     Case: 17-60546      Document: 00514503214         Page: 1    Date Filed: 06/06/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                      No. 17-60546                              FILED
                                                                             June 6, 2018
                                                                           Lyle W. Cayce
RICHARD L. BOETA,                                                               Clerk

              Petitioner

v.

FEDERAL AVIATION ADMINISTRATION,

              Respondent




                         Appeal from the Decision of the
                       National Transportation Safety Board
                               NTSB No. EA-5800
                               NTSB No. EA-5815


Before JOLLY, JONES, and HAYNES, Circuit Judges.
PER CURIAM:*
       Richard Boeta appeals the National Transportation Safety Board’s
(“NTSB”) order issued on remand (“Remand Order”) from this court and its
dismissal of his motion for reconsideration of that order. Boeta argues that the
Remand Order fails to comply with this court’s mandate directing it to expunge
the Federal Aviation Administration’s (“FAA”) suspension of his air transport



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 17-60546
pilot certificate. See Boeta v. Fed. Aviation Admin., 831 F.3d 636, 647–48 (5th
Cir. 2016). For the following reasons, we grant Boeta’s petition for review of
the Remand Order, vacate the Remand Order, and remand to the NTSB to
expunge the suspension. We deny as moot Boeta’s petition for review of the
NTSB’s order dismissing his motion for reconsideration.
                  I. Factual and Procedural Background
      Our prior opinion in Boeta sets out in detail the facts underlying this
appeal, so we only briefly summarize them here. See id. at 638–41. The FAA
suspended Boeta’s air transport pilot certificate, citing the violation of aviation
regulations. Boeta appealed and the NTSB affirmed an Administrative Law
Judge’s decision to uphold the suspension. Boeta then appealed to this court,
arguing, inter alia, that he was entitled to a “waiver of sanction” under the
FAA’s Aviation Safety Report (“ASR”) procedures.
      Under the ASR procedures, if a pilot voluntarily submits an ASR about
a regulatory violation, “neither a civil penalty nor certificate suspension will
be imposed” if the violation was inadvertent and other criteria are met. See
Aviation Safety Reporting Program, FAA Advisory Circular No. 00-46E (2011).
The only issue on appeal to this court was whether Boeta’s violation was
inadvertent. Boeta, 881 F.3d at 642. We concluded that Boeta’s violation was
inadvertent and that he was therefore “entitled to waiver of all sanctions,”
including the suspension of his pilot certificate. Id. at 647. We remanded to
the NTSB “with instructions to expunge its suspension of Boeta’s said
certificate.” Id. at 647–48.
      The NTSB subsequently issued its Remand Order, ordering: (1) reversal
of the Administrative Law Judge’s decision that Boeta was ineligible for a
waiver of sanction; and (2) waiver of the suspension of Boeta’s certificate.
Boeta filed a motion for reconsideration, asking the NTSB to modify the
Remand Order so that it expressly ordered the suspension expunged from his
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                                       No. 17-60546
pilot certificate, in accordance with our mandate. The NTSB dismissed Boeta’s
motion for reconsideration as procedurally barred for failure to timely serve
the FAA. The NTSB also concluded that, even if Boeta had timely served the
FAA, it would reject his motion on the merits. Boeta filed a petition for review
in this court, appealing the Remand Order and denial of his motion for
reconsideration.
                                    II. Jurisdiction
       We have jurisdiction to hear appeals from “final” orders of the NTSB. 49
U.S.C. § 1153(a); 49 C.F.R. § 821.64. A party aggrieved by such orders may file
a petition for review in this court within sixty days after the order is issued.
Id. A party’s timely filing of a motion for reconsideration, however, “renders
the underlying order nonfinal for purposes of judicial review,” thereby tolling
the time to appeal. Stone v. INS, 514 U.S. 386, 392 (1995).
       The FAA argues that Boeta’s motion for reconsideration did not toll the
time for seeking judicial review of the Remand Order because the motion was
untimely. Specifically, the FAA argues that because Boeta failed to timely
serve the motion on the FAA, his motion was untimely filed.                      Assuming
arguendo that Chevron 1 deference applies to this question, we conclude that
Boeta timely filed his motion for reconsideration for purposes of tolling.
       The NTSB issued the Remand Order on December 19, 2016, and Boeta
filed his motion for reconsideration on January 17, 2017, which is within the
thirty days required by NTSB’s rules. 49 C.F.R. § 821.50(b). On June 2, 2017,
the NTSB dismissed Boeta’s motion for reconsideration for failure to comply
with § 821.50(b)’s service requirements. Boeta asserts that he did serve the
FAA’s counsel, via first-class mail (see 49 C.F.R. 821.8(b)), on January 17, 2017



