Another confusing thing about the transmission
"Unknown Airport Command RF 2 I'm telling you not to evacuate yet"
is the use of the word "yet".
So, does the bloke want the evacuation to go ahead but not just at this moment or what? A nonsense and confusing call even if made with good intentions.

Once you hear of smoke in the cabin the next image that comes to mind would probably be a 'flash over' fire. The transition from 'some smoke' to an inferno takes milli seconds and what would an outside observer be able to tell you if the fire was, say, in the galley?


https://www.google.com.au/search?q=f...FYWspgod-s8Kqg

Even RF3's response is strange - "give me one second I'll contact the man on the ground". What the heck does that mean? Who on the ground? Is there someone on the ground near the AC? The whole emergency response seems uncoordinated and unprofessional.

What remedy?
 

Captain has set in place the only reasonable remedy for the extreme harm that has been caused to him. This is going to be really serious for the airline. There will be big $ involved A simple negotiated settlement, a public apology and with other confidential terms may not be enough to satisfy him.
Can anyone suggest the likely court settlement amount, based on any previous cases? Multi million figures comes to mind. The airline would possibly collapse due no insurance company would then be in a position to offer affordable premiums.
The only reason to accept a negotiated settlement might be so that his fellow pilots can make orderly exits from the company. Hopefully they are already doing that. I wonder if they will be replaced with pilots of substance who also understand responsibilities of command, or by weaklings who will wait until the pax expire next time.
It is clear that any offer involving re-employment would have to be unacceptable.

Whoa...slow down there. While all that may seem like a possible outcome (of many since all us here don't really have the whole story) in practice civil lawsuits rarely work this way. First of all its going be quite a while before you even get to a point where settlement negotiations might become serious... you discovery, depositions, motions, response to motions, counter motions, continuances, etc, etc. and that's all before you even get to jury trial (if this case is even eligible for that).

Even if Allegiant knows that they are playing for a settlement they will still stall for a few years worth of time while they set aside money to charge off in way to reduce impact on shareholders and reduce taxes. If any of us remember in a year or two you can go check the little fine print in the 10k or other SEC filings since they are required to disclose probable payments from legal actions.


Anyway back the incident itself... I am wondering what the deal is when the captain questioned why he should wait to evac and GC also repeated the call to answer that question and in 45 seconds they received no response. That same person was awfully quick to respond a minute earlier when they heard the captain say evac. I mean information like that is beyond frustrating. I can just imagine that the captain could really be on the fence whether to evac or not but with lack of info it's better to be safe on side so he starts to call it...but then, this unknown person chimes in and can maybe give the crew more info to help them guide their decision... So the captain asks why... he's asking for help (why shouldn't I do this)...and he even wants to know enough to wait quite a while for an answer while temporarily obeying the request. When no answer comes then that whole 60 seconds or more of precious time was completely wasted. After that I can easily imagine the -captain right after that is saying eff it to himself...out of frustration and in his mind immediately goes back to his prior action before the distraction...and now the crew may feel even more rushed now that they just lost another minute to evac... who knows... maybe with more time the evac could have been done more orderly and there would have been no or reduced injuries.

I really hope a follow up is done of this situation as a learning tool for air and ground crews. I mean what if this plane had ultimately burned up... the captain would be a hero there would be a witch hunt being done on unknown RF2...whoever that turns out to be... since the danger of what he did would be much more obvious.

I'm surprised that nobody has mentioned the possibility of the unknown transmission coming from some unauthorised person with a handheld transceiver?

Setting aside the rights and wrongs of this case , it seems that this situation (fire,smoke after setdown) is very serious and the person in the firetruck can see stuff tht the pilot cant. why is there not some SOP that does include getting this information to the captain in an organised and structured manner? I am not suggesting "dont evacuate" but some structured keywords to describe heat, where and threat level

I'm not; that's in the realms of conspiracy fantasy. Who would such a person be, why would he identify himself as "Airport Command RF 2", what would his motives be in saying "Airport Command RF 2 I'm telling you not to evacuate yet".

