            Case: 15-15438    Date Filed: 12/15/2016   Page: 1 of 7


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-15438
                         Non-Argument Calendar
                       ________________________

                              Agency No. FAA



ERIC NORBER,

                                                                        Petitioner,

                                    versus

FEDERAL AVIATION ADMINISTRATION,

                                                                      Respondent.

                       ________________________

                  Petition for Review of a Decision of the
                      Federal Aviation Administration
                        ________________________

                             (December 15, 2016)

Before HULL, WILSON, and MARTIN, Circuit Judges.

PER CURIAM:
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      Eric Norber seeks review of the Federal Aviation Administration’s (“FAA”)

decision to terminate his appointment as a Designated Pilot Examiner. Because

Norber filed his petition after the 60-day statutory deadline passed and has failed to

demonstrate “reasonable grounds” for missing that time limit, we deny his petition

as untimely.

                                          I.

      The FAA Administrator issues “airman certificates” to qualified individuals,

which are akin to driver’s licenses for pilots. 49 U.S.C. § 44703(a). The

Administrator “may delegate to a qualified private person” the authority to perform

“the examination, testing, and inspection necessary to issue a certificate,” as well

as the authority to “issu[e] the certificate” itself. Id. § 44702(d)(1). The people to

whom the Administrator delegates these certification duties are known as

“designees.” FAA Order 8000.95 CHG 1, Vol. 1, at 3 (June 17, 2015).

Designated Pilot Examiner (“DPE”) is one type of designee. Id. Vol. 1, at 5. A

DPE can conduct “flight tests necessary for issuing pilot certificates and ratings”

and can “issue temporary pilot certificates and ratings.” 14 C.F.R. § 183.23; see

also FAA Order 8000.95 CHG 1, Vol. 3, at 1. The FAA Administrator “may

rescind a delegation . . . at any time for any reason the Administrator considers

appropriate.” 49 U.S.C. § 44702(d)(2); see also 14 C.F.R. § 183.15(b)(6).




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      Eric Norber had a DPE designation. On a letter dated July 16, 2015, the

FAA notified him that his designation was being terminated for cause based on “an

arrest and subsequent conviction for illegal activity,” as well as a failure to attend

annual mandatory Flight Standards District Office meetings. The letter told

Norber he could appeal the termination within 14 days of receipt of the letter, and

that he would be notified of the appeal’s outcome within 60 days of the FAA’s

receipt of that request.

      Norber requested an appeal by a letter dated July 25, 2015. In a return letter

dated October 2, 2015, the FAA informed Norber that a regional appeal panel

reviewed the termination decision as well as the information Norber had provided.

The letter said the termination was upheld and that the appeal panel’s decision was

final. It was sent to Norber by certified mail on October 2, 2015.

      However, Norber’s address was out of date. Norber emailed the FAA on

October 29, 2015 inquiring about the appeal panel’s decision. It was only then he

informed the FAA that his mailing address had changed. The FAA promptly

replied to him that day with an electronic copy of his appeal decision letter. The

October 2, 2015 letter was returned to the FAA undelivered on November 17,

2015. On December 7, 2015, Norber petitioned this Court to review the FAA’s

decision.

                                          II.


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      This Court has exclusive jurisdiction over petitions applying for review of

FAA orders. Corbett v. TSA, 767 F.3d 1171, 1176 (11th Cir. 2014); 49 U.S.C.

§ 46110(c). The FAA order terminating Norber’s DPE designation is a reviewable

final order. Green v. Brantley, 981 F.2d 514, 519 (11th Cir. 1993). Under

§ 46110, a petition for review “must be filed not later than 60 days after the order

is issued.” 49 U.S.C. § 46110(a). If filed after 60 days, § 46110 says “[t]he court

may allow the petition to be filed . . . only if there are reasonable grounds for not

filing by the 60th day.” Id. In Corbett, this Court held that “the 60-day deadline is

not jurisdictional, but is instead a claim-processing rule.” 767 F.3d at 1174

(quotation omitted).

