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.
It isn't uncommon for someone to be unhappy with an FAA decision. Fortunately, our laws provide a mechanism for appealing or objecting to certain final orders or decisions issued by the FAA. Specifically, 49 U.S.C. § 46110(a) provides that a person with a substantial interest in the FAA's order/decision "may apply for review of the order by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit or in the court of appeals of the United States for the circuit in which the person resides or has its principal place of business." The petition must be filed not later than sixty (60) days after the order is issued unless reasonable grounds exist for filing later than the 60th day.
However, in order for an FAA order to be subject to review by a court, the order must be "final." What does it mean to be "final"? Well, the courts have held that two requirements must be met: (1) the FAA's action must evidence the completion of the agency's decisionmaking process, rather than simply tentative or subject to further consideration; and (2) the FAA's action must determine certain rights or obligations, or result in legal consequences. Courts also consider whether the decision or order is at a stage where judicial review would interfere with or disrupt the FAA's administrative/decisionmaking process.
So, for example, if the FAA issues a letter merely restating a previously adopted interpretation of a regulation, that would not be considered a a "final" decision. However, if the FAA issued a new interpretation or clarified an existing interpretation, in either of those instances it is quite possible that the FAA's action would be considered a "final" decision subject to appeal.
Additionally, if the FAA issues a letter or notice in which it indicates that a party's practices may potentially violate the law, that letter or notice may not necessarily be the completion of the agency's decisionmaking process such that it determines a party's legal rights or obligations. For example, neither a letter of investigation nor a notice of proposed certificate action is considered final agency action because the FAA hasn't yet determined whether it will actually pursue enforcement action and issue a final order subject to appeal.
As a result, if you are concerned about something the FAA says or does, before you run to the courthouse to file a petition asking a Judge to tell the FAA it is wrong, make sure the FAA's action is actually a "final" action subject to judicial review. Otherwise, you could end up wasting time and money only to have the Judge tell you that the Court doesn't have the authority to even consider your arguments.
If you hold an airman certificate you know, or at least you should know, that you are subject to the reporting requirements of 14 C.F.R. §61.15. That is, §61.15(e) requires an airman to report a motor vehicle action ("MVA") to the FAA Civil Aviation Security Division within 60 days. The written report must include: “(1) The person's name, address, date of birth, and airman certificate number; (2) The type of violation that resulted in the conviction or the administrative action; (3) The date of the conviction or administrative action; (4) The State that holds the record of conviction or administrative action; and (5) A statement of whether the motor vehicle action resulted from the same incident or arose out of the same factual circumstances related to a previously reported motor vehicle action.”
What is an MVA? According to the regulation an MVA is (1) a violation of any Federal or State statute relating to the operation of a motor vehicle while intoxicated by alcohol or a drug, while impaired by alcohol or a drug, or while under the influence of alcohol or a drug; (2) the cancellation, suspension, or revocation of a license to operate a motor vehicle, for a cause related to the operation of a motor vehicle while intoxicated by alcohol or a drug, while impaired by alcohol or a drug, or while under the influence of alcohol or a drug; or (3) the denial of an application for a license to operate a motor vehicle for a cause related to the operation of a motor vehicle while intoxicated by alcohol or a drug, while impaired by alcohol or a drug, or while under the influence of alcohol or a drug.
It is important to realize that this definition includes more than just being arrested for or convicted of a DWI, OWI etc. A civil action that often accompanies a DWI arrest in most states and that results in suspension of the driver's license is also considered an MVA. Thus, an arrest for DWI could create the obligation for an airman to provide multiple reports to the FAA depending upon how the civil and criminal cases proceed. And if an airman fails to report an MVA, §61.15(f) states that he or she could be subject to (1) Denial of an application for any certificate or rating for a period of up to 1 year after the date of the arrest; or (2) Suspension or revocation of any certificate or rating.
But what happens if you hold an airman certificate but you no longer hold a medical certificate, or you have "retired" from flying? Are you still subject to this reporting requirement? The short answer is "yes", as a recent NTSB decision explains. In Administrator v. Street, the airman was an experienced airline pilot who failed to report four MVAs arising from two DWIs. When the FAA found out, it issued an order suspending the airman's ATP certificate for 240 days. On appeal, the administrative law judge ("ALJ") agreed that the airman had violated sections 61.15(d) and (e) but determined that the sanction should only be a thirty day suspension.
