The Federal Aviation Administration’s extensions of its own decision deadlines were not equitable justification for untimely filing of a petition to review its ultimate determination.
The Grand Strand Airport is a public use, general aviation airport located in Horry County, South Carolina. Petitioner Skydive Myrtle Beach Inc. is a commercial skydiving operator that uses the airport and designated drop zone.
In 2014, Skydive filed a complaint with the FAA alleging that the County violated certain grant assurances aimed at safe and efficient use of airport property. The FAA Director determined that there was no violation of Grant Assurance 22, prohibiting “unjust discrimination” in airport availability. Skydive appealed that decision to the FAA Associate Administrator.
After the Associate Administrator twice extended its own deadline for rendering a decision, Skydive’s CEO sent an excoriating email on August 2, 2016:
“[It] is truly amazing that the federal government can continue to hide behind their computers, not answer emails or give situation updates. This is the third time just in this case you ha[ve] missed the deadline. If a general citizen [misses] a deadline proposed by the FAA[,] there are consequences. But unfortunately you act and work as … if you have no consequences.”
The Associate Administrator affirmed the Director’s dismissal, advising Skydive that it could file a petition for review “not later than 60 days after a Final Agency Decision has been served.” Per the certificate of service attached to the decision, employee Claudia Roberts certified that she sent a hard copy of the decision to the parties on the same day it was entered, August 4, 2016, by “United States mail (first class mail, postage paid).” The cover page was signed by Kevin Willis, Acting Director of the Office of Airport Compliance and Management Analysis. Also on August 4, 2016, Roberts emailed “a courtesy copy” of the decision to Holly, marked highly important and with “Skydive Myrtle Beach Final Agency Decision” in the subject line.
More than 80 days later, Holly emailed Willis and Roberts asking for “the receipt of signature [page] from [the decision] being delivered.” Roberts said she didn’t “have a copy of the fedx” tracking information, and Willis instructed her to resend the order. Roberts sent the new copy via Federal Express Priority Overnight on October 26, 2016. Skydive received it the next day.
On November 21, 2016, 109 days after the FAA Associate Administrator entered the final agency decision, Skydive petitioned this court for review. The County has moved to dismiss the petition as untimely.
Skydive had 60 days from August 4, 2016, to file its petition. It failed to do so, and its petition is untimely.
To “issue” refers to “the act of publishing or officially giving out or making available.” Under this definition, the date of issuance is the date the order was sent to the interested person. Other circuits that have considered this question have construed “issued” the same way. Applying this definition here, the decision was “issued” in accordance with 49 U.S.C. § 46110(a) on August 4, 2016, when Roberts sent the decision to Skydive in both digital and hard copy form.
As to when Skydive was “served” for purposes of 14 C.F.R. § 16.247(a), Roberts emailed the final decision on August 4, 2016. In accordance with 14 C.F.R. § 16.3, this email constituted service by “mail.”
Roberts also certified that she sent the decision on August 4, 2016, by U.S. first class mail. The “Via Federal Express” statement on the cover page of the order conflicts with this account, but it was included on the cover page signed by Willis, not Roberts. Further, Roberts’s inability to produce a Federal Express tracking number for the original copy supports the conclusion that it was actually sent by U.S. first class mail. Thus, Skydive was also served on August 4, 2016, in accordance with 14 C.F.R. § 16.13(b).
Contrary to Skydive’s argument, 49 U.S.C. § 46103(b) is not in conflict with 14 C.F.R. § 16.15(b) and § 16.13(b)’s service requirements. Subtitle VII’s sole enforcement provision, 49 U.S.C. § 46101(a), provides that a person may file a complaint with the Secretary about a person violating Part A of Subtitle VII, relating to air commerce and safety. The subsequent sections outline the methods for conducting proceedings and investigations resulting from such a complaint. As one of these subsequent sections, § 46103(b) articulates the proper methods of service only in proceedings and investigations concerning the enforcement of obligations in Part A of Subtitle VII.
Skydive brought this action to enforce obligations in Part B. Thus, § 46103(b)’s service methods of service are inapplicable. Instead, 14 C.F.R. § 16.15(b) and § 16.13(b) control the acceptable methods of service in this case. The 60-day period started running on August 4, 2016. Skydive failed to heed this deadline, and its petition is untimely.
Grounds for delay
Skydive asserts that “reasonable grounds” exist here for its delay because (1) the FAA extended its own deadline for issuance of its decision; (2) “there was genuine confusion in the record on the events surrounding the original attempt to transmit the final Order”; and (3) “there are meritorious defenses.” These equitable arguments are not reasonable grounds for Skydive’s failure to timely file the petition.
Skydive also requests consideration of its temporary pro se status at the time the decision was issued and served. The court will limit such leniency in light of Skydive’s special appreciation for deadlines. In Holly’s email of August 2, he stated, “If a general citizen [misses] a deadline proposed by the FAA there are consequences.” Obviously, Holly intended to seek review of the decision, and Skydive was on notice of the proper protocol.
Skydive Myrtle Beach Inc. v. Horry Cnty. Dep’t of Airports (Lawyers Weekly No. 006-009-18, 11 pp.) (Per Curiam) No. 16-2337; June 5, 2018; from FAA. 4th Cir. Unpub.