Stale Rule under 2150.3B
06-19-2016, 03:51 PM
#11
Disinterested Third Party
Joined APC: Jun 2012
Posts: 6,002
Originally Posted by Spocksbrain
As for refusing response, last I checked we are in the USA and the FAA has no right to charge you with anything without justification.
The FAA issued your flying privileges (not rights), and can take them away. There is an appeals process, and early in the investigation process you're invited to respond to a letter of investigation within 10 days, and you're invited to a formal meeting to discuss the matter during which your attorney may be present.
The FAA may give you more than one option in pursuing administrative and certificate action, and it sounds as though they have. The FAA may also choose to give you no choice (eg, emergency suspension/revocation).
When you're given a notice of proposed action, you may comment.
Notice that there are three occasions when you can comment; within 10 days after the LOI, at the meeting to discuss your investigation, and upon notification of the proposed certificate action. It's worth noting that on each of these occasions, the purpose of the FAA meeting with you or hearing from you isn't to decide whether to proceed against you. It's to gather material to be used against you in enforcement, and in the appeal process. Your first real chance to address the matter is the appeal process; it's your first chance to actually defend yourself where you have any standing in defense. Prior to that, anything you say simply goes to enforcement of the investigated matter.
It may be a matter of you being reported in an aircraft that buzzed a beach, for example. The FAA notifies you that you've flown too low over a populated area, and gives you a chance to respond. You think you're defending yourself when you respond stating that you were above the minimum altitudes. What you've actually done, however, is establish that it really was you in the aircraft, something the FAA may not have been able to establish until you made your response. You just sealed your fate. As the airman, you thought you were defending yourself; you don't get to demand the FAA prove its case, because the FAA doesn't need to prove its case. It can proceed with the certificate action, and it's up to you to appeal. Your first defense comes AFTER the "conviction" or certificate action, when you can appeal the matter. Again: unlike criminal court where you fight charges and the government must prove it's case, the burden of proof is on YOU in administrative cases and your'e presumed guilty at the outset. Did your attorney not explain this to you?
You've indicated that you "****ed off" the inspector at the informal hearing. If you had an attorney present, he should have counseled you to keep your mouth shut. If you ****ed someone off, you may have already torpedoed yourself; most damaging information in enforcement comes from the airman himself or herself; most of the time the inspector doesn't have what's needed until you give it to them. Did you give it to them? Argue with them? You weren't there to do that. That's not what the informal hearing is for. It's to gather material to use against you.
Certainly if you have evidence contrary to what the inspector has gathered, it may be presented, but what should never be done is to give more evidence, and arguing with the inspector will never be productive. In fact, you can guarantee yourself extended grief for doing that. A basic concept of working with the FAA, and a key element in dealing with the FAA, is an "attitude of compliance."
Arguing is attitude, but it's not compliance. When dealing with enforcement action, your first opportunity to present an argument will be the appeal process after the administrative action and certificate action has taken place.
You've noted that most pilots know more than aviation attorneys. It's very clear you've got a lot to learn and that you think you know more than you do. That attitude will sink you. You need good counsel, and you need to listen to that counsel. Your elected representatives are NOT part of the enforcement process. The enforcement process is well established, including the appeal process.
Don't count on collecting legal fees from the government in this enforcement process, even if you get your "legislator" involved.
I don't know what AVE F is or is supposed to be, but rather than arguing what you think is the case, the actual case is what's been given you in the letter. You've been given an option to accept the violation or seek remedial training. If you refuse the training, then you've got the violation with which to contend. You may not have to serve any sentence (certificate suspension, for example) because of timely filing of the ASRS, but you still have a certificate suspension on your record, and if you want that addressed, you'll still need to undergo the appeal process.
06-19-2016, 08:31 PM
#12
New Hire
Thread Starter
Joined APC: Jun 2016
Posts: 6
I am well aware of the process you have iterated. The FAA has no reasonable explanation for a 5 month delay other than the fact that they will lose this case when it went to appeal. Unlike you, I would never blindly place my faith in any attorney, aviation or otherwise, that is truly a fool-hearty endeavor.
As I previously stated, it was through our diligence that this has not gone any further than it has.
I also reserve the right to argue the facts with any idiot be it an FAA employee or anyone else.