Please don't try to persuade us that a manager from the airline just happened to be hovering around airside watching the incident unfold, just happened to have a handheld on the right frequency, and decided to call himself Airport Command RF2 so that he could prevent an evacuation and save a bit of money at the possible expense of passenger and crew lives.

And if your theory is that someone else did it, who? why? etc etc.

It was someone from the RFFS, probably the Duty Commander or equivalent, aka Fire Chief, and my guess is that he said it just before getting off the truck at the scene, hence the words "he's on the ground" or whatever it was. From what he could see he probably thought it was justified, but he should not have framed it as an instruction which he was powerless to give, he should have offered it as advice, WITH REASONS. The word "yet" may have meant "I'm taking a closer look, hang on". None of which justifies the way it was done, but may well explain it.

So why on Earth are the Allegiant crews still flying instead of refusing to operate until their colleage is reinstated and formal, public apology given?!?!

All it takes is one day of disruptions and management WILL succomb to crew demands. Especially for a thing like that.
It is the responsibility of the crews to insure that Management do not overstep their responsabilities and threaten the Safety of operation and chain of Command and Hierarchy.
it is YOUR DUTY AS OFFICERS TO STOP MANAGEMENT TO THREATEN YOUR COMMAND POSITION.

it is YOUR DUTY AS OFFICERS TO STOP MANAGEMENT TO THREATEN YOUR COMMAND POSITION.

What so many forget is that tomorrow it may be you. "Let's not rock the boat" is appeasement.

I noticed the union is not representing the Captain -- he is suing Allegiant on his own.

The meat of the suit is very tricky. US FARs are regulations, not law. Only the regulator (FAA) can enforce FARs, and litigations normally go through the NTSB administrative law process.

A private individual cannot sue another private entity in a State Court on the basis of FARs, e.g., to enforce FARs or to allege interference with PIC authority under 121.533.

So many if not most the Captain's arguments in the civil suit may be thrown out by the Nevada court on the basis of jurisdiction alone.

Another complication is that Nevada is an "at will" employment state. Reading through the suit, I can't find any constructions to specific alleged violations of state employment law. E.g., there is no "Allegiant violated employment law under Nevada Revised Statutes xxx.yyy due to zzz", which is troubling.

The strongest part of his case might be for defamation, as Allegiant seem to have made some procedural errors when firing him.

My sneaking suspicion is that the RFFS radios are installed in the trucks and that when RF2 exited his truck to examine the scene from closer up, he did not have a handheld; so was out of communication with the pilots.

Somebody else in the truck was covering for his boss and did not want to say anything his boss would take offense over :mad::}:mad::}

RatherBeFlyingI couldn't agree more.....hang on, I just did..

If that transcript is indeed all that was communicated, and not a truncated version, it is a very poor example of fireground or incident communications. What you would normally expect to happen is that a status report is communicated by the first arriving responder and that updates would be communicated when the status changes. One real problem for airport firefighters is that they get so little real world experience.

The actual communications are also cryptic, ambiguous and deficient in information. There is a tendency to rush RT communication during emergencies, but really only a few more seconds of talking can prevent significant problems.

Confirmed information is of critical importance in emergency response, but communication, and command and control confusion are common problems identified in debriefs.

It's not up to anyone outside to start OR stop an evacuation.

They can give vital information to the commander in order for him to make an informed decision BUT it will always be the decision of the Aircraft commander or his delegate to make any evacuation command.

End of story.

At Will is not the defense you might believe it is
 

Caveat first: I'm not bothering to read the complaint. Or to go digging into Nevada case law.


Employment at will as a matter of state law, even in those states which hold it within the realm of the highest and most worthy of legal principles, is not a head-to-toes defense. As a prior poster impliedly noted, violation of any applicable employment-related law in effect "trumps" the at-will doctrine. More importantly for this matter, violation of a public policy (yes, that phrase is tricky to define) also is grounds to set the at-will doctrine aside. Thus, IF Nevada law indeed is the applicable law and IF it recognizes aviation safety rules as such a public policy, for example in the form of FAA regulations, the at-will doctrine will see lots of play in lots of ink spilled by defense lawyers, perhaps, but technically it is not a winning defense (that is, IF the pilot can show his actions consistent with the applicable safety rules). :=


Besides, the pilot retained a former highly-ranked FAA attorney. As a defense counsel, this would give me pause in assuring my client that much money will have to be spent (whether directly or through an insurer) on motion practice and discovery, prior to having to fish or cut bait ("settle", for the non-lawyers reading).


