FAA punishment??

[Otter]

stale...

I believe in the case of a civil action, stale complaint is 24 months and in the case of certificate action it is 12 months.

Could be wrong, someone may be able to expand on that.

 

[A Squared]

Well, thanks guys... The next time I go to court I will just tell the Judge that I do not need my facts straight (so say Dumbledore and Asquared) All I have to do is show up. You all just saved me many hours of investigating, paper work, briefing my boss, briefing the lawyers, testifing (sic), meetings, etc.....

Yep, same old crap you always spout whenever you reach the end of your rather limited understanding of your own legal system. If you think this description of the FAA's administrative law is incorrect, why don't you explain where it is incorrect, complete with references? Of course you never do you just spout some meaningless crap about saving time and playing golf. Tell you what, JAFI why don't you stick to providing information about how the investigation and enforcement happen within the FAA, presumably that is correct information, and by itself, useful. However when it comes to discussing the system of administrative law and the underlying legal concepts and assumptions, I would recommend that you just keep your piehole shut, because when you open it, you just display, for all the world to see how very little you understand about the legal system in which you operate.

P.S. The refrerence (sic) I posted from the Order 2150 is the guidance to determine a PROPOSED sanction. THE JUDGE determines the sanction in his ruleing.(sic) Sometimes the Judge gives more, sometimes less. Gotta go, tee-time.....

Uhhh, no, there you go again, showing that you are just clueless about the role of the NTSB court and the ALJ. Really, I mean it sincerely, you should just keep quiet because you are an embarrassment to the FAA.
The FAA determines the penalty, and if the subject of the enforcement doesn't appeal, the penalty which has already been imposed) stands. That is a complete enforcement proceeding, investigation, determination of guilt, and assignment of penalty, and it is all done by FAA employees.

Only *IF* the person appeals, does the ALJ even get involved. Legally, at this point is *is* an appeal of a finding of guilt and an imposed penalty that is already fait accompli That's what an appeal *is* that's why it is called an appeal. The ALJ does not determine the penalty, by the time the appeal arrives in his court the penalty has already been determined. In the appeal, the ALJ may review the finding of guilt, the penalty assigned, or both. He may affirm the findings of the FAA or he may overturn the finding of guilt, or he may modify the penalty. I don't think you'll find too many cases in which an ALJ *increases* a penalty, because the penalty has already been set by the FAA. You may find that the NTSB will reinstate a sanction, after it has been reduced by an ALJ, and that reduction is then appealed by the FAA to the full board. However, that is a second stage of appeal.

Look, we don't need to argue about this, this isn't some sort of subjective opinion issue, like Ginger vs. Maryanne. It's written into the United States Law.

Here it is:

Title 49
Sec. 44709. Amendments, modifications, suspensions, and revocations of certificates

(a) Not pertinent to discussion

(b) Actions of the Administrator.--The Administrator may issue an order amending, modifying, suspending, or revoking--
(1) any part of a certificate issued under this chapter if--
(A) the Administrator decides after conducting a reinspection, reexamination, or other investigation that safety in air commerce or air transportation and the public interest require that action;

(c) not pertinent to discussion

(d) Appeals.--(1) A person adversely affected by an order of the Administrator under this section may appeal the order to the National
Transportation Safety Board. After notice and an opportunity for a
hearing, the Board may amend, modify, or reverse the order when the
Board finds—........

Ok go back and read that again because these are the parts of the picture you seem to be missing.

The Administrator (the FAA) is the one who suspends or revokes your certificate, not the NTSB

You *appeal* the suspension or revocation to the NTSB

Just in case you still haven't grasped it, Here's another excerpt from US public Law:

TITLE 49--TRANSPORTATION

SUBTITLE II--OTHER GOVERNMENT AGENCIES

CHAPTER 11--NATIONAL TRANSPORTATION SAFETY BOARD

SUBCHAPTER III--AUTHORITY

Sec. 1133. Review of other agency action

The National Transportation Safety Board shall review on appeal--
(1) the denial, amendment, modification, suspension, or
revocation of a certificate issued by the Secretary of Transportation under section 44703, 44709, or 44710 of this title;

Notice that it doesn't say the NTSB will amend, modify, suspend or revoke a certificate issued by DOT, it says it will review on appeal, the denial, amendment, ...etc. etc.

that "review on appeal" means that the suspending and revoking has already happened by the time the NTSB gets involved.

