Armstrong v. Federal Aviation Administration

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 12, 2007 Decided February 19, 2008

No. 06-1424

WILLIAM REDIN ARMSTRONG,

PETITIONER

v.

FEDERAL AVIATION ADMINISTRATION AND

MARION C. BLAKEY, ADMINISTRATOR,

RESPONDENTS

On Petition for Review of an Order of the

Federal Aviation Administration

Richard E. Gardiner argued the cause and filed the briefs

for petitioner.

James F. Conneely, Attorney, Federal Aviation

Administration, argued the cause for respondents. With him on

the brief was Peter J. Lynch, Assistant Chief Counsel.

Before: SENTELLE, Chief Judge, and GINSBURG and

BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

2

GINSBURG, Circuit Judge: William Armstrong petitions for

review of the order of the Federal Aviation Administration

determining that an “emergency” existed, entitling it

immediately to revoke his private pilot certificate. We dismiss

the petition as moot.

I. Background

On October 10, 2006, the Administrator of the Federal

Aviation Administration issued an order revoking William

Armstrong’s private pilot certificate, alleging that Armstrong

had violated numerous federal aviation regulations by

knowingly flying an airplane that was not airworthy and

performing repairs he was not authorized to do. The

Administrator determined that an “emergency” existed,

permitting her to impose the order without first providing

Armstrong an opportunity to respond to these allegations. 49

U.S.C. § 44709(c). The emergency determination also

prevented Armstrong from obtaining a stay of the order while he

appealed it to the National Transportation Safety Board. Id. §

44709(e)(2).

Armstrong did appeal the order to the NTSB, but because

he did not request review of the underlying emergency

determination within two days of receiving the order, he

forfeited his right to an administrative appeal of that

determination. Id. § 44709(e)(3). He instead petitioned this

court for review of the emergency determination. See 49 U.S.C.

§ 46110(a).

While Armstrong’s petition here was pending, an

Administrative Law Judge affirmed all the violations found by

the Administrator but reduced the sanction to a 10-month

suspension of his private pilot certificate. Administrator v.

3

Armstrong, No. SE-17854, 2007 WL 549827 (N.T.S.B. Jan. 25,

2007). Armstrong appealed, and the Administrator cross-

appealed, to the NTSB. Shortly before oral argument in this

case, the NTSB denied Armstrong’s appeal and granted that of

the Administrator, thereby reinstating the order revoking

Armstrong’s certificate. Administrator v. Armstrong, No. SE-

17854, 2007 WL 2846496 (N.T.S.B. Sept. 27, 2007).

II. Analysis

The emergency determination of which Armstrong seeks

review prevented him from obtaining a stay of the revocation

order while his appeal was pending before the NTSB. Once the

NTSB resolved his appeal, the emergency determination ceased

to have any effect. See Robinson v. NTSB, 28 F.3d 210, 211,

213-14 (D.C. Cir. 1994). That would seem to moot the present

case, which concerns only the emergency determination.

Armstrong, however, argues that the case comes within the

exception to mootness for cases “capable of repetition, yet

evading review.” Weinstein v. Bradford, 423 U.S. 147, 149

(1975) (per curiam) (internal quotation marks omitted).

We cannot deem Armstrong’s case capable of repetition

because he has not made “a reasonable showing that he will

again be subjected to the alleged illegality.” City of Los Angeles

v. Lyons, 461 U.S. 95, 109 (1983). More specifically,

Armstrong has not shown it is at all likely he will obtain a new

private pilot certificate and again be subject to an emergency

determination. Furthermore, the issue presented - whether it

was arbitrary and capricious for the Administrator to make an

emergency determination under the specific factual

circumstances of this case - will never arise again. See PETA,

Inc. v. Gittens, 396 F.3d 416, 424 (D.C. Cir. 2005) (declining to

apply exception to a “legal controversy so sharply focused on a

unique factual context” (internal quotation marks omitted)).

4

Nor did Armstrong’s case “evade review”; that occurs only

when “the challenged action was in its duration too short to be

fully litigated prior to its cessation or expiration.” Weinstein,

423 U.S. at 149. Here it was Armstrong’s lassitude that

allowed his case to become moot.

First, Armstrong did not file his petition for review until 79

days after the Administrator’s order issued, which was 19 days

after the period for filing a petition for review of an order of the

FAA had expired.* He later filed a motion to extend the time to

file his reply brief by two weeks. A litigant cannot credibly

claim his case “evades review” when he himself has delayed its

disposition. See City of Houston v. Dep’t of Hous. & Urban

Dev., 24 F.3d 1421, 1427 (D.C. Cir. 1994). But cf. United States

v. Seminole Nation of Okla., 321 F.3d 939, 943 (10th Cir. 2002)

(agency order with 30-day statutory life evades review

notwithstanding agency’s failure to seek expedition and its

motions for extension of time to file briefs in particular case).

Having pursued his appeal in so leisurely a fashion, Armstrong

made it impossible for us to say the order of the Administrator

was too short-lived to be reviewed by this court.

Second, Armstrong never filed a motion, either before the

NTSB or in this court, to stay the administrative proceeding.

We join every other circuit to have considered the matter and

conclude that a litigant who could have but did not file for a stay

to prevent a counter-party from taking any action that would

*

A pilot may petition for review more than 60 days after the

issuance of an order if he has “reasonable grounds” for his delay. 49

U.S.C. § 46110(a). Because we dismiss this case as moot, we do not

decide whether Armstrong had such “reasonable grounds.” Nor do we

express a view upon whether Armstrong’s failure to exhaust his

administrative appeals independently deprived this court of

jurisdiction to hear his petition. See id. § 46110(d).

5

moot his case may not, barring exceptional circumstances, later

claim his case evaded review. See Iowa Prot. & Advocacy

Servs. v. Tanager, Inc., 427 F.3d 541, 544 (8th Cir. 2005); N.Y.

City Employees’ Ret. Sys. v. Dole Food Co., Inc., 969 F.2d 1430,

1435 (2d Cir. 1992); Koppers Indus., Inc. v. EPA, 902 F.2d 756,

759 (9th Cir. 1990); In re Kulp Foundry, Inc., 691 F.2d 1125,

1129-30 (3d Cir. 1982); cf. Dow Jones & Co., Inc. v. Kaye, 256

F.3d 1251, 1257-58 (11th Cir. 2001); United States v. Taylor, 8

F.3d 1074, 1077 (6th Cir. 1993); In re L.F. Jennings Oil Co., 4

F.3d 887, 890 (10th Cir. 1993).

III. Conclusion

For the foregoing reasons, we conclude that Armstrong’s

petition for review is moot. It is therefore

Dismissed.