The issues of whether an appeal was filed in time or, if it wasn’t, whether good cause existed for the delay, continue to plague airman and perplex the Board. In fact, the Board recently remanded a case so that a more complete factual record could be developed in order for the Board to be able to properly analyze these two issues.
In Administrator v. Lavigne, the FAA issued an order suspending the airman’s ATP certificate for 90 days for allegedly violating FAR 91.13 (careless and reckless). The FAA sent the order of suspension to the airman by certified mail on November 22, 2005. However, the Postal Service returned the certified mail to the FAA as “unclaimed” on December 10, 2005. Subsequently, on December 15 the airman’s counsel filed a notice of appeal. The FAA then filed a motion to dismiss the airman’s appeal as untimely arguing that service of the order of suspension was accomplished on November 22, 2005, and that, pursuant to Rule 30(a) of the Board’s Rules of Practice (requiring that notice of appeal be filed within 20 days), the airman’s appeal was due no later than December 12, 2005.
In response, the airman argued that she did not receive the November 22, 2005 order and that service of the order of suspension by certified mail was thus not accomplished because the order was returned unclaimed. As a result, the airman argued that the Board’s precedent regarding actual or constructive notice applied and her appeal was thus timely.
In analyzing the FAA’s motion, ALJ Pope strictly applied 49 U.S.C. § 46103(b) (date of service made by certified or registered mail is the date of mailing) and determined that the airman’s notice of appeal was untimely. He then determined that the airman did not demonstrate good cause for her untimely filing because her failure to collect her certified mail sooner demonstrated a “lack of due diligence on the certificate holder’s part in monitoring … her mail.” ALJ Pope then granted the FAA’s motion and dismissed the airman’s appeal.
On the airman’s appeal of the dismissal, the NTSB observed that the following questions needed to be resolved: “(1) whether the Administrator achieved service by certified mail even though it was returned unclaimed; (2) if not, whether the Administrator otherwise served respondent with a copy of the order; (3) if the Administrator did serve respondent with the order, when such service occurred so as to determine whether respondent’s notice of appeal was timely filed; and (4) if respondent’s appeal was untimely filed, whether she has demonstrated good cause for her tardiness.”
Prior to addressing the questions, the Board made it a point to observe that it was aware of the recent U.S. Supreme Court case, Jones v. Flowers (an agency must use a method reasonably calculated to reach the intended recipient for notice to be effective), and mindful of its long-standing precedent contained in Administrator v. Beissel (good cause required for untimely appeal), as well as the actual or constructive notice doctrine contained in Administrator v. Corrigan.
Based upon this precedent, the Board observed that the underlying record did not contain sufficient evidence for it to answer the questions before it: “For example, on this record, it appears that the Administrator solely relied upon certified mail to provide respondent with notice of her order of suspension. Moreover, without evidence of any other efforts by the Administrator to provide notice to respondent, or evidence regarding the timing and method of respondent’s receipt of actual notice of the Administrator’s order, we are also unable to assess accurately the relevance of Carlos, supra, and our pre-Corrigan precedent regarding actual or constructive service to the facts in this case.”
As a result, the Board remanded the case to ALJ Pope for further proceedings regarding the timeliness of the airman’s notice of appeal, and, if it is deemed untimely, whether the airman nonetheless acted with due diligence after receiving such notice so as to demonstrate good cause for the tardy filing.
Although this is not a complete victory for the airman, perhaps ALJ Pope will pay more attention to her arguments on remand and properly apply the applicable law and precedent. However, I wouldn’t be surprised to see this case back before the Board after remand. And that wouldn’t necessarily be a bad thing. With a more complete record, perhaps the Board will be able to establish some NTSB precedent that will clarify the notice issue and require the FAA to use reasonable methods under all circumstances to provide notice to airman of orders of suspension or revocation.
