§ 13.233 - Appeal from initial decision.

§ 13.233 Appeal from initial decision.

(a) Notice of appeal. A party may appeal the administrative law judge's initial decision, and any decision not previously appealed to the FAA decisionmaker on interlocutory appeal pursuant to § 13.219, by filing a notice of appeal with the FAA decisionmaker. A party must file the notice of appeal in the FAA Hearing Docket using the appropriate address listed in in accordance with § 13.210(a). A party shall file the notice of appeal not no later than 10 days after entry of the oral initial decision on the record or service of the written initial decision on the parties and shall . 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 considers only the following issues:

(1) Whether each finding of fact is supported by a preponderance of reliable, probative, and substantial evidence;

(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 errors that support the appeal.

(c) Perfecting an appeal. Unless otherwise agreed by the parties Except as follows in paragraphs (c)(1) and (2) of this section, a party shall must perfect an appeal , not to the FAA decisionmaker no later than 50 days after entry of the oral initial decision on the record or service of the written initial decision on the party, parties by filing an appeal brief with the FAA decisionmaker. in accordance 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 appeal with the consent of the FAA decisionmaker. If the FAA decisionmaker grants an extension of time to perfect the appeal, the appellate docket clerk shall FAA decisionmaker must serve a letter confirming the extension 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 with the FAA decisionmaker and shall 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 extension 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 motion.

(d) Appeal briefs. A party shall must file the appeal brief with the FAA decisionmaker and shall in accordance with § 13.210 and must serve a copy of the appeal brief on each party in accordance with § 13.211.

(1) A party shall must set forth, in detail, the party's specific objections to the initial decision or rulings in the appeal brief. A party also shall must set forth, in detail, the basis for the appeal, the reasons supporting the appeal, and the relief requested in the appeal. If the party relies on evidence contained in the record for the appeal, the party shall must specifically refer to the pertinent evidence contained in the transcript in the appeal brief.

(2) The FAA decisionmaker may dismiss an appeal, on the FAA decisionmaker's own initiative or upon motion of any other party, where a party has filed a notice of appeal but fails to perfect the appeal by timely filing an appeal brief with the FAA decisionmaker.

(e) Reply brief. Unless otherwise agreed by the parties Except as follows in paragraphs (e)(1) and (2) of this section, any party may file a reply brief with the FAA decisionmaker in accordance with § 13.210 not later than 35 days after the appeal brief has been served on that party. The party filing the reply brief shall must serve a copy of the reply brief on each party in accordance with § 13.211. If the party relies on evidence contained in the record for the reply, the party shall 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 decisionmaker. If the FAA decisionmaker grants an extension of time to file the reply brief, the appellate docket clerk shall FAA decisionmaker must serve a letter confirming the extension 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 desiring an extension of time may file a written motion for an extension with the FAA decisionmaker and shall in accordance with § 13.210 and must serve a copy of the motion on each party in accordance with § 13.211. Any party choosing to respond to the motion must file and serve a written response to the motion 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 motion.

(f) Other briefs. The FAA decisionmaker 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 appeal brief or reply briefbrief unless permitted by the FAA decisionmaker. A party may petition the FAA decisionmaker, in writing, for leave to file an additional brief and shall 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 shall must file the original plus one copy of the appeal brief or the original reply brief, and two copies of the brief, with the FAA decisionmaker. but only one copy if filing by email or fax, as provided in § 13.210.

(h) Oral argument. The FAA decisionmaker has sole discretion to may permit oral argument on the appeal. On the FAA decisionmaker's own initiative, or upon written motion by any party, the FAA decisionmaker may find that oral argument will contribute substantially to the development of the issues on appeal and may grant the parties an opportunity 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 argument is based on evidence contained on the record and the party does not specifically refer to the pertinent evidence from the record in the brief.

(j) FAA decisionmaker's decision on appeal. The FAA decisionmaker will review the record, the briefs on appeal, and the oral argument, if any, when considering the issues on appeal. The FAA decisionmaker may affirm, modify, or reverse the initial decision, make any necessary findings, or may remand the case for any proceedings that the FAA decisionmaker determines may be necessary. The FAA decisionmaker 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 decisionmaker requires the consideration of additional 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 administrative law judge for further proceedings 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 Administrator 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 Administrator shall will be considered an order assessing civil penalty if the FAA decisionmaker finds that an alleged violation 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, ruling, or initial decision of an administrative law judge that has not been appealed to the FAA decisionmaker is not precedent in any other civil penalty action.

[Amdt. 13-21, 55 FR 27575, July 3, 1990, as amended by Amdt. 13-32; 69 FR 59498, Oct. 4, 2004; 70 FR 13345, Mar. 21, 2005]