As you may recall from past posts on the subject, the NTSB is very unforgiving of untimely appeals. In the absence of “good cause” to excuse an applicant’s failure to file a timely notice of appeal, NTSB regulations and precedent require the dismissal of the applicant’s appeal. However, in a recent case dismissing an untimely appeal, the Board provided a strategy for avoiding such a dismissal in a situation where you just can’t get the notice of appeal or appeal brief filed by the deadline.
In Application of Tommy Hue Nix, the Board stated that if an extension of time is needed, all an airman need do to preserve his or her right of appeal is file a one-sentence statement so indicating. The Board also noted that “when an applicant is aware that a filing deadline may be near, he must timely ensure that the Administrator, the Office of Administrative Law Judges, and/or the Office of General Counsel is aware of any circumstances that may affect or prevent correspondence regarding the proceeding, particularly when a decision is pending.”
Thus, if you know are going to be unable to file within the required deadline or some circumstances may arise that will prevent a timely filing, you should simply file a request for an extension prior to the filing deadline. This is far preferable to the daunting and exceedingly difficult burden of demonstrating “good cause” for an untimely filing.
