The NTSB recently rejected an airman’s argument that his untimely appeal was saved by his waiver of emergency procedures after the time for him to file his appeal pursuant to the emergency procedures had passed. In Administrator v. Converse, the FAA initiated an emergency proceeding revoking the airman’s commercial pilot, mechanic, and second-class airman medical certificates for allegedly falsifying his application for a medical certificate. Under 49 C.F.R. § 821.53, the airman had to file his appeal with the Board within 10-days. However, the airman filed his appeal and motion for leave to late-file his notice of appeal 10 days after the deadline. On the 11th day after the deadline the airman waived applicability of the procedures for emergency proceedings.
The FAA subsequently filed a motion to dismiss the airman’s appeal as untimely and the administrative law judge (“ALJ”) granted the motion and terminated the case. The ALJ determined that the airman’s appeal was untimely and the airman had not established good cause for his delay. The airman then appealed to the full Board.
On appeal, the airman argued his appeal was timely because he waived the application of the expedited procedures applicable to emergency cases. Initially, the Board reiterated its longstanding rule that it “will not entertain untimely appeals without a showing of good cause for delay.” It then observed that “the Board considers timeliness in emergency cases to be paramount, given the expedited timeline applicable to emergency orders.”
The Board then rejected the airman’s argument as “at best, a misinterpretation of our Rules of Practice.” The Board observed that Section 821.52(d) allows an airman to waive the accelerated time limits applicable to emergency cases, but that, “such a waiver shall not serve to lengthen any period of time for doing an act prescribed by this subpart which expired before the date on which the waiver was made.” As a result, the Board concluded that the airman was precluded from arguing the non-emergency deadline because he did not waive the applicability of the emergency procedures until after his appeal deadline under the emergency procedures expired.
Interesting argument. But, unfortunately for the airman, Section 821.52(d) was likely drafted with that argument in mind. As a result, climbing the nearly insurmountable mountain of “good cause” remains one of the few ways for an airman to save an untimely appeal.
