Boeta v. Fed. Aviation Admin.

• Decision Date: 04 August 2016
• Docket Number: No. 15-60431,15-60431
• Citation: 831 F.3d 636
• Parties: Richard L. Boeta, Petitioner v. Federal Aviation Administration, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

831 F.3d 636

Richard L. Boeta, Petitioner
v.
Federal Aviation Administration, Respondent.

No. 15-60431

United States Court of Appeals, Fifth Circuit.

Filed August 4, 2016

Gary Linn Evans, Coats & Evans, The Woodlands, TX, for Petitioner.

Jessica E. Kabaz–Gomez, Esq., J. Randolph Babbitt, Andrew Steinberg, U.S. Federal Aviation Administration, Office of the Chief Counsel, AGC—300, Paul Maitland Geier, Esq., Paul Maitland Geier, Esq., Assistant General Counsel, U.S. Department of Transportation, Maritime Administration, Washington, DC, for Respondent.

831 F.3d 638

Before JONES, WIENER, and HIGGINSON, Circuit Judges.

WIENER, Circuit Judge:

Petitioner Richard Boeta appeals the final decision of the National Transportation Safety Board (“NTSB”), affirming the initial decision of an Administrative Law Judge (“ALJ”) which upheld the Federal Aviation Administration's (“FAA”) sixty days suspension of Boeta's air transport pilot certificate. For the reasons hereafter set forth, we (1) grant Boeta's petition for review of the NTSB's final decision; (2) reverse that decision with respect to Boeta's waiver-of-sanction defense; (3) vacate the FAA's sixty days suspension of his air transport pilot certificate; and (4) remand for further disposition and completion of this matter by the NTSB and the FAA, consistent herewith.

I.

A.

The appealed ruling of the ALJ that affirmed the FAA's order suspending Boeta's air transport pilot certificate resulted from the flight of a small, twin-engine jet aircraft (“N497RC”) that Boeta occasionally piloted. At all relevant times, Redi-Carpet Properties, LLC (“Redi-Carpet”) owned N497RC and Capital Aerospace, LLC (“Capital”) managed it. At no time did either Redi-Carpet or Capital have a certificate under 14 C.F.R. part 119, without which Redi-Carpet was restricted to operating N497RC under 14 C.F.R. part 91, noncommercially, for its or its lessee's own use.¹ Redi-Carpet only did so through Capital, which served as its agent. Under this arrangement, Redi-Carpet, through Capital, had possession of and “operational control”—viz. , the “exercise of authority over initiating, conducting or terminating a flight”—over N497RC as its owner.² Boeta, who was employed by Capital, was thus an agent of both Capital and Redi-Carpet.

Redi-Carpet could also transfer its possession and operational control of N497RC to another entity through a “dry lease” agreement, under which the lessor provides an aircraft to a lessee without furnishing the pilot or any other crew members.³ During the course of a dry lease, Redi-Carpet, as lessor, would relinquish—and the other entity, as lessee, would assume—possession and operational control of N497RC. Capital would then operate N497RC as that lessee's agent.

In 2009, Capital and Redi-Carpet agreed that Capital would obtain a certificate under part 119 so that Capital could operate N497RC commercially, for the benefit of other entities apart from Redi-Carpet or its lessees, under part 135. Once Capital obtained that certificate, Redi-Carpet

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planned to transfer possession and operational control of N497RC to Capital through a dry lease agreement,⁴ and Capital would then act as N497RC's “operator” in its own right, not merely as Redi-Carpet's agent.

To obtain its certificate under part 119, Capital entered into an agreement with USAC Airways (“USAC”). USAC was to consult with Capital during the term of that agreement. To facilitate this arrangement, Redi-Carpet transferred possession of and operational control over N497RC to USAC under a separate dry lease agreement. This dry lease agreement stated that “[USAC] shall have full and exclusive operational control, as well as possession, command and control of [N497RC]” and “shall have full and final authority over the dispatch and conduct of flights in [N497RC], except for safety or flight issues, over which such issues the Pilot-in-Command shall have full and final authority.”

