When the FAA receives notice and evidence to show that a certificate holder (mechanic, repair station, air carrier, pilot etc.) may have violated one or more of the Federal Aviation Regulations ("FARs"), in most cases an FAA aviation safety inspector will send the alleged violator a letter of investigation ("LOI") advising that the FAA is investigating an alleged violation of the FARs. Whether you should respond to an LOI and, if so, how you should respond are two of the most common questions raised by recipients of an LOI.
What The LOI Tells The Recipient
The LOI typically starts out by telling the recipient that the FAA is investigating "an occurrence which involved your operation" or "an incident that occurred" or "maintenance performed on N12345 on such and such a date." In drug and alcohol abatement cases, the LOI will state "we inspected [your facility's] drug and alcohol testing programs to determine compliance with 49 CFR part 40 and 14 CFR part 120. As a result of this inspection, the following apparent violations were discovered…."
After explaining the operation or conduct involved, the LOI advises that the FAA believes the operation or conduct is "contrary to Federal Aviation Regulations." However, the LOI will not tell the recipient what specific FAR(s) the FAA believes the recipient violated. FAA inspectors are specifically advised that the regulations(s) violated should not be listed in the LOI. Since the LOI is intended to advise the recipient of the subject matter of the investigation sufficiently to allow the recipient an opportunity to respond to the facts giving rise to the investigation, the FAA does not want its inspectors citing to specific regulations prematurely.
Next, the LOI specifically states that it is informing the recipient that the matter is under investigation by the FAA and it invites the recipient to discuss the matter with the inspector, submit evidence or statements, or both. For a written statement, the LOI requests that the statement includes all pertinent facts and mitigating circumstances that the recipient believes may have a bearing on the operation or conduct that is under investigation. The LOI requests that the recipient submits any response to the LOI within 10 days of receipt of the LOI. Finally, the LOI usually states that "[i]f we do not hear from you within the specified time, our report will be processed without the benefit of your statement."
The FAA sends the LOI by regular mail and either certified mail, return-receipt requested, or registered mail to the recipient's current address of record in order to establish proof that the recipient was notified of the investigation. If the LOI is returned or undeliverable (because it is addressed incorrectly or the recipient has moved and left no forwarding address), then the FAA inspector is required to correct the address or try to obtain a new address and resend the LOI. An FAA inspector may also deliver the letter in person.
Now, if you are thinking that simply dodging the mail might make the situation go away, unfortunately that isn't the case. If the intended recipient refuses or simply does not pick up the certified letter or registered letter, but the regular mail is not returned, whether the recipient opens it or not, then the FAA presumes, as will the NTSB, that the intended recipient received the LOI. (This is consistent with FARs §§ 61.60 and 65.21 that require airmen to keep the FAA informed of their permanent mailing address by providing the FAA with a new permanent mailing address within 30 days.)
Options For Responding To An LOI
If you receive an LOI, you must determine whether you are going to respond and, if you are, what you should say in your response. Frequently certificate holders believe they have to respond, especially since the LOI seems to imply that a response is required within 10 days. However, that belief isn't correct. No response is actually required. But that doesn't mean you shouldn't respond.
From a basic courtesy standpoint, it seems appropriate to respond to a letter asking for a response. After all, no one likes to have their requests ignored. However, sending a response to an LOI that tries to explain the situation or otherwise "make it go away" very rarely ends well for the certificate holder. Oftentimes the certificate holder's response includes admissions that help the FAA and can later be used against the certificate holder.
Should you send a response to the LOI? Yes, if for no other reason than to acknowledge that you received the LOI and, of course, to show a proper compliance attitude. But, do you say anything more than that in your response? The lawyerly answer to that question is: it depends.
Sometimes it makes sense to simply acknowledge receipt of the letter, advise that you don't have anything to add, and offer to respond to any specific questions or requests the inspector may have. After all, by the time the LOI is sent the inspector has usually conducted some investigation and discovered enough evidence to determine that a violation may have occurred. So why disclose anything that could add to the case?
On the other hand, in some situations it may make sense to provide a more detailed explanation in your response to the LOI. For example, if it is a case of mistaken identity or you have evidence that clearly proves the inspector is wrong, then submitting that information in response to the LOI very well may force the inspector to close the investigation.
Whether, and how, you respond to an LOI are strategic decisions. Since you are already in the FAA's sights, consult with an aviation attorney before sending a response that tries to explain or address the allegations in the LOI. With the assistance of an aviation attorney you can prepare a response that may mitigate damage, minimize investigation, and that will avoid providing admissions or other evidence that could later be used against you. And, at a minimum, an aviation attorney can run interference between you and the FAA.
The LOI is just the beginning of the enforcement process. And although your response to an LOI may not prevent the FAA from pursuing an enforcement action, how you respond to the LOI can potentially have a significant impact on the outcome of the case. Make sure you respond wisely.
