NEVADA AIRLINES, INC. v. BOND

PER CURIAM.

On May 23, 1980, the air carrier operating certificate of Nevada Airlines, Inc., was revoked in an emergency pursuant to 49 U.S.C. § 1429(a).1 Nevada Airlines has appealed from the judgment of the district court dismissing its action for injunctive relief against the emergency revocation and has petitioned for review of the emergency revocation order under 49 U.S.C. § 1486(a).2 We affirm the district court's dismissal for lack of subject matter jurisdiction and deny the petition for review.3

Nevada Airlines is a Nevada corporation engaged primarily in providing a commuter air service under an air carrier operating certificate issued by the Federal Aviation Administration (FAA) pursuant to 49 U.S.C. § 1424. In March 1980, the FAA conducted a thorough investigation of Nevada Airlines' operations and facilities. Shortly thereafter, it issued a report alleging numerous violations of applicable safety regulations. Nevada Airlines was informed of the allegations and was asked to advise the FAA of its proposed remedies.

On May 23, the FAA Administrator, acting through Regional Counsel, determined that an emergency existed requiring immediate action with respect to safety in air commerce because of the uncorrected violations. He issued an emergency revocation order. This determination effected the suspension of Nevada Airlines' operating certificate pending an administrative appeal to the National Transportation Safety Board (NTSB). 49 U.S.C. § 1424(a).

Alleging irreparable injury by the suspension of its certificate pending administrative proceedings and a denial of due process by the Administrator's action, Nevada Airlines sued in district court to enjoin immediate enforcement of the revocation order.

An ex parte temporary restraining order was issued, but it was vacated on the Administrator's motion, and the district court dismissed the action under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. Nevada Airlines appeals from that judgment and petitions independently for review of the Administrator's order.

Our initial concern is with the reviewability of the emergency revocation order. We distinguish here the Administrator's determination that an emergency warranted immediate effectiveness of the order from his underlying substantive determination that revocation was warranted. Under section 609(a) of the Federal Aviation Act of 1958 [49 U.S.C. § 1429(a)], the latter determination may be reviewed by petition to this court after resolution of the administrative appeal pending before the NTSB. Whether the former determination is reviewable now is an issue of first impression.

The parties have cited no cases, nor have we discovered any in which a certificate holder sought only to challenge the Administrator's emergency determination. Rather, courts have uniformly reviewed the Administrator's use of emergency action only in conjunction with review of the revocation question, and only after the administrative appeal was concluded. See Cowell v. National Transportation Safety Board, 612 F.2d 505, 506 (10th Cir. 1980); Stern v. Butterfield, 529 F.2d 407, 408 (5th Cir. 1976); Morton v. Dow, 525 F.2d 1302, 1304 (10th Cir. 1975); Air East, Inc. v. National Transportation Safety Board, 512 F.2d 1227, 1229-30 (3d Cir.), cert. denied, 423 U.S. 863, 96 S.Ct. 122, 46 L.Ed.2d 92 (1975).

We are persuaded, however, that Nevada Airlines' claim for relief is cognizable at this time, even though administrative remedies remain available to challenge the underlying revocation order. Under section 1006(a) of the Act [49 U.S.C. § 1486(a)], we have jurisdiction to review "[a]ny order" issued by the Administrator in the exercise of his statutory powers.

We do not read the separate statutory provision for agency review of the revocation order as limiting this broad grant of jurisdiction. To the contrary, the Administrator's use of emergency powers to effect an immediate revocation insures that the revocation order will not be stayed during the pendency of the administrative appeal as would otherwise be the case. See 49 U.S.C. § 1429(a).

Although the administrative appeal is expedited in these emergency situations, the net effect is a suspension without prior notice and hearing for a period of up to 60 days. See id. The emergency determination would deprive the certificate holder of a significant property interest and affects substantial rights that might be lost if review is denied or delayed.4

This determination could not be insulated from prompt judicial review without raising serious due process concerns. See North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 606, 95 S.Ct. 719, 722, 42 L.Ed.2d 751 (1975); United States v. Vertol H21C, 545 F.2d 648, 650-51 (9th Cir. 1976).

Even assuming that our authority under § 1486(a) is limited to review of "final" agency orders, see McManus v. Civil Aeronautics Board, 286 F.2d 414, 417 (2d Cir.), cert. denied, 366 U.S. 928, 81 S.Ct. 1649, 6 L.Ed.2d 388 (1961), the emergency determination is final in a practical sense to permit our review.5

Having determined that we have jurisdiction over the petition for review of the emergency order, it follows that our jurisdiction is exclusive and that the district court lacked subject matter jurisdiction over the action for injunctive relief.

Under settled principles applicable to review of agency action, Congress may select the forum in which review may be had and special statutory review procedures take precedence over whatever non-statutory review might otherwise be available in the district court. See City of Rochester v. Bond, 603 F.2d 927, 935-39 (D.C. Cir. 1979). Congress has exercised this authority in this area to provide for exclusive jurisdiction in the courts of appeals. 49 U.S.C. § 1486(a). We therefore affirm the judgment of dismissal below under Fed.R.Civ.P. 12(b)(1).

Although we hold today that we have jurisdiction to entertain Nevada Airlines' petition for review, we adopt a limited standard of review over the Administrator's action. Congress has given broad discretion to the Administrator in matters of safety in air commerce and air transportation.

In the ordinary case, we would review the findings of fact supporting a certificate revocation only to determine if they are supported by substantial evidence in the administrative record. See 49 U.S.C. § 1486(e). Without an administrative record or agency hearing at this stage of the proceedings and in light of the Administrator's broad discretion, we limit our review to determining whether the Administrator's finding of an emergency was arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law. See Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973); Tiger International Inc. v. Civil Aeronautics Board, 554 F.2d 926, 936 (9th Cir.), cert. denied, 434 U.S. 975, 98 S.Ct. 532, 54 L.Ed.2d 467 (1977). Cf. Air East, Inc. v. National Transportation Safety Board, 512 F.2d at 1232 (Administrator does not have unlimited discretion to exercise his emergency powers "arbitrarily and capriciously.")6

In other words, a carrier challenging the Administrator's emergency determination must demonstrate a substantial likelihood that the determination was "a clear error of judgment" lacking any rational basis in fact. See Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 441, 42 L.Ed.2d 447 (1974); Ethyl Corp. v. Environmental Protection Agency, 541 F.2d 1, 34-35 n. 74 (D.C. Cir), cert. denied, 426 U.S. 941, 96 S.Ct. 2663, 49 L.Ed.2d 394 (1976).

Without determining precisely the showing that would warrant relief in another case, we find that Nevada Airlines failed to demonstrate any basis for a conclusion that the Administrator's exercise of his emergency powers was arbitrary and capricious.

The emergency revocation order shows in detail a pattern of repeated conduct by Nevada Airlines evidencing a disregard for regulations directed to safety in air commerce. The charges stand uncontroverted by the carrier except in conclusory terms.

We recognize the difficulty facing a petitioner in marshalling evidence at this stage, but we find no showing that the Administrator's finding of an emergency was unreasonable.

We do not hold that a petition for review of an emergency revocation order must conclusively rebut all charges by the Administrator, nor must we determine now the truth of the charges. Such a review would be an unwarranted infringement on the Administrator's broad discretion and preempt the purpose of judicial review of the final NTSB decision on the question of certificate revocation.

Where we are given no concrete information casting doubt on the authenticity or gravity of any of the Administrator's charges, we shall not interfere with his determination that summary action was required.

The petition for review is DENIED.

The judgment of the district court is AFFIRMED.