In a recent NTSB opinion, Administrator v. Ordini, the Board criticized the FAA’s practices relating to service of Orders of suspension/revocation on certificate holders. Although the Board upheld Judge Pope’s dismissal of the airman’s appeal from an order of suspension as untimely, it noted that “this case provides us with an opportunity to make some general observations about the need for improvement in FAA’s practices and policies concerning service.” The Board pointed out that the majority of orders do not note the date of service nor do they include a certificate of service. Thus, the certificate holder is not readily provided with a date certain from which to calculate the twenty day appeal period.
Further, the Board noted “that some of the FAA orders we have reviewed do specify the service date in one or more of these ways, and we commend the FAA for the clarity of those orders,”… but “the FAA’s practices are inconsistent among, and even within, its regions. Thus, there is clearly room for further improvement.” The Board concluded that “we think many of the orders issued by the FAA still create a significant potential for confusion regarding determination of the appeal-filing deadlines. This potential confusion could be reduced or eliminated by more careful attention to the format and wording of these orders.”
Additionally, Board member Healing wrote a concurring opinion that was equally as pointed as her dissenting opinion in Administrator v. Tu which identified the “flawed” system used by the FAA. Member Healing begins by stating “[t]his 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.” After discussing the flaws in the system, Member Healing concludes that “[i]t is unfortunate that we have to dismiss cases on procedural grounds for late appeals. If we had in place a system of delivery in which we had confidence and assurance that recipients have been actually and properly served, it would make these decisions much easier and remove the ambiguity that continually clouds these appeals. I would urge the FAA to examine its process and seek solutions to repair this flawed notification delivery system.”
The Board’s opinion along with Member Healing’s concurring opinion make it very clear that the FAA’s current procedure has problems and is not acceptable. Unfortunately, the Board does not have the ability to dictate policy for the FAA. It is required to follow the rules. Hopefully someone at the FAA will pay attention to this opinion, if they haven’t paid attention to the other recent cases addressing this issue. However, don’t hold your breath waiting.
