The first question airmen usually ask when faced with a FAA investigation is, “should I respond to a FAA Letter of Investigation?” The answer to whether you should respond to a FAA Letter of Investigation is actually quite nuanced. In that, the circumstances of every situation will dictate whether a response to a FAA Letter of Investigation is recommended. The key, however, is the knowledge that providing a response to a FAA Letter of Investigation is not required. As such, an answer to a FAA Letter of Investigation may be appropriate in certain situations where you know that providing a response will unequivocally acquit you of the FAA’s accusations.
For example, if the FAA is investigating a flight that you allegedly conducted on March 1st, but you weren’t flying on March 1st because you were in the hospital, you may want to bring that information to the FAA inspector’s attention. On the other hand, in most cases, providing a response will not usually help your situation…more on this herein. But won’t responding to the Letter of Investigation make me look better to the FAA inspector? Won’t the FAA inspector work with me if I just tell him all the details? While it cannot be said that a response to a FAA Letter of Investigation is never appropriate, it is equally hard to say that the FAA inspector, by the time he or she has issued a Letter of Investigation, is really interested in resolving the matter without, at a minimum, an administrative action or certificate action.
So, what’s the worst that could happen if an airman responds to a FAA Letter of Investigation? An admission that an airman makes can and will be used against the airman later on, in the event he or she attempts to appeal a certificate action to the National Transportation Safety Board (“NTSB”). In that, most statements made out of court, which are later offered to prove the truth of the matter asserted, are considered “hearsay” and cannot (or rather, should not) be accepted into evidence.
The trap is that an airman’s statement in response to a FAA Letter of Investigation is an EXCEPTION to the “hearsay” rule under Federal Rule of Evidence 801. In that, an airman’s response to a FAA Letter of Investigation is considered an “opposing party’s statement” or a “party admission.” As such, anything that may be admitted in a response to a FAA Letter of Investigation is likely to be admitted into evidence by the NTSB Administrative Law Judge and weighed against your credibility as a witness or even make it easier for the FAA to prove their case.
While the FAA’s new Compliance Philosophy encourages a “transparent” attitude, usually by the time you’ve received a Letter of Investigation, the airman should carefully consider whether the FAA inspector has any intention of utilizing the Compliance Philosophy. As such, it is imperative that when you receive a FAA Letter of Investigation, you should receive contact a FAA defense attorney to evaluate your response and determine the best course of action.
If you’ve received a FAA Letter of Investigation, contact The Pilot Lawyer at The Ison Law Firm. The Pilot Lawyer is standing by to vector you through legal turbulence.