Avia Dynamics, Inc. v. Federal Aviation Administration

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 18, 2010 Decided April 19, 2011

No. 09-1278

AVIA DYNAMICS, INC.,

PETITIONER

v.

FEDERAL AVIATION ADMINISTRATION ,

RESPONDENT

On Petition for Review of an Order

of the Federal Aviation Administration

Jason A. Dickstein argued the cause for the petitioner.

Edward Himmelfarb, Attorney, United States Department

of Justice, argued the cause for the respondent. Anthony J.

Steinmeyer, Attorney, United States Department of Justice, was

on brief.

Before: HENDERSON and GRIFFITH , Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge HENDERSON .

KAREN LE CRAFT HENDERSON , Circuit Judge: Petitioner

Avia Dynamics, Inc. (Avia), a manufacturer and distributer of

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aircraft parts, seeks review of an “Unapproved Parts

Notification” (UPN) posted by the Federal Aviation

Administration (FAA) on its website.1 The UPN declared that

Avia Dynamics had manufactured certain aircraft parts without

FAA production approval. Because Avia filed its petition after

the sixty-day statutory time limit had elapsed and has failed to

demonstrate “reasonable grounds” for missing the deadline, we

deny its petition as untimely.

I.

The FAA has statutory responsibility to enforce minimum

safety standards in civil aviation. 49 U.S.C. § 44701(a)(1). As

part of its statutory mandate, the FAA shall issue a “type

certificate” for any “aircraft, aircraft engine, or propeller, or . . .

appliance” that meets its standards. 49 U.S.C. § 44704(a)(1).

Replacement parts and parts used to modify a “type certificated”

aircraft must be manufactured according to FAA specifications,

except under certain limited circumstances. 14 C.F.R.

§ 21.303(a)–(b). In general, a parts manufacturer must obtain a

“Parts Manufacturer Approval” from the FAA by providing

evidence that its “design of the part” meets FAA airworthiness

requirements and by certifying that it has a “fabrication

inspection system” in place to ensure continued compliance with

FAA requirements. See generally id. § 21.303.

In 1993, the FAA created the “Suspected Unapproved

Parts” (SUP) Program to prevent aircraft parts manufactured

without a Parts Manufacturer Approval—known as “unapproved

parts”—from being installed on type certificated aircraft. FAA

Advisory Circular 21-29C, Detecting and Reporting Suspected

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The FAA is an administration within the United States

Department of Transportation. 49 U.S.C. § 106(a).

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Unapproved Parts, ¶¶ 3(b)(1), 3(o), 5(a)–(b) (July 22, 2008).

Through the SUP Program, the FAA identifies a suspected

unapproved part in the market, investigates and then takes one

of several actions. FAA Order 8120.16, Processing Reports of

Suspected Unapproved Parts, ch. 4, ¶ 2 (July 15, 2008) (Order

8120.16). The actions include initiation of a civil enforcement

action against the non-compliant party and/or publication of a

“Field Notification” on the FAA’s website to notify the aviation

community of the unapproved part. Id. ch. 4, ¶¶ 2(i), 4(e).

Avia’s petition involves one such unapproved parts

investigation.

The FAA opened an SUP investigation on October 23, 2006

after an FAA inspector discovered that a type of aircraft current

limiter2 in Avia’s inventory appeared to have been manufactured

without FAA approval. The investigation focused at first on

Elliptical Systems, Inc., the manufacturer of the current limiter,

but it soon shifted to Avia as it became apparent that Elliptical

fabricated the parts according to Avia’s specifications. The

scope of the investigation changed too, branching out from

current limiters to include overhead light switches, also

manufactured by Elliptical, coffee maker brew trays made by

Avia and other aircraft parts not involved herein. On August 6,

2007, after nearly ten months of investigation, the FAA

concluded that the current limiters, overhead light switches and

coffee maker brew trays in Avia’s inventory were all

“unapproved parts.”

Meanwhile, the FAA took steps to initiate an enforcement

action against Avia. On July 24, 2007, it issued a letter of

investigation to Avia, informing the company that it was

2

A current limiter is a device that regulates electrical current in

order to reduce the risk of short-circuit, loss of power or fire.

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investigating “a suspected unapproved parts allegation” and

requesting the company’s cooperation. Letter from Sandy K.

Yamane, Aviation Safety Inspector, Van Nuys Mfg. Inspection

Dist. Office, FAA, to Gary Szerman, Avia-Dynamics Corp.

(July 24, 2007). The FAA asked Avia to explain the reason for

its non-compliance, detail what actions it took to prevent

recurrence and identify any relevant mitigating circumstances.