As for the wisdom of the pilot's actions, I'm deferring to the people who know what they're talking about . . .

Most likely the eminent lawyer is retained on a contingency fee. Lawyers don't take cases on contingency unless they think there is a much better than even chance of collecting :E

Allegiant had better hope that its lawyers do manage to get the case dismissed on procedural grounds. Because if it gets anywhere near a jury, Capt. Kinzer is going to be the next owner of the airline.

It doesn't. That's the point. FARs are federal rules, yet even Federal District Courts (much less a State court) will not consider FARs as part of a civil case on jurisdictional grounds. The case law is pretty clear on this one.

A couple of years ago there was a similar case where a Captain of a cargo ops was fired because he requested a different alternate for safety reasons. That required more fuel and offloading of some cargo. Management wasn't happy and fired him.

The Teamsters brought a wrongful termination civil suit on behalf of the Captain before Federal Court on the basis of public policy and PIC authority under FAR 91.3. The U.S. District Court threw out the case on jurisdictional grounds.

You can bet one of the first filings from Allegiant will be a Motion to Dismiss for the same reason.

The case was Airline Professionals Association, Teamsters Local Union No. 1224 v. ABX AIR Inc.

peekay4
 

Just a couple of points, since the subject has been opened...


First, the ABX case was filed in federal district court in Ohio. Although efforts to locate the case report failed, even without reading it, if the court applied any State's law, it surely would have been Ohio law, not Nevada. The point is, the place of refusal to violate safety rules, as a public policy exception to the at-will doctrine, varies by State. As noted earlier, the forum isn't the place for briefing Nevada law, but I can say the result under Ohio law would not be controlling.


Second point, the facts of the ABX pilot employment termination (even disregarding the different State law) were quite distinguishable from the key fact here - smoke in the aircraft, and an emergency evacuation. While the pilot in the ABX case plainly did rely upon safety concerns to justify his exercise of authority, at least from the news reports surrounding the termination and the union's lawsuit, there is no indication that an emergent situation confronted the PIC.


There is a further technical point about whether a dismissal for failure to state a claim is jurisdictional - actually it is not - but by now, I'm entitled to at least a few "you get paid by the word" digs, I suppose (actually, also not so).

I guess you don't know how courts work. :hmm: It's a Federal District Court. It's not going to apply Ohio's law, or Nevada's law, or California law, or Texas law. There is a reason why we have State courts and Federal courts!

And maybe you should actually read the court decision before commenting further.

Airline Professionals Association, Teamsters Local Union No. 1224 v. ABX Air, Inc.

As I wrote in my initial post, a private individual cannot sue another private entity for relief on the basis of FARs. The relevant claims in APA vs ABX was thrown out precisely for that reason:

No reading required (or legal reasoning ability, either)
 

Actually, peekay.....where to begin?
First, as any rank-and-stoked first year civil procedure student would gladly remind you, federal district courts apply state law all the time - it's called a diversity jurisdiction suit. And your inaccurate statement, by itself, might not bear calling out, but in this instance, you earned it: the Allegiant case was filed in Nevada state court - and if diversity jurisdiction applies, and the defendant "removes" (in effect, transfers even over the plaintiff's objections) the case to federal court, inasmuch as the claims stated in the complaint all are state law claims....you can draw the conclusion. I hope.


Second, I don't have to read the ABX opinion to be able to tell the difference between using public policy, in the form of FAA safety rules, as an exception to the at-will doctrine on the one hand, and on the other hand, basing a claim under the FARs themselves. That is what the court means about rejecting a private right of action under the FARs. The claim for wrongful termination is a state law claim for wrongful termination; and my view (unrebutted by your condescension) is that a public policy exception might well exist under Nevada law - as I said, I don't know - but if it does exist, it would not require, and in fact would have nothing to do with, the existence or non-existence of a private right of action under the FARs.


