The Rule That Almost Was

As certificated airmen we all have had title 14 of the Code of Federal Regulations (the FARs) drilled into our heads by instructors, other pilots, and the Federal Aviation Administration. Be it part 43, 91, 135, or whatever part pertains to our operations, we are all familiar with the regulations that affect nearly every aspect of aviation. But in law the rules are not always as clear as they may seem. 

In fact, attorneys regularly battle over ambiguity during enforcement actions. The results of these battles, as decided by judges, make up the body of knowledge called case law. As attorneys we rely on these decisions to tell us how a specific court or judge previously ruled on a similar matter, which can significantly affect the outcome of future cases. We look at the facts of a previous case, as well as how the courts ruled, and use that knowledge to develop a strategy to apply to the facts of our case and try to achieve a particular outcome. This story is how some bad case law almost happened, but fortunately did not.

Let’s start with some simple facts of the case. The airman in this instance was a certificated mechanic with an Inspection Authorization (IA) who had performed annual inspections on two flight school airplanes. The relationship between mechanic and aircraft owner soured, and the owner reportedly made a hotline complaint to the FAA alleging non-compliance with an Airworthiness Directive on these two different aircraft. The airman had received a Letter of Investigation but nothing further until he began making inquiries. Eventually, the FAA sent a Notice of Proposed Certificate Action to the airman. But they sent it to the wrong address! See, the airman had previously moved, timely reported this change to the FAA, renewed his Inspection Authorization once at the new address, and had even received the Letter of Investigation (LOI) at the correct address, yet they still sent the NOPCA to the incorrect address. 

Why does this matter?  It matters a great deal because of the NTSB’s stale complaint rule, which is roughly akin to a statute of limitations. Under 49 C.F.R. 821.33, a matter is deemed to be stale if more than 6 months have elapsed between the date of the occurrence and the date the airman is notified of the FAA’s reasons for a proposed action, not when they first attempt to send the LOI. By sending the NOPCA to the incorrect address, the investigation was delayed to the point where the receipt of any proper notice was provided well after the 6-month timeframe expired. Ultimately, they tried to correct this discrepancy with an overnight letter of an Amended Order of Suspension to the airman and his counsel (this time, to the correct address) but by that time it was too late. Of course there were inquiries into an original order of suspension that was never received and why there was need for an amendment that took the suspension from 30 days to 120. But we fortunately did not reach the point of having to litigate that aspect of the case.

The first allegation against the mechanic concerned an infraction that had reportedly occurred nearly 19 months before the FAA provided the NOPCA, and the second one was 9 months from the alleged occurrence until the NOPCA was received. Both were clearly beyond the 6 months allowed by regulation. But it doesn’t end there. While FAA counsel should have accepted that it was a stale complaint and elected not to pursue it further, the FAA attorney alleged that because the aircraft were operated by a flight school, the mechanic should be held to a higher standard and the stale complaint rule should not apply. If you are a mechanic, own a flight school, or are involved with one, I hope that last sentence made the hair on the back of your neck stand up. In my opinion, this argument by the FAA was a clear overreach that, if upheld, could have subjected any mechanics who work on flight school aircraft to enforcement action without limitation.

The regulations do provide some relief to the FAA regarding the stale complaint rule, particularly where there is a concern about lack of qualifications to hold a rating or certificate. But these exceptions are narrowly carved out to protect airmen from the very type of actions this mechanic was facing. A more commonly used exception to the stale complaint rule is when the Administrator of the FAA can establish good cause for delay, or that the imposition of a sanction is in the public interest. It is here the FAA attorney staked their claim, first asserting that the delay was warranted because other cases were more pressing, and further arguing that it was in the public interest to waive the rights of mechanics who work on flight school aircraft. The effect of such a ruling in our body of case law could have been detrimental to the survival of our industry, our hobby, our passion. What mechanic, for anything less than a king’s ransom, is going to perform any maintenance on anything associated with a flight school if the protections of law are removed? Would such a ruling have been the first step in something broader like removing protections from all mechanics regardless of any relationship to flight schools? Would the stale complaint rule cease to apply to flight instructors as well, since they also work at flight schools?

The good news is we do not have to worry about it just yet. Once the FAA handed down the suspension order, the matter was immediately appealed to the NTSB. The Administrative Law Judge (ALJ) reviewed the case and in no uncertain terms dismissed the FAA’s arguments. They found the airman had been prejudiced, even reminding the FAA Administrator in the decision that living, breathing people are behind these certificates and that certificate actions affect their livelihoods. The ALJ further noted that if the matter was so important that public safety was affected, then FAA should have investigated diligently and acted swiftly.

FAA counsel’s various arguments to justify the delay were called out by the ALJ as “inconsistent with the record” and even “disingenuous.” In the end, the stale complaint rule was upheld, the certificate action dismissed, and justice prevailed. The story does have the proverbial fairy tale ending, with the airman having his IA reinstated, but not without one more hurdle from the FAA.

Earlier in the year, the FAA refused to renew the airman’s IA, saying he had an open investigation but refusing to provide any information or explanation. The airman had received an LOI months earlier but had no knowledge of the status of the investigation or the allegations against him. They just flat out refused to renew his IA without cause, preventing him from performing most of the services by which he earned his living. Only after inquiries from his counsel were made into why he was denied his IA was any notification finally sent to the airman at the correct address – 13 months after the LOI. Unfortunately, because the FAA would not renew the airman’s IA during the lengthy investigation and legal enforcement action, the IA renewal period had expired. By the FAA failing to renew his authorization during the renewal period, and despite a ruling he was prejudiced and that it had been wrongfully denied, the FAA deemed his authorization as lapsed. He had to reapply and re-test. He passed with flying colors and is now back to work.

Unlike the fairy tales we all read to our children, I do not have a moral of the story to close with. Rather, I write this to illustrate how the things you do not hear about can be just as important as the ones you do. The AOPA attorneys and Legal Services Attorneys fight these battles every day to protect our freedoms and our rights as airmen. 

Eric Kallio is an aviation attorney with over 24 years of aviation experience reaching back to his time as a helicopter pilot in the Army. He holds an Airline Transport Pilot certificate for helicopters, commercial and instrument ratings for single and multi-engine airplanes and flight instructor, instrument instructor and multi-engine instructor certificates. He also holds an Airframe & Powerplant mechanics certificate with and Inspection Authorization. He has managed to accumulate nearly 6,000 hours of flight time in almost 40 different aircraft from a 152 to a Citation to a Blackhawk helicopter.

In his Aviation practice Eric handles aircraft transactions, leases and the establishment of business entities and operating agreements as well as defending against FAA                                                        Airman and Medical certificate actions.


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