Originally Posted by
JamesNoBrakes
Another good thing about this is that no "letters of investigation" go into the airman's file anymore, assuming the situation meets the criteria (as in not egregiously disregarding rules or premeditated planning to break them).
In the past, agents of the Administrator used letters of investigation and warning letters punitively, knowing that the LOI or the warning, while not representative of wrong doing, could damage or destroy a career. I've seen it, and I've seen the threat of it.
The purpose of the letter of investigation was never to obtain all the facts in order to dispose of the matter, nor to actually give the airman an opportunity to clear the air. It was always about seeking anything from the airman to bed against him.
This continues to be the case. One ought not respond to such a letter without having first sought legal counsel.
Originally Posted by
JamesNoBrakes
I'm not sure what you mean by "only once they've taken action", even back when enforcements were more common, if the airman did not meet with the inspector, their first notice of action would a proposed penalty, suspension, etc. Then they'd meet with the lawyer in an "informal" to try and wheel and deal, bring up new evidence, invalidate other evidence, etc. This is long before appeal from an administrative judge and long before any "final action/order" has taken place.
The first opportunity for defense is the appeal process. Prior to that, every informal meeting, letter, call, is for the purpose of gathering material to use against the airman. After the airman has received enforcement action, he may appeal.
Few airman arrive at the table with an attorney, though they ought to do so, and few retain legal counsel before responding.
Originally Posted by
JamesNoBrakes
Contrary to folklore, it's very hard to "take" someone's certificate. Even "emergency" suspensions are not fast and they are usually only the result of some egregious activity, like running drugs or widespread illicit/illegal behavior within an organization.
Egregious alleged or insinuated behavior. Convicted, then tried. One may appeal the revocation after the revocation. That is the first forum for defense.
Informal meetings prior to the certificate action have no forum for defense, nor are they presided by a third party. It's more akin to meeting with the school bully by the flag pole and saying "please don't beat me." There's no teacher present.
Even with retained legal counsel, the best that the airman can hope for from the attorney is the wise counsel to shut up.
Originally Posted by
JamesNoBrakes
Although you are correct that if the airman chose to bring forth incriminating evidence, it would be used against them, ultimately any case has to be able to stand up to an NTSB judge, and they are infamous for scrutinizing the FAA and kicking out cases (and making fools of the FAA lawyers) that do not hold up. If something is learned before it gets to this point, which is usually way down the road, the case gets dropped.
The Miranda warning applies to police, in criminal cases, but not to inspectors in administrative cases. Never the less, anything the airman says or writes can and will be used against him. The airman is accused of flying low over a beach. Someone on the beach saw a blue and white Cessna, someone snapped a picture of the registration number. The FAA knows the airplane was there, but it's the pilot who puts himself in the airplane when he responds with a letter explaining the situation. He states that he was at a legal distance and altitude, that he wants to comply, that he's terribly sorry for the confusion, but it's his admission that he was there in the first place that gives the inspector what he wanted to finish his report and recommend enforcement action. A successful letter of investigation.
The matter only needs to stand up to an ALJ (Administrative Law Judge) in the appeal process if the matter is to remain; it doesn't need to stand up in order to damage or destroy a career. Simply being the subject of enforcement action is costly in terms of the bank account and career progression.