I guess PPRuNe convention holds it acceptable to fight fire with fire (pun here only unconsciously unintended): so, I hope you fly (or whatever you do professionally) better than you can discuss legal issues in front of a professional, but non-legal internet forum audience.

Um, we were specifically talking about APA vs. ABX Inc. As any rank-and-stoked first year civil procedure student would also gladly tell you, application of State law is completely irrelevant in a case filed in Federal court seeking relief under Federal statutes.

Application of State law under diversity jurisdiction is a complete red herring here and you know it. The Union sought relief pursuant to the RLA and the Declaratory Judgment Act. The Federal District Court wasn't going to make decisions based on Ohio law.

As for the rest, we will just have to wait and see how the court case will proceed.

@CONSO

See above. Completely irrelevant.

Maybe you guys/gals should actually read APA vs. ABX Inc. instead of making incorrect assumptions.

Enough thread drift for me
 

Like two ships passing in the night. And neither of them is the Red Herring.
Peekay4, maybe you thought the context was limited to the ABX case in which, as you note, federal subject matter jurisdiction existed (it was an action for injunctive and declaratory relief under federal law, you are correct, sir). However, actually the discussion here was broader than the narrow gauge you have insisted upon. That is, the pilot in the Allegiant case has filed a suit in state court in which claims are asserted under Nevada state law. The specific point was whether or not Nevada, as a state adherent to the at-will doctrine, would countenance such claims. In that context - not limited to the ABX case at all - the dismissal won by the defendant in the ABX case is not really pertinent. Despite the ruling in the ABX case -- that a claim for injunctive and declaratory relief under the federal statute failed because there is no such private right of action under the FARs -- Nevada, which almost certainly has some public policy exceptions to the employment at-will doctrine, still could recognize the FARs as a source of public policy (for purposes of wrongful termination claims under Nevada law).

Anyway, at least no one has claimed that this drift of the thread will not be complete until someone tries to explain the derivation of the phrase "red herring" (it may not be printable in a family-friendly forum such as PPRuNe, regardless. . . )

14 CFR
 

The case has been removed to Federal Court pursuant to 18 U.S.C. sec. 1441 and is based upon diversity jurisdiction. Therefore, the Federal Court will apply state law when determining the claims raised in the Plaintiff's Complaint. While the regulations cited in the Plaintiff's Complaint would preempt any state law that conflicts with said regulations, nothing in the regulations appears to prohibit an airline from terminating an employee based upon his or her actions or omissions in operating an aircraft. Having said that and based upon the allegations contained in the Complaint, it seems as though the Plaintiff is in the catbird seat. The Defendant would be crazy to let this case get to a jury.

Court records still show the case at the Nevada District Court for some reason and I can't find any petition or notice of removal.

Nevertheless, removal implies there have been monetary discussions between the Captain and Allegiant (e.g., before the case was filed). Diversity requires the damages more than $75,000 -- a very low bar in this case -- but as a matter of routine State filings only specify "more than $10,000" which by itself is not sufficient for removal.

This would seem to be the likely way it would play out, except it on the defense side it would definitely be worth the delaying action and possibly even some luck for them to try a few motions mentioning the arguments presented by peekay. It's worth noting that even if the ABX case is cited by defense, it is at best only a supporting argument and easily rebutted in a response. However, I would think it would be in the interest of Allegiant (and their council's legal bill) for them to drag out discovery and pre-trial procedures for a year or more and then worry about settlement.

They way he was dismissed is going to be a problem for the defense as the reason for his dismissal is given as lack of performance and that rationale seem to be quite suspect which will give the complaint plenty of latitude to suggest other reasons for the dismissal, any of which may be damaging under Nevada law.
Besides to suggest the application of Federal regs have no relevance under state employment law, especially when safety is involved, could possibly mean that many other professions from coal mining to medicine would be greatly affected. I doubt federal courts would want to start a string of precedence of employees being fired because... say for example they would not be willing to violate an OSHA statute...

