Dandino, Inc. v. U.S. Dep't of Transp., No. 11-72113 (9th Cir. 2013)
Annotate this CaseDandino petitioned under 49 U.S.C. 521(b)(9) for review of an order of the FMCSA affirming a civil penalty to Dandino for transporting goods after the agency had revoked its operating authority and before that authority was reinstated. The court held that, for purposes of section 521(b)(9), when a final agency order was mailed to a party, and there was no proof of actual receipt, there was a rebuttable presumption that the order was received within three days of mailing. Applying this holding to these circumstances, the court concluded that Dandino's petition was timely. However, on the merits, the court concluded that Dandino's concession that it operated "without the required operating authority" was dispositive of its petition on the merits. The court rejected Dandino's remaining claim and dismissed the petition for review.
Court Description: 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.
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