Tuesday, June 06, 2006

Ninth Circuit Holds Exhaustion of Wrong Remedies Not Reasonable Delay

Per Americopters, L.L.C. v. F.A.A., 441 F.3d 726 (9th Cir. Mar. 21, 2006):

. . . The petitions for review were not filed until January 2004, almost one-and-a-half years after the purported FAA orders were issued.

. . .

Although a delay resulting from the exhaustion of applicable administrative remedies may be a reasonable ground for delay, see Reder, 116 F.3d at 1263, an attempt to exhaust the wrong remedy is not. . . .

At the point the FAA refused their requests for hearings under § 13.20(c)-September 19, 2002-Jan's and Americopters had exhausted their administrative remedies. Instead of timely filing petitions for review with this court, they decided to try another administrative route. . . .
We need not decide whether Jan's and Americopters were unreasonable in taking the § 13.5 route--clearly they were not required to do so--for the ultimately fatal detour took place when they filed complaints with the district court. We have held that filing in the wrong court is not a reasonable ground for delay. See Sierra Club, 885 F.2d at 593 (refusing jurisdiction because petitioner delayed by initially “fil[ing] for judicial review of the FAA action in the wrong court”). Only after the district court dismissed their claims in December 2003 did Jan's and Americopters finally file petitions for review with us.


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