Aviation attorney John S. Yodice flies a Cessna 310.
For the many pilots who have had a flying incident (and the pilots who will), the legal question is: How long do I have to wait before I can stop worrying about whether the FAA is going to take any enforcement action against me?
Isn’t there a statute of limitations as in virtually every other area of the law, a statute that prevents the prosecution of claims after a certain period of time? Shouldn’t the “equitable” doctrine of laches also apply? Equity, as opposed to statutory law, is “justice administered according to fairness.” Isn’t equitable laches available as a bar to the unfair prosecution of old suspected violations? What is the statutory or equitable limitation that applies to FAA certificate suspension and revocation actions?
The answer, as we are coming to learn, is “none.” The closest thing that we have is the NTSB’s six-month stale complaint rule. The FAA easily avoids this rule by alleging the “lack of qualifications” exception to the rule (“Pilot Counsel: ‘ Statute of Limitations’ for Pilots,” January 2004 AOPA Pilot). In any event, the time periods we are addressing in this month’s column go well beyond the six-month period in the stale complaint rule, and involve years of prosecutorial delay.
There is a federal statute of limitations that should apply. It bars the “enforcement of any civil fine, penalty, or forfeiture” after five years. However, in a case in which the FAA delayed five years after learning of an alleged violation, the NTSB ruled that it does not apply.
What then about laches? In earlier years the NTSB held that the doctrine of laches does apply to pilot enforcement cases. In 1989 the board very clearly expressed the policy that “the inapplicability of the stale complaint rule does not preclude an airman from otherwise attempting to demonstrate that prosecutorial delay has caused prejudice warranting dismissal.” This policy was applied in a 1991 case. The FAA complaint was not dismissible under the stale complaint rule because the FAA said that it presented an issue of lack of qualifications. Nevertheless, the then-NTSB dismissed the case under the doctrine of laches because of FAA’s prejudicial delay of more than five years between the date of the incident and the FAA’s initiation of legal enforcement action. “The board has indicated on several occasions that, notwithstanding the fact that a complaint may survive dismissal under the stale complaint rule, it might still be subject to attack if an airman could establish actual prejudice in his defense which is attributable to the [FAA] administrator’s delay.” Again, in a 1996 emergency revocation case, while specifically recognizing “that the administrator should have the discretion, in the interest of air safety, to pursue even stale charges that implicate airman qualifications [we the board] nevertheless believe that judgments concerning qualifications that certain conduct would ordinarily warrant become less and less justifiable as the interval between the conduct and the prosecution for it increases.” The board went on to hold “that the respondent’s unblemished career in more than 17 years that have elapsed since the complained of violations” tips the scales in favor of a laches bar. So, earlier and different boards have expressly recognized laches as a possible defense to an FAA certificate suspension or revocation case.
Fast-forward to 2009, and the case that prompts this column. The FAA revoked the airline transport pilot, flight instructor, flight engineer, and the first class medical certificates of a pilot for alleged falsification of several FAA medical applications. He admittedly had paid fines for two Ohio “minor misdemeanor” convictions for disorderly conduct due to domestic violence. He did not declare these misdemeanors in response to the convoluted “Medical History” question number 18 that many pilots have stumbled over. In an appeal to the NTSB, he defended the intentional falsification charges based on the board’s stale complaint rule and the doctrine of laches because the convictions were 11 and 13 years old. Although not relevant to the timing issue we are discussing, he also defended that he did not believe that he needed to list them on his medical application because they were characterized as “minor” under Ohio law, submitting a state legal case in support of his position. Therefore, he argued, he did not “knowingly and intentionally falsify” the applications. Despite his denial of any intent to falsify, and despite the delay in prosecution, the law judge granted the FAA’s motion for summary judgment. On appeal to the full board, the judge’s grant of summary judgment was affirmed.
The full board rejected the pilot’s arguments concerning the doctrine of laches and the stale complaint rule. “We have long held that the doctrine of laches is relevant to board cases only in the context of the stale complaint rule [citing cases]. Here, the stale complaint rule does not apply, because the administrator has alleged that respondent lacks the qualifications to hold the certificates that the administrator seeks to revoke.” The board never cited nor discussed the cases we mention that flatly contradict this statement. Rather, the board (with today’s different members), and only by implication, overruled those cases.
So, the law as it now stands allows the FAA to indefinitely delay the prosecution of an old incident by merely alleging lack of qualifications (to overcome the stale complaint rule). In such a case, according to the NTSB, the statute of limitations and the doctrine of laches do not apply. The FAA’s time to prosecute is effectively unlimited.