The 9th Circuit Court of Appeals has followed the recent U.S. Supreme Court Opinion in Jones v. Flowers in holding that due process requires the FAA to use a method reasonably calculated under all of the circumstances to reach an airman when providing notice of a suspension or revocation.
The case, Chin Yi Tu v. National Transportation Safety Board, arose out of an incident in which the FAA claimed that Mr. Tu had violated FAR 91.119  when he “buzzed” Mount Rushmore National Memorial and Crazy Horse Mountain during low flights by two different helicopters. Following the alleged incident, on September 27, 2002 the FAA sent letters of investigation to Mr. Tu via certified mail, but both were returned to the FAA as “refused”. Apparently Mr. Tu was away from his address of record traveling and had not authorized anyone to accept certified letters on his behalf in his absence.
The FAA then sent the same letters of investigation by first class mail addressed to Mr. Tu’s address of record. Mr. Tu received these letters and responded to the FAA within 10 days. On January 2, 2003, the FAA sent Mr. Tu a letter by first class mail informing him the FAA had concluded its investigation and had forwarded its report to the FAA’s regional counsel’s office. Subsequently, on March 6 and March 10, 2003, the FAA sent Mr. Tu notices of proposed certificate action (“NPCAs”) by both certified and first class mail proposing a 120-day suspension of his airman certificate.
Mr. Tu responded to the NPCAs sent by first class mail within 10 days and requested that the suspension orders be issued so that he could appeal directly to the NTSB. Subsequently, on March 28, 2003 and on April 8, 2003, the FAA sent Mr. Tu suspension orders that provided Mr. Tu with 20 days from the date of service within which to appeal to the NTSB.  However, both of the suspension orders were sent via certified mail only and not via first class mail.
When it did not receive a response to the suspension orders within 20 days, on May 19, 2003 the FAA then sent letters to Mr. Tu, by both certified and first class mail this time, demanding that Mr. Tu surrender his airman certificate. The letters also included copies of the orders of suspension that were previously returned to the FAA as unclaimed. Although the demand letters sent by certified mail were again returned as unclaimed, on May 23, 2003 Mr. Tu did receive the demand letters sent via first class mail. Subsequently, on May 30, 2003, within 20 days of receiving the first class mail copies of demand letters, Mr. Tu submitted a response to the National Transportation Safety Board appealing the suspension orders and requesting a hearing.
In response to Mr. Tu’s request for a hearing, the FAA filed a motion to dismiss arguing that Mr. Tu’s appeal and request for hearing was not timely since it was filed within 20 days of the date of the suspension orders that were sent via certified mail only. Mr. Tu’s responded to the motion and argued that his appeal would not have been late if the orders of suspension had been sent via certified mail and first-class mail because the first-class mail would have been forwarded to him. The administrative law judge determined that Mr. Tu’s argument did not constitute good cause  for the untimely filing and, accordingly, he granted the FAA’s motion to dismiss.
Mr. Tu then appealed the dismissal to the full NTSB. However, the Board affirmed the ALJ’s rejection of the pilot’s arguments holding that “the Administrator was not obligated to serve the respondent in multiple ways and constructive service of an order of the Administrator is valid under our rules of practice.”  The Board also noted that Mr. Tu could have advised the FAA to also send any orders of suspension via first-class mail “in an enforcement matter he knew was underway and in which he was expecting important documents.” 
The Board’s decision was not a surprise and, indeed, was consistent with Board precedent. However, the concurring statement of Board Member Hersman and the dissenting statement of Board member Healing were both interesting and, as it turns out, anticipated the 9th Circuit’s decision. Both of the members’ statements questioned the methods of service of process used by the FAA and the computation of the time within which a certificate holder can timely file an appeal.
Member Hersman pointed out that the FAA’s communications with certificate holders who are under investigation is not as clear or consistent as it might be. She felt many respondents do not understand the timing requirements for properly appealing an FAA order. She also noted that having the time in which to submit a response to an FAA order run from the “date of mailing”, as opposed to from the “date of receipt”, may be impractical “given the mobility of the population that these regulations are intended to cover and the time that it may take for them to receive the complaint.”  Finally, she noted that the Board has historically chosen to decide cases on their merits, and now it appears, in her opinion, that respondents may not be receiving due process when their appeals are dismissed based upon failure to comply with the timing requirements even though they may not have received the complaint in a timely fashion.
Member Healing’s comments were more direct. He noted that the case “once again illustrates how the FAA’s reliance on a flawed system of delivery can cause confusion and potentially unwarranted damage to an airman’s livelihood.”  He took issue directly with the “flawed mailing system” method of service of the complaint and with the use of the date of mailing for calculating the time for appeal. He also believed that the FAA’s letter should clearly reflect the date by which an appeal should be filed. He concluded that “when there is action against a certificate holder that will have a large impact on the recipient’s livelihood, it is imperative that there is a system in place that will ensure that appeals are decided on the merits and not on a procedural basis that relies –at least in part – on a seriously flawed process for serving notice.” 
