Babbitt v. Wallace

• Decision Date: 09 July 2009
• Docket Number: SE-18428,SE-18429
• Parties: J. RANDOLPH BABBITT, Administrator, Federal Aviation Administration, Complainant, v. ROBERT EARL WALLACE and GLOBAL AIR CHARTER OF KY, LLC, Respondents. NTSB No. EA-5461
• Court: Court of National Transportation Safety Board

J. RANDOLPH BABBITT, Administrator, Federal Aviation Administration, Complainant, v. ROBERT EARL WALLACE and GLOBAL AIR CHARTER OF KY LLC, Respondents. NTSB No. EA-5461

Nos. SE-18428, SE-18429

United States Court of National Transportation Safety Board

July 9, 2009

Adopted by the NATIONAL TRANSPORTATION SAFETY BOARD at its office in Washington, D.C. on the 6^th day of July, 2009.

Rashawn Rich George, Esq., FAA Southern Region.

Charles W. Arnold, Esq., Attorney at Law.

OPINION AND ORDER

Respondents have appealed from the written initial decision and order of Administrative Law Judge William A. Pope, II, issued on January 23, 2009, following an evidentiary hearing held on December 18-19, 2008, and written closing arguments that the parties submitted after the hearing.^[1] The law judge denied respondents' appeal and found that Respondent Wallace had operated a flight under 14 C.F.R. part 135, rather than part 91, and therefore violated 14 C.F.R. §§ 135.293(a) and (b), ^[2]61.59(a)(2), ^[3] 119.5(1), ^[4] and 91.13(a).^[5] The law judge also revoked the air carrier certificate of Global Air Charter of Kentucky, LLC (Global) on the same basis. We deny respondents' appeal.

The Administrator issued emergency orders of revocation concerning both respondents on November 6, 2008, ^[6] alleging that Respondent Wallace, who is the owner of Global, had conducted a passenger-carrying flight for compensation on February 21, 2008, under 14 C.F.R. part 135. The order alleged that Respondent Wallace falsified a flight manifest form in that the form specified that "D. DiLoreto" was the second-in-command (SIC) of a flight from Orlando, Florida, to Teterboro, New Jersey, when Mr. DiLoreto was not on the flight. The Administrator's order further alleged that Respondent Wallace had falsified a request for flight release form regarding the same flight in that the form erroneously showed that Mr. Daniel Showalter had determined the aircraft to be airworthy and released the aircraft for flight, when Mr. Showalter had not done so. The order also stated that Respondent Wallace was required to have a SIC on the flight who was currently qualified to operate a part 135 flight, but that Mr. Dick Lechtrecker, who was not currently qualified under part 135, acted as SIC on the flight, rather than Mr. DiLoreto. Based on these allegations, the Administrator ordered revocation of Respondent Wallace's airline transport pilot (ATP) certificate, as well as revocation of the air carrier operating certificate that Global holds.

At the hearing, the Administrator called the aviation safety inspector, the principal operations inspector, and the principal maintenance inspector from the Louisville, Kentucky Flight Standards District Office, all of whom were involved in the certification of Global and the investigation of the February 21, 2008 flight. Each inspector testified that they attended a meeting on April 14, 2008, at which Respondent Wallace and other Global employees were present. At the meeting, Respondent Wallace stated that he knew that Mr. Lechtrecker was not "current" to conduct a flight under part 135, and that other Global employees who were current under part 135 were unavailable, because respondent had short notice for the flight. Respondent told the inspectors that he consequently chose to conduct the flight under 14 C.F.R. part 91, rather than part 135. The inspectors also stated that Mr. Showalter, who was the director of maintenance at Global, told the inspectors at the meeting that he did not release the aircraft for flight on February 21, 2008, and that he never saw paperwork indicating that the flight was under part 135. The inspectors further testified that Mr. DiLoreto told them that the flight manifest form did not contain his signature, and that someone else had signed his name. Each inspector also stated that they believed that Respondent Wallace had conducted the flight under part 135, because he received compensation for it.

The Administrator also called Mr. Showalter to testify. Mr. Showalter stated that he did not see the flight release form on February 21, 2008, and that he would not have released a flight under part 135 with Mr. Lechtrecker as SIC. Tr. at 86- 87. Mr. Showalter stated that Respondent Wallace told him that he had changed the paperwork to indicate that the flight was conducted under part 91. Finally, Mr. Showalter testified that he was the only person who could have released the February 21 flight, because Global's Operations Manual requires that Respondent Wallace, Mr. Lechtrecker, and Mr. Showalter are the only employees who may release flights, and that the person releasing a flight cannot be part of the crew for the flight.

