In three recent decisions (Administrator v. Holt and Pierson; Administrator v. Griffin; and Administrator v. Hanger), the NTSB has continued its longstanding practice of dismissing airmen’s appeals when the airmen fail to comply with the timing requirements for filing and perfecting an appeal. In order to appeal an ALJ’s initial decision, NTSB Rule of Practice § 821.47 requires an airman to file a “notice of appeal” within 10 days of the ALJ’s decision. Then, in order to perfect the appeal, NTSB Rule of Practice § 821.48 requires that an airman file an appeal brief within 50 days after the date on which the oral initial decision was rendered, or 30 days after the date on which the written initial decision or appealable order was served. An airman may request to file an appeal brief out of time, provided that request is made before the appeal brief is due. In the event that an airman files an appeal brief late, he or she must show “good cause” for the late filing in order for the NTSB to consider the appeal. However, the “good cause” standard is extraordinarily difficult to meet.
In the Hanger case, the airman’s counsel argued that “[t]he appellate brief could hardly be filed in a cogent manner absent the final and signed initial decision nor the full transcript of the proceedings,” and that, “the filing of the brief within the accustomed time and before receiving the full transcript and the signed edited copy of the initial decision was unachievable.” However, the Board determined that the full transcript was mailed by priority mail to the airman’s counsel over two weeks before the appeal brief was due. The Board also observed that even if the transcript had been mailed later, “this would not suffice to establish good cause for the filing of an untimely appeal brief, particularly in the absence of a request to file a brief out of time before the brief is due.” Finally, the Board noted as its final nail in the coffin that the airman’s counsel was provided a written copy of the Board’s appeal procedures (basically implying that counsel should have known better).
Airmen and their counsel must ensure that either their notice of appeal and appeal brief are timely filed or, in the event that it is not possible for the appeal brief to be filed in time, file a request to file the brief out of time. Otherwise, an airman will be forced to argue “good cause” for the late filing and, as we unfortunately know from NTSB precedent, this argument will, more often than not, be unsuccessful.
