There are two ways that the Federal Aviation Administration and the National Transportation Safety Board typically impose sanctions against airmen, mechanics, or aircraft owners: an "administrative action" or an "enforcement action." An administrative action usually includes either a letter of warning or letter of correction. This article will focus primarily on enforcement actions, which involve the suspension or revocation of certificates for pilots or mechanics.
An FAA enforcement action against a certificate holder or aircraft owner (the "Respondent") typically begins with a letter of investigation (an "LOI"). The LOI will indicate what conduct it is investigating, and that the FAA believes such conduct violated the Federal Aviation Regulations ("FARs"). The LOI will typically not spell out in detail which FARs it believes were violated by the Respondent.
The LOI will give the Respondent 10 days to respond in writing. The FAA typically will use language in the LOI that attempts to elicit such a response. For example, the LOI may say that if the Respondent does not draft a written response within said time frame, then the FAA's report will be processed without the benefit of the Respondent's explanation or input. It may not be obvious to most non-lawyers, but this is a classic tactic used by the government to put pressure on a Respondent to make incriminating statements prior to having time to retain legal counsel or guidance. In most cases, the FAA already believes they have sufficient evidence to move forward with their enforcement action. They are simply looking for the Respondent to make admissions that will make the case easier to prove once it's turned over to the FAA's legal division.
It has been our experience that most Respondents feel that they FAA doesn't have time to allocate towards their matter, and that they can likely provide an explanation that will make this all go away. Unfortunately, that belief is typically unfounded -- the FAA does have time to prosecute, they will prosecute, and any explanation provided is just going to make it easier for them to do so. The FAA would not have already allocated resources towards investigating the claims in the LOI unless they intended to prosecute them by way of an enforcement action. If the FAA has gaps in their case, the Respondent will typically help to fill them in their response. For those reasons, the decision of what, if any, response to provide must be made very, very carefully, preferably with proper advice from legal counsel.
Generally speaking, we believe that it is always good practice to respond to the LOI if the Respondent has a lawyer, even if the response has no substantive information regarding the merits of the allegations. For example, the lawyer may acknowledge receipt of the LOI and make a general denial, or state that the Respondent will not be providing any additional information at this time. Drafting the response through counsel in this fashion does not harm the Respondent's case, and the FAA is used to such responses from defense attorneys.
Alternatively, there may be times when the Respondent's lawyer believes that a substantive response could avoid or reduce a certificate suspension, minimize possible sanctions, terminate ongoing investigations, or otherwise prevent the action from getting worse than it already is. The decision regarding what type of response to submit is clearly a very strategic one that the attorney and Respondent must make while taking into consideration numerous variables and possible outcomes.
If the Respondent is not represented by counsel, the question regarding whether or not to respond substantively generally is "no." Many times our firm is engaged well after our client has written a detailed response to the FAA, frequently containing partial or full admissions with explanation, or providing additional evidence that the FAA would not have otherwise known as a result of their own investigation. While this is not the end of the world in terms of defending the matter, it can certainly make our job much more difficult. If the Respondent does not have an attorney that understands and explains how their response will be used in furtherance of the prosecution, it is generally best not to jeopardize defending a case by responding improperly. Silence will usually do no harm, while a response without counsel will frequently do some form of harm. For that reason, we generally do not believe that Respondents should respond to an LOI on their own.
The next step in the enforcement process after the LOI is the issuance of the "Notice of Proposed Certificate Action." The local Flight Standards District Office ("FSDO") that investigated the matter will submit their "Enforcement Investigative Report" (or "EIR") over to the FAA's legal department, which is a regional office that could be out of state. An FAA attorney will be assigned to the case and will review the EIR and the FSDO's recommendation for sanctions. The FAA attorney will then draft and send the Notice of Proposed Certificate Action (the "Notice") to the Respondent (certificate holder). The Notice will specifically identify each of the FARs that the FAA is claiming the Respondent violated, and it will describe the underlying facts they believe exist to support their claim. In more serious cases (involving "an emergency relating to safety in air commerce or air transportation"), the FAA may seek an immediate revocation of the Respondent's certificate(s).
In cases that do not involve an emergency revocation, the Notice of Proposed Certificate Action will describe the FAA's proposed sanction against Respondent's certificate. The sanction will usually be a specified time frame during which the Respondent's certificate(s) will be suspended. The Respondent is given 15 days to respond to the FAA's proposal by using an enclosed FAA form. The options on the form are to accept the sanction proposed and surrender the certificate(s), provide an additional explanation in writing, request a phone call with the FAA attorney, request an in person meeting with the FAA, or ask that the sanction be imposed so that it can be immediately appealed in court. If the Respondent contests the proposed action and an agreement cannot be reached informally between the FAA and Respondent, then the FAA will impose the proposed sanction and the Respondent can appeal in federal court.
In cases that involve an emergency revocation (typically falsification of documents cases), the revocation occurs immediately, and the time frame to timely respond is much shorter. The NTSB, by way of an administrative law judge, conducts an initial review of the allegations for an abuse of discretion by the FAA, and in so doing assumes that the FAA's stated facts are true. This means that the Respondent has a high burden to overcome the initial revocation of the certificate(s), and will likely lose that review. In fact, we have never heard of someone winning that initial review. Once the NTSB finds that there was no abuse of FAA discretion, then the appeal proceeds in federal court. The certificate remains revoked pending final resolution or trial in federal court.
The FAA lawyer assigned to a case goes through a relatively standardized process when deciding what type of suspension or revocation to impose for a FARs violation. The process involves evaluating the type and severity of the alleged conduct on the FAA's sanction table. Of course, the sanction guidelines and the severty of the alleged conduct are subject to their own interpretations, giving the FAA lawyer great discretion to determine what they believe is appropriate on a case-by-case basis.
The appeal of a certificate action occurs in federal court in front of an administrative law judge (an "ALJ"). The process is governed by the "Rules of Practice in Air Safety Proceedings" (49 CFR Part 821). While this process is called an appeal, it really is the method of obtaining a trial in court. Certificate actions are very similar to regular civil litigation. Each side is obligated to go through the discovery process (production of documents, interrogatories, etc.), may take depositions, and ultimately prepares their respective cases for trial.
All litigation is about leverage. Many pilots and mechanics believe that the FAA has all of the power once a certificate action begins, and that they are doomed to simply accept whatever punishment the FAA decides to impose. This may be true if the pilot or mechanic seeks to fight the FAA on their own. Odds are that the FAA lawyer is not going to be intimidated by a Respondent that is not represented by an attorney. A Respondent acting without a lawyer doesn't have experience fighting the FAA in court, doesn't understand how to effectively litigate a case, and will likely be a poor advocate for themselves at trial. Without leverage, the Respondent is at a competitive disadvantage that the FAA can easily take advantage of. The FAA lawyer will understand that.
Hiring a trial lawyer that understands aviation law and the FARs can have a dramatic impact on the outcome of the certificate holder's case. The FAA understands that fighting an experienced lawyer in court is going to be much more challenging than fighting a Respondent on their own. This gives the Respondent instant leverage. Having leverage leads to more favorable outcomes. In some cases, having leverage may also result in an absolute acquittal so that no sanction or revocation is imposed at all.
While no lawyer can guarantee a result in any case, we do know that if you are facing an enforcement action against the FAA, our firm will put you in an optimal position to obtain the best possible outcome based on your circumstances. Give us a call to discuss your FAA enforcement action.
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