Having over 36 years and 21000 hrs of flight time, I know quite a lot about dealing with the FAA, when and when not to talk to them.
In fact when told to call that phone number by ATC, I would not dream of it. There is no bit of information you give them that will not be used against you. Same for the 10 day LOI.
As for my attorney, he has stated no client has ever done more case prep work than I had and that work was the only reason no action has been taken, to the extent that if this case went to appeal it would likely be dismissed on summary judgment.
I actually feel sorry for the FAA counsel, because he was forced into a bad situation. At the informal you could tell he was learning something about FARs. Unfortunately the FSDO was not and therein lies the problem.
Thank you for your input.
As I previously stated, it was through our diligence that this has not gone any further than it has.
I also reserve the right to argue the facts with any idiot be it an FAA employee or anyone else.
Having over 36 years and 21000 hrs of flight time, I know quite a lot about dealing with the FAA, when and when not to talk to them.
In fact when told to call that phone number by ATC, I would not dream of it. There is no bit of information you give them that will not be used against you. Same for the 10 day LOI.
As for my attorney, he has stated no client has ever done more case prep work than I had and that work was the only reason no action has been taken, to the extent that if this case went to appeal it would likely be dismissed on summary judgment.
I actually feel sorry for the FAA counsel, because he was forced into a bad situation. At the informal you could tell he was learning something about FARs. Unfortunately the FSDO was not and therein lies the problem.
Thank you for your input.
Originally Posted by JohnBurke
You've been watching too much Law & Order. You may be thinking of ciivil law or criminal law; this is administrative law. Under criminal law, your'e innocent until proven guilty. Under administrative law, that's not the case.
The FAA issued your flying privileges (not rights), and can take them away. There is an appeals process, and early in the investigation process you're invited to respond to a letter of investigation within 10 days, and you're invited to a formal meeting to discuss the matter during which your attorney may be present.
The FAA may give you more than one option in pursuing administrative and certificate action, and it sounds as though they have. The FAA may also choose to give you no choice (eg, emergency suspension/revocation).
When you're given a notice of proposed action, you may comment.
Notice that there are three occasions when you can comment; within 10 days after the LOI, at the meeting to discuss your investigation, and upon notification of the proposed certificate action. It's worth noting that on each of these occasions, the purpose of the FAA meeting with you or hearing from you isn't to decide whether to proceed against you. It's to gather material to be used against you in enforcement, and in the appeal process. Your first real chance to address the matter is the appeal process; it's your first chance to actually defend yourself where you have any standing in defense. Prior to that, anything you say simply goes to enforcement of the investigated matter.
It may be a matter of you being reported in an aircraft that buzzed a beach, for example. The FAA notifies you that you've flown too low over a populated area, and gives you a chance to respond. You think you're defending yourself when you respond stating that you were above the minimum altitudes. What you've actually done, however, is establish that it really was you in the aircraft, something the FAA may not have been able to establish until you made your response. You just sealed your fate. As the airman, you thought you were defending yourself; you don't get to demand the FAA prove its case, because the FAA doesn't need to prove its case. It can proceed with the certificate action, and it's up to you to appeal. Your first defense comes AFTER the "conviction" or certificate action, when you can appeal the matter. Again: unlike criminal court where you fight charges and the government must prove it's case, the burden of proof is on YOU in administrative cases and your'e presumed guilty at the outset. Did your attorney not explain this to you?
You've indicated that you "****ed off" the inspector at the informal hearing. If you had an attorney present, he should have counseled you to keep your mouth shut. If you ****ed someone off, you may have already torpedoed yourself; most damaging information in enforcement comes from the airman himself or herself; most of the time the inspector doesn't have what's needed until you give it to them. Did you give it to them? Argue with them? You weren't there to do that. That's not what the informal hearing is for. It's to gather material to use against you.
Certainly if you have evidence contrary to what the inspector has gathered, it may be presented, but what should never be done is to give more evidence, and arguing with the inspector will never be productive. In fact, you can guarantee yourself extended grief for doing that. A basic concept of working with the FAA, and a key element in dealing with the FAA, is an "attitude of compliance."
Arguing is attitude, but it's not compliance. When dealing with enforcement action, your first opportunity to present an argument will be the appeal process after the administrative action and certificate action has taken place.
