Opposition Brief — Go Air, Inc. v. Administrator, Federal Aviation Administration

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No. 88-118 2OSSPH

In the Supreme Court of the Anited States

OCTOBER TERM, 1988

Go AIR, INC., PETITIONER

V.

ADMINISTRATOR, FEDERAL AVIATION

ADMINISTRATION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

MEMORANDUM FOR THE RESPONDENTS IN OPPOSITION

CHARLES FRIED

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

TABLE OF AUTHORITIES

Page

Cases:

Air East, Inc. v. NTSB, 512 F.2d 1227 (3d Cir.), cert.

es re OF, TE ies ee be canes bases 3,4

Capuano v. NTSB, 643 F.2d 56 (Ast Cir. 1988) .......... 5

Donovan v. Wollaston Alloys, Inc., 695 F.2d 1 (Ast Cir.

ar CD ge os aay Bed Te ba eg a ee a 5

Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594

Et, Coe ed area haan etad dis ga toes ee eA 3

Go Leasing, Inc. v. NTSB, 800 F.2d 1514 (9th Cir.

Unt ca Ree Pe cura gt dy a + 4,5,%

Morton v. Dow, 525 F.2d 1302 (10th Cir. 1975) ......... :

Nevada Airlines, Inc. v. Bond, 622 F.2d 1017 (9th Cir.

ee er a ees ce es eae ak Fada ep Kad oki 4

North American Cold Storage Co. v. Chicago, 211 U.S.

oe ara ers yee ea ld aN bu 0s 3

SEC v. Chenery Corp., 332 U.S. 194 (1947) ............ 6

Constitution and statutes:

U.S. Const. Amend. V (Due Process Clause) ........... we mS

Administrative Procedure Act, 5 U.S.C. (& Supp. IV)

551 ef seq.:

oy cate wutee ans 4,5

Ne Ie een ee el lh as ae eae ee 4,5

Federal Aviation Act of 1958, 49 U.S.C. App. 1301 e/

seq.:

ee ee ie an a 6 wo 4 yk Sn 3

es I kk ie sid as ocala des Oe

ee ee ays ecw bk yee x See l

ee ee I I oh. hs eas ke oe eee oo 3

ee I oo eS 4k Nh ke wees 3

Miscellaneous:

FAA, Compliance and Enforcement Program Manual

a ie ia a a ch aa hoc RSke ened bea van ae

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1988

No. 88-118

Go AIR, INC., PETITIONER

V.

ADMINISTRATOR, FEDERAL AVIATION

ADMINISTRATION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

MEMORANDUM FOR THE RESPONDENTS IN OPPOSITION

Petitioner contends (1) that the Federal Aviation Ad-

ministration (FAA) violated the Due Process Clause of the

Constitution when it revoked petitioner’s certificate to

service parts used in commercial airplanes, and (2) that the

FAA violated the Administrative Procedure Act (APA) by

not publishing and promulgating an agency policy manual

as a Substantive rule.

1. Petitioner is in the business of servicing parts used

in commercial passenger aircraft. During February and

March 1985, the FAA conducted an inspection of peti-

tioner and its affiliates. The FAA found widespread viola-

tions of the agency’s safety regulations. Thus, on May 2,

-1985, the FAA exercised its authority under the Federal

Aviation Act of 1958 (49 U.S.C. App. 1429(a) and 1485)

(1)

and revoked petitioner’s Repair Station Certificate. Pet.

App. 2a-3a, 27a, 30a n.1.!

The FAA’s revocation order lists numerous safety viola-

tions. For example, the order cites instances of improper

maintenance, deficiencies in petitioner’s facilities and

equipment, and significant problems with petitioner’s

recordkeeping (Pet. App. 6a-25a). The FAA concluded

that petitioner “has failed to exercise the degree of care,

judgment and responsibility required of the holder of a

repair station certificate” (id. at 25a). The FAA also found

that petitioner’s continued operation posed an immediate

risk to public safety (id. at 26a). Accordingly, the FAA

“determined that safety in air commerce and the public in-

terest” required that the agency’s revocation order take ef-

fect immediately (ibid.).

Petitioner appealed the FAA order to the National

Transportation Safety Board (NTSB). An evidentiary

hearing was held before an administrative law judge. The

administrative law judge affirmed all the pertinent find-

ings in the FAA’s revocation order. The full NTSB af-

firmed the administrative law judge’s findings and deci-

sion. Pet. App. 29a-40a.?

The court of appeals denied petitioner’s petition for

judicial review of the NTSB decision. The court of ap-

peals, in a brief unpublished order, stated that petitioner’s

arguments “have been considered and decided in a manner

adverse to petitioner’s contentions” (Pet. App. 42a).

2. The decision of the court of appeals is correct and

does not conflict with any decision of this Court or any

' The FAA also revoked the operating certificates held by peti-

tioner’s affiliates, Go Leasing, Inc. and Royal American Airways, Inc.

Those entities are not a party to this action.

? Petitioner raised procedural issues before the NTSB, but it did not

challenge the sufficiency of the evidence presented by the FAA.

3

other court of appeals. Thus, no further review is war-

ranted.

a. Petitioner contends (Pet. 18-29) that its license to

service and repair airplane parts was revoked without due

process of law. Every court of appeals to consider such a

claim has rejected it. Under the Federal Aviation Act,

when the FAA Administrator issues an emergency order

revoking a certificate to operate, an aggrieved party may

immediately seek review by the NTSB. The NTSB must

conduct a de novo evidentiary hearing on the merits of the

FAA’s findings (49 U.S.C. App. 1429(a)). And the NTSB

must “finally dispose of the appeal within sixty days” (49

U.S.C. App. 1429(a)).? The decision of the NTSB is then

subject to judicial review in a court of appeals (49 U.S.C.

