Nadal v. Federal Aviation Administration

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS April 30, 2008
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

CHRISTIAN GILBERT TONY
NADAL,

Petitioner,
No. 08-9509
v. (F.A.A. No. SE-17396)
(N.T.S.B.)
FEDERAL AVIATION
ADMINISTRATION,

Respondent.

ORDER AND JUDGMENT *

Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.

Petitioner seeks review of a National Transportation Safety Board order

affirming the forty-day suspension of his pilot certificate. Because we conclude

that his petition for review was not timely filed and that he has not shown

reasonable grounds for his failure to file his petition within the allotted time

period, we must dismiss this action for lack of jurisdiction.

A petition for review of an NTSB order “must be filed not later than 60

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
days after the order is issued.” 49 U.S.C. §§ 1153(b)(1), 46110(a). “The court

may allow the petition to be filed after the 60 days only if there was a reasonable

ground for not filing within that 60-day period.” § 1153(b)(1); see § 46110(a).

Here, Petitioner did not file his petition until three days after the filing

deadline. However, he asserts various reasons why we should still consider his

appeal. First, Petitioner asserts that we should excuse the late filing because he

understood the filing period to begin when he actually received the NTSB order,

not when it was issued. Second, he suggests that the petition might be considered

timely because he put it in the mail one day before the due date. Finally,

Petitioner argues that we should waive the late filing based on the merits of his

petition.

We are not persuaded by Petitioner’s procedural arguments. The relevant

statutes provide that filing must occur “not later than 60 days after the order is

issued,” 49 U.S.C. §§ 1153(b)(a), 46110(a) (emphasis added), and the Federal

Rules of Appellate Procedure clearly state that “[f]iling may be accomplished by

mail addressed to the clerk, but filing is not timely unless the clerk receives the

papers within the time fixed for filing,” Fed. R. App. P. 25(a)(2)(A).

“[M]isapprehending the rules that prescribe the number of days in which to file a

petition for review does not constitute reasonable grounds.” Hegarty v. Nat’l

Transp. Safety Bd., 19 F.3d 33 (table), 1994 WL 95958, at *3 (10th Cir. 1994)

(rejecting argument that late filing should be permitted because petition was filed

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within sixty days after petitioner received actual notice of NTSB decision).

As to Petitioner’s substantive argument that we should waive the timeliness

problem based on the merits of his claims, the relevant statutes provide that we

may allow late filing only if a petitioner had reasonable grounds for the failure to

timely file. See 49 U.S.C. §§ 1153(b)(1), 46110(a). “[S]tatutory provisions

specifying the timing of review . . . are . . . mandatory and jurisdictional,” Stone

v. INS, 514 U.S. 386, 405 (1995) (internal quotation marks omitted). We may not

consider a petition over which we lack jurisdiction, regardless of its merits.

Our careful review of Petitioner’s “Response to Court Order” and

“Response to Federal Aviation Administration’s Motion to Dismiss for Lack of

Jurisdiction” reveals no reasonable ground for Petitioner’s failure to file his

petition within the sixty-day period. We therefore DISMISS this petition for lack

of jurisdiction.

Entered for the Court

Monroe G. McKay
Circuit Judge

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