75
Federal Aviation Administration, DOT
§ 13.233
§ 13.233
Appeal from initial decision.
(a)
Notice of appeal. A party may ap-
peal the administrative law judge’s ini-
tial decision, and any decision not pre-
viously appealed to the FAA decision-
maker on interlocutory appeal pursu-
ant to § 13.219, by filing a notice of ap-
peal in accordance with § 13.210 no later
than 10 days after entry of the oral ini-
tial decision on the record or service of
the written initial decision on the par-
ties. The party must serve a copy of
the notice of appeal on each party in
accordance with § 13.211. A party is not
required to serve any documents under
§ 13.233 on the administrative law
judge.
(b)
Issues on appeal. In any appeal
from a decision of an administrative
law judge, the FAA decisionmaker con-
siders only the following issues:
(1) Whether each finding of fact is
supported by a preponderance of reli-
able, probative, and substantial evi-
dence;
(2) Whether each conclusion of law is
made in accordance with applicable
law, precedent, and public policy; and
(3) Whether the administrative law
judge committed any prejudicial er-
rors.
(c)
Perfecting an appeal. Except as fol-
lows in paragraphs (c)(1) and (2) of this
section, a party must perfect an appeal
to the FAA decisionmaker no later
than 50 days after entry of the oral ini-
tial decision on the record or service of
the written initial decision on the par-
ties by filing an appeal brief in accord-
ance with § 13.210 and serving a copy on
every other party in accordance with
§ 13.211.
(1)
Extension of time by agreement of
the parties. The parties may agree to
extend the time for perfecting the ap-
peal with the consent of the FAA deci-
sionmaker. If the FAA decisionmaker
grants an extension of time to perfect
the appeal, the FAA decisionmaker
must serve a letter confirming the ex-
tension of time on each party.
(2)
Written motion for extension. If the
parties do not agree to an extension of
time for perfecting an appeal, a party
desiring an extension of time may file
a written motion for an extension in
accordance with § 13.210 and must serve
a copy of the motion on each party
under § 13.211. Any party may file a
written response to the motion for ex-
tension no later than 10 days after
service of the motion. The FAA deci-
sionmaker may grant an extension if
good cause for the extension is shown
in the motion.
(d)
Appeal briefs. A party must file
the appeal brief in accordance with
§ 13.210 and must serve a copy of the ap-
peal brief on each party in accordance
with § 13.211.
(1) A party must set forth, in detail,
the party’s specific objections to the
initial decision or rulings in the appeal
brief. A party also must set forth, in
detail, the basis for the appeal, the rea-
sons supporting the appeal, and the re-
lief requested in the appeal. If the
party relies on evidence contained in
the record for the appeal, the party
must specifically refer to the pertinent
evidence contained in the transcript in
the appeal brief.
(2) The FAA decisionmaker may dis-
miss an appeal, on the FAA decision-
maker’s own initiative or upon motion
of any other party, where a party has
filed a notice of appeal but fails to per-
fect the appeal by timely filing an ap-
peal brief with the FAA decisionmaker.
(e)
Reply brief. Except as follows in
paragraphs (e)(1) and (2) of this section,
any party may file a reply brief in ac-
cordance with § 13.210 not later than 35
days after the appeal brief has been
served on that party. The party filing
the reply brief must serve a copy of the
reply brief on each party in accordance
with § 13.211. If the party relies on evi-
dence contained in the record for the
reply, the party must specifically refer
to the pertinent evidence contained in
the transcript in the reply brief.
(1)
Extension of time by agreement of
the parties. The parties may agree to
extend the time for filing a reply brief
with the consent of the FAA decision-
maker. If the FAA decisionmaker
grants an extension of time to file the
reply brief, the FAA decisionmaker
must serve a letter confirming the ex-
tension of time on each party.
