Dandino, Inc. v. U.S. Dep't of Transp.

• Decision Date: 30 August 2013
• Docket Number: No. 11–72113.,11–72113.
• Parties: DANDINO, INC., Petitioner, v. U.S. DEPARTMENT OF TRANSPORTATION; Federal Motor Carrier Safety Administration, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

729 F.3d 917

DANDINO, INC., Petitioner,

v.U.S. DEPARTMENT OF TRANSPORTATION; Federal Motor Carrier Safety Administration, Respondents.

No. 11–72113.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 10, 2013.

Filed Aug. 30, 2013.

Validity Called into Doubt

49 C.F.R. § 386.67(a)Jeffrey D. Nadel (argued), Law Office of Jeffrey D. Nadel, Encino, CA, for Petitioner.

Jonathan H. Levy (argued), Michael Jay Singer, and Constance A. Wynn, Attorneys; Tony West, Assistant Attorney General; Stuart F. Delery, Acting Assistant Attorney General; United States Department of Justice, Civil Division, Washington, D.C., for Respondent.

On Petition for Review of an Order of the Federal Motor Carrier Safety Administration.

Before: RICHARD C. TALLMAN and MILAN D. SMITH, JR., Circuit Judges, and LEE H. ROSENTHAL, District Judge.^*

OPINION

M. SMITH, Circuit Judge:

Dandino, Inc. petitions under 49 U.S.C. § 521(b)(9) for review of an order of the Federal Motor Carrier Safety Administration (FMCSA, or the Agency). The Agency asserts that Dandino's petition is untimely, and should be dismissed without consideration of its merits. Because we hold that § 521(b)(9) permits a party to file a petition for review with the proper court of appeals within 30 days of actual notice of the FMCSA's final order, we conclude that Dandino's petition was filed timely. However, we also find that Dandino's petition lacks merit, and we affirm the Agency's order.

BACKGROUND AND JURISDICTION

The FMCSA, an agency within the Department of Transportation (DOT), has authority to impose civil penalties on certain persons and entities who violate DOT regulations. 49 U.S.C. § 521. Parties adversely affected by final agency orders imposing such penalties are entitled to seek review of such orders by a court of appeals. § 521(b)(9).

Dandino is a motor carrier of household goods. It applied to the FMCSA to change its company name from “Dandino Inc. d/b/a Relo Moving” to “Dandino Inc. d/b/a Winston.” The FMCSA approved the name change. In the same order, it also gave notice that:

Within 30 days after this decision is served, the applicant must establish that it is in full compliance with the statute and the insurance regulations.... The applicant is notified that failure to comply with the terms of this decision shall result in revocation of its operating rights registration, effective 30 days from the service date of this decision.

Despite the notice, Dandino failed to demonstrate timely to the Agency that it was in compliance with all applicable laws and regulations. The Agency then sent Dandino a second notice reading, in pertinent part:

The transportation entity, having failed to comply with the terms of the decision, is hereby notified that its authority registration has been revoked effective July 26, 2010.

Dandino eventually provided the Agency with proof that it was in compliance with the regulations, and the Agency reinstated Dandino's registration, effective August 23, 2010. However, during the gap period between July 26 and August 23, 2010, Dandino transported household goods from California to Texas on or about August 1, 2010—a fact Dandino does not dispute.

The FMCSA fined Dandino for transporting goods after the Agency had revoked its operating authority, and before that authority was reinstated. Dandino disputed the penalty in a proceeding before the Agency. The FMCSA issued a nine-page final order (Order), signed on June 23, 2011, affirming the penalty. According to the Certificate of Service attached to the Order, the Agency sent the Order to Dandino by U.S. mail on June 24, 2011. Dandino petitioned our court for review of the Order on July 26, 2011.

We have jurisdiction to review final civil penalty orders of the Agency pursuant to 49 U.S.C. § 521(b)(9).

DISCUSSION

A.

In order to determine whether Dandino's petition was timely, we must first determine when it was due. In order to make that determination, we look to the statute that grants us jurisdiction to review the Order. That statute provides:

Any aggrieved person who, after a hearing, is adversely affected by a final order issued under this section may, within 30 days, petition for review of the order in the United States Court of Appeals in the circuit wherein the violation is alleged to have occurred or where the violator has his principal place of business or residence....

49 U.S.C. § 521(b)(9). Dandino notes that the statutory text begs a question: a petitionfor review is due “within 30 days,” but “within 30 days” of what?

