Aerosource Inc v. Secretary Transp , 142 F.3d 572 ( 1998 )

Opinions of the United
1998 Decisions States Court of Appeals
for the Third Circuit
4-1-1998
Aerosource Inc v. Secretary Transp
Precedential or Non-Precedential:
Docket 97-3313
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Filed April 1, 1998
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 97-3313
AEROSOURCE, INC.,
Petitioner
v.
RODNEY SLATER, SECRETARY OF THE U.S.
DEPARTMENT OF TRANSPORTATION; BARRY
VALENTINE, ACTING ADMINISTRATOR OF THE FEDERAL
AVIATION ADMINISTRATION; U.S. DEPARTMENT OF
TRANSPORTATION AND FEDERAL AVIATION
ADMINISTRATION,
Respondents
On Petition for Review of an Order
of the Federal Aviation Administration
(AC No. 43-15)
Argued March 9, 1998
BEFORE: GREENBERG, SCIRICA, and ALDISERT,
Circuit Judges
(Filed: April 1, 1998)
Louise B. Cobbs (argued)
Haight, Gardner, Holland & Knight
2000 K Street, N.W.
Suite 200
Washington, D.C. 20006
Attorneys for Petitioner
Frank W. Hunger
Assistant Attorney General
Robert S. Greenspan
Edward Himmelfarb (argued)
Attorneys, Appellate Staff
Civil Division, Room 9145
Department of Justice
601 "D" Street, N.W.
Washington, D.C. 20530-0001
David M. Wiegand
Mgr. General & Administrative
Litigation Branch, AGC-410
Office of the Chief Counsel
Litigation Division
Federal Aviation Administration
Washington, D.C. 20591
James S. Dillman
United States Department of
Transportation
400 7th Street, S.W.
Washington, D.C. 20590
Attorneys for Respondents
OPINION OF THE COURT
GREENBERG, Circuit Judge.
I. INTRODUCTION
This matter is before the court on a petition for review of
a Federal Aviation Administration ("FAA") action brought by
Aerosource, Inc., pursuant to 49 U.S.C. S 46110(a).1 In the
_________________________________________________________________
1. Aerosource in its petition for review relies only on 49 U.S.C. S 46110
as establishing our jurisdiction. In its brief, however, it also cites the
Administrative Procedure Act, 5 U.S.C. S 702, as a basis for us to
exercise jurisdiction. We are deciding this case under section 46110(a),
as the case has been briefed largely under 49 U.S.C. app. S 1486, the
2
alternative, anticipating that we might determine that we do
not have appellate jurisdiction, Aerosource relies on our
jurisdiction to issue a writ of mandamus pursuant to the
All Writs Act, 28 U.S.C. S 1651(a), to achieve the relief it
seeks in its petition for review.
A. Regulatory Framework
We find it useful at the outset to describe the regulatory
framework in which this dispute has arisen. The
Administrator of the FAA has a statutory responsibility to
prescribe regulations and establish minimum standards to
promote safe civil aircraft flight. See 49 U.S.C.
S 44701(a)(2). Thus, the Administrator is responsible for
establishing standards concerning various aspects of the
inspection and servicing of aircraft and aircraft parts. See
id. The FAA further is authorized to "examine and rate"
stations and shops that repair2 aircraft and aircraft parts
regarding the adequacy and suitability of the stations'
equipment, facilities, and personnel. See 49 U.S.C.
S 44707(2).
Pursuant to this statutory mandate, the FAA has
promulgated regulations governing the issuance of repair
station certificates, the ratings of such stations, and
general operating procedures for certified stations. See 14
C.F.R. Part 145. A station's certificate specifies which types
of equipment or components the FAA has certified the
station to repair. This specification is known as a rating.
See 14 C.F.R. SS 145.11, 145.31. Propellers, radio
equipment, accessories, landing gear, and engines are
examples of categories of ratings. A repair station's rating
_________________________________________________________________
predecessor section to section 46110(a). We note, however that, as we
explain below, the courts have looked to the Administrative Procedure
Act in defining the term "order" for purposes of appeal under section
1486. See infra note 8. Thus, Aerosource's citation of 5 U.S.C. S 702 as
a basis for our jurisdiction has not enhanced its jurisdictional
contentions.
