On Petition for Review of an Order of the National Transportation Safety Board. NTSB No. EA-3167
Before: Thomas Tang, Harry Pregerson and Robert Boochever, Circuit Judges. Opinion by Judge Boochever.
BOOCHEVER, Circuit Judge:
Union Flights, Inc. petitions for review of an order of the National Transportation Safety Board (Board), which dismissed as untimely Union Flights' appeal from a decision of an administrative law Judge (ALJ). We find that the Board's rule allowing fifty days to file a brief in support of an appeal from an oral decision of an ALJ, and only thirty days for filing such a brief after a written decision, to be rational, and that the Board's change of policy requiring "good cause" for failure to observe the time limits was properly effected by adjudicative ruling. Accordingly, we affirm.
On April 6, 1989, the Administrator of the Federal Aviation Administration (FAA) issued an emergency order suspending Union Flights' air carrier operating certificate. See 49 U.S.C. app. § 1429(a). The order was based on Union Flights' alleged failure to provide FAA inspectors access to its business records. On April 7, 1989, the FAA terminated the suspension after Union Flights agreed to allow the FAA to inspect its facility, equipment, personnel, and records.
Union Flights appealed the emergency order of suspension to the National Transportation Safety Board. Administrative Law Judge Jerrell Davis heard the matter and advised the parties that he would enter a written initial decision. On February 21, 1990, Judge Davis issued a written initial decision and order finding that Union Flights had denied the FAA access to its business records and dismissed Union Flights' appeal. At the Conclusion of his written initial decision and order, Judge Davis advised the parties of their appeal rights and the fact that the parties had 30 days from the service date of the decision and order in which to file an appeal brief.
On March 5, 1990, Union Flights filed a timely notice of appeal from the ALJ's decision with the Board.*fn1 On April 12, 1990, Union Flights filed its appeal brief with the Board, 38 days after it had received the written initial decision and order on March 5, 1990 and 50 days after the February 21, 1990 date of the written decision. The Administrator moved to dismiss the appeal as untimely filed, and ten days later, Union Flights filed a motion for leave to file a late brief. The Board dismissed Union Flights' appeal as untimely, and Union Flights now appeals.
Union Flights contends that § 821.48(a) of the NTSB's rules of practice, 49 C.F.R. § 821.48(a), is arbitrary and capricious because it provides different filing deadlines for briefs in cases on appeal from oral initial decisions and written initial decisions. That section reads:
§ 821.48 Briefs and oral argument.
(a) Appeal briefs. Each appeal must be perfected within 50 days after an oral initial decision has been rendered, or 30 days after service of a written initial decision, by filing with the Board and serving on the other party a brief in support of the appeal. Appeals may be dismissed by the Board on its own initiative or on motion of the other party, in cases where a party who has filed a notice of appeal fails to perfect his appeal by filing a timely brief.
49 C.F.R. § 821.48(a) (1990).
In reviewing an agency's actions in promulgating a regulation, we may set aside the regulation if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41, 77 L. Ed. 2d 443 , 103 S. Ct. 2856 (1983) (citing 5 U.S.C. § 706(2)(A) and Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 414, 28 L. Ed. 2d 136 , 91 S. Ct. 814 (1971)). The regulation must be upheld, however, if it is rational, based on a consideration of relevant factors, and within the scope of the authority delegated to the agency by statute. Corey v. National Transp. Safety Bd., 822 F.2d 9, 10 (2d Cir. 1987) (per curiam) (citing Motor Vehicle Mfrs., 463 U.S. at 42). Thus, the ...