Aeromar, C. Por A. v. Department of Transp., No. 85-5001

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBefore HENDERSON and CLARK; PER CURIAM
Citation767 F.2d 1491
Decision Date26 July 1985
Docket NumberNo. 85-5001
PartiesAEROMAR, C. POR A., Petitioner, v. DEPARTMENT OF TRANSPORTATION, Federal Aviation Administration, Respondents.

Page 1491

767 F.2d 1491
AEROMAR, C. POR A., Petitioner,
v.
DEPARTMENT OF TRANSPORTATION, Federal Aviation
Administration, Respondents.
No. 85-5001.
United States Court of Appeals,
Eleventh Circuit.
July 26, 1985.
Rehearing and Rehearing En Banc Denied Sept. 3, 1985.

Stanley M. Baum, Atlanta, Ga., Robert M. Hausman, Hausman & Rosenthal, Washington, D.C., for petitioner.

William B. Lazarus, Anne S. Almy, Appellate Section, Land and Natural Resources Div., Dept. of Justice, Washington, D.C., for respondents.

Petition for Review of an Order of the Federal Aviation Administration.

Page 1492

Before HENDERSON and CLARK, Circuit Judges, and HOFFMAN *, district judge.

PER CURIAM:

The petitioner, Aeromar, C. Por A., seeks review of the Federal Aviation Administration's (FAA) September 11, 1984 order denying Aeromar's petition for an exemption from noise regulations promulgated by the agency. We dismiss the petition for review for lack of jurisdiction.

Aeromar, a foreign air carrier based in the Dominican Republic, operates a scheduled all-cargo air service between the Dominican Republic and Miami International Airport and Stewart International Airport in Newburg, New York. 1 On March 29, 1984, Aeromar filed a petition with the FAA seeking an exemption from the requirements of 14 C.F.R. Sec. 91.303 (1985), a regulation establishing a January 1, 1985 deadline for compliance with noise level standards imposed on four-engine jet aircraft in commercial operation. The FAA denied the petition in an order dated September 11, 1984. On November 23, 1984, Aeromar filed a "Petition for Reconsideration and for a Temporary Exemption Pursuant to Chapter 124 of Public Law 98-473." 2 Aeromar sought reconsideration of the September 11, 1984 denial of its petition or, in the alternative, a temporary exemption pursuant to section 124 of Pub.L. No. 98-473 for two aircraft during the year beginning January 1, 1985. On January 3, 1985, Aeromar petitioned this court for review of the FAA's September 11, 1984 order. With that petition, Aeromar filed an emergency motion seeking to stay the FAA's enforcement of 14 C.F.R. Sec. 91.303 pending final resolution of this proceeding and a motion for leave to file the petition for review out of time. A panel of this court granted the stay. On January 4, 1985, the FAA granted Aeromar a section 124 exemption permitting it to operate some of its aircraft at Miami International Airport until October 31, 1985, the date by which Aeromar represented that hush kits will be installed on the planes.

The appellate authority to review FAA orders is found in 49 U.S.C. Sec. 1486(a) (1982), which provides that

Any order, affirmative or negative, issued by the Board or Secretary of Transportation under this chapter, except any order in respect of any foreign air carrier subject to the approval of the President as provided in section 1461 of this title, shall be subject to review by the courts of appeals of the United States or the United States Court of Appeals for the District of Columbia upon petition, filed within sixty days after the entry of such order, by any person disclosing a substantial interest in such order. After the expiration of said sixty days a petition may be filed only by leave of court upon a showing of reasonable grounds for failure to file the petition theretofore.

The phrase "[a]ny order, affirmative or negative" has been judicially restricted to encompass only final FAA orders. Waterman Steamship Corp. v. Civil Aeronautics Board, 159 F.2d 828, 830 (5th Cir.1947), rev'd on other grounds sub nom. Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568 (1948). 3 See also

Page 1493

Air California v. United States Department of Transportation, 654 F.2d 616, 620 (9th Cir.1981). Such orders are not final and reviewable "unless and until they impose an obligation, deny a...

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11 practice notes
  • Alabama v. U.S. Army Corps of Engineers, No. CV-90-BE-1331-E.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • August 10, 2005
    ...decision was not a final agency action where the action was still subject to review, amendment, and approval); Aeromar, C. Por A. v. DOT, 767 F.2d 1491, 1493 (11th Cir.1985). The court cannot disrupt an agency's orderly decision-making process by intervening to correct temporary or interloc......
  • Robinson v. Tanner, No. 85-7456
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 9, 1986
    ...1327, 1331 (11th Cir.1984) (citing Taylor; no new notice filed after final judgment); Aeromar, C. Por A. v. Department of Transportation, 767 F.2d 1491, 1494 (11th Cir.1985) (citing General Television Arts; no new petition for appellate review of F.A.A. order filed after final order); McLau......
  • Green v. Brantley, No. 89-8150
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • January 21, 1993
    ...Section 1486 "has been judicially restricted to encompass only final FAA orders." Aeromar, C. Por A. v. Department of Transportation, 767 F.2d 1491, 1492, reh'g denied, 773 F.2d 1239 (11th Cir.1985). See also Atorie Air, 942 F.2d at 960; Southern Cal. Aerial Advertisers' Ass'n v. FAA, 881 F......
  • Southern Timber Purchasers Council v. Alcock, Civ. No. 1:89-cv-2741-ODE.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • July 29, 1991
    ...its prior codification at 5 U.S.C. § 1009(c), and its legislative history), cited with approval in, Aeromar v. Dept. of Transportation, 767 F.2d 1491, 1492 (11th Cir.1985); ECEE, Inc. v. Federal Energy Reg. Comm'n, 611 F.2d 554, 557 (5th Cir.1980). This rule allows the agency to modify or o......
  • Request a trial to view additional results
11 cases
  • Alabama v. U.S. Army Corps of Engineers, No. CV-90-BE-1331-E.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • August 10, 2005
    ...decision was not a final agency action where the action was still subject to review, amendment, and approval); Aeromar, C. Por A. v. DOT, 767 F.2d 1491, 1493 (11th Cir.1985). The court cannot disrupt an agency's orderly decision-making process by intervening to correct temporary or interloc......
  • Robinson v. Tanner, No. 85-7456
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 9, 1986
    ...1327, 1331 (11th Cir.1984) (citing Taylor; no new notice filed after final judgment); Aeromar, C. Por A. v. Department of Transportation, 767 F.2d 1491, 1494 (11th Cir.1985) (citing General Television Arts; no new petition for appellate review of F.A.A. order filed after final order); McLau......
  • Green v. Brantley, No. 89-8150
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • January 21, 1993
    ...Section 1486 "has been judicially restricted to encompass only final FAA orders." Aeromar, C. Por A. v. Department of Transportation, 767 F.2d 1491, 1492, reh'g denied, 773 F.2d 1239 (11th Cir.1985). See also Atorie Air, 942 F.2d at 960; Southern Cal. Aerial Advertisers' Ass'n v. FAA, 881 F......
  • Southern Timber Purchasers Council v. Alcock, Civ. No. 1:89-cv-2741-ODE.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • July 29, 1991
    ...its prior codification at 5 U.S.C. § 1009(c), and its legislative history), cited with approval in, Aeromar v. Dept. of Transportation, 767 F.2d 1491, 1492 (11th Cir.1985); ECEE, Inc. v. Federal Energy Reg. Comm'n, 611 F.2d 554, 557 (5th Cir.1980). This rule allows the agency to modify or o......
  • Request a trial to view additional results

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