International Navigators Council of Amer. v. Shaffer, 24302.

• Citation: 444 F.2d 904
• Decision Date: 14 April 1971
• Docket Number: No. 24302.,24302.
• Parties: INTERNATIONAL NAVIGATORS COUNCIL OF AMERICA, Petitioner, v. John H. SHAFFER, Administrator of the Federal Aviation Administration, Respondent, American Airlines et al., Intervenors.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

444 F.2d 904 (1971)

INTERNATIONAL NAVIGATORS COUNCIL OF AMERICA, Petitioner, v. John H. SHAFFER, Administrator of the Federal Aviation Administration, Respondent American Airlines et al., Intervenors.

No. 24302.

United States Court of Appeals, District of Columbia Circuit.

Argued November 9, 1970.

Decided April 14, 1971.

Mr. Herbert A. Levy, Washington, D. C., for petitioner.

Messrs. Richard R. Kasher, Washington, D. C., and Angelo V. Arcadipane also entered appearances for petitioner.

Miss Judith S. Seplowitz, Atty., Department of Justice, with whom Mr. Alan S. Rosenthal, Atty., Department of Justice, was on the brief, for respondent. Messrs. Morton Hollander and Robert E. Kopp, Attys., Department of Justice, also entered appearances for respondent.

Mr. Edmund E. Harvey, Washington, D. C., with whom Mr. Roy Nerenberg, Washington, D. C., was on the brief, for intervenors.

Before McGOWAN, MacKINNON and ROBB, Circuit Judges.

McGOWAN, Circuit Judge:

This statutory review proceeding involves a challenge to the methods by which the respondent Federal Aviation Administrator has been authorizing the use of certain newly-developed navigational equipment by commercial air carriers in overseas service. Petitioner, International Navigators Council of America (INCA), is a nonprofit association comprised of navigators employed by air carriers. Its stated purpose is to assure "the establishment of and adherence to the highest possible standards of accuracy and reliability in airline navigation, in the interest of safety * * *." The intervenor airlines have each been granted by respondent the authority to employ the navigational equipment in question. We are confronted with a threshold claim that we are without jurisdiction to entertain this petition, since it assertedly relates to an action by respondent not embraced within the direct review by this court contemplated by the Congress. For the reasons hereinafter set forth, this jurisdictional barrier is, in our view, insurmountable.

I

In transoceanic air flight a carrier must rely on its navigational appliances to preserve the necessary separation from other airborne traffic and to maintain the aircraft in its designated corridor. Through its statutorily authorized rulemaking procedures, the FAA has established at various times in recent years minimum standards with respect to several distinct types of navigational equipment which a carrier may elect to utilize. Two such formally established systems rely on feedback signals from ground-based sources (14 C.F.R. §§ 37.165, 37.171 (1970)), while others operate on principles of celestial sightings, or on the measurement of wind and jet stream pressure, or on signals reflected from the ocean surface (14 C.F.R. §§ 37.170, 37.173 (1970)). Carriers have broad latitude in the employment of navigational equipment from among these various types, and there is apparently no uniformity among carriers in the appliances they adopt.¹

The development of navigational tools has not been a static art. In 1968 the FAA began approving, on an application-by-application basis, the installation of a more recently conceived self-contained system known as INS (Inertial Navigation System). This equipment is unique in that it is not dependent on information derived from ground-based sources or upon other exterior aids. Although it is not entirely clear on the basis of the papers before us, it appears that INS is also unique in that it permits cockpit navigation by the pilot, thus obviating the need for a qualified navigator.²

The application procedure to be followed by carriers desiring to implement INS was set out in FAA Advisory Circular No. 121-13, dated October 14, 1969. This Circular outlines the showing required for FAA approval, including, among other things, demonstrations of "sufficient experience * * * to establish * * * the accuracy and reliability of the system," an explanation of the training program adopted for pilots and crew members, a description of the periodic inspection and maintenance procedures to be followed, and a demonstration of the pilots' proficiency with this form of cockpit navigation. Pursuant to authorizations granted under this Circular, INS is being utilized presently on some transoceanic flights, including apparently all such flights by the large Boeing 747 aircraft.³

