                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                  _____________

                                   No. 98-2326
                                  _____________

Paul H. Reder,                            *
                                          *
                    Petitioner,           *
                                          *    On Petition for Review from
      v.                                  *    National Transportation and
                                          *    Safety Board.
Administrator of Federal Aviation         *
Administration; National Transportation   *
[UNPUBLISHED]
Safety Board,                           *
                                        *
                  Respondents.          *
                                _____________

                           Submitted: March 12, 1999
                               Filed: March 22, 1999
                                _____________

Before FAGG, LAY, and WOLLMAN, Circuit Judges.
                          _____________

PER CURIAM.

      To maintain his pilot’s license, Paul H. Reder applied to the Federal Aviation
Administration (FAA) for an unrestricted second class airman medical certificate in
July 1994. See 14 C.F.R. § 67.15 (1994). An FAA doctor examined Reder and
concluded he did not satisfy the objective medical standards required for an
unrestricted second class certificate. See id. The doctor also considered whether
Reder qualified for a restricted special issue certificate, which may be granted in the
federal air surgeon’s discretion when a person does not meet the criteria for an
unrestricted first, second, or third class medical certificate, but the person can perform
the class duties without endangering safety in air commerce. See id. § 67.19. In
issuing a special certificate, the federal air surgeon may impose operational
restrictions deemed necessary or other limits. See id. § 67.19(d). The doctor found
Reder unqualified for a special certificate as well. Reder filed a petition for review
with the National Transportation Safety Board (NTSB or Board) and an
administrative law judge (ALJ) dismissed Reder’s petition. In April 1995, Reder
provided the FAA with additional medical reports and requested reconsideration of
the denial of a special certificate. The federal air surgeon sent Reder a letter denying
both second class airman and special certification. Reder filed a petition with the
NTSB seeking review of only the FAA’s denial of his application for a special
certificate. A Board ALJ dismissed Reder’s petition for review, stating that although
the NTSB can review denials of second class airman certification, the NTSB has no
jurisdiction to review the FAA’s denial of special certification, which is completely
within the FAA’s discretion. See Bullwinkle v. FAA, 23 F.3d 167, 171 n.4 (7th Cir.
1994). Reder appealed and the NTSB affirmed.

       Reder then petitioned to this court for review. See Reder v. Federal Aviation
Admin., 116 F.3d 1261 (8th Cir. 1997) (Reder I). The NTSB and FAA argued we
lacked jurisdiction to hear the appeal because Reder had not filed his appeal within
sixty days after the FAA’s denial of his application. See id. at 1263; 49 U.S.C. §
46110(a) (1994). The FAA had told Reder to appeal to the NTSB, however, and
Reder’s attempt to do so caused the delay in filing with our court. We thus exercised
our discretion to hear Reder’s appeal. Nevertheless, we could not determine whether
the FAA had properly denied Reder’s application for a special certificate because the
FAA had not submitted an agency record. We “remand[ed] to the FAA with
instruction to develop an agency record.” Reder I, 116 F.3d at 1263. In October
1997 Reder asked the NTSB ALJ for a hearing on the denial of a special certificate.
The ALJ denied Reder’s demand, Reder appealed, and the NTSB dismissed Reder’s



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petition for review as untimely. Reder now petitions for review of the NTSB’s
dismissal.

      The NTSB properly denied Reder’s petition for review. Although we question
whether the petition was untimely because it was filed one week rather than
immediately after Reder’s attorney received the ALJ’s order denying the hearing, see
49 C.F.R. § 821.47(a) (allowing ten days), Reder did not belong before the NTSB at
all. Our earlier decision directed Reder to the FAA, not the NTSB. We reject Reder’s
contention that he had a right to an NTSB hearing based on our ruling in Reder I.
Likewise, we reject Reder’s assertion that a writ of mandamus should issue requiring
the FAA to file the agency record with the NTSB.

      Reder does not seek any other relief. We observe that at this point in time, the
FAA’s 1995 denial and the medical records on which the denial is based are nearly
four years old. In its brief, the FAA comments that "any medical certification that
may have resulted from Mr. Reder's July 7, 1994, application for medical certification
would have long since expired [and] irrespective of any jurisdictional issues, has
become moot and any relief would be inappropriate." The FAA also “notes that
[Reder] need only reapply for special issuance airman medical certification, obtain
the agency’s action on the application, and then, if appropriate, petition for the
[Eighth Circuit’s] review on the merits of the agency’s action.”

       We believe the FAA's suggested course of action is the most expeditious route
for Reder to follow to resolve this ongoing dispute, even though the FAA is partially
responsible for the parties' failure timely to resolve Reder's fitness to fly. After we
filed Reder I, the FAA should have immediately filed the administrative record,
which it admits existed, with the clerk of our court, or asked the court to clarify where
the record should be filed. We question the FAA's willingness to resolve the merits
of the agency action in failing to do anything. On the other side of the coin, Reder's



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counsel steadfastly ignored the FAA's directions about the procedures Reder should
follow. We find it difficult to understand the lack of cooperation between the parties.

       In conclusion, we deny the writ of mandamus and affirm the NTSB’s dismissal
of Reder’s petition seeking review of the ALJ’s denial of a hearing on special
certification.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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