DC Circuit Reverses NTSB on Application of Stale Complaint Rule.

In a factually interesting case involving lack of credentials and falsification of logbook entries, on June 30, 2015, the DC Circuit Court of Appeals reversed an NTSB order dismissing the FAA’s emergency revocation of a pilot certificate on “stale complaint” grounds. The Court of Appeals held, among other things, that the stale complaint rule is inapplicable in cases where the FAA’s complaint alleges a lack of pilot qualification and that the NTSB’s own decisional history shows logbook falsification is an offense that “implicates a lack of qualification warranting revocation.” The case, Huerta (FAA) v. Ducote, may be viewed here http://tinyurl.com/p8hrn3q

In Ducote, the pilot was not rated to act as a co-pilot on an international flight to the Bahamas. He did so and logged the flight in his personal logbook. When asked to produce his logbook by the FAA, Jody Ducote deleted the flight and replaced it with a domestic flight on a different day that did not actually take place. The emergency order revoking Ducto’s certificate, alleging lack of pilot qualification due to logbook falsification, was issued two years after the event.

Although the Administrative Law Judge hearing the case upheld the FAA, the NTSB reversed him. It said the FAA must specifically show and present evidence that air safety was compromised in order to overcome the stale complaint objection. The Court of Appeals reversed, holding that the stale complaint rule and the NTSB’s own prior decisions did not warrant that result in two primary respects.

First, the stale complaint rule says:

In those cases where the complaint alleges lack of qualification of the respondent, the law judge shall 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, the law judge shall deny the respondent’s motion.

In short, although other bases for overcoming a stale complaint objection require some evidentiary showing, the qualification basis only requires the complaint show it.

Second, the prior decisions of the NTSB show:

One offense that “the Board has repeatedly held implicates a lack of qualification warranting revocation * * * [is] falsifying a logbook.”

The Court also noted that its decision was based on the current text of the stale complaint rule:

To be clear, the question in this case is not whether the Board could demand a heightened pleading or evidentiary showing from the Administrator to avoid the stale-complaint bar. All we decide is that the Board may not impose such a heightened showing in this case given the regulation’s plain text, past Board precedent, and the detailed content of the underlying complaint.

[An additional issues dealing with the Court of Appeals’ jurisdiction to hear the case, is not discussed in this note]

Posted in Aviation