Pilot Counsel

A 'statute of limitations' for pilots

January 1, 2004

Have you ever had an incident and wondered how long you would have to wait before you could stop worrying about whether the FAA was going to take any action against you?

Here is a recent Federal Court of Appeals decision that deals with this question, a question that is important to many pilots and other FAA certificate holders. Specifically, how long does the FAA have to bring a legal enforcement action that would suspend or revoke an FAA certificate? How long can such a threat hang over a pilot's head? Isn't there a statute of limitations as in other areas of the law, a statute that prevents the enforcement of claims after a period of time? Statutes of limitations are a policy declaration "that it is unjust to fail to put an adversary on notice to defend within a specified period of time, and that the right to be free of stale claims in time comes to prevail over the right to prosecute them."

So what is the statutory limitation that applies to FAA certificate actions? The answer, technically, is "none." According to the NTSB, the federal civil statute of limitations, which logically should apply, does not. There is, however, a longstanding rule of procedure that serves as a limitation on the FAA. It is called the stale complaint rule.

Under the stale complaint rule, the applicable limitation is six months. The FAA has six months from the time an offense is alleged to have occurred within which to advise a certificate holder that the FAA proposes to suspend or revoke the holder's certificate. Otherwise, the complaint is stale and subject to dismissal. The rule is not absolute. It has a couple of exceptions that help the FAA avoid dismissal. One is if the complaint alleges a "lack of qualification" of the certificate holder. Another is a "public interest" exception. The last is if the FAA can show "good cause" for the delay.

Friend of the court

AOPA participated in this case as a "friend of the court" to help the court appreciate how its decision might affect other pilots who may find themselves involved in this process in the future. In its brief to the court, AOPA pointed out that the NTSB's decision demonstrated unfairness in a process that is meant to balance due process for the pilot with the public's interest. The court was obviously disturbed by the way the NTSB departed from its explicit precedent, and that it did so in such a way that it was hard to tell how the rule would be applied in the future. This is good news for AOPA members. The court is holding the NTSB, and by default the FAA, to the applicable procedures. The rules exist to protect the rights of the participants and the integrity of the process, and the rules must be applied uniformly, and if not, there must be a reasoned explanation.

The case involves a pilot who was charged with violating FAR 61.15 (see " Pilot Counsel: Flying and Driving," May 2002 Pilot). This is the regulation that requires pilots to provide the Security Division of the FAA with a written report of any "motor vehicle action" within 60 days. The FAA is strict on the application of the time limit (see " Pilot Counsel: Obscure FAR 61.15(d)," November 1997 Pilot). Most pilots are not aware of the reporting requirement. It is buried in the FARs, and most pilots don't tend to associate driving infractions with having an effect on their pilot certificates. There is no official reporting form. Rather, this tenuous connection is brought to a pilot's attention on the FAA medical application. Question 18(v) of the medical application form, under "Medical History," asks about a history of convictions involving driving and alcohol or drugs, and it asks about a history of convictions or administrative actions that resulted in the denial, suspension, cancellation, or revocation of driving privileges. FAR 61.15 requires the disclosure of similar information. The disclosure of this information on the medical application does not satisfy the reporting requirements of FAR 61.15. In other words, a pilot has two reporting requirements for alcohol-related driving offenses, question 18(v) on the medical application and FAR 61.15.

The pilot was convicted of driving a motor vehicle under the influence of alcohol on February 25, 1997. A report was required by April 26, 1997, 60 days after this motor vehicle action. Here is where the stale complaint rule kicks in. It wasn't until 12 months later, on April 22, 1998, that the FAA notified the pilot that it proposed to suspend his pilot certificate. It wasn't until another year later, and two years after the motor vehicle action, that the FAA issued the order suspending his pilot certificate for 30 days.

The pilot appealed the suspension to the NTSB. The pilot moved to dismiss the complaint. There was no doubt that it was stale. To avoid dismissal, the FAA claimed "good cause" for the delay. The NTSB, by a 3-2 vote (and a stinging dissent), concluded that the FAA had shown good cause for the delay in notifying the pilot that the FAA proposed to suspend his certificate. The pilot appealed the board's decision to the U.S. Court of Appeals for the District of Columbia (acknowledged to be the most important federal court next to the U.S. Supreme Court). The Court of Appeals disagreed with the majority of the board. It overturned the board's decision, sending the case back for further proceedings.

The facts underlying the FAA claim of good cause are complicated, but pilots may be interested because they involve what the FAA does with an airman's medical application. In December 1996, the pilot in this case was stopped for driving under the influence of alcohol. While this driving case was pending, about a month or so later, the pilot applied to the FAA for an airman medical certificate. About three weeks later his driving case came up and he was convicted of driving under the influence (triggering the requirement for notification to the FAA, of which requirement the pilot was unaware).

The FAA sends to the National Driver Registry lists of individuals who apply for FAA medical certificates. The NDR then matches the names against its own records, which contain information on individuals whose driver's licenses have been denied, revoked, suspended, or canceled for cause, or who have been convicted of serious driving offenses. When the FAA receives from the NDR a list of names that have matched an NDR record, an FAA investigator then checks the National Law Enforcement Telecommunications System (NLETS) database for details of each pilot's motor vehicle incident. If the data confirms that the incident was a reportable one, the FAA investigator searches the agency's records to see if the pilot filed the required report.

It was on May 16, 1997, that the FAA received from the NDR the pilot's driving record. The information was immediately routed to an FAA investigator, but apparently no action was taken until four months later, when the investigator was transferred to a new FAA assignment. A second investigator was brought on, but he too was reassigned, in October 1997, and the case was passed on to a third investigator. This investigator conducted the NLETS query on February 4, 1998. By February 10, 1998, the investigator determined that the pilot had failed to report as required by FAR 61.15. On April 22, 1998, a year after the conviction, and 16 months after the event, the FAA notified the pilot that it proposed to suspend his pilot certificate.

The Court of Appeals reviewed the facts of the case and the procedures followed by the FAA and the NTSB. The court concluded that the board had failed to follow its own precedents on the stale complaint rule, and the board failed to explain why it was deviating from these precedents in this case. In rebuking the board, the court remanded the case to the board for further proceedings consistent with the court's holding. It remains to be seen what the board does with the case.

John S. Yodice