Got it yet, JAFI?????????????

 

[JAFI]

"Just keep my pie hole shut"????

Comming from you, I'm speechless. I really, truely mean that.

Why are you getting mad?

I'll tell you what A Squared, you go with what you know about the process, and I'll go with what I know about the process. Since you say that I don't know any thing, you should not have a problem with that.

As for court cases. I have no complaints from my bosses, the lawyers, or the judges. But, we'll go with your version.

Good luck with that anger management thing.

JAFI

 

[A Squared]

True to form, JAFI, you won't address the points raised, you just babble a bunch of irrelevancies, and dodge the issues. And, no, I'm not mad, merely disgusted; Disgusted by your continuing insistence that I'm wrong, and your continuing refusal to back your posistion up with anything substantiative.

 

[JAFI]

Jafi,

In administrative law all of that is completely out the window. By the time you appear before the court, you have already been determined to be guilty (by the FAA) and you have already been sentanced to a punishment.

Ok, Fair enough, Will YOU please provide a reference from what you wrote that "you have already been determined guilty and a sentance is handed out by the FAA".

Please, I would like to read this.

FWIW the Order 2150 example I gave is sanction GUIDELINES for the FAA lawyer to present TO the Administrative Law Judge. The Judge decides the sanction to be applied to the airman or certificate holder. According to the below reference the Judge works for the NTSB. I always thought the inital court Judge worked for a pool of Adm. Law Judges who were assigned cases that worked for the DOT. The NTSB would only get involved during the appeal. No Judge ever told me who he works for. They do not "chat" much during court.

A reference on how the process works: http://www.ntsb.gov/abt_ntsb/olj.htm

I'll just dodge, babble, and spew crap (as you said I do) until your reply.

JAFI

 

[A Squared]

Ok, Fair enough, Will YOU please provide a reference from what you wrote that "you have already been determined guilty and a sentance is handed out by the FAA".

OK, I'll try once more, i'm not sure how many times this will take. Let's take a look at the information in the latest link you provided.

Since 1967, the National Transportation Safety Board (NTSB) has served as the "court of appeals" for any airman whenever a certificate action is taken by the Administrator of the Federal Aviation Administration (FAA). The Office of Administrative Law Judges is responsible for the conduct of all formal proceedings arising under the Federal Aviation Act of 1958, as amended. These proceedings primarily involve appeals by pilots, navigators, mechanics, dispatchers and air traffic control tower operators from orders of the FAA suspending, revoking or modifying their certificates for alleged violations of the Federal Aviation Regulations,

OK, now notice that I have once again emphasized the word appeal, as I have in previous posts. I don't do that because I think it looks cool. I do it for a reason. that word appeal is the key to the whole thing. An appeal is by definition something which happens after a determination of guilt (or other ruling somone isnt happy with) The point is that in real law, an appeal is something which happens after an initial court decision. In FAA law, that decision you are appealing, didn't take place in a court it was decided by the FAA. You are appealing an order of suspension (for example) and that order of suspension comes from the FAA, not from a court.

From your last post, it seems you may be a little unsure who is working for who. The administrative law judges are NTSB employees. they are the first level of appeal. If you're in front of an ALJ, the issue is already in the appeal phase. There is another level of appeal above that, and that is to the full board of the NTSB. Beyond that it is the DC circuit court of appeals and ultimately the supreme court.

But the crucial point, and I keep repeating it, because it seems not to register with you, is that the very first time you, as a pilot, appear before anyone even remotely resembling a judge (and an ALJ is a poor substitute for a real judge) is in the appeal , at that point you are appealing an order of sanction which has already been issued by the FAA.

Perhaps you can appreciate why I got a little frustrated, everything which has been showed to you, and indeed the information you yourself have provided, refers to an appeal, and the term APPEAL is the very key to the whole issue, yet you seem not to grasp the significance of it.

