If a certificate holder defends against an FAA certificate action all the way through hearing and is unhappy with the results (e.g. the ALJ sides with the FAA and rules against the certificate holder), it is still possible to appeal the ALJ’s initial decision. The FAA could be wrong. The ALJ may have made mistakes or decided the case incorrectly. Or all of the above. However, in order to stand any chance of being successful, an appeal requires compliance with the NTSB’s rules of procedure.
Where certificate holders sometimes fail is complying with the requirement that a party appealing an ALJ’s decision file both a Notice of Appeal AND an Appeal Brief. The Notice of Appeal is filed first. In a non-emergency case the Notice of Appeal must be filed within ten (10) days after the date on which the oral initial decision was rendered or the written initial decision or appealable order was served. In emergency cases the Notice of Appeal must be filed within two (2) days.
In order to then “perfect” the appeal, the party appealing the decision must file an Appeal Brief with the Board. In non-emergency cases the Appeal Brief must be filed within within fifty (50) days after the date on which the oral initial decision was rendered, or thirty (30) days after the date on which the written initial decision or appealable order was served. In emergency cases the Appeal Brief must be filed within five (5) days after the date on which the Notice of Appeal was filed.
If a party appealing a decision files the Notice of Appeal after the deadline, the Board will dismiss the appeal unless the appealing party shows “good cause” for the late filing (a ridiculously high standard set by the Board that is very difficult to meet). If a party appealing a decision does not file an Appeal Brief, or in the absence of good cause fails to file the Appeal Brief within the permitted time, the Board will dismiss the appeal.
Thus, the key points to remember for an appeal are (1) file your Notice of Appeal, (2) file your Appeal Brief, and (3) file them within the time permitted by the Board’s rules. The Board is very strict about compliance with its rules and requirements. So, if you don’t comply with the Board’s rules and you don’t have a really, really good reason for your non-compliance, the Board will dismiss your appeal.
