Gilbert v. National Transp. Safety Bd.
| Decision Date | 02 April 1996 |
| Docket Number | No. 94-70456,94-70456 |
| Citation | 80 F.3d 364 |
| Parties | 96 Cal. Daily Op. Serv. 2259, 96 Daily Journal D.A.R. 3749 Jerry Wayne GILBERT, Petitioner, v. NATIONAL TRANSPORTATION SAFETY BOARD; Federal Aviation Administration, Respondents. |
| Court | U.S. Court of Appeals — Ninth Circuit |
David Bettencourt, Honolulu, Hawaii, for the petitioner.
Joyce L. Redos and Robert P. Vente, Federal Aviation Administration, Washington, D.C., for respondent FAA.
Petition to Review a Decision of the National Transportation Safety Board.
Before: REINHARDT, THOMPSON and O'SCANNLAIN, Circuit Judges.
The Federal Aviation Administration (FAA) temporarily suspended Jerry Wayne Gilbert's pilot's license for safety violations. In this petition for review, Gilbert argues the National Transportation Safety Board (NTSB or Board) acted arbitrarily and capriciously by dismissing his appeal to the full Board because he did not file a timely brief We have jurisdiction under 49 U.S.C. § 1153(a), and we deny review. We hold the NTSB did not act arbitrarily or capriciously in strictly applying its time deadlines for the filing of Gilbert's brief and for filing a request for an extension of time. We also hold that even though Gilbert did not present his constitutional claims to the NTSB, we have jurisdiction to consider those claims, and we reject them on the merits.
or a timely request for an extension of time in which to file the brief. Gilbert also contends he was denied due process by the procedures used by the FAA and the NTSB to suspend his license
The FAA mailed Gilbert, a commercial pilot, a "notice of proposed certificate action," which alleged Gilbert had violated certain safety regulations. Specifically, the notice alleged Gilbert had operated an aircraft in a careless or reckless manner, and notified him that the FAA intended to temporarily suspend his pilot's license for ninety days. The notice also stated that he could request an informal conference with an FAA attorney to discuss the matter.
Gilbert requested an informal conference, but chose not to attend the conference in person. Instead, he participated by telephone. The matter was not resolved, and the FAA Administrator issued an order suspending his license for ninety days.
Gilbert appealed that order to the NTSB. An NTSB Administrative Law Judge (ALJ) conducted a full evidentiary hearing and affirmed the Administrator's order of suspension in its entirety.
Gilbert then filed a timely notice of appeal from the ALJ's decision to the full Board. Gilbert obtained one extension of time in which to file his appellate brief. Pursuant to this extension, his brief was due on Friday, January 7, 1994. Under the Board's rules, Gilbert could comply by mailing his brief postmarked on that day.
On that day, Gilbert's counsel was in California working on another case. He had a laptop computer with him which contained the brief. He was unable to print the brief, however, because of a printer compatibility problem. After discovering the problem, he did not attempt to contact the FAA or the NTSB in Washington, D.C., because he assumed, probably correctly, the offices had closed for the day. He filed the brief by mailing it to the NTSB the following Monday. He did not attempt to obtain an additional extension and did not mention the late filing.
The FAA moved for dismissal of the appeal on the ground that Gilbert's brief was not timely filed. The NTSB granted the motion. The NTSB stated that, while Gilbert may have demonstrated good cause for not filing the brief on time, he did not demonstrate good cause for failing to request an additional extension before the filing deadline.
We first determine whether we have jurisdiction to review Gilbert's constitutional claims raised for the first time in this court. He argues the FAA denied him due process by temporarily suspending his license without giving him adequate notice and an opportunity to be heard. He also argues he was denied due process because the NTSB is without legal authority to dismiss an appeal for a "minor procedural defect" without a showing of prejudice.
