Dandino, Inc. v. USDOT, et al

Filing

FILED OPINION (RICHARD C. TALLMAN, MILAN D. SMITH, JR. and LEE H. ROSENTHAL) DISMISSED. Judge: MDS Authoring, FILED AND ENTERED JUDGMENT. [8763149]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DANDINO, INC.,

No. 11-72113
Petitioner,
v.
OPINION

U.S. DEPARTMENT OF
TRANSPORTATION; FEDERAL MOTOR
CARRIER SAFETY ADMINISTRATION,
Respondents.

On Petition for Review of an Order of the
Federal Motor Carrier Safety Administration
Argued and Submitted
April 10, 2013—Pasadena, California
Filed August 30, 2013
Before: Richard C. Tallman and Milan D. Smith, Jr.,
Circuit Judges, and Lee H. Rosenthal, District Judge.*
Opinion by Judge Milan D. Smith, Jr.

*

The Honorable Lee H. Rosenthal, District Judge for the U.S. District
Court for the Southern District of Texas, sitting by designation.

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DANDINO, INC. V. U.S. DEP’T OF TRANSP.
SUMMARY**

Federal Motor Carrier Safety Administration
The panel dismissed a petition for review of a decision of
the Federal Motor Carrier Safety Administration affirming a
penalty issued against the petitioner, a motor carrier of
household goods, for transporting goods after the Agency had
revoked its operating authority.
The panel held that the petition was timely filed because
49 U.S.C. § 521(b)(9) permits a party to file a petition for
review with the proper court of appeals within 30 days of
actual notice of the Agency’s final order. The panel further
held that for purposes of § 521(b)(9), when a final Agency
order is mailed to a party, and there is not proof of actual
receipt, there is a rebuttable presumption that the order was
received within three days of mailing. The panel also held
that although the petition was timely filed, it lacked merit.

COUNSEL
Jeffrey D. Nadel (argued), Law Office of Jeffrey D. Nadel,
Encino, California, for Petitioner.
Jonathan H. Levy (argued), Michael Jay Singer, and
Constance A. Wynn, Attorneys; Tony West, Assistant
Attorney General; Stuart F. Delery, Acting Assistant Attorney

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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General; United States Department of Justice, Civil Division,
Washington, D.C., for Respondent.

OPINION
M. SMITH, Circuit Judge:
Dandino, Inc. petitions under 49 U.S.C. § 521(b)(9) for
review of an order of the Federal Motor Carrier Safety
Administration (FMCSA, or the Agency). The Agency
asserts that Dandino’s petition is untimely, and should be
dismissed without consideration of its merits. Because we
hold that § 521(b)(9) permits a party to file a petition for
review with the proper court of appeals within 30 days of
actual notice of the FMCSA’s final order, we conclude that
Dandino’s petition was filed timely. However, we also find
that Dandino’s petition lacks merit, and we affirm the
Agency’s order.
BACKGROUND AND JURISDICTION
The FMCSA, an agency within the Department of
Transportation (DOT), has authority to impose civil penalties
on certain persons and entities who violate DOT regulations.
49 U.S.C. § 521. Parties adversely affected by final agency
orders imposing such penalties are entitled to seek review of
such orders by a court of appeals. § 521(b)(9).
Dandino is a motor carrier of household goods. It applied
to the FMCSA to change its company name from “Dandino
Inc. d/b/a Relo Moving” to “Dandino Inc. d/b/a Winston.”
The FMCSA approved the name change. In the same order,
it also gave notice that:

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DANDINO, INC. V. U.S. DEP’T OF TRANSP.
Within 30 days after this decision is served,
the applicant must establish that it is in full
compliance with the statute and the insurance
regulations . . . . The applicant is notified that
failure to comply with the terms of this
decision shall result in revocation of its
operating rights registration, effective 30 days
from the service date of this decision.

