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SAFETY
WISE May 2000 |
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VIOLATED!...Part Two Our intrepid aviator has just received an LOI (Letter of Investigation). Concerned, he has some typical questions one might have if one received an LOI. 1. Isn’t there a statute of limitations...for instance, if he didn't receive the LOI within 6 months...is he in the clear? Yes and No. There is a rule which is referred to as the "stale complaint" rule (49 CFR 821.33) which might apply if the FAA is unusually tardy in pursuing an investigation. However, the FAA can request an extension if they can show extenuating circumstances that preclude the pursuit of the investigation in a timely manner. The FAA can also request an extension if they can prove that the violation only recently came to their attention. 2. Does he have to respond to the LOI? The FAA wants you to respond but you are NOT required to respond to an LOI. Forget all the COP shows you have seen along with Miranda rights etc....the FAA is doing their job and their job is to investigate YOU if you screw up. They can and sometimes will call your home to have a "friendly" chat...they might drop by your house or meet you at your hangar just to "discuss" the violation. They have every right to do so. Remember however, everything you say can and WILL be used against you. They don’t have to inform you of any rights and they don’t even have to tell you that they are investigating you. Most pilots who go through the violation process will first receive the LOI we are discussing now. Let's go over a couple of sentences in the LOI form letter that I think are important to consider. "We would appreciate receiving any EVIDENCE or STATEMENTS you might care to make regarding this matter within 10 days receipt of this letter." When you think about it, they are being totally honest and up front here. They simply want evidence on you and a statement from you. This is where the pilot will bury himself/herself. Again, anything you say or write will be used against you. At this point, the FAA has to prove somehow that you were actually flying the airplane. This is easily done when a pilot writes back, "yes I was flying my plane over the park that day but I never went below 1500 feet AGL." A big part of the FAA investigation is now complete...they have matched you with your aircraft on the alleged day of the violation. Never lie to the FAA...never ever...but you don't need to bury yourself either. "Any discussion or written statements furnished by you will be given consideration in our investigation" Yep...again, they are being honest and straight forward. Anything you say or any written statement made by you will only give the FAA the information they need to violate you. "If we do not hear from you within the specified time, our report will be processed without the benefit of your statement." Yes it will, but in this case, this is not necessarily a bad thing. You have not incriminated yourself and the FAA is left with the sometimes formidable task of proving that indeed a violation was committed and that you were the one who was the violator. At this point, I always advise a pilot to seek legal advice. Chapter 52 has at least one good aviation attorney (Drew Hurley) and there are probably others who are aviation oriented attorneys in the chapter or in the area. Never try to take on the FAA by yourself. You ARE going to need legal counsel. But don't….. like so many pilots have done in the past....bury yourself with statements (written or verbal) and then when all is lost, finally go to an attorney. If you receive an LOI, you ARE under investigation. Right or wrong, you're going to need legal help. The quicker you get it, the better off you'll be in my opinion. My number one rule when I have counseled a pilot under investigation is, "don’t exercise your freedom of speech until you have talked to an attorney". Let him or her do your talking…this is not a game and most of us have a lot to lose if we screw this up. The FAA takes these things deadly serious as they should…you should too. 3. What comes after the LOI? The case could be dropped but this is unlikely. Most of the time the next correspondence you will receive (or hopefully your attorney will receive) would be a Notice of Proposed Certificate action similar to the example below:
August 2, 2000 88GL140000 CERTIFIED MAIL - RETURN RECEIPT REQUESTED Mr. Orville Right River City, N.J. 08889 NOTICE OF PROPOSED CERTIFICATE ACTION Take notice that upon consideration of the report of investigation, including a statement made July 7, 2000 by Ms. Darah Headley esq., attorney at law, it appears that you violated the Federal Aviation Regulations by reason of the following circumstances: 1. You are now, and at all times mentioned herein were (emphasis on "were") the holder of Private Pilot certificate No. 238472599. 2. On or about July 4, 2000, you acted as pilot in command of a Pitts Special registration No. N451SH operating under visual flight rules in the vicinity of City Park New Jersey. 3. During the above-described flight you buzzed picnickers and bathers causing at least two (2) of them to dive into the lake seeking some form of escape from your low flying Pitts. 4. Smoke from your Pitts settled on the area ruining $47.58 worth of hot dogs, buns, punch and Koolaid (see attachment A). At least one picnicker's hair had a chemical reaction to the smoke originating from your Pitts turning her hair the ugliest color green I have ever seen (see attached photo). 