 

[avbug]

Something I found particularly onerous about the entire process was that after a year, I was issued a letter by the Regional Chief Counsel stating that no fault could be found, and therefore the enforcement proceeding would be dropped. Instead, the regional counsel stated, administrative action would be taken by placing a letter of warning in my file.

This letter merely stated the regulation, and that acts in contravention to the regulation were not legal. The impression upon reading this letter is that I had violated a regulation and that the FAA had shown leniency in only giving me a warning letter. In truth, I made no such violation, and the FAA had no case. Never the less, the FAA elected to put the letter in my file, thus tying up my efforts at employment and progress for three years.

In criminal court, if the prosecuting authority didn't have a case, that would have been the end of the matter. In the case of the FAA and the administrative law and proceedings, the FAA holds all the cards. No case, no matter. The FAA can still make you look bad, and does.

In that particular situation, I received a phone call at ten o' clock at night from the inspector who had initiated the enforcement proceedings. He had been transferred, for something like the sixth time in his FAA career, due to his behavior and my complaints to the FSDO. He had been knocked to the ground three times by individuals on the ramp whom had been pushed too far. I didn't do that, but I still wish I had.

He called me at ten at night to tell me that he would have let the matter go, but when I responded to the LOI with my statement, I implicated him, and therefore, he said, "I'm going to nail you to the wall." He hung up.

As I said, it took a year, but the regional counsel finally capitulated when they had to admit they had no case. They took their shot anyway. I have all the letters, and have shown them to employers on a number of occasions.

In another situation, I was leaving a company. The POI for that company contacted me, saying he was attempting to take enforcement action against the company. He said he was going to take enforcement action against me, but would table the matter and make it go away if I would provide statements and procure company documents for him to implicate the company and make his case. I refused.

As there was no case to be made against me, a warning letter was placed in my file, which again stayed in place for two years. Two years, and I had done nothing wrong...I have a statement from his desk which plainly states he has no cause for enforcement action and could find no wrong doing or cause to proceed with enforcement action. He then placed a letter in my file stating duty times regulations, and stating that failure to adhere to these regulations constitutes a violation of FAA regulation, along with a warning to adhere to the regulation. The letter gives the appearance, again, that I violated the regulation but that the Administrator was lenient. It was a tactic.

Let's see that happen in criminal court.

In another case, the inspector was so hot to trot that he chased me down in the pattern. He thought he had something on me, based on what smoeone else did, and what someone else said on the radio. A private pilot decided to follow me to a landing, and landed on the runway behind me. This inspector, who was giving a practical test at the time, had the multi student follow me in the pattern and taxi up behind me as I parked the single cessna I had just ferried from another field. I didn't have the engine shut down when the inspector was pounding on the door and window with his fist, waving his Form 110A at me.

I tied the airplane down and he followed me upstairs to the flying club where I put the papers for the airplane. The inspector was irate. He'd jumped out of the student's airplane with the engines still running, he was so anxious to get me.

After a heated exchange, he stated that I was right. He stated he might just take enforcement action against me, anyway. He said I would win on appeal, but that it would be damaging to my career. He was a larger man, who stood very close and very tall over me, and attempted to use that to his advantage (good grief...if he only knew....). He finished the exchange by again noting that I was in the right, that I would win on appeal, but that it would damage my career, and he might just do it for spite. With that, he did an about face and returned to his applicant-examinee on the ramp.

Fair fight? Fair proceedings? Take it before the judge like criminal or civil court? Not hardly.

Convicted. One has the option to appeal, but not fight the judgement...and even where one "wins," the Admnistrator has means of sucking the wind from one's sails and striking back.

 

[A Squared]

Jafi,

Just wanted to add a little to my previous post, I was a little short on time and didn't get all my thoughts included.

When you, the pilot, (or mechanic, parachute rigger, whomever) and the FAA show up in the ALJ's courtroom, you, the pilot, have already been served with an order of suspension (or revocation or other certificate action) by the FAA's attorneys. You have to have been served, that order is what you are appealing, If you haven't been served with that order of suspension, you shouldn't be in that courtroom, because that court is only for appeal, and if you haven't been served with the order, you have nothing to appeal. You don't go to the Judge and say, I'd like to appeal this investigation, the judge will tell you, "come back when the investigation is complete and you have been served with an order of sanction to appeal".