In support of the Administrator's case-in-chief, the Administrator's counsel provided several exhibits, including a portion of the Operations Specifications that authorizes Global to conduct flights under part 91 for certain activities, provided that such flights are not conducted for compensation or hire. Exh. A-l. The Administrator's counsel also provided the daily flight control log from February 21, 2008, which shows that the flights were conducted under part 135 (Exh. A-l), and the request for flight release form for the February 21 flight, which reflects that the flight at issue was conducted under part 135, that Mr. Showalter released the flight, and that Mr. DiLoreto was SIC for the flight (Exh. A-8). The Administrator's counsel also offered the flight manifest form for the same flight, which indicates that Respondent Wallace was pilot-in-command (PIC) for the flight and that Mr. DiLoreto was SIC (Exh. A-9), as well as the passenger manifest form, which also lists Respondent Wallace and Mr. DiLoreto as PIC and SIC (Exh. A-10). In addition, the invoice from Global to Freedom Jets, which was the customer of Global, also came into evidence; the invoice indicates that Global billed Freedom Jets for various charges that totaled $12, 001 for the flight, but states "Part. 91" under the column entitled "Type." Exh. A-11. The Administrator's counsel also submitted Respondent Wallace's response to the Letter of Investigation that he received from the aviation safety inspector concerning the February 21 flight, in which Respondent Wallace stated that it was the common practice at Global for the PIC to sign on behalf of the SIC, "in the interest of expediting the dispatch process, but never without the SICs' knowledge and concurrence." Exh. A-20 at 3. The response also stated that Respondent Wallace had elected to re-dispatch the flight under part 91 with Mr. Lechtrecker serving as SIC, and that Mr. Showalter concurred with this change. Id.

In response to the Administrator's case, respondents renewed their motion to dismiss, stating that they had suffered prejudice because the Administrator's complaint was stale, that the allegations did not constitute an emergency, and that equitable estoppel barred the Administrator from pursuing the case.^[7] Tr. at 145-47. The law judge denied the motion, but offered to continue the hearing to allow respondents to prepare their defense, based on respondents' equitable estoppel argument. Tr. at 148-52.

During respondents' response to the Administrator's case, Respondent Wallace testified that he had received a call from his friend, Dan Bailey at Freedom Jets, who asked Respondent Wallace to transport passengers the following morning from Orlando to Teterboro. Respondent Wallace agreed to conduct the flight, but stated that one of his employees, Jeremy Birch, was sick both of the days that Respondent Wallace contacted him, so he could not serve as SIC for the flight. Respondent Wallace further testified that he asked Mr. DiLoreto whether he could serve as SIC for the flight, but that Mr. DiLoreto declined, because he needed to attend a birthday event for his son. Respondent Wallace then informed Mr. Bailey that he could not conduct the flight under part 135 "because of the crewing, " and that Mr. Bailey "was not very happy." Tr. at 160. Respondent Wallace testified that he then realized that Mr. Lechtrecker could serve as SIC on the flight if he conducted the flight under part 91, and re-categorized the flight as such. Mr. Lechtrecker then arrived for the flight, which was already late, and they spoke with Mr. Showalter about conducting the flight under part 91. Respondent Wallace stated that Mr. Showalter told him, "well I'm not dispatching a part 91 flight, " to which Respondent Wallace replied, "fine, it doesn't require one." Tr. at 160. Respondent Wallace testified that he had nevertheless started to fill out the flight log the night before the flight, which was his practice, and that the log showed that the flight was to occur under part 135. Respondent Wallace stated that he intended to use the log to record the times, and then complete a corrected log showing the flight as one under part 91, after the flight. Respondent Wallace stated that his son, Kevin Wallace, keeps the paperwork for his flights, and accidentally discarded the corrected paperwork showing that the flight occurred under part 91, because he believed the paperwork was an unnecessary duplicate. Respondent Wallace testified that he was "shocked" to see the part 135 paperwork at the April 14, 2008 meeting with the FAA inspectors, because he believed that his son had retained only the part 91 paperwork. Tr. at 178-79. Respondent Wallace suggested that the FAA contact Mr. Bailey to confirm that he expressed his intention to conduct the flight under part 91, not part 135.^[8]

Respondent Wallace also stated that he informed the passengers on the flight that the flight was not a charter, and that he was transporting them only on a "cost basis." Tr. at 163. Respondent Wallace stated that he...