2. We use the term "repair" to refer to repair, maintenance, and overhaul
of aircraft components. Although these terms refer to different
procedures, the distinction is not relevant to the disposition of this
case.
3
may be unlimited or limited as to the types of equipment or
components or a specific model aircraft or engine. See 14
C.F.R. S 145.33. A repair station may repair any equipment
or component for which it has been rated. See 14 C.F.R.
S 145.51.
Stations applying for certification or rating must have
adequate inspection procedures to ensure quality control
and qualified inspection personnel. Once certified and rated
to perform a particular repair, a certified station must have
a qualified inspector inspect the equipment before it is
approved for return to service on an aircraft. See 14 C.F.R.
S 145.59(a). Certified stations have a duty to report defects
or unairworthiness to the FAA. See 14 C.F.R.S 145.63(a). A
certified station must allow the FAA to inspect the station
for compliance with the regulations. See 14 C.F.R. S 145.23.
The FAA is required to publish "all reports, orders,
decisions and regulations . . . in the form and the way best
adapted for public use." 49 U.S.C. S 40114(a)(2). Pursuant
to this authority, the FAA publishes two documents,
Service Difficulty Reports ("SDRs") and General Aviation
Airworthiness Alerts ("Alerts"), relevant here.
The Service Difficulty program is an information system
intended to aid owners, operators, manufacturers, and the
FAA in identifying problems encountered during aircraft
service. The FAA receives relevant information from a
variety of sources, including FAA inspectors, owners,
operators, and certified repair stations. The FAA requests
as much information as possible, even "insignificant
reports," and maintains the information for five years to
detect trends and failure rates. The FAA publishes a weekly
summary of the collected service difficulty information in
SDRs. The publication is distributed to the FAA's Flight
Standards District Offices and Manufacturing Inspection
District Offices and is available to the public at no charge.
Alerts contain information intended to assist
maintenance and inspection personnel in performing their
duties and provide a channel of communication through
which the aviation community can exchange service
experience and thereby improve the reliability, safety, and
durability of aircraft products. The information in the Alerts
4
is selected from the monthly listing of SDRs on a particular
product. Alerts primarily are directed toward a particular
segment of the aviation community, but are circulated
widely within the FAA.
B. FAA's Investigation of Aerosource
Aerosource is an FAA-certified repair station in Somerset,
New Jersey. The FAA began an investigation of Aerosource
in July 1996 which revealed various deficiencies. The
investigation led to Aerosource and the FAA entering into a
consent order in August 1996 providing for Aerosource
voluntarily to surrender its unlimited accessory rating in
exchange for limited accessory ratings and the FAA's
promise that it would not unreasonably withhold or delay
the approval and issuance of additional ratings to
Aerosource.
Nevertheless, in October 1996, the FAA ceased adding
parts to Aerosource's ratings because it had safety concerns
which arose after execution of the consent order. Because
the FAA did not provide Aerosource with a further
explanation of its concerns at that time, Aerosource made
a Freedom of Information Act request for its file. In
response, the FAA produced a file in early December 1996,
which revealed that one of Aerosource's customers,
Raytheon Aerospace Company, had made inquiry of the
FAA of the state of its investigation of Aerosource. The FAA
responded to Raytheon by letter dated July 31, 1996,
stating that the investigation was as yet inconclusive, but
suggesting that "[i]f either of [two aircraft] parts were
overhauled for your company by Aerosource, you may want
to inspect the components for obvious problems and check
performance." As a result, Raytheon removed several parts
from stock which Aerosource had overhauled and
contracted with certain of Aerosource's competitors for
teardown and inspections of the parts. A teardown is a
process in which the part is disassembled completely and
is subjected to a detailed inspection. These repair stations
performed the teardowns and reported various problems
with Aerosource's maintenance of the parts.
In December 1996, the FAA circulated an SDR, dated
5
October 1996, which identified specific parts that
Aerosource had repaired or overhauled improperly. The
SDR warned the aviation community that Aerosource may
have maintained other aircraft parts improperly.3 The SDR
stated that an FAA investigation revealed that some
components Aerosource had serviced had been returned to
service notwithstanding their failure to meet manufacturer's
specifications. In particular, the SDR named two specific
components which "should be suspected as improperly
maintained until further evaluations are performed." The
notice stated that these components may be subject to
early failure and that Aerosource had a system in place
which may have resulted in the returning of components to
service without proper maintenance. The notice
recommended that anyone who had these particular
components repaired by Aerosource take appropriate action
to determine whether they met applicable standards. The
SDR also requested any additional information that
recipients of the SDR might have regarding the parts.
