UNITED STATES COURT OF APPEALS December 20, 2023 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

BRUCE MCWHORTER,

Petitioner,

v. No. 23-9506

FEDERAL AVIATION ADMINISTRATION, Michael Whitaker, Administrator, ∗

Respondent. _________________________________

Appeal from the Federal Aviation Administration (FAA No. 2021NM030020) _________________________________

Submitted on the briefs: †

Stephenson D. Emery, Williams, Porter, Day & Neville P.C., Casper, Wyoming, for Petitioner.

Casey E. Gardner, Office of the Chief Counsel, Federal Aviation Administration, Washington, D.C., for Respondent.

∗ On October 27, 2023, Michael Whitaker became Administrator of the Federal Aviation Administration, replacing former Acting Administrator Billy Nolen. By operation of Federal Rule of Appellate Procedure 43(c)(2), Mr. Whitaker has been substituted as the Respondent in this case. † After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Appellate Case: 23-9506 Document: 010110971987 Date Filed: 12/20/2023 Page: 2

_________________________________

Before BACHARACH, BRISCOE, and McHUGH, Circuit Judges. _________________________________

McHUGH, Circuit Judge. _________________________________

In July 2022, the Federal Aviation Administration (“FAA”) revoked Bruce

McWhorter’s mechanics certification after learning he had not replaced certain

components of an aircraft’s engine despite having made a maintenance logbook entry

stating that he performed a “major overhaul[]” of the engine. Agency Record at 1–6.

Mr. McWhorter appealed the revocation order to an administrative law judge, who

affirmed the order. Mr. McWhorter then sought to appeal the administrative law

judge’s decision to the National Transportation Safety Board (“NTSB”). Although

Mr. McWhorter filed his notice of appeal with the NTSB on time, he failed to timely

serve the FAA with his notice of appeal. The FAA moved to dismiss

Mr. McWhorter’s appeal to the NTSB for failure to effect timely service on the FAA.

In response, Mr. McWhorter’s counsel described the shortcoming as an

“administrative oversight” because he “inadvertently failed to forward a copy of the

notice to the [FAA].” Id. at 614. The NTSB attributed Mr. McWhorter’s counsel’s

shortcoming to Mr. McWhorter, concluded he lacked good cause for the delay in

service of process, and granted the FAA’s motion to dismiss on October 6, 2022.

On January 25, 2023—111 days after the NTSB issued its final order—

Mr. McWhorter petitioned for review of the NTSB’s dismissal of his appeal,

invoking this court’s jurisdiction under 49 U.S.C. § 1153(b)(1). But, under that

2 Appellate Case: 23-9506 Document: 010110971987 Date Filed: 12/20/2023 Page: 3

statute, absent “a reasonable ground” for failing to do so, the “petition must be filed

not later than 60 days after the order is issued.” Id.

Our decisional law, while unpublished and therefore nonprecedential, has

characterized the sixty-day time limit in § 1153(b) as “jurisdictional.” We take this

opportunity to clarify that § 1153(b)’s sixty-day time limit on seeking appellate

review is a claim-processing rule rather than