Despite the notice, Dandino failed to demonstrate timely to
the Agency that it was in compliance with all applicable laws
and regulations. The Agency then sent Dandino a second
notice reading, in pertinent part:
The transportation entity, having failed to
comply with the terms of the decision, is
hereby notified that its authority registration
has been revoked effective July 26, 2010.
Dandino eventually provided the Agency with proof that
it was in compliance with the regulations, and the Agency
reinstated Dandino’s registration, effective August 23, 2010.
However, during the gap period between July 26 and August
23, 2010, Dandino transported household goods from
California to Texas on or about August 1, 2010—a fact
Dandino does not dispute.
The FMCSA fined Dandino for transporting goods after
the Agency had revoked its operating authority, and before
that authority was reinstated. Dandino disputed the penalty
in a proceeding before the Agency. The FMCSA issued a
nine-page final order (Order), signed on June 23, 2011,
affirming the penalty. According to the Certificate of Service
attached to the Order, the Agency sent the Order to Dandino

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by U.S. mail on June 24, 2011. Dandino petitioned our court
for review of the Order on July 26, 2011.
We have jurisdiction to review final civil penalty orders
of the Agency pursuant to 49 U.S.C § 521(b)(9).
DISCUSSION
A.
In order to determine whether Dandino’s petition was
timely, we must first determine when it was due. In order to
make that determination, we look to the statute that grants us
jurisdiction to review the Order. That statute provides:
Any aggrieved person who, after a hearing, is
adversely affected by a final order issued
under this section may, within 30 days,
petition for review of the order in the United
States Court of Appeals in the circuit wherein
the violation is alleged to have occurred or
where the violator has his principal place of
business or residence . . . .
49 U.S.C § 521(b)(9). Dandino notes that the statutory text
begs a question: a petition for review is due “within 30 days,”
but “within 30 days” of what?
In order to clarify this ambiguity, we “begin, as always,
with the language of the statute,” in an attempt to divine the
intent of Congress. See Duncan v. Walker, 533 U.S. 167, 172
(2001); see also Hughes Aircraft Co. v. Jacobson, 525 U.S.
432, 438 (1999). The statute says that an “aggrieved person
who, after a hearing, is adversely affected by a final order

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issued under this section” may appeal to a court of appeals.
The statutory language suggests that the 30-day filing period
begins on the day the “aggrieved person” is “adversely
affected” by the FMCSA’s final order. But how can a person
know that he has been “adversely affected” by such an order
unless he has received the order and considered its contents?
Common sense suggests that he cannot. We therefore
conclude that the plain language of the statute strongly
suggests that Congress intended the 30-day period to begin
running from the date that the person adversely affected by
the final order receives notice of the decision.
The FMCSA argues instead that the limitations period
runs from “issuance” of the final agency order. This
argument is problematic, because the meaning suggested by
the Agency does not follow from the wording of the statute
itself. The term “issued under this section” serves to further
define the “final order” to which it refers, but has no direct
connection to the “30 day” proviso. The Ninth Circuit
authority on which the Agency relies does not suggest
otherwise. In each of those cases, Congress specifically
stated that the period ran from the “issuance” of an order. See
Dierkes v. Dep’t of Labor, 397 F.3d 1246, 1247 (9th Cir.
2005) (interpreting statute stating that “[t]he petition for
review must be filed within sixty days from the issuance of
the Secretary’s order”); Haroutunian v. INS, 87 F.3d 374, 375
(9th Cir. 1996) (interpreting statute stating that “a petition for
review may be filed . . . not later than 30 days after the
issuance of such order”); Stevedoring Servs. of Am. v. Dir.,
Office of Workers’ Comp. Programs, 29 F.3d 513, 515 n.2
(9th Cir. 1994) (interpreting statute stating that “any person
adversely affected or aggrieved by a final order may obtain a
review of that order . . . by filing in such court within sixty
days following the issuance of such Board order a written

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petition”). Given these repeated instances in which Congress
has expressly stated that a period begins with the “issuance”
of an order, the Agency has not explained why Congress
declined to do so here. We therefore reject the Agency’s
suggestion that the limitations period runs from issuance of
the order. We hold instead that under § 521(b)(9), a party
may file a petition with the appropriate court of appeals for
review of a final agency order within 30 days of actual notice
of the order.1
B.
We next consider when a party actually receives notice of
a final agency order. When an order is sent by certified mail,
return receipt requested, or delivered by some other means
that results in a proof of receipt, or an affidavit of personal
1
The DOT has promulgated a regulation that may conflict with our
holding. The regulation, 49 C.F.R. § 386.67(a), parrots the text of
§ 529(b)(9), except that it addresses the ambiguity by explaining that a
party may petition a court of appeal for review “within 30 days of service
of the Final Agency Order.” 49 C.F.R. § 386.67(a) (emphasis added). We
do not defer to the DOT’s regulation. It is well-established that “[t]he
Agency’s position on [our] jurisdiction is not entitled to deference under
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984).” Children’s Earth Found. v.
EPA, 527 F.3d 842, 846 n.3 (9th Cir. 2008); see also Lindstrom v. United
States, 510 F.3d 1191, 1195 n.3 (10th Cir. 2007) (“Determining federal
court jurisdiction is exclusively the province of the courts regardless of
what an agency may say.”) (internal quotation marks and citation
omitted); Murphy Exploration & Prod. Co. v. U.S. Dep’t of the Interior,
252 F.3d 473, 478 (D.C. Cir. 2001) (“Chevron [deference] does not apply
to statutes that . . . confer jurisdiction on the federal courts.”); Bamidele
v. INS, 99 F.3d 557, 561 (3d Cir. 1996) (“A statute of limitations is not a
matter within the particular expertise of the INS. Rather, we consider this
a clearly legal issue that courts are better equipped to handle.”) (internal
quotation marks and citation omitted).

