|March 9, 2011|
An FAA enforcement action is an administrative action taken against a certificate holder (one who holds a license to engage in an activity regulated by the FAA) for alleged violations of the FAR’s. The FAA utilizes statutes, regulations, and internal administrative orders in the investigation and prosecution of enforcement actions. FAA Order 2150.3B is the internal administrative order containing the policies, procedures, and guidelines used by the FAA regarding compliance and enforcement actions. This order also articulates the FAA's philosophy for using various remedies, including education, corrective action, informal action, remedial training, administrative action, and legal enforcement action in addressing alleged noncompliance with statutory and regulatory requirements.
The initiation of the compliance and enforcement process typically comes about as the result of routine surveillance or inspection, public complaints, accident and incident investigations, or reports from air traffic controllers. Controllers often use the term “pilot deviation” when referring to potential violations of the federal aviation regulations leading to an enforcement action.
The FAA’s compliance and enforcement method of investigation may eventually lead to an Enforcement Investigative Report (EIR) that is used to substantiate any contemplated enforcement action. The Enforcement Decision Tool (EDT) is an analytical system used by FAA inspectors to assist in determining the appropriate recommended action for a suspected violation of the FARs. It was developed for the avowed purpose of matching the safety risk posed by an alleged act with the type of conduct involved. The EIR, EDT worksheet, and many other sample forms used by investigators are available in the author’s text “Aviation Law” published by Cengage Publishing which becomes available in 2011.
The “Typical” Enforcement Action Case
The steps involved in enforcement actions vary on the party or entity under investigation and the remedy sought by the FAA. The typical certificate action against a pilot for an alleged violation of the FARs involves the steps below. Comments following the FAA’s typical actions include suggested responses by the pilot under investigation.
Keep in mind that the sample scenario below is meant to illustrate a typical FAA enforcement action against a pilot and is not intended to be legal advice. Depending on the nature and/or severity of the event it may be advisable to seek aviation legal counsel that is intimately familiar with the enforcement action procedure prior to taking any action. An enforcement action typically involves the following actions:
1. NOTIFICATION. The pilot is notified by an air traffic control facility (enroute, terminal radar approach control, or tower) of a possible incident that could lead to an enforcement action. The phraseology controllers use is “possible pilot deviation, advise you contact (FAA Facility Name) at 234-555-1212.” Regardless of the exact phraseology used, you will know if you are the subject of a potential enforcement action if an air traffic controller gives you a number to call when reaching the destination airport. You are not required by the FAR’s to make the call to the air traffic facility. As a general rule of thumb in situations that do not involve serious matters, other aircraft, or restricted airspace, a phone call combined with a compliant attitude may put the matter to rest immediately. That is, the matter may not result in a referral to the local Flight Standards District Office (FSDO). In the event an enforcement action is going to be processed by the FAA air traffic controllers are required to submit preliminary pilot deviation information to FSDO within 12 hours of the occurrence and a final report within 10 days.
a. At this stage, it is critical that the airman correctly determine if the inquiry by the FAA facility is a non-serious matter that can be handled informally via a telephone call to the appropriate FAA facility. If you are not positive, regarding the nature of the incident, you must protect your legal rights and should not make any statements that may undermine your legal position in the future. Lawyers call such statements “admissions against interest.” In the event that you call the FAA facility you must keep in mind that your conversation will be recorded.
b.Immediately file a NASA ASRS Form 277, in a timely manner, if appropriate. Take this action within 10 days of the incident, whether you believe you have settled the matter informally, as outlined above, or not. Make sure that you have proof that the form was filed within the 10-day period. There are some exceptions to this suggestion.
2. PILOT ANALYSIS. The pilot should immediately review National Transportation Safety Board (NTSB) Part 830 to determine if they were involved in an “Incident” or “Accident.” Optimally you should do this before contacting the FAA facility.
a. If you are involved in an incident: File a NASA ASRS Form 277, in a timely manner, if appropriate.
b. If you are involved in an accident: Seek legal assistance prior to giving any substantive interview to the FAA or NTSB. While NTSB Part 830.5 requires that you contact an NTSB field office “-immediately, and by the most expeditious means available” do not file an NTSB Form 6020.1, NASA ASRS Form 277, or divulge detailed information reference Part 830.6 (h) (regarding the nature of the accident) prior to consulting with a qualified aviation attorney. In the event of an accident or intentional disregard for the FAR’s the data in NASA Form 277 will not be confidential.