Not surprisingly, the FAA was unhappy with that decision and appealed to the full Board. The FAA argued that the 240 days should stick and, of course, the airman argued that the ALJ's decision should stand. Specifically, the airman argued that at the time of the violations he did not have a medical certificate and was not actively flying, which should serve as mitigating factors in support of the lower sanction. However, the Board rejected that argument stating the reporting requirements of §61.15(e) are applicable to an airman who temporarily “retires” from flying. The Board explained that "[w]hile respondent testified that he did not plan to return to flying, his obligation to comply with the FARs continued regardless of whether he was actively flying at the time the MVAs occurred. Sections 61.15(d) and (e) are exclusively concerned with conduct outside the scope of an airman’s certificate. It is immaterial whether respondent was actively flying or had a medical certificate at the time the MVAs occurred because his status as an ATP certificate holder rendered the requirements of §§ 61.15(d) and (e) applicable to him."
So, the moral of the story is: If you hold an airman certificate, you need to be familiar with, and comply with, the requirements of §61.15. Until you no longer hold your airman certificate (whether the certificate has been surrendered, suspended or revoked) you will need to report any MVA to the FAA.
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.
If an airman tests positive for drug metabolites on a drug test but he or she didn't take the drugs, what can the airman do? Well, arguing that he or she somehow unknowingly or inadvertently ingested the drugs isn't going to save the day. A recent decision by the National Transportation Safety Board ("NTSB") rejected an airman's "unknowing ingestion" affirmative defense in that very situation.
In Administrator v. Hermance the airman submitted to a random drug test which indicated that the airman tested positive for cocaine metabolites. As in almost every case, the FAA revoked all of the airman's certificates based upon the positive drug test. The airman then appealed the revocation to the NTSB.
Prior to a hearing, the FAA moved for summary judgment arguing that the positive drug test and the airman's admission that the test was positive presented a prima facie case that the airman had violated the applicable drug testing and medical qualification regulations. The ALJ agreed that the FAA had proven its case, but the ALJ ordered a hearing to allow the airman to present evidence regarding his affirmative defenses, one of which was that he had unknowingly ingested the cocaine.
At the hearing before the NTSB administrative law judge ("ALJ"), the airman was adamant that he did not do drugs and had not ingested cocaine. He even paid several visits to his physician who was unable to determine how the cocaine metabolites ended up in the airman's urine. The airman's wife and several other witnesses also testified that the airman did not do drugs.
At the end of the hearing, the ALJ ruled that the airman's claim that he unknowingly ingested the cocaine was not a "reasonable medical explanation" for a positive drug test under DOT regulations. The ALJ determined that neither the airman nor any of his witnesses offered an explanation or reasonable theory for how the airman's tested urine specimen contained cocaine metabolites. In the absence of the necessary proof, the ALJ found the airman failed to satisfy his burden of proving his affirmative defense of unknown ingestion. As a result, the ALF affirmed the FAA's revocation order.
On appeal to the full Board, the airman again argued that he had proven his affirmative defense of unknown ingestion which explained and excused the positive drug test result. The Board initially observed that the airman had the burden of proving not only that unknowing ingestion was a legally justifiable excuse but also that he factually proved that affirmative defense.
The Board then cited 49 C.F.R. § 40.151(d), which specifically and categorically rejects the defense of unknown ingestion:
For example, an employee may tell [medical review officers (MROs)] that someone slipped amphetamines into her drink at a party [or] that she unknowingly ingested a marijuana brownie....MROs are unlikely to be able to verify the facts of such passive or unknowing ingestion stories. Even if true, such stories do not present a legitimate medical explanation. Consequently, [MROs] must not declare a test as negative based on an explanation of this kind.
The Board also observed that its precedent has consistently rejected unknown ingestion as a legitimate medical explanation for a positive drug test result.
However, even though the unknown ingestion affirmative defense was previously rejected, the Board concluded that the ALJ's granting a hearing to the airman regarding the affirmative defense was appropriate because it allowed the airman a full opportunity to offer evidence to support a legitimate medical explanation, if one existed. Unfortunately for the airman, the Board affirmed the ALJ's determination that the airman's evidence did not suffice to establish that he never ingested cocaine or that a legitimate medical explanation existed for the presence of the cocaine metabolites in his urine.
Thus, the affirmative defense of "unknown ingestion" or "inadvertent ingestion" will not, without more, save an airman from a positive drug test result. Fortunately, the airman should have an opportunity to prove some other legitimate medical explanation for the positive result. However, the airman will have the burden of proof; a burden that, unfortunately, is often not easy to meet. But at least it is a chance.