Now, all this may not have been apparent to you in your involvement in enforcement proceedings. I'm going to speculate that your involvement in any hearing has been to testify or otherwise present evidence about the facts of enforcement. As such, it is very likely that you haven't been involved in the finer legal points of what is going on. As an inspector assisting, I can see how you may never have become aware that an order of sanction has already been served on the respondent, but I can assure you that the FAA lawyers you are working with know that, and the Judge knows that, and the pilot and his counsel dang sure know they have been served. That's why they are there that day in that court room, to appeal an order of sanction. They haven't come to the courtroom with a Notice of Proposed Certificate Action. The Notice of Proposed Certificate Action is sent out much earlier in the process, before the "Informal conference". The pilot and his counsel walk through the courtroom door with an Order of Sanction already in their hands. That Order of Sanction is the sentence, it has already been served, and obviously, if a sentence has already been assigned, so too, has there been a finding of guilt. And all of this has been done by FAA employees, all before the pilot has seen the inside of a courtroom.


I apoogize for the crack about shutting your piehole, that was uncalled for, but I get a little frustrated when somone refuses to listen to what is being said.

 

[JAFI]

A Squared,

No harm, no foul. I get cranky at times also. Next, I have never said I was an expert, I can only discuss what I have experienced in my daily work functions. Every one on the board can bring a piece of knowledge to the table to provide the group with a better picture.

In this case I think we are talking about two separate (and we could break it down into a couple more separate) but parallel processes.
-----------------------------------
You are correct that the FAA can Temporarily Suspend an Airman’s certificate. Normally this is only done when the FSDO can JUSTIFY to FAA legal that the suspension should be done. An entire Enforcement package is completed (just like any other Enforcement case) but the process can be done overnight (fax the report to legal) and they review and approve the suspension. The criteria are in the Order 2150.3A (reference below). My take from your post is you are saying that a suspension is done every time. I do not see how this is so. I have seen only a few Emergency Suspensions for the number of cases I have worked on.

An Emergency Suspension is granted by the US Code:

http://www4.law.cornell.edu/uscode/html/uscode49/usc_sec_49_00044709----000-.html

TITLE 49 > SUBTITLE VII > PART A > subpart iii > CHAPTER 447 > 44709. Amendments, modifications, suspensions, and revocations of certificates

(b) Actions of the Administrator.— The Administrator may issue an order amending, modifying, suspending, or revoking—
(1) any part of a certificate issued under this chapter if—
(A) the Administrator decides after conducting a reinspection, reexamination, or other investigation that safety in air commerce or air transportation and the public interest require that action; or
--------------------------------------------------------------------------------------
My point is that an Emergency Suspension is not common for many, many Enforcement cases. It does happen during a 44709 Reexamination process when a pilot does not show up for the exam or as one pilot told me “I do not recognize your authority over my pilot certificate”, then he hung up and would not even discuss the re-examination. His certificate was temporarily suspended until he showed up for the exam. If he never showed up (with in 6 months to a year), the legal department then did the final Suspension under 44709 USC.

As I read your post, you say that any time you show up in front of a NTSB Judge it is an appeal not a court case. That the FAA has already “convicted you” with out a trial. As I sit in court watching the proceedings, it IS a trial. We never know the outcome until the Judge hands down his verdict. The FAA proposes a sanction (that is why a Letter of PROPOSED Certificate Action is sent) but the Judge rules on the evidence presented. The airman or the FAA can appeal (and this word is used by the judge after the case) if they are not in agreement with the ruling. As far as I have seen, unless there is an Emergency Suspension Order, the airman keeps their certificate until the Judge rules on the case.

I can only report on what I have seen, heard from a reliable source, or done.

As to the appeal of an Investigation, I do not know of any legal process where you can appeal an Investigation. IMHO an Investigation is either ongoing or closed.

I’ll have to ask legal the next time I talk to them.

Untill then I'll just (and I really, really liked this part and got a good laugh from it) "dodge, babble, and spew crap" . You gotta go with your strengths........