After Avia’s first response, which the FAA dismissed as

“unacceptable,”Avia submitted a comprehensive report on

February 27, 2008, entitled “Root Cause Analysis and

Corrective Action Report.” Letter from Sandy K. Yamane,

Aviation Safety Inspector, Van Nuys Mfg. Inspection Dist.

Office, FAA, to Gary Szerman, Avia-Dynamics Corp. (Aug. 22,

2007). The FAA signaled its satisfaction with Avia’s submission

in a letter dated April 7, 2008, informing Avia that “this matter

does not warrant legal enforcement action” and that “[i]n lieu of

such action and in consideration of your corrective action

commitments . . . , we are issuing this letter of correction which

will be made a matter of record.” Letter from Christopher B.

Bergen, Manager, Van Nuys Mfg. Inspection Dist. Office, FAA,

to Gary Szerman, Avia-Dynamics Corp. (Apr. 7, 2008).

More than one year later, on May 20, 2009, the FAA

official coordinating the SUP investigation of Avia

recommended to his superior that the case be closed, adding that

“[a]n Unapproved Parts Notification (UPN) has been written for

these three (3) parts and forwarded for release.” Memorandum

from Tony Peplowski, SUP Coordinator, FAA, to Robert

Franklin, SUP Focal Point, FAA, SUP Case 2007-

00016—Recommendation for Case Closure (May 20, 2009).

The UPN announced that “Avia-Dynamics produced and sold

replacement coffeemaker brew trays . . . without an FAA

production approval” and that Elliptical manufactured current

limiters and overhead reading light switches without production

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approval and then “sold these parts to Avia-Dynamics

Corporation, . . . a distributor of aviation parts.” Unapproved

Parts Notification, No. 2009-200700016 (June 22, 2009). The

UPN urged members of the aviation community to search their

aircraft and inventories for any of the unapproved parts “bought

from Avia-Dynamics Corporation” and “quarantine[]” the parts

“to prevent installation until a conclusive determination can be

made about their eligibility for installation.” Id. Although the

UPN was dated June 22, 2009, it was not posted on the FAA

website until August 27, 2009. Id.

Avia first learned of the UPN on September 7, 2009. On

that date, one of Avia’s customers called Avia’s president, Gary

Szerman, to inform him that the FAA had published the UPN on

its website. According to Szerman, standard industry practice is

to “black-list” any company named in a UPN and Avia attributes

a subsequent “significant downturn in [its] sales” to the FAA’s

action. Szerman Decl.¶¶ 17, 23, Avia Dynamics, No. 09-1278

(D.C. Cir. Dec. 10, 2009). Avia sought legal advice on October

26, 2009. On October 27, 2009, Avia petitioned for review of

the FAA order but erroneously filed in the District of Columbia

Court of Appeals. Avia’s petition was forwarded to this court,

where it was filed on November 3, 2009.

II.

We review FAA orders pursuant to 49 U.S.C. § 46110(a),

which provides that any “person disclosing a substantial interest

in an order” issued by the FAA may petition for review within

the statutory deadline set forth therein.3 Although we have

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Section 46110(a) provides: “The petition must be filed not later

than 60 days after the order is issued. The court may allow the petition

to be filed after the 60th day only if there are reasonable grounds for

not filing by the 60th day.” 49 U.S.C. § 46110(a).

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characterized section 46110(a) as a jurisdictional statute, see,

e.g., City of Dania Beach v. FAA, 628 F.3d 581, 584 (D.C. Cir.

2010); Adams v. FAA, 550 F.3d 1174, 1176 (D.C. Cir. 2008),

cert. denied, 130 S. Ct. 103 (2009); Safe Extensions, Inc. v. FAA,

509 F.3d 593, 601–02 (D.C. Cir. 2007), we have never held that

the limitations portion of section 46110(a)—set forth in the

second and third sentences—is jurisdictional. Bearing in mind

that “[f]iling deadlines, statutory or not, are generally

nonjurisdictional,” Menominee Indian Tribe v. United States,

614 F.3d 519, 523 (D.C. Cir. 2010), we hold that the sixty-day

deadline here does not constitute a jurisdictional bar. See

Arbaugh v. Y & H Corp., 546 U.S. 500, 502 (2006) (if the

Congress does not “clearly state[] that a threshold limitation on

a statute’s scope shall count as jurisdictional, . . . . courts should

treat the restriction as nonjurisdictional in character”). We

assume without deciding that the UPN at issue constitutes a

reviewable “order” both because the FAA concedes as much and

because it is unnecessary to decide the question in light of our

disposition.

A.

