                 United States Court of Appeals
                   FOR THE EIGHTH CIRCUIT
                         ___________

                         No. 96-2438
                         ___________

Paul H. Reder,                 *
                               *
        Petitioner,            *
                               * Petition for Review from
the
    v.                         * National         Transportation
Safety Board.
                           *
Administrator of Federal Aviation                          *
Administration; National Transportation                    *
Safety Board,              *
                           *
         Respondents.      *
                      ___________

                 Submitted:    May 21, 1997
                                           Filed:        July 8,
1997
                         ___________

Before BEAM, MAGILL, and LOKEN, Circuit Judges.
                      ___________

MAGILL, Circuit Judge.

    Paul H. Reder applied to the Federal Aviation
Administration (FAA) for a special issue medical
certificate to allow him to retain his pilot’s license.
The FAA denied Reder’s application because of Reder’s
medical history of heart attacks and seizures.     Reder
appealed   the   FAA’s   decision   to   the    National
Transportation Safety Board (NTSB). The NTSB dismissed
Reder’s appeal for lack of jurisdiction.      Reder now
appeals the NTSB’s dismissal of his claim to this Court.
We reverse and remand.




                           -2-
                                         I.

    In July 1994, Reder applied to the FAA for a second-
class airman medical certificate.1 Reder earns his living
by flying crop-duster planes in southern Minnesota over
rural terrain.   The FAA “requires a pilot to obtain a
medical certificate as a condition to the issuance of an
airman’s certificate which also certifies the pilot’s
aviation skills.”    Heller v. United States, 803 F.2d
1558, 1560 (11th Cir. 1986) (citing 14 C.F.R. § 61.3(c)
(1986)).

    On September 9, 1994, the FAA denied Reder’s
application for a second-class airman medical certificate
because Reder did not meet the regulatory standards.
Specifically, the FAA denied Reder’s application because
of his history of myocardial infarction, coronary artery
disease, cerebral aneurysms, and subarachnoid hemorrhage
requiring surgical intervention.

    Also on September 9, 1994, the FAA denied Reder a
special issue medical certificate--an airman medical
certificate that the FAA has the discretion to issue to

      1
        The FAA issues medical certificates in three regular classes. See 14 C.F.R.
§ 67.13 (First-class medical certificate), § 67.15 (Second-class medical certificate),
§ 67.17 (Third-class medical certificate) (1994). An applicant who does not meet the
medical standards necessary to obtain a medical certificate in one of the three regular
classes may petition the Federal Air Surgeon for a “special issue” medical certificate.
See 14 C.F.R. § 67.19 (1994). Special issue medical certificates are issued “[a]t the
discretion of the Federal Air Surgeon.” 14 C.F.R. § 67.19(a). Before issuing a special
medical certificate, the Federal Air Surgeon must be satisfied that “the duties
authorized by the class of medical certificate applied for can be performed without
endangering air commerce.” Id.

                                          -3-
those pilots who do not meet the regulatory standards for
the first-, second-, or third- class airman certificates-
-even though Reder had not applied for such a
certificate.    The FAA denied Reder a special issue
medical certificate because he had failed a “tilt table




                           -4-
test,” and such a failure was “consistent with [a]
diagnosis of neurocardiogenic syncope with propensity for
vasodepression and hypotension.” FAA Letter (Sept. 9,
1994), reprinted in Appellant’s App. at 17. Finally, the
FAA told Reder that he could “request a review of [his]
case by the National Transportation Safety Board.” Id.

    On November 1, 1994, Reder petitioned the NTSB for
review of the FAA’s decision, and his case was assigned
to an administrative law judge (ALJ).    On February 1,
1995, the ALJ dismissed Reder’s case on the ground that
the NTSB lacked jurisdiction to review the FAA’s denial
of a special issue medical certificate. Reder did not
appeal the ALJ’s February 1, 1995 decision to the full
NTSB board.

    On April 6, 1995, Reder gave the FAA additional
medical reports and requested reconsideration of the
denial of a special issue medical certificate.    Among
these additional medical reports was the result of a
second tilt table test. Unlike the earlier test, Reder
passed the second tilt table test. As a result, the FAA
aeromedical examiner who gave the second test concluded
that Reder should receive a special issue medical
certificate.

