Full Opinion (html_with_citations)

Appellate Case: 23-9506       Document: 010110971987    Date Filed: 12/20/2023     Page: 1
                                                                                  FILED
                                                                      United States Court of Appeals
                                        PUBLISH                               Tenth Circuit

                         UNITED STATES COURT OF APPEALS                     December 20, 2023
                                                                         Christopher M. Wolpert
                               FOR THE TENTH CIRCUIT                         Clerk of Court
                           _________________________________


  BRUCE MCWHORTER,

        Petitioner,

  v.                                                          No. 23-9506

  FEDERAL AVIATION
  ADMINISTRATION, Michael Whitaker,
  Administrator, ∗

        Respondent.
                           _________________________________

                      Appeal from the Federal Aviation Administration
                                (FAA No. 2021NM030020)
                          _________________________________

 Submitted on the briefs: †

 Stephenson D. Emery, Williams, Porter, Day & Neville P.C., Casper, Wyoming, for
 Petitioner.

 Casey E. Gardner, Office of the Chief Counsel, Federal Aviation Administration,
 Washington, D.C., for Respondent.

        ∗
         On October 27, 2023, Michael Whitaker became Administrator of the Federal
 Aviation Administration, replacing former Acting Administrator Billy Nolen. By
 operation of Federal Rule of Appellate Procedure 43(c)(2), Mr. Whitaker has been
 substituted as the Respondent in this case.
        †
         After examining the briefs and appellate record, this panel has determined
 unanimously that oral argument would not materially assist in the determination of
 this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
 ordered submitted without oral argument.
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                          _________________________________

 Before BACHARACH, BRISCOE, and McHUGH, Circuit Judges.
                  _________________________________

 McHUGH, Circuit Judge.
                   _________________________________

       In July 2022, the Federal Aviation Administration (“FAA”) revoked Bruce

 McWhorter’s mechanics certification after learning he had not replaced certain

 components of an aircraft’s engine despite having made a maintenance logbook entry

 stating that he performed a “major overhaul[]” of the engine. Agency Record at 1–6.

 Mr. McWhorter appealed the revocation order to an administrative law judge, who

 affirmed the order. Mr. McWhorter then sought to appeal the administrative law

 judge’s decision to the National Transportation Safety Board (“NTSB”). Although

 Mr. McWhorter filed his notice of appeal with the NTSB on time, he failed to timely

 serve the FAA with his notice of appeal. The FAA moved to dismiss

 Mr. McWhorter’s appeal to the NTSB for failure to effect timely service on the FAA.

 In response, Mr. McWhorter’s counsel described the shortcoming as an

 “administrative oversight” because he “inadvertently failed to forward a copy of the

 notice to the [FAA].” Id. at 614. The NTSB attributed Mr. McWhorter’s counsel’s

 shortcoming to Mr. McWhorter, concluded he lacked good cause for the delay in

 service of process, and granted the FAA’s motion to dismiss on October 6, 2022.

       On January 25, 2023—111 days after the NTSB issued its final order—

 Mr. McWhorter petitioned for review of the NTSB’s dismissal of his appeal,

 invoking this court’s jurisdiction under
49 U.S.C. § 1153
(b)(1). But, under that

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 statute, absent “a reasonable ground” for failing to do so, the “petition must be filed

 not later than 60 days after the order is issued.”
Id.

        Our decisional law, while unpublished and therefore nonprecedential, has

 characterized the sixty-day time limit in § 1153(b) as “jurisdictional.” We take this

 opportunity to clarify that § 1153(b)’s sixty-day time limit on seeking appellate

 review is a claim-processing rule rather than a “jurisdictional” requirement. Stated

 differently, a petitioner’s failure to comply with the time limits prescribed by

 § 1153(b) does not affect this court’s jurisdiction to entertain such an appeal. Rather,

 an untimely petition under that statute does no more than provide the FAA with a

 basis to argue that this court should deny the petition. Exercising jurisdiction under

 § 1153(b), we conclude Mr. McWhorter has not established the existence of “a

 reasonable ground” for delay in filing his petition for review, and we deny his

 petition as untimely.