In December 1996, the FAA published an Alert which
repeated the notice from the SDR concerning Aerosource
virtually verbatim. The Alert, however, included the
following disclaimer language: "This article is published as
it was received, except for editorial changes." Both the SDR
and Alert were based on the reports of the teardowns and
inspections which Aerosource's competitors performed.
In early January 1997, Aerosource responded to the
FAA's allegation and on January 9, 1997, met with the FAA
to discuss the validity of the results of the teardown
inspections. According to Aerosource, the FAA issued the
SDR and Alert on the basis of unconfirmed, unwitnessed,
and unverified conclusions by Aerosource's competitors,
embodied in the teardown reports. More particularly,
Aerosource alleges that these competitors made the
teardown inspections without FAA supervision and under
_________________________________________________________________
3. The timing of the publication of these notices is in dispute. According
to Aerosource, the SDR was not published until December although it
was dated in October. According to the FAA, there is no evidence that
the SDR was not circulated until December. The discrepancy makes no
difference to our outcome.
6
such circumstances as to render them unreliable. For
example, one facility performed work for which the FAA had
not certified it and another facility used a manual outdated
for at least 12 years in conducting the inspection and used
repair rather than inspection criteria.
On January 17, 1997, Aerosource wrote a letter to the
FAA requesting that the FAA retract the notice published in
the Alert concerning Aerosource. In support of its request,
Aerosource cited the indications that the teardowns were
unreliable. While the FAA did not retract the Alert it did
restore Aerosource's unlimited accessory ratings on
January 27, 1997, and closed the enforcement investigation
based upon the teardown reports.
Since that time, the FAA has continued to refuse
Aerosource's requests to rescind the Alert and the SDR as
well. In these requests, Aerosource objected to the
reliability of the information on which the SDR and Alert
were based. Thus, on February 7, 1997, Aerosource wrote
to the Director of the FAA's Flight Standards Service asking
that the FAA issue "a special notice withdrawing an
inaccurate notice" in the Alert.4 On March 27, 1997,
Aerosource again wrote to the FAA, this time requesting a
reconsideration of both the SDR and the Alert.
On March 28, 1997, the FAA denied these requests for
rescission. The FAA's letter explained that, at the January
9 meeting, Aerosource presented sufficient information to
justify the FAA's reexamination of the teardown reports.
However, after reexamining all of the information collected
during the investigation, the FAA found that the
preponderance of the findings in the reports had been
substantiated. The FAA also explained that Aerosource's
ratings had been reissued because Aerosource was
currently in compliance with all applicable regulations.
On April 18, 1997, Aerosource sent a letter to the FAA
_________________________________________________________________
4. Having not yet received a response from the FAA, Aerosource wrote a
similar letter on March 14, 1997, renewing its request for rescission of
the Alert. Aerosource emphasized that the FAA would have to act
promptly in order to prevent Aerosource from sustaining additional
damage to its business.
7
requesting reconsideration of the denial. This letter
challenged the FAA's explanation contained in its denial
and made the same arguments as in its original request for
rescission. The FAA denied this request on May 6, 1997,
again stating that it based its decision not to rescind the
notices upon a reexamination of all of the data. Further,
the FAA explained that the reissuance of Aerosource's
ratings "is an acknowledgment that, at this time,
Aerosource meets the Federal Aviation Regulation
requirements to provide maintenance services to the
aviation community."
Aerosource then filed a petition with this court seeking
review of the FAA's May 6, 1997 letter denying Aerosource's
request to reconsider the FAA's denial of the request for
rescission of the SDR and Alert.5 Alternatively, Aerosource
seeks the same relief through the issuance of a writ of
mandamus.
II. DISCUSSION
A. Review of FAA Action
Pursuant to 49 U.S.C. S 46110(a):
a person disclosing substantial interest in an order
issued by the Secretary of Transportation (or the
Administrator of the Federal Aviation Administration
with respect to aviation safety duties and powers
designated to be carried out by the Administrator)
under this part may apply for review of the order by
filing a petition for review in the . . . court of appeals
of the United States for the circuit in which the person
resides or has its principal place of business.
