AOPA Pilot Magazine - September 2020 - 26

FOR THE RECORD

What's in the mail?

BY JARED ALLEN

The clock is ticking on FAA correspondence

JARED ALLEN

is the AOPA
Legal Services
Plan senior staff
attorney and an
instrument-rated
private pilot.

THREE RECENT NTSB DECISIONS remind us that pilots
aren't just required to keep a current address on file with
the FAA, but that we're also responsible for continuously monitoring the mailbox for any correspondence
that the FAA may be inclined to send us-even when
we're traveling. Without making these arrangements,
pilots run the risk of missing critical deadlines often
included in FAA letters, and finding out firsthand that
a late response requires more than just a good excuse.
Each of the three unrelated cases began with the
FAA taking action to revoke the airman's certificate.
The first involved a mechanic who supposedly refused
a drug test, the second a student pilot accused of unauthorized solo flights, and the third an airline transport
pilot who was said to have flown without a valid medical certificate. In all these cases, an emergency order of
revocation was sent to the airman's address of record.
Under FAR 61.60, pilots and instructors are required
to update their permanent mailing address within 30
days of obtaining a new address, or they may not exercise their certificate's privileges. Notification must be
provided to the FAA in writing to the address stated in
the rule; it may also be updated through FAA's Airmen
Certification Online Services. If the mailing address
includes a post office box, then the airman's current residential address must also be provided. Other airmen, like
mechanics, have similar obligations under FAR 65.21.
In each case, the FAA sent the airman a copy of the
order by FedEx overnight; first class mail; and most
important, certified mail. Under the statute governing
FAA enforcement actions, the time frame to appeal an
order that is sent by certified mail begins to run on the
date the order was mailed by the FAA, not when the airman receives it. So, the 10-day window to appeal began
as soon as the FAA mailed the certified letter.
None of the airmen appealed the order in time. The
mechanic, whose appeal was determined to be two days
late, stated that she had been in another state seeking
employment opportunities. The student pilot, whose
appeal was found to be four days late, argued that he
appealed the same day he received the copy sent via firstclass mail, suggesting the COVID-19 pandemic delayed
delivery of the certified and FedEx copies. The ATP,
whose appeal was about three weeks late, attested that
he was away from his address of record, but that he filed
an appeal as soon as he learned about the FAA letter from
the landlord who'd been collecting his mail. An NTSB

26 | AOPA PILOT September 2020

law judge in each case issued an order rejecting the late
appeal, which each airman appealed to the NTSB.
Unfortunately for these airmen, the NTSB strictly
adheres to its longstanding precedent that it will not
entertain untimely appeals without a showing of good
cause for delay. To the NTSB, "Good cause is defined by
two criteria, which are factors outside of [the airman's]
control prevented him from knowing or acting upon
the [FAA's] emergency order and once he was aware,
he acted diligently to initiate his appeal."
In each case, the NTSB held that it was "not convinced" that circumstances beyond the airman's control
prevented him or her from knowing about the FAA's
emergency order. The student pilot's argument that the
late appeal was because of COVID-19 delivery delays
was rejected as tracking information showed the certified letter was left with an individual at his address
a week before the appeal deadline. In the cases of the
mechanic and the ATP, the NTSB found that neither
had taken sufficient steps to ensure they would receive
FAA correspondence while they were out of town, such
as having someone check the mail at their address of
record or providing the FAA a forwarding address.
The NTSB reached the same conclusion in all
three cases: The airman's failure to monitor receipt of
the mail does not establish good cause for delay in filing an appeal. "We have long held that our procedural
rules should be strictly applied," stated the NTSB, citing
precedent that "Undue laxity in the enforcement of the
board's procedural rules will hinder our administration
of justice in the long view by giving one party an unfair
advantage over the other, and by removing the essential element of predictability from board proceedings."
With their late filed appeals rejected, these airmen
lost the opportunity to challenge the FAA's revocation
of their certificates. To help avoid similar consequences,
keep your address updated with the FAA and arrange
to have your mail checked whenever you'll be away,
stressing the importance of being immediately notified
of any FAA mail. Free services like U.S. Postal Service
Informed Delivery also can help you monitor incoming
mail. No pilot wants an unexpected letter from the FAA,
but it's one you can't just return to sender.
AOPA
EMAIL jared.allen@aopa.org

The AOPA Legal Services Plan is offered as part of
AOPA's Pilot Protection Services (aopa.org/pps).

http://www.aopa.org/pps

AOPA Pilot Magazine - September 2020

Table of Contents for the Digital Edition of AOPA Pilot Magazine - September 2020