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delivery, the date of actual notice is easily ascertained.
However, when a document is posted without certification
and a return receipt request in the U.S. mail, as it was here, it
is not always clear if or when the party received the
document.2
Generally, “[u]nder the common law Mailbox Rule,
proper and timely mailing of a document raises a rebuttable
presumption that it is received by the addressee.” Mahon v.
Credit Bureau of Placer Cnty. Inc., 171 F.3d 1197, 1202 (9th
Cir. 1999) (internal quotation marks and citations omitted).
But even if we presume that a posted document ultimately
arrived, that does not tell us when we presume it to have
arrived. Since posted materials almost never arrive at their
intended destination on the day they are mailed, we must
consider relevant authorities to determine what presumptions
may apply regarding when a posted document is presumed to
have been received.
The United States Postal Service’s regulations state that
first class mail sent within the contiguous United States will
arrive within three days. 39 C.F.R. § 121, App. A. We and
other circuits have relied on this assumption in our case law.
See, e.g., Mendez v. Knowles, 556 F.3d 757, 765 (9th Cir.
2009) (“[T]he Postal Service advises its customers that
first-class mail takes one to three days for delivery . . . .”);
Lindemood v. Comm’r of Internal Revenue, 566 F.2d 646,
647 (9th Cir. 1977) (“[T]he normal delivery time for
first-class mail sent from San Francisco to Washington, D. C.,
is three days . . . .”); see also Cook v. Comm'r of Soc. Sec.,
480 F.3d 432, 436 (6th Cir. 2007) (“[T]he usual delivery time
2

In this case, Dandino does not dispute that it received the Order, but
the record contains no proof of when it was received.

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for first-class mail is one to three days[.]”). Moreover, the
United States Supreme Court has also assumed that a right-tosue letter from the Equal Employment Opportunity
Commission (EEOC) was received three days after mailing.
Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 148 n.1
(1984).
Similarly, the rules of the respective federal courts all
assume that mail will take three days to arrive at its
destination. Those rules provide that when a party must act
within a certain number of days of service of a document, and
that document is served by mail, the deadline is extended by
three days. Fed. R. App. P. 26(c); Fed. R. Civ. P. 6(d); Fed.
R. Crim. P. 45(c); Fed. R. Bankr. P. 9006(f). Just as we
conclude that it was Congress’s intent that a party have a full
30 days to petition for review upon actual notice of a final
Agency order, the rules of procedure are written to allow
responding parties the full benefit of the applicable time
limits after receiving the document being served.3
The three-day presumption thus has been long applied,
and we have previously read it into an analogous statute of
limitations that begins to run from actual notice of a decision.
Specifically, under Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. § 2000e, a party may only file a civil
suit in federal district court under Title VII upon receiving a
right-to-sue letter from the Equal Employment Opportunity
3

Notably, the Agency itself makes allowances for mail delivery delays
in its own proceedings, and grants litigants an even more generous
allowance than do the courts. The DOT regulation provides that
“[w]henever a party has a right or a duty to act or to make any response
within a prescribed period after service by mail, or on a date certain after
service by mail, 5 days will be added to the prescribed period.” 49 C.F.R.
§ 386.8(c)(3).