    On June 20, 1995, however, the FAA again denied Reder
a special issue medical certificate because Reder’s
“medical condition is incompatible with the safe
performance of airman duties under any condition that
could reasonably be prescribed.” FAA Letter (June 20,
1995), reprinted in Appellant’s App. at 1.       The FAA
concluded that Reder should not pilot an aircraft because

                           -5-
he has a history of “seizure activity of unknown
etiology, cerebral aneurysm complicated by subarachnoid
hemorrhage requiring surgical intervention, and coronary
heart disease manifested by myocardial infarction and
treated with coronary bypass surgery.” Id. Finally, the
FAA letter notified Reder that if he wished “to pursue
further the matter of the denial of [his] application for
a medical certificate,” he could “within 60 days of the
receipt of this letter, file an appeal of the denial to
the National Transportation Safety Board . . . .” Id.




                           -6-
    On August 17, 1995, Reder filed a petition with the NTSB
seeking review of the FAA’s second denial of a special issue
medical certificate. On September 29, 1995, an ALJ of the NTSB
dismissed Reder’s appeal on the ground that the NTSB has no
jurisdiction to review the FAA’s denial of a special issue
medical certificate.
    Reder appealed the ALJ’s decision to the full board of the
NTSB (Board).   On April 5, 1996, the Board dismissed Reder’s
appeal because “the granting of a special issue certificate,
under 49 C.F.R. section 67.19, is completely within the [FAA]
Administrator’s discretion and, thus, not subject to Board
review.” NTSB Op. & Order (Apr. 5, 1996), quoted in Appellee’s
Br. at 7.    Reder now petitions this Court for review of the
Board’s order to dismiss Reder’s second appeal.
                              II.
    The FAA and the NTSB argue that this Court does not have
jurisdiction to hear Reder’s appeal. We disagree.
    Judicial review of FAA or NTSB orders is contemplated by 49
U.S.C. § 44709(f) (1994) of the Federal Aviation Act’s Safety
Regulations. Section 44709(f) directs that orders of the NTSB
or the FAA be reviewed pursuant to 49 U.S.C. § 46110 (1994).

    Under Section 46110(a), for an appeal of a FAA or NTSB order
to be timely filed, it must generally be filed within sixty days




                               -7-
after the order is issued. See 49 U.S.C. § 46110(a).2 The FAA
and the NTSB therefore argue that Reder did not file a




         2
          Section 46110(a) provides:

         Except for an order related to a foreign air carrier subject to disapproval
         by the President . . . a person disclosing a substantial interest in an order
         issued by the Secretary of Transportation (or the Administrator of the
         Federal Aviation Administration with respect to aviation safety duties and
         powers designated to be carried out by the Administrator) under this part
         may apply for review of the order by filing a petition for review in the
         United States Court of Appeals for the District of Columbia Circuit or in
         the court of appeals of the United States for the circuit in which the
         person resides or has its principal place of business. The petition must be
         filed not later than 60 days after the order is issued. The court may allow
         the petition to be filed after the 60th day only if there are reasonable
         grounds for not filing by the 60th day.

   49 U.S.C. § 46110(a) (emphasis added).

                                             -8-
timely appeal because he did not file his appeal with
this Court within 60 days of the FAA’s denial of his
application. Instead of filing with this Court, Reder
appealed the FAA’s decision to the NTSB.

    Under § 46110(a), this Court may decide to hear an
appeal that was filed more than 60 days after the
issuance of the order that is being appealed if “there
are reasonable grounds for not filing by the 60th day.”
49 U.S.C. § 46110(a). We hold that Reder’s unsuccessful
attempt to exhaust administrative remedies by appealing
to the NTSB after both of the FAA’s denials of a special
issue medical certificate was a reasonable ground for not
filing his appeal with this Court by the sixtieth day.
Indeed, the FAA specifically told Reder that appealing to
the NTSB was the appropriate next step. Consequently,
this Court will exercise its discretion to hear Reder’s
appeal.

                          III.

    Reder argues that the FAA improperly denied his
application for a special issue medical certificate.
When reviewing the decision of an agency, we apply a
deferential standard of review and will affirm so long as
the agency decision is not “arbitrary, capricious, an
abuse of discretion, or otherwise not supported by law.”
Trans-Allied Audit Co. v. Interstate Commerce Comm'n, 33
F.3d 1024, 1030 (8th Cir. 1994). “We




                           -9-
will accept the findings of fact made by the agency, and
the reasonable inferences drawn from those findings of
fact, as long as the agency’s findings are supported by
substantial evidence in the record as a whole.” Id.

    In this case, however, the FAA has not submitted an
agency record to this Court.    Because there is not an
administrative record before us, we are unable to review
Reder’s case. Consequently, we reverse and remand this
case to the FAA with instruction to develop an agency
record. See Federal Communications Comm'n v. ITT World
Communications, Inc., 466 U.S. 463, 469 (1984) (noting
that the Court of Appeals may remand to the agency to
further develop the administrative record when the
administrative record is inadequate).

    A true copy.


        Attest:


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




                          -10-
