By Aurora Kohn
Chief Federal Judge Frances Tydingco-Gatewood has upheld the federal restrictions on the hiring of foreign pilots for Guam aircraft.
The decision was related to the U.S. government’s lawsuit against Hansen Helicopters Inc. and its executives John Walker and Phillip Kapp.
In a May 11 order, the district court denied Hansen Helicopters’ motion to prevent the government from presenting evidence showing violations of the Federal Aviation Regulations and the Federal Aviation Act.
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Walker, Kapp and Hansen Helicopters were charged with multiple counts of conspiracy to defraud the FAA and the National Transportation Board, destruction, alteration and falsification of records, false statement, aircraft parts fraud, employing a pilot without a pilot’s certificate, employing a mechanic without a mechanic’s certificate, registration violations involving helicopters, conspiracy to commit wire fraud, bribery, wire fraud and money laundering.
Walker is the owner of Hansen Helicopters, while Kapp is Hansen Helicopters’ director of maintenance.
The defendants argued the Federal Aviation Regulation and the Federal Aviation Act do not require a pilot to have an FAA airman certificate and that Hansen Helicopters was not prohibited from hiring foreign pilots who are not FAA-certified.
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The defendants also argued that the U.S. law which they were accused of violating does not apply to their case because their pilots were “independent contractors” and not employees.
The court rejected the defendants’ arguments, noting that federal regulations specifically require pilots who operate a U.S. civil aircraft to have an FAA-issued pilot certificate.
In addition, the court pointed out that transportation laws and regulations authorize the FAA to limit or refuse outright to issue an alien with an airmen certificate.
It would, therefore, be “illogical” to reserve this power to itself if an alien would still be allowed to use a foreign airman certificate.
The court also rejected the defendants’ arguments that the pilots without FAA airmen certificates were “independent contractors” and not employees.
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The court said using a “plain-language dictionary reading” of the U.S. transportation law shows that the pilots are “employed” by Hansen Helicopters.
The court found that the pilots were hired and paid by Hansen Helicopters to help fulfill its contracts with tuna boat companies.
Hansen Helicopters had the power to hire and fire the pilots, the court added.
The court said these factors meet the test of the existence of an employer-employee relationship.
"Even if an analysis of the worker’s role and responsibilities were to classify the pilots and mechanics as independent contractors, (the law) does not distinguish between uncertificated employees and uncertificated independent contractors," the court said.
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