      Norber filed his petition with this Court on December 7, 2015—six days

after the 60-day deadline had passed. In his petition, he asserts that because he did

not receive the FAA’s letter until October 29, 2015, his petition is timely. In the

alternative, if this Court finds his petition untimely, Norber asks us to find he had

“reasonable grounds” for filing late and grant a nunc pro tunc order for an

extension of time.

                                          A.




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       Norber argues that his petition is timely because the 60-day deadline starts

from when the letter was actually delivered, not sent.1 Section 46110’s 60-day

deadline starts from when the order is “issued.” 49 U.S.C. § 46110(a). Exactly

when that date of issue occurs has not been squarely decided by this circuit. We

hold that it is when the order is sent.

       This holding is in keeping with the circuit’s earlier decisions as well as those

of our sister circuits. In Greater Orlando Aviation Auth. v. FAA, 939 F.2d 954

(11th Cir. 1991), we viewed an FAA order as being “entered” on the day it was

mailed in the predecessor statute to § 46110. See id. at 957–59 & n.15. When

faced with a similar issue, the First Circuit held that “issued” meant “sent” in the

context of § 46110. See Ruskai v. Pistole, 775 F.3d 61, 65 (1st Cir. 2014). The

D.C. Circuit also determined that “issued” in § 46110 means “officially made

public.” See Avia Dynamics, Inc. v. FAA, 641 F.3d 515, 519 (D.C. Cir. 2011).

       We hold that “issued” means “sent,” not “actually received,” for the

purposes of this statute. “[W]ith respect to filing deadlines a literal reading of

Congress’ words is generally the only proper reading of those words.” United

States v. Locke, 471 U.S. 84, 93, 105 S. Ct. 1785, 1792 (1985). Although Norber

argues we should interpret “issue” to mean “deliver,” even the dictionary he cites
       1
         Norber also initially argued that although the letter had the date October 2, 2015
stamped on it, there was no support in the record for the FAA’s claim that it was actually mailed
on that date. In response, the FAA provided copies of a certified mail receipt and date-stamped
envelope showing the letter was mailed to Norber on October 2, 2015. As a result, we do not
address this argument.
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to define “issue” lists “[t]o send out, to send officially” before “deliver.” Black’s

Law Dictionary 964 (revised 4th ed. 1968). Based on our precedent, the

persuasive authority of our sister circuits, and the dictionary definition, “sent” is

the most appropriate interpretation.

      The FAA’s order was sent on October 2, 2015, so that is the date we use to

compute the 60-day deadline. The letter was sent to the address that Norber had on

file, and he did not update that mailing address until October 29, 2015. If the FAA

had mailed the letter to the wrong address, we would not consider it “sent.”

However, it was Norber who failed to properly update his mailing address, not the

FAA. Norber’s petition is thus untimely because he did not file it until 66 days

after the FAA’s letter was sent.

                                           B.

      Because we hold that Norber filed his petition after the 60-day deadline, we

must turn to Norber’s request for us to grant a nunc pro tunc order for an extension

of time. We may allow petitioners to file late when there are reasonable grounds

for doing so. 49 U.S.C. § 46110(a). Norber argues that reasonable grounds exist

here because he did not actually receive the FAA’s order until October 29, 2015.

      Norber has not shown that reasonable grounds existed to justify his late

filing. Norber is responsible for not updating his address. And in any event,

Norber received a copy of the FAA’s order on October 29, 2015. He then had 33


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days—over a month—to file a petition with this Court. As Norber’s petition

shows, this is not a Herculean task. Instead, a one-page petition like the one he

filed will suffice. Norber would then have had additional time to prepare the

necessary briefing for this Court. If Norber had only had a few days to file, this

would be a different case. If the FAA had delayed in sending him the electronic

copy of his order instead of sending it the day Norber emailed the agency, this

would be a different case. And if the FAA had mailed the order to the wrong

address instead of an outdated address, this would be a different case. But on the

case before us, Norber has failed to provide reasonable grounds to justify his late

filing.

          As a result, Norber’s petition is DENIED.




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