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Commission. Upon receiving the letter, a party must file suit
“within ninety days after the giving of such notice.”
42 U.S.C. § 2000e-5(f)(1). In that context, “[w]e measure the
start of the limitations period from the date on which a
right-to-sue notice letter arrived at the claimant’s address of
record.” Payan v. Aramark Mgmt. Servs. Ltd. P’ship,
495 F.3d 1119, 1122 (9th Cir. 2007).
In actions under Title VII, “[w]here the actual date of
receipt is unknown but receipt itself is not disputed, we have
not demanded proof of actual receipt but have applied a
presumption to approximate receipt.” Id. at 1122 (citing Ortez
v. Washington County, 88 F.3d 804, 807 (9th Cir. 1996)).
Following the Supreme Court’s lead in Baldwin, we read into
Title VII a rebuttable presumption that, for purposes of
determining when notice was actually given, a document is
received three days after the date it was mailed. Id. at 1121.
Because the Postal Service’s regulations and our case law
assume that most first class mail will be delivered within
three days of mailing, and because we have read that
presumption into Title VII’s analogous statute of limitations,
we will again follow the Supreme Court’s lead in Baldwin,
and hold that for purposes of § 521(b)(9), when a final
Agency order is mailed to a party, and there is no proof of
actual receipt, there is a rebuttable presumption that the order
was received within three days of mailing.4

4
The three-day period does not include the day of mailing, but does
include the last day of the period. However, if the last day of the period is
a Sunday or legal holiday, the period continues to run until the end of the
next day that is not a Sunday or legal holiday. Our holding, though, does
not preclude the Agency from proving that notice occurred earlier.

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Applying our holding to this case, Dandino’s petition is
timely. According to the date on the Certificate of Service,
the Order was mailed on Friday, June 24, 2011. We will
presume that Dandino received the Order three days later, on
Monday, June 27, 2011. Accordingly, Dandino had 30 days
from June 27, 2011 to file his petition for review with our
court. The thirtieth day from June 27, 2011 was July 27,
2011. Dandino timely filed his petition on July 26, 2011, one
day before the final day to file.
C.
Although we determine that Dandino’s petition was
timely filed, it lacks merit. Motor carriers must be registered
by the Secretary of Transportation in order to lawfully
transport goods for hire. 49 U.S.C. § 13902. The Secretary
is authorized by statute, “on the Secretary’s own initiative,”
to “suspend, amend, or revoke any part of the registration of
a motor carrier . . . for willful failure to comply with . . . an
applicable regulation or order of the Secretary . . . or a
condition of its registration . . . .” 49 U.S.C. § 13905(d). The
statute requires that, before the Agency may revoke a
carrier’s registration, it must issue an order requiring
compliance and allow the registrant 30 days to comply.
49 U.S.C. § 13905(e).
This is precisely what the FMCSA did in this case. The
Agency notified Dandino that, upon Agency approval of its
name change, it had 30 days to “establish that it is in full
compliance with the statute and the insurance regulations.”
Dandino failed to provide evidence to the Agency that it was

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in compliance within the requisite 30-day period.5 Since it
had not received proof of Dandino’s compliance, the Agency
revoked Dandino’s registration. Flouting the Agency’s
decision, Dandino carried freight for hire during the period
when it was not authorized by the Agency.
In response to Dandino’s action, the FMCSA fined
Dandino for violating the DOT’s regulations. The regulation
Dandino violated states that “a motor vehicle providing
transportation requiring operating authority must not be
operated . . . [w]ithout the required operating authority.”
49 C.F.R. § 392.9a. The regulations also explain that
“[o]perating authority means the registration required by
49 U.S.C. [§] 13902 . . . .” 49 C.F.R. § 390.5. Therefore,
when the FMCSA revoked Dandino’s registration under
Chapter 139, Dandino lacked operating authority. Continuing
to operate without operating authority was a violation of
49 C.F.R. § 392.9a, for which Dandino was fined.
In challenging the fine imposed by the Agency, Dandino
misunderstands the nature of the Agency’s action against it.
Dandino argues that it was, at all pertinent times, registered
under Chapter 139, and that “the only revocation was of
operating authority.” But the revocation of its “operating
authority” is the very thing for which Dandino was fined,
specifically for: operating “without the required operating
authority” in violation of 49 C.F.R. § 392.9a. Dandino’s
5

Dandino argues that it was insured at all relevant times. Dandino
misunderstands the requirement of the law. The issue is not whether
Dandino was insured, but whether it had demonstrated that fact to the
Agency before it revoked Dandino’s registration. The record contains no
indication that Dandino presented any such evidence to the FMCSA after
it was directed to do so in connection with its name change, and before its
operating authority was revoked.

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concession that it operated “without the required operating
authority” is dispositive of its petition on the merits.
Finally, Dandino argues that it was arbitrary and
capricious for the DOT to define “operating authority,” a term
it uses in its regulations, to mean “registration” as defined
under Chapter 139. This argument has no relevant legal
support whatsoever, and Dandino cites none. Accordingly,
we reject it.
DISMISSED.