In a recent NTSB case in which an administrative law judge awarded attorney’s fees and costs to an airman under the Equal Access to Justice Act (“EAJA”), the Board dismissed the FAA’s appeal of the EAJA award for failure to timely file an appeal brief. In Application of Hayes, the FAA timely filed its notice of appeal. However, the FAA did not then file an appeal brief by the deadline required by 14 C.F.R. 821.48(a). Although the FAA’s appeal brief was dated the last day allowed by the rule and the certificate of service stated the brief was served by overnight mail on that date, the Federal Express tracking data indicated a pickup date of three days after the deadline for filing the brief.
Based upon the untimely filing, the airman subsequently filed a motion with the Board to have the FAA’s appeal dismissed. The FAA did not respond to the motion within the time allowed, but did later file a notice of withdrawal. The Board ruled that the FAA’s failure to show good cause for its untimely appeal brief, or to request, before the appeal brief was due, leave to file the appeal brief out of time, required dismissal of its appeal. As a result, the Board deemed the FAA’s withdrawal of its appeal as moot.
Nice to know that, at least with respect to timing requirements for filing of appeals, the Board will treat the FAA the same as airmen.
