The National Transportation Safety Board recently disregarded one of its Rules of Practice for enforcement hearings and affirmed an Administrative Law Judge’s (“ALJ’s”) refusal to dismiss a case whose hearing was not scheduled by the ALJ in accordance with Board rules. In Administrator v. Johnston the FAA issued an emergency revocation order revoking the airman’s commercial pilot certificate and first class medical certificate based on alleged violations of FARs 61.15(d) and (e) (two motor vehicle actions withing 3 years and failure to report a motor vehicle action within 60 days) and 67.403(a)(1) (prohibition against making fraudulent or intentionally false statements on an application for medical certificate). The airman appealed the order to the NTSB and the ALJ held the hearing 34 days after receiving the airman’s request for a hearing.
At the end of the hearing, the ALJ issued a decision affirming the violations as alleged by the FAA. The airman did not appeal the ALJ’s findings on the merits of the case. Rather, the airman appealed the ALJ’s decision based upon the procedural argument that the ALJ should have dismissed the case in accordance with the airman’s motion to dismiss before the commencement of the hearing, because the ALJ had violated 49 C.F.R. § 821.56(a) by not scheduling the hearing to occur within 30 days of the Board’s receipt of a request for hearing on the emergency revocation order (§ 821.56(a) provides that the “hearing shall be set for a date no later than 30 days after the date on which the respondent’s appeal was received and docketed”). The airman also argued that the Board did not show good cause for its failure to schedule the hearing within 30 days and that the failure amounted to a due process violation.
On appeal, the Board rejected the airman’s argument that the Board’s failure to comply with its own policy of scheduling hearings within 30 days was a jurisdictional issue. The Board noted that the airman had not identified any statute requiring the Board to set a hearing within 30 days of receipt of the airman’s appeal. Rather, the Board observed that the 30-day deadline is a self-imposed deadline designed to set forth the Board’s internal procedures for handling emergency orders.
In response to the airman’s argument that the Board has consistently held that briefs that parties submit that are untimely must be dismissed in the absence of a showing of good cause, the Board similarly noted the absence of any authority holding that the Board must establish that good cause existed for its delay. The Board further held that neither the ALJ nor the FAA had denied the airman due process of law because the airman had the opportunity to present and cross-examine witnesses at the administrative hearing.
Finally, the Board found that the airman had not shown that a “slight delay” in the Board’s scheduling of the hearing caused the hearing to be meaningless or otherwise caused the airman harm and, as a result, the delay in scheduling the hearing did not render the FAA’s complaint unenforceable.
Apparently the word “shall” in § 821.56(a) doesn’t apply to the Board, although it is strictly applied to airmen and the FAA when it appears in the Board’s other rules. Not sure why this is so when § 821.2 states that the provisions of Part 821 “govern all air safety proceedings.” Seems like authority to me.