Clyde Blincoe, d/b/a Instead Sky Sports, filed a claim with the Federal Aviation Administration's San Francisco Airports District Office alleging the Airport Authority of Washoe County had discriminated against him in violation of 49 U.S.C.A.App. § 1349(a) by requiring him to carry a $1,000,000 comprehensive general liability insurance policy for his skydiving, hot air balloon repair and aerial photography business operated at the Reno Stead Airport while not requiring other tenants at the same airport to carry similar coverage. After investigating Blincoe's allegation and seeking advice from the FAA's Assistant Chief Counsel, the District Office wrote Blincoe that "the Airport Authority ... is not being discriminatory toward you and is not in violation of' § 1349(a). Blincoe seeks direct review of this decision pursuant to 49 U.S.C.A.App. § 1486(a). We dismiss for lack of jurisdiction.
This court has exclusive jurisdiction to review "[a]ny order, affirmative or negative, issued by the Board or Secretary of Transportation ... upon petition, filed ... by any person disclosing a substantial interest in such order." 49 U.S.C.A.App. § 1486(a). However, "[t]his power of review has been judicially restricted to final orders." Sierra Club v. Skinner, 885 F.2d 591, 592 (9th Cir.1989); Southern Cal. Aerial Advertisers' Ass'n. v. F.A.A., 881 F.2d 672, 675 (9th Cir.1989).
"Characteristics indicating finality include providing a `definitive' statement of the agency's position, having a `direct and immediate' effect on the day-to-day business of the complaining
By its terms, the letter is not a "definitive" determination by the agency that the Airport Authority did not violate § 1349(a). As the letter states, "[t]his determination is an informal finding" issued "in an effort to informally resolve the alleged discriminatory policy and procedures at the Reno-Stead Airport." (emphasis added). See Air Cal., 654 F.2d at 620 (informal nature of agency action implies it is not definitive statement of agency's position); Red River Transp. and Dev. Co. v. F.A.A., 630 F.2d 592, 594 (8th Cir.1980) (language such as "we are investigating incidents," "[o]ur reports indicate," and "[i]f the facts as stated are correct" suggested document was not a definitive statement of FAA's position). Although "the FAA's characterization of its own action is not determinative," Sierra Club, 885 F.2d at 592, it is relevant in determining whether the letter is a "final" administrative resolution of Blincoe's claims.
The tentative nature of the determination is also indicated by the regulation under which it was issued. Blincoe's complaint was a "report of a violation" submitted to the District Office of the FAA pursuant to 14 C.F.R. § 13.1, rather than a "formal complaint" filed with the Administrator of the FAA in Washington, D.C. pursuant to 14 C.F.R. § 13.5.
The holding in Southern Cal. Aerial Advertisers' Ass'n is not to the contrary. In that case, a letter from the Assistant Manager of the Air Traffic Division of the FAA's Western-Pacific Region prohibiting fixed-wing aircraft from travelling through certain airspace around the Los Angeles International Airport was held to possess the requisite finality because it was issued pursuant to 49 U.S.C.A.App. § 1348(a), which "charge[s] the [local] Administrator of the FAA with carrying out the duties and powers of the Secretary related to aviation safety," and makes it clear that the Administrator acts "on behalf of the Secretary when he issues rules and orders related to aviation safety." 881 F.2d at 675. In contrast, in reviewing a report of violations under § 13.1, the District Office acts on behalf of the FAA only for the purpose of determining whether the FAA will initiate further investigative or enforcement proceedings without further action from the complainant — not for the purpose of making a final determination whether discrimination has occurred in violation of federal law. Kemmons Wilson, Inc. v. F.A.A., 882 F.2d 1041 (6th Cir.1989), is also distinguishable. In Kemmons, the petitioner sent a "timely request for a formal evidentiary hearing on its complaint" to the Federal Aviation Administration in Washington after the complaint was initially rejected by the local FAA office. Id. at 1044.
The District Office's letter also does not carry an "expectation of immediate compliance with its terms" or have a "direct and immediate" effect on Blincoe's day-to-day business. The only "direct and immediate" effect of the District Office's informal determination whether discrimination has occurred is to decide whether the petitioner or the FAA bears the responsibility of initiating further proceedings against the Airport Authority by filing a formal complaint under § 13.5.
Finally, there is no indication Blincoe will suffer undue hardship if he does not obtain judicial review at this point. Although the continued existence of the insurance requirement pending a final resolution of his discrimination claim is undoubtedly costly to Blincoe, he would have to incur this cost even if the District Office had found discrimination and the FAA had taken the responsibility for initiating more formal proceedings to resolve the claim. The fact that Blincoe, rather then the FAA, must now initiate formal proceedings has no effect on the cost he must incur pending a final administrative decision and, therefore, does not add to the hardship he may suffer as a result of the District Office decision if this court declines to review his claim now. Compare Nevada Airlines, 622 F.2d at 1019-20 (administrator's use of emergency powers to revoke pilot's license reviewable where the action had the immediate effect of depriving complainant of a "significant property interest" and denying prompt judicial review would raise "serious due process concerns" because administrator's emergency orders were virtually unreviewable through administrative channels).
The petition for review is DISMISSED.