Spocksbrain

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?

JohnBurke

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?

Spocksbrain

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.

JohnBurke

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.

rickair7777

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.

Spocksbrain

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.

Spocksbrain

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.

JamesNoBrakes

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.

Spocksbrain

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.

JamesNoBrakes

So you are saying this is what you did?