McWhorter v. FAA

88 F.4th 1317

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 20, 2023
• Docket: 23-9506
• Status: Published

Opinion

Appellate Case: 23-9506 Document: 010110971987 Date Filed: 12/20/2023 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS December 20, 2023 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

BRUCE MCWHORTER,

Petitioner,

v. No. 23-9506

FEDERAL AVIATION ADMINISTRATION, Michael Whitaker, Administrator, ∗

Respondent. _________________________________

Appeal from the Federal Aviation Administration (FAA No. 2021NM030020) _________________________________

Submitted on the briefs: †

Stephenson D. Emery, Williams, Porter, Day & Neville P.C., Casper, Wyoming, for Petitioner.

Casey E. Gardner, Office of the Chief Counsel, Federal Aviation Administration, Washington, D.C., for Respondent.

∗ On October 27, 2023, Michael Whitaker became Administrator of the Federal Aviation Administration, replacing former Acting Administrator Billy Nolen. By operation of Federal Rule of Appellate Procedure 43(c)(2), Mr. Whitaker has been substituted as the Respondent in this case. † After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Appellate Case: 23-9506 Document: 010110971987 Date Filed: 12/20/2023 Page: 2

_________________________________

Before BACHARACH, BRISCOE, and McHUGH, Circuit Judges. _________________________________

McHUGH, Circuit Judge. _________________________________

In July 2022, the Federal Aviation Administration (“FAA”) revoked Bruce

McWhorter’s mechanics certification after learning he had not replaced certain

components of an aircraft’s engine despite having made a maintenance logbook entry

stating that he performed a “major overhaul[]” of the engine. Agency Record at 1–6.

Mr. McWhorter appealed the revocation order to an administrative law judge, who

affirmed the order. Mr. McWhorter then sought to appeal the administrative law

judge’s decision to the National Transportation Safety Board (“NTSB”). Although

Mr. McWhorter filed his notice of appeal with the NTSB on time, he failed to timely

serve the FAA with his notice of appeal. The FAA moved to dismiss

Mr. McWhorter’s appeal to the NTSB for failure to effect timely service on the FAA.

In response, Mr. McWhorter’s counsel described the shortcoming as an

“administrative oversight” because he “inadvertently failed to forward a copy of the

notice to the [FAA].” Id. at 614. The NTSB attributed Mr. McWhorter’s counsel’s

shortcoming to Mr. McWhorter, concluded he lacked good cause for the delay in

service of process, and granted the FAA’s motion to dismiss on October 6, 2022.

On January 25, 2023—111 days after the NTSB issued its final order—

Mr. McWhorter petitioned for review of the NTSB’s dismissal of his appeal,

invoking this court’s jurisdiction under 49 U.S.C. § 1153(b)(1). But, under that

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statute, absent “a reasonable ground” for failing to do so, the “petition must be filed

not later than 60 days after the order is issued.” Id.

Our decisional law, while unpublished and therefore nonprecedential, has

characterized the sixty-day time limit in § 1153(b) as “jurisdictional.” We take this

opportunity to clarify that § 1153(b)’s sixty-day time limit on seeking appellate

review is a claim-processing rule rather than a “jurisdictional” requirement. Stated

differently, a petitioner’s failure to comply with the time limits prescribed by

§ 1153(b) does not affect this court’s jurisdiction to entertain such an appeal. Rather,

an untimely petition under that statute does no more than provide the FAA with a

basis to argue that this court should deny the petition. Exercising jurisdiction under

§ 1153(b), we conclude Mr. McWhorter has not established the existence of “a

reasonable ground” for delay in filing his petition for review, and we deny his

petition as untimely.

I. JURISDICTION

Some thirty years ago, the Supreme Court instructed that a variety of

procedural prerequisites to the filing of certain claims and appeals—for example, and

as relevant here, time limits on the ability to seek appellate review of final agency

orders—if not met, divest federal courts of jurisdiction to hear such matters. See, e.g.,

Stone v. I.N.S., 514 U.S. 386, 405 (1995) (“[S]tatutory provisions specifying the

timing of review . . . are, as we have often stated, ‘mandatory and jurisdictional . . . .”

