Acting unethically?

One rule is the “stale complaint rule.” It generally prevents the FAA from seeking certificate action based on events more than six months before the FAA proposes the certificate action. One notable exception is when the FAA alleges a lack of qualification. When the FAA alleges a lack of qualification, it typically does so on an emergency basis, which implicates another set of rules. These rules arguably give advantage to the FAA. Allegations are assumed to be true for determining whether an emergency exists and the timeline for the litigation is expedited from normal handling. Cases involving a lack of qualification generally include intentional falsification or drug use. Yet the FAA often alleges a lack of qualification in illegal charter cases even when the evidence suggests the pilot was attempting to comply with FAA leasing requirements. The FAA has said that whether a lease is permissible under Part 91 or requires an operating certificate depends on the facts of the case. There are seldom clear cases. Pursuing pilots who act in good faith but misunderstood a complicated legal test is a far cry from pursuing pilots who intentionally falsify logbooks. The latter deserves punishment; the former would benefit more from counseling and education.

The NTSB Office of Administrative Law Judges has issued opinions that indicate the FAA too often drags its feet in investigations, allowing cases to go on for months or years. To get around the stale complaint rule, the FAA alleges a lack of qualification and seeks emergency revocation.

The rules governing emergency proceedings were created for circumstances that truly reflect a lack of qualification. Hopefully, the FAA will stop using the NTSB emergency proceedings to circumvent the stale complaint rule and will limit the use of those proceedings to cases that truly involve an imminent and significant threat of harm to aviation safety. Until then, we’ll have to rely upon the NTSB to ensure emergency rules are used only as intended.