933 F. 2d 1013 - Brod v. National Transportation Safety Board

No. 90-70142.

United States Court of Appeals, Ninth Circuit.

Before EUGENE A. WRIGHT and O'SCANNLAIN, Circuit Judges, and LEW**

MEMORANDUM***

Brod petitions for review of the NTSB's order affirming the denial of his motion to dismiss the FAA's late-filed complaint. The FAA suspended his pilot's license for 60 days. He contends the order is arbitrary and capricious because it contravenes NTSB policy. We AFFIRM.

Brod filed a timely notice of appeal with the NTSB, appealing the FAA's license suspension. The agency filed its complaint with the NTSB more than five days after Brod's notice of appeal. A regulation provides that the complaint shall be filed within five days of the notice of appeal. 49 C.F.R. Sec. 821.31(a) (1984).

Brod moved to dismiss, arguing that the failure to file a timely complaint deprived the NTSB of jurisdiction. The ALJ denied the motion, and the full Board affirmed. On petition for review, Brod argues that the failure to file a timely complaint was arbitrary and capricious because it contravened Board policy. He asks for a remand to the ALJ with instructions to dismiss the complaint.

Agency action will be upheld unless "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law." Winslow v. National Transp. Safety Bd., 885 F.2d 615, 617 (9th Cir.1989) (quoting 5 U.S.C. Sec. 706(2)(A) (1982)). A court may reverse an agency order only for substantial errors in administrative procedure that prejudiced petitioner. Kolek v. Engen, 869 F.2d 1281, 1286 (9th Cir.1989).

Brod contends that in failing to dismiss the late-filed complaint, the NTSB ignored its policy set forth in Administrator v. Hooper, NTSB Order EA-2781 (1988) (on remand from the Ninth Circuit). In Hooper, the Board stated:

[The NTSB] intends to adhere uniformly to a policy requiring the dismissal, absent a showing of good cause, of all appeals in which timely notices of appeal, timely appeal briefs or timely extension requests to submit those documents have not been filed.

Order at 3-4. The judge accepted the late-filed complaint without a finding of good cause.

The Hooper policy is inapposite. It addresses only three types of filings: notices of appeal, appeal briefs, and requests to extend time for submission of documents. Brod has cited no case where the policy was applied to complaints, nor has he argued for an extension of the policy to complaints.

The NTSB consistently has accepted complaints filed after the five-day period set forth in 49 C.F.R. Sec. 821.31(a). See Kolek v. Engen, 869 F.2d 1281 (9th Cir.1989), aff'g Administrator v. Kolek, NTSB Order EA-2402 (1986); Administrator v. Kortum, 3 N.T.S.B. 1031, 1032 (1978); Administrator v. May, 2 N.T.S.B. 2578, 2579 (1976). We conclude that the Board's decision does not depart from NTSB precedent and is not arbitrary or capricious.

Finally, the FAA's late filing of the complaint was an insubstantial procedural error, inadequate to support reversal of the Board's order, because Brod failed to show prejudice due to the late filing. See Kolek v. Engen, 869 F.2d 1281, 1286 (9th Cir.1989).

The order is AFFIRMED.