Whether Federal Rule of Appellate Procedure 26(b) categorically precludes equitable tolling of non-jurisdictional time limits for seeking judicial review of agency orders

No question identified. : JURISDICTION This Court has jurisdiction to review the Eleventh Circuit’s judgment and opinion under 28 U.S.C. § 1254(1). Unless extended, the deadline for filing a petition for a writ of certiorari would expire on January 10, 2024. This application is being filed more than 10 days before the expiration date. Applicant has not requested any prior extensions of the deadline. BACKGROUND The Pipeline and Hazardous Materials Safety Administration (PHMSA)—an agency within DOT—brought an administrative proceeding against Applicant for alleged violations of regulations promulgated under the Hazardous Materials Transportation Act of 1975. The agency’s Chief Counsel issued an initial decision in October 2021 finding that Petitioner violated regulations and assessed a civil penalty of approximately $131,000. App. at 32a. The agency assigned Applicant’s timely administrative appeal in December 2021 to its Chief Safety Officer. On July 22, 2022, the agency admitted in filings in a separate case before the Sixth Circuit Court of Appeals that its Chief Safety Office was never appointed as an Officer of the United States under Lucia v. SEC, 1388. Ct. 2044, 2051 (2018), and thus he lacked the power to preside over agency adjudications and the civil penalty he issued must be vacated. See Motion to Vacate and Remand at 2, Polyweave Packaging, Inc. v. DOT, No. 214202 (6th Cir. July 22, 2022), Doc. 29. Three days later, the same unauthorized Chief Safety Officer issued a final order affirming the $131,000 civil penalty against Applicant. App. at 16a. The agency never informed Applicant that the Chief Safety Officer lacked authority to issue that order. 2 Applicant first learned of the Chief Safety Officer’s Appointments Clause defect in October 2022, after the 60-day period to challenge DOT’s final order under 49 U.S.C. § 5127(a) had passed. Applicant retained new counsel and filed a petition to review the final order in December 2022, seeking equitable tolling of § 5127(a)’s 60-day limit. The Eleventh Circuit panel held that Federal Rule of Appellate Procedure 26(b) categorically prohibits the tolling of any non-jurisdictional time limit to seek judicial review of the order of an agency and dismissed the petition for review as untimely. REASONS JUSTIFYING EXTENSION OF TIME This case raises the important and novel issue of whether Federal Rule of Appellate Procedure 26(b) categorically prohibits federal courts from equitably tolling non-jurisdictional time limits within which parties aggrieved by agency orders may seek judicial review of such orders. The additional time sought in this application is needed for Applicant to continue consulting with its attorneys to assess the legal and practical impact of the court of appeals’ ruling so it can determine whether and how to petition for a writ of certiorari. Additional time is also needed because the attorneys who would have principal responsibility for preparation of the Applicant’s petition have been heavily engaged with the press of other matters and have pre-planned family-related travel over the holiday period. December 14, 2023 Respectfully submitted, /s/ Kara M. Rollins Kara M. Rollins Counsel of Record Sheng Li New Civil Liberties Alliance 1225 19th Street, NW, Suite 450 Washington, DC 20036 (202) 869-5210 Counsel for Applicant