In the past, I have discussed the fatal effect of untimely appeals in the FAA certificate action context. A recent series of decisions reveals that failure to timely appeal a decision or file an appeal brief is also fatal to appeals in FAA civil penalty actions. Under 14 CFR 13.233, an appeal must be filed within 10 days of the ALJ’s initial decision, if oral, or 10 days from the date of service of the initial decision, if written. The appeal is then perfected by filing an appeal brief within 50 days of the ALJ’s initial decision, if oral, or 50 days from the date of service of the initial decision, if written.
In the Matter of Seaquest Expeditions discloses a case in which Seaquest filed a timely appeal of the ALJ’s written decision, but then failed to perfect the appeal by timely filing its appeal brief. In fact, Seaquest didn’t ever file an appeal brief. As a result, the FAA’s motion to dismiss the appeal was granted.
In the matter of Blong Xiaong is another situation in which the appeal was accepted as timely filed (even though it was sent to the wrong office), but the appeal was never perfected by the timely filing of an appeal brief. Similar to Seaquest, Xiong never filed an appeal brief and the FAA’s motion to dismiss was granted on that basis.
In the matter of Aero-Tech, Inc. is also a case in which a timely appeal was filed, but then the appeal was never perfected with the timely filing of an appeal brief. In the absence of a timely appeal brief or a request for an extension within which to file the brief, Aero-Tech’s appeal was dismissed.
In the matter of Keith P. Staley involved a failure to timely file an appeal. In this case, Staley did not submit an answer to the FAA’s complaint nor did he respond to the ALJ’s procedural order or order to show cause. In fact, Staley also failed to attend the hearing. However, after the hearing and resulting written initial decision against Staley, he did file an appeal of that decision. Unfortunately, he filed the appeal six days late without citing any reason for the tardy filing. As a result, his appeal was dismissed.
As you can see, untimely filing or failure to file in a civil penalty action will result in dismissal of an appeal just as quickly and just as finally as in a certificate action. Although it is possible to request an extension of time within which to file, this may or may not be granted. If a deadline is not met, you will need to show good cause for the untimely filing in order to avoid dismissal. Unfortunately, good cause is a high standard that is difficult to meet. It is also not precisely defined in the rules. In order to preserve your appeal rights and avoid having to request an extension or otherwise meet the burden of establishing good cause, you should file within the time period allowed by the rules.
