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April 24, 2010 - Darby Aviation disputes the claims outlined in the Federal Aviation Administration's (FAA) recent filing suspending Darby Aviation's Part 135 certificate, which permits Darby Aviation to charter aircraft operations for hire to the general public. "This suspension action revolves around a manual that the FAA has claimed is insufficient, however it is the same manual that has been approved since 1992 and incorporates all changes required and approved by six (6) prior FAA inspectors. "In
fact, the present Front Line Manager of the |
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“The FAA is an
agency of the
"Upon information and belief, particular individuals at the Birmingham
FSDO, including the Manager, the Front Line Operations Manager, Darby
Aviations’ POI, Darby Aviation’s prior Principal Maintenance Inspector
(“PMI”), an Aviation Safety Inspector, and perhaps others have conspired
to put Darby Aviation out of business. It appears the motive behind this
conspiracy relates to the 2005 Platinum accident in
"The Birmingham FSDO requested Darby Aviation amend its certificate to
add Jets leased by Platinum and Darby complied. After all regulatory
modifications and requirements were satisfactorily completed, the FAA
approved the addition of the Platinum Jets to operate under Darby’s
certificate and approved the structure of the relationship. Per the
approved contracts and manuals, Platinum was required to submit proper
documentation to Darby and to receive approval before conducting any
flight under its certificate. Subsequently, without submitting
documentation and without Darby’s knowledge, sanction or approval,
Platinum took the subject 2005 flight that resulted in the accident.
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"The Platinum
incident was fully investigated and it was determined that Platinum did
not obtain the proper authorizations from Darby before conducting the
subject flight. The Teterboro FSDO sought to suspend indefinitely Darby
Aviation’s Part 135 Certificate, claiming that the contract with
Platinum that was recommended and approved by the Birmingham FSDO
resulted in Darby Aviation not having operational control over Platinum.
"The National
Transportation Safety Board (“NTSB”) Administrative Law Judge (“ALJ”)
found Darby innocent of all charges and ruled that Platinum violated the
approved contract by conducting the flight without authority, as it was
required to do. A panel of the NTSB who did not hear the testimony
reversed the ALJ opinion and found that the Birmingham FSDO and Darby
Aviation were equally culpable in not preventing Platinum from
committing fraud and conducting the unapproved, unsanctioned, and
forbidden flights. The FAA has publicly admitted to its errors in the
Darby case.
"The NTSB panel
also ruled that the FAA must act in good faith with Darby Aviation and
that any suspension had to be lifted once Darby Aviation and the
Birmingham FSDO restructured any approved arrangement that the NTSB
could consider as insufficient operational control. Darby Aviation was
subjected to an NTSB inspection, an OSIP inspection and a NASIP
inspection, all of which Darby passed without issue. Darby Aviation was
given full approval to continue operations in a short period of time.
The Birmingham FSDO, however, was reprimanded by superiors for failing
to sufficiently perform its duties. This apparently embarrassed the
Birmingham FSDO and it has been on a mission to put Darby Aviation out
of business ever since.
"Shortly
thereafter, the individuals at the Birmingham FSDO who supported Darby
Aviation’s innocence either “retired” or were faced with frivolous
certificate actions as punishment. For instance, Ed Jeszka, Darby’s
Principal Operations Inspector (“POI”) in the Birmingham FSDO when
Platinum was at issue and Ray Ledbetter, a veteran and lifelong aviator
who was not involved in Platinum, but was merely caught in the cross
fire, were served with emergency revocations of their pilot certificates
for reporting a check ride occurred on March 28th that the Birmingham
FSDO claimed occurred on February 11th. The FAA admitted the check ride
occurred and was satisfactorily completed, but claimed the alleged use
of a later date was material and falsely reported with the intent to
deceive, although the FAA never articulated any reasonable motive to use
a later date.
"The check ride
could not have occurred on February 11th, because on that date Ed Jeszka
still had a feeding tube surgically inserted due to his fight with
stomach cancer. Jeszka and Ledbetter were also able to corroborate their
testimony by introducing cellular phone records that proved the pilots
were at the Jasper airport on March 28th and that both phones were
inactive during the time they took the check ride. The only evidence
submitted by the FAA was the testimony of a local aviator, Joey Sanders,
who testified that he could not remember whether or not he saw Jeszka
and Ledbetter at the airport on March 28th, a date approximately
fourteen months before he testified.