5. Prior to your flight your own Mother advised you against "such foolishness". Notwithstanding said advice, you went ahead with your exhibition. 6. Your operation of Pitts N451SH, in the manner and under the circumstances described above, was careless so as to endanger the life and property of others. By reason of the foregoing facts and circumstances, you violated the following Federal Aviation Regulation (among others): 1. Section 91.9, in that you operated an aircraft in a careless or reckless manner so as to endanger the life or property of another. Please take note that by reason of the foregoing facts and circumstances and pursuant to the authority vested in the Administrator by Section 609 of the Federal Aviation Act of 1958, as amended, we propose to suspend your Private Pilot certificate for a period of 180 days. Unless we receive, in writing, your choice of the alternatives provided and set forth on the enclosed information form, on or before September 1, 2000 an order of suspension will be issued as proposed. Also take note….not even your Mother will help you out on this one Pal. Assistant Chief Counsel 4. What now? Your legal counsel will advise you that within fifteen (15) days after you receive the notice of proposed certificate action, you may elect to proceed in one of five (5) ways. Basically these are your choices: 1. You may surrender your certificate on or before the date indicated in the notice of proposed certificate action. If you do this, your license will be suspended immediately upon receipt of your certificate. This next part is important....When you surrender your certificate, you waive your right to appeal to the National Transportation Safety Board. 2. You may indicate your desire to have an order issued as proposed in the notice of proposed certificate action so that you may appeal to the NTSB as provided in 49 U.S.C. 44709 and the NTSB's Rules of Practice (49 C.F.R. Part 821). If you DO appeal to the NTSB, an administrative law judge will be appointed to decide the case. If he was also at the picnic, you are screwed. At the hearing, held under 49 C.F.R. Part 821, the FAA will present witnesses and other evidence. You will also be able to present witnesses and any evidence you might have, i.e. ….you have a twin brother who is also a Pitts pilot but after your Mother whomped his butt he headed to Mongolia to become a bald headed Monk and therefore he is currently unavailable. Remember, the FAA will have the burden of proof. If either party, the FAA or you, is dissatisfied with the judges decision, that party can appeal to the full Board. A further appeal to the United States Courts of Appeals is also available. 3. You may answer the charges in writing (not recommended). The FAA will consider the information you provide and then determine whether certificate action should be implemented and the extent of the sanction that should be imposed. You may also submit this information in conjunction with a request for an informal conference under paragraph 4. Electing this option will NOT affect your right to the NTSB later. 4. You may request an opportunity to discuss the matter with an FAA attorney by a telephonic informal conference or at an in-person informal conference at an FAA regional office. The closest office of this type to most of us would be Washington DC. You may request an informal conference at an FAA office other than those on the Informal Conference Location list but these requests are rarely granted. Your selection of an informal conference will NOT affect your right to appeal to the NTSB. Last but not least is #5.....the NASA report: 5. If you are an individual and have filed an FAA Aviation Safety Report with the National Aeronautics and Space Administration (NASA) concerning the incident or occurrence set forth in the attached notice of proposed certificate action, you may be entitled to a waiver of any penalty. Keep in mind that if a NASA report was not filed within ten (10) days of the alleged occurrence, you are again screwed. You can’t wait to see if the chips fall against you and then file a NASA report. You MUST file a NASA report within 10 days of the occurrence or it will be no good to you. I repeated that because it is important. Those are your choices. Your attorney will help you decide which one is best for you. The purpose of this article is to discuss what rights you do or do not have if you are ever violated. Many of us have thousands of hours of flight time but unless you are an attorney in the aviation field or a safety person like myself, you might not have a clue as to what happens if you get violated. It should be noted that I am not an attorney and at no time should anything I have stated in this article be used except for informational purposes. If you are violated, get an attorney but hopefully after reading this article, you'll have a better idea as to what to expect. Violated!...Part Three will deal with the NASA report. Some think this is a "get out of jail free card" and it most certainly is not. Nonetheless I carry them in my flight bag and utilize them when I think I need to. I will talk about the NASA report form in the next Chapter 52 Safety Article. Also upcoming will be a discussion on the "pre-flight". We all do them…but what are we really looking for? Fly safe, Mark Benton Chapter 52 Safety Officer |
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