You've noted that most pilots know more than aviation attorneys. It's very clear you've got a lot to learn and that you think you know more than you do. That attitude will sink you. You need good counsel, and you need to listen to that counsel. Your elected representatives are NOT part of the enforcement process. The enforcement process is well established, including the appeal process.
Don't count on collecting legal fees from the government in this enforcement process, even if you get your "legislator" involved.
I don't know what AVE F is or is supposed to be, but rather than arguing what you think is the case, the actual case is what's been given you in the letter. You've been given an option to accept the violation or seek remedial training. If you refuse the training, then you've got the violation with which to contend. You may not have to serve any sentence (certificate suspension, for example) because of timely filing of the ASRS, but you still have a certificate suspension on your record, and if you want that addressed, you'll still need to undergo the appeal process.
The FAA issued your flying privileges (not rights), and can take them away. There is an appeals process, and early in the investigation process you're invited to respond to a letter of investigation within 10 days, and you're invited to a formal meeting to discuss the matter during which your attorney may be present.
The FAA may give you more than one option in pursuing administrative and certificate action, and it sounds as though they have. The FAA may also choose to give you no choice (eg, emergency suspension/revocation).
When you're given a notice of proposed action, you may comment.
Notice that there are three occasions when you can comment; within 10 days after the LOI, at the meeting to discuss your investigation, and upon notification of the proposed certificate action. It's worth noting that on each of these occasions, the purpose of the FAA meeting with you or hearing from you isn't to decide whether to proceed against you. It's to gather material to be used against you in enforcement, and in the appeal process. Your first real chance to address the matter is the appeal process; it's your first chance to actually defend yourself where you have any standing in defense. Prior to that, anything you say simply goes to enforcement of the investigated matter.
It may be a matter of you being reported in an aircraft that buzzed a beach, for example. The FAA notifies you that you've flown too low over a populated area, and gives you a chance to respond. You think you're defending yourself when you respond stating that you were above the minimum altitudes. What you've actually done, however, is establish that it really was you in the aircraft, something the FAA may not have been able to establish until you made your response. You just sealed your fate. As the airman, you thought you were defending yourself; you don't get to demand the FAA prove its case, because the FAA doesn't need to prove its case. It can proceed with the certificate action, and it's up to you to appeal. Your first defense comes AFTER the "conviction" or certificate action, when you can appeal the matter. Again: unlike criminal court where you fight charges and the government must prove it's case, the burden of proof is on YOU in administrative cases and your'e presumed guilty at the outset. Did your attorney not explain this to you?
You've indicated that you "****ed off" the inspector at the informal hearing. If you had an attorney present, he should have counseled you to keep your mouth shut. If you ****ed someone off, you may have already torpedoed yourself; most damaging information in enforcement comes from the airman himself or herself; most of the time the inspector doesn't have what's needed until you give it to them. Did you give it to them? Argue with them? You weren't there to do that. That's not what the informal hearing is for. It's to gather material to use against you.
Certainly if you have evidence contrary to what the inspector has gathered, it may be presented, but what should never be done is to give more evidence, and arguing with the inspector will never be productive. In fact, you can guarantee yourself extended grief for doing that. A basic concept of working with the FAA, and a key element in dealing with the FAA, is an "attitude of compliance."
Arguing is attitude, but it's not compliance. When dealing with enforcement action, your first opportunity to present an argument will be the appeal process after the administrative action and certificate action has taken place.
You've noted that most pilots know more than aviation attorneys. It's very clear you've got a lot to learn and that you think you know more than you do. That attitude will sink you. You need good counsel, and you need to listen to that counsel. Your elected representatives are NOT part of the enforcement process. The enforcement process is well established, including the appeal process.
Don't count on collecting legal fees from the government in this enforcement process, even if you get your "legislator" involved.
I don't know what AVE F is or is supposed to be, but rather than arguing what you think is the case, the actual case is what's been given you in the letter. You've been given an option to accept the violation or seek remedial training. If you refuse the training, then you've got the violation with which to contend. You may not have to serve any sentence (certificate suspension, for example) because of timely filing of the ASRS, but you still have a certificate suspension on your record, and if you want that addressed, you'll still need to undergo the appeal process.
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