In a recent opinion, the NTSB repeated its suggestion that the FAA improve its practices and procedures relating to service of orders in enforcement matters. Administrator v. McKinneyinvolved an airman’s appeal of the NTSB’s dismissal of his appeal of an FAA order of suspension. The ALJ dismissed the appeal as untimely and without good cause for the late filing. On appeal to the Board, the airman argued that his attorney’s illness and associated surgery constituted good cause for the untimely appeal. Unfortunately, but quite predictably, the Board determined that the attorney’s mistake in interpreting the Board’s rules regarding the service date of the FAA’s order of suspension, and the resulting due date of the notice of appeal, did not constitute good cause for the late filing. Similarly, the Board found that the attorney was engaged and capable of filing a notice of appeal or requesting a timely extension despite his illness and surgery. Neither the result of this case nor the Board’s analysis are a surprise.
However, what is interesting about this case is that the Board took the opportunity to repeat its previous comments regarding the FAA’s practices relating to service of orders. The Board observed that the term “served” is understood to mean “mailed” by the attorneys who are familiar with FAA enforcement cases, but in other legal contexts this term is typically understood by attorneys to mean “received”. It then noted that the confusion that often precipitates late appeals could be eliminated if the FAA’s order reflected the actual date by which the appeal needed to be filed. The Board concluded “some confusion might result if the FAA incorrectly calculates the deadline, but that also serves to highlight the confusion of respondents in trying to do so and urges us to again ask the Administrator to be more sensitive to this matter and to, at the very least, define the service date in her enforcement orders.”
Seems like a reasonable request to me.