When Government Inaction Becomes a Financial Burden: FAA Part 135 Certification Delays and Potential Liability
The aviation industry operates under a complex regulatory framework designed to ensure safety and compliance. One of the most challenging regulatory hurdles for small and mid-sized operators is obtaining a Part 135 certification, which allows for commuter and on-demand charter operations. While the process is meant to uphold rigorous safety standards, excessive delays in approval often result in substantial financial burdens for businesses.
This raises a fundamental question: Can the U.S. government be held liable for damages incurred due to regulatory delays? While the legal framework generally shields federal agencies from financial responsibility, certain legal doctrines and ongoing cases suggest that there may be exceptions.
The Cost of Delayed Approvals
Applying for a Part 135 certificate involves a five-phase process:
1. Pre-application
2. Formal Application
3. Design Assessment
4. Performance Assessment
5. Administrative Functions
The FAA does not guarantee a fixed timeline for approval, and the process can take months—or even years—before an operator is granted certification. This creates significant financial strain on operators, as they must maintain business-ready operations while awaiting approval.
Expenses Incurred During Delays
While operators wait for the FAA to process applications, they must sustain operational readiness, leading to costs that can quickly spiral:
• Insurance premiums: Required from the outset, even before revenue generation.
• Personnel salaries: Positions such as Director of Operations (DO), Chief Pilot (CP), and Director of Maintenance (DOM) must be filled and retained.
• Hangar rental fees: The aircraft must be stored at a certified facility.
• Maintenance and inspections: Aircraft remain subject to routine maintenance and regulatory compliance.
• Training costs: Pilots and crew must remain current, leading to recurring simulator and flight training expenses.
• Aircraft depreciation and financing: Planes lose value over time, and loan payments must be made despite inactivity.
For smaller operators with limited cash reserves, these ongoing expenses can be crippling, particularly when delays extend beyond expected timeframes.
Legal Considerations: Can the Government Be Held Liable?
The Federal Tort Claims Act (FTCA) allows lawsuits against the federal government in cases of negligence. However, the discretionary function exception often protects government agencies from liability for delays resulting from policy decisions or regulatory processes.
To hold the FAA accountable, an operator would have to prove:
1. That the delay was not discretionary but rather a failure to perform a mandatory duty.
2. That the delay was unreasonable and caused measurable financial harm.
An alternative legal strategy involves the Administrative Procedure Act (APA), which allows entities to challenge unreasonable delays in court. However, successful APA cases typically result in an order compelling agency action, rather than monetary damages.
Case Study: SkyWest Airlines vs. DOT
A recent example of an airline challenging regulatory delays is SkyWest Charter’s lawsuit against the U.S. Department of Transportation (DOT). The airline filed suit in 2023, citing a 19-month delay in obtaining approval for its scheduled passenger operations. SkyWest Charter argued that DOT’s inaction caused significant financial harm by preventing revenue generation while forcing continued operational expenses.
As of now, no damages have been awarded, and the case remains ongoing. However, its outcome could set a precedent for other operators facing similar delays. (ch-aviation.com)
Industry Complaints and the Need for Reform
Industry groups such as the National Air Transportation Association (NATA) and the National Business Aviation Association (NBAA) have repeatedly raised concerns about FAA inefficiencies in processing certifications. Despite calls for reform, delays remain a persistent issue, often exacerbated by bureaucratic inertia and staffing shortages.
Some potential solutions to mitigate financial harm include:
• Mandating response deadlines: Establishing fixed processing timelines for certification applications.
• Temporary operational approvals: Allowing provisional certification if FAA delays exceed a reasonable timeframe.
• Liability reconsideration: Exploring legal avenues for financial recourse when regulatory inaction results in substantial business losses.
Conclusion
FAA Part 135 certification delays are more than just a regulatory headache; they impose real financial harm on operators forced to sustain operational costs without revenue. While sovereign immunity and discretionary function protections generally shield the government from liability, legal challenges such as the SkyWest case highlight growing frustration within the industry.
If regulatory inefficiencies continue to hamper business operations, legal and policy reforms may become necessary to ensure that government agencies are held accountable when delays go beyond reasonable bounds. Until then, operators seeking Part 135 certification must prepare for extended timelines and significant financial strain—an issue that should not be ignored in an industry where time is money.