3. FAA INVESTIGATION. Receipt of a Letter of Investigation (LOI). Once the FAA begins an investigation, the FAA FSDO inspector will send out a form letter, such as that shown in the author’s textbook, notifying the pilot that if he or she does not respond within 10 days the FAA’s report will be processed without the benefit of the recipient’s comments.
a. As with recorded conversations with air traffic control facilities, any response to this letter will be treated as an admission against your interest. You are not required by the FARs to respond to this letter. You should only respond if you have irrefutable evidence that you did not commit a violation of the FAR’s.
b. Unless you have exculpatory evidence (evidence that is favorable to you), the pilot should wait for the “Informal Conference” to explain his or her story, including any factors that would tend to persuade the FAA not to undertake formal enforcement.
4. FAA ACTION. Enforcement Actions (stay on the airman’s record for at least 5 years). Clear violations of the FARs will almost certainly lead to an initial determination that an enforcement action is necessary.
a. Notice of Proposed Certificate Action or Civil Penalty Assessment. Once a pilot receives this several options exist:
1. Request an “Informal Conference.” This is the preferred course of action and prior to attending the airman should seek the FAA’s EIR utilizing a Freedom of Information Act (FOIA) request, or preferably, from the FAA attorney assigned the matter as it is much more expeditious. The informal conference is an attempt to settle the case by reducing or eliminating the sanction. Contradictory statements made during such “informal” proceedings can be used against the pilot in any subsequent proceeding such as a hearing before an Administrative Law Judge (ALJ).
2. Write a letter of explanation. Anything in this letter is subject to being used against the airman’s interest and therefore, such a course of action is rarely suggested or successful.
3. Turn in you certificate. Admitting to the infraction and loosing your privileges to operate under the certificate for a defined period.
4. Pay the civil fine. Admitting to the infraction and paying a set amount of money to the U.S. Government.
b. Administrative Actions (stay on the airman’s record for 2 years). In the form of a warning letter or letter of correction (likely following remedial training) if the matter is minor and not intentional. Considering the other possibilities this is by far the best outcome.
c. Reexamination. This is not an enforcement action and the FAA can take this action anytime they have “reasonable cause.” An airman must comply or they may have their privileges revoked. Pilots are required to pay for this. Successfully passing the reexamination does not mean that the FAA will not assert an enforcement action. Therefore, the pilot should not discuss the facts or circumstances regarding the incident leading to the reexamination during the reexamination itself.
5. FAA ORDER OF SUSPENSION, REVOCATION OR CIVIL PENALTY ASSESSMENT.
a. These are effective immediately unless a timely appeal is filed. Filing a timely appeal stays non-emergency orders allowing pilots to continue flying pending the appeal process. Emergency Orders must be appealed within 48 hours.
6. APPEAL. Appeal of the FAA’s Initial Determination in the case of an enforcement action. The FAA files a “Complaint” after an appeal is filed. Usually this Complaint is a cover letter stating that the Notice serves as the Complaint. The pilot/appellant must file an Answer in a timely manner.
7. HEARING BEFORE AN NTSB JUDGE. Occurs before an NTSB Administrative law judge. This is the only step in the process where the pilot gets to present his case through evidence and witnesses before a judge. There is no jury.
8. APPEAL TO THE FULL NTSB. If either party is not satisfied with the ALJ’s determination the next level of appeal is to the entire NTSB. In almost all cases the appeal only involves the hearing judge’s application of the law to the facts. There is not another opportunity for the parties to present evidence or witnesses (deemed a “de novo” review). The full board’s determination is made after considering the written legal positions (called “briefs”) of the parties. The full board will not overrule the ALJ’s decision unless the full board finds as a matter of law that the ALJ’s decision was arbitrary or capricious.
9. JUDICIAL REVIEW. If either party is not satisfied with the full board’s determination the next level of appeal is to the U.S. Court of Appeals. The parties brief the Court. There is no opportunity to present witnesses or evidence. Oral argument may be asked for, yet it is discretionary by the Court. The Court must find as a matter of law that the NTSB’s decision on appeal was arbitrary or capricious in order to overrule the NTSB’s decision. As a practical matter this is very difficult to obtain. Therefore, the great majority of NTSB decisions are not overturned on appeal.
10. FURTHER APPEAL. Technically another level of appeal is available to the U.S. Supreme Court via writ of certiorari. However, it is highly unlikely that the Court would hear the case. At least four of the nine Justices of the Supreme Court must agree to grant the petition for certiorari. A petition for certiorari is granted by the Court in a small number of select cases numbering less than 100 per year.
Keep in mind that the enforcement action process varies depending on the person or entity alleged to have violated an FAR and the amount or type of sanction sought by the FAA. The FAA can also order an emergency revocation of a certificate. In cases where the penalty sought exceeds $50,000.00, or is against an airline or other entity, an administrative law judge does not hear the case. In the event that the charged party cannot settle the matter with the FAA, the FAA brings suit in the appropriate District Court in order to enforce its proposed civil penalty order. Each of the scenarios, depending on the specific party and type of enforcement action, is explored in the author’s text “Aviation Law”. For more detailed information and videos see: www.faaenforcement.com.