While Aerosource contends that we have jurisdiction under
this section, the FAA argues that we do not have
_________________________________________________________________
5. It appears that Aerosource was not aware that the FAA had issued the
SDR until on or shortly before March 27, 1997. App. at 491. Thus, it
had sought only a rescission of the Alert prior to that date. We, however,
are not distinguishing between the Alert and the SDR in our disposition
of this case.
8
jurisdiction to review the FAA action because the FAA has
not issued an order within the meaning of this section.6 We
are exercising plenary review on this point as we decide the
issue through the application of legal principles.
We have not yet determined what constitutes an "order"
within the meaning of 49 U.S.C. S 46110(a). In fact, few
courts have addressed this statute,7 although many have
interpreted its predecessor, 49 U.S.C. app. S 1486, which
provided that:
[a]ny order, affirmative or negative, issued by the Board
or Secretary of Transportation under this chapter . . .
shall be subject to review by the courts of appeals of
the United States or the United States Court of Appeals
for the District of Columbia, upon petition, filed within
sixty days after the entry of such order, by any person
disclosing a substantial interest in such order.
Courts uniformly imposed judicial limitations on section
1486, holding that it applied only to "final orders" of the
FAA. See, e.g., Mace v. Skinner , 34 F.3d 854, 857 (9th Cir.
1994); Green v. Brantley, 981 F.2d 514, 519 (11th Cir.
1993); Atorie Air, Inc. v. FAA, 942 F.2d 954, 960 (5th Cir.
1991); Southern Cal. Aerial Advertisers' Ass'n v. FAA, 881
F.2d 672, 675 (9th Cir. 1989); Red River Transp. & Dev.,
Co. v. FAA, 630 F.2d 592, 594 (8th Cir. 1980).8
_________________________________________________________________
6. The FAA does not deny that Aerosource filed its petition for review in
the correct circuit and that it has disclosed a sufficiently substantial
interest to maintain these proceedings.
7. The Court of Appeals for the Ninth Circuit is apparently the only court
of appeals which has addressed this section, but the holding of this case
is not relevant here. See Tur v. FAA, 104 F.3d 290 (9th Cir. 1997)
(holding that the district court lacked jurisdiction to entertain a claim
for
rescission of an order because the statute vests exclusive jurisdiction
for
such claims in the court of appeals).
8. In interpreting the term "order" as used in this section, some courts
have looked to the use of the term in the Administrative Procedure Act.
See, e.g., Southern Cal. Aerial Advertisers' Ass'n, 881 F.2d at 675. The
APA broadly defines "order" as "the whole or part of a final disposition
. . . of an agency in a matter other than rulemaking. . . ." 5 U.S.C.
S 551(6).
9
Thus, courts have held that the term "order" in section
1486 "applies to an[y] agency decision which imposes an
obligation, denies a right, or fixes some legal relationship"
and which is final. Mace, 34 F.3d at 857 (internal quotation
marks omitted); see also Atorie Air, Inc., 942 F.2d at 960;
Shea v. Office of Thrift Supervision, 934 F.2d 41, 44-45 (3d
Cir. 1991) (using the same language to describefinal
agency actions).
In determining what constitutes a final FAA order under
section 1486, the courts have found that the "order" need
not be formal. Thus, letters and other communications can
be final orders depending upon the surrounding
circumstances and other indicia of finality. Compare Tur v.