There are many other ways employees are protected from being forced to break safety regulations or force termination.

E.g., AIR21 (49 U.S.C. §42121) provides whistleblower protection status.

If a company is pressuring pilots to violate FARs and compromise air carrier safety, it may be advisable for a pilot to contact a lawyer (through a union if applicable) and immediately report such conduct to the FAA. The pilot will be protected under AIR21 against any retaliation (including termination).

Sound advise... except for 2 big things...

1. At the time of the emergency... the Captain should not be having to worry about if he is covered by whistle blower laws (Which recently have not always worked at intended) nor should he be worried about his employment situation period... Your statement about the proper way for the captain to address safety concerns highlights the exact worries that half the comments in this thread are all about.

2. Even if it's not urgent situation, and there are laws against retaliation for voicing safety concerns... one still must take into account the risk one incurs from doing so.... significant career risk there always is...

...Mr. Kinzer's lack of success in finding new employment is a great example of that.

Diversity (not the people type)
 

As to the 75 thousand dollar threshold, there need not have been discussions about the damages at issue in the case - and typically, with such a contentious firing the lawyers would rather poke their own eyes out than have their clients become aware that they had even a brief conversation of a co-operative nature with opposing counsel (and as to contentiousness here, the captain didn't retain just any old contingency trial lawyer and this seems directly reflective of the high temperatures on both sides). Not saying it did not happen or is impossible, but that it was not a necessity: the defendant can meet its legal requirement for federal court diversity jurisdiction (via "removal") even if the complaint itself formalistically only alleges damages in excess of 10 thousand (among other reasons, the complaint includes a claim for punitive damages, and any wrongful termination claim carries with it (as a yardstick for damages) the contractual value of the plaintiff's employment). Not clear as to whether the case actually was removed or not, but at the risk of legal cliché, defendant ought to remove it, for all sorts of reasons about the differences between the ways federal trial-level courts operate as compared to state courts.

On the issue of safety rules and whether a wrongful termination suit under state law can or should be a vehicle to uphold the importance of such rules....a prior post mentioned "preemption" and without spilling a ton more electronic ink, IIRC the idea that even using federal safety regulations (by OSHA, or FAA, or the NRC) as a predicate for any state's public policy exception to the employment at-will doctrine can be met with a preemption defense. At the risk of legal over-simplification, the defense argues that because federal law (including administrative regulations) occupies the entire field, a state court cannot even rule on a claim like the ones in the captain's complaint, or otherwise interpret federal rules. Not saying it always is a winning defense but (IIRC) it does get litigated. (And provides an example of why the defendant will prefer to be before an Article III federal district court judge, in preference to any state court.)

Last, about Section 42121 - and without drilling into a probably-overly-abstruse parsing and construction of the statutory terms - this captain isn't really within the paradigm of the whistleblower principle. He didn't oppose or report a safety violation, nor did he testify in a suit on behalf of someone who did. Rather, he acted in conformance with a safety rule. Not saying AIR21 is a bad law but, not convinced it contains the answer to the evident gaps in the state of the law, insofar as the type of claims this Allegiant captain has filed.

Thanks for the measured dialogue, for which PPRuNe is so famously and vastly (if not always) known . . ..:ok:

On AIR21.

The Captain wasn't fired in an instant. He supposedly had several conversations with Allegiant after the incident, and he was fired after "repeatedly" stating that he would again evacuate the aircraft if presented with a similar situation in the future.

During this period, if he felt pressured by Allegiant to abandon his PIC obligations under FARs or face disciplinary action (likely including termination), then he could have formally filed a with the FAA about his safety concerns, and give notice to Allegiant of this complaint.

By doing so he might have gained AIR21 protections in addition to other remedies available to him.

PIC authority and responsibilities - not minor matters (or disputes)
 

The development of whistleblower protections in statutes and statutory terms is way, way beyond the scope of the thread - but I agree with and appreciate your post, peekay4. Clearly if the facts are as you have indicated, then the Capt's legal position indeed would have been squarely, I mean right down the middle of the strike zone, within the zone of interests sought to be protected by AIR21. So . . .