Avia contends that the sixty-day filing period under section

46110(a) did not begin to run until it received actual notice of

the UPN on September 7, 2009. We begin our analysis with the

statutory text, bearing in mind that “where filing deadlines are

concerned, ‘a literal reading of Congress’ words is generally the

only proper reading of those words.’ ” Spannaus v. FEC, 990

F.2d 643, 644 (D.C. Cir. 1993) (quoting United States v. Locke,

471 U.S. 84, 93 (1985)). Section 46110(a) requires that a

petition be filed within sixty days of the date the order “is

issued,” which we read to mean that the filing period begins to

run on the date the order is officially made public. See Fla.

Manufactured Hous. Ass’n v. Cisneros, 53 F.3d 1565, 1574

(11th Cir. 1995) (“The verb ‘issue’ clearly refers to an act of

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public announcement . . . .”); Black’s Law Dictionary 830 (6th

ed. 1990) (“issue” as verb means “[t]o send forth; to emit; to

promulgate”); 8 Oxford English Dictionary 137 (2d ed. 1989)

(“issue” as verb means “[t]o give or send out authoritatively or

officially; to send forth or deal out in a formal or public manner;

to publish”). Here, using its usual procedure, the FAA “issued”

the UPN by posting the UPN on the FAA’s website on a page

dedicated to SUP information. See Order 8120.16 ch. 4, ¶ 4(e)

(July 15, 2008) (“primary method of dissemination” for UPN

“will be posting on the SUP website”). Accordingly, August 27,

2009, the date of its online posting, is the UPN’s issue date and

marks the beginning of the sixty-day statutory filing period.

Avia asserts, however, that the filing period did not begin

to run until one of its customers brought the UPN to its attention

on September 7, 2009. In support, Avia relies on Americopters,

LLC v. FAA, 441 F.3d 726 (9th Cir. 2006), and National Air

Transportation Ass’n v. McArtor, 866 F.2d 483 (D.C. Cir.

1989), for the proposition that inadequate notice of an FAA

order tolls the sixty-day deadline for filing a petition for review.

See Americopters, 441 F.3d at 733 n.5; McArtor, 866 F.2d at

485. We note, at the outset, that the passages Avia relies on are

dicta: in both cases, the petitions were filed so long after the

petitioners received actual notice that they would have been

untimely irrespective of the adequacy of the notice.

Americopters, 441 F.3d at 733; McArtor, 866 F.2d at 486. In

addition, both of the cases are distinguishable on the facts. In

Americopters, the “order” in question was an email sent by an

FAA inspector to an airport revoking the petitioner’s

authorization to use the airport’s runway—in effect, a private

communication about which the petitioner knew nothing. 441

F.3d at 729. Here, by contrast, the FAA made the UPN publicly

available on its website—for Avia and any other interested party

to see—pursuant to its established procedure. See Order 8120.16

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ch. 4, ¶ 4(e) (July 15, 2008). In McArtor, the FAA published a

rule in the Federal Register with inaccurate bold-faced headings

and summary paragraphs that left the mistaken impression the

rule was inapplicable to the petitioner, only later issuing an

advisory circular that clarified the rule’s applicability. 866 F.2d

at 485–86. Here, on the other hand, the UPN left no ambiguity

that it applied to parts either manufactured or distributed by

Avia. See supra pp. 4–5. We cannot say, therefore, that the FAA

failed to draft the UPN “in a manner that reasonably put[]

aggrieved parties on notice of the [order’s] content.” McArtor,

866 F.2d at 485. Avia’s lack of actual notice of the August 27,

2009 UPN posting on the FAA’s website did not delay the start

of the sixty-day filing period. See Heide v. FAA, 110 F. App’x

724, 725 (8th Cir. 2004) (unpublished) (“The fact that

Petitioners were not personally aware of the order until

December of 2002 is irrelevant, as it is the date of the order’s

issuance that is pertinent under § 46110(a).”), cert. denied, 544

U.S. 1018 (2005).

Nor is Avia’s notice argument aided by its contention that

the FAA was required to serve notice of the UPN under 49

U.S.C. § 46105(b), which requires that an “order” issued by the

FAA Administrator “shall be served on the parties to the

proceeding and the persons affected by the order,” or under

section 46103, which prescribes the procedure for service on

parties and affected persons. Although we assume the UPN

qualifies as a reviewable “order” under section 46110(a), supra

p. 6, we do not consider the UPN an “order” within the meaning

of every provision of the Federal Aviation Act, 49 U.S.C.

