My firm represents various members of the aviation industry, including individuals and companies. Aviation law is composed of statutes regulating aircraft, their facilities, and pilots. The major portion of aviation law is federal. The Federal Aviation Administration ("FAA") and the National Transportation Safety Board ("NTSB") are the relevant agencies implementing and enforcing regulations. By statute, the FAA is charged with issuing and enforcing regulations regarding the manufacture, operation, and maintenance of all aircraft, assuring they meet minimum standards and all current regulations. The NTSB is an independent but not a regulatory or enforcement agency (not part of the Department of Transportation), investigating all accidents and recommending changes based on its probable cause analysis.
FAA CERTIFICATE VIOLATION DEFENSE
Pilots, mechanics, carriers and manufacturers holding FAA issued certificates are subject to FAA enforcement actions. Before answering any Letter of Investigation, or if you have received a Notice of Proposed Certificate Action or a Notice of Civil Penalty Action, consult with the Marzec Law Firm. Your certificate may be in jeopardy. Some inquiries about past conduct are less obvious and may lead you to make damaging admissions. For example, if you are contacted by air traffic control, approached on the ramp, asked to call the tower, and if the matter concerns past conduct, cooperate, but do not volunteer information. Ask questions and find out the purpose of the line of questioning. Do not argue or state opinions. To protect yourself, give yourself time to reflect on the situation, and contact our firm before responding to any inquiries.
If you receive a Letter of Investigation inquiring about an alleged incident, it is imperative that our firm answer such a letter in a manner that will not reveal any incriminating information or make any admissions. Too many pilots who receive such letters ruin their cases right from the beginning by needlessly revealing incriminating information. After the file is forwarded to the counsel in the FAA regional office where the violation occurred and where the local FSDO is located, you should not discuss the case with anyone else besides your counsel.
FAA Proposed Certificate Actions
If the certificate action is believed to have merit, the regional counsel will send the formal Notice of Proposed Certificate Action. This is the formal charging document that will aver facts and regulatory grounds for allegations as well as the requested penalties. If you do not want the Notice to become final (leaving only an appeal to NTSB possible), you may want to answer the Notice within specified time. You should never answer without retaining an attorney. Answering may not always be the best course of action however, with many pilots choosing to attend an Informal Conference instead. On rare occasions it may be desirable to surrender your certificate immediately to avoid further investigation.
Informal Conferences
Informal Conferences are informal meetings at a local FSDO with the FAA staff counsel charged with prosecuting the case. If requested, FAA must provide an Informal Conference. The advantages of an Informal Conference include access to government file documents through a Freedom of Information Act (FOIA) requests and the ability to get the case dismissed based on procedural grounds. Attending such session without counsel is not advisable for fear of making admissions to a sophisticated FAA attorney. If a complaint is considered to be "stale" (Notice of Proposed Certificate Action issued later than 6 months of the incident), the FAA may be limited to bringing a penalty action only. An Informal Conference may not lead to a resolution, at which point an administrative hearing will be held following the discovery phase. If you lose in front of the Administrative Law Judge, your recourse is an administrative appeal to the five member National Transportation Safety Board (NTSB) where the Notice of Certificate Action will serve as the complaint. After exhausting your administrative remedies, you may appeal to the Court of Appeals.
Notice of Certificate Action
Unless the certificate holder subject to the Notice of Proposed Certificate Action elects to receive an order (with an option to appeal to the NTSB) or surrenders his or her certificate, the Notice of Certificate Action (ordering suspension or revokation of a certificate) will not be issued until after the Informal Conference or other FAA consideration if submitting an Answer. The Notice of Certificate Action will serve as the complaint in an appeal to the NTSB.
Appeals to NTSB
Certificate holders frequently appeal lost cases to NTSB. In addition to its investigatory functions, NTSB possesses an appellate function per 49 CFR 821. It is crucial that a Notice of Appeal be filed within 20 days from the day that FAA serves an Order of Suspension. Due to complicated rules of procedure, strict format requirements and other considerations, holders of FAA certificates should be represented by counsel. If you have been issued a nonemergency FAA Order revoking or suspending your certificate, you will be able to maintain your flying privileges by seeking an appeal to the NTSB which acts as an automatic stay. An Emergency Order, however, does not permit the further carrying out of privileges under the license from the day that it is issued. Still, Emergency Orders are issued much less frequently.