JAFI
----------------------------------------------------------------------------
FAA Order 2150.3A

Page 144

http://www.airweb.faa.gov/Regulatory_and_Guidance_Library/rgOrders.nsf/0/79cb479888aa5a8a86256d0f00676576/$FILE/2150.3a_part4.pdf

Read the entire "Emergency Order of Suspension" section.
------------------------------------------------------------------------------------
--- An Emergency Order of Suspension is NOT done for every Enforcement Action. Since this thread was about an Altitude Deviation, normally a Emergency Suspension would not be done.
--------------------------------------------------------------------------------------

I add this library link from the basic FAA web site for your later reference:

http://www.faa.gov/library/

 

[avbug]

As I read your post, you say that any time you show up in front of a NTSB Judge it is an appeal not a court case. That the FAA has already “convicted you” with out a trial. As I sit in court watching the proceedings, it IS a trial. We never know the outcome until the Judge hands down his verdict. The FAA proposes a sanction (that is why a Letter of PROPOSED Certificate Action is sent) but the Judge rules on the evidence presented. The airman or the FAA can appeal (and this word is used by the judge after the case) if they are not in agreement with the ruling. As far as I have seen, unless there is an Emergency Suspension Order, the airman keeps their certificate until the Judge rules on the case.

While it's true that the airman keeps his or her certificate pending the appeal, it's an appeal none the less.

In neither civil nor criminal law will a summons state that you have been found guilty, and have the opportunity to appeal the judgement as already rendered. With the FAA, however, one has privileges which may be altered or revoked at any time, rather than rights.

So long as an airman is appealing the process, he can keep his or her certificates and privileges intact, except for the case of an emergency revocation. The Administrator has a long and distinguished history of indiscriminate use of emergency revocation authority (anybody remember Bob Hoover??) as a means of circumventing his/her own regulation. I don't believe anybody would have the gall to dispute that.

Never the less, receiving a notice of proposed certicate action is not the same as being charged with a crime. One is charged, convicted, and handed the sentence all in one letter. If one does not receive the letter, if one does not respond or appeal, one stands convicted. The FAA, in effect, says, "This is what we're gonna do. You can fight it, appeal it, try to have our decision reversed, but this is what we're gonna do." That one receives the letter knowing that in most cases the FAA's actions stand, doesn't help.

Most importantly, when the airman is given notice of proposed certificate action, the burden of proof of innocence is on the airman. In civil or criminal court, the prosecution has the burden of proof. This only makes sense. If you make an accusation against someone, you're required to prove your case. In criminal court, or civil court, this is either beyond a reasonable doubt, or ideally, with absolute conviction. In administrative court, however, it's "preponderance of evidence."

Airman A owns Airplane A. Airplane A busts the ADIZ around Washington DC. Airman A receives notice of a proposed certificate suspension for busting the airspace. After all, his airplane was sighted, he's the owner, the proponderance of evidence suggests he's at fault. Of course, as with current events, the mooney belonging to Airman A was actually in Texas at the time of occurence...

Or one of my favorites...a woman received a letter of proposed certificate action against her husband for buzzing and being careless and reckless with his aircraft. An experimental, he had been seen performing these acts, and the Administrator intended to make the public safe once again. The woman was a little perplexed however, as her husband had been dead for seven years, and his airplane, sans engine, had been hanging in a museum for the past three years. Preponderance of the evidence.

In such a case, it falls upon the airman to prove he wasn't there. Somewhat difficult (though not impossible) if one is dead. But nearly impossible if one can't produce adequate documentation and whitnesses who didn't see one commit the crime. The burden of proof falls on the pilot by default. The Administrator shares the legal burden of proof in the appeal, but that's nothing more than that used to establish cause to send the notice of proposed certificate action in the first place. In other words, the FAA needn't lift a finger. Pratically speaking, the FAA's case has been made. The airman needs to mount a defense, and it falls upon the airman to either accept the sanction, or prove his innocence, effectively placing the full burden of proof on him or her.

