FAA letter of investigation: How it starts and where it goes

The FAA issues a letter of investigation (LOI) to a pilot early in its enforcement process. The first thought for most pilots is, “What should I do and where is this going?” 

Under the Pilot’s Bill of Rights, the LOI must state that a response is not legally required and that no adverse inference may be made if the pilot does not respond. While that is true, our usual practice has been to provide a response, even if to say we have no additional information to provide. One of the purposes of the LOI is to collect information to be included in the enforcement investigative report (EIR)—so any response must be thoughtfully prepared as it will become part of the report. If necessary, the EIR is forwarded to the regional counsel’s office (FAA lawyer) for consideration of further enforcement action.

At this point, the FAA lawyer may decide to issue an emergency order of revocation; a notice of proposed certificate action (NOPCA), which would be either suspension or revocation; or a notice of proposed civil penalty (NOPCP). The emergency order of revocation requires the pilot to surrender his or her pilot certificate immediately while an appeal is pending, but the NOPCA and NOPCP offer a variety of options including an “informal conference.” The informal conference provides an opportunity to meet with the FAA attorney to provide information that the FAA may not have considered earlier in the process. Often, a settlement can be reached at this stage, but if not, the parties may continue to a hearing before a National Transportation Safety Board administrative law judge. If the appeal is taken to the administrative law judge, both sides have the opportunity to put on witnesses and other evidence and cross examine witnesses as well. The FAA has the burden of proof at the hearing and will put on their case first, followed by the pilot (hopefully represented by an aviation attorney), who may make challenges to the evidence used by the FAA as well as offer appropriate defenses. The administrative law judge usually issues a decision from the bench from which either side may appeal to the full five-member board of the NTSB. From there, if necessary, the appeal may be taken to a U. S. Court of Appeals where the matter is considered by a three justice panel. Or, thanks to the Pilot’s Bill of Rights, the appeal may be brought to a U.S. District Court for review by one federal judge. Throughout the process, it is highly recommended that the pilot retain an aviation attorney because the rules applying to this process are unique and not a familiar part of most law practices.

Charles Barnett, III

Mr. Barnett, III is a panel attorney for AOPA’s Legal Services Plan (LSP). He is captain on the Boeing 737 for a major airline.

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