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Equity Will Not Save An Airman From Dismissal Of A Late-Filed Appeal

By Reigel & Associates, Ltd.

In a recent case, Administrator v. Gallaway, the FAA issued an emergency order revoking the airman's private pilot certificate. The airman filed an appeal of the FAA's order with the NTSB over a week after it was due. The FAA then moved to dismiss the appeal based upon the untimely filing. The Administrative Law Judge ("ALJ") granted the FAA's motion finding that the airman did not have good cause for the untimely filing. The airman then appealed the dismissal to the full Board.

On appeal, the airman argued that his attorney's emergency hospitalization constituted good cause for the untimely filing. He also asked the Board to "consider the principles of equity, rather than [its] case law and Rules of Practice." The Board initially observed that it "strictly adheres to this standard of timeliness, and the requirement for a showing of good cause in cases of untimely appeals." It went on to note that it "considers timeliness in emergency cases to be paramount, given the expedited timeline applicable to emergency orders that Congress has prescribed by statute."

Addressing the airman's arguments, the Board found that the airman had not submitted affidavits or any other records to support his claim that his original attorney had been hospitalized and was unable to represent him. With respect to the airman's argument for the application of equity, the Board stated that it "will not alter our good cause standard in order to suit certain circumstances." As a result, the Board affirmed the ALJ's dismissal of the airman's appeal.

This decision isn't surprising, given the Board's longstanding position on this issue. Although the Board seems to be rejecting the airman's plea for equity/fairness, I don't think that is the case. The Board was still willing to allow an untimely appeal based upon a showing of "good cause." If the airman had presented any evidence to support his claim, he at least would have had a chance, although it may still not have been successful given the Board's exceedingly high standard for what constitutes "good cause." Unfortunately for the airman, the Board was not willing to ignore that standard in considering his untimely appeal.

Full post as published by Aviation Law Discussions on December 01, 2009 (boomark / email).