A recent NTSB decision highlights the imperative of appealing an emergency order of revocation in a timely manner, and the continuing, near-insurmountable hurdle of trying to prove "good cause" if the appeal deadline is missed. In Administrator v. Muriuki the FAA issued an emergency order revoking the airman's medical certificate. Per 49 C.F.R. § 821.53(a) the airman had 10 days within which to appeal the order. The airman did not file his appeal until 4 days after it was due. However, it is possible for the Board to accept a late-filed appeal if the airman is able to show "good cause" for delay in filing. Unfortunately, the Board rejected the airman's "good cause" argument and rejected the late-filed appeal.
What is noteworthy about this case isn't the fact that the Board is strict about timing requirements for filing appeals. That isn't new. But what is important about this case is how the Board continues to reject legitimate "good cause" arguments asserted by airmen.
In this case, the FAA issued a notice of proposed certificate action ("Notice") in December 2017 with respect to the airman's medical certificate. The emergency order revoking the airman's medical certificate was not issued until April 13, 2018. During the time period from December 2017 through mid-April 2018 the airman was traveling away from his home but had made arrangements for someone to check his mail. However, the person who was supposed to be checking the airman's mail never checked the mail when the FAA issued the emergency order and so the airman was not aware that the order was issued.
Rather, on April 20, 2018 the airman went in to apply for a new medical certificate and was told by the aviation medical examiner ("AME") that he could not issue a medical and the airman should contact the FAA directly for more information. The airman called the the FAA on April 20, April 23, and April 24, and, finally, on April 25, 2018 someone from the FAA told the airman that the FAA had sent him something in the mail, although the individual apparently did not tell the airman exactly what had been sent.
So, the airman then contacted the person who was supposed to be checking his mail who then confirmed to the airman that the emergency order was sent to the airman. The airman retained an attorney that day and, after the attorney contacts the FAA attorney the following day to obtain a copy of the order, the attorney filed an appeal on behalf of the airman on April 27, 2018 - a mere 4 days after it was otherwise due.
In analyzing the case the Board observed that "good cause" is defined by two criteria: (1) factors outside of respondent's control prevented him from knowing or acting upon the emergency order, and (2) once he was aware, he acted diligently to initiate his appeal. Based upon the facts, the Board believed that the airman's arrangements for having his mail checked were inadequate because the airman did not explain how often his mail was being checked and admitted that during the week when the emergency order was issued the mail was not checked at all.
It was also unhappy with the fact that the airman followed the AME's instructions and attempted to contact the FAA to find out what was going on, rather than going back and checking his mail. According to the Board, the airman also could have contacted the FAA investigator handling the case and he should have done more to assure that the mail was checked and he was notified if/when something from the FAA was received. Thus, it concluded that it was not convinced circumstances beyond the airman’s control prevented him from knowing about the emergency order.
And even if that weren't the case, the Board went on to find that the airman's actions after the AME refused to issue him a medical did not show diligence. The Board faulted the airman for only trying to call the FAA and waiting 5 days before going back to have his mail checked. (Of course this ignores the fact that it took the airman 5 days to get an answer out of the FAA, and an incomplete answer at that).
At the end of the day, this case makes clear, yet again, that you can expect the Board to be almost completely unforgiving if you file an appeal late. Although you may request that the Board accept the late-appeal based upon "good cause", please realize that the burden of proving "good cause" is nearly insurmountable.
So, if you are the subject of an FAA investigation, make sure you check your mail every day. If you can't, have someone you trust check it for you. And if you receive something from the FAA, don't ignore it. Open it immediately. The time for you to defend and protect your rights may already be ticking. And if you do receive an order, emergency or otherwise, from the FAA, do not delay in taking action. It is much better to argue the merits of an FAA decision rather than whether you met the timing requirements for an appeal of the FAA's decision.
Since the FAA began implementing its new compliance philosophy last year, fewer case are being appealed to the NTSB. However, it appears that the cases that are being appealed the most are emergency orders of either suspension or revocation. As you may recall from past articles, when a certificate holder appeals an emergency order to the NTSB, emergency procedures apply to the case which require that a hearing be held within 30 days after the appeal is filed. Other deadlines are also much shorter under the emergency procedures than they are under the procedures for a non-emergency appeal. The purpose for the accelerated hearing and deadlines is to ensure that a certificate holder whose certificate has been suspended or revoked on an emergency basis (i.e. the order is effective immediately) receives a hearing and decision as soon as possible to minimize the impact of the suspension or revocation if the NTSB administrative law judge ("ALJ") ultimately reverses the FAA's order.
But in some situations, this expedited timeline can also be a problem for a certificate holder who may need more time to properly prepare for a hearing. So, it is also possible to waive the emergency procedures in an appeal of an emergency order. Whether the emergency procedures should be waived is a decision that will depend upon the circumstances of each case. But the certificate holder must be sure to comply with the deadlines applicable to the case, whether under the emergency or non-emergency procedures. Failure to comply can result in harsh consequences. If a certificate holder is going to waive the emergency procedures, the waiver should occur before any applicable deadline has passed. A recent decision by the NTSB illustrates the unfortunate consequences of an untimely waiver.
In Administrator v. Jimenez; the airman appealed an emergency order revoking his commercial pilot certificate. The airman appealed the order to the NTSB, but failed to file his answer to the FAA's complaint within the five days required by the Board's emergency procedures. As a result, the FAA subsequently filed a motion to deem the facts admitted and requesting summary judgment. One day after the FAA filed its motion, the airman waived the emergency procedures and filed his answer which would have still been timely under the proceedures applicable to a non-emergency case. In the absence of good cause for the late filing, the ALJ granted the FAA's motion based upon the airman's failure to timely file his answer. The airman then appealed the ALJ's decision to the full Board.
On appeal, the airman argued that his answer was timely under the non-emergency procedures that were applicable to the case once the airman had waived the emergency procedures. However, the Board rejected the airman's argument. While the Board observed that Section 821.52(d) permits an airman to waive the the accelerated time limits applicable to emergency cases, it then referred to the rule's limitation that “such a waiver shall not serve to lengthen any period of time for doing an act prescribed by this subpart which expired before the date on which the waiver was made.” Thus, the Board held that the express language of the rule precluded the airman's argument that the 20-day deadline, which would apply in a non-emergency case, was applicable because the airman did not waive the the emergency procedures until after the time to file his answer expired.
The rules for emergency and non-emergency cases can sometimes be confusing. And, unfortunately, the consequences of failing to comply with the rules can be significant. This case is yet another example of why it makes sense to have an experienced aviation attorney assist you with appeal of an FAA order of suspension or revocation. If you find yourself in this situation, make sure you get the help you need.