One rule is the stale complaint rule. The rule generally prevents the FAA from seeking certificate action based on events that occurred more than six months ago. One notable exception to the stale complaint rule is when the FAA alleges a lack of qualification.
When the FAA alleges a lack of qualification, it typically does so on an emergency basis, which implicates another set of rules. These rules arguably give advantage to the FAA. Allegations are assumed to be true for determining whether an emergency exists and the timeline for the litigation is significantly expedited from normal handling. Cases involving a lack of qualification generally include intentional falsification or drug use.
But we often see the FAA allege a lack of qualification in illegal charter cases. This seems wrong. For one, in many cases, the evidence suggests the pilot was attempting to comply with FAA leasing requirements. The FAA itself has said that whether a lease is permissible under Part 91 or requires an operating certificate depends on the facts of the case. There are seldom clear cases. Pursuing pilots who act in good faith but misunderstood a complicated legal test is a far cry from pursuing pilots who intentionally falsify logbooks. The latter deserves punishment; the former would perhaps benefit more from counseling.
The cynic in me thinks the FAA is acting unethically. The FAA too often drags its feet in investigations, allowing cases to drag on for months or years. To get around the stale complaint rule, the FAA alleges a lack of qualification and seeks emergency revocation. As an added benefit, the FAA can serve its order, which requires an immediate response, when it knows the airman may have a tough time finding a lawyer willing to respond immediately—for instance, over the holidays.
The rules governing emergency proceedings should be limited to circumstances that truly reflect a lack of qualification. Applying a convoluted multifactorial legal test is not qualification for pilots. Hopefully, the FAA will stop using the NTSB emergency proceedings to circumvent the stale complaint rule and will limit the use of those proceedings to cases that truly involve an imminent and significant threat of harm to aviation safety.
