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Petition For Reconsideration: Asking the NTSB to Change Its Mind

by Greg Reigel 1. February 2009 00:00
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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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Greg Reigel

Market Business Aviation

by David Wyndham 1. February 2009 00:00
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The past few months have not been kind to business aviation. The recession has hit everyone and general aviation is no exception. Sales fell off the cliff last fall taking residual values with it. And the non-aviation press is using business aviation as the poster-child for corporate greed and largess. First up for the hit were the Big-Three automakers. Next came any TARP funded folks. Several long time flight departments have closed and many more are shedding some of their aircraft. Just this past week Citi and Starbucks, under public and probably shareholder pressure, turned away their new business jets (no telling how many millions of dollars each will lose).

The NBAA is fighting the good fight, but they need our help. Somehow, the "public" has this impression of business aviation being made up of large business jets being used solely for entertainment. Yes, there is personal and entertainment use of business aircraft (Super Bowl anyone?). Yes, there are times when the aircraft is a corporate perk. But those are the small minority of the uses of these aircraft. Let's bust some myths!

Myth #1. Business aircraft are only for the "fat cats." The vast majority of business use aircraft are used to save time by senior executives, and for teams of workers, too. Productivity is important across the board, especially in lean economic times. But, "King Air Lands at Small Airport and Offloads Road Engineers" is not much of a headline. Those global jets are used to fly all over the globe. They can turn a weeklong trip via the airlines into a two-night trip.

Myth #2. Business aircraft means big jets flown by one or two people. The majority of the NBAA membership is made up of small flight departments. Many of those operate small jets, turboprops and pistons. They operate under tight budgets, face layoffs, and work very hard at getting people where the need to be when they need to be there. We need to show them "Joe the Flying Plumber."

Myth 3#. Getting rid of business aircraft is going to save a lot of money. I seriously doubt that. So the big company dumps the corporate jet. The next thing they do is to charter (good for the charter companies for sure). The need is still there. Even if folks start taking the (air)bus, how productive will they be? Whether it is an auto executive trying to mange plants, vendors and customers all over the world, or a small company with jobs scattered all over the state, aircraft make sense. Companies who lose the flexibility and productivity a business aircraft affords now must spend more time on the road and will have even less time to be productive and earn money.

What can we do? Ed Bolen at NBAA writes a great letter, but things would be better if those letters came from users. Especially the small companies with one aircraft. Invite the press to visit your airport. Show them how many jobs there are at the local airport. Remind them that the local airport is an attractive selling point to attract a new business to the area. Remind them that the Mooney on the ramp is a business aircraft, too.

Aviation means jobs, means productivity, and the vast majority of business aircraft are used for legitimate, necessary business purposes. For many, the aircraft is an essential business tool. Being proactive and framing the issue on our terms will have a lot more success than always being on the defensive.

"We need policymakers to advance proposals that allow companies in business aviation to survive and keep people working.

You can send Congress this reminder with a new e-mail message NBAA has prepared for use through the Association's online Contact Congress resource. Contact Congress - which has helped our industry make its collective voice heard on user fees, onerous TARP proposals, and other issues - is quick and easy to use.

I invite you to send your message to Congress today by accessing Contact Congress at www.nbaa.org/advocacy/contact." -Ed Bolen, President and CEO National Business Aviation Association

*Please see Ed Bolen's letter to the NBAA Membership. Please go to www.nbaa.org/advocacy/contact. click on TELL CONGRESS OF THE VALUE OF BUSINESS AVIATION and complete the short form so that the appropriate congressman receives your letter which is available for viewing before you submit it. Thank you.  

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David Wyndham



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