Airola v. Blakely

MEMORANDUM ^**

Jerry M. Airola petitions for review of the National Transportation Safety Board’s order dismissing his appeal from an administrative law judge’s decision affirming the suspension of his commercial pilot certificate. We have jurisdiction under 49 U.S.C. §§ 1153 and 44709(f), and we deny the petition.

Airola contends that the Board erred in dismissing his appeal pursuant to 49 C.F.R. § 821.48(a) because he showed good cause for filing his brief one day late. The Board did not act arbitrarily or capriciously in concluding that Airola’s attorney did not establish good cause by asserting that he did not realize until the due date that he could not fax the brief. See Gilbert v. National Transp. Safety Bd., 80 F.3d 364, 368 (9th Cir.1996).

Airola also contends that the ALJ denied him due process by granting summary judgment without allowing him to present evidence at the hearing on the charges against him. At a pre-hearing conference, the ALJ informed the parties that he would consider the FAA’s summary judgment motion at the hearing. Following an offer of proof as to Airola’s testimony, the ALJ granted partial summary judgment, and the hearing proceeded only as to mitigation. These procedures gave Airola notice and an opportunity to be heard, and thus did not violate his right to due process. See Go Leasing, Inc. v. National Transp. Safety Bd., 800 F.2d 1514, 1523 (9th Cir.1986).

PETITION DENIED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.