FAA punishment??

[Vector4fun]

Sorry Vector I guess I got some bad info. Since I got it from more than one source I considered it credible. Will you ever be able to forgive me?

Bring doughnuts, we'll talk. :biggrin:

 

[A Squared]

Sorry Vector I guess I got some bad info. Since I got it from more than one source I considered it credible. Will you ever be able to forgive me?

Well, it wasn't completely bad info. I think you probably did hear somethin along those lines. I assume that Vector4fun is correct in that the Controller isn't absolved in that case, however, not long ago the FAA issued an interpretive rule on readbacks which stated that if pilot reads back an incorrectly heard clearence and the controller doesn't catch it, it doesn't absolve the pilot of responsibility, and the pilot may be considered negligent ... even though he read back the clearence as he understood it.



http://www.avweb.com/news/columns/182661-1.html

 

[avbug]

PapaFox said:""Let me start out by saying that I get a lot of insight from you about everything and I find it very useful. However in this case you are factually incorrect. Before an ALJ in the NTSB proceedings the burden of proof is on the FAA to prove by a preponderance of the evidence that you did commit a violation. ""Nobody is talking about the NTSB. Before the FAA, you're guilty until proven innocent. When you're notified about a violation, you don't have the opportunity of proving yourself innocent. You have the opportunity to appeal after you've already been handed down punishment. You have the opportunity to appeal your guilt...but you're already presumed guilty and punished by the FAA before you ever arrive at the ALJ. You can forestall the actual penalty by a measure, except emergency action, by appealing...but from an FAA point of view, and for the record, you're already convicted. You are appealing the conviction. Guilty until proven innocent. I am correct.This will probably appear blocky and without paragraphs...it's been doing that since this afternoon when the web site changes took place.

 

[Vector4fun]

Well, it wasn't completely bad info. I think you probably did hear somethin along those lines. I assume that Vector4fun is correct in that the Controller isn't absolved in that case, however, not long ago the FAA issued an interpretive rule on readbacks which stated that if pilot reads back an incorrectly heard clearence and the controller doesn't catch it, it doesn't absolve the pilot of responsibility, and the pilot may be considered negligent ... even though he read back the clearence as he understood it.

What I want to make clear is that the controller's Union, NATCA, had absolutely zero to do with this ruling. In fact, considering the present state of animosity between NATCA and FAA HQ, FAA would probably argue just the opposite position today just to piss NATCA off. Also, that absolutely nothing has changed regarding ATC's responsibility to correct an incorrect readback, if we hear it. Basically, this boils down to FAA just wanting to be able to pin an error on Somebody. If they can't hang the controller, they may go after the pilot. Personally, I think the incident involving the NWA crew falls into the "Shat happens" category, and I think the NTSB basically agreed in that case. It was the Court of Appeals that ruled for the FAA after their legal dept. appealed.

 

[Dumbledore]

The next step, if there's to be enforcement action, will be your receipt of a certified Letter of Investigation.

Not necessarily. The inspector who is given the investigation to pursue might call you first. If that happens it is CRITICALLY important that you say as little as possible.

The LOI will notify you that you are being investigated for a *possible* violation of the regulation, and will ask you to provide your side of the story. You need to understand right off the bat that the letter isn't asking you to provide your side of the story to defend yourself or to get let off the hook. The purpose of this letter, and it's ONLY purpose, is to encourage you to provide evidence against yourself.

While this may turn out to be the practical effect there is something avbug is leaving out here. Inspectors are compelled by the inspectors' handbook to assess the attitude of the pilot as they prepare their investigative report. What the inspector does with his report is critical to the effect of any particular investigation on you personally. A good attitude can help keep the whole thing confined to the FSDO which means it goes as a warning. A good attitude can, and occasionally DOES help convince an inspector to pocket the report. That’ll put you in a two-year hole rather than a five-year hole as far as your record is concerned.