In order to clarify this ambiguity, we “begin, as always, with the language of the statute,” in an attempt to divine the intent of Congress. See Duncan v. Walker, 533 U.S. 167, 172, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001); see also Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438, 119 S.Ct. 755, 142 L.Ed.2d 881 (1999). The statute says that an “aggrieved person who, after a hearing, is adversely affected by a final order issued under this section” may appeal to a court of appeals. The statutory language suggests that the 30–day filing period begins on the day the “aggrieved person” is “adversely affected” by the FMCSA's final order. But how can a person know that he has been “adversely affected” by such an order unless he has received the order and considered its contents? Common sense suggests that he cannot. We therefore conclude that the plain language of the statute strongly suggests that Congress intended the 30–day period to begin running from the date that the person adversely affected by the final order receives notice of the decision.

The FMCSA argues instead that the limitations period runs from “issuance” of the final agency order. This argument is problematic, because the meaning suggested by the Agency does not follow from the wording of the statute itself. The term “issued under this section” serves to further define the “final order” to which it refers, but has no direct connection to the “30 day” proviso. The Ninth Circuit authority on which the Agency relies does not suggest otherwise. In each of those cases, Congress specifically stated that the period ran from the “issuance” of an order. See Dierkes v. Dep't of Labor, 397 F.3d 1246, 1247 (9th Cir.2005) (interpreting statute stating that “[t]he petition for review must be filed within sixty days from the issuance of the Secretary's order”); Haroutunian v. INS, 87 F.3d 374, 375 (9th Cir.1996) (interpreting statute stating that “a petition for review may be filed ... not later than 30 days after the issuance of such order”); Stevedoring Servs. of Am. v. Dir., Office of Workers' Comp. Programs, 29 F.3d 513, 515 n. 2 (9th Cir.1994) (interpreting statute stating that “any person adversely affected or aggrieved by a final order may obtain a review of that order ... by filing in such court within sixty days following the issuance of such Board order a written petition”). Given these repeated instances in which Congress has expressly stated that a period begins with the “issuance” of an order, the Agency has not explained why Congress declined to do so here. We therefore reject the Agency's suggestion that the limitations period runs from issuance of the order. We hold instead that under § 521(b)(9), a party may file a petition with the appropriate court of appeals for review of a final agency order within 30 days of actual notice of the order.¹

B.

We next consider when a party actually receives notice of a final agency order. When an order is sent by certified mail, return receipt requested, or delivered by some other means that results in a proof of receipt, or an affidavit of personal delivery, the date of actual notice is easily ascertained. However, when a document is posted without certification and a return receipt request in the U.S. mail, as it was here, it is not always clear if or when the party received the document.²

Generally, “[u]nder the common law Mailbox Rule, proper and timely mailing of a document raises a rebuttable presumption that it is received by the addressee.” Mahon v. Credit Bureau of Placer Cnty. Inc., 171 F.3d 1197, 1202 (9th Cir.1999) (internal quotation marks and citations omitted). But even if we presume that a posted document ultimately arrived, that does not tell us when we presume it to have arrived. Since posted materials almost never arrive at their intended destination on the day they are mailed, we must consider relevant authorities to determine what presumptions may apply regarding when a posted document is presumed to have been received.

The United States Postal Service's regulations state that first class mail sent within the contiguous United States will arrive within three days. 39 C.F.R. § 121, App. A. We and other circuits have relied on this assumption in our case law. See, e.g., Mendez v. Knowles, 556 F.3d 757, 765 (9th Cir.2009) (“[T]he Postal Service advises its customers that first-class mail takes one to three days for delivery....”); Lindemood v. Comm'r of Internal Revenue, 566 F.2d 646, 647 (9th Cir.1977) (“[T]he normal delivery time for first-class mail sent from San Francisco to Washington, D.C., is three days....”); see also Cook v. Comm'r of Soc. Sec., 480 F.3d 432, 436 (6th Cir.2007) (“[T]he usual delivery time for first-class mail is one to three days [.]”). Moreover, the United States Supreme Court has also assumed that a right-to-sue letter from the Equal Employment Opportunity Commission (EEOC) was received three days after mailing. Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 148 n. 1, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984).

Similarly, the rules of the respective federal courts all assume that mail will take three days to arrive at its destination. Those rules provide that when a party must act within a certain number of days of service of a document, and that document is served by mail, the deadline is extended by three days. Fed. R.App. P. 26(c); Fed.R.Civ.P. 6(d); Fed.R.Crim.P. 45(c); Fed. R. Bankr.P. 9006(...