                                 I.     JURISDICTION

        Some thirty years ago, the Supreme Court instructed that a variety of

 procedural prerequisites to the filing of certain claims and appeals—for example, and

 as relevant here, time limits on the ability to seek appellate review of final agency

 orders—if not met, divest federal courts of jurisdiction to hear such matters. See, e.g.,

 Stone v. I.N.S.,
514 U.S. 386, 405
 (1995) (“[S]tatutory provisions specifying the

 timing of review . . . are, as we have often stated, ‘mandatory and jurisdictional . . . .”

 (quoting Missouri v. Jenkins,
495 U.S. 33, 45
 (1990))).



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        In more recent years, however, the Court has revisited its precedent

 implicating this issue:

        “Jurisdiction,” this Court has observed, “is a word of many, too many,
        meanings.” Steel Co. v. Citizens for Better Env’t,
523 U.S. 83, 90
        (1998). This Court, no less than other courts, has sometimes been
        profligate in its use of the term. For example, this Court and others have
        occasionally described a nonextendable time limit as “mandatory and
        jurisdictional.” See, e.g., United States v. Robinson,
361 U.S. 220, 229
        (1960). But in recent decisions, we have clarified that time
        prescriptions, however emphatic, “are not properly typed
        ‘jurisdictional.’” Scarborough v. Principi,
541 U.S. 401, 414
 (2004).

 Arbaugh v. Y & H Corp.,
546 U.S. 500, 510
 (2006).

        In policing this line, the Court has “emphasized the distinction between limits

 on ‘the classes of cases a court may entertain (subject-matter jurisdiction)’ and

 ‘nonjurisdictional claim-processing rules, which seek to promote the orderly progress

 of litigation by requiring that the parties take certain procedural steps at certain

 specified times.’” Wilkins v. United States,
598 U.S. 152, 157
 (2023) (quoting Fort

 Bend Cnty. v. Davis,
139 S. Ct. 1843, 1846
 (2019)). Decisions that treat mere claim-

 processing rules as “jurisdictional,” the Court has noted, may actually disrupt rather

 than promote the orderly progress of litigation, because jurisdictional defects may be

 raised at any stage of litigation and on appeal—that is, even after courts and the

 parties devote substantial time and resources to the resolution of a dispute. See id. at

 158 (“Given this risk of disruption and waste that accompanies the jurisdictional

 label, courts will not lightly apply it to procedures Congress enacted to keep things

 running smoothly and efficiently.”).



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       To avoid the risk of contravening the Congressional intent of such claim-

 processing rules, we regard a procedural rule as “jurisdictional” only if “traditional

 tools of statutory construction . . . plainly show that Congress imbued a procedural

 bar with jurisdictional consequences.” United States v. Wong,
575 U.S. 402
, 410

 (2015). Stated differently, courts may “treat a procedural requirement as

 jurisdictional only if Congress ‘clearly states’ that it is.” Wilkins,
598 U.S. at 157

 (quoting Boechler v. Comm’r,
142 S. Ct. 1493
, 1497 (2022)). Application of this rule

 has “made plain that most time bars are nonjurisdictional.” 1
Id.
 at 158 (quoting

 Wong, 575 U.S. at 410).

       With respect to the lax application of the “jurisdictional” label in existing

 precedent, “the Supreme Court has instructed that ‘drive-by jurisdictional

 rulings . . .have no precedential effect.’” Gad v. Kan. State Univ.,
787 F.3d 1032, 1040
 (10th Cir. 2015) (quoting Steel Co.,
523 U.S. at 91
). A “drive-by” jurisdictional

 ruling occurs when an opinion “simply states that ‘the court is dismissing “for lack of

 jurisdiction” when some threshold fact has not been established.’” Wilkins,
598 U.S. at 160
 (quoting Arbaugh,
546 U.S. at 511
).




       1
          In recent years, we have taken the opportunity to apply the Supreme Court’s
 modern framework to other statutory requirements we had once deemed
 jurisdictional. See, e.g., Lincoln v. BNSF Ry. Co.,
900 F.3d 1166, 1185
 (10th Cir.
 2018) (overruling precedent characterizing administrative exhaustion requirements as
 jurisdictional, explaining that a failure to exhaust “merely permits the [defendant] to
 raise an affirmative defense of failure to exhaust but does not bar a federal court from
 assuming jurisdiction over a claim”).

