OpenJurist

962 F2d 12 Nazimek v. United States of America

962 F.2d 12

Larry S. NAZIMEK, Appellant,
v.
UNITED STATES OF AMERICA, Appellee.

No. 91-2859ND.

United States Court of Appeals,
Eighth Circuit.

Submitted: March 12, 1992.
Filed: May 5, 1992.

NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.

Before WOLLMAN and MAGILL, Circuit Judges, and LONGSTAFF,* District Judge.

PER CURIAM.

1

Larry Nazimek appeals from the district court's1 dismissal of his action under the Federal Tort Claims Act based on collateral estoppel.2 We affirm.

2

Nazimek's claim stems from an administrative law judge's order suspending his pilot license for 180 days. Nazimek timely appealed this order to the National Transportation Safety Board, which affirmed the suspension on February 2, 1988. The Board mailed a copy of this decision to Nazimek on March 9, 1988, and Nazimek received it on March 15, 1988. A federal statute gave Nazimek sixty days from the date of service in which to appeal the Board's decision. 49 U.S.C. § 1486(a) (1988). The copy of the decision mailed to Nazimek, however, did not specify the service date. On May 13, 1988, Nazimek filed an appeal of the Board's decision with the Seventh Circuit Court of Appeals. The Board challenged the appeal as untimely. The Seventh Circuit agreed, dismissing the appeal for lack of jurisdiction. The court specifically found that, under federal regulations, the date of service was the date the Board mailed the decision, March 9, 1988, and thus the May 13, 1988, appeal was not within sixty days. The court also found that there were no reasonable grounds justifying the untimely filing. Nazimek then filed a petition for rehearing claiming, among other things, that the Board's failure to include a service date on its decision excused his untimely filing. The Seventh Circuit summarily dismissed this petition.

3

Following this dismissal, Nazimek took a new approach. He filed an administrative action claiming that the National Transportation Safety Board was negligent in not informing him of his right to appeal their decision and not notifying him of the decision's service date. The Board denied his claim on August 3, 1990. Thereupon, Nazimek filed an action under the Federal Tort Claims Act in federal district court raising the same claim of negligence. Nazimek asserts that the Board's "negligent acts deprived [him] of his right to appeal, an appeal [he] believes he would have won vindicating himself." J.A. at 7. The district court dismissed this action because the Seventh Circuit already had determined that the Board's negligence did not cause Nazimek's untimely appeal, and collateral estoppel bars Nazimek from relitigating this issue. We find no error in the district court's application of the doctrine of collateral estoppel. We thus summarily affirm its dismissal.

*

*THE HONORABLE RONALD E. LONGSTAFF, United States District Judge for the Southern District of Iowa, sitting by designation

1

The Honorable Rodney S. Webb, United States District Judge for the District of North Dakota

2

The district court also articulated another basis for dismissing Nazimek's action. Although Nazimek also has appealed this finding, it is not necessary to address this issue