By Gregory J. Reigel
When the FAA receives notice and evidence to show that a certificate holder (mechanic, repair station, air carrier, pilot, etc.) may have violated one or more of the Federal Aviation Regulations (FARs), in most cases an FAA aviation safety inspector will send the alleged violator a letter of investigation (LOI) advising that the FAA is investigating an alleged violation of the FARs. Whether you should respond to an LOI and how you should respond are two of the most common questions raised by LOI recipients.
What The LOI Tells The Recipient
The LOI typically starts out by telling the recipient that the FAA is investigating “an occurrence which involved your operation” or “an incident that occurred” or “maintenance performed on N12345 on such and such a date.” In drug and alcohol abatement cases, the LOI will state “we inspected [your facility’s] drug and alcohol testing programs to determine compliance with 49 CFR part 40 and 14 CFR part 120. As a result of this inspection, the following apparent violations were discovered ...”
After explaining the operation or conduct involved, the LOI advises that the FAA believes the operation or conduct is “contrary to Federal Aviation Regulations.” However, the LOI will not tell the recipient what specific FAR(s) the FAA believes the recipient violated. FAA inspectors are specifically advised that the regulations(s) violated should not be listed in the LOI. Since the LOI is intended to advise the recipient of the subject matter of the investigation sufficiently to allow the recipient an opportunity to respond to the facts giving rise to the investigation, the FAA does not want its inspectors citing specific regulations prematurely.
Next, the LOI specifically states that it informs the recipient that the matter is under investigation by the FAA and it invites the recipient to discuss the matter with the inspector, submit evidence or statements, or both. For a written statement, the LOI requests that the statement includes all pertinent facts and mitigating circumstances that the recipient believes may have a bearing on the operation or conduct that is under investigation. The LOI requests that the recipient submits any response to the LOI within 10 days of receipt of the LOI. Finally, the LOI usually states that “[i]f we do not hear from you within the specified time, our report will be processed without the benefit of your statement.”
The FAA sends the LOI by regular mail and either certified mail, return-receipt requested, or registered mail to the recipient’s current address of record in order to establish proof that the recipient was notified of the investigation. If the LOI is returned or undeliverable (because it is addressed incorrectly or the recipient has moved and left no forwarding address), then the FAA inspector is required to correct the address or try to obtain a new address and resend the LOI. An FAA inspector may also deliver the letter in person.
Now, if you are thinking that simply dodging the mail might make the situation go away, that isn’t the case. If the intended recipient refuses or simply does not pick up the certified letter or registered letter, but the regular mail is not returned (whether the recipient opens it or not,) then the FAA presumes, as will the NTSB, that the intended recipient received the LOI. (This is consistent with FARs §§ 61.60 and 65.21 that require airmen to keep the FAA informed of their permanent mailing address by providing the FAA with a new permanent mailing address within 30 days.)
Options For Responding To An LOI
If you receive an LOI, you must determine whether you are going to respond and, if you are, what you should say in your response. Certificate holders frequently believe they have to respond, especially since the LOI seems to imply that a response is required within 10 days. However, that belief isn’t correct. No response is actually required — but that doesn’t mean you shouldn’t respond.
From a basic courtesy standpoint, it seems appropriate to respond to a letter asking for a response. After all, no one likes to have their requests ignored. However, sending a response to an LOI that tries to explain the situation or otherwise “make it go away” very rarely ends well for the certificate holder. Often the certificate holder’s response includes admissions that help the FAA and can later be used against the certificate holder.
Should you send a response to the LOI? Yes, if for no other reason than to acknowledge that you received the LOI and, of course, to show a proper compliance attitude. Do you say anything more than that in your response? The lawyerly answer to that question is: it depends.
Sometimes it makes sense to simply acknowledge receipt of the letter, advise that you don’t have anything to add, and offer to respond to any specific questions or requests the inspector may have. After all, by the time the LOI is sent, the inspector has usually conducted some investigation and discovered enough evidence to determine that a violation may have occurred. So why disclose anything that could add to the case?
On the other hand, in some situations it may make sense to provide a more detailed explanation in your response to the LOI. For example, if it is a case of mistaken identity or you have evidence that clearly proves the inspector is wrong, then submitting that information in response to the LOI very well may force the inspector to close the investigation.
Whether or not and how you respond to an LOI are strategic decisions. Since you are already in the FAA’s sights, consult with an aviation attorney before sending a response that tries to explain or address the allegations in the LOI. With the assistance of an aviation attorney you can prepare a response that may mitigate damage, minimize investigation, and that will avoid providing admissions or other evidence that could later be used against you. At a minimum, an aviation attorney can run interference between you and the FAA.
The LOI is just the beginning of the enforcement process. Although your response to an LOI may not prevent the FAA from pursuing an enforcement action, how you respond to the LOI has the potential to have a significant impact on the outcome of the case. Make sure you respond wisely.
© September 2011 All rights reserved.
Greg Reigel is an aviation attorney, author and pilot. He holds a commercial pilot certificate (single-engine land and sea and multi-engine land) with instrument rating. His practice concentrates on aviation litigation, including aviation insurance matters and FAA certificate actions, and also aviation transactional matters. He is admitted to practice law in Minnesota and Wisconsin and advises clients throughout the country on aviation law matters. A cum laude graduate of William Mitchell College of Law, Reigel is the founder and president of the law firm Reigel & Associates, Ltd./Aero Legal Services based in Hopkins, Minn. He is an Adjunct Professor for the Business Law Clinic and an Instructor for the “Lawyering Skills” courses at William Mitchell. His articles have appeared in Private Pilot, the Midwest Flyer and on www.globalair.com. He frequently speaks to groups on aviation and business law issues. Reigel is a member of the AOPA Legal Services Panel, secretary of the Minnesota Aviation Trade Association, and a member of the NTSB Bar Association, National Business Aviation Association, Minnesota Business Aviation Association, ABA-Forum on Air & Space Law, Lawyer-Pilot Bar Association and Experimental Aircraft Association.