To operate a flight commercially under part 135, the operator must not only have a certificate under part 119, but must have operations specifications (“OpSpecs”) as well.⁵ OpSpecs are issued by the FAA and “prescribe [the operator's] authorizations, limitations, and procedures,”⁶ including the “[t]ype of aircraft, registration markings, and serial numbers of each aircraft authorized for use.”⁷

After entering the dry lease with Redi-Carpet, USAC requested that the FAA amend USAC's existing OpSpecs to include N497RC, after which USAC would be authorized to operate N497RC commercially under part 135. Although Boeta remained Capital's employee throughout, he also became USAC's agent during this transition and was allowed to operate N497RC as its agent.⁸

USAC also obtained FAA authorization to operate N497RC in reduced vertical separation (“RVSM”) airspace, in which air traffic control (“ATC”) reduces the minimum vertical separation between aircraft from 2,000 to 1,000 feet.⁹ To obtain such authorization, the operator must implement specified maintenance and training procedures which ensure that its aircraft and its pilots will operate safely in RVSM airspace.¹⁰ It also must demonstrate that its aircraft meets specified standards. Since USAC already held a certificate under part 119, its authority to operate N497RC in RVSM airspace was included in its OpSpecs. (If it had not had such a certificate in its Op Specs, that authority could have been included in a letter of

831 F.3d 640

authorization (“LOA”)).¹¹

USAC, which had operational control of N497RC during its dry lease from Redi-Carpet, dispatched all flights on N497RC through a computer-generated flight dispatch sheet. At the ALJ's hearing, USAC's chief pilot stated that Boeta and all other pilots at USAC “had gone through our training program so they understood about operational control and all the aspects of setting up a flight, conducting a flight, terminating a flight, and who has operational control. They understood the importance of a dispatch sheet.”

By 2011, USAC had apparently become concerned that it was “losing operation control” of N497RC. As a result, USAC gave oral notice to Capital that it was terminating their agreement. (It does not appear, however, that USAC gave notice to Redi-Carpet that it was terminating their separate dry lease agreement, although that seems to have been USAC's intention.) USAC dispatched its last flight for Capital in March 2011. In May, USAC requested that the FAA amend its OpSpecs to remove N497RC. In so doing, USAC surrendered its authorization to operate N497RC in RVSM airspace.

Capital, which had no part 119 certificate, was not authorized to operate commercially under part 135. Instead, it operated N497RC as it had prior to its agreement with USAC—viz. , as Redi-Carpet's or its lessee's agent.

Even though the agreement between Capital and USAC had terminated (and the dry lease between Redi-Carpet and USAC had presumably terminated as well), the agency relationship between Boeta and USAC continued. No one at USAC ever spoke with or wrote to Boeta about that. Neither did USAC notify Boeta that operational control of N497RC had shifted away from USAC or that USAC was no longer authorized by the FAA to operate N497RC because USAC's OpSpecs had been amended. However, Boeta ceased receiving USAC's dispatch sheets and instead began receiving Capital's trip sheets. This could have—and probably should have—indicated to him that USAC no longer had possession of or operational control over N497RC.

In September 2011—four months after USAC had the FAA remove N497RC from its OpSpecs—Boeta received a trip sheet from Capital, instructing him to pilot N497RC from Sugar Land, Texas, to Palm Beach, Florida. Redi-Carpet apparently operated that flight noncommercially, through Capital, for its own use under part 91. Boeta, as Capital's employee and agent, was presumably to pilot it as Redi-Carpet's agent.

Before commencing the flight to Palm Beach, Boeta filed a flight plan with the FAA. On it, he indicated that N497RC's operator was authorized to use N497RC in RVSM airspace, and he proceeded to pilot the subject flight in RVSM airspace.

We can only speculate that, for reasons of its own, USAC might have alerted the FAA to N497RC's unauthorized flight in RVSM airspace: It cannot be purely coincidental that, when Boeta landed N497RC at Palm Beach, the aircraft was met by FAA inspectors who performed a “ramp check.” They asked Boeta to verify that the operator had authorization for N497RC to be flown in RVSM airspace. Boeta initially told the inspectors that the flight had been operated under part 91, prompting the inspectors to ask to see the owner's LOA authorizing it to operate in RVSM airspace. Boeta returned to the aircraft and “searched for sometime” before calling Capital to fax him a copy of the

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LOA. Instead, Capital faxed a copy of USAC's unamended OpSpecs. Boeta then told the inspectors that he had misspoken; that the flight had actually been operated under part 135, not part 91.

The inspectors then asked to see the operator's OpSpecs. Boeta gave them USAC's outdated OpSpecs, which indicated that USAC was authorized to operate...