49 CFR 821.33 Stale Complaint Rule

17 Oct

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expedite this request in any manner.  Since the burden of showing good cause rests with the
Administrator, the Administrator should have provided such evidence through testimony or
documents at the hearing in order to meet the burden of proof to withstand a stale complaint
challenge by showing good cause.

Notwithstanding this questionable timeframe from January 5th to February 14th, we
conclusively find the Administrator failed to act with diligence in pursuing this prosecution from
March 1, 2011, until issuance of the emergency complaint on July 6, 2011.12  Mr. Marks
attempted to justify the FAA’s four-month period of apparent inactivity by stating he needed to
request copies of respondent’s 2008 and 2009 police reports relating to the driving suspensions
from New Hampshire.  However, he later conceded the FAA already possessed these certified
records as part of the 2009 enforcement action against respondent.13  Other than this redundant
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12 The law judge considered the date of March 1, 2011, as the date when the Administrator had
all the evidence necessary to prosecute the violation.  While it appears to us this date was
actually February 14, 2011, we reach the same conclusion whether we use the date of March 1st
or February 14th so any error on the part of the law judge on this finding of fact is
inconsequential.
13 On cross-examination, the following exchange occurred between respondent’s counsel and Mr.
Marks:

Q. So your office was already in possession of all the evidence it needed to
bring an enforcement action predicated on the 2008 and the 2009 [Administrative
License Suspensions], correct?
A. Yes.
Q. And your office did so, correct?
A. Yes.
Q. So as of March 1, 2011, your office was in possession of all the
documentation you needed in order to make a determination whether you had a
61.15(b) offense predicated on three events within 3 years, consistent with your
2150 enforcement order [FAA Order 2150.3B, Sanction Guidance for Violations
of Drug and Alcohol Testing Regulations], and to proceed with legal to bring that
action, true?
A. It’s our practice to obtain — 

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request, the record is devoid of any reason for the delay.  Because the FAA had all the necessary
evidence in its possession on February 14, 2011, Mr. Marks’s rationale falls short of providing
good cause for failing to issue the complaint in this case until July 6, 2011.  Additionally, we note
the certified copy of respondent’s driving record from the state of New Hampshire contains five
entries between the dates of August 29, 2008 and September 23, 2010, indicating, “CERTIFIED
COPY SENT TO:  FEDERAL AVIATION ADMIN.”14  These repeated requests from the FAA
for certified copies of the same records further weaken the Administrator’s argument in this
regard.  We find the Administrator’s justification fails to provide good cause for the delay in
issuing the complaint in this case.

 Likewise, the Administrator failed to present evidence at the hearing to show the
imposition of a sanction was warranted in the public interest, notwithstanding the delay.  While
the stale complaint rule requires us to examine public interest, we consistently have stated public
——————-
(..continued)

Q. Sir, true or false, and then you can explain.
A. No.
Q. It’s not?
A. We require certified documents for each enforcement action sent down to
legal.  So although the prior enforcement action had those certified documents, it’s
my job to obtain new certified records to make sure that they are accurate.
Q. So you already possessed certified documents from the Division of Motor
Vehicles for the years of 2008, 2009, and 2010.  You had those in your possession
on March 1, 2011.  You’ve already testified to that.  That’s correct, is it not?
A. Yes.

Tr. at 48.

14 Exhibit A-1 shows certified copies of respondent’s driving record were sent to the FAA on
September 23, 2010 (Exh. A-1 at 1), September 9, 2009 (id.), March 31, 2009 (id. at 2), October
21, 2008 (id. at 3), and August 29, 2008 (id.).

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