FAA, 104 F.3d 290 (holding that a consent decree was an
"order" within the meaning of section 46110(a)); Air One
Helicopters, Inc. v. FAA, 86 F.3d 880 (9th Cir. 1996)
(holding that an FAA opinion letter was a reviewable order
because administrative remedies were futile); Kemmons
Wilson, Inc. v. FAA, 882 F.2d 1041 (6th Cir. 1989) (FAA
letter was final order), with Blincoe v. FAA, 37 F.3d 462 (9th
Cir. 1994) (letter not final order where by its terms the
letter suggested that the administrative process was
incomplete); Air California v. United States Dep't of Transp.,
654 F.2d 616 (9th Cir. 1981) (letter warning of impending
action not final); Red River Transp. & Dev., Co. v. FAA, 630
F.2d 592 (tentative language of FAA letter rendered it not
final). Similarly, to be final for purposes of review, the
"order" need not be the product of formal agency decision
making, see Southern Cal. Aerial Advertisers' Ass'n, 881
F.2d at 675; Sima Prods. Corp v. McLucas, 612 F.2d 309,
312 (7th Cir. 1980), and "orders" are reviewable under
section 1486 even though the administrator of the FAA has
not issued them, see Southern Cal. Aerial Advertisers'
Ass'n, 881 F.2d at 675. In addition, it has been held that
to be appealable, the "order" must be predicated on an
administrative record sufficient to allow a court to engage
in a meaningful review of the order. See Atorie Air, Inc., 942
F.2d at 960; Green v. Brantley, 981 F.2d at 519; Sierra Club
v. Skinner, 885 F.2d 591, 593 (9th Cir. 1989).
We have not addressed the proper limits to "order" as
used in section 1486, and therefore have not had the
10
occasion to decide whether to accept the limitations on
what constitutes an order which other courts universally
have imposed. Yet, given the similarity between section
1486 and its successor, section 46110(a), there seems to be
no reason why the judicial limitations should not apply
equally to section 46110(a), the current version of the
statute.9 Moreover, the parties do not argue that this court
should interpret the term "order" differently than have
other courts of appeals. Thus, we conclude that to be
reviewable under section 46110(a), an "order" must be final,
but need not be a formal order, the product of a formal
decision-making process, or be issued personally by the
Administrator. Of course, it also must impose an obligation,
deny a right, or fix some legal relationship. 10
There are three FAA actions relevant in determining
whether Aerosource's petition seeks to review an order and
thus whether we have jurisdiction: (1) the issuance of the
SDR and Alert; (2) the March 28, 1997 letter refusing to
rescind the SDR and Alert; and (3) the May 6, 1997 letter
refusing to reconsider its decision not to rescind the SDR
and Alert. As discussed above, a finding that these actions,
or any one of them, is final is not precluded by their lack
of formality, see Tur, 104 F.2d at 292; Air One, 86 F.3d at
882, the lack of a formal hearing in this case, see, e.g.,
_________________________________________________________________
9. The parties do not argue this point in their briefs to this court.
Rather,
they cite the cases dealing with section 1486 as though they were
decided under section 46110 without acknowledging the change in
statutory language. Thus, they silently assume that we likewise would
impose a finality requirement.
10. We are not predicating our ruling on a possible insufficiency of the
administrative record, as we find the record sufficient for us to make a
meaningful review. In fact, we make that review in considering
Aerosource's application for mandamus relief. In this regard, we point
out that an agency action not predicated on an administrative record
permitting meaningful review could impose substantial obligations on a
petitioner who thus reasonably could contend that it is entitled to review
without regard for the state of the record. We observe that while the
courts recite that an appealable order must be based on a record
sufficient to permit a meaningful review, they regularly find the record
adequate for that purpose. We leave to another day the determination of
whether, and if so how, a court would exercise appellate jurisdiction
notwithstanding an inadequate record for the review.
11
Southern Cal. Aerial Advertisers' Ass'n, 881 F.2d at 675, or
the fact that the Administrator did not personally issue the
letters, see id. Thus, the focus of our inquiry is on whether
one of these actions had the type of effect required of a
"final" agency action.
In determining whether there is a final agency action, the
Supreme Court has stated that the "core question is
whether the agency has completed its decision making
process, and whether the result of that process is one that
will directly affect the parties." Franklin v. Massachusetts,
505 U.S. 788, 797, 112 S. Ct. 2767, 2773 (1992). The action
must be a "definitive statement[ ] of [the agency's] position"
with concrete legal consequences. See FTC v. Standard Oil
Co., 449 U.S. 232, 241, 101 S. Ct. 488, 493 (1980) (internal
quotation marks omitted).
