Robert D. Fleisher v. James B. Busey, Administrator, Federal Aviation Administration

936 F.2d 567, 1991 U.S. App. LEXIS 19795, 1991 WL 113618

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 28, 1991
• Docket: 90-1547
• Status: Unpublished

Opinion

936 F.2d 567
Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Robert D. FLEISHER, Petitioner,
v.
James B. BUSEY, Administrator, Federal Aviation
Administration, Respondent.

No. 90-1547.

United States Court of Appeals, Fourth Circuit.

Submitted May 20, 1991.
Decided June 28, 1991.

On Petition for Review of an Order of the United States Department of Transportation.

Leonard C. Redmond, III, Redmond, Cherry & Burgin, Baltimore, Md., for petitioner.

Harry S. Gold, Peter J. Lynch, Federal Aviation Administration, Washington, D.C., for respondent.

NTSB

AFFIRMED.

Before WIDENER, K.K. HALL and WILKINS, Circuit Judges.

PER CURIAM:

Robert D. Fleischer appeals the order of the National Transportation Safety Board (Board) dismissing as untimely his appeal of an order of an administrative law judge (ALJ). In September 1989, Mr. Fleischer was notified by the Federal Aviation Administration that his commercial pilot certificate was suspended for 60 days based on his violation of Federal Aviation Regulations. Fleischer appealed the order of suspension to the Board, which held a hearing in March 1990. Neither Fleischer nor his attorney was present although they had been given proper notice of the time and location of the hearing.1 The ALJ, after hearing testimony from two witnesses, issued an oral decision affirming the order of suspension.

Mr. Fleischer was required by the Board's rules to file a notice of appeal within 10 days after the ALJ's oral decision. 49 C.F.R. Sec. 821.47 (1989). See also Brown v. National Transp. Safety Bd., 795 F.2d 576, 578 (6th Cir.1986) ("The rules do not prevent an ALJ from rendering an oral decision in the absence of one of the parties, and it is clear that if an ALJ renders such a decision, the time for appeal begins to run from the date of the oral decision."). Fleischer's notice of appeal was not filed until 22 days after the decision was rendered. Therefore, the Board properly dismissed his appeal as untimely. Accordingly, we affirm the order of the Board. Petitioner's unopposed motion to have the case decided on the briefs, without argument, is granted.

1 Fleischer's request to reschedule the hearing was denied on February 16, 1990