(quoting Missouri v. Jenkins, 495 U.S. 33, 45 (1990))).

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In more recent years, however, the Court has revisited its precedent

implicating this issue:

“Jurisdiction,” this Court has observed, “is a word of many, too many, meanings.” Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 90 (1998). This Court, no less than other courts, has sometimes been profligate in its use of the term. For example, this Court and others have occasionally described a nonextendable time limit as “mandatory and jurisdictional.” See, e.g., United States v. Robinson, 361 U.S. 220, 229 (1960). But in recent decisions, we have clarified that time prescriptions, however emphatic, “are not properly typed ‘jurisdictional.’” Scarborough v. Principi, 541 U.S. 401, 414 (2004).

Arbaugh v. Y & H Corp., 546 U.S. 500, 510 (2006).

In policing this line, the Court has “emphasized the distinction between limits

on ‘the classes of cases a court may entertain (subject-matter jurisdiction)’ and

‘nonjurisdictional claim-processing rules, which seek to promote the orderly progress

of litigation by requiring that the parties take certain procedural steps at certain

specified times.’” Wilkins v. United States, 598 U.S. 152, 157 (2023) (quoting Fort

Bend Cnty. v. Davis, 139 S. Ct. 1843, 1846 (2019)). Decisions that treat mere claim-

processing rules as “jurisdictional,” the Court has noted, may actually disrupt rather

than promote the orderly progress of litigation, because jurisdictional defects may be

raised at any stage of litigation and on appeal—that is, even after courts and the

parties devote substantial time and resources to the resolution of a dispute. See id. at

158 (“Given this risk of disruption and waste that accompanies the jurisdictional

label, courts will not lightly apply it to procedures Congress enacted to keep things

running smoothly and efficiently.”).

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To avoid the risk of contravening the Congressional intent of such claim-

processing rules, we regard a procedural rule as “jurisdictional” only if “traditional

tools of statutory construction . . . plainly show that Congress imbued a procedural

bar with jurisdictional consequences.” United States v. Wong, 575 U.S. 402, 410

(2015). Stated differently, courts may “treat a procedural requirement as

jurisdictional only if Congress ‘clearly states’ that it is.” Wilkins, 598 U.S. at 157

(quoting Boechler v. Comm’r, 142 S. Ct. 1493, 1497 (2022)). Application of this rule

has “made plain that most time bars are nonjurisdictional.” 1 Id. at 158 (quoting

Wong, 575 U.S. at 410).

With respect to the lax application of the “jurisdictional” label in existing

precedent, “the Supreme Court has instructed that ‘drive-by jurisdictional

rulings . . .have no precedential effect.’” Gad v. Kan. State Univ., 787 F.3d 1032,

1040 (10th Cir. 2015) (quoting Steel Co., 523 U.S. at 91). A “drive-by” jurisdictional

ruling occurs when an opinion “simply states that ‘the court is dismissing “for lack of

jurisdiction” when some threshold fact has not been established.’” Wilkins, 598 U.S.

at 160 (quoting Arbaugh, 546 U.S. at 511).

1 In recent years, we have taken the opportunity to apply the Supreme Court’s modern framework to other statutory requirements we had once deemed jurisdictional. See, e.g., Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1185 (10th Cir. 2018) (overruling precedent characterizing administrative exhaustion requirements as jurisdictional, explaining that a failure to exhaust “merely permits the [defendant] to raise an affirmative defense of failure to exhaust but does not bar a federal court from assuming jurisdiction over a claim”).

