In a recent enforcement action, the NTSB vacated an administrative law judge’s (“ALJ”) order dismissing an airman’s appeal of an FAA emergency order revoking the airman’s private pilot and second-class airman medical certificates. In Administrator v. Schmidt the FAA issued its emergency order and the airman then filed a notice of appeal of the emergency order with the NTSB. The airman also waived his right to the expedited emergency proceedings under NTSB Rules of Practice Part 821, Subpart I.
A short time later, the FAA attorney handling the case filed a notice of withdrawal with the ALJ based upon a belief that the FAA and the airman had settled the case. Two days later the ALJ issued an order terminating the proceeding. However, the airman filed a notice of appeal with the full Board appealing the ALJ’s dismissal. Both the airman and the FAA then agreed that no settlement existed and, as a result, they jointly asked the Board to vacate the ALJ’s order and remand the case for a hearing.
The Board determined that no formal settlement existed. It also noted that only the FAA’s attorney signed the notice of withdrawal filed with the ALJ. The Board remanded the case back to the ALJ for a hearing, but also stated that “[w]e would caution future litigants to avoid this practice to prevent confusion as occurred in this case.”
This case is slightly confusing. Typically, when an airman and the FAA reach a settlement, it is the airman’s aviation attorney who files a withdrawal of the airman’s appeal in exchange for the FAA issuing an amended order that contains the terms upon which the parties have agreed. If the FAA simply withdraws its order, then the airman’s original appeal is moot and the case is over, which would appear to be what happened in this case. But, since the airman appealed the ALJ’s dismissal, something else must have occurred that the Board did not address in its decision.
As is often the case, the Board’s decisions do not always convey the entire story. However, it appears the Board is suggesting that, in the future, both the airman and the FAA jointly sign a withdrawal. I’m not so sure this is necessary or that it is very practical. Only time will tell whether this is a significant issue for the Board. My guess is that only the unique circumstances of this case, all of which we do not know, resulted in the Board’s observation. But, we will see.