If the report is sent to FAA legal, everything that avbug said about “guilty until proven innocent” kicks in. The report will represent a finding by the inspector that a violation has indeed occurred. Legal will review the investigative report and rubber stamp it for administrative action – a violation.

While a good attitude doesn't help an ATP much (they love nailing us when we're supposed to know what we're doing) it might help if you're a commercial pilot or just a private pilot.

You'll be given ten days to submit commentary. The general advice is DON'T.

That depends on who you talk to. There are indeed two choices. Respond or don’t. I would say this: if you elect to respond this is where you need to start spending for an attorney. The reason you should consider responding is because it’s simply polite. They’ve sent you a letter asking for your input. It would be impolite to ignore the letter. A response that says a lot without saying anything at all is appropriate. Remember it goes towards attitude too. No response is indicative of a poor attitude.

The reason an attorney needs to make the response is twofold. First, they’re good at writing letters. The reply can, and probably WILL, set the tone of the rest of the process. The second reason is that it places a layer of deniability between you and whoever is after you. If a mistake is made and it turns out to be a length of hangman’s rope that you’ve offered you can always say that “I” never said that. That can become important.

Remember, anything you say will not be used to consider your guilt...you're already guilty. It's only used against you. That's a very important consideration.

Perhaps, but denial of the charges from the beginning is just as important. You can’t do that if you don’t respond in writing.

You may also be invited to an informal converence or meeting, usually at the FSDO facility, where the enforcement action is being investigated and initiated. Do not attend this meeting without legal representation. That can't be emphasized strongly enough.

Agree 100%! Keep in mind also that informal conferences don’t stop at the FSDO level. Even if it gets to legal informal conferences are still an option. FAA legal is under very tough pressure to SETTLE cases whenever possible. They don’t have the time or the money to prosecute cases. If there’s a deal to be made you should be trying to make it. Make sure your attorney tries to work out and offer in compromise whereby you pay some sort of fine and maybe offer to help out with a wings program event or something like that. It goes towards attitude and it helps them settle a case.

Another thing to be mindful of about informal conferences is that it lets the FAA folks see who they’re up against. If you’re particularly credible in the way you speak or if you are otherwise powerful in your personal appearance and presentation, they may indeed think twice about going up in front of an ALJ with the case they have.

Following these efforts to get you to spill the beans, you'll get a notice of proposed certificate action, which is really your notice that your goose is already cooked. You can then appeal...but you're already been found guilty.

The appeal is a critical part of the process. It lets the FAA know you’ll fight. That fact alone can help you gain some traction with them. If they know you’re going to appeal they know you’re going to cost them money and time that they don’t have. That could make it possible to craft a deal.

I know a guy who got all the way to depositions. He was demanding depositions from the controllers and the investigators involved as well as some big shots in Washington who would have testified that the investigators COMPLETELY screwed up in their handling of the investigation. The depositions were scheduled on the Friday before a long Christmas weekend on the west coast. The New York office was the legal office involved. Needless to say, the lead attorney wanted no part of being in transit coast to coast on that of all weekends! Suddenly, there was room for a deal after all.

The moral is that if you can be a big enough thorn in their side you may get some or all of what you want.

This is where your ASRS report, filed in a timely manner, comes in handy. You're still guilty, it's still on your record as a violation, but you needn't serve the sentence.

Only if you filled out the ID strip well. If you admit to the charges on the ID strip they can use the strip as evidence against you and get around the ASRS report. Certificate goes bye-bye on the strength of the admission. If you title your event, “The Day I Blew My Altitude,” you’re gonna be in trouble. If you call it, “ATC Reports Altitude Discrepancy On Mode C Readout,” you haven’t admitted that YOU did anything.

I would leave you with a final thought and it’s an important one. You have entered a process. It will take some time. Depending on the FSDO and their workload it may take a month or so to even hear from an inspector. You will be one of the last boxes he will check. You’ll get an LOI or a warning within a couple of weeks after that – most likely.