Further, the FAA has the privilege of interpreting it's own regulation. These interpretations can come before the appeal, or during it, or between successive appeals. The ALJ isn't there to decide if these interpretations are correct; the Administrator makes the regulation (and the representatives of the Administrator, thereof),the Administrator interprets the regulation. The ALJ is there to determine if the airman was in compliance with the regulation and any available interpretations thereof. Again, an important distinction in the process.

In civil and criminal court, the judge interprets the law, and attorneys on both sides for prosecution and defense, or littigants, argue the law. Not so for the ALJ.

Imagine a criminal court in which the prosecuting attorney is the same one who has made the law. Imagine the prosecuting attorney being able to redefine the law in mid-trial. Unimaginable? This is part of the normal process when facing off against the FAA in Administrative Court. Moreover, the FAA does have the power to take it to the next level, profering criminal charges and going after the pilot with civil penalties, too. Triple whammy, FAA style. You won't see that in criminal court, or civil court, either.

When the FAA serves notice of proposed certificate action, the FAA isn't on a fact finding mission to determine guilt or innocence. The FAA has already determind that the airman is guilty, and is stating what it proposes to do...what will do unless the airman can convince an ALJ that he or she is innocent. The Adminstrator does not hold investigations, informal meetings, telephone conferences, or any other part of the enforcement proceeding for the purpose of determining if the airman is innocent...only for the purpose of garnering evidence to be used against the airman. Another very, very critical distinction.

One afternoon I entered a certain FSDO for the purpose of getting some paperwork. I was sent back to an inspector's cubicle. I waited outside his cubicle, as I could hear he had a telephone conversation in progress, and I did not wish to interrupt. Opposite his cubicle was another cubicle, this one occupied by an individual with whom I was acquainted. This individual, former military, had been a check airman with an attack helicopter squadron, and was well known. I recognized his voice immediately. He was on the phone too, talking about a private pilot who had accepted compensation for flying a relative somewhere.

"I don't just want to make an example out of this guy. I want to make his life a living hell. I want to rip his heart out of his chest while it's still beating and hold it up, bloody, for the whole world to see. I'm going to make him suffer."

I listened for a few minutes, and became more disgusted, and enraged. I finally left the FSDO, because I was on the verge of pressing my luck, and was about no longer able to hold my tongue.

The FSDO level can initiate certificate action. The FSDO level cannot interpret the regulation, and often understands it wrong...but they can initiate certificate action based on their own understanding of the regulation.

I just finished up an 18 page report detailing exactly why a 135 operator can make a Part 91 flight at the end of a 14 hour day of duty, without it interfering with duty or the daily flight time limitations. I prepared this at the request of a Part 135 pilot who faced a Director of Operations and a POI that don't understand the regulation, or the interpretations thereof. In my report, I included 6 different legal interpretations by the FAA Chief Legal Counsel, regarding the matter.

Now, it's quite conceivable that this pilot, making a perfectly legitimate Part 91 repositioning ferry home after completing duty away from his home base, might become the target of certificate action by his own POI. He's operating an emergency service...getting the helicopter back to it's base is not just a revenue issue but a lifesaving one...getting it back to a fresh crewmember and maintenance is critical. It's legal. It's safe, It's been clearly approved six times over by the Administrator...but does the Principle Operating Inspector know and understand this? No. Never the less, he's the one that will initiate enforcement action if this emergency medical pilot engaging in emergency life saving operations, blessed by the Administrator and clearly legal, makes that Part 91 repositioning leg.

Can the aeromedical pilot win on appeal? Probably. But as the inspector who chased me down in the previous post noted, "You'll win on appeal. You're right. But it will ruin your career. I might just do it for spite, anyway."

Guilty until proven innocent. You might keep your certificate until the appeal is completed. But make no mistake about it, it's up to you to prove you're innocent, and if you can't do that, your goose is already cooked. You're already determined guilty before you ever start, the penalty is hanging over your neck, and it's up to you to field all the evidence and stand against the FAA. It's you, the beggar who enjoys the privileges the FAA is nice enough to permit you to have, against the FAA, who makes the regulation, interprets the regulation, sets the penalties, and barring your ability to prove otherwise, administers them.

They say don't mess with mother nature, but mother nature has nothing on the FAA.