• What is a waiver?
• Advice: Keep A Copy of Your Documents
• Details of the Appeal Process

What is a waiver?

If the FAA issues you an emergency order of revocation or suspension, you will be required to surrender your certificate to the FAA immediately (whereas, if the FAA’s order is not an emergency order and you appeal it to the Board, you can continue using your certificate as long as your appeal is pending with the Board).  Because an emergency order will, thus, deprive you of the use of your certificate right away, the applicable law and the Board’s Rules impose accelerated timeframes on the litigation process, so that you may not be deprived of the use of your certificate for longer than 60 days if you ultimately prevail in your appeal.  Among the accelerated timeframes provided for in the emergency rules is that a hearing before one of the Board’s judges must take place within 30 days of the date on which the Office of Administrative Law Judges receives the appeal.

However, there may be situations in which you would like to have more time before going to hearing.  For example, you may need additional time to hire an attorney or gather evidence in support of your defenses to the FAA’s charge(s).  For this reason, you may elect to waive the applicability of the Board’s emergency rules and their accelerated timeframes.  If you do this, the non-emergency timeframes and filing deadlines of the Board’s Rules will become applicable to your appeal.  However, if you are contemplating a waiver, there are two important things you should know.  First, you will still be unable to use your certificate while your appeal of the FAA’s order is pending.  Thus, if you ultimately prevail in your appeal, you stand to be deprived of the use of your certificate for longer than 60 days, sometimes significantly longer, depending on much time it takes for your appeal to be heard by a judge and, if the judge’s decision is appealed to the full Board, how long how long it takes for the Board to issue a decision on the appeal.  Second, a waiver cannot be used to extend any filing deadline that has already expired.  So, for example, if you waive more than 5 days after the FAA has served (i.e., mailed) its complaint, this will not extend the time you have to file an answer to 20 days, and you will need to show good cause for your failure to have filed an answer within 5 days of the complaint’s service.

You may telephone the Office of Administrative Law Judges to waive, but, if you do so, it is advisable that you confirm your waiver in writing.

Contact: (800) 854-8758 or (202) 314-6150

Advice: Keep A Copy of Your Documents

Make sure that you keep for yourself a copy of your appeal, the complaint, your answer and any other documents relating to this case in a file or folder, so that you have a record of them and can refer to them when you need to.

Details of the Appeal Process

- 1st Appeal: Appeal to Judge

1. Appeal or petition is filed with the NTSB’s Office of Administrative Law Judges.
2. Appeal/petition is assigned a docket number and is acknowledged by the that office’s Case Manager.
3. For appeals from orders of revocation, suspension or assessment of civil penalty, the FAA files a copy of the order that was issued to the certificate holder/respondent with a letter that designates the order as the FAA’s complaint.
4. Respondent then must file an answer admitting or denying each of the factual allegations stated in the complaint.
5. In all cases, including reviews of certificate denials, requests for discovery of information can be filed by both the FAA and the certificate holder/respondent or petitioner seeking review of certificate denial.
6. A hearing is set by the judge assigned to the case at an appropriate place (see 49 C.F.R. Section 821.37).
7. The hearing is held.  An Initial Decision, affirming, reversing or modifying the FAA’s action is issued by the judge.

- 2nd Appeal: Appeal to the Full Board

1. An appeal from the judge’s decision is filed with the Office of Administrative Law Judges, which sends the appeal and case record/docket to Board's Office of General Counsel.
2. An appeal brief is filed by the appealing party.
3. A reply brief is filed by opposing party.
4. The Board issues an order affirming, modifying or reversing judge's decision, or remanding the case to the judge for further proceedings.
5. If the Board affirms the FAA’s revocation, suspension or civil penalty assessment, and the certificate holder intends to appeal the Board’s decision to the U.S. Court of Appeals, a stay of the Board’s order may be requested.

- 3rd Appeal: Petition to U.S. Court of Appeals

1. The party appealing the Board’s decision files a petition in the U.S. Court of Appeals (D.C. Circuit or circuit in which the party resides).
2. The Board forwards a Certificate of Record to the Court of Appeals (the case docket is forwarded upon a request from the court).
3. Briefs are filed in the court by both parties.
4. The court holds oral argument.
5. The court issues a decision affirming, modifying or reversing the Board, or remanding the case to the Board for further action.