The NTSB recently issued a decision in which it addresses, but does not necessarily clarify, the requirements for asserting a statute of limitations defense under 28 U.S.C. 2462. In Administrator v. Rex, the FAA alleged that the airman violated FAR 91.13(a) (careless and reckless) during a 1999 incident in which the airman allegedly “started the engine of the aircraft with two individuals standing next to the cockpit door, began to taxi without ascertaining whether they were clear of the aircraft, and knocked them to the ground when the tail of the aircraft hit them.” Within 6 months of the incident, the FAA issued a Notice of Proposed Certificate Action (“NPCA”) proposing a 300 day suspension of the airman’s Airline Transport Certificate for the alleged violation. The FAA did not actually issue its order until July, 2005 and then did not file its order as the complaint until December 2006.
The airman raised the laches and “stale complaint” defenses in his answer, but did not raise the defenses again until closing argument. At that point, the ALJ rejected the arguments based upon a lack of prejudice shown by the airman and, after a hearing, affirmed the FAA’s order of suspension. (It is unclear from the decision whether the ALJ actually ruled on the stale complaint defense as set forth in 49 U.S.C. 821.33, which was technically not available because the NPCA was issued within 6 months, or whether he simply ruled on the laches argument.) The airman then appealed to the full Board.
On appeal, the airman renewed his laches defense and also argued that Section 2462 precluded the FAA’s order. Section 2462 states that “an action, suit or proceeding for the enforcement of any … penalty … pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued….” Of course, the FAA argued that the suspension was not a penalty. However, based upon Coghlan v. NTSB (a case addressing a similar argument under Section 2462 in a revocation proceeding) the Board cautioned the FAA “that an action such as a suspension of an airman certificate, as opposed to a revocation based on lack of qualifications, may be considered to be a ‘penalty’ for purposes of 28 U.S.C. § 2462.13.”
Unfortunately, the Board then avoided the issue by finding that even if the suspension of the airman’s certificate was considered a penalty for the purposes of Section 2462, the defense would still fail because the airman had not shown prejudice. Although the airman complained that he was prejudiced by the loss of “exculpatory evidence” due to the delay, he was unable to specify any details about the information lost or how it would have changed the outcome of the case. Finally, the Board then took the opportunity to comment on the FAA’s delay when it stated that “[a]lthough we do not sit in judgment on the Administrator’s exercise of his [] powers, we feel constrained to comment that unexplained, lengthy delays in proceeding against an airman the Administrator eventually determines must be grounded [] are not likely either to advance the public interest in air safety or to inspire public confidence that an extraordinary power is being administered responsibly.”
It is unclear from the case why it took so long to go to hearing, although apparently both criminal and civil litigation resulted from the incident that may have had some impact on the timing of the case. However, the case is somewhat instructive with respect to the Section 2462 defense. It appears that the statute of limitations defense “may” be available in an action seeking suspension, as opposed to revocation, of an airman’s certificate. Unfortunately, the case doesn’t particularly clarify what showing of prejudice will be required of an airman asserting the defense. I guess we will have to wait and see how/whether the Board addresses this issue the next time it is raised by an airman.