App. 1429, 1486). Three courts of appeals have held that

this administrative process, coupled with judicial review,

satisfies the Due Process Clause. See Go Leasing, Inc. v.

NTSB, 800 F.2d 1514, 1523-1524 (9th Cir. 1986); Morton

v. Dow, 525 F.2d 1302, 1305 (10th Cir. 1975); Air East,

Inc. v. NTSB, 512 F.2d 1227, 1231 (3d Cir.), cert. denied,

423 U.S. 863 (1975).

The uniform view of the circuits is clearly correct. It is

well settled that an agency may take emergency action

when there is immediate danger to the public. See, e.g.,

Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594

(1950) (drug with misleading label may be seized pending a

hearing); North American Cold Storage Co. v. Chicago,

211 U.S. 306 (1908) (food unfit for human consumption

may be summarily seized and destroyed). And as the Third

Circuit noted in Air East, Inc. v. NTSB, in the case of a

violation of the FAA’s safety regulations, “the stakes [are]

high indeed —a threat to the lives of passengers who en-

> In this case, petitioner waived its right to a ruling within 60 days

by requesting several continuances (Pet. App. 38a).

4

‘trust{ ] themselves” to air carriers ($512 F.2d at 1231).

Thus, the risk to public safety justified the FAA’s im-

mediate revocation of petitioner’s certificate; petitioner

then was entitled to no more process than a prompt evi-

dentiary hearing before the NTSB and judicial review of

the decision of that body. See Morton v. Dow, 525 F.2d at

1305; Air East, Inc., 512 F.2d at 1232.4

Moreover, the Ninth Circuit has held that the FAA’ s

finding of an emergency — which makes the revocation of

an FAA certificate effective immediately —is subject to

judicial review in a court of appeals. See Nevada Airlines,

Inc. v. Bond, 622 F.2d 1017 (9th Cir. 1980). Thus, in this

case, petitioner could have sought immediate review of the

FAA’s finding of an emergency and could have asked the

court of appeals for any appropriate temporary relief.° In

a case where safety concerns are paramount, these multi-

ple paths of review plainly satisfy due process.

b. Petitioner next contends (Pet. 30-36) that the FAA

violated the APA (5 U.S.C. 552(a)(1) and 553) by not

publishing in the Federal Register or promulgating as a

substantive rule paragraph 1203.g of the FAA’s Com-

pliance and Enforcement Program Manual (May 16,

* Petitioner repeatedly attacks the motives and integrity of FAA of-

ficials. The Ninth Circuit in Go Leasing, Inc. v. NTSB, supra, com-

mented on similar allegations: “(W]e reject Go Leasing’s numerous

and repetitive assertions of a continuing conspiracy by the FAA to

cover up its alleged lack of authority for so-called punitive certificate

actions. Nor do we approve of Go Leasing’s impugning of the ethics

of FAA officials, its counsel, and of the NTSB. There is no evidence

whatever of any cover-up or of any unethical conduct on the part of

the FAA or NTSB” (800 F.2d at 1518).

* Before the FAA issued its order in this case, petitioner was well

aware of the FAA inspection of its facilities. See Pet. 9. Thus, peti-

tioner could have prepared an administrative record that would have

supported any claim that the FAA acted arbitrarily or beyond its

authority.

5

1980). That paragraph sets forth general guidelines used

by the FAA’s legal staff in deciding whether to take

emergency actions.* Petitioner’s claim is without merit.

The APA requires an agency to publish in the Federal

Register its statements of general policy. See 5 U.S.C.

$52(a)(1). That requirement, however, “attaches only to

matters which if not published would adversely affect a

member of the public.” Donovan v. Wollaston Alloys,

Inc., 695 F.2d 1, 9 (ist Cir. 1982) (collecting cases).

Paragraph 1203.g is not such a matter. The First Circuit

recently addressed a similar claim involving other para-

graphs in the FAA’s Compliance and Enforcement Pro-

gram Manual. See Capuano v. NTSB, 843 F.2d 56 (ist

Cir. 1988). The First Circuit correctly held (id. at 58) that

the manual “is not intended to affect the rights, duties,

obligations, or conduct” of the public and need not be

published in the Federal Register. The manual “fits best

the description of [S U.S.C.] § 552(a)(2)(C)[, which refers

to (among other things)] ‘administrative staff manuals and

instructions to staff that affect a member of the public’ ”

(843 F.2d at 57-58). The FAA “has published the manual

here at issue and the public can easily inspect, copy, or buy

it. The APA requires no more” (ibid.).

Nor is paragraph 1203.g of the agency manual a

substantive rule that must be promulgated under 5 U.S.C.

553. Paragraph 1203.g contains internal FAA enforce-

ment policies, not rules of conduct applicable to regulated

entities. As the court of appeals held in Go Leasing, Inc. v.

NTSB, the FAA “need not promulgate rules constraining

* Paragraph 1203.g states, in part: “Emergency suspension or

revocation of a certificate should be used only as an emergency safety

measure and, thus, to provide immediate protection to the public.

* * * An emergency suspension or revocation should never be used for

punitive reasons.”

6

[its] discretion as to when to employ a particular statutory

enforcement action” (800 F.2d at 1523). Paragraph 1203.g

is undoubtedly important to the FAA’s administration of

the Federal Aviation Act. But “[njot every principle essen-

tial to the effective administration of a statute can or

should be cast immediately into the mold of a general

rule.” SEC v. Chenery Corp., 332 U.S. 194, 202 (1947).

It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

CHARLES FRIED

Solicitor General

SEPTEMBER 1988

US GOVERNMENT PRINTING OFFICE 1988—202.037/60655