Chin Yi Tu v. NATIONAL TRANSPORTATION SAFETY BOARD, NTSB CHIEF TRAN No.  ADMINISTRATIVE LAW JUDGE…

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 CHIN YI TU,
Petitioner,
v.
No. 04-76454 NATIONAL TRANSPORTATION SAFETY
BOARD, NTSB CHIEF TRAN No.
 ADMINISTRATIVE LAW JUDGE SE-16909
WILLIAM E. FOWLER, JR.; OPINION
ADMINISTRATOR FEDERAL AVIATION
ADMINISTRATION MAYION C.
BLAKEY,
Respondents. 
On Petition for Review of an Order of the
Department of Transportation, NTSB
Argued and Submitted
September 12, 2006—Seattle, Washington
Filed December 14, 2006
Before: Mary M. Schroeder, Chief Circuit Judge,
Andrew J. Kleinfeld and Carlos T. Bea, Circuit Judges.
Opinion by Judge Bea
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COUNSEL
C. Edward Adams, Esquire, Adams & Peterson, LLC, Gig
Harbor, Washington, for the petitioner.
James A. Barry, Esquire, United States Department of Trans-
portation, Office of the Counsel General, Washington, D.C.,
and Ronald S. Battocchi, Federal Aviation Administration,
Office of the Chief Counsel, Washington, D.C., for the
respondents.
OPINION
BEA, Circuit Judge:
We today decide whether an agency can effect notice of its
ruling, so to start the running of time in which to appeal, by
certified mail, when it has reason to know certified mail
would not reach petitioner, whereas first class mail would.
Actually, anyone who had read Jones v. Flowers, 126 S. Ct.
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1708 (2006), could decide this case without more, but because
Jones was decided after this case was briefed, a little more
detail might help the parties.
The Federal Aviation Administration (“FAA”) suspended
Chin Yi Tu’s (“Tu”) pilot’s license for 120 days allegedly for
“buzzing” (flying below proscribed minimum safe altitudes)
on two flights over Mount Rushmore National Memorial and
Crazy Horse Mountain. In his petition for review, Tu argues
the FAA denied him due process by failing to provide him
adequate notice of the orders suspending his pilot’s license,
thereby denying him the opportunity timely to appeal the
FAA’s determination to the National Transportation Safety
Board (“NTSB”).
We have jurisdiction under 49 U.S.C. § 1153(a), and we
grant the petition. We hold the FAA denied Tu due process
when it failed to provide Tu with notice reasonably calcu-
lated, under all the circumstances, to notify Tu his pilot’s
license had been suspended, so that Tu could timely exercise
his right of appeal to the NTSB.
FACTS
On September 27, 2002, the FAA sent two letters of inves-
tigation by certified mail addressed to Tu’s address of record.1
Each letter stated the FAA was investigating whether Tu had
flown below the minimum proscribed safe altitudes over
Mount Rushmore National Memorial and Crazy Horse Moun-
tain on September 23, 2002. The United States Postal Service
1“Certified Mail service provides the sender with a mailing receipt and,
upon request, electronic verification that an article was delivered or that
a delivery attempt was made. . . . Certified Mail is dispatched and handled
in transit as ordinary mail.” United States Postal Service, Domestic Mail
Manual § 503.3.2.1 (2006). However, a certified “letter cannot be left like
regular mail to be examined at the end of the day, and it can only be
retrieved from the post office for a specified period of time.” Jones v.
Flowers, 126 S. Ct. 1708, 1719 (2006).
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returned both letters to the FAA on October 18, 2002, marked
“refused.”2 Tu claims he was out of the country when these
certified letters were delivered and that he had not authorized
an agent to receive certified mail. On October 28, 2002, the
FAA sent two letters of investigation, containing the same
content as the September 27, 2002 “refused” letters, by first
class mail addressed to Tu’s address of record. Tu received
these letters and responded to the FAA within 10 days.3
On January 2, 2003, the FAA sent Tu a letter by first class
mail informing him the FAA had concluded its investigation
and had forwarded its report to the FAA’s regional counsel.
On March 6 and March 10, 2003, the FAA sent Tu notices
of proposed suspension of his pilot’s license by both certified
and first class mail. The notices proposed to suspend Tu’s
pilot’s license for 120 days on the basis of the minimum safe
altitude violations alleged in the letters of investigation. The
notices also prompted Tu to select one of several options:
waive his right to appeal, request the suspension orders be
issued so he could appeal directly to the NTSB, submit infor-
mation for the agency to consider before issuing adverse
orders, or request an informal conference with an agency law-
yer.
The FAA states it sent the notices of proposed suspension
by both certified and first class mail because the September
27, 2002, letters of investigation that were sent by certified
mail were returned “refused.” Specifically, the FAA sent the
notices of proposed suspension by first class mail “in order to
249 C.F.R. § 821.8(d)(2) states: “(d) Presumption of service. There shall
be a presumption of lawful service: . . . (2) When a properly addressed
envelope, sent to the most current address in the official record, by regu-
lar, registered or certified mail, has been returned as unclaimed or refused.
