49 CFR 821.33 Stale Complaint Rule

17 Oct

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C.  Respondent’s Issues on Appeal

 Respondent appealed the law judge’s decision.  Respondent contends the law judge erred
in denying respondent’s motion to dismiss under the stale complaint rule.  In particular,
respondent argues the law judge determined the Administrator failed to prove respondent lacked
the qualification to hold a certificate, and therefore, the stale complaint rule applied to preclude
the Administrator’s pursuit of the case.  He also asserts the law judge’s findings were arbitrary,
capricious, and contrary to precedent and evidence when the law judge found respondent
violated § 61.15(d) and deferred to the Administrator’s sanction.

2.  Decision

 The Board’s stale complaint rule states,

Where the complaint states allegations of offenses which occurred more than
6 months prior to the Administrator’s advising the respondent as to reasons for
proposed action under 49 U.S.C. 44709(c) [regarding FAA notice to certificate
holders of a proposal to amend, modify, suspend, or  revoke  a certificate], the
respondent may move to dismiss such allegations as stale pursuant to the
following provisions:

(a)  In those cases where the complaint does not allege lack of
qualification of the respondent:

(1)  The Administrator shall be required to show, by
reply filed within 15 days after the date of service of
the respondent’s motion, that good cause existed for
the delay in providing such advice, or that the
imposition of a sanction is warranted in the public
interest, notwithstanding the delay or the reasons

(2)  If the Administrator does not establish good
cause for the delay, or for the imposition of a
sanction in the public interest notwithstanding the
delay, the law judge shall dismiss the stale
allegations and proceed to adjudicate the remaining
portion of the complaint, if any.

(b)  In those cases where the complaint alleges lack of qualification
of the respondent, the law judge shall first determine whether an

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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.  If not, the law judge
shall proceed as in paragraph (a) of this section.

49 C.F.R. § 821.33 (Rule 33).

 In this case, respondent’s third implied consent-related driving suspension occurred on
December 20, 2010.  Under Rule 33, the date of the offense is the date we use for calculating the
start of the six-month timeframe.  The Administrator issued the emergency complaint on July 6,
2011.  For purposes of the stale complaint rule, the complaint was issued 6 months and 16 days
after the date of the offense.  To the extent the law judge appears to use March 1, 2011—the date
which the law judge determined was when the FAA possessed all the evidence needed for the
enforcement action—to start the clock on the six-month timeframe, we find such analysis
erroneous.  Rule 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.  Our
long-standing jurisprudence also reflects the same.7

  a.  49 C.F.R. § 821.33(b)—Alleged Lack of Qualification

 In this complaint, the Administrator alleged a lack of qualification on the part of
respondent.  Thus, our starting point for analyzing the stale complaint rule in this case is under
§ 821.33(b).  Although the Administrator alleged a lack of qualification, the law judge found the
Administrator failed to prove a lack of qualification by a preponderance of the evidence, and the
Administrator did not appeal this determination.  Under § 821.33(b), when the law judge finds no
lack of qualification, the analysis of the stale complaint issue then shifts to the analysis contained
in subparagraph (a) of the rule.
7 Administrator v. Zanlunghi, 3 NTSB 3696, 3697 (1981); Administrator v. Marshall, 4 NTSB
1079, 1080 (1983); see also Ramaprakash v. F.A.A., 346 F.3d 1121 (D.C. Cir. 2003).

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