The FAA argues Gilbert lost his ability to raise his constitutional claims before this court because he did not perfect a timely appeal to the full Board. As a result, the FAA argues, our jurisdiction is limited to deciding whether the Board acted arbitrarily or capriciously by dismissing Gilbert's appeal.
Gilbert argues we have jurisdiction to consider his constitutional claims because the NTSB was without the power or jurisdiction to consider them. Because the NTSB could not consider his constitutional claims, he argues, he was not required to present them to that agency in order to obtain judicial review.
Generally, challenges to the constitutionality of a statute or a regulation promulgated by an agency are beyond the power or the jurisdiction of an agency. Reid v. Engen, 765 F.2d 1457, 1461 (9th Cir.1985); Liu v. Waters, 55 F.3d 421, 425 (9th Cir.1995). Because the agency lacks the authority to review such claims, a petitioner need not exhaust the claims before seeking judicial review. Howard v. FAA, 17 F.3d 1213, 1218 (9th Cir.1994). Thus, in conjunction with a properly appealed adjudicative order from the NTSB, we may consider constitutional claims, regardless of whether the petitioner presented the claims to the NTSB. See Greve v. CAB, 378 F.2d 651, 656 (9th Cir.1967).
Here, Gilbert challenges the constitutionality of the procedures used by the FAA and the NTSB. Those agencies are without the power or jurisdiction to adjudicate these constitutional claims. Cf. Reid, 765 F.2d at 1461. If judicial review were not permitted, Gilbert would be deprived of a forum in which to raise his constitutional claims. Cf. Clark v. Busey, 959 F.2d 808, 811 (9th Cir.1992) (); Roundtree v. United States, 40 F.3d 1036, 1038 (9th Cir.1994) (same).
A petitioner, however, may not obtain judicial review simply by invoking the term "due process." As we recognized in Reid, due process "is not a talismanic term which guarantees review in this court of procedural errors correctable by the administrative tribunal." 765 F.2d at 1461. If the alleged constitutional violation amounts to a mere procedural error, which the NTSB could have remedied if properly presented to the NTSB, a petitioner may not obtain judicial review by asserting the error amounted to a deprivation of due process. Id.
In the present appeal, Gilbert's claims do not allege mere procedural errors. He challenges the due process afforded him by the FAA prior to imposition of the suspension of his pilot's license. He also challenges, on due process grounds, the NTSB's authority to adopt a strict procedural rule for the dismissal of his appeal for what he characterizes as a minor procedural, nonprejudicial defect. Therefore, we will address Gilbert's constitutional claims. 1 We review these claims de novo. Henderson v. FAA, 7 F.3d 875, 879 (9th Cir.1993); Go Leasing v. NTSB, 800 F.2d 1514, 1517 (9th Cir.1986).
Before temporarily suspending Gilbert's license, the FAA sent him a written "notice of proposed certificate action," informing him that an investigation had revealed safety violations and that the FAA intended to temporarily suspend his license. The notice also provided Gilbert with the option of an informal conference before imposition of the suspension.
We have previously concluded that this procedure of written notice and an informal conference does not deprive a petitioner of due process. Reid, 765 F.2d at 1463; Greenwood v. FAA, 28 F.3d 971, 975 (9th Cir.1994). Further, Gilbert had a full evidentiary hearing before an ALJ and an opportunity to appeal the ALJ's decision to the full Board and to this court before the suspension was imposed. Gilbert's first due process claim, therefore, lacks merit.
Gilbert next argues that due process precludes the NTSB from adopting and enforcing a strict procedural rule which permits it to dismiss an appeal for failure to file a timely brief, when no prejudice from a late filing would result. We reject this argument.
The NTSB is free to adopt and enforce a strict procedural rule, so long as it applies the rule uniformly or with reasoned distinctions. Green Country Mobilephone v. FCC, 765 F.2d 235, 237 (D.C.Cir.1985); Hooper v. NTSB, 841 F.2d 1150, 1151 n. 2 (D.C.Cir.1988). In Hooper, the...
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