Ron Mason v. National Transportation Safety Board

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13750
Non-Argument Calendar
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Agency No. EA-5630
RON MASON,
Petitioner,
versus
NATIONAL TRANSPORTATION SAFETY BOARD,
Respondent.
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Petition for Review of a Decision of the
Federal Aviation Administration
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(April 10, 2013)
Before TJOFLAT, WILSON and MARTIN, Circuit Judges.
PER CURIAM:
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Ron Mason, proceeding pro se, appeals the order of the National
Transportation Safety Board (“NTSB”) dismissing his appeal of the decision of the
Administrative Law Judge (“ALJ”) because he did not file an appellate brief within
50 days of the ALJ’s decision, as required by 49 C.F.R. § 821.48(a). Mason argues
that the NTSB acted arbitrarily and capriciously in dismissing his appeal, because
he had good cause for missing the deadline. Specifically, Mason asserts that his
move from Arizona to Florida, the fact that he filed the brief only three days late,
and the week that it took for him to receive the transcript of the hearing before the
ALJ are good cause for the NTSB to excuse his late filing. Mason also argues that
the NTSB’s 50-day deadline for filing an appellate brief is arbitrary and capricious,
because it is not a “natural” period and is therefore difficult to keep track of and
comply with.
Our review of NTSB decisions “is narrow and deferential”; we will set aside
NTSB’s decision only if it is arbitrary and capricious. Swaters v. Osmus, 568 F.3d
1315, 1322 (11th Cir. 2009). Accordingly, we “defer to the wisdom of the agency
provided their decision is reasoned and rational.” Id.
Congress gave the NTSB the power to prescribe regulations to carry out its
duties. 49 U.S.C. § 1113(f). The NTSB has adopted a two-step process for
appeals to the NTSB from an ALJ’s initial decision. First, the appellant must file a
notice of appeal within 10 days after the date on which the oral initial decision was
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rendered. 49 C.F.R. § 821.47(a). Second, the appellant must perfect the appeal by
filing a brief within 50 days after the oral initial decision. 49 C.F.R. § 821.48(a).
The NTSB may dismiss an appeal sua sponte or on motion when a party
files a notice of appeal but fails to perfect the appeal by filing a timely brief. Id. In
Administrator v. Hooper, the NTSB announced that in exercising its ability to
dismiss late-filed appeals under § 821.48(a), it would “adhere uniformly to a policy
requiring the dismissal, absent a showing of good cause, of all appeals in which
timely notices of appeal, timely appeal briefs or timely extension requests to
submit those documents have not been filed.” 6 N.T.S.B. 559, 560 (1988).
The NTSB has held that travel during the time for filing an appeal does not
establish good cause for failure to file or perfect an appeal. See, e.g.,
Administrator v. Givens, 6 N.T.S.B. 1055 (1989). Similarly, filing a document
only a few days late does not constitute good cause. See, e.g., Administrator v.
Angler Airways, Inc., N.T.S.B. Order No. EA-5310 (2007).
In United States v. Locke, the Supreme Court held that “[d]eadlines are
inherently arbitrary, while fixed dates are often essential to accomplish necessary
results.” 471 U.S. 84, 94, 105 S.Ct. 1785, 1792, 85 L.Ed.2d 64 (1986) (quotation
omitted). The Court explained that “filing deadlines, like statutes of limitations,
necessarily operate harshly and arbitrarily with respect to persons who fall just on
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the other side of them, but if the concept is to have any content, the deadline must
be enforced.” Id. at 101, 105 S.Ct. at 1796.
We find that the NTSB’s dismissal of Mason’s appeal was not arbitrary and
capricious. Mason had 50 days from the date of the ALJ’s oral decision to submit
his brief, and because he filed it three days late, dismissal was appropriate under 49
C.F.R. § 821.48(a). The NTSB was given the power to set its own procedural
rules, and the 50-day period for filing an appellate brief, while inherently arbitrary,
is not capricious in-and-of itself. See Locke, 471 U.S. at 94, 105 S.Ct. at 1792.
Mason failed to show good cause for failing to meet the 50-day deadline, as
the NTSB has held that travelling during the 50-day time period or filing a brief
only a few days late does not constitute good cause. See Givens, 6 N.T.S.B. 1055;
Angler Airways, Inc., N.T.S.B. Order No. EA-5310. Likewise, the fact that he had
to wait for a transcript of the proceedings before the ALJ in order to prepare his
brief does not excuse his untimely filing, as the rules promulgated by the NTSB
allow extra time for an appeal from an oral decision compared to an appeal from a
written decision. See 49 C.F.R. § 821.48(a).
AFFIRMED.
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