49 CFR 821.33 Stale Complaint Rule

17 Oct

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The Administrator’s reply brief asserts the law judge’s “finding that respondent did not
lack qualification was not in accordance with law, precedent, and policy.”  Admin. Reply at 5.
While our Rules of Practice permit either party to appeal a law judge’s oral initial decision, the
Administrator failed to file a notice of appeal in this case.  See 49 C.F.R. § 821.47(a).  Rule
48(b), defining the form content of an appeal brief, specifically notes “[a]ny error contained in
the initial decision which is not objected to in the appeal brief may be deemed waived.”  See 49
C.F.R. § 821.48(b)(3).8  Since the Administrator failed to file a notice of appeal in this case, we
decline to consider the Administrator’s untimely filed issue challenging the law judge’s finding
of fact as to lack of qualification and deem the issue waived under our Rules.9

  b.  49 C.F.R. § 821.33(a)—Good Cause and Public Interest

 In analyzing this stale complaint issue under § 821.33(a), we must determine whether the
FAA showed good cause existed for the delay or showed the imposition of a sanction was
warranted in the public interest, notwithstanding the delay.  On the issue of good cause, the Court
of Appeals for the District of Columbia Circuit noted in Ramaprakash v. FAA,

Zanlunghi, Brea, and Dill speak of potentially actionable conduct, of possible
violations, of conduct that may have violated the FAR, or of acts or omissions that
may indicate a violation.  None of the cases suggests that the FAA can wait until
it has confirmation of a violation before beginning to work diligently on issuing a
[Notice of Proposed Certificate Action].  This choice of language makes sense:  if
diligence is required, it should begin as soon as the ball is in the FAA’s court.  It
would make little sense to apply a requirement of diligence to only part of the
period during which a case demanded nothing other than FAA attention.  The
Board in these cases quite reasonably recognized that in some situations the FAA
may be completely ignorant of a potential violation for some time, but insisted

8 See also Administrator v. Ledwell, NTSB Order No. EA-5582 at 11 (2011).
9 While we stated “a lack of qualification is a factual finding that does not command deference”
in Administrator v. Millennium Propeller Sys., Inc., NTSB Order No. EA-5218 (2006), since the
Administrator failed to file a notice of appeal to attempt to challenge this finding by the law
judge, we consider the issue waived.

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that once the FAA is tipped off to a potential violation, it must act diligently if it
intends to show good cause for the overall delay.10

In this case, the FAA received a hit from the NDR on September 2, 2010.  See Exh. R-A.
The FAA initially sent a written request to New Hampshire for respondent’s driving record based
upon the NDR hit on September 7, 2010.  See Exh. R-B.  At the date of this request, respondent’s
third implied consent-related driving suspension had not yet occurred.  On January 5, 2011, the
FAA sent a second request to New Hampshire for respondent’s driving record.11  Id.  This second
request occurred several weeks after the December 20th driving suspension.  On February 14,
2011, the FAA received respondent’s driving record from New Hampshire and, as a result,
became aware of respondent’s potential third motor vehicle violation.  This driving record
included a copy of the police report from the November 2010 arrest, which led to the
December 20, 2010 driver’s license suspension.

 Despite these actions on the part of the FAA, we question whether the Administrator
acted diligently in pursuing this case from January 5th to February 14th .  Mr. Marks did not testify
as to why it took so long to retrieve the driving record from New Hampshire.  In fact, the search
date on Exhibit A-1 indicated the state of New Hampshire ran the report on January 12, 2012—
eight days after the FAA’s request.  Exh A-1 at 1.  The record contains no testimony or
explanation for the gap in time from January 12th to February 14th —the date the FAA stamped
the report as received.  Furthermore, the record contains no evidence Mr. Marks attempted to
10 346 F.3d 1121, 1128 (D.C. Cir. 2003) (citing Administrator v. Zanlunghi, 3 NTSB 3696, 3697
(1981), Administrator v. Brea, NTSB Order No. EA-3657 at 3-4 (1992) and Administrator v.
Dill, NTSB Order No. EA-EA-4099 at 10-11 (1994)).
11 Mr. Marks does not expressly address why the FAA sent a second request for the driving
record on January 5, 2011.  Presumably it was because the state of New Hampshire never
responded to the FAA’s September 2010 inquiry; however, we note an entry in respondent’s
driving record, dated September 23, 2010, which states, “CERTIFIED COPY SENT TO:

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