In a surprising civil penalty case decision, In the Matter of: Air Solutions, LLC and Air Solutions Group, Inc., the Administrator granted an attorney’s “Emergency Motion for Extension of Time to File Reply Brief Out of Time” that was filed one day after the respondents’ reply brief was due. In this case, the FAA appealed the decision in the underlying civil penalty action by filing and serving its appeal brief. Under 14 C.F.R. §§ 13.233(e), the respondents’ reply brief was then due 35 days after service of the appeal brief, plus an additional 5 days for filing under 14 C.F.R. § 13.211(e) since the respondents were served with the FAA’s appeal brief by mail. Thus, the respondents had a total of 40 days within which to file their reply brief.
However, on the day after the respondents’ appeal brief was due, the respondents’ attorney filed an “Emergency Motion for Extension of Time to File Reply Brief Out of Time”. Respondents’ motion stated that their attorney had misinterpreted the Rules of Practice and incorrectly calendared the reply brief for a service date after the deadline. They also argued that the misinterpretation and incorrect calendaring constituted excusable neglect and further that an extension of time would not prejudice the FAA. Of course, the FAA objected arguing that the respondents had not shown good cause for the untimely filing.
However, the Administrator found that the respondents had shown good cause. According to the Administrator, the respondents’ filing of their motion for an extension of time only 1 day beyond the deadline for the reply brief exhibited that their attorney acted quickly to correct the “simple human error” after discovery of the error. Additionally, the Administrator found that the FAA had not shown, or even alleged, that it would be prejudiced if the request for an extension was granted.
The Administrator cautioned that the Respondent’s explanation for the error was a marginal showing of good cause, even though sufficient under the circumstances. The decision also went on to state that “[t]his should not be construed as a holding that misinterpreting the Rules of Practice, resulting in incorrect calendaring, always constitutes good cause for a procedural default” because “[t]he facts of each case must be evaluated to determine if good cause exists in that case.”
This case is a surprise to me. In almost every other case the timing deadlines for filing of appeals and appeal briefs has been strictly construed against the party filing late. Additionally, delay based upon an attorney’s error has very rarely been considered excusable neglect. Perhaps this seeming break with precedent arose from the fact that this case involved a late reply brief, rather than a document perfecting appeal. Whatever the reason, it is nice to see that the respondents did not suffer from what could have been a fatal error by their attorney.
