The NTSB recently affirmed an ALJ’s entry of summary judgment against an airman based upon allegations that were deemed admitted by the airman’s failure to provide substantive responses to the FAA’s requests for admissions regarding those allegations. In Administrator v. Zink, the airman was charged with violating FARs 91.7(a)(aircraft must be airworthy) and 91.407(a)(2)(altered aircraft’s maintenance log must have required entry reflecting alteration) for allegedly operating an Aerospatiale SA315B Eurocopter with unapproved major alterations, and without the required maintenance entries in the helicopter’s logbooks. The airman denied the allegations in the FAA’s complaint and appealed to the NTSB.
Prior to the hearing, the FAA served the airman’s counsel with requests for admissions of the key allegations in the FAA’s complaint. The airman’s counsel responded to each of the requests stating “Having made reasonable inquiry, respondent is without knowledge or readily obtainable information sufficient to enable him [the airman] to admit or deny.” The airman’s counsel subsequently withdrew and then the FAA sent a letter directly to the airman demanding proper responses and, when the airman did not respond, the ALJ then granted the FAA’s motion to compel and ordered the airman to provide responses.
When the airman still refused to provide responses, the ALJ deemed the FAA’s requests admitted. The ALJ then granted the FAA’s motion for summary judgment based upon the admissions as to the key allegations in the FAA’s complaint and suspended the airman’s ATP certificate for 140 days. The airman appealed the entry of summary judgment arguing that he couldn’t explain his counsel’s ambiguous responses to the requests for admissions, but that the Board should refer to his responses in his answer, rather than his counsel’s responses.
On appeal the Board rejected the airman’s agruments. It noted that the law judge has the discretion to impose sanctions for failing to comply with discovery requests and that “[o]rdering uncontested requests for admission to be considered true is not an inappropriate sanction.” The Board also observed that the airman had three distinct opportunities to avoid the ALJ’s discovery sanction order that deemed critical facts admitted: the airman could have denied any or all of the Requests for Admissions; he could have responded similarly to the FAA counsel’s letter demanding responses; or he could have responded to the FAA’s motion to compel by disavowing his attorney’s earlier, inadequate response. Although the airman was temporarily without counsel, the Board stated “that such a situation does not obviate a respondent’s obligations with regard to discovery or responses in general in a pending enforcement action.”
Requests for admissions are a discovery tool used often by the FAA. How an airman responds to those requests can have a critical impact upon his or her case. Whether proceeding with or without counsel, this case makes clear that an airman is obligated to comply with request for admissions and other discovery requests in a substantive way. Failure to do so can potentially result in sanctions ordered by the ALJ and, ultimately, a finding of violation against the airman.