The total amount of time it takes them to investigate and files charges against you is important. There is a stale compaint rule that sets a statute of limitations of six months on cases the faa brings. They lose their sanction (penalty) if they take too long to try to nail you. Keep track of how long it takes if it gets that far.

If you fight a legal battle it could take another 10-16 months to see the process through. The front end is expensive with the attorney because that’s when the letters and phone calls are happening. Then it’ll die down a bit. If you start to head for court and the attorney needs to prepare a case it’ll get expensive again. He’ll want to hire experts and there will be a fair amount of time put into preparing the actual paperwork of the legal response.

Don’t forget to be active in your defense. The guy I mentioned above found the folks in Washington who confirmed that they investigation into his case had been conducted contrary to existing policy – policy that EVERY inspector in the FAA was aware of – HIMSELF! When the attorney got a hold of that info he had a war he could actually wage.

Good luck! Ihope it comes to nothing.

 

[A Squared]

Only if you filled out the ID strip well. If you admit to the charges on the ID strip they can use the strip as evidence against you and get around the ASRS report. Certificate goes bye-bye on the strength of the admission. If you title your event, “The Day I Blew My Altitude,” you’re gonna be in trouble. If you call it, “ATC Reports Altitude Discrepancy On Mode C Readout,” you haven’t admitted that YOU did anything.

I think that you have this a little confused, although it's an important point. You are correct that the FAA can use information on the ID strip against you in an enforcement proceeding, and your examples of the right way an the wrong way to mark your ID strip are right on. If you write the wrong thing, that can be used against you in sustaining a violation. However, that does not change the status of the ASRS report in waiving the *penalty*. The same rules apply, unless it is a deliberate act (or criminal act or accident) if you have files an ASRS report, the penalty is waived. In the same vein as being careful whan you write on the ID strip; there is no reason to bing up the fact that you have filed an ASRS, until you have received a violation. presenting the ID strip earlier, won't make any difference, they are still going to proceed with the enforcement. In a sense the fact that you filed an ASRS report could in fact end credence (in a very minor way) to the FAA's case that you violated something that day. Perhaps better to keep that as your ace in the hole until you've the violation has been determined, then bring it out to get the penalty waived.

 

[Dumbledore]

I'm definitely not confused here but perhaps I could have been clearer. If you file an ASRS report and the title of your report specifically identifies a deviation from FARs that can be directly attributed to you then you're gonna get smacked.

The annonymity of the ASRS report prevents the FAA from knowing exactly which incident you've reported so they basically have to take your word for it that the incident you've filed for is the one they're upset about. They'll take a look at the date and the kind of event covered and make their own assesments.

Now, while your report might help out with the problem initially at hand, it will not help with the next thing that will come along - a new investigation into what you've admitted to doing on the very form that is helping out on the first issue.

As for when to bring up the existence of the report if you speak to an inspector he'll ask. So will the attorney. One you tell the other you don't breathe a word to. You can figure it out. If you decide to appeal a suspension it will be one of the first things the FAA will want to know and THAT'S a good time to cough it up.

 

[avbug]

Good clarification. I agree.

 

[27 driver]

You can never really know what is going to happen with the FAA. You did the right thing by filling a NASA report. If you are being investigated, you will probably be contacted by the local FISDO. This will be the beginning of the investigation. The Feds will ask you a bunch of questions about your flight times like total time, time in last 30 days, class of medical, etc. They will try to act like they are on your side, !!!!!!!!!THEY ARE NOT!!!!!!!!!! They will then send you a letter asking you to respond in writing, telling your side of the story. Seek legal advice before responding. Do not be rude, but do not admit anything. The best asdvise I can give you is get an aviation lawyer. It will be expensive but worth it. Talk to a lawyer before you talk to the FAA. Do not incriminate yourself.

