673 F. App'x 911
11th Cir.2016Background
- Eric Norber was a Designated Pilot Examiner (DPE); FAA terminated his designation by letter dated October 2, 2015 (mailed July 16 notice followed by upheld termination).
- Termination cited an arrest/conviction and failure to attend required FAA meetings; FAA informed Norber of 14-day appeal window and that appeal outcome would be sent within 60 days of receipt.
- Norber requested appeal on July 25, 2015; a regional panel upheld the termination and sent its final decision by certified mail on October 2, 2015 to Norber’s address on file.
- Norber’s address on file was outdated; he did not notify FAA of the change until October 29, 2015, at which point FAA emailed him an electronic copy of the October 2 decision.
- Norber filed a petition for review in this Court on December 7, 2015 — 66 days after the FAA’s October 2 mailing — and sought relief arguing the 60-day clock should run from actual receipt or, alternatively, that he had reasonable grounds for late filing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When does the §46110 60‑day filing period begin ("issued")? | Start when the order was actually received/delivered. | Start when the order was sent/mailed. | "Issued" means sent; deadline runs from mailing date. |
| Was Norber’s petition timely? | Petition filed within 60 days of actual receipt (Oct 29) so timely. | Petition filed after 60 days from mailing (Oct 2) so untimely. | Untimely; filed 66 days after mailing. |
| May the court permit late filing for "reasonable grounds"? | Late filing justified because Norber did not receive the mailed order earlier. | No reasonable grounds: Norber failed to update address and had 33 days after electronic receipt to file. | No reasonable grounds shown; nunc pro tunc relief denied. |
| Was there record support that the FAA mailed on Oct 2? | Initially challenged mailing proof. | FAA produced certified mail receipt and date‑stamped envelope. | Court accepted FAA’s mailing proof; did not further address challenge. |
Key Cases Cited
- Corbett v. TSA, 767 F.3d 1171 (11th Cir. 2014) (§46110 60‑day deadline is a claim‑processing rule, not jurisdictional)
- Greater Orlando Aviation Auth. v. FAA, 939 F.2d 954 (11th Cir. 1991) (treating FAA orders as entered on mailing date)
- Ruskai v. Pistole, 775 F.3d 61 (1st Cir. 2014) (interpreting “issued” to mean “sent” for §46110)
- Avia Dynamics, Inc. v. FAA, 641 F.3d 515 (D.C. Cir. 2011) ("issued" means officially made public)
- United States v. Locke, 471 U.S. 84 (U.S. 1985) (literal reading of statutory filing deadlines generally appropriate)
- Green v. Brantley, 981 F.2d 514 (11th Cir. 1993) (FAA termination orders are reviewable final orders)