The NTSB General Counsel recently rejected an airman’s argument that confusion about the dates for filing an appeal brief constituted “good cause” for an untimely filing. In Administrator v. McCabe, the airman filed a timely notice of appeal from an administrative law judge’s (“ALJ”) oral initial decision. However, the airman then filed his appeal brief, along with a motion to accept a late-filed brief, six days after the due date. The FAA did not respond to the motion.
In his motion, the airman argued that good cause existed for his untimely filing because he was confused as to the due date of the appeal brief. The airman specifically cited 49 C.F.R. § 821.48(a) of the Board’s Rules of Practice in Air Safety Proceedings and suggested that the rule provides “alternative” dates for when the appeal brief is to be served. The airman appears to have been relying upon the fact that the rule provides for different service dates depending upon whether the ALJ’s decision was rendered orally or in writing.
In rejecting this argument, the General Counsel observed that “[w]hen the law judge orally renders an initial decision at the close of a hearing, he has rendered an oral initial decision as provided in the Board’s rules, and an appeal brief is then due 50 days from the rendering of that decision. Only if the law judge does not orally render a decision at the close of the hearing do the provisions regarding a written initial decision come into play.” Additionally, the General Counsel also reiterated that parties are responsible for knowing the Board’s Rules of Practice.
Finally, the airman’s counsel argued that his efforts to communicate with colleagues and the airman were frustrated by the intervention of three significant national holidays. (Interestingly, the airman’s counsel asserted in his correspondence with the General Counsel that he did not know if the accompanying brief was late, even though he had been previously informed by the staff of the Office of General Counsel that the brief was already late.) In the end, none of the airman’s arguments constituted “good cause.” As a result, the General Counsel dismissed the airman’s appeal.
This situation is unfortunate for the airman because it appears that the untimely filing was due to his counsel’s unfamiliarity with the Board’s rules. This is another example of why it is important to use an aviation attorney who is familiar with the rules and the laws applicable to FAA enforcement actions and practice before the NTSB.