"Later, another
local witness came forward and swore under oath that he heard Ledbetter
on the radio on March 28th, but the NTSB refused to allow the individual
to testify. At the same time, the Birmingham FSDO began launching
numerous frivolous attacks upon Darby Aviation, its pilots, mechanics
and Director of Operations, apparently in an attempt to run Darby
Aviation out of business. For instance, below are summaries of some of
the frivolous actions that have been brought against Darby Aviation and
its employees to further the Birmingham FSDO’s vendetta:
"• The
Administrator formally grounded a Lear Jet while Darby Aviation had it
voluntarily grounded for maintenance and an inspection. Subsequently,
the Administrator dismissed this action.
"• The
Administrator brought emergency actions against Darby’s Chief Pilot and
Director of Operations for alleged log book violations, but later
voluntarily dismissed these actions.
"• The
Administrator sought a civil penalty from Darby Aviation claiming that a
Darby pilot’s check ride was invalid because the check airman (another
Darby pilot) was allegedly not current. Although the regulations
expressly provide that an instrument proficiency check can be
substituted for the general competency requirements, the Administrator
claimed the Federal Aviation Regulations (“FAR”) do not mean what they
say because the questions required for an instrument proficiency test do
not cover all of the general subjects listed in the competency section
(14 C.F.R 135.293(a)(1) and (4-8)). Darby prevailed at the initial
hearing. The Judge ruled that the language of the FAR was clear on its
face and that there would be no reason to substitute if the tests were
the same. The FAA appealed to the Administrator. The
Administrator has withheld its
appellate ruling for nearly a year, without providing any justification
for the delay.
"• Darby
Aviation’s present POI revoked all check airman authority from Darby
Aviation due to the above allegations that were later determined to be
without justification. Darby's check airman authority has not been
reinstated, despite Darby’s victory in front of the ALJ, because the
inspector revoked approval of Darby's operations manual and training
program and now claims that due to the revocation, Darby does not have
enough business to justify check airmen. There is no inspector in the
state of Alabama that can conduct check rides on a Gulfstream Jet, so a
qualified, approved and current check airman will have to be located and
procured by the FAA at the cost of the tax payers to conduct each check
ride in the
"• Due to the
Birmingham FSDO’s repeated attacks upon Darby Aviation and claims that
Darby was not complying with non-existent record requirements, Darby
Aviation requested permission to hire additional employees to assure
future compliance with all regulations. The Birmingham FSDO denied this
request. The Birmingham FSDO said Darby Aviation did not have sufficient
activity to warrant additional employees (it had already wrongfully
revoked its manual), yet the attacks for supposed record violations
continued.
"• Darby Aviation
requested that the Birmingham FSDO assign a different POI to Darby
Aviation because the present inspector is unable to communicate with
Darby Aviation, has stated that Darby Aviation has a “target on its
back” and has determined to run Darby Aviation out of business,
regardless of Darby Aviation’s compliance. The Birmingham FSDO refused.
Another Birmingham FSDO representative has also warned representatives
of Darby Aviation that the Birmingham FSDO has put a “target on Darby’s
back.”
"• The
Administrator suspended Darby’s Chief Pilot’s certificate and brought a
civil penalty action against Darby Aviation, claiming that the pilot did
not complete an oral or written test within twelve months of particular
flights in accordance with 14 C.F.R. 135.293(a). Darby produced the
actual written tests the Chief Pilot passed that were approved by the
Birmingham FSDO. Darby offered uncontroverted testimony and forms
establishing the oral test and the written tests were taken and passed.
No evidence was offered to the contrary. Instead, the Administrator
argued that the approved tests were insufficient because although only
two of the competency check subparts expressly require the test to be
taken on “each type of aircraft flown,” the general subparts must also
be completed on each type of aircraft flown. It would not make sense and
would be contrary to regularly accepted rules of construction if two
subparts of the regulation explicitly state “for each type of aircraft
flown,” while the other general subparts omit that language, yet all
subparts were required "for each type of aircraft flown." (See 14 C.F.R.
135.293(a)(1-8).
"• Additionally,
the present POI faxed to SimCom written and signed approval of a SimCom
check airman prior to the date the Chief Pilot took, passed and paid for
the simulator check ride in the Lear Jet. During opening arguments at
the hearing, over a year later, Darby first learned that the Birmingham
FSDO POI alleged the check airman had not been approved because the
inspector claimed he only signed the approval so the pilots could test
under parts 61 and 91 of the
• The
Administrator suspended Darby Aviation’s Director of Maintenance’s
(“DOM”) certificates claiming that the Lear Jet and the Gulfstream II
were unairworthy and alleging the DOM failed to record maintenance
performed in the maintenance records The Administrator voluntarily
dismissed the allegations regarding the Lear Jet after several months.
