In a recent NTSB case, Administrator v. Chin Yi Tu, the Board upheld an ALJ’s dismissal of a pilot’s appeal of two FAA orders of suspension. Apparently the pilot was “away on travel” and not at his “official address”. In his absence, the FAA orders sent via certified mail were not accepted. The pilot argued that his appeal would not have been late if the orders of suspension had been sent via certified mail and first-class mail because the first-class mail would have been forwarded to him.
The Board affirmed the ALJ’s rejection of the pilot’s arguments holding that “the Administrator was not obligated to serve the respondent in multiple ways and constructive service of an order of the Administrator is valid under our rules of practice”. The Board also noted that the pilot could have advised the FAA to also send any orders of suspension via first-class mail “in an enforcement matter he knew was underway and in which he was expecting important documents”.
None of this is a surprise, nor is it inconsistent with Board precedent. However, what is of interest in this case, is the concurring statement of Board Member Hersman and the dissenting statement of Board member Healing. Both of these statements question the methods of service of process used by the FAA and the computation of the time within which a certificate holder can timely file an appeal.
Member Hersman’s points out that the FAA’s communications with certificate holders who are under investigation is not as clear or consistent as it might be in that she feels many respondents do not understand the timing requirements for properly appealing an FAA order. She also notes that having the time in which to submit a response to an FAA order run from the “date of mailing”, as opposed to from the “date of receipt”, may be impractical “given the mobility of the population that these regulations are intended to cover and the time that it may take for them to receive the complaint”. Finally, she notes that the Board has historically chosen to decide cases on their merits, and now it appears in her opinion that respondents may not be receiving due process when their appeals are dismissed based upon failure to comply with the timing requirements when they may not have received the complaint in a timely fashion.
Member Healing is more direct. He notes that this 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”. He takes issue directly with the “flawed mailing system” method of service of the complaint and with the use of the date of mailing for calculating the time for appeal. He also believes that the FAA’s letter should “clearly reflect the date by which an appeal should be filed”. (Doesn’t seem like that should be too tough for the FAA to do). He concludes that “when there is action against a certificate holder that will have a large impact on the recipient’s livelihood, it is imperative that there is a system in place that will ensure that appeals are decided on the merits and not on a procedural basis that relies at least in part “on a seriously flawed process for serving notice”.
These two Board members have definitely identified two issues in need of further thought and consideration. It will be interesting to see whether their views influence the FAA, and hopefully future Board decisions.
