Dickson v. Kolodziejczyk

Decision Date05 October 2021
Docket NumberSE-30357,NTSB Order EA-5909
PartiesSTEPHEN M. DICKSON[1], Administrator, Federal Aviation Administration, Complainant, v. MARCIN KOLODZIEJCZYK, Respondent.
CourtCourt of National Transportation Safety Board

Adopted by the NATIONAL TRANSPORTATION SAFETY BOARD at its office in Washington, D.C. on 4th day of October, 2021

I. Background

Respondent appeals the oral initial decision of Administrative Law Judge Alfonso Montaño, issued on September 20 2018.[2] By that decision, the law judge affirmed the Administrator's emergency revocation[3] of respondent's airline transport pilot (ATP) certificate and any pilot certificate respondent holds based on respondent's alleged violation of 14 C.F.R §§91.117(b), [4] 91.519(a), [5] 91.533(a)(1), [6] and 91.13(a).[7] For the reasons set forth below, we deny respondent's appeal and affirm the law judge's decision.

A. Facts

At all times relevant herein, respondent was employed as a pilot by Mesa Airlines (Mesa), a company authorized to operate as an air carrier under 14 C.F.R. Part 121.[8] On October 1, 2016, respondent was the pilot-in-command (PIC) of a Bombardier CRJ900.[9] The following facts were admitted on summary judgment.[10] On October 1, 2016, Mesa dispatched Flight ASH9819 from the Prescott Municipal Airport (PRC) in Prescott, Arizona, to Phoenix, Arizona, as a positioning flight under 14 C.F.R. Part 91 with no passengers.[11] Despite the dispatch, respondent operated Flight ASH9819 as PIC with approximately 29 passengers on board.[12] At PRC, the CRJ900 was placed on static display as part of an airshow held that day.[13] Before Flight ASH9819 departed from PRC, the airshow announcer informed attendants that the CRJ900 would perform some low passes.[14] Neither Mesa nor respondent obtained a waiver from the FAA to participate in the airshow event at PRC on October 1, 2016.[15] After take-off from PRC, respondent performed three high speed, low altitude passes less than 100 feet above runway 21L and at an indicated airspeed of more than 200 knots.[16] The low passes were performed with numerous spectators standing approximately 500 feet from runway 21L.[17] Respondent performed each low pass with the CRJ900's landing gear and flaps retracted.[18] During each low pass, respondent deviated from Mesa's General Operations Manual (GOM) containing procedures on how to conduct an approach in a CRJ900.[19] Respondent did not provide a safety briefing to the passengers and operated the flight without a flight attendant on board.[20] Respondent's operation of the CRJ900 was careless and reckless.[21]

In addition, the evidence shows that respondent appointed Mark A. Jensen as the pilot second-in-command (SIC) on Flight ASH9819 and at the controls of CRJ900 when he and Mr. Jensen performed the low passes.[22] Respondent was aware that Mr. Jensen did not meet the currency requirements to fly the CRJ900 on October 1, 2016.[23] Also, it was respondent's decision that he and Mr. Jensen would perform the low passes.[24] Before the departure from PRC, the air traffic control (ATC) tower at PRC cleared Flight ASH9819 to perform three low passes at the speed of 200 knots.[25] The relevant portion of the ATC transcript states:

"23:18:46 KPRC Local 1 All right, Air Shuttle 9819 what will your um airspeed be on final
23:18:50 ASH9819 200 knots unless you can give us a little bit final uh faster
23:18:54 KPRC Local 1 Well, I'll clear out room for you but I just need to know that'll be fine
23:18:56 ASH 9819 Yeah, it'll be 200 knots
23:18:58 KPRC Local 1 All right…"[26]

Each time respondent performed a low pass, loud warnings were heard coming from the cockpit about low altitude and gear.[27] After the incident, the FAA sent an initial letter of investigation to respondent. Within 24 hours of receiving the letter, respondent filed an Aviation Safety Action Program (ASAP) report and a NASA Aviation Safety Reporting System (ASRS) report.[28] The Mesa Event Review Committee subsequently rejected respondent's ASAP report for unclear reasons.[29]