With regard to the Gulfstream, an expert testified the plane was in fact
airworthy and the Court agreed, dismissing the frivolous unairworthy
claims. Despite the uncontested testimony, the ALJ found that the
mechanic should have recorded in the logbook that he did not repair what
did not need to be repaired per the Gulfstream manual. If this were the
case, nearly every Gulfstream II or III maintenance provider would be
subject to suspension as the expert testified that of the hundreds of
logbooks he has reviewed while working at Gulfstream and other repair
facilities, no operator has ever recorded not doing the unnecessary
repairs in a maintenance log book. Despite the court's ruling in Darby's
favor, the Administrator has not yet rescinded letters of investigation
that it issued to the Chief Pilot for flying the allegedly unairworthy
Gulfstream and to the company for another civil penalty.
• The Birmingham
FSDO PMI admitted under oath to receiving a monetary award for
suspending the certificate of Darby’s mechanic. An Aviation Safety
Inspector from the Birmingham FSDO admitted under oath that prior to the
unannounced inspection of Darby’s facility, several Birmingham FSDO
officials met together to plan actions against Darby Aviation and that
he was aware of the Platinum incident. "The instant Part 135 certificate suspension is equally frivolous and designed to harass. Darby Aviation's operations and training manuals have been approved since 1992. Darby Aviation has had six (6) different Principal Operations Inspectors since 1992. Prior to the present inspector, Darby Aviation has always had communicative and positive working relationships with its inspectors. After the meeting amongst the Birmingham FSDO officials where the Birmingham FSDO planned an attack against Darby Aviation, the present POI threatened to suspend Darby Aviation’s operating and training manuals, citing a particular number of vague and petty issues with the manuals that had long been approved. Darby amended the manuals as requested and resubmitted the manuals. "The
present Inspector refused approval, not because of the alleged issues
cited previously, but because of new alleged vague and petty complaints.
Darby amended each of the new sections to which the inspector claimed
insufficiency and resubmitted the manuals. Again, the inspector refused
approval, citing to entirely new alleged issues. Darby amended and
resubmitted, only to receive new complaints. Again and again, the
inspector picked different issues of which to complain and finally
revoked Darby Aviation's manuals. Darby Aviation met with Birmingham
FSDO officials on numerous occasions, requesting a complete list of all
alleged errors or issues that required amendment prior to resuming Part
135 operations. On more than one occasion, the
"FSDO told Darby
Aviation that it was “not in the manual writing business” and refused to
articulate
"Now the FAA
attempts to utilize the numerous revisions to claim that Darby's manuals
were insufficient on numerous occasions. Darby Aviation hired a
professional company to write the manuals, the manuals were approved for
over a decade and Darby Aviation hired a former FAA inspector to help
with the revisions. Nothing Darby Aviation could submit would be
acceptable to the Birmingham FSDO because the goal is to put Darby
Aviation out of business, not to correct alleged deficiencies in the
manuals.
"The allegation
that Darby Aviation’s Chief Pilot and Director of Operations are
incompetent is offensive, disparaging and blatantly false. The Chief
Pilot has approximately 16,000 flight hours, has held an Airline
Transport Pilot (“ATP”) rating for 30 years, is Helicopter rated and is
type-rated in multiple jet aircraft, including: 20 and 30 series Lear
Jets, Gulfstream II and Gulfstream IV heavy jets. The Director of
Operations has approximately 20,000 flight hours, worked for Continental
Airlines for many years, has held an Airline Transport Pilot (“ATP”)
rating for 41 years, is typerated in 20 and 30 series Lear Jets,
Gulfstream II, DC-10 and Boeing 727 airline jets. Each have extensive
and rare international charter experience for passenger, hazmat and
life-flight services and each have serviced large corporations, U.S. and
foreign governments, the United States Military, and many well known
entertainers and politicians over the past 20 years. Prior to the recent
attacks by the Birmingham FSDO, neither the Chief Pilot, nor the
Director of Operations had ever received a violation or were ever
investigated for wrong doing.
"Darby Aviation
has appealed this improper certificate suspension and will appeal any
other frivolous and unfounded orders entered by the Administrator or the
FAA. If necessary, Darby Aviation will proceed to protect its
constitutional rights in the |
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