3His response stated in part, “I did circle the points of interest to take
some pictures. However, I do not believe that I have violated the minimum
safe altitude as alleged under CFR 14 section 91.119.”
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insure that [Tu] had actual notice that the enforcement actions
had been initiated.” One of the notices of proposed suspension
sent by certified mail was returned as “unclaimed”; the
administrative record does not indicate whether Tu received
the other notice of proposed suspension sent by certified mail.
Again within 10 days of the first class mailings, Tu responded
to both of the notices of proposed suspension that had been
sent by first class mail, requesting the suspension orders be
issued so that he could appeal directly to the NTSB.
On March 28, 2003, the FAA sent Tu a suspension order
by certified mail only. On April 8, 2003, the FAA sent Tu a
second suspension order, again by certified mail only. Both of
these suspension orders gave Tu 20 days from the date of ser-
vice in which to appeal to the NTSB, the path Tu had chosen
and communicated to the FAA.
Regarding the decision to send these notices by certified
mail only, the FAA has stated, “Once [Tu] had the Notice
[Proposed Suspension] in hand and had requested the issuance
of the Order of Suspension (the Order) we assumed that he
would not continue to ignore Certified mail. Therefore, we
served the Orders in the normal manner which is by Certified
mail alone.”4 Each order suspended Tu’s certificate for 120
days. Each order stated, pursuant to 49 C.F.R. § 821.30(a),
that Tu “may appeal from this Order within twenty (20) days
from the time of its service upon you.” These suspension
orders were returned to the FAA as “unclaimed” on April 24,
2003, and April 28, 2003. The record is singularly bereft of
any reason or fact why the FAA would all of a sudden “as-
sume” Tu would get certified mail in April, when he had not
received it in September and October.
4The FAA inferred that Tu had “ignore[d] or refuse[d]” certified mail
because the certified letters of investigation had been returned marked “re-
fused,” and a notice of proposed suspension had been returned as “un-
claimed.”
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On May 19, 2003, the FAA sent, by both certified and first
class mail, letters demanding Tu surrender his certificate to
the agency. The FAA also attached copies of the Orders of
Suspension that had been returned as unclaimed. The demand
letters sent by certified mail were again returned as
unclaimed. On May 30, 2003, and within twenty days of
receiving the first class mail copies of demand letters Tu
responded by requesting an appeal.5
The ALJ granted the FAA’s subsequent motion to dismiss,
finding Tu did not have good cause for filing his notice of
appeal after the twenty day appeal period. In his appeal to the
ALJ, Tu stated he was out of the country for business reasons
when the suspension orders were mailed, but had made
arrangements to ensure that he received first class mail in his
absence. Tu further stated he did not anticipate that the FAA
would send the suspension orders by certified mail alone
because the earlier correspondence he received had been sent
by first class mail. Id. Therefore, Tu had not authorized any
of his employees at his address of record to sign for or pick
up certified mail. Id. The ALJ dismissed his appeal as
untimely, reasoning that the FAA was statutorily authorized
to give notice by certified mail alone, that Tu should have
5Tu’s response stated:
Please accept this notice as my request for an APPEAL of the
ORDER OF SUSPENSION.
. . .
I did not get the Order of Suspension until [the] 23rd of May.
I apologize I was not able to pick up the certified mail in time
prior to it being returned to you by the postal office in April,
because my work often takes me away from my home. However,
I did not receive a first class mail in conjunction with the Order
of Suspension. To my knowledge, I have not missed any regular
mail. [The FAA’s] letter dated May 19th[,] 2003, a regular US
first class mail with a copy of the Order of Suspension arrived in
my mailbox on May 23rd, 2003 and this matter has my full atten-
tion.
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anticipated that the orders would be sent by certified mail, and
that his lack of diligence undermined his claim of good cause.
A divided NTSB panel agreed with the ALJ’s reasoning
and affirmed.
DISCUSSION
The FAA denied Tu due process by not providing him with
adequate notice of the suspension orders. It thereby denied Tu
the opportunity to file a timely appeal.6 The lack of appeal led
to the suspension of his pilot’s license, an essential to his
business as a pilot.7
[1] Due process does not require the FAA to provide a pilot
with actual notice before taking adverse action with respect to
his or her pilot’s license. See Jones, 126 S. Ct. at 1713. Due
process, however, does require notice reasonably calculated,
under all the circumstances, to provide a pilot notice of an
adverse action related to his or her pilot’s license, thereby,
affording the pilot an opportunity to present objections or
appeal. Id. at 1714.
