Staying Legal

Sept. 17, 2010
49 CFR 821.33: Often used, seldom prevails

Buried within the arcane NTSB rules of practice in regard to certificate actions against airmen is a rule that effectively says that where the time between an alleged violation and the filing of a notice of proposed certificate action exceeds six months there is a presumption that it is “stale” and may be dismissed.

This places upon the FAA the burden of proving that their conduct in delaying notice of a violation was reasonable and that therefore it should not be dismissed as “stale.” A “stale” or late filed complaint of course presents the accused with the challenge of finding evidence and witnesses to support his position at such a later date and creates an unfair burden to his defense of the case. (Full text of the rule is set out at the end of this article.)

The facts

We recently ran across a maintenance situation that brought to mind one of the few cases that supports a mechanic’s defense of a violation by invoking the stale complaint rule in his defense. The FAA in the complaint said that the mechanic failed to perform an annual inspection in such a manner as to properly determine that the aircraft was airworthy, FAR 43.15a, and also that he failed to perform aircraft repairs so that they were at least equal to their original or properly altered condition FAR 43.13b.

The violations had to do with riveting repairs involving some use of unauthorized “pop” rivets, improper rivet spacing, improper bucking of the other rivets, and the use of used and non-airworthy sheet metal parts.

The case pitted the mechanic against the FAA inspector who was called in by another mechanic 15 months after the repairs were completed. The second mechanic was performing an annual inspection and did not like the work so he called the inspector to take a look. In my opinion, he should have discussed the matter directly with the previous mechanic and worked out a repair solution. Well, as can be expected, the inspector found all kinds of things wrong but mainly alleged the noted deficiencies. I can remember Bill O’Brien saying that “your responsibility only extends to the point where the ink is dry on your signature …” Of course this was only his tongue-in-cheek opinion and leaves many questions to ask. The cases of course say otherwise.

I am confident that most of us don’t recall the NTSB rule referred to above that is applicable in this case; although, it might seem to be an ironclad tool to use against certificate action by the FAA, where they delay their case. In most instances it is found to be not applicable because of the loopholes for the government. The FAA has any number of “reasonable” excuses for its failure to bring an action promptly and it usually succeeds but not with this case.

After a finding against him at the law judge hearing the mechanic appealed to the NTSB for a review of his case. It agreed with the mechanic and granted him his dismissal of the case, one of the few cases involving the stale complaint rule where the mechanic prevailed.

First things first

The first thing you have to do in a case like this, or any other for that matter, is to file a NASA report in accord with the instructions in the Aviation Safety Reporting Program, AC 00-46. You can file your report online or mail a Form ARC 277 for this purpose. Filing this report may insulate you from any sanction if a finding is made against you.

In order to utilize the stale complaint rule set out above you must of course file a Motion To Dismiss the Complaint and cite the stale complaint rule. In order to support your case you should also file additional motions for copies of the FAA enforcement file that contains the evidence they intend to use against you. A witness list should also be requested and a list of any and all evidence they plan to use against you at your hearing. You should also ask permission to seek information from others who may not be parties to the case but still possess relevant information that may support your case. Needless to say it would be useful to seek the advice of counsel for assistance in the preparation of your case.

The mechanic in the relevant case laid out detailed support for his position.

He filed his motion regarding the stale complaint rule. The Board agreed with him that the time span was excessive but that the Administrator had good cause for the delay because of the subsequent annual inspection discovering the discrepancies. However, the Board also said that the mechanic was at a disadvantage because of the delay and that one of the reasons for the stale complaint rule is to avoid bringing a case to a hearing at a time when gathering evidence is difficult and the recollection of witnesses becomes hazy.

He also filed his motion to produce documents and records containing the enforcement investigation file and any other government supporting evidence; this was provided to him.

The mechanic’s final motion was to take the testimony, upon written interrogatories of the owners of the aircraft concerned. The law judge denied this motion on the theory that the owners were not parties to the action and therefore were beyond the reach of discovery. However, the Board said that this was in error and the law judge should have permitted this procedure in accord with Board Rule 821.19 which permits the taking of testimony from any person.

The Board found among other things, that in addition to being disadvantaged by the Administrator’s delay in bringing the case, the mechanic was denied his full rights to discovery, as provided for by the Board. This allows the parties to seek information so that they can make informed decisions. The Board went on to say that the mechanic, although not deprived of due process, was handicapped in obtaining legitimate information concerning the custody and history of the aircraft which was of particular interest in this case, where so much time had elapsed between the alleged violations and their discovery.

The error of the law judge and the other details in defense, raised by the mechanic, were enough to sway the Board to decide in his favor and reverse the decision of the law judge.

The mechanic’s evidence and presentation eclipsed the FAA’s findings of deficient work product. This clearly shows that a threatening set of facts can be turned around with a carefully planned and coordinated attack on the complaint. This the defense did with their tactful use of the stale complaint rule accompanied with aggressive discovery motions. AMT

Stephen P. Prentice is an attorney whose practice involves FAA-NTSB issues. He has an Airframe and Powerplant certificate and is an ATP rated pilot. He is a USAF veteran. Send comments to [email protected]