Court Overturns NTSB Findings in Falsification Case

 - July 23, 2019, 6:11 PM

Finding the NTSB did not follow its own precedents, the U.S. Court of Appeals for the District of Columbia overturned a certificate revocation of the Kornitzky Group, which was known as AeroBearings and specialized in the maintenance of jet engine bearings. While ruling favored the company, the Aeronautical Repair Station Association fears it might have been for the wrong reason.

The NTSB had revoked Kornitzky’s repair station certificate in 2018, backing an emergency order imposed by the FAA. That revocation stemmed from two primary allegations: the company had violated aviation safety regulations by repairing bearings without the necessary technical data and Kornitzky had intentionally falsified maintenance records by recording only the engine bearing inspections without indicating the disassembly and repair work. The FAA had said the company was required to disclose any maintenance affecting the airworthiness of the bearings but had only mentioned “overhauled” in certain return-to-service forms.

In a decision released this month, the appeals court upheld that the company performed maintenance without the appropriate technical data but set aside the charge of intentional falsification. “The Board departed from its own precedents when considering whether Kornitzky Group had acted with the requisite knowledge,” the appeals court said.

Complaints Prompt FAA Inspections

Founded by the late Michael Kornitzky and Zev Galel in 2010, the company originally received FAA certification in 2011. In 2016, the FAA had received two complaints about technical data that Kornitzky used, prompting a review by the FAA’s Engine Certification Office. The office determined the company’s data was not specific enough to support the bearing repair work.

A year later, the company was notified that the FAA had incorrectly issued one of the company’s ratings surrounding bearing maintenance and that it had 10 days to submit to a reinspection or face suspension. After the follow-up inspection, the FAA determined that the company had exceeded the scope of work permitted by the OEM and issued an emergency certificate revocation, alleging the violation of several maintenance regulations involving intentional falsification and lack of requisite data.

An NTSB administrative law judge subsequently found that Kornitzky had violated maintenance regulations because it was unable to produce the required technical data. But the Safety Board judge also rejected the intentional-falsification claim, saying the statements on the required forms were not false when examined alone. The NTSB’s administrative law judge decided the appropriate sanction was certificate suspension pending compliance rather than a permanent revocation.

Subsequent appeals to the NTSB resulted in the Board affirming the conclusion that Kornitzky had violated the maintenance regulations surrounding the necessary technical data. But in a reversal, the NTSB then backed the FAA’s intentional-falsification claim.

“The [NTSB] found that Kornitzky Group’s selective disclosure of information rendered the [return-to-service] Form 8130-3s false because the company had excluded other information in a way that gave an incomplete and misleading impression of the work it had performed. The Board further found that the company acted with knowledge of that falsity,” according to the appeals court, noting the NTSB then decided this warranted certificate revocation.

Kornitzky then turned to the U.S. appeals court, arguing that the NTSB acted arbitrarily and capriciously in finding violations of the FAA’s maintenance and intentional-falsification regulations. However, the appeals court determined that the NTSB correctly concluded Kornitzy “made a materially false representation by referencing some but not all of its work affecting the bearings’ airworthiness.”

But the NTSB failed to adequately address whether the company acted knowingly, the appeals court added. “Under its own precedent, the Board was required to find that Galel, Kornitzky Group’s owner and sole principal, correctly understood the Form 8130-3 requirements but still instructed his company to provide a false response,” the appeals court said. “Galel’s subjective knowledge, however, was not addressed by the administrative law judge and the Board did not make the required factual finding…In short, the Board identified no evidence that Galel had intentionally disregarded the Form 8130-3 instruction.”

ARSA Response

ARSA, fearing the NTSB decision could affect other maintenance providers, had filed an amicus brief disputing that the company intentionally falsified information. “During the original proceedings, the inspector agreed there was no false or incorrect information on any of the forms; the entries were simply incomplete” ARSA had argued, adding, “A maintenance release is a certification that the work performed was accomplished correctly; it is not a complete maintenance record.”

ARSA executive director Sarah MacLeod reiterated that belief in response to the appeals court decision. “In this case, the court may have come to the correct conclusion but for the wrong reason. There was no falsification by omission because the FAA Form 8130-3 is the maintenance release portion of a maintenance record,” MacLeod said. “The agency has stated in numerous guidance documents that a single word is enough to describe the work performed.”

MacLeod added that a maintenance release “does not, and never has, contained the details that the court seemed to think were necessary.” Since a repair station is the only maintenance provider that has to provide a “maintenance release,” the regulations involving maintenance recordkeeping, CFR 43.9, explains that the return-to-service form is different from a complete maintenance record. “Those nuances got lost in the court case and thus an ignorant decision was rendered that requires the agency to make clear which certificate holder has what responsibilities for creation and retention of maintenance records.”