In a footnote to a recent case, Administrator v. Martz, the NTSB distinguished its standard for accepting untimely responsive pleadings from its standard for accepting untimely notices of appeal, appeal briefs, and petitions for reconsideration. As you may recall, the NTSB strictly construes the timing requirements for the latter and will reject untimely filings unless the party submitting the untimely filing can show good cause and a lack of prejudice to the opposing party. However, a party submitting an untimely responsive pleading (e.g. a pleading responding or replying to another party’s initial pleading) need only show that the opposing party did not suffer prejudice as a result of the untimely filing. This is a much less stringent standard than the “good cause” standard.
In this case, the FAA filed its response to an airman’s motion for reconsideration late. The FAA also filed a motion to accept its response out of the time. The airman did not oppose the FAA’s motion or allege that he was prejudiced by the untimely filing. In granting the FAA’s motion and accepting its untimely responsive pleading, the Board held that “we will reject responsive pleadings only if the opposing party can demonstrate that prejudice would result from our acceptance of the late-filed reply.” The Board then went on to request that counsel who find themselves in that situation should file one document for each purpose (e.g. each motion, reply or response would be a separate document, rather than all combined into one document).
This seems reasonable. However, the obvious question is “what will constitute sufficient prejudice for the NTSB to reject an untimely responsive pleading?” Is it based upon time? Presumably filing of the responsive pleading a day before the opposing party’s reply is due would constitute prejudice. But what if the responsive pleading is only a couple of days late? Regardless of where the NTSB draws the line, one would hope that this standard will be applied equally to both the FAA and to certificate holders in enforcement proceedings.