Aviation

must contain the name and address of the individual entitled to receive service of documents in the proceeding. 49 C.F.R. §
821.7(f).
After a petition for review is filed with the board, any party is permitted to take discovery without seeking prior Board approval. 49
C.F.R. § 821.19(a). The Federal Rules of Civil Procedure governing discovery are used “as a general guideline for discovery
practice,” although the rules and applicable case law are considered “instructive” and are not binding on the Board. 49 C.F.R. §
821.19(d). In addition, a party can obtain a subpoena for the production of documents or compel the attendance of witnesses from
the ALJ assigned to the case, or if none is assigned, from the chief law judge. 49 C.F.R. § 821.20(a).
The law judge assigned to the case then sets the date for a hearing. 49 C.F.R. § 821.37(a). Each party has the right to present a
case-in-chief or defense by oral or documentary evidence, submit evidence in rebuttal, and cross-examine witnesses. 49 C.F.R. §
821.38(a). In addition, hearsay evidence is admissible. Id. The parties are also afforded a reasonable opportunity to submit
proposed findings and conclusions to the ALJ prior to his “initial decision.” 49 C.F.R. § 821.39.
At the conclusion of the hearing, the ALJ renders his “initial decision”, either orally or in writing. 49 C.F.R. § 821.42(a). The initial
decision is binding if an appeal is not timely filed with the Board. 49 C.F.R. § 821.43. This initial decision is appealed by filing a
notice of appeal with the Board. The notice must be filed within 10 days after the initial decision was orally rendered or served if it
was a written decision. 49 C.F.R. § 821.47(a). 1 The petitioner then has either 50 days after an oral decision or 30 days after a
written decision to file an appeal brief with the Board. 49 C.F.R. § 821.48(a). The opposing party then has 30 days to file a reply
brief. 49 C.F.R. § 821.48(d). Requests for oral argument before the Board are usually not granted. 49 C.F.R. § 821.48(f). Review
by the Board is limited to a determination of whether the findings of fact are supported by a preponderance of the evidence; whether
conclusions are made in accordance with law, precedent, and policy; whether the questions on appeal are substantial; and whether
any prejudicial errors occurred. 49 C.F.R. § 821.49(a).
If the Board rules against a party on appeal, then the party may seek rehearing, reargument, reconsideration, or modification of the
Board order. 49 C.F.R. § 821.50(a). A petition seeking further relief must be filed within 30 days of service of the Board’s order. Id.
The opposing party has 15 days to file a reply. 49 C.F.R. § 821.50(e).
Thus, appeal to the Board is a two tiered process, the first half consists of a trial like process before an ALJ which results in an initial
decision. The second proceeding is a written appeal, usually without argument, of the ALJ’s decision to the Board. If the certificate
holder does not prevail, then the next step is appeal to the United States court of appeals as set out in section III, infra.
B. PROCEDURES IF THE ADMINISTRATOR HAS DECLARED AN EMERGENCY
Under normal circumstances, filing an appeal with the National Transportation Safety Board immediately stays any order by the FAA
Administrator. 49 U.S.C. § 44709(e). However, “the order of the Administrator is effective immediately if the Administrator advises
the Board that an emergency exists and safety in commerce or air transportation requires the order to be effective immediately.” If
the Administrator declares an emergency, the “Board shall make a final disposition of an appeal under subsection (d) not later than
60 days after the date on which the appeal is filed.” 49 U.S.C. § 44709(e)(4). Up until a few weeks ago, the Board could not review
the finding that an emergency exists.
Congress has just amended 49 U.S.C. § 44709, which governs amendments, modifications, suspensions, and revocations of
certificates. See 106 P.L. 181. Prior to the amendment, a determination by the FAA that a revocation was done on an “emergency”
basis meant that the revocation was effective during appeal to the NTSB. The NTSB could review the substance of the revocation,
but could not disturb the finding that there was an emergency requiring immediate action. The carrier’s only recourse was an appeal
of the “emergency” finding to a United States Court of Appeals and a request for a stay of the order pending appeal.
Congress, however, has changed this procedure by amending 49 U.S.C. § 44709(e), which gives a certificate holder the right to
immediately appeal the “emergency” finding to the board. The certificate holder must file a petition for review within 48 hours of the
FAA’s finding that there is an emergency affecting air safety. 106 P.L. 181, § 716(3). The Board then has five days after the
request for review is filed to make its ruling. Id. If it finds in favor of the certificate holder, then the order is stayed pending appeal.
Id. If the finding is against the certificate holder, then the statute is silent as to what, if any, further review is available. However, a
1 If a petitioner wishes, he may ask the ALJ to reconsider his decision within 10 days, which has the effect of moving the deadline
for appeal to the Board to 10 days after the ALJ rules on the request to reconsider. Id.
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