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       This appeal implicates precisely such a “drive-by” jurisdictional ruling. In

 Nadal v. Federal Aviation Administration,
276 F. App’x 780
 (10th Cir. 2008)

 (unpublished), we issued a brief, unpublished order dismissing an untimely petition

 brought under § 1153(b)(1) for lack of jurisdiction. “[S]tatutory provisions specifying

 the timing of review,” we noted, are “mandatory and jurisdictional.” Id. at 781

 (quoting Stone,
514 U.S. at 405
). While Nadal, as an unpublished decision, was

 without precedential effect in the first instance, we now clarify that its

 characterization of the sixty-day deadline as “jurisdictional,” without elaboration, is

 properly regarded as a “drive-by” jurisdictional ruling entitled neither to precedential

 effect nor persuasive value. 2 Contra 10th Cir. R. 32.1(A) (“Unpublished decisions

 are not precedential, but may be cited for their persuasive value.”).

       We have little trouble concluding the sixty-day time limitation in § 1153(b),

 like most time bars, is devoid of anything approaching a clear statement that

 Congress intended the time bar to have jurisdictional consequences. We begin with

 the presumption that “most time bars are nonjurisdictional.” Wilkins,
598 U.S. at 158

 (quoting Wong, 575 U.S. at 410). With that starting point, the FAA must point to



       2
          Nadal v. Federal Aviation Administration,
276 F. App’x 780
 (10th Cir. 2008)
 (unpublished), is one of several decisions from the courts of appeal that summarily
 concluded that the sixty-day time limit in
49 U.S.C. § 1153
(a) and (b) is
 jurisdictional. See, e.g., Bennett v. Nat’l Transp. Safety Bd.,
2 F. App’x 305, 306
 (4th
 Cir. 2001) (“We therefore deny the petition for lack of jurisdiction because Bennett’s
 petition was not timely filed.”); Tiger Int’l, Inc. v. Civil Aeronautics Bd.,
554 F.2d 926
, 931 n.11 (9th Cir. 1977) (“Time limitations for certiorari, appeal and review set
 out in statutes are uniformly regarded as jurisdictional.”).

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 something in the statutory language that amounts to a “clear statement” that Congress

 intended to deviate from its general approach to claim-processing deadlines and

 render this time bar jurisdictional. But the FAA adduces no such language, and our

 review discloses none. Indeed, § 1153(b)(1) states that the “petition must be filed not

 later than 60 days after the order is issued,” and the word “jurisdiction” is wholly

 absent from that subsection. Under this controlling standard, we hold that the

 procedural requirement in § 1153(b) to petition this court for review within sixty

 days after the issuance of a final order is not jurisdictional. 3

        II.     “REASONABLE GROUNDS” FOR UNTIMELY PETITION

        Having concluded that we may exercise jurisdiction over this appeal

 notwithstanding Mr. McWhorter’s tardy petition, we must next determine whether he

 may defeat the denial of his untimely petition by establishing the existence of

 “reasonable grounds” that would excuse his delay.
49 U.S.C. § 1153
(b)(1).

        Mr. McWhorter asserts two bases as “reasonable grounds” for his untimely

 petition. 4 First, that he was unaware of his right to petition this court for review



        3
          This conclusion is consistent with our sister circuits’ interpretation of a
 markedly similar statute,
49 U.S.C. § 46110
(a), which, like § 1153(b), prescribes a
 sixty-day deadline for petitions for review, but permits untimely petitions upon a
 showing of “reasonable grounds.” See Corbett v. Transp. Sec. Admin.,
767 F.3d 1171, 1178
 (11th Cir. 2014) (“[T]he 60-day deadline [in § 46110(a)] is not jurisdictional.”);
 Avia Dynamics, Inc. v. F.A.A.,
641 F.3d 515, 519
 (D.C. Cir. 2011) (“[W]e hold that
 the sixty-day deadline [in § 46110(a)] does not constitute a jurisdictional bar.”).
        4
          Mr. McWhorter also suggests, without citation to authority, that his untimely
 petition to this court resulted in no prejudice to the FAA. But we cannot see how this
 assertion could inform our “reasonable grounds” analysis, where, by its plain terms,
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 because his counsel neglected to inform him of it. And second—and relatedly—that

 his counsel abandoned him following the dismissal of his NTSB appeal, and he was

 consequently forced to proceed pro se for the duration of the sixty-day deadline to

 file his petition. Neither of these circumstances amount to “reasonable grounds.”

