Consistent with its rules and precedent, the NTSB has dismissed an airman’s untimely appeal in the absence of good cause for the tardy filing. In Administrator v. Grieshaber the airman filed his appeal 14 days late. On appeal, the airman argued that his late filing was excusable because “(1) two other NTSB law judges (Judge Mullins and Judge Geraghty) allegedly told one of respondent’s former attorneys during a discussion at the NTSB Bar Association meeting on June 8 and 9, 2005, that Judge Pope’s decision was “an advisory opinion”; and (2) there is “confusion” over whether he was properly advised of the deadline for filing a notice of appeal.
The Board rejected the airman’s assertions holding that they were not good cause for his failure to file a timely appeal. With respect to the “advisory opinion” argument, the Board noted that the airman had not provided any “documentation or substantiation for the alleged statement by Judges Mullins and Geraghty that the oral initial decision in this case should be viewed as merely advisory.” In fact, the Board stated that “any such statement would be obviously incorrect and patently inconsistent with our rules.” Additionally, the evidence showed that the ALJ “discussed the evidence, affirmed the alleged violation, gave the parties written copies of their appeal rights, confirmed on the record that the attorneys for both parties had nothing further to raise before him, and then stated, “very well then the hearing is closed.”
The Board was equally unsympathetic to the airman’s argument that he was not properly informed of the filing deadline for a notice of appeal. “Not only did the law judge hand respondent’s counsel a written copy of his appeal rights, presumably in respondent’s presence, but the Board’s procedural rules are publicly available and copies of those rules were sent to respondent’s counsel of record when he filed his initial appeal to the Board. If his attorneys did not pass on this information or otherwise failed in their duty to respondent, his recourse is against the attorneys, not the Board.” This appears to be unlikely given that the airman “was represented by three attorneys at the hearing, one of whom is a senior attorney with the Air Line Pilots Association and a long-time practitioner in NTSB proceedings.”
It is interesting to note that the airman was not represented by counsel on his appeal to the Board. It appears that his failure to have counsel for the appeal may have contributed to the fact that his appeal was untimely and the airman was then required to make some creative arguments in an attempt to show good cause for his late filing. Unfortunately, his arguments were inconsistent with and unsupported by the facts, and did not amount to good cause as established by Board precedent.