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This appeal implicates precisely such a “drive-by” jurisdictional ruling. In

Nadal v. Federal Aviation Administration, 276 F. App’x 780 (10th Cir. 2008)

(unpublished), we issued a brief, unpublished order dismissing an untimely petition

brought under § 1153(b)(1) for lack of jurisdiction. “[S]tatutory provisions specifying

the timing of review,” we noted, are “mandatory and jurisdictional.” Id. at 781

(quoting Stone, 514 U.S. at 405). While Nadal, as an unpublished decision, was

without precedential effect in the first instance, we now clarify that its

characterization of the sixty-day deadline as “jurisdictional,” without elaboration, is

properly regarded as a “drive-by” jurisdictional ruling entitled neither to precedential

effect nor persuasive value. 2 Contra 10th Cir. R. 32.1(A) (“Unpublished decisions

are not precedential, but may be cited for their persuasive value.”).

We have little trouble concluding the sixty-day time limitation in § 1153(b),

like most time bars, is devoid of anything approaching a clear statement that

Congress intended the time bar to have jurisdictional consequences. We begin with

the presumption that “most time bars are nonjurisdictional.” Wilkins, 598 U.S. at 158

(quoting Wong, 575 U.S. at 410). With that starting point, the FAA must point to

2 Nadal v. Federal Aviation Administration, 276 F. App’x 780 (10th Cir. 2008) (unpublished), is one of several decisions from the courts of appeal that summarily concluded that the sixty-day time limit in 49 U.S.C. § 1153(a) and (b) is jurisdictional. See, e.g., Bennett v. Nat’l Transp. Safety Bd., 2 F. App’x 305, 306 (4th Cir. 2001) (“We therefore deny the petition for lack of jurisdiction because Bennett’s petition was not timely filed.”); Tiger Int’l, Inc. v. Civil Aeronautics Bd., 554 F.2d 926, 931 n.11 (9th Cir. 1977) (“Time limitations for certiorari, appeal and review set out in statutes are uniformly regarded as jurisdictional.”).

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something in the statutory language that amounts to a “clear statement” that Congress

intended to deviate from its general approach to claim-processing deadlines and

render this time bar jurisdictional. But the FAA adduces no such language, and our

review discloses none. Indeed, § 1153(b)(1) states that the “petition must be filed not

later than 60 days after the order is issued,” and the word “jurisdiction” is wholly

absent from that subsection. Under this controlling standard, we hold that the

procedural requirement in § 1153(b) to petition this court for review within sixty

days after the issuance of a final order is not jurisdictional. 3

II. “REASONABLE GROUNDS” FOR UNTIMELY PETITION

Having concluded that we may exercise jurisdiction over this appeal

notwithstanding Mr. McWhorter’s tardy petition, we must next determine whether he

may defeat the denial of his untimely petition by establishing the existence of

“reasonable grounds” that would excuse his delay. 49 U.S.C. § 1153(b)(1).

Mr. McWhorter asserts two bases as “reasonable grounds” for his untimely

petition. 4 First, that he was unaware of his right to petition this court for review

3 This conclusion is consistent with our sister circuits’ interpretation of a markedly similar statute, 49 U.S.C. § 46110(a), which, like § 1153(b), prescribes a sixty-day deadline for petitions for review, but permits untimely petitions upon a showing of “reasonable grounds.” See Corbett v. Transp. Sec. Admin., 767 F.3d 1171, 1178 (11th Cir. 2014) (“[T]he 60-day deadline [in § 46110(a)] is not jurisdictional.”); Avia Dynamics, Inc. v. F.A.A., 641 F.3d 515, 519 (D.C. Cir. 2011) (“[W]e hold that the sixty-day deadline [in § 46110(a)] does not constitute a jurisdictional bar.”). 4 Mr. McWhorter also suggests, without citation to authority, that his untimely petition to this court resulted in no prejudice to the FAA. But we cannot see how this assertion could inform our “reasonable grounds” analysis, where, by its plain terms, 7 Appellate Case: 23-9506 Document: 010110971987 Date Filed: 12/20/2023 Page: 8

because his counsel neglected to inform him of it. And second—and relatedly—that

his counsel abandoned him following the dismissal of his NTSB appeal, and he was

consequently forced to proceed pro se for the duration of the sixty-day deadline to

file his petition. Neither of these circumstances amount to “reasonable grounds.”