§§ 40101 et seq. Section 46110(a) provides the mechanism for

“a person disclosing a substantial interest” to challenge an FAA

“order.” We have broadly construed the word “order” as used in

section 46110(a) because of its function in providing for judicial

review. Thus, we recently held that “order” in section 46110(a)

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“should be read ‘expansively’ ” but limited our construction to

“this provision”—referring to section 46110(a) only. City of

Dania Beach v. FAA, 485 F.3d 1181, 1187 (D.C. Cir. 2007)

(emphasis added) (quoting Aviators for Safe & Fairer

Regulation, Inc. v. FAA, 221 F.3d 222, 225 (1st Cir. 2000)); see

also Aviators, 221 F.3d at 225 (“The term ‘order’ is read

expansively in review statutes generally . . . and this statute

specifically.”); Aerosource, Inc. v. Slater, 142 F.3d 572, 578 (3d

Cir. 1998) (“[T]o be reviewable under section 46110(a), an

‘order’ must be final, but need not be a formal order . . . .”); New

York v. FAA, 712 F.2d 806, 808 (2d Cir. 1983) (“For purposes

of review under [predecessor provision to section 46110(a)], the

term ‘order’ should receive a liberal construction.”). Indeed, we

have long recognized a species of FAA action—a so-called

“informal adjudication”—that qualifies as a reviewable “order”

under section 46110(a). We have not held, however, that an

informal adjudication must be formally served as prescribed by

sections 46103 and 46105(b). Cf. McArtor, 866 F.2d at 486

(FAA advisory circular started sixty-day filing period where

petitioner “normally receives such circulars from the FAA” and

publication in Federal Register “alerted aircraft operators

generally”); Safe Extensions, Inc. v. FAA, 509 F.3d 593,

598–600, 604 (D.C. Cir. 2007) (FAA advisory circular is

reviewable “order” under section 46110(a) but also “fall[s] into

the vast category of ‘informal adjudications’ in which agencies

routinely engage” and thus is not subject to APA requirements

of notice and comment and record proceeding); Clark Cty. v.

FAA, 522 F.3d 437, 440–41 (D.C. Cir. 2008) (FAA “Does Not

Exceed” determination is reviewable “order” under

section 46110(a) but also “informal adjudication” not subject to

APA requirement of record hearing); Hudson v. FAA, 192 F.3d

1031, 1032, 1035–36 (D.C. Cir. 1999) (FAA issuance of “type

certificate” allowing production of Boeing 777-300 is “merely

an administrative action, a so-called informal adjudication” not

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subject to APA notice and comment requirements). We

conclude that a UPN, as an informal order that is advisory in

nature, is not subject to the procedural requirements laid out in

49 U.S.C. § 46103 and 49 U.S.C. § 46105(b).

Accordingly, we conclude that the sixty-day clock began to

tick on August 27, 2009, the date the FAA posted the UPN on

its website. Because Avia filed its petition for review in this

court sixty-eight days later, on November 3, 2009, its petition is

untimely.

B.

Finally, Avia argues that it had “reasonable grounds” for its

untimely filing. The FAA contends that Avia has waived the

issue.4 Ordinarily, we do not consider an argument raised for the

first time in a reply brief so that the appellee is ensured an

opportunity to respond. Gen. Elec. Co. v. Jackson, 610 F.3d 110,

123 (D.C. Cir. 2010). Here, however, the FAA was on notice of

Avia’s “reasonable grounds” argument based on Avia’s previous

motions; indeed, the FAA thoroughly responded to the argument

in its brief to this court. Resp’t’s Br. 26–30. In any event, even

if Avia has not waived the argument, it is unavailing because we

have heretofore found “reasonable grounds” only in cases in

which the petitioner attributes the delay to more than simply

ignorance of the order. See Safe Extensions, 509 F.3d at 602–04

(finding “reasonable grounds” where FAA made statements that

“could have confused petitioner and others” about whether order

4

The words “reasonable grounds” do not appear anywhere in

Avia’s opening brief but, in its reply brief, Avia states that the

argument articulated in its opening brief— about the FAA’s alleged

failure to provide notice or service of the UPN—in fact argues the

“reasonable grounds” exception. Reply Br. 5 (citing Pet’r’s Br.

38–42).

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would be revised); Paralyzed Veterans of Am. v. CAB, 752 F.2d

694, 705 n.82 (D.C. Cir. 1985) (finding “reasonable grounds”

where petitioners were “[a]ware that the rule might be

undergoing modification, and unable to predict how extensive

any modification would be” and therefore “elected to wait until

the regulation was in final form before seeking review”), rev’d

on other grounds sub nom. U.S. Dep’t of Transp. v. Paralyzed

Veterans of Am., 477 U.S. 597 (1986). Even if ignorance could

establish “reasonable grounds,” it would not excuse Avia’s

continued inaction during the forty-nine days from September

7, 2009, the date of Avia’s actual notice, until the filing period

closed on October 26, 2009. Finally, Avia’s contention that the

lack of formal notice constitutes “reasonable grounds” for

untimely filing gains no more traction here than it did under our

precedent discussed earlier. See supra pp. 8–10.

For the foregoing reasons, the petition for review is denied.

So ordered.