Consistent with existing precedent, the 8th Circuit Court of Appeals has dismissed a mechanic’s appeal of an NTSB oral decision after the appeal brief was filed nine days late. In Cornish v. FAA, the Court reviewed the rule requiring that the administrative appeal from an oral initial decision, must be perfected by filing a brief within fifty days of that decision absent a showing of good cause. In this case, the mechanic’s counsel apparently mistakenly believed that the appeal had to be filed within fifty days from the filing of the notice of appeal, as opposed to the date of the oral decision. The NTSB found that the error was without good cause and dismissed the appeal.
The Court of Appeals affirmed the NTSB’s dismissal of the appeal. In response to the mechanic’s argument that the dismissal was arbitrary and capricious because the Board had dismissed many appeals without explaining what constituted good cause, the Court stated that “the Board need not attempt to catalog what might be good cause in other cases when it consistently rules that mistakes by the appellant’s attorney in construing the agency’s procedural rules is not good cause.” Although the mechanic also appeared to argue that the stale complaint rule should have somehow precluded dismissal, the Court noted that the stale complaint rule doesn’t apply in cases where lack of qualification is alleged as was the situation in this case.
The Court’s decision isn’t much of a surprise. As this case and the many other cases decided upon similar facts show, the Board will dismiss appeals that are not filed when required unless good cause for the delay is shown. Unfortunately, neither the 8th Circuit nor the Board provided any helpful explanation as to what constitutes good cause. As a result, in order to avoid this uncharted territory Counsel representing certificate holders before the NTSB need to be familiar with the rules of procedure before the Board and to strictly comply with those