In a recent decision by the NTSB, Administrator v. Austin and McCall, the Board determined that an administrative law judge ("ALJ") should have admitted into evidence two Aviation Safety Action Program ("ASAP") reports offered by two airmen in an enforcement hearing. ASAP programs are governed by FAA Advisory Circular 120-66B and typically provide that an airman flying for an air carrier has the option of submitting a voluntary report concerning an incident. Once submitted, the ASAP event review committee (ERC) may review the report, accept the reporting airman into the ASAP, and the FAA then agrees not to initiate a certificate action against the airman based upon the reported incident. AC 120-66B also specifically provides that an ASAP report may not be used for any purpose in an FAA legal enforcement action, unless the report involves criminal activity, substance abuse, controlled substances, or intentional falsification.
In this case, the airmen wanted to have ASAP reports they submitted admitted into evidence at the hearing. However, the ALJ granted the FAA's motion to exclude the ASAP reports based upon AC 12-66B. The ALJ determined that ASAP reports were not subject to review and that such a review would render ineffectual the memoranda of understanding under which ASAP programs operate. (The elements of an ASAP are set forth in a Memorandum of Understanding (MOU) between the FAA, certificate holder management, and an appropriate third party, such as an employee's labor organization or their representatives). Interestingly, the ALJ also acknowledged that this issue was one of first impression for the Board and that the Board needed to decide the issue before he would review the ASAP reports.
After a hearing, the ALJ affirmed the FAA's orders of suspension against the airmen. One of the airman then appealed the ALJ's decision to the full Board. Not surprisingly, the airman argued, among other things, that the ALJ improperly excluded the ASAP reports.
The Board initially noted that the protection provided by AC 120-66B prohibits the FAA from using ASAP evidence in an enforcement action. However, it then concluded that AC 120-66B "does not prohibit a pilot from waiving this protection to submit his or her own ASAP report into evidence." As a result, the Board remanded the case back to the ALJ for him to review the ASAP reports and to consider whether the airmen's filing of their respective ASAP reports protected one or both of them from FAA enforcement action.
It will be interesting to see how the ALJ rules on remand since the Board simply ruled that the ASAP reports were admissible and should be considered by the ALJ. Unfortunately, the Board didn't provide any guidance on whether the ASAP reports should have precluded the FAA from pursuing enforcement action against the airmen in the first place. I guess we will have to see what the ALJ decides.
An airman recently found out the hard way that failure to read the questions on an FAA medical application was not a defense to a charge of intentional falsification under FAR 67.403(a)1. In Administrator v. Cooper, the FAA alleged that the airman checked "No" in response to question 18(v) on the medical application which asks about convictions and/or administrative actions relating to the applicant's driver's license. However, the airman's driver's license had, in fact, been suspended in connection with an alcohol related motor vehicle action.
As a result, the FAA issued an emergency order revoking the airman's airline transport pilot (ATP), certified flight instructor (CFI), and second-class medical certificates based upon alleged violations of FARs 67.403(a)(1) (prohibiting an airman from making fraudulent or intentionally false statements on an application for a medical certificate), 67.403(c)(1) (providing that the making of an incorrect statement in support of an application for a medical certificate may serve as a basis for suspending or revoking a medical certificate) and 61.15(e) (requiring an airman to provide a written report of each motor vehicle action to the FAA, Civil Aviation Security Division within 60 days).
The airman appealed and presented a number of arguments at the hearing. Although the airman admitted that he failed to answer question 18v correctly, he argued that he did not intentionally falsify the application because he had simply failed to read the question or the instructions that accompanied the medical application before answering. Rather than reading the questions, the airman stated that he had just copied his answers from a previous application. However, he also admitted that, if he had read question 18(v), he would have answered "Yes."
The administrative law judge ("ALJ") determined that the airman's incorrect answer was "inadvertent," and that the FAA had not shown that the airman had an intent to falsify the application. As a result, the ALJ dismissed the FAR 67.403(a)1 charge. However, because the airman did answer question 18(v) incorrectly, the ALJ concluded that revocation of the airman's medical certificate was appropriate for violation of FAR 67.403(c)1. The FAA appealed the ALJ's decision to the full NTSB, arguing that the ALJ erred in finding that the airman had not intentionally falsified the application simply because he did not read it.
The Board initially observed that an airman must read the questions on a medical application carefully before answering them. It went on to state that an airman who does not read the questions on a medical certificate application "should be determined to have intended that whatever answer he gave be utilized in the review of his qualifications." Finally, the Board concluded that "failure to read a question before answering it renders the entire medical certificate application process pointless, and does not provide a defense to a charge of [FAR] 67.403(a)(1)." As a result, the Board granted the FAA's appeal and affirmed its revocation of all of the airman's certificates.
This case is different from other recent cases that have held that an airman's confusion about a question may present a defense to an intentional falsification charge. Here the airman admitted to not reading the question, rather than not understanding the question. As a result, the defense of "failing to read the question" is no longer a legitimate defense. However, the defense of "confusion" or "misunderstanding" of a question remains a viable defense which an ALJ may or may not find credible, although it is still not a particularly strong defense.