The NTSB recently dismissed an airman’s untimely petition for reconsideration based upon the absence of extraordinary circumstances that would otherwise excuse the untimely filing. In Adminstrator v. Nadal, following an ALJ’s order affirming a 60 day suspension of the airman’s ATP certificate, the airman filed a “Notice of Intent to Submit Petition for Rehearing, Reargument, Reconsideration or Modification” requesting an additional, unspecified amount of time within which to file his petition for reconsideration. The airman stated that he needed extra time to complete his petition pending receipt of his file from his former attorney. He then later filed a document with the same title over a week after the 30 day deadline for filing a petition for reconsideration had passed.
Citing 49 CFR 821.11(b), the Board noted that “to obtain an extension of time to file a petition for reconsideration, a party must demonstrate ‘extraordinary circumstances.'” It then stated that the airman did not demonstrate “extraordinary circumstances” because “[i]t is not enough, in our view, to infer, without further explanation, an inability to adhere to this deadline merely because a party is no longer represented by counsel”. As a result, the Board held that the rules required dismissal of the airman’s petition.
Interestingly, in spite of dismissing the airman’s petition, the Board added an extra nail to the coffin by noting that “we have reviewed respondent’s original notice and late-filed petition and neither presents argument or evidence that would warrant modification of our decision in Board Order No. EA-5225 upholding a 60-day suspension of respondent’s airline transport pilot certificate”. Although the Board’s decision focuses on the timeliness issue and the lack of extraordinary circumstances, its footnote makes clear that even if the airman’s petition had been filed on time, it would have been denied.
Although this is an unfortunate outcome for the airman, the decision should, once again, reinforce the necessity of filing appeals etc. within the time allowed by the rules of practice. Personally, I would rather argue the merits of an appeal than have to argue why an untimely filing should be excused or accepted by the Board. Arguments on the merits may not always be successful, as they would not have been in this case. But, as the cases show, arguments on the merits stand a better chance of prevailing than arguments seeking leniency for an untimely filing.