On February 25, 1970, petitioner filed a complaint with the Administrator pursuant to Section 1002 of the Federal Aviation Act, 49 U.S.C. § 1482(a) (1964).⁴ The complaint characterized as a threat to air safety respondent's failure to promulgate rules or regulations establishing minimum standards for INS. INCA's essential allegations were that the Administrator was statutorily obligated to promulgate standards similar to those governing other navigational appliances, and that, in failing to do so, he was engaged in a course of conduct violative of Section 601 of the Act, 49 U.S.C. § 1421.⁵ The advisory circular procedure was condemned as an invalid alternative to formal rulemaking, since the circulars are published only for the purpose of providing "nonregulatory guidance and informational material to the public."⁶ The complaint requested the Administrator to enter a four-part order embodying the following relief:

(1) The initiation and completion of rulemaking proceedings under Section 601 for the creation of standards for INS;

(2) the rescission of all INS authorizations previously issued;

(3) the suspension of all pending applications until such time as rules are promulgated; and

(4) the direction that all carriers, whose pre-existing authority would be so rescinded, might reapply upon approval of the new rules.

By letter dated March 6, 1970, the Administrator responded to INCA's complaint in these words:

Your complaint does not state facts which warrant the issuance of an order under section 1002 of the Federal Aviation Act to effect compliance with that Act in the respects as set forth in your complaint. However, since the arguments set forth in your complaint may indicate a need for a change in the provisions of the Federal Aviation Regulations, the complaint is being considered as a petition for a rule-making action under the procedures of Part II of the Federal Aviation Regulations.

The FAA Director of Flight Standards Service has advised me that a proposal to amend those provisions of the regulations concerning approval for the use of self-contained systems, such as Inertial and Doppler Radar Navigation Systems, is being processed and should be issued as a notice of proposed rule making in the very near future. Your petition will be docketed and considered in connection with that rule making action.

INCA immediately filed a motion for reconsideration in which the central allegation was that "by the conduct described herein, the Administrator has violated and is continuing to violate his obligations under Title VI of the (Act)." It went on to assert that, since Section 901 of the Act imposes a civil penalty of up to $1000 per day upon any "person" who violates Title VI, the Administrator had a pecuniary stake in the disposition of the complaint which disqualified him from its adjudication.⁷

The FAA's General Counsel, acting for the Administrator, notified petitioner, by letter dated April 9, 1970, that its motion for reconsideration was not being granted, because the agency was of the opinion that Section 1002 "does not provide for, nor require, the issuance of the kind of order requested in the complaint. * * *" The letter went on to state that, since INCA did not desire its complaint to be considered as a petition for rulemaking, it would be withdrawn from the rulemaking docket. The complaint was shortly thereafter reinstated on the docket, however, by reason of the receipt of a further letter from INCA stating that, while treatment as a rulemaking petition failed to provide adequate relief, the contemplated rulemaking was nevertheless a proceeding in which INCA wished to participate.⁸

With the matter in this posture, petitioner instituted proceedings successively in the District Court and in this court. On April 28, 1970, INCA filed a civil action in the District Court complaining of the procedural course being followed by respondent in approving INS applications. The prayer for permanent injunctive relief, which is still pending in the District Court, seeks to compel the Administrator (1) to prescribe appropriate rules and minimum standards in the interest of safety, (2) to revoke all existing authorizations to use INS, (3) to suspend the issuance of any pending application, and (4) to refrain from approving any future INS application until compliance with the new rules is demonstrated. The District Court was also asked to impose upon the Administrator the civil penalties provided in Section 901.

An application for a temporary restraining order was denied the same day. A motion for a preliminary injunction was, after hearing, denied on May 22; and no appeal has been taken from this order. Turning its attention away from the District Court, but not abandoning its suit therein, INCA filed in this court on June 5 the review petition presently before us.

II

Petitioner contends that our jurisdiction is appropriately derived from Section 1006 of the Federal Aviation Act, 49 U.S.C. § 1486(a) (1964), which reads in pertinent part as follows:

"Any order, affirmative or negative, issued by the Board or Administrator under this chapter * * * shall be subject to review by the * * * United States Court of Appeals for the District of Columbia upon petition * * * by any person disclosing a substantial interest in such order * * *"

It is doubtless true that orders entered by the Administrator under Section 1002, in which he finds, with or without investigation or hearing, complaints about third persons to be meritless, are normally reviewable by this court under Section 1006.⁹ Where, however, an interested party files a...