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Petition For Reconsideration: Asking The NTSB To Change Its Mind

By Gregory J. Reigel

February, 2009 All rights reserved.

What happens if an airman believes the National Transportation Safety Board ("NTSB") decided his or her case incorrectly? Does the airman have any recourse, short of appealing the NTSB's decision to the United States Court of Appeals? In this situation, the airman may file a "Petition for Reconsideration" that, in essence, asks the NTSB to change its mind. As you might imagine, the success rate for such petitions is limited and a review of the petition's requirements explains the limitations of this procedure.

When A Petition May Be Filed

Filing of a "Petition for Reconsideration and Request for Oral Argument" is governed by 49 C.F.R. 821.50. Section 821.50(a) provides that any party, including the FAA or a certificate holder, to a proceeding "may petition the Board for rehearing, reargument, reconsideration or modification of a Board order on appeal from a law judge's initial decision or order." The petitioner must file the petition with the Board within 30 days after the date of service of the Board's order on appeal from the Administrative Law Judge's ("ALJ") initial decision or order.

Not An Opportunity To Simply Repeat Arguments

Section 821.50(c) requires that the petition "state briefly and specifically the matters of record alleged to have been erroneously decided, and the ground or grounds relied upon." Section 821.50(d) further provides that the Board will not consider, and will summarily dismiss, repetitious petitions for reconsideration.

So, the airman needs to not only identify the specific issue(s) that the airman believes the Board decided incorrectly, but the airman must also explain the legal basis for the airman's assertion that the Boards decision is in error. Unfortunately, this is very similar to what the airman argued, or should have argued, when the underlying decision by the ALJ was initially appealed to the full Board. Although the arguments at that stage focused on the ALJ's determination of the issues, in most cases those same issues are before the Board when it first decides the case. As a result, after the Board decides the issues, it is difficult to assert the same arguments in a petition for reconsideration without being repetitious.

Many petitions for reconsideration are denied on the basis that they are repetitious of the arguments made by the airman in his or her initial appeal to the Board. Although the arguments in the petition may be more articulate than the arguments made in the initial appeal or may rephrase those arguments, if the underlying issues to be determined by the Board are the same, the Board will deny the petition as repetitious.

And it isn't too hard to understand why. A petition containing repetitious arguments is simply asking the Board to change its mind. Without more, the Board, like most adjudicative bodies, is not likely to simply reverse its decision and, in effect, admit that it was wrong. However, it is possible to give the Board additional information that is not repetitious of the initial appeal.

"New Matters" May Be Argued

Under Section 821.50, an airman may submit arguments in his or her petition based upon new matters provided the arguments are substantiated through affidavits, prospective witnesses, authenticated documents, or both. If such substantiation is unavailable, the airman must explain why that substantiation is unavailable. However, Section 821.50(c) qualifies this opportunity by requiring that an airman "explain why such new matter could not have been discovered in the exercise of due diligence prior to the date on which the evidentiary record closed."

In evaluating a "new matter," the Board requires that the airman must have exercised due diligence in preparing his or her case, whether for the hearing before the ALJ or in connection with an appeal to the Board. If the Board determines that the airman's due diligence would have or should have produced the new evidence the Board will not consider the evidence as a basis for reconsideration of its initial decision.

For example, when an airman discovers that the FAA will be presenting testimony of an individual at the hearing before the ALJ, proper due diligence requires that the airman not only prepare to address the witness's testimony, but to also investigate the witness and prepare evidence that may impeach the credibility of the witness and the witness's testimony. If the airman does not perform this investigation in preparation for the hearing, but later discovers impeaching evidence and attempts to argue that evidence in a petition for reconsideration, the Board will not consider that evidence because proper due diligence, in the Board's opinion, would have discovered the evidence. Thus, it is not new evidence.

In most instances, the airman's presentation of a "new matter" in his or her petition will not satisfy this due diligence requirement. The Board assumes and, indeed, requires that an airman prepares for and presents all available arguments when his or her case is tried before the ALJ. As a result, only evidence that was truly not available or discoverable through proper due diligence will be considered by the Board.

Conclusion

A petition for reconsideration is a limited opportunity to ask the Board to reverse its decision. It is an alternative an airman may, but is not required to pursue prior to appealing a decision to the U.S. Court of Appeals. However, in order to succeed, the airman will need to either prove that the Board's decision was legally incorrect or to present truly new evidence upon which the Board could base a reversal of its decision. In either situation, this is a difficult burden to meet.




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