Greg Reigel's Aero Legal Services

Deadlines Matter In NTSB Appeals

By Gregory J. Reigel

© October, 2006 All rights reserved.

Airmen, and sometimes their counsel, continue to suffer from the National Transportation Board’s (NTSB’s) strict application of its timing requirements for filing appeals. As you may know, when the FAA issues an order of suspension or revocation of an airman or medical certificate, the airman has an opportunity to appeal that order to the NTSB for a hearing on the merits. Additionally, if after a hearing the airman is unsatisfied with the NTSB administrative law judge’s (ALJ’s) decision, the airman has the opportunity to appeal that decision to the full NTSB Board.

Under the NTSB’s rules of practice, 49 CFR Part 821, an airman has a specified period of time within which to file his or her appeal. In the case of an appeal of an FAA order, the airman has 20 days from the time of service of the order within which to file the appeal. Part 821.30(a). In the case of an appeal of an ALJ’s initial decision, the airman has 10 days after the date on which the oral initial decision was rendered, or the written initial decision or appealable order was served, within which to file a notice of appeal with the NTSB. Part 821.47(a). The airman then has 50 days from the date the oral initial decision was rendered, or 30 days from the date of the written initial decision or when the appealable order was served, within which to file his or her appeal brief. Part 821.48(a).

The Board will not consider untimely appeals and will grant an FAA motion to dismiss such appeals unless the airman can show good cause for the delay in filing. Although this may seem like it grants an airman some leeway, in fact, the Board has very rarely found an airman’s explanations for an untimely filing to constitute good cause. In order to better understand the Board's strict adherence to deadlines, it is helpful to review some of its decisions applying these rules.

Appeal Of An FAA Order

In Administrator v. DeLuca, the FAA issued an emergency revocation order on November 1, 2004 revoking all of the airman's certificates. The order was sent via regular and certified mail, and via Federal Express delivery. However, it wasn't until April 1, 2005 that the Board received a letter from the airman appealing the emergency revocation and attempting to justify his delay in filing the appeal with the explanation that he had been out of the country.

The ALJ granted the FAA's motion to dismiss the appeal as untimely. The ALJ relied upon the airman's statement that he "forgot to open all of the letters that were sent to me" in holding that the airman failed to exercise the required diligence and thus did not have good cause for his delay in appealing the emergency revocation.

The Board agreed with the ALJ noting that the airman admitted having access to his mail in December, 2004 when he was back in the country. They also noted that the airman admitted returning home on March 15, 2005, but that he dated his notice of appeal March 25th and it was not actually received by the Board until April 1st. Based upon this evidence, the Board held that the airman had not demonstrated good cause for his delay in filing a notice of appeal. The “out of the country” argument did not save the day.

Similarly, in Administrator v. Sepulveda, the FAA sent a Notice of Proposed Certificate Action ("NPCA") to the airman proposing to suspend the airman's certificate. The airman did not respond to the NPCA and the FAA then issued an order suspending the airman's certificate for forty-five days. Although the airman appealed the order, he filed his appeal with the NTSB three days late. The ALJ subsequently granted the FAA's motion to dismiss the airman's appeal based upon the untimely filing.

On appeal to the full NTSB Board, the sole issue was whether the airman had shown "good cause" for his untimely filing. In rejecting the airman's appeal, the Board stated that "[h]aving kept his father's address as his official address on file with the FAA while he apparently was living elsewhere, he was obliged to check that address for FAA mail, especially since a Notice of Proposed Certificate Action had been sent to him. The situation that caused the delay in respondents becoming aware of the Order of Suspension was of respondents own making."

This isn't the only case in which an airman has argued that an untimely appeal was the result of the airman's designation of his or her parents' address for FAA purposes. It is also not the only case in which the Board has rejected this argument. Although the practice of designating an official address with the FAA that may not be where the airman spends a great deal of time is fairly common, airmen who do so need to take steps to ensure that they are promptly notified of any mail from the FAA. The NTSB will not consider any delay in receiving or responding to mail from the FAA due to untimely receipt of the mail from the airman's parents' address supported by good cause.

Appeal Of An ALJ’s Initial Decision

An airman filed his appeal from an ALJ’s initial decision 14 days late in Administrator v. Grieshaber. On appeal of the dismissal of his appeal, the airman argued that his late filing was excusable because "(1) two other NTSB law judges (Judge Mullins and Judge Geraghty) allegedly told one of respondent's former attorneys during a discussion at the NTSB Bar Association meeting on June 8 and 9, 2005, that Judge Popes decision was "an advisory opinion"; and (2) there is "confusion" over whether he was properly advised of the deadline for filing a notice of appeal.

The Board rejected the airman's assertions holding that they were not good cause for his failure to file a timely appeal. With respect to the "advisory opinion" argument, the Board noted that the airman had not provided any "documentation or substantiation for the alleged statement by Judges Mullins and Geraghty that the oral initial decision in this case should be viewed as merely advisory." In fact, the Board stated that "any such statement would be obviously incorrect and patently inconsistent with our rules." Additionally, the evidence showed that the ALJ "discussed the evidence, affirmed the alleged violation, gave the parties written copies of their appeal rights, confirmed on the record that the attorneys for both parties had nothing further to raise before him, and then stated, "very well then the hearing is closed."