 

[kc81900]

You did the right thing by filling out the NASA form. As long as you participate and did not do anything initially they cannot revoke or suspend your license. As to your career ladder also don't worry. You are going to have to explain it and the invaluable lesson you learned and how it made you a better aviator. Not one pilot has not been in this position and those who say they haven't are liars. we are all one mic click away from some sort of violation its the nature of the beast. Anyone you interview with knows what we face as pilots and mistakes are made if no mistake were ever made there would be no regs.

If you talk with a lawyer remember they go from the point of when action is taken and your license is revoked. right know you need to be going from the point of how do I prevent suspension or revoke. Most likely you will get a letter of correction for two years it will be expunged at that point. And they will require some sort of additional training.

Good luck

 

[JAFI]

Tug Driver,

First I will say that I applaud your courage to admit what happened (especially to this forum) and that I hold your character in high regard. You stated that you screwed up. By your demeanor, I’m sure that this does not happen often. I will not give you “legal” advice, the forum team of FREE “legal” experts as spoken. Just remember that in America you mostly still get what you pay for. I will just talk about the process and show you where to get some information from the web.

The process goes something like this:
First, you may never get a letter from the FSDO. ATC has to decide if they wish to make an issue out of an altitude deviation. If they choose to, a form (FAA 8020-17) is filled out with the information (your name, etc.) you gave to the controller. A certified copy of the voice tape and radar print out is sent to the FSDO. An Inspector will review the tape, radar plot, and 8020-17 form and begin an investigation. IF he/she decides a possible violation has occurred, by FAA order, you will be notified that the investigation has begun and are asked if you wish to provide a statement. The Inspector will call to confirm the information from ATC and ask for flight times and other information to fill out his report. If he does not see a problem with the tape/plot the case will be dropped as “No Action”. If the Inspector decides that a “counseling session” will resolve the issue, it is kept at the FSDO with a smaller sanction. If the case leaves the FSDO, then the inspector, supervisor, and assigned lawyer will discuss how “bad” the violation was and determine a proposed sanction. Then your lawyer and the FSDO lawyer decide if the case is to be settled out of court or to go to court. This takes much time and money.

In court the FAA lawyer will present his case then the Defense will present their case. The Judge will rule on what is presented to him. I have been in FAA court, traffic court, and saw some other civil court. They are pretty much the same to my layman’s eye. I do not buy the “guilty until proven innocent” theory. Both sides still have to prove their case to the judge. And from what I have seen, Judges do not like to have their time wasted by unprepared or unjustified cases. And in court, you do not wish to piss off the Judge…….

You may want to read the last reference to this post. If you have any other questions, PM me.

JAFI


Order 2150.3A Compliance and Enforcement Program

http://www.airweb.faa.gov/Regulatory_and_Guidance_Library/rgOrders.nsf/0/79CB479888AA5A8A86256D0F00676576?OpenDocument

Go to part 12

Appendix 4 -- it starts at PDF page 17 0f 140


(page 37 of 140)
III. Individuals and General Aviation - Owners,
Pilots, Repair Stations, Maintenance Personnel.

(page 47 of 140)
12. Deviation from ATC instruction or clearance. 30 to 90 day sus[pension].

(Page 19 of 140)
In selecting an appropriate sanction outside the normal range, various aggravating and mitigating factors and circumstances should be considered. These include the factors listed in FAA Order 1000.9D and FAA Order 2150.3. With respect to individuals, the following should also be considered:
1. Significance in degree of hazard to the safety of
other aircraft, persons or property in the aircraft or on the ground, created by the alleged violation;
2. Nature of the violation - inadvertent or deliberate;
3. Past violation history (since past compliance should
be the norm, this factor is considered only to assess the need for a greater than normal sanction);
4. Alleged violator’s level of experience;
5. Attitude of alleged violator;
6. Nature of activity involved - private, public or
commercial;
7. Ability of alleged violator to absorb the sanction;
and
8. Demonstrated lack of qualifications.

