United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-3908

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New Prime, Inc., doing business as *

Prime, Inc., *

*

Petitioner, *

* Petition for Review of an Order

v. * of the Federal Motor Carrier Safety

* Administration.

Federal Motor Carrier Safety *

Administration; United States * [UNPUBLISHED]

Department of Transportation; United *

States of America, *

*

Respondents. *

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Submitted: November 3, 2006

Filed: December 1, 2006

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Before MURPHY, BYE, and MELLOY, Circuit Judges.

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PER CURIAM.

New Prime, Inc., d/b/a Prime, Inc. (Prime) petitions for review following a

decision by a Federal Motor Carrier Safety Administration (FMCSA) Assistant

Administrator refusing to vacate a final agency order (FAO) imposing civil penalties.

We dismiss the petition as untimely.
1

Prime argues that its August 10, 2004 motion to vacate was not a motion to

reconsider, but it offers no authority for that position and at the time, only a motion

for reconsideration--not a motion to vacate--was provided for in the applicable

regulations. See 49 C.F.R. § 368.64 (2004). Further, the Assistant Administrator

clearly stated in denying Prime’s motion to vacate that it had been construed as a

motion for reconsideration.

-2-

Prime’s October 2005 petition for review is untimely because it was required

to be filed, at the latest, within thirty days of the issuance of the July 26, 2004, FAO

on August 3, 2004. See 49 U.S.C. § 521(b)(9). Because the statute and regulations

are silent on the issue, the applicable Administrative Procedures Act provision applies,

and the FAO at issue here became final for purposes of judicial review when the FAO

was issued, despite Prime’s filing of a motion to vacate. See 5 U.S.C. § 704 (except

as otherwise expressly required by statute, agency action otherwise final is final for

purposes of judicial review whether or not there has been presented or determined any

form of reconsideration); Darby v. Cisneros, 509 U.S. 137, 145-47 (1993) (§ 704 has

long been construed not to prevent petitions for reconsideration from rendering orders

under reconsideration nonfinal).

Even if a motion for reconsideration could toll the time for filing a petition for

review, we agree with FMCSA that Prime’s August 10, 2004 motion to vacate the

FAO was a motion to reconsider, and thus Prime would have had thirty days from the

July 5, 2005, order denying that motion to file the instant petition for review, which

it failed to do.1

 Prime’s subsequent July 16, 2005, motion to reconsider, which

FMCSA viewed as an unauthorized successive motion to reconsider, was ineffective

to further toll the time to file a petition for judicial review. Cf. Midland Coal Co. v.

Dir., Office of Workers’ Comp. Programs, 149 F.3d 558, 560, 564 (7th Cir. 1998) (in

case involving Black Lung Benefits Act, finding no jurisdiction to entertain petition

for review, whether second request to reconsider was untimely request to reconsider

Benefits Review Board’s original decision or unreviewable request to reconsider

denial of first motion to reconsider); Nat’l Bank of Davis v. Office of Comptroller of
-3-

Currency, 725 F. 2d 1390, 1391-92 (D.C. Cir. 1984) (per curiam) (motion for

administrative reconsideration which Congress did not direct agency to consider,

which was dismissed in part on procedural grounds, and which petitioner filed over

60 days after agency acted, cannot retroactively extend 30-day period Congress

specified for judicial review).

Accordingly, we dismiss as untimely Prime’s petition for judicial review.

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