Dandino, Inc. v. U.S. Dep’t of Transp.

A party may file a petition for review under 49 U.S.C. § 521(b)(9) within 30 days of actual notice of a final order by the Federal Motor Carrier Safety Administration; when a final order is sent by mail without proof of actual receipt, a rebuttable presumption arises that the order was received within three days.

The Federal Motor Carrier Safety Administration (“FMCSA”) is an agency within the Department of Transportation (“DOT”). FMCSA, under 49 U.S.C. § 521, has the authority to impose civil penalties when entities violate DOT regulations. Such entities then have the right to seek review of those penalties by a court of appeals under § 521(b)(9). Dandino, Inc. (“Dandino”), a motor carrier that transports household goods, submitted an application to FMCSA to change its company name. FMCSA approved Dandino’s application. In its order of approval, FMCSA required Dandino to timely comply with all statutes and insurance regulations, which Dandino failed to do. In response, FMCSA revoked Dandino’s authority registration to operate. Dandino had continued to transport goods. As a result, FMCSA imposed fines on Dandino, which Dandino disputed. FMCSA affirmed the penalty, sending its order to Dandino via U.S. mail on June 24, 2011. Dandino petitioned the Ninth Circuit to review the order on July 26, 2011. The panel, prior to reviewing the order, assessed whether the petition for review of the order was timely. The panel first noted ambiguity with respect to the “within 30 days” language contained in 49 U.S.C. § 521(b)(9). Specifically, the ambiguity was with respect to what initiated the 30 day limitation. Looking at the plain language of the statute, the panel held that a party may file a petition for review of an agency’s final order within 30 days of actual notice of the final order. The panel further held that for purposes of § 521(b)(9), if an Agency sends its final order by mail without proof of actual receipt, a rebuttable presumption arises “that the order was received within three days….” Despite finding that Dandino’s petition was timely filed, the panel rejected Dandino’s petition because it lacked merit. DISMISSED.