Collins v. National Transp. Safety Bd.

• Decision Date: 19 December 2003
• Docket Number: Consolidated with 03-1001.,No. 02-1298.,02-1298.
• Citation: 351 F.3d 1246
• Parties: Thomas H. COLLINS, Petitioner, v. NATIONAL TRANSPORTATION SAFETY BOARD, Respondent. John Nitkin, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

351 F.3d 1246

Thomas H. COLLINS, Petitioner, v. NATIONAL TRANSPORTATION SAFETY BOARD, Respondent.

John Nitkin, Intervenor.

No. 02-1298.

Consolidated with 03-1001.

United States Court of Appeals, District of Columbia Circuit.

Argued October 10, 2003.

Decided December 19, 2003.

On Petitions for Review of Orders of the United States Department of Transportation.

John S. Koppel, Attorney, U.S. Department of Justice, argued the cause for petitioner. With him on the briefs were Peter D. Keisler, Assistant Attorney General, Roscoe C. Howard, Jr., U.S. Attorney, and Robert S. Greenspan, Attorney. Michael E. Robinson, Attorney, U.S. Department of Justice, entered an appearance.

Andrew W. Anderson argued the cause and filed the brief for intervenor.

Before: RANDOLPH, ROGERS, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge WILLIAMS.

STEPHEN F. WILLIAMS, Senior Circuit Judge:

A Coast Guard administrative law judge found that Captain John Nitkin committed misconduct by failing to sound the warning signal — five whistle blasts — required by treaty, specifically Rule 34(d) of the 1972 International Regulations for Preventing Collisions at Sea, 28 U.S.T. 3459 ("COLREGS"), when a collision threatens. The Commandant of the Coast Guard affirmed the ALJ's decision, but the National Transportation Safety Board reversed, finding that the text of Rule 34(d) rendered the rule inapplicable to the circumstances of Nitkin's accident. We grant the Coast Guard's petitions for review and remand.

* * *

On January 29, 1999 Captain Nitkin was serving as the pilot of the S/S Chelsea when it collided with the M/V Manzanillo in the Miami Harbor Channel. The two vessels had initially agreed to pass one another starboard-to-starboard, but as they approached each another, Captain Fernandez, the pilot of the Manzanillo, radioed Nitkin and announced his intention to attempt a port-to-port passing. Nitkin radioed Fernandez that a port-to-port passing was not possible and urged him to follow their original agreement by turning to port. But the Manzanillo in fact turned to starboard and, despite Nitkin's efforts to maneuver to safety, the two ships collided about 2½ minutes after the Manzanillo began its starboard turn.

At the time of the accident Nitkin was operating under the authority of a Coast Guard pilot's license. He was tried in a disciplinary proceeding before a Coast Guard ALJ for negligence and for violations of COLREGS Rule 14 (failure to turn to starboard in a head-on meeting situation), Rule 8(e) (failure to reduce speed or reverse engines), and Rule 34(d) (failure to sound warning signal). The ALJ dismissed the negligence charge and the Rule 14 and 8(e) misconduct charges, but found that Nitkin committed misconduct by failing to comply with Rule 34(d). That rule provides:

When vessels in sight of one another are approaching each other and from any cause either vessel fails to understand the intentions or actions of the other, or is in doubt whether sufficient action is being taken by the other to avoid collision, the vessel in doubt shall immediately indicate such doubt by giving at least five short and rapid blasts on the whistle.

COLREGS, 28 U.S.T. 3459, Part D, Rule 34(d).

The ALJ suspended Nitkin's license for five months, with four months remitted on probation. ALJ Final Order at 2. Nitkin appealed to the Commandant of the Coast Guard, raising four primary objections. Besides charging that the sanction was excessively harsh, Nitkin attacked the finding of a violation, arguing, first, that Rule 34(d) doesn't apply when the danger of collision develops so late that the warning signal would be useless; second, that any duty he had to warn the Manzanillo of the collision risk was satisfied by his radio communications with Fernandez; and third, that his failure to sound the warning signal was excusable under COLREGS Rule 2(b)'s exception for "special circumstances ... which may make a departure from these Rules necessary to avoid immediate danger." According to Nitkin, special circumstances existed in this case because the five-blast warning signal would have prevented communication with crew members at the Chelsea's bow.

The Commandant of the Coast Guard rejected all these claims and affirmed the ALJ's decision. Appeal of Nitkin, 2001 WL 34080161. We need not address the Commandant's reasoning, because although Nitkin raised essentially the same claims in his appeal to the NTSB under 49 U.S.C. § 1153, the Board reversed on quite different grounds and never reached the issues posed in Nitkin's appeal to the Commandant.

