FAA Letter of Investigation
Prior to the passage of the Pilot’s Bill of Rights, this firm would refer to the FAA Letter of Investigation (LOI) as a “courtesy notice” of the Administrator’s investigation of the airman. According to FAA Order 2150.3b (Effective October 1, 2007), the LOI “serves the dual purposes of notifying an apparent violator that he or she is under investigation for a possible violation and providing an opportunity for the apparent violator to tell his or her side of the story. While an LOI is not required, FAA investigative personnel should issue an LOI in most cases.”
Sometimes, the FAA Letter of Investigation may be the only notice received by an individual or operator that he or she is being investigated. While each LOI is tailored to describe the circumstances upon which the FAA is investigating, the Letter typically includes language similar to the following:
- This is to inform you that the FAA is investigating this matter;
- We wish to offer you an opportunity to discuss the incident in person or submit a written statement within 10 days following receipt of this letter;
- Your statement should contain all pertinent facts and any mitigating circumstances you believe may have a bearing on the incident;
- If we do not hear from you within the specified time, we will process this matter without the benefit of your statement.
Tucked in the “boilerplate” of the Privacy Act Notice on the second page of the LOI is the disclaimer: Effect of failure to respond: The FAA cannot impose any penalties upon you if you fail to respond to this letter of investigation. If you fail to supply the requested information, however, the FAA will make determinations about possible enforcement action for this matter without the benefit of your comments on this matter.
Responding to the FAA Letter of Investigation
In this firm’s experience, individuals and carriers who receive LOI’s have an overwhelming urge to respond to the Letter. It is also this firm’s experience that individuals and carriers who respond to the LOI without first consulting with an experienced aviation attorney do so in a way which unnecessarily and materially prejudices their defense and significantly strengthens the FAA’s case when the matter escalates to an enforcement action. On the one hand, a recipient of the Letter of Investigation wants to exhibit a cooperative attitude with the FAA, but on the other hand, the recipient does not want to provide the FAA with information that might ultimately be used against him at trial. Close coordination and discussions with your aviation legal counsel should be initiated to determine “if” and “how” to respond to the FAA Letter of Investigation.
Letter of Investigation after the Pilot’s Bill of Rights
With the advent of the Pilot’s Bill of Rights (PBR), to continue to call the LOI “courtesy notice” may be in error. According to the PBR, except under certain circumstances, described below, the FAA shall provide timely, written notification to an individual who is the subject of an investigation relating to the approval, denial, suspension, modification, or revocation of an airman certificate. This notice must now include:
- The nature of the investigation;
- That an oral or written response to a Letter of Investigation from the FAA is not required;
- That no action or adverse inference can be taken against the individual for declining to respond to a Letter of Investigation from the FAA;
- Any response to a LOI from the FAA or to an inquiry made by a representative of the FAA by the individual may be used as evidence against the individual;
- That the releasable portions of the FAA’s investigative report (EIR) will be available to the individual; and
- That the individual is entitled to access or otherwise obtain air traffic data (ATC tapes, radar information, ATC controller statements, flight data, investigative reports, and any other information in the FAA’s possession that would facilitate the individuals ability to productively participate in the proceeding)
It is important to note that the FAA may delay timely notification if the FAA determines that such notification may threaten the integrity of the investigation. According to the FAA’s published notice (Notice of National Policy N 8900.195), examples of circumstances where the integrity of the investigation could be threatened occurs when providing the required notification under the PBR presents: (i) a risk of destruction or concealment of evidence, (ii) a risk of death or serious bodily injury, or destruction or property, (i.e., by the time the LOI is drafted and served, death, injury or property destruction would have already occurred), or (iii) where there is not enough time to give required written PBR notification. As this is new to both the FAA and airman defense counsel alike, it will be interesting to see how both sides attempt to strain or limit the exception.
Finally, air carriers, airlines, and other certificated operators need to note that the PBR only applies to individuals, or airmen. Presumably, the old rules continue to apply to non-individual certificate holders.
Frequently Asked Questions
If I refuse to sign for or accept delivery of the certified Letter of Investigation, will I still be deemed to have received it?
Yes, and Courts usually take a dim view of this type of behavior. Besides, it is your opportunity to learn a little about the case the FAA is working up against you.
I received a Letter of Investigation from the FAA. Am I required to respond?
Generally, no. However sometimes the FAA combines the LOI with other requests for information (e.g., logbooks), which may impose an independent duty to provide the documentation or information.
Should I respond to a Letter of Investigation?
Generally, yes–if for no other reason to acknowledge receipt of the LOI. However, how you respond needs to be carefully considered.
Ok, how should I respond to a Letter of Investigation?
It depends. This is one of those questions that get asked all the time, but no answer is valid until the particular facts and circumstances of your matter are fully understood. For instance, is there a request triggering an independent duty to disclose information or for an inspection of records? Is there an offer for the airman to participate in corrective action through remedial training? The Kientzy Law Firm would be happy to work with you and to assist you in drafting a response to your LOI.
What does the FAA do with my response to the Letter of Investigation?
The FAA will use your response against you in court. In fact, you will see your response again in the Enforcement Investigative Report (EIR); so even if your response is not entered into evidence, the NTSB Administrative Law Judge will still have a copy available to him.
Can the Kientzy Law Firm assist me in formatting a reply to the Letter of Investigation?
Absolutely. First, we will need to discuss your matter, and enter into an engagement agreement acceptable to both parties before assisting you.
If I cooperate with the FAA, and “spill my guts” in response to the LOI, will the FAA “take it easy on me”?
It has not been the experience of this firm that the FAA has “taken it easy” on those who cooperate during the investigation, including those who “respond in full” to the FAA LOI. It has been the experience of this firm that many times, the FAA’s otherwise unprovable allegations are now substantiated and admissible against the alleged violator who made damaging admissions in his or her reply to the LOI.
If I don’t respond, won’t the FAA think I’ve committed the violation?
The FAA already thinks you have committed a violation; that’s why you received the LOI in the first place.
Is it too late to file a NASA ASRS (NASA Form) after receiving a FAA Letter of Investigation?
It depends. With the recent revision to AC No. 00-46, the FAA Advisory Circular which describes the ASRP, the FAA has changed the ten-day reporting time requirement to read as follows: The person proves that, within 10 days after the violation, or date when the person became aware or should have been aware of the violation, he or she completed and delivered or mailed a written report of the incident or occurrence to NASA. If supported by the facts, it is possible that an individual may not have been aware or could not have been aware of the violation prior to receipt of the LOI.