While there is scant case law giving meaning to “reasonable grounds” in

§ 1153(b), there is a wealth of authority animating that standard in the substantially

similar context of 49 U.S.C. § 46110(a). Under § 46110(a), courts addressing this

standard “have ‘rarely found reasonable grounds’” for petitions filed after sixty days

have elapsed. Nat’l Fed’n of the Blind v. U.S. Dep’t of Transp., 827 F.3d 51, 57 (D.C.

Cir. 2016) (quoting Elec. Privacy Info. Ctr. v. F.A.A., 821 F.3d 39, 42–44 (D.C. Cir.

2016)). Indeed, the weight of authority holds that only “[a]gency-created confusion”

can satisfy that standard. Tulsa Airports Improvement Tr. v. F.A.A., 839 F.3d 945,

950 (10th Cir. 2016) (collecting authority recognizing agency-created confusion as a

basis for “reasonable grounds”); see Howard Cnty. v. F.A.A., 970 F.3d 441, 450 (4th

Cir. 2020) (“[O]ur sister circuits have generally found reasonable grounds . . . only

where . . . the FAA left the parties ‘with the impression that it would address their

concerns by replacing its original order with a revised one’ or otherwise ‘created

confusion’ about the finality of its order” (quoting first City of Phoenix v. Huerta,

869 F.3d 963, 970 (D.C. Cir. 2017), then Tulsa Airports Improvement Tr., 839 F.3d

§ 1153(b) focuses only on the circumstances that caused Mr. McWhorter’s procedural default.

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at 950)); Greater Orlando Aviation Auth. v. F.A.A., 939 F.2d 954, 960 (11th Cir.

1991) (holding that confusion created by the FAA “present[ed] reasonable grounds”

for petitioner’s delay), abrogated on other grounds by Henderson v. Shinseki, 562

U.S. 428, 438 (2011), as recognized in Corbett v. T.S.A., 767 F.3d 1171, 1174 (11th

Cir. 2014). Meanwhile, “[i]n cases where the petitioner ‘is primarily to blame for the

delay’ . . . courts have generally ‘refused’ to find reasonable grounds, even where the

delay resulted from ‘a petitioner’s honest and understandable mistake.’” Howard

Cnty., 970 F.3d at 450 (quoting Howard Cnty. v. FAA, 818 F. App’x 224, 228 (4th

Cir. 2020) (unpublished)). Mr. McWhorter makes no argument that the NTSB acted

in ways that obscured the final nature of the dismissal of his appeal to that board, and

he thus cannot avail himself of this route to establishing “reasonable grounds.”

Moreover, a failure to comply with a procedural requirement is not generally

excused when non-compliance is caused by counsel’s deficient representation. See

Link v. Wabash R.R. Co., 370 U.S. 626, 633–34 (1962) (“Petitioner voluntarily chose

this attorney as his representative in the action, and he cannot now avoid the

consequences of the acts or omissions of this freely selected agent.”); Gripe v. City of

Enid, 312 F.3d 1184, 1189 (10th Cir. 2002) (“Plaintiff argues against the harshness

of penalizing him for his attorney’s conduct. But there is nothing novel here. Those

who act through agents are customarily bound by their agents’ mistakes. It is no

different when the agent is an attorney.”). And Mr. McWhorter’s pro se status during

the sixty-day period does not exempt him from compliance with ordinary procedural

rules. See Ogden v. San Juan Cnty., 32 F.3d 452, 455 (10th Cir. 1994) (“[A]n

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appellant’s pro se status does not excuse the obligation of any litigant to comply with

[procedural rules].”).

Because Mr. McWhorter advances no judicially cognizable bases for his

untimely petition for review, we conclude he has failed to establish “reasonable

grounds” for the same.

III. CONCLUSION

We DENY Mr. McWhorter’s petition for review as untimely.