Rather, the Board's July 26, 2002 Opinion and Order, 2002 WL 1727347 ("July 26 Order"), rested on the following interrelated conclusions. First, the Board determined as a matter of law that Rule 34(d) is inapplicable in situations where a pilot is certain that the other vessel's conduct makes collision inevitable. The Board explained that, because Rule 34(d)'s plain text specifies that the warning signal requirement comes into play only when a pilot is "in doubt whether sufficient action [is] being taken by the [other vessel] to avoid collision" (emphasis added), the rule cannot apply where a pilot is certain that sufficient action is not being taken. July 26 Order, at 3-4 (quoting COLREGS Rule 34(d)).

Second, the Board made a factual determination that Nitkin was certain that the Manzanillo was not taking sufficient action to avoid a collision, rather than "in doubt" of the reverse. According to the Board, the ALJ had found that Nitkin "was not sure whether his vessel could avoid a collision after the unilateral decision of [Fernandez] to execute a port-side passing," but the Board concluded that this finding was unsupported by the record. July 26 Order, at 2-3.

The Coast Guard filed a notice of appeal (indeed, as we shall see, two) and we granted Nitkin's motion to intervene. Before we reach the merits, we must consider whether our jurisdiction is undercut either by the possibility that the Coast Guard Commandant does not qualify as a "person" entitled to appeal under 49 U.S.C. § 1153(a), or by the Coast Guard's prior filing of a request that the Board reconsider its July 26 Order.

Jurisdiction.

"Person." Although the word "person" is usually presumed not to include the sovereign, Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 780, 120 S.Ct. 1858, 1866, 146 L.Ed.2d 836 (2000); United States v. Cooper Corp., 312 U.S. 600, 604, 61 S.Ct. 742, 743, 85 L.Ed. 1071 (1941), this presumption can be overcome by an affirmative showing of statutory intent to the contrary. See Vermont Agency of Natural Res., 529 U.S. at 781, 120 S.Ct. at 1866 (citing Int'l Primate Prot. League v. Administrators of Tulane Educ. Fund, 500 U.S. 72, 83, 111 S.Ct. 1700, 1707, 114 L.Ed.2d 134 (1991)). Here 49 U.S.C. § 40102(a)(33) states that "`person,' in addition to its meaning under section 1 of title 1, includes a governmental authority," and 49 U.S.C. § 1101 explicitly applies the definitions in § 40102(a) to the chapter containing 49 U.S.C. § 1153. Thus, the statute authorizes jurisdiction over an appeal by the Commandant, so long as he has a "substantial interest in the order," 49 U.S.C. § 1153(a), as he clearly does.

Timing. A petition for judicial review of a final NTSB order must be filed no later than 60 days after the order, see 49 U.S.C. § 1153(a), and a request for administrative reconsideration must be filed within 30 days of the order, see Commandant v. Mintz, 4 N.T.S.B. 1976 (1984) (holding that the 30-day time limit established in the Rules of Practice for aviation proceedings, 49 C.F.R. § 821.50(b), should also apply to maritime proceedings). Here, the Coast Guard filed (1) an untimely request for administrative reconsideration on August 30, 2002 (35 days after the July 26 Order), which the NTSB dismissed as untimely on November 20, 2003, after the initial 60 days for seeking judicial review had run, (2) an initial petition for review on September 23, 2002 (59 days after the July 26 order), and (3) a second petition for review on January 3, 2003 (44 days after the Board's dismissal of its request for NTSB reconsideration). Thus, the sequence of orders and petitions is as follows:

• July 26, 2002: The Board issued its Order reversing the Coast Guard;

• August 30, 2002: The Coast Guard requested administrative reconsideration by the Board;

• September 23, 2002: The Coast Guard filed its first petition for judicial review;

• November 20, 2002: The Board rejected the request for administrative reconsideration as untimely;

• January 3, 2003: The Coast Guard filed its second petition for judicial review.

Attacking our jurisdiction, Nitkin correctly notes that our cases treat a petition for review filed during the pendency of a request for administrative reconsideration as "incurably premature," see TeleSTAR, Inc. v. FCC, 888 F.2d 132, 133-34 (D.C.Cir. 1989), and in effect a nullity. As Nitkin acknowledges, the reconsideration request ordinarily tolls the running of the time limit for judicial review. Id. at 133. See also Outland v. Civil Aeronautics Bd., 284 F.2d 224, 227-28 (D.C.Cir.1960); City of Pittsburgh v. Federal Power Comm., 237 F.2d 741, 749 (D.C.Cir.1956). But, Nitkin argues, the Supreme Court said in Bowman v. Lopereno, 311 U.S. 262, 61 S.Ct. 201, 85 L.Ed. 177 (1940), that an untimely request for agency reconsideration could not extend the time for appeal (although it actually held that if the agency addressed the merits of such a request, its ultimate denial thereof would start a new period for seeking review), id. at 266, 61 S.Ct. at 203-04.

We can find jurisdiction without resolving the precise effect of the untimely request for NTSB reconsideration. If the request suspended the running of the time limit for appeal, then the Coast Guard's second petition for review was timely; if it did not, then the initial...