As you might imagine, Mr. Tu was not happy with the Board’s decision. He felt the FAA had acted intentionally and denied him due process by failing to provide him adequate notice of the orders suspending his airman certificate, which precluded him from being able to submit a timely to appeal. And this is exactly what Mr. Tu argued in his petition to the 9th Circuit Court of Appeals seeking review of the NTSB’s decision.
Relying upon the U.S. Supreme Court’s decision in Jones, a case that was decided after the briefs were filed with the 9th Circuit but before oral argument, the Court granted Mr. Tu’s petition for review. Initially, the Court noted that due process did not require the FAA to provide “actual notice” to an airman before taking adverse action with respect to his or her certificate. Rather, due process requires notice “reasonably calculated, under all the circumstances” to provide an airman notice of an adverse action related to the airman’s certificate, in order to provide the airman with an opportunity to object to or appeal the adverse action.
The Court observed that certified mail would be constitutionally sufficient notice when “it was reasonably calculated to reach the intended recipient when sent.” However, in performing this calculation Court stated that “the government [must] consider unique information about an intended recipient regardless of whether a statutory scheme is reasonably calculated to provide notice in the ordinary case” and “where mailed notice is returned unclaimed, the government must take additional steps to insure notice, if it is practicable to do so.” 
Under the circumstances, the Court concluded that the FAA’s purported notice of the suspension orders was not reasonably calculated to reach Mr. Tu. The FAA knew that certified mail was not reaching Mr. Tu but that first class mail was reaching him. In spite of this knowledge, the FAA sent the suspension orders via certified mail and then failed to take additional reasonable steps (e.g. sending the suspension orders via first class mail) when one of the suspension orders was returned unclaimed.
The Court was particularly interested in the FAA’s mailing of letters to Mr. Tu using first class mail demanding surrender of his airman certificate. It noted that the demand letters were only sent after the time within which to appeal the suspension orders had expired and the FAA’s use of first class mail for the demand letters showed “that it would have been practicable to send the suspension orders by first class mail in the first instance.” The Court critically observed that “[a] reasonable agency actually desirous of notifying an individual of his right to be heard would not resort to a ‘mechanical adherence’ to the minimum form of notice authorized by regulation in the very instance when timely notice is most crucial.” 
The Court concluded that the FAA had denied Mr. Tu process by failing to provide him with adequate notice of the suspension of his airman certificate and thereby denying Mr. Tu the opportunity to timely appeal the suspension. Additionally, the Court put the FAA on notice that similar actions by the FAA in the future could constitute government action without substantial justification that would expose the FAA to liability under the Equal Access to Justice Act.  Specifically, the Court stated that “[p]ersistent use of certified mail when known not to reach addressee and refusal to use first class mail when known to reach addressee may well constitute such government action, as would government’s defense of its position in litigation after such knowledge was brought home to it.” 
This case is a good win for certificate holders. In the past, a certificate holder who failed to file an appeal within the time allowed, due to notice issues resulting from the method of service used by the FAA, was relegated to the unenviable, and mostly unsuccessful, position of attempting to argue “good cause” for the untimely filing. Now a certificate holder should be able to assert a due process defense when the facts indicate that an untimely appeal was due to the FAA’s failure to take reasonable steps to provide notice to the certificate holder of an adverse action.
This defense won’t be available in all circumstances. And the FAA could greatly minimize the availability of the defense by amending its service procedures to simply use both certified mail and first class mail. However, in the meantime, it may prove beneficial to airmen facing FAA motions to dismiss untimely appeals under similar circumstances.
1 Jones v. Flowers, 126 S. Ct. 1708 (2006).
2 470 F.3d 941 (9th Cir. 2006).
3 14 C.F.R. § 91.119 (2004)(minimum safe altitudes).
4 See 49 C.F.R. § 821.30(a) (2004).
5 See Administrator v. Kula, NTSB Order No. EA-5236 at 2, June 30, 2006 (citing Hooper v. NTSB and FAA, 841 F.2d 1150 (D.C. Cir. 1988) for an explanation of the Board’s policy requiring a respondent to show “good cause” for untimely filing of an appeal).
6 Administrator v. Chin Yi Tu, NTSB Order No. EA-5117 at 2, October 20, 2004.
7 Id. at 3.
8 Id. at 4.
9 Id. at 5.
10 Id. at 7.
11 470 F.3d 941, 945.
12 Id. at 946.
13 28 U.S.C. § 2412 (2006).
14 470 F.3d at 946, fn. 9.
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