In Standard Oil, the Supreme Court held that the Federal
Trade Commission's ("FTC") issuance of a complaint was
not a final agency action and therefore was not reviewable
under the Administrative Procedure Act. See Standard Oil,
449 U.S. at 238, 101 S.Ct. at 492. The Court reasoned that
the complaint was, by its terms, not a definitive statement;
rather, the complaint was only indicative of the FTC's
"reason to believe" that the party was violating the law. See
id. at 241, 101 S. Ct. 493-94. The Court found that the
complaint did not have the legal force or practical effect on
the party's daily business activities indicative of a final
agency determination. See id. at 242, 101 S.Ct. at 494. The
Court recognized that the complaint imposed the
substantial burden of responding to the allegations, but
noted that this was "different in kind and legal effect from
the burdens attending what heretofore has been considered
final agency action." See id. at 242, 101 S.Ct. at 494. The
Court noted that this burden is the same as that
accompanying any major litigation, but not the same type
of effect as requiring a company to change its daily
operations and expend resources investing in new
equipment. See id.
The Standard Oil Court also rejected the argument that
the petitioner's request of the Commission to reconsider the
issuance of the complaint somehow rendered it a definitive
agency action. See id. at 243, 101 S.Ct. at 495. The Court
12
recognized that such a request, and the Commission's
subsequent denial of it, likely exhausted petitioner's
administrative remedy with regard to whether the
Commission had the required "reason to believe" that the
petitioner was violating the law. See id. But the Court held
that the issuance of a complaint is a step toward, and
ultimately will merge into, the Commission's decision as to
whether the party violated federal law. See id. at 246, 101
S.Ct. at 497.
We have applied a factored analysis to determine whether
an agency's action is final. See In re Seidman, 37 F.3d 911,
923 (3d Cir. 1994). An order's finality is "informed but not
decided by an agency classification" and is characterized by
the following five factors:
(1) whether the decision represents the agency's
definitive position on the question; (2) whether the
decision has the status of law with the expectation of
immediate compliance; (3) whether the decision has
immediate impact on the day-to-day operations of the
party seeking review; (4) whether the decision inv olves
a pure question of law that does not require further
factual development; and (5) whether immediate rev iew
would speed enforcement of the relevant act.
Id. at 923 (quoting CEC Energy Co. v. Public Serv. Comm'n,
891 F.2d 1107, 1101 (3d Cir. 1989)). This formulation is in
accord with the Supreme Court's conclusion that the
following are indicia of finality in the context of other
agencies' actions: a definitive statement of the agency's
position which has a direct and immediate effect on the
petitioner's day-to-day operations, which has the status of
law, and of which immediate compliance is expected. See
Standard Oil, 449 U.S. at 239, 101 S.Ct. at 493.
As noted above, considering the SDR and the Alert
together, there are three FAA actions which might be
treated as orders subject to review. Aerosource contends
that the May 6 letter was a final order reviewable under 49
U.S.C. S 46110(a) and thus its petition seeks review of that
letter. Yet we also must consider the finality of the SDR and
the Alert and the March 28 letter, as the finality of the May
6 letter depends on the finality for purposes of review of
13
these earlier documents. After all, if a court treated the
denial of an application to reconsider an action which is not
in itself a final order as a final order, then a petitioner
simply by asking for reconsideration could convert a
nonfinal action into a final order. Of course, this conversion
should not be permitted. See Standard Oil, 449 U.S. at 243,
101 S. Ct. at 495 ("But the Commission's refusal to
reconsider its issuance of the complaint does not render the
complaint a `definitive' action.").11 Accordingly, the FAA
primarily alleges that neither the March 28, 1997 letter nor
the May 6, 1997 letter can be a final order unless the SDR
and Alert are themselves final. We discuss each of these
FAA actions with respect to their finality.
1. SDR and Alert
We agree with the FAA that the SDR and Alert were not
final orders because their conclusions were tentative and
indicative of an on-going investigation. Thus, they are like
the complaint issued in Standard Oil, which the Supreme
Court found was not a final, reviewable order. Indeed, it is
impossible to characterize either the SDR or the Alert as
announcing, as set forth in Seidman, the FAA's definitive
statement, as both publications merely gave advisory
information predicated on information supplied to the FAA.
The SDR and the Alert were similar to a letter of which
a petitioner in the Court of Appeals for the Eighth Circuit
sought review in Red River Transport & Dev., Co., 630 F.2d
592. There, the court held that the letter was not a final
order as it merely notified the petitioner of an on-going
investigation and requested the petitioner to submit any
evidence which it cared to offer in regard to the
investigation. In addition, by its terms, the letter in Red
River did not make any final conclusions or decisions;
rather, it stated that "[i]f the facts as stated are correct, it
_________________________________________________________________
11. We are not implying that in no circumstance could a denial of a
request for reconsideration of some action which, in itself, was not a
final order not be a final order subject to judicial review. Obviously, we
are only ruling on the situation before us. Conceivably the denial of the
reconsideration could have consequences going beyond the underlying
action. But this situation is not present here.
