Darby challenges certificate revocation

 - May 26, 2010, 7:10 AM

Five years after the February 2005 Challenger overrun at Teterboro–one of the most notorious accidents in business aviation history–the FAA has again suspended the charter operating certificate of one of the companies peripherally involved, Darby Aviation of Sheffield, Ala.

The accident, in which a Challenger operated by Platinum Jet Management crashed after failure to lift off from Teterboro, set in motion dramatic changes to the charter industry that reverberate today. Executives of Platinum Jet have been indicted and some sent to jail (others began the trial process last month) for fraudulently holding out charter services to the public; at the time of the accident, Platinum Jet claimed to be operating on Darby Aviation’s certificate, but Platinum officials clearly appeared to be controlling every aspect of the doomed flight, which had trouble leaving the ground because aircraft loading placed the center of gravity ahead of the forward cg limit.

The FAA tried to suspend Darby Aviation’s charter certificate after the accident, but an NTSB ruling reinstated it shortly thereafter. Because the FAA was found culpable (along with Darby) in the Platinum situation, according to Darby, “The Birmingham FSDO…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.” On April 12, the FAA issued an emergency order suspending Darby Aviation’s charter certificate, grounding the Darby fleet while the company appeals the FAA’s action.

The FAA claimed that Darby Aviation does not have an approved training program; does not properly identify management personnel and those who are supposed to exercise operational control over Darby flights; that the company’s operations manual lacks a number of required procedures, processes and details; that the training program is deficient; and that chief pilot Elton Darby’s checkride status is out of date, thus rendering him ineligible to act as pilot-in-command of Darby flights.

In its response to the suspension of its Part 135 certificate, Darby Aviation accused the FAA’s Birmingham, Ala. FSDO of “conspiring to put Darby Aviation out of business.” The Darby operations manual identified in the suspension notice had been approved by six prior FAA inspectors and the company’s principal operations inspector, according to Darby’s response to the FAA suspension notice, sent by attorney Deanna Weidner.

“It appears the motive behind this conspiracy relates to the 2005 Platinum accident in Teterboro, New Jersey,” Weidner wrote. “Platinum was a company that was introduced to Darby Aviation by the [principal maintenance inspector] and an aviation safety inspector from the Birmingham FSDO. 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 Platinum Jet 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 flights 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. 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.”

Operator Claims FAA Retaliation

Much of what the FAA has accused Darby of doing or not doing revolves around disagreements about regulatory compliance. Added to that is what Darby characterizes as the FAA’s intent to retaliate against Darby. Weidner’s letter describes two instances when FAA inspectors or FSDO representatives made it clear there is a target on Darby’s back.

In one instance, the FAA claimed that a checkride given to a Darby pilot was invalid because the check airman was not current, according to Weidner’s letter. However, the check airman was current, according to Darby, because he had undergone an instrument competency check, which “can be substituted for the general competency requirements.” Although a judge found in Darby’s favor on this issue, the FAA has appealed that ruling, and that appeal has been under way for a year.

In another instance, the FAA suspended the certificates held by Darby’s director of maintenance (DOM). At issue was a claim by the FAA that the DOM failed to record maintenance in maintenance records for a Darby Learjet and Gulfstream II. The issue, according to Weidner, was that the FAA believed that the DOM “should have recorded in the logbook that he did not repair what did not need to be repaired per the Gulfstream manual.” This is like saying that an operator must make a logbook entry for every airworthiness directive that doesn’t apply to a particular airplane. If that were the case, aircraft logbooks would be the size of a law office’s legal library.
“Darby Aviation met with Birmingham FSDO officials on numerous occasions,” according to Weidner’s letter, “requesting a complete list of all alleged errors or issues that required amendment before resuming Part 135 operations. On more than one occasion, the Birmingham FSDO told Darby Aviation that it was ‘not in the manual writing business’ and refused to articulate the alleged problems.”

Darby is fighting the FAA’s suspension of its Part 135 certificate. “Darby Aviation has suffered great financial loss and its reputation has been damaged by the FAA’s unsupported and baseless allegations,” Weidner’s letter concluded. “These allegations were intentionally designed to destroy the company and its employees. Congress has relinquished control to the [FAA] Administrator, who in turn has sanctioned or failed to properly supervise its rogue employees and their improper actions. This flagrant governmental misconduct must be exposed and the responsible individuals must be held accountable.”