In a recent opinion issued by the NTSB, the Board has reiterated its recommendation that the FAA make procedural changes to its issuance of orders to reduce the number of untimely appeals the NTSB is forced to dismiss. In Administrator v. Graham, the FAA issued an order suspending a mechanic’s inspection authorization certificate for 90 days. The mechanic appealed the order, but his appeal was submitted to the NTSB two days late. In response to the FAA’s subsequent motion to dismiss the appeal as untimely, the airman argued that the FAA’s order was unclear as to its date and the resulting due date for his appeal. He also argued that the untimely filing was due to the “excusable neglect” of his attorney. Relying upon Board precedent, which only allows untimely filings if based upon “good cause,” the ALJ granted the FAA’s motion and dismissed the airman’s appeal of the FAA’s order. The mechanic then appealed the dismissal to the full Board.
On appeal, the mechanic repeated the arguments he submitted in opposition to the FAA’s motion to dismiss. Not surprisingly, the Board rejected the mechanic’s arguments based upon the same well established precedent upon which the ALJ relied. However, the Board went on to chastise the FAA for its procedures and handling of the case. The Board stated that “the deadline for submitting an appeal of the Administrator’s order may confuse respondents who are inexperienced in interpreting such administrative rules. We admonish the Administrator to reconsider the standard text included in orders, and encourage him to amend the text to include a definition of ‘service’ and to include the actual deadline on which each respondent’s appeal is due.” With respect to the case record, the Board observed that “[w]here the Administrator seeks to establish that the Board must dismiss a case based on a respondent’s lack of timeliness, the Administrator should be prepared in the future to provide a certificate of service, an affidavit from a person who mailed the subject notification or, at a minimum, establish the office’s common course of business through the affidavit of someone who regularly affixes date stamps and handles the transmittal of such orders.”
The Board then concluded that the FAA “should have included all the evidence regarding the timeliness of the appeal, including, where direct evidence is not available, items such as affidavits as to the notification and mailing practices of the FAA regional counsel’s office that is serving process in a particular case” and “should have produced more evidence, including a more particularized declaration from the office that dealt with the order.” However, since the mechanic admitted the tardy filing and did not actually contest the date of mailing of the order, the Board found that the minimal evidence of mailing presented by the FAA was sufficient to establish that fact.
We can learn several things from this case. First, keep in mind that the FAA has the burden of proof. Demand that the FAA prove its case and provide the additional evidence that the Board seems to be indicating it will require regarding proof of service. If you do not contest the date of service, the Board may simply accept the date on the order. Second, remember that untimely appeals must be supported by “good cause.” Board precedent clearly establishes that this is more than simply being confused about the due date for the appeal or that the appeal wasn’t mailed/sent when intended. The Board will require something more compelling, and an airman’s attorney’s mistake will not save the appeal.