(2)
Written motion for extension. If the
parties do not agree to an extension of
time for filing a reply brief, a party de-
siring an extension of time may file a
written motion for an extension in ac-
cordance with § 13.210 and must serve a
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14 CFR Ch. I (1–1–24 Edition)
§ 13.233
copy of the motion on each party in ac-
cordance with § 13.211. Any party choos-
ing to respond to the motion must file
and serve a written response to the mo-
tion no later than 10 days after service
of the motion The FAA decisionmaker
may grant an extension if good cause
for the extension is shown in the mo-
tion.
(f)
Other briefs. The FAA decision-
maker may allow any person to submit
an
amicus curiae brief in an appeal of an
initial decision. A party may not file
more than one brief unless permitted
by the FAA decisionmaker. A party
may petition the FAA decisionmaker,
in writing, for leave to file an addi-
tional brief and must serve a copy of
the petition on each party. The party
may not file the additional brief with
the petition. The FAA decisionmaker
may grant leave to file an additional
brief if the party demonstrates good
cause for allowing additional argument
on the appeal. The FAA decisionmaker
will allow a reasonable time for the
party to file the additional brief.
(g)
Number of copies. A party must file
the original plus one copy of the appeal
brief or reply brief, but only one copy
if filing by email or fax, as provided in
§ 13.210.
(h)
Oral argument. The FAA decision-
maker may permit oral argument on
the appeal. On the FAA decision-
maker’s own initiative, or upon writ-
ten motion by any party, the FAA de-
cisionmaker may find that oral argu-
ment will contribute substantially to
the development of the issues on appeal
and may grant the parties an oppor-
tunity for oral argument.
(i)
Waiver of objections on appeal. If a
party fails to object to any alleged
error regarding the proceedings in an
appeal or a reply brief, the party
waives any objection to the alleged
error. The FAA decisionmaker is not
required to consider any objection in
an appeal brief, or any argument in the
reply brief, if a party’s objection or ar-
gument is based on evidence contained
on the record and the party does not
specifically refer to the pertinent evi-
dence from the record in the brief.
(j)
FAA decisionmaker’s decision on ap-
peal. The FAA decisionmaker will re-
view the record, the briefs on appeal,
and the oral argument, if any, when
considering the issues on appeal. The
FAA decisionmaker may affirm, mod-
ify, or reverse the initial decision,
make any necessary findings, or re-
mand the case for any proceedings that
the FAA decisionmaker determines
may be necessary. The FAA decision-
maker may assess a civil penalty but
must not assess a civil penalty in an
amount greater than that sought in the
complaint.
(1) The FAA decisionmaker may raise
any issue, on the FAA decisionmaker’s
own initiative, that is required for
proper disposition of the proceedings.
The FAA decisionmaker will give the
parties a reasonable opportunity to
submit arguments on the new issues
before making a decision on appeal. If
an issue raised by the FAA decision-
maker requires the consideration of ad-
ditional testimony or evidence, the
FAA decisionmaker will remand the
case to the administrative law judge
for further proceedings and an initial
decision related to that issue. If an
issue raised by the FAA decisionmaker
is solely an issue of law, or the issue
was addressed at the hearing but was
not raised by a party in the briefs on
appeal, a remand of the case to the ad-
ministrative law judge for further pro-
ceedings is not required but may be
provided in the discretion of the FAA
decisionmaker.
(2) The FAA decisionmaker will issue
the final decision and order of the Ad-
ministrator on appeal in writing and
will serve a copy of the decision and
order on each party. Unless a petition
for review is filed pursuant to § 13.235, a
final decision and order of the Admin-
istrator will be considered an order as-
sessing civil penalty if the FAA deci-
sionmaker finds that an alleged viola-
tion occurred and a civil penalty is
warranted.
(3) A final decision and order of the
Administrator after appeal is precedent
in any other civil penalty action. Any
issue, finding or conclusion, order, rul-
ing, or initial decision of an adminis-
trative law judge that has not been ap-
pealed to the FAA decisionmaker is
not precedent in any other civil pen-
alty action.
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