       While there is scant case law giving meaning to “reasonable grounds” in

 § 1153(b), there is a wealth of authority animating that standard in the substantially

 similar context of
49 U.S.C. § 46110
(a). Under § 46110(a), courts addressing this

 standard “have ‘rarely found reasonable grounds’” for petitions filed after sixty days

 have elapsed. Nat’l Fed’n of the Blind v. U.S. Dep’t of Transp.,
827 F.3d 51, 57
 (D.C.

 Cir. 2016) (quoting Elec. Privacy Info. Ctr. v. F.A.A.,
821 F.3d 39
, 42–44 (D.C. Cir.

 2016)). Indeed, the weight of authority holds that only “[a]gency-created confusion”

 can satisfy that standard. Tulsa Airports Improvement Tr. v. F.A.A.,
839 F.3d 945, 950
 (10th Cir. 2016) (collecting authority recognizing agency-created confusion as a

 basis for “reasonable grounds”); see Howard Cnty. v. F.A.A.,
970 F.3d 441, 450
 (4th

 Cir. 2020) (“[O]ur sister circuits have generally found reasonable grounds . . . only

 where . . . the FAA left the parties ‘with the impression that it would address their

 concerns by replacing its original order with a revised one’ or otherwise ‘created

 confusion’ about the finality of its order” (quoting first City of Phoenix v. Huerta,
869 F.3d 963, 970
 (D.C. Cir. 2017), then Tulsa Airports Improvement Tr., 839 F.3d




 § 1153(b) focuses only on the circumstances that caused Mr. McWhorter’s
 procedural default.

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 at 950)); Greater Orlando Aviation Auth. v. F.A.A.,
939 F.2d 954, 960
 (11th Cir.

 1991) (holding that confusion created by the FAA “present[ed] reasonable grounds”

 for petitioner’s delay), abrogated on other grounds by Henderson v. Shinseki,
562 U.S. 428
, 438 (2011), as recognized in Corbett v. T.S.A.,
767 F.3d 1171, 1174
 (11th

 Cir. 2014). Meanwhile, “[i]n cases where the petitioner ‘is primarily to blame for the

 delay’ . . . courts have generally ‘refused’ to find reasonable grounds, even where the

 delay resulted from ‘a petitioner’s honest and understandable mistake.’” Howard

 Cnty.,
970 F.3d at 450
 (quoting Howard Cnty. v. FAA,
818 F. App’x 224
, 228 (4th

 Cir. 2020) (unpublished)). Mr. McWhorter makes no argument that the NTSB acted

 in ways that obscured the final nature of the dismissal of his appeal to that board, and

 he thus cannot avail himself of this route to establishing “reasonable grounds.”

       Moreover, a failure to comply with a procedural requirement is not generally

 excused when non-compliance is caused by counsel’s deficient representation. See

 Link v. Wabash R.R. Co.,
370 U.S. 626
, 633–34 (1962) (“Petitioner voluntarily chose

 this attorney as his representative in the action, and he cannot now avoid the

 consequences of the acts or omissions of this freely selected agent.”); Gripe v. City of

 Enid,
312 F.3d 1184, 1189
 (10th Cir. 2002) (“Plaintiff argues against the harshness

 of penalizing him for his attorney’s conduct. But there is nothing novel here. Those

 who act through agents are customarily bound by their agents’ mistakes. It is no

 different when the agent is an attorney.”). And Mr. McWhorter’s pro se status during

 the sixty-day period does not exempt him from compliance with ordinary procedural

 rules. See Ogden v. San Juan Cnty.,
32 F.3d 452, 455
 (10th Cir. 1994) (“[A]n

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  appellant’s pro se status does not excuse the obligation of any litigant to comply with

  [procedural rules].”).

        Because Mr. McWhorter advances no judicially cognizable bases for his

  untimely petition for review, we conclude he has failed to establish “reasonable

  grounds” for the same.

                                 III.   CONCLUSION

        We DENY Mr. McWhorter’s petition for review as untimely.




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