After filing the Notice of Appeal within 20 days of the Order, the FAA has 5 days to file a complaint. The certificate holder will have 20 days to file an Answer where Complaint allegations will be admitted or denied. The Answer will also include Affirmative Defenses. If it does not contain them, they will be deemed waived later on. A hearing will usually take place in either a federal office building or a federal courthouse. This administrative hearing, while less formal than a trial, aims for the same goals, to determine factual issues as well as the law. Witnesses will give testimony and various items will be introduced and accepted into evidence. Motions will be made. After closing arguments, the Administrative Law Judge (ALJ) will issue an oral decision or render a written one later. The decision will include factual findings and conclusions of law. Such decision will either find in favor of the FAA upholding the Order and sanction, find in favor of the FAA but reduce the sanction, or it will find for the certificate holder, dismissing the Order and sanction. Under no circumstances can the NTSB ALJ increase the sanction. Further appeals can be had either by certificate holder or the FAA if a Notice of Appeal is filed with the full Board within 10 days of the ALJ decision, but such appeals are rare and expensive. If appealed to the full Board, briefs need to be submitted within 50 days of the oral decision or 30 days of written decision. The opposing party will have an opportunity to file a reply brief, but oral arguments are only heard by request of the Board. The Board will either uphold the ALJ's decision if it agrees with the outcome, issue its own decision if it believes mistakes were made, and finally, remand the case back to the ALJ to conduct another hearing.
After an unsuccessful appeal to the full Board, an appeal may be had to the U.S. Court of Appeals. Because of the expense, most pilots or mechanics do not pursue this level of appeal. While an appeal to the U.S. Supreme Court is technically possible, it is largely a futile attempt.
FAA Civil Penalty Actions
In addition to the foregoing, the FAA has the power to fine its holders with a civil penalty for breach of its regulations. Civil penalties are usually sought in less severe violations, and hearings are held by the FAA. Civil Penalty Actions carry fines of $10,000 per violation per carrier and $1,000 per violation for individuals, with the FAA being limited to penalties up to $50,000. For penalties higher than $50,000, a U.S. Attorney will prosecute a hearing before the Department of Transportation. An appeal may be taken to the Administrator of the FAA.
Administrative Action
Minor violations are sometimes resolved with a Warning Notice or a Letter of Correction. A Warning Notice alerts the certificate holder of the noncompliance with the regulations and directs him or her to comply with the regulations in the future. A Letter of Correction confirms an agreement with the carrier, pilot or mechanic that a certain corrective action has or will be taken. The FAA may follow up whether the corrective action had been taken, and if ignored by the certificate holder, a Certificate Action or a Penality Action may be commenced.
Aviation Safety Reports
If you believe that a violation may have occurred, it may be advisable to file a confidential Aviation Safety Report (ASR) with NASA within 10 days of the believed violation to receive Sanction Immunity. Filing such report is often advantageous to taking no action because when the FAA does take an enforcement action, no penalty can be imposed assuming the act was not a deliberate violation of FAR's, it is not an action revealing a lack of competency or qualifications to hold a license, it was not a criminal violation, and if no accident occurred (as contrasted to an incident, defined at 49 C.F.R. 830.2). It is crucial to contact an attorney where it is believed that criminal activity was afoot since the contents of the filing may be used against the filer in proceedings (see FAR 91.25). This is not available to repeat offenders with violations in the last five years (not prior ASR's). To receive Sanction Immunity, the form must be received or postmarked within 10 days of the incident to the following address: NASA Aviation Safety Reporting Program, P.O. Box 189, Moffett Field, CA 94035-9800. Please be advised that certain overnight carriers do not deliver to Post Office boxes, therefore it is advisable to send it through Certified Mail, Return Receipt Requested. It is best to keep a diary to log when the incident occurred, when the form was sent out, when the Receipt came back, etc. You can now obtain the form online, and even fill out and submit it online. See http://asrs.arc.nasa.gov/forms_nf.htm.
Please contact the Marzec Law Firm to discuss aviation law issues by emailing dmarzec@marzeclaw.com. Telephone our office today 212-267-0200.
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