       1See Chevron, U.S.A., Inc. v. Nat. Res. Defense Council, Inc., 467 U.S. 837 (1984); see
also 5 U.S.C. § 706.
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                                       No. 17-60546
and stated on the certificate of service that “all counsel of record” were served.
The NTSB, however, refused to “presume service.” The NTSB, however, did
not make factual findings as to Boeta’s counsel’s truthfulness in stating that
he did serve the FAA’s counsel.
       Even assuming arguendo that Boeta untimely served the FAA, it does
not follow that he untimely filed his motion for reconsideration. Indeed, the
NTSB order itself states, “[Boeta’s] petition [for reconsideration] was filed
timely.” Additionally, the NTSB rules state that “[t]he filing of a petition [for
reconsideration] shall operate to stay the effective date of the [NTSB’s] order,
unless the [NTSB] directs otherwise.” 2 49 C.F.R. § 821.50(f) (emphasis added).
       Boeta sought review of the Remand Order in this court on July 31, 2017,
which is within sixty days of the NTSB’s dismissal of his motion for
reconsideration. Because the Remand Order was not final for purposes of
judicial review until the NTSB dismissed Boeta’s motion for reconsideration,
Boeta’s petition for judicial review was “within the time prescribed by law.”
See FED. R. APP. P. 15(a); see also 49 U.S.C. § 1153(a); cf. Collins v. Nat’l
Transp. Safety Bd., 351 F.3d 1246, 1250–51 (D.C. Cir. 2003) (concluding that
a petition for review filed forty-four days after the NTSB dismissed a motion
for reconsideration was timely assuming the motion suspended the time limit
for seeking review). This conclusion is consistent with both the NTSB rules
and the tolling rule, as in Boeta’s case “there [was] always a possibility that
the order complained of w[ould] be modified in a way which renders judicial
review unnecessary.”         Stone, 514 U.S. at 392 (quoting Outland v. Civil
Aeronautics Bd., 284 F.2d 224, 227 (D.C. Cir. 1960)). We conclude, therefore,
that we have appellate jurisdiction.



       2Nothing in the record indicates that the NTSB specifically directed that Boeta’s filing
of his motion for reconsideration would not stay the Remand Order’s effective date.
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                                      No. 17-60546
                                    III. Discussion
       It is hornbook law that, on remand, a lower court must adhere to “both
the letter and the spirit” of an appellate court’s mandate, “and may not
disregard the ‘explicit directives’ of that court.” United States v. McCrimmon,
443 F.3d 454, 459 (5th Cir. 2006) (quoting United States v. Matthews, 312 F.3d
652, 658 (5th Cir. 2002)). “The mandate rule simply embodies the proposition
that ‘a [lower] court is not free to deviate from the appellate court’s mandate.’”
United States v. Becerra, 155 F.3d 740, 753 (5th Cir. 1998) (quoting Barber Int’l
Bhd. Of Boilermakers, 841 F.2d 1067, 1070 (11th Cir. 1988)), abrogated on
other grounds as recognized in United States v. Farias, 481 F.3d 289, 291–92
(5th Cir. 2007).
       Boeta argues that the NTSB failed to comply with this court’s mandate
directing it to expunge the FAA’s suspension of his air transport pilot
certificate. We agree. Our mandate remanded the case to the NTSB for
completion in accordance with this court’s opinion.                  Despite the FAA’s
argument to the contrary, we could not have been more clear in our “explicit
directive[]” that the NTSB “expunge its suspension of Boeta’s . . . certificate
and to take any other steps that might be required to complete these
proceedings.” Boeta, 831 F.3d at 647–48.
       The FAA does not deny that the Remand Order fails to expunge Boeta’s
suspension. It instead argues that expungement goes beyond the relief that
Boeta initially sought and is not possible under the ASR procedures and
statutory recordkeeping rules. 3 The proper procedure, however, for raising



       3 Certain limited exceptions to the mandate rule apply, two involving events occurring
after the mandate (not applicable here) and one involving “manifest injustice.” See Becerra,
155 F.3d at 753, 755. The FAA fails to support its claim of “manifest injustice” and, in any
event, the FAA had the means, incentive, and opportunity to present its concerns with our
instructions to “expunge” Boeta’s suspension by way of a petition for panel or en banc
rehearing or by seeking review from the United States Supreme Court. Cf. id.; United States
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                                      No. 17-60546
claimed errors of fact or law in an opinion of this court is to petition for a panel
rehearing. See FED. R. APP. P. 40; 5TH CIR. R. 40.2.
       Accordingly, we VACATE the Remand Order and REMAND to the NTSB
to expunge the suspension of Boeta’s certificate consistent with this opinion
and to fully comply with our prior opinion. We DENY as moot Boeta’s petition
for review of the NTSB’s order denying his motion for reconsideration.




v. Lee, 358 F.3d 315, 321 (5th Cir. 2004) (stating that the mandate rule “bars litigation of
issues . . . foregone on appeal or otherwise waived”).
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