14
appears that there may have been a violation" of federal
regulations and "[s]hould this investigation substantiate
that a violation did or did not occur, you will be informed
accordingly." Id. at 593-94.
The SDR and Alert were also, by their terms, tentative.
The notices stated that certain components were suspected
as being improperly serviced by Aerosource and requested
any additional information which their recipients could
produce. But the SDR and the Alert were nothing more
than what their names implied, for they were advisory in
nature. They imposed no obligations, denied no right, and
did not fix or alter a legal relationship. Indeed, the Alert
recited that the information it contained was significant but
not "evaluated fully by the time the material went to press."
Thus, neither the SDR nor the Alert had the force of law.
2. March 28, 1977 Letter
The FAA issued a letter on March 28, 1997, denying
Aerosource's request to rescind the Alert and SDR. 12 In that
letter, the FAA summarized the course of the investigation,
including the source of the information in the SDR and
Alert and the FAA's meeting with Aerosource resulting in
the FAA's reexamination of the data on which the SDR and
Alert were based. The FAA then stated that:
[w]e have completed our reexamination of all the data
that has come to our attention during this
investigation. This includes an analysis of the tear-
down reports . . . . After compilation and review of all
of the results, we found that a preponderance of those
original findings has been substantiated.
We understand Aerosource's concern because of our
publication of the Alert and SDR. However, in the
interest of aviation safety, and our duty to safeguard
the flying public, we have no recourse but to allow the
FAA Alert and SDR to stand as published.
App. at 494-95.
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12. The FAA, but not Aerosource, characterizes the letter as acting on a
request for reconsideration.
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This letter evinces the FAA's intent not to rescind the
SDR and Alert and establishes that the FAA found that the
information in the SDR and Alert was not unfounded.
Nevertheless, it did not impose an obligation, deny a right,
or fix some legal relationship. The only thing denied in this
letter is the "right" to the rescission of the publications. The
letter did not require Aerosource to do anything, and there
is nothing in the letter with which Aerosource is expected
to comply. Indeed, the letter did nothing more than leave
Aerosource in the position it was in after the SDR and Alert
were issued.
3. May 6, 1977 letter
After the FAA denied Aerosource's request to rescind,
Aerosource sent another letter to the FAA on April 18,
1997, urging the FAA to reconsider its decision. The FAA
responded by letter of May 6, 1997, denying Aerosource's
request to reconsider the FAA's decision not to rescind the
Alert. In so denying, the FAA stated that "[o]ur decision not
to withdraw the Alert was based upon a reexamination of
all the data that came to our attention during the
investigation." Aerosource argues that the FAA's May 6
letter refusing to rescind the SDR and Alerts was a final
order which we may review under 49 U.S.C. S 46110. In so
arguing, Aerosource cites excerpts from the FAA's various
correspondences with Aerosource, and states that"[t]hese
letters make clear that the FAA has reached afinal
reviewable decision." Br. at 20 n.10 (emphasis added).
Aerosource's arguments treat the March 28 letter as
merging into the May 6 letter.
It is clear that this May 6 letter represents the FAA's final
position on the issue of whether it will rescind the SDR and
the Alert. However, this letter does not anticipate that
Aerosource will comply with any directive, as the letter sets
forth nothing with which it must comply. Thus, the May 6
letter no more imposed legal obligations, fixed rights, or
altered a legal relationship than did the March 28, 1997
letter or the SDR or the Alert themselves. At bottom,
therefore, this case concerns nothing more than the
issuance of advisory warnings and the FAA's refusal to
withdraw the warnings predicated on its conclusion that it
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properly had issued them. Neither Aerosource nor any
other entity suffered any legal consequences as a result of
the issuance of the SDR or the Alert or from the sending of
the letters.