. . . I suppose a subject for discovery, particularly deposition, would be the captain's thought process about why he elected not to avail himself of those protections. Once again, conventional litigation in a court of law will prove to be a most inefficient means of getting at the underlying issues in the particular situation - yeah money and intangibles will be bought, sold and paid for, but the larger interests invoked -- or called into view -- by the disputes will be mere litigation wallflowers. Too bad no one has figured out how to move the system toward "interest mediation" - resolution of the case or controversy, like ordinary mediation, but with policy or procedural reforms mandated by the outcome, akin to interest arbitration.

Back to the ABX litigation you mentioned earlier, for a second. . . that suit was brought by the collective bargaining representative of the pilots of that air carrier. Under the Railway Labor Act. Do you think the course of such lawsuits (as a specific example), and the generally antediluvian nature of cross-ties and steel rail technology as compared to today's complex approaches and the technological complexity of air carrier aviation overall (as a general point) signal that the time is upon the U.S. to move aviation labor law out of the steam engine era? (I am indeed aware of the puppy-tail-chasing machinations of the Congress on something as relatively straight-forward as FAA re-authorization, but, hey, it doesn't hurt to ask.)

Cheers! (and Keep Your Eyes on the Sky . . .)

Sadly true - who has the deeper legal pockets - motion to postpone after motion to postpone - delay after delay - rack up legal bills. Lawyers will get paid regardless. Worse, the entire episode may very well depend on the judge that hears the case and which political party appointed said judge (as I have learned the hard way twice). Unfortunately, case law did not matter. Political ideology of the presiding official determined the outcome.

What? Say Again, WHAT?
 

I'd bet my ruined pension that there is a Whole Lot More to this story than has been reported thus far. I do not know why a pip-squeak like Allegiant has so many problems, but most of them sound like in-house politics to me. Very small airlines are ALWAYS suspect for safety issues, but that just not the sense that I get about Allegiant. As a famous ULCC their neck is always on the chopping block, I firmly suspect that the vast majority of thiere problems are in-house, management-pilot issues, safety being mentioned only when they cannot think of anything else.
For the record, I do NOT know who is right or wrong in this case and in several others. Also for the record, I darn sure will NOT fly a carrier that cannot treat its pilots fairly and also provide some measure of dignity for their customers. ONCE, !about 2.5 years ago, was one too many times; perhaps the worst flying experience of my life (I've been flying for >60 years). Horrible! It will be the :mad: before I give this carrier another :mad:nickle of my money. Every. Despite some trivial influence toward keeping some competitive route fares a bit lower, seeing this miserable airline imitator go :mad: would not bother me at all. The FAA should have revoked their Part 121 operating ticket before their first flight. At best, they are :mad:SOBs, looking only for your last bit of pocket change; if you have any, these :mad:will find it. :ouch:

If you had a choice of
a) 99% chance of evacuating with a couple of broken arms and legs (and no real fire), or:
b) 1% chance of 20-30 people burning to death because of a delayed evacuation

Most pilots would, and should, choose option (a) every time.

Yes, evacuations have their risks - but better to evacuate and then perhaps regret doing so, than regret not evacuating and have a bunch of corpses on your hands.

The management are setting a very dangerous precedent - not just legally against the pilot, but also safety wise for every other Captain in the company.

Seems the management pilots at Allegiant need to worry less about crucifying complex decisions in a very difficult, time pressured environment, and worry more about taking enough fuel for their own flight.

Not evacuating because of inconvenience to the company would be a good reason to fire the pilot for not using good judgement.

After all this hooplah...

Have we actually even figured out where the smoke was coming from? I understand a pilot shut down an engine but had no luck?

That's another "complicated" part of the story since we don't have all the details.

Per Allegiant's FAA filing, mechanics who examined the aircraft & the engine afterwards found no discrepancies at all. Apparently there was no evidence of fire, and possibly there was no smoke. The source of the smell reported by the Flight Attendant remains unknown.