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Analyzing a Stale Complaint Affirmative Defense in the Face of an Allegation of Lack of Qualification.

By Gregory J. Reigel

October, 2012 All rights reserved.

The Stale Complaint Defense

As you may know, one of the defenses available to an airman in an FAA enforcement action is the stale complaint affirmative defense. Under 49 C.F.R. 821.33 the FAA has 6 months from the date of an alleged offense within which to initiate an enforcement action. An airman must assert the stale complaint defense in his or her answer to the FAA's complaint. Once asserted, the airman may then ask the Administrative Law Judge ("ALJ") to rule on the defense either by motion prior to a hearing, or the airman may argue the defense at the end of the hearing.

In cases where the FAA's complaint does not allege lack of qualification of the airman, in order to survive a motion to dismiss under 49 C.F.R. 821.33 (a) the FAA must show that good cause existed for any delay beyond 6 months or that the public interest requires imposition of a sanction, regardless of the delay or the reasons for the delay. If the FAA is unable to establish good cause for the delay or that a sanction is warranted in the public interest, then the ALJ must dismiss the stale allegations.

In cases where the FAA's complaint does allege lack of qualification of the airman (which often happens if the FAA knows more than 6 months has passed) and the airman raises the defense by motion prior to the hearing, under 49 C.F.R. 821.33(b) the ALJ must first determine "whether an issue of lack of qualification would be presented if all of the allegations, stale and timely, are assumed to be true." If so, then the ALJ must deny the airman's motion. If not, then the ALJ is required to decide whether the FAA established good cause for the delay or that a sanction is warranted in the public interest under 49 C.F.R. 821.33(a).

But what happens when the ALJ doesn't rule on the airman's stale complaint defense until after the hearing? Well, the NTSB discussed that very situation in a recent opinion in which it reversed an ALJ's decision and dismissed the FAA's complaint against an airman as stale.

The Case

In Administrator v. Armstrong the FAA alleged that the airman violated FAR 61.15(d) (two motor vehicle actions within three years) and issued an emergency order revoking the airman's airline transport ("ATP") certificate. According to the FAA's complaint, the airman's driver's license was suspended for implied consent violations in 2008 and 2009. The airman reported those violations pursuant to FAR 61.15(e) and the FAA subsequently suspended the airman's ATP certificate for 30 days.

In August 2010 the airman disclosed the previous motor vehicle actions on his application for a medical certificate and, per policy, the FAA ran the airman's name through the National Driver Registry and received a "hit." Based upon the "hit", in September 2010 the FAA requested a copy of the airman's driving record from the issuing state. In the meantime, on December 20, 2010 the airman's driver's license was suspended for yet another implied consent violation.

When the FAA received a copy of the airman's driving record on February 14, 2011, the December 20, 2010 suspension was listed and a copy of the police report from the November 20, 2010 arrest leading to the suspension was included with the report. An FAA inspector reviewed the report and determined that the December 20, 2010 suspension was the airman's third implied consent-related driving suspension in a three-year period. As a result, the FAA opened a new investigation into what it believed to be another FAR 61.15(d) violation. The airman did, however, timely report the third implied consent conviction to the FAA as required by FAR 61.15(e).

On July 6, 2011, over six months after the last implied consent violation, the FAA issued an emergency order revoking the airman's ATP certificate, based on a lack of qualification pursuant to FAR 61.15(d). The airman appealed the revocation and asserted the stale complaint affirmative defense in his answer to the FAA's complaint. At the beginning of the hearing before the ALJ the airman moved to have the case dismissed as stale. However, rather than ruling on the motion at that time, the ALJ deferred ruling on the motion until after he issued his oral decision.

The case proceeded to hearing and the ALJ ultimately determined that the FAA did not possess all the evidence necessary to prosecute the case against the airman until around March 1, 2011, and thus, less than six months passed between March 1 and July 6, 2011. As a result, the ALJ denied the airman's motion to dismiss based upon the stale complaint defense. The ALJ also found that the airman's implied consent convictions violated FAR 61.15(d). And, inspite of the fact that the ALJ found the FAA did not prove lack of qualification on the part of the airman, he deferred to the FAA's choice of sanction and affirmed revocation of the airman's ATP certificate.

The airman appealed the ALJ's decision arguing the ALJ erred in denying his motion to dismiss under the stale complaint rule when the FAA failed to prove that he lacked the qualification to hold a certificate. However, the FAA did not appeal the ALJ's finding that the FAA had not proven the airman lacked qualification to hold his ATP certificate.

The Board's Decision

The Board agreed with the airman. It initially observed that 49 C.F.R. 821.33 "clearly states the six-month timeframe commences on the date of the offense not the date when the FAA possessed all the necessary evidence to prosecute the violation" As a result, the FAA's July 6, 2011 order was issued 6 months and 16 days after the date of the December 20, 2010 offense.

Next, the Board noted the ALJ's finding that the airman did not lack qualification, coupled with the FAA's failure to appeal that finding, dictated that it analyze whether the FAA established good cause for the delay or otherwise established that the public interest justified imposition of the sanction. With respect to good cause, the Board observed that the FAA had the burden of establishing good cause through documents or testimony at the hearing. The Board then concluded that the FAA failed to act with diligence and further stated that "the record is devoid of any reason for the delay."

With respect to public safety, the Board found the FAA "failed to present evidence at the hearing to show the imposition of a sanction was warranted in the public interest, notwithstanding the delay." It went on to observe "three implied consent-related driving suspensions within a three-year period constitute a serious violation" but the FAA "failed to give these alleged unsafe conditions the speedy remedy demanded by our caselaw." As a result, the Board granted the airman's appeal and dismissed the FAA's emergency revocation order.


This case presents a clear explanation not only of the stale complaint defense, but how the ALJ, or the Board, must analyze the defense. It also provides airmen and aviation attorneys with an outline for asserting the defense. And it was a good result for the airman. All in all, not a bad case.

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