AOPA Pilot Magazine - July 2016 - 24

PILOT COUNSEL

Too late

BY JOHN S. YODICE

The FAA may not delay enforcement indefinitely

JOHN S. YODICE

is an aviation
attorney, pilot,
flight instructor,
and longtime
aircraft owner.

24 | AOPA PILOT July 2016

IT IS SURPRISING how frequently pilots ask me how
long they need to wait before they can stop worrying
about the FAA taking enforcement action against them
over some past incident. They ask: Isn't there a statute
of limitations, as there is in virtually every other area of
the law, that prevents the prosecution of claims after an
unreasonable period of time?
Unfortunately, in the FAA enforcement context,
the answer is not as clear as it should be. However,
a recent case applying the rarely used, equitable
Doctrine of Laches creates a helpful precedent.
The closest thing that pilots have that functions
as a statute of limitations is a rule of procedure of the
NTSB. (The NTSB hears appeals from FAA pilot certificate suspensions and revocations.) The so-called
"six-month stale complaint rule" says that when an
FAA complaint (the order of suspension or revocation
of a pilot's certificate) alleges offenses that occurred
more than six months before the FAA advises a pilot
of the reasons for the action, the pilot may move to
dismiss the complaint as stale. It has exceptions. For
example, the FAA has often avoided this rule by alleging the "lack of qualifications" exception.
What about a statute of limitations? There actually is one, a federal statute of limitations that bars the
"enforcement of any civil fine, penalty, or forfeiture"
after five years. However, in a case in which the FAA
delayed five years after learning of an alleged violation, the NTSB ruled that the statute did not apply to
bar the FAA's prosecution. The NTSB expressly held
"that the only statute of limitations, legal or equitable,
that is applicable to these 'remedial' proceedings is our
own stale complaint rule."
That brings us to a recent case. In this case, the FAA
charged a pilot with intentionally falsifying an FAA
medical certificate application and revoked the pilot's
certificates more than five years after the application.
The individual was born in Iraq, coming to the
United States at age 19, and was not fluent in English.
He always employed a language assistant to help him
read and review documents and to fill out all his paperwork, including legal and financial documents-in this
case, the FAA medical certificate applications. After
some time in the United States, he started taking flying lessons. With the help of his assistant he filled out
and signed the medical form, answering "no" to question 18w about non-traffic convictions. That answer

was incorrect. He did have a record of a non-traffic
conviction that was not disclosed on his application.
The FAA aviation medical examiner issued him a medical certificate.
Five years later, he reapplied for a medical certificate, this time with a different language assistant who
knew of his earlier conviction. This time the answer
provided was "yes." Although the medical examiner
issued him a medical certificate, the FAA, after learning of the circumstances, issued an emergency order
revoking his medical and airman certificates on the
grounds that he intentionally falsified his application.
He appealed the revocation to the NTSB, admitting
before an NTSB judge that his earlier answer was
incorrect but denying that it was intentionally false.
He testified that his language assistant asked him about
all of the medical conditions but not about non-traffic
convictions. He tried to locate his language assistant
to verify his testimony, but she could not be located.
The pilot prevailed before the judge based on his
affirmative defense of the doctrine of laches. In general, the doctrine of laches applies "where there is
(1) lack of diligence by the party against whom the
defenses is asserted, and (2) prejudice to the party
asserting the defense." According to the NTSB judge,
the FAA took too long to prosecute the matter, and the
airman was thereby prejudiced. The FAA appealed the
judge's decision to the full NTSB. The board denied
the FAA appeal.
On this appeal, the board determined the airman
had borne his burden of proof that the FAA delayed
too long and had prejudiced his ability to defend himself. The FAA's response to interrogatories admitted
that the FAA knew of the airman's conviction shortly
after his first medical certification but then inexplicably took no action. The board found that on the record
the FAA showed a clear lack of diligence in pursuing
the action against the airman, and this delay resulted
in actual prejudice to the airman's defense. "Under
the doctrine of laches and in the interest of justice, we
dismiss this case."
So, if you are worrying about an old incident about
which you have not heard from the FAA, the availability of the defense of laches may help you stop
worrying.
AOPA
WEB www.aopa.org/pps

http://www.aopa.org/pps

Table of Contents for the Digital Edition of AOPA Pilot Magazine - July 2016