We, of course, recognize the severe adverse impact the
SDR and the Alert had on Aerosource's business. It is quite
natural that in the sophisticated market for aircraft parts
repair services the customers would be aware of and
mindful of an SDR and an Alert and would take the
information in such documents into account when seeking
repair services. Undoubtedly Aerosource's customers did
exactly that. Nevertheless, we have concluded that in view
of all the circumstances of this case none of the documents
at issue here can be regarded as a reviewable order.
Moreover, contrary to Aerosource's contention, the fact that
the FAA's actions were directed at a single company rather
than at the industry at large does not affect our result as
none of the materials has the indicia of an order.
Furthermore, we see no reason why a mandatory direction
to an entire industry could not be an order. Thus, we will
not create a criterion for an FAA action to be an order that
it affect only a single company. Nor will we hold that an
action affecting a single company necessarily is an order.
Thus, we reject Aerosource's contention that the FAA has
de facto decertified it, thus entering an order against it.
In reaching our result, we quite naturally consider our
recent decision in Hindes v. FDIC, 1998 WL 65978 (3d Cir.
Feb. 19, 1998). In Hindes, the FDIC notified the Meritor
Savings Bank that unless Meritor satisfied certain
capitalization requirements the FDIC would cancel its
deposit insurance. The demand created a crisis which led
the Pennsylvania Secretary of Banking to close the bank
and appoint the FDIC as its receiver on the same day that
the FDIC notified Meritor of its capitalization requirements.
The impact of the FDIC's notice on Meritor was dramatic.
Nevertheless, we held that the Notification was not a final
agency action for purposes of APA review. We pointed out
that the Notification was not the FDIC's definitive
statement, did not impose an obligation, deny a right, or fix
a legal relationship. Rather, the Notification was merely the
first step of a multi-step statutory procedure which could
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lead to the termination of the institution's deposit
insurance. Id. at *11-*12. Thus, we concluded that the
district court did not have jurisdiction to review the
Notification. Id.
We recognize that the language of the APA in 5 U.S.C.
S 702 differs from that in section 46110(a). Yet similar
principles apply under both statutes. See, e.g., Southern
Cal. Aerial Advertisers' Ass'n, 881 F.2d at 675. Moreover,
on the facts in Hindes, an arguably even stronger case for
judicial review could be made than has been made here.
After all, in Hindes, the Notification required Meritor to take
action, failing which the FDIC would initiate an
administrative proceeding.13 Indeed, the impact of the
Notification on Meritor reasonably may be characterized as
more severe than the impact on Aerosource of the SDR and
the Alert. Yet in Hindes we held that the district court did
not have jurisdiction to review the issuance of the
Notification because, inter alia, "it was not a final agency
action." Id. at *11.14
B. Mandamus
As we have indicated, Aerosource contends that
alternatively we have jurisdiction to issue a writ of
mandamus pursuant to the All Writs Act, 28 U.S.C.
S 1651(a). Thus, it requests that if we conclude that we do
not have jurisdiction pursuant to its petition for review, we
treat the petition as seeking a writ of mandamus and that
through this device we compel the FAA to rescind the SDR
and Alert. Mandamus is only appropriate where the
petitioner can establish that it has no alternative, adequate
remedy and that its right to the writ is clear and
indisputable. See Rhoune-Poulenc Rorer, Inc., 32 F.3d 851,
_________________________________________________________________
13. The Secretary of Banking's action obviated the need for the
administrative proceeding.
14. The FAA, relying on ICC v. Brotherhood of Locomotive Eng'rs, 482
U.S. 270, 107 S. Ct. 2360 (1987), contends that the petition for review
which Aerosource filed on June 9, 1997, was not timely as it could have
been timely only if measured from May 6, 1997, when the second letter
at issue here is dated. In view of our result, we have no need to reach
this argument and to spell out its nuances.
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861 (3d Cir. 1994). In addition, the petitioner generally
must show irreparable injury caused by the error. See
United States v. Wexler, 31 F.3d 117, 128 (3d Cir. 1994).
We have reviewed Aerosource's mandamus argument
carefully and find that while it has no adequate alternative
remedy and that its injury has been severe, nevertheless on
the facts its right to the writ is not clear and indisputable.
Consequently, we are constrained to deny Aerosource's
petition insofar as it seeks mandamus.
III. CONCLUSION
For the foregoing reasons, the petition for review is
dismissed and, treating the petition as seeking a writ of
mandamus, mandamus is denied.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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