Stale Rule under 2150.3B
 

I received a letter of proposed certificate action on 10/15/2015 for an alleged violation that occurred on 05/02/2015. (an ASRS was filed the day of the alleged violation)

We had an informal conference where the alleged violations were categorically disproved but the FAA counsel insisted on pushing a Remedial training offer or 30 Day suspension (which they could not enforce because of the ASRS).

We responded by stating we would not give them a decision until they provided justification as to why the FARs we cited did not apply.

It has now been 5 months since last contact with the FAA legal counsel and nothing. They have not responded to 3 written inquiries to the disposition of the case essentially leaving it in limbo.

This appears to be a case of the investigating FSDO not knowing their own FARs related to cases of loss of radio communications.

The stale rule is a bit ambiguous in this matter. How long can the FAA's legal counsel leave this matter in "limbo" before they are forced to drop it or take action?

Does anyone know?

When you say "we," do you mean you, and your attorney?

Your statement isn't very clear. You say that you received a notice of proposed certificate action on October 15. When did you receive the letter of investigation?

Yes I meant my attorney and I in 'we'. The initial LOI was received on 6/3/15.

I've even tried to run it up the FAA chain of command and the investigating inspector has been caught in several instances where he lost separation with virtuosity and memory.

I get the impression they want to bury the whole thing without having to drop it and just let it time out and go stale. I'm just not sure when that will happen if ever.

I'm very confused.

The process you've described does not reflect the FAA enforcement process. It begins with a letter of investigation. Did you omit everything leading up to the notice of proposed certificate action?

If you've retained counsel, then why are you coming on a site such as this to seek unsubstantiated, possibly unqualified legal advice? Does your attorney not know?

The FSDO doesn't handle this. Once the process has begun, it's moved to the regional legal counsel.

The argument that you refused response until the FAA provided justification sounds fanciful, but if that's what your legal counsel elected to do, so be it.

The investigating FSDO is often wrong about the regulation, but that's handled through the appeal process. The FSDO has never had the authority to interpret regulation. The FSDO initiates the enforcement process.

The stale complaint rule was initiated by the NTSB, and requires that the FAA notify an airman of a proposed certificate action within 6 months of initial discovery of the alleged violation. You described a notice of proposed certificate action received five months after the alleged violation, placing it within that time frame. Once that's contested, however, the 6 month time frame no longer applies.

As you've retained legal counsel, this is something that you really need to discuss with your attorney.

What JB said. If you're not happy with your lawyer, get new one.

But statute of limitations (such as the stale complaint rule) generally do not require the agency in question to grant you a "clean bill of health". It's probably legal for them to keep the case in limbo for for an extended period, although the longer it drags out the lower the odds that they'll ever be able to make it stick unless they have a good reason for the delay.

They know that an open, unresolved issue like this can be very problematic for a professional pilot, so they might be stalling deliberately to punish you or coerce you to go along with their plea deal.

You might investigate whether or not the rules or FAA internal policy require any sort of formal closure of an unresolved case, and whether you could FOIA the info about the case.

That's not a bad idea, I wonder what information is available via FOIA request. The EIR would be interesting as well as the detailed report of the FAA counsel following the informal conference.

As for relying on my attorney I often find that the professional pilot community has much more insight than aviation attorneys do. And I would arguably submit that placing all your eggs in your attorney's basket is a fools game and will only lead to a transfer of funds from your bank account to theirs.

As for asking my attorney, he has proven to be a substantial waste of money. Myself and a non aviation attorney who is a pilot, have done all the case work and presentations in this case and it is because of that work that the FAA has not moved forward with this. In fact during the informal conference, I did all the talking and made the presentation citing FARs and applicable NTSB case law. It was actually embarrassing for the FSDO representative as he was 'schooled' on FARs and instrument procedures. My attorney and I were shocked at how little they actually knew. It really appeared that they are unprepared for pilots to actively fight enforcement actions and they just act like bullies even to the point of bluffing.

Unfortunately the FAA counsel knows if he proceeds he will lose on appeal and subsequently lose an Equal Access to Justice action. Sadly for me, there is nothing in the FAA 2150.3B guidelines that addresses this 'limbo' situation.

I would however assume that there is some kind of internal stale case review that would end this after a 6 or 12 month period.

Not sure what you mean that it doesn't sound like their process.
1) Received LOI in June
2) Received Enforcement letter in October.
3) Had Informal Conference in February

Did we miss something here??

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. In fact that is why the Equal Access to Justice act was enacted so that when you prove to the government they are acting without justification before they take enforcement action they must compensate you.

The letter of proposed certificate action will cite the justification. During the informal conference, they will lay out on the table what they have, in terms of evidence. That's the purpose of the informal conference. If your guy has something they feel is contrary to what the FAA's attorneys have, they bring it up here. The FAA lawyers don't want to lose in court, so they are usually more than open to anything contrary to their findings. That doesn't mean they will back down though if they feel they have solid evidence. Are you saying all of this didn't happen?

Also, important to note, while a 30 day suspension may be waived under ASRS, it doesn't prevent a violation from going on your record.

There is no justification when they are totally wrong and don't know the difference between lost comm procedures (part 91) in vmc and imc and on a clear day it's pretty cut and dried. Actually most people recite AVE F which is only true in IMC, which is exactly what they did.

I think part of the problem is that the FSDO has control over dropping the matter and I ****ed off the inspector so much at the informal by making him look like an idiot that they won't drop it.

So here we stay in limbo....

I will eventually bring my legislator's office into the matter if it's not dropped. Part of me hopes they violate me, at least then I can collect the legal fees.

So you are saying this is what you did?

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.

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.

Sounds like you've got the tiger by the tail. Good luck.