The Board was equally unsympathetic to the airman's argument that he was not properly informed of the filing deadline for a notice of appeal. According to the Board, "[n]ot only did the law judge hand respondents counsel a written copy of his appeal rights, presumably in respondent's presence, but the Boards procedural rules are publicly available and copies of those rules were sent to respondent's counsel of record when he filed his initial appeal to the Board. If his attorneys did not pass on this information or otherwise failed in their duty to respondent, his recourse is against the attorneys, not the Board." This appears to be unlikely given that the airman was represented by three attorneys at the hearing, one of whom was an Air Line Pilots Association senior attorney with many years of experience in NTSB proceedings.

It is interesting to note that the airman was not represented by counsel on his appeal to the Board. It appears that his failure to have counsel for the appeal may have contributed to the fact that his appeal was untimely and the airman was then required to make some creative arguments in an attempt to show good cause for his late filing. Unfortunately, his arguments were inconsistent with and unsupported by the facts, and did not amount to good cause as established by Board precedent.

Administrator v. Walkowicz also involved dismissal of an airman’s untimely appeal. In response to the FAA's motion to dismiss the airman’s appeal, the airman's counsel argued that the untimely filing was due to "clerical error" and that the FAA was not prejudiced by the late filing. The NTSB rejected the arguments.

First, it noted that "clerical error", without further explanation of the nature of the actual error, does not amount to good cause for the untimely filing. Second, the Board held that lack of prejudice to the FAA does not constitute good cause for an untimely filing. The Board stated that "we do not evaluate untimely filings under a prejudice standard; rather, we uniformly apply a good cause standard".

In a different case with a somewhat unusual procedural posture, the NTSB denied an airman's request for reconsideration of its decision affirming an ALJ’s dismissal of the airman's appeal from the Administrator's order of suspension. The Board originally affirmed the ALJ's determination that the airman’s appeal was filed late and held that the airman had not presented any evidence of good cause for the Board to accept the late appeal.

In Administrator v. Beissel, the airman requested reconsideration of the Board's decision claiming that "the Board applies its good cause standard unevenly, ruling more often in the Administrators favor than in a respondents favor." The airman argued that Ramaprakash v. FAA and NTSB, 346 F.3d 1121 (D.C. Cir. 2003) supported his claim of uneven application of the standard.

Initially the Board noted that "the good cause standard requires that a respondent prove his failure timely to file a notice of appeal within the required time had a good cause" and that the reasons for the airman's tardiness did not constitute good cause for his late filing. It went on to specifically address the airman's claim of uneven application of the standard by stating "[t]his is a question of fact, specific to each case. Whether the Board is applying this standard uniformly to notices of appeal and appeal briefs is determined by reviewing other cases involving late filing of notices of appeal and appeal briefs, not by comparing this case with other, entirely different types of cases that also happen to use the good cause test."

Finally, the Board noted that "Ramaprakash, infra, actually supports this conclusion, as the parties and the Court analyzed the reasonableness of our action in that case based on our actions in other stale complaint cases, not based on the universe of cases in which a good cause standard was used." Although it probably seemed like a good argument for the airman to make, unfortunately, he took it out of context and made an apples to oranges comparison. The Board didn't buy it and the airman was stuck with his 180 day suspension.

The 8th Circuit Court of Appeals has also affirmed dismissals based upon a certificate holder’s untimely filing of a notice of appeal. In Cornish v. FAA, the Court dismissed a mechanic's appeal of an NTSB oral decision after the appeal brief was filed nine days late. The Court reviewed the rule requiring that the administrative appeal from an oral initial decision must be perfected by filing a brief within fifty days of that decision absent a showing of good cause. In this case, the mechanic's counsel apparently mistakenly believed that the appeal had to be filed within fifty days from the filing of the notice of appeal, as opposed to the date of the oral decision. The NTSB found that the error was without good cause and dismissed the appeal.

The Court of Appeals affirmed the NTSB's dismissal of the appeal. In response to the mechanic's argument that the dismissal was arbitrary and capricious because the Board had dismissed many appeals without explaining what constituted good cause, the Court stated that "the Board need not attempt to catalog what might be good cause in other cases when it consistently rules that mistakes by the appellants attorney in construing the agency’s procedural rules is not good cause." Unfortunately, this case did not provide any helpful explanation as to what does, as opposed to what does not, constitute good cause.

Conclusion

Board precedent on this issue is clear: In the absence of “good cause”, appeals must be filed within the time periods allowed by the rules. Certificate holders and their counsel need to understand and be aware of the deadlines for filing appeals in order to avoid finding themselves in the position of having to argue "good cause" for a delay. As the cases show, the good cause standard is not clearly defined and is very difficult to meet. The best bet is to be aware of, and to meet, the deadlines prescribed in the NTSB rules of practice.