In a recent NTSB case, the Board reinstated an airman’s appeal from an order suspending his pilot certificate for alleged violations of FAR 91.123 (compliance with ATC) and FAR 91.13(careless and reckless operation). In Administrator v. Ocampo the FAA alleged that the airman taxied onto an active runway while another aircraft was on final approach, contrary to a “hold short” instruction from ATC. Upon receipt of the order of suspension, the airman faxed a “Memorandum for the Office of Administrative Law Judges” to the NTSB offices which specifically addressed the violations alleged in the FAA’s order. The NTSB considered this a valid Notice of Appeal.
The FAA then filed its order of suspension with the NTSB as its complaint. However, the airman never filed an answer in response to the FAA’s complaint. As a result, the FAA then moved for dismissal of the airman’s appeal based upon Board Rule 821.31(b) which provides that an airman’s failure to deny allegations in a complaint can be deemed admissions. The law judge subsequently granted the FAA’s motion.
On appeal, the airman argued that his Memorandum “responded factually to the allegations in the Administrator’s order/complaint and, therefore, ‘functioned precisely as an answer would have functioned'”. Based upon the specific nature of the airman’s Memorandum and the Board’s precedent, the Board agreed with the airman holding that the “intent of our rule requiring an answer is ‘to ascertain in advance of the hearing the scope and nature of the issues the airman wants to have adjudicated. In this case, respondent’s notice of appeal accomplished this purpose”.
This case worked out well for the airman because, unlike most cases, the airman specifically addressed the FAA’s allegations in his notice of appeal. Typically a notice of appeal simply advises the NTSB that the airman disagrees with the FAA’s proposed order. As a result, it is most often better practice for an airman to specifically address (admit or deny) the factual allegations contained in the FAA’s complaint within the time allowed by Board rule, rather than simply try to rely upon the airman’s notice of appeal. Better to be safe than sorry.
