[Code of Federal Regulations] [Title 49, Volume 8] [Revised as of October 1, 2004] From the U.S. Government Printing Office via GPO Access [CITE: 49CFR1503.233] [Page 269-271] TITLE 49--TRANSPORTATION CHAPTER XII--TRANSPORTATION SECURITY ADMINISTRATION, DEPARTMENT OF HOMELAND SECURITY PART 1503_INVESTIGATIVE AND ENFORCEMENT PROCEDURES--Table of Contents Subpart G_Rules of Practice in Transportation Security Administration (TSA) Civil Penalty Actions Sec. 1503.233 Appeal from initial decision. (a) Notice of appeal. A party may appeal the initial decision, and any decision not previously appealed pursuant to Sec. 1503.219, by filing a notice of appeal with the Enforcement Docket Clerk. A party must file the notice of appeal with the U.S. Department of Homeland Security, Transportation Security Administration, Office of the Chief Counsel, TSA-2, Attention: Enforcement Docket Clerk, 601 South 12th Street, Arlington, VA 22202-4220. A party must file the notice of appeal not 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 must serve a copy of the notice of appeal on each party. (b) Issues on appeal. A party may appeal 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 during the hearing that support the appeal. (c) Perfecting an appeal. Unless otherwise agreed by the parties, a party must perfect an appeal, not later than 50 days after entry of the oral initial decision on the record or service of the written initial decision on the party, by filing an appeal brief with the Enforcement Docket Clerk. (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 TSA decision maker. If the TSA decision maker grants an extension of time to perfect the appeal, the Enforcement Docket Clerk will 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 Enforcement Docket Clerk and must serve a copy of the motion on each party. The TSA decision maker may grant an extension if good cause for the extension is shown in the motion. (d) Appeal briefs. A party must file the appeal brief with the TSA Enforcement Docket Clerk and must serve a copy of the appeal brief on each party. (1) A party must set forth, in detail, the party's specific objections to the initial decision or rulings in the appeal brief. A party also 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 must specifically refer to the pertinent evidence contained in the transcript in the appeal brief. (2) The TSA decision maker may dismiss an appeal, on the TSA decision maker'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. (e) Reply brief. Unless otherwise agreed by the parties, any party may file a reply brief not later than 35 days after the appeal brief has been served on that party. The party filing the reply brief must serve a copy of the reply brief on each party. If the party relies on evidence contained in the record for the reply, the party 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 [[Page 270]] extend the time for filing a reply brief with the consent of the TSA decision maker. If the TSA decision maker grants an extension of time to file the reply brief, the Enforcement Docket Clerk will 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 and will serve a copy of the motion on each party. The TSA decision maker may grant an extension if good cause for the extension is shown in the motion. (f) Other briefs. The TSA decision maker 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 brief. A party may petition the TSA decision maker, in writing, for leave to file an additional brief and must serve a copy of the petition on each party. The party may not file the additional brief with the petition. The TSA decision maker may grant leave to file an additional brief if the party demonstrates good cause for allowing additional argument on the appeal. The TSA decision maker will allow a reasonable time for the party to file the additional brief. (g) Number of copies. A party must file the original appeal brief or the original reply brief, and two copies of the brief, with the Enforcement Docket Clerk. (h) Oral argument. The TSA decision maker has sole discretion to permit oral argument on the appeal. On the TSA decision maker's own initiative or upon written motion by any party, the TSA decision maker 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 TSA decision maker is not required to consider any objection in an appeal brief or any argument in the reply brief if a party's objection 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) The TSA decision maker's decision on appeal. The TSA decision maker will review the briefs on appeal and the oral argument, if any, to determine if the administrative law judge committed prejudicial error in the proceedings or that the initial decision should be affirmed, modified, or reversed. The TSA decision maker may affirm, modify, or reverse the initial decision, make any necessary findings, or may remand the case for any proceedings that the TSA decision maker determines may be necessary. (1) The TSA decision maker may raise any issue, on the TSA decision maker's own initiative, that is required for proper disposition of the proceedings. The TSA decision maker 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 TSA decision maker requires the consideration of additional testimony or evidence, the TSA decision maker 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 TSA decision maker 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 TSA decision maker. (2) The TSA decision maker 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 Sec. 1503.235, a final decision and order of the Administrator will be considered an order assessing civil penalty if the TSA decision maker 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 TSA decision maker is [[Page 271]] not precedent in any other civil penalty action. (4) The TSA decision maker will determine whether the decision and order of the TSA decision maker, with the administrative law judge's initial decision or order attached, may be released to the public, either in whole or in redacted form. In making this determination, the TSA decision maker will consider whether disclosure of any of the information in the decision and order would be detrimental to transportation safety, would not be in the public interest, or should not otherwise be required to be made available to the public. [67 FR 51483, Aug. 8, 2002, as amended at 68 FR 49720, Aug. 19, 2003; 68 FR 58281, Oct. 9, 2003]