49 CFR 821.33 Stale Complaint Rule

17 Oct

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name through the National Driving Register (NDR) database as part of the medical application
process.  The FAA received a “hit” back from the NDR on respondent’s name.  A hit from the
NDR does not include specific information about the type of incident, the number of incidents,
or the date of the incident(s), but only provides the name of the individual, his or her date of
birth, and the state in which the incident occurred.  Subsequent to receiving the NDR hit, in
September 2010, Christopher Marks, an FAA investigator, had his staff contact New Hampshire
to request copies of respondent’s driving record.    

 On December 20, 2010, respondent’s driving privileges were suspended a third time for
yet another violation of New Hampshire’s implied consent law.  On February 14, 2011, the FAA
received a copy of respondent’s driving record from New Hampshire, which showed the
December 20, 2010 suspension and included a copy of the police report from the November 20,
2010 arrest leading to the suspension.  Upon reviewing the record, Mr. Marks noted this incident
was respondent’s third implied consent-related driving suspension in a three-year period and
opened a new investigation into another § 61.15(d) violation.  On February 18, 2011, respondent,
through counsel, timely reported this third driving suspension to the FAA under 14 C.F.R.
§ 61.15(e).     

 On July 6, 2011, the Administrator issued an emergency order revoking respondent’s ATP
certificate, based on a lack of qualification due to respondent’s three implied consent violations
within a three-year period.  As permitted by 49 C.F.R. §§ 821.31(b) and 831.52(d),6 respondent
subsequently waived the procedures applicable to emergency cases and the case proceeded to
hearing before the law judge on September 27, 2011.
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6 Respondent waived the emergency provisions after the chief administrative law judge denied
respondent’s petition for review of the FAA’s emergency determination.

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B.  Law Judge’s Oral Initial Decision

 At the commencement of the hearing, respondent made a motion to dismiss the complaint
under the Board’s stale complaint rule.  See 49 C.F.R. § 821.33.  The stale complaint rule permits
a respondent to move to dismiss allegations in a complaint which occurred more than six months
prior to the Administrator advising the respondent as to reasons for the proposed action.  At the
hearing, respondent contended more than six months passed between his driving suspension on
December 20, 2010 and the FAA’s emergency order on July 6, 2011.  The law judge deferred
ruling on the motion until his oral initial decision.  Tr. at 8.  He ultimately denied the motion,
finding the FAA did not possess all the evidence necessary to prosecute the offense until around
March 1, 2011, and therefore, less than six months passed between March 1 and July 6, 2011.
See Oral Initial Decision at 104, 107.

 The law judge found respondent violated 14 C.F.R. § 61.15(d).  As a result, the law judge
deferred to the Administrator’s choice of sanction, which was revocation of respondent’s ATP
certificate.  In his oral initial decision, the law judge found the issues before him were whether
these implied consent violations amounted to “motor vehicle actions” under the regulation and
whether the Administrator had proven a lack of qualification on the part of respondent.  As to the
lack of qualification, the law judge noted, “it’s the Administrator’s policy that any revocation is a
lack of qualification.”  Oral Initial Decision at 103.  The law judge found “there’s not a lack of
qualification shown by a preponderance of the evidence…but I am obligated to find that there
was a violation, as alleged, of the regulation FAR  61.15(d), in that there were three motor
vehicle actions.”  Id. at 107.  As to the sanction, the law judge concluded, “I have to give
deference to the sanction sought by the Administrator would be one of revocation.”  Id. at 108.

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