 

[Dumbledore]

I do not buy the “guilty until proven innocent” theory. Both sides still have to prove their case to the judge.

Well, you might not "buy it," but it's not a theory and it IS how it is. Different areas of the law are very different in how they operate. Administrative law is summary in nature.

FAA enforcement operates under the principles of administrative law. With the FAA when a finding is made it is a final adjudication of your guilt. If you decide to pursue the matter in court you're NOT going to trial, you're arguing an appeal. That's VERY different from civil or criminal law and it’s the reason that the FAA DOES NOT have to prove their case to the ALJ

This is also the reason that the FAA needn't have its facts straight when they go to court. As I have posted here before, I know of one case where the FAA went to court with an evidentiary file that contained the wrong N-number, the wrong aircraft type, and a tape that was unusable as evidence because of recorder noise and they still won. The judge upheld the Order of Suspension saying that nothing on the tape disproved the FAA’a finding of deviation (the other errant facts notwithstanding). In criminal or civil law the case would be thrown out and the trial would end right at its outset due to lack of evidence.

The truth is that many of the ALJs believe that if you’re in their court you MUST HAVE done SOMETHING wrong. They also know that you’re guilty because that’s the way administrative law works. That’s where you start off with them and that’s a major reason why the FAA wins 92% of the cases they prosecute.

 

[Tug Driver]

Thank you all for the great information. I will use every bit of advice I can get.

I have in the mean time confered with AOPA and they confirmed much of the same points that you all have. AOPA thought it would take about 4 months before I hear something.

One thing that AOPA recommened that I do is to request a copy of the ATC tapes under the Freedom of Information Act.

I have been thinking a lot about this situation, not only because my "career" is on the line but also in a learning sense. I have started writing a power point presentation on ATC clearances. If I am contacted by the FAA, hopefully they will consider giving me a warning provided I help educate others. My game plan is to tell the truth.

Again, thanks for the info and your thoughts for the best.

tug

 

[A Squared]

Jafi,

As Dumbldore said. it doesn't matter if you "buy" the guilty until proven innocent theory. That is the way it is. the fact that you apparently do not understand this, doesn't make it any less so.

In a real court, you and the prosecutor appear before the court, and in throry, at least, you have the upper hand, in that the court is required to presume your innocence, and burden of proof is upon the prosecutor to convince the court you are guilty. That is the fundamental underlying principle of our justice system.

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. At that point (which is hte first time you are dealing with somone who is not an FAA employee) you are *APPEALING* a determination of guilt and an assigned penalty.

If you don't believe me, you have only to look at the document you yourself provided. WHat is it? It's penalty (sentancing, if you will) guidelines for use by FAA personnel. Who do you think it is who issued an Order of Suspension? it's not the NTSB.

Now, if you get arrested for say......soliciting prostitutes, the police does not drag you downtown and grab a book off the shelf and say ok you were soliciting prostitiees, we're going to give you 10 days in jail and community service. No in real law, you get a court date and the police have to convince the jury that you are guilty, and if the jury convicts you, then the judge determines your sentence. If you are not happy with the results of that verdict, you can then appeal to a higher court.

By contrast, in FAA law, the police arrest you, investigate you, find you guilty, and sentence you....and only then *after* you are officially found guilty and have been sentenced, only then do you have an opportunity to go before a court and appeal your conviction. When you appear before the judge, you are not presumed innocent, the burden of proof is upon you to convince the judge that the FAA is wrong in determining you guilty.

In real law, the defense is given the benefit of any doubt Remember, a jury must be convinced beyone any reasonable doubt, those words have meaning.

In Administrative law the FAA is given the benefit of any doubt.

there's a world of difference.

 

[JAFI]

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, meetings, etc.....

I guess I just go play golf....

Thanks, my game needs the time.

JAFI

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