[2] Certified mail has been deemed constitutionally suffi-
cient notice where “it was reasonably calculated to reach the
intended recipient when sent.” Id. (emphasis added). Accord-
ingly, “the government [must] consider unique information
about an intended recipient regardless of whether a statutory
scheme is reasonably calculated to provide notice in the ordi-
nary case.” Id. at 1716. In addition, where mailed notice is
6This court has jurisdiction to review Tu’s due process claim, even
though he did not raise that claim below, because the FAA and NTSB “are
without the power or jurisdiction to adjudicate th[is] constitutional
claim[ ]. If judicial review were not permitted, [Tu] would be deprived of
a forum in which to raise his constitutional claim[ ].” Gilbert v. NTSB, 80
F.3d 364, 366 (9th Cir. 1996) (citation omitted).
7“No person shall be . . . deprived of life, liberty, or property, without
due process of law[.]” U.S. CONST. amend. V.
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returned unclaimed, the government must take additional
steps to insure notice, if it is practicable to do so. Id. at 1713.
In Jones v. Flowers, the Arkansas Commissioner of State
Lands (“Commissioner”), in compliance with Arkansas Code
§ 26-37301 (1997), attempted on two occasions to notify peti-
tioner Gary Jones (“Jones”) by certified mail that Jones’ home
would be sold if Jones did not pay delinquent taxes. Id. at
1712. Both certified letters were returned “unclaimed.” Id. In
addition, a few weeks before the tax foreclosure sale the
Commissioner published a notice of public sale in the Arkan-
sas Democrat Gazette. Id. Jones’ home, which the parties stip-
ulated had a fair market value of $80,000, was subsequently
sold to Linda Flowers (“Flowers”) for $21,042.15. Id.
Upon learning of the sale after the 30-day period for post-
sale redemption had passed, Jones filed a lawsuit in Arkansas
state court alleging that the Commissioner and Flowers had
taken his property without due process by failing to provide
adequate notice of the tax sale. Id. at 1713. The trial court
granted the Commissioner and Flowers summary judgment.
Id. The Arkansas Supreme Court affirmed, holding that under
the circumstances certified mail was constitutionally adequate
notice. Id. The United States Supreme Court reversed, holding
“that when mailed notice of a tax sale is returned unclaimed,
the State must take additional reasonable steps to attempt to
provide notice to the property owner before selling his prop-
erty, if it is practicable to do so.” Jones, 126 S. Ct. at 1713.
[3] A fortiori, the FAA provided constitutionally defective
notice in this case. The March 28 and April 8, 2003 suspen-
sion orders the FAA sent by certified mail were not “reason-
ably calculated to reach the intended recipient when sent.” Id.
The FAA knew certified mail sent to Tu had previously been
returned on two separate occasions as “refused” or “un-
claimed.”8 What is more, knowing that certified mail was
8The FAA candidly admitted that, based on the fact that certified mail
sent to Tu was returned, it “served the Notice of Proposed [Suspension]
in each case by both Certified and First Class Mail in order to insure that
[Tu] had actual notice that the enforcement actions had been initiated.”
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ineffective to reach Tu, the FAA had sent correspondence
leading up to the suspension order by first class mail. First
class mail worked. Tu responded to in a timely manner. Nev-
ertheless, the FAA sent the orders suspending Tu’s license—
triggering the 20-day appeal deadline—by certified mail
alone. Unsurprisingly, these orders sent by certified mail were
returned to the FAA as unclaimed.
Moreover, when one suspension order was returned
unclaimed and the receipt for the other suspension order was
not returned, the FAA failed to take additional reasonable
steps to notify Tu of the suspension orders. Specifically, the
FAA failed to mail the suspension orders by first class mail.
[4] That the FAA reverted to sending Tu letters demanding
the surrender of his pilot’s license by both certified and first
class mail—only after his suspension became unappealable—
shows that it would have been practicable to send the suspen-
sion orders by first class mail in the first instance. It also
shows that when the FAA actually desired to inform Tu it did
so by first class mail. A reasonable agency actually desirous
of notifying an individual of his right to be heard would not
resort to a “mechanical adherence” to the minimum form of
notice authorized by regulation in the very instance when
timely notice is most crucial. Dobrata v. INS, 311 F.3d 1206,
1213 (9th Cir. 2002).
Under the circumstances of this case,9 we hold the FAA
denied Tu due process when it failed to provide adequate
notice of the suspension of Tu’s pilot’s license, thereby, deny-
9Because petitioner does not seek the remedy, we do not rule on
whether the FAA’s actions constituted government action “without sub-
stantial justification,” as that term applies under the Equal Access to Jus-
tice Act, 28 U.S.C. § 2412. Persistent use of certified mail when known
not to reach addressee and refusal to use first class mail when known to
reach addressee may well constitute such government action, as would
government’s defense of its position in litigation after such knowledge
was brought home to it.
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ing Tu the opportunity to appeal. Accordingly, Tu’s petition
is GRANTED.
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