B. Procedural Background

On March 30, 2017, the Administrator issued an emergency order revoking respondent's ATP certificate and any pilot certificate respondent held. Respondent timely appealed on April 4, 2017. On April 5, 2017, the Administrator filed the order as the complaint, indicating that it was served on respondent by overnight mail service and on Lauren Reed, respondent's counsel, by overnight mail and electronic mail (e-mail) at lauren.reed@alpa.org.[30] On the same day, April 5, 2017, the NTSB's Office of Administrative Law Judges (OALJ) sent an e-mail to lauren.reed@alpa.org acknowledging receipt of the appeal and attaching a letter reminding respondent that, when emergency procedures are waived, respondent must file an answer to the complaint within 20 days from the date of service of the complaint under 49 C.F.R. § 821.55(b).[31] Later that day, Ms. Reed sent an e-mail from lauren.reed@alpa.org to the Administrator and the OALJ waiving the emergency procedures in respondent's case.[32] Respondent's deadline for filing the answer was April 25, 2017.

On May 11, 2017, the OALJ sent an e-mail to lauren.reed@alpa.org asking whether answers were filed in respondent's case.[33] On May 12, 2017, more than 30 days after the Administrator served the complaint, respondent filed a motion to allow a delay of filing of the answer under 49 C.F.R. § 821.11(a). In the motion, Ms. Reed alleged that she had thought the Administrator would be filing an amended complaint acknowledging the waiver of the emergency procedures and correcting the attorney of record and that she never received the acknowledgement letter sent to her by the OALJ on April 5, 2017. On May 16, 2017, the Administrator filed a motion to deem the allegations admitted, and respondent filed a reply to the motion on May 26, 2017. On September 15, 2017, the law judge entered an order for partial judgment on the pleadings in favor of the Administrator. The order deemed all the factual allegations in the complaint admitted, thereby finding respondent violated 14 C.F.R. §§ 91.117(b), 91.519(a), 91.533(a)(1), and 91.13(a), but deferred the question of propriety of the sanction of revocation until the hearing for a determination of mitigating and aggravating factors.

Subsequently, the parties engaged in discovery on the sanction issue. In response to a request for files from the CRJ900's flight data recorder (FDR), the Administrator directed respondent to refer to the releasable portions of the enforcement investigative report (EIR) provided to respondent on March 30, 2017.[34] After respondent's first discovery request and the Administrator's initial and supplemental responses, respondent filed a motion to compel, requesting copies of documents provided by Mesa to the FAA and copies of ATC recordings.[35] Respondent also indicated that Mesa previously provided to the FAA the raw data and conversion files from the FDR and again requested a review of these files. Respondent also requested the investigative files, notes, and other documents related to his case, and the Administrator objected on the ground of deliberative process privilege. During a conference call on May 29, 2018, the law judge instructed the Administrator to provide any supplemental discovery responses by June 8, 2018, and for respondent to update his motion to compel if necessary. The parties subsequently communicated, and the Administrator provided a disc containing responsive documents without waiving the objection as to privileged information.[36]Specifically, the Administrator indicated in an e-mail to respondent that the original FDR data had already been provided with the releasable portions of the EIR and contained on a disc labeled "IOP17 FDR Data."[37] In addition, in another e-mail, the Administrator indicated to respondent that "IOP17 FDR Data" contained the FDR data the FAA had received from Mesa and that the FAA did not have any other FDR data concerning this case.[38]

On June 15, 2018, respondent filed an amended motion to compel requesting five categories of documents: (1) all documents provided by Mesa to the FAA in unredacted form; (2) documents from each office that held certificate oversight responsibility for Mesa beginning October 1, 2016; (3) the full letter with attachments from Mesa dated January 30, 2017, and copies of Mesa's GOM and the Company Flight Manual (CFM) in effect on October 1, 2016; (4) a detailed privilege log and the reasons for redactions; and (5) any remaining records from the ATC tower. On June 22, 2018, the Administrator filed an opposition to respondent's amended motion to compel, contending that all available information had been provided to respondent, the information respondent sought was privileged, and respondent failed to demonstrate a particularized need for the disclosure of such information.

At the subsequent prehearing conference, the law judge denied respondent's motion to compel.[39] At the hearing, the law judge indicated that the denial was based on respondent's failure to state a particularized need for the privileged information he sought; the overbroad nature of the request for the privileged information; the Administrator's argument that all discoverable information was provided was credible; and the fact that respondent's request for additional information appeared to be an attempt to relitigate the matters decided on summary judgment and would not reasonably lead to relevant information on the issue of sanctions.[40]

The law judge held a full evidentiary hearing on the sanction issue on September 11-13, 2018.[41] The following witnesses testified for the Administrator: Tina Buskirk, an aviation...

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