunctively and disjunctively.
2. Answering Paragraph 2. of the Complaint, Respondent admits that on or about April 14, 2004, he acted as pilot-in-command of an Iditirod Malamute aircraft, N24AZ, on a flight that terminated at the Podunk Municipal Field (PMS). Except as expressly admitted above, Respondent denies each and every, all and singular, allegations contained therein, and each and every part thereof, both generally and specifically, conjunctively and disjunctively.
3. Answering Paragraph 3. of the Complaint, Respondent denies each and every, all and singular, allegations contained therein, and each and every part thereof, both generally and specifically, conjunctively and disjunctively.
4. Answering Paragraph 4. of the Complaint, Respondent denies each and every, all and singular, allegations contained therein, and each and every part thereof, both generally and specifically, conjunctively and disjunctively and specifically denies that he allowed his aircraft to collide with any aircraft.
5. Answering Paragraph 5. of the Complaint, Respondent denies each and every, all and singular, allegations contained therein, and each and every part thereof, both generally and specifically, conjunctively and disjunctively and specifically denies that his operation of N24AZ was careless or reckless or that it endangered the life and property of others.

Answering the remainder of the Complaint, Respondent denies each and every, all and singular, allegations contained therein, and each and every part thereof, both generally and specifically, conjunctively and disjunctively and specifically denies that he violated Section 91.13(a), or any other section, of the Federal Aviation Regulations. Respondent further avers that Section 91.13(a) speaks for itself.

FIRST AFFIRMATIVE DEFENSE

As and for a separate and distinct defense, Respondent alleges:

I.  The Complaint fails to state a cause of action.

SECOND AFFIRMATIVE DEFENSE

As and for a separate and distinct defense, Respondent alleges:

The enforcement action taken by Complainant is unwarranted by the facts, safety in commerce and the public interest and is excessive.

II.  The allegation(s) and finding(s) of regulatory violation(s) sought by Complainant are unwarranted by the facts, safety in commerce and the public interest and are excessive.

III.  The sanction sought by Complainant is unwarranted by the facts, safety in commerce and the public interest and is excessive.

THIRD AFFIRMATIVE DEFENSE

As and for a separate distinct defense, Respondent alleges:

The Complainant's case, is unwarranted and without basis or jurisdiction in law or fact. WHEREFORE, it is prayed that the Board not enter an order finding any of the alleged violations or imposing a suspension of Respondent's Private Pilot Certificate No. 1234567 for a period of 90 days, or for any other period of time, that the Complaint be dismissed with prejudice, that Respondent's costs and expenses incurred in the defense of this action be awarded to him under the Equal Access to Justice Act; and for such other and further relief as may be deemed appropriate.

Dated: January 25, 2005

Y.I. GETIMOFF, ESQ.
FINDIM AND GETIMOFF, LLP
1000 Enron-Tyco Plaza
Fernwood, USA
Telephone: 1-666-438-4663
FAX: 1-666-438-4664

* * * *
AND FINALLY, WE DON'T RECALL WHERE WE GOT THIS...

but at least it appears to be genuine (or at least a file copy of the real thing). Looks like some 62 years ago, lawyers were as "well appreciated" as they are today! Whether it is genuine or not, it's bound to generate at least a smile.

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