United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-2326

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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[UNPUBLISHED]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. *

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 Submitted: March 12, 1999

Filed: March 22, 1999

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Before FAGG, LAY, and WOLLMAN, Circuit Judges.

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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
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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.