Kolek v. Engen

• Decision Date: 18 November 1988
• Docket Number: 87-7160,Nos. 87-1889,s. 87-1889
• Citation: 869 F.2d 1281
• Parties: Joseph KOLEK, Plaintiff-Appellant, v. Donald D. ENGEN, Administrator, Federal Aviation Administration, Defendant-Appellee. Joseph KOLEK, Petitioner, v. Donald D. ENGEN, Administrator, Federal Aviation Administration, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1281

869 F.2d 1281

Joseph KOLEK, Plaintiff-Appellant, v. Donald D. ENGEN, Administrator, Federal Aviation

Administration, Defendant-Appellee.

Joseph KOLEK, Petitioner, v. Donald D. ENGEN, Administrator, Federal Aviation

Administration, Respondent.

Nos. 87-1889, 87-7160.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 18, 1988 ^*.

Decided March 9, 1989.

Joseph Kolek, in pro per, Lompoc, Cal.

Peter J. Lynch, Manager, Enforcement Proceedings Branch, Federal Aviation Admin., and Vicki S. Leemon, Trial Attorney Appeal from the United States District Court for the Northern District of California.

Federal Aviation Admin., Washington, D.C., for defendant-appellee/respondent.

Petition for Review of an Order of The National Transportation Safety Board.

Before GOODWIN, Chief Judge, and SNEED and HUG, Circuit Judges.

HUG, Circuit Judge:

Petitioner Joseph Kolek seeks reversal of the order by the National Transportation Safety Board ("NTSB") affirming revocation of his private pilot certificate. We must decide whether Kolek's erroneous filing of the notice of appeal in district court rather than this court deprives us of jurisdiction; and if not, whether the NTSB's order affirming revocation should be reversed. We conclude that jurisdiction exists pursuant to 28 U.S.C. Sec. 1631 (1982 & Supp. IV 1986) and affirm the order of the NTSB.

FACTUAL BACKGROUND

Joseph Kolek, an immigrant to the United States from Czechoslovakia, pleaded guilty to engaging in a criminal enterprise in violation of 21 U.S.C. Sec. 848 (1982 & Supp. IV 1986). The indictment described him as the leader of a large scale drug-trafficking organization that used various vessels to secure and distribute cocaine and multiton quantities of marijuana. Upon conviction, Kolek was sentenced to ten years imprisonment.

Following his conviction, the Federal Aviation Administration ("FAA") served on Kolek an order revoking his pilot's certificate for violation of Federal Aviation Regulations ("FAR") Sec. 61.15. See 14 C.F.R. Sec. 61.15(a) (1988) (authorizing suspension or revocation of certificate where holder is convicted of state or federal crime relating to distribution of narcotics). Kolek, pro se, initiated an administrative appeal from the order. Once a notice of appeal is filed by a certificate holder, the FAA has five days to file with the ALJ its enforcement order which becomes the complaint. 49 C.F.R. Sec. 821.31 (1987). In filing the complaint against Kolek, the FAA was several days late.

Kolek answered the complaint, raising several affirmative defenses, and the ALJ set the appeal for an evidentiary hearing. Kolek, however, moved for a stay of the proceedings or for an indefinite continuance on the ground that his incarceration would hinder his preparation for, and prevent his attendance at, the scheduled hearing. The FAA rendered a verbal rather than a written response to the motion in a conversation between the ALJ and FAA counsel to which Kolek was not a party and of which Kolek received no notice. The ALJ denied the motion, and Kolek advised the ALJ that he (Kolek) would be unable to attend the hearing. The FAA then filed a motion for judgment on the pleadings affirming revocation, which the ALJ granted.

On appeal to the NTSB, Kolek sought reversal of the revocation order, arguing that the enforcement action and revocation order resulted in numerous violations of the United States Constitution and of procedural regulations governing administrative review of the FAA. Kolek also argued that revocation was an excessive penalty under NTSB precedent.

The NTSB affirmed the revocation order, and Kolek filed in the United States district court a notice of appeal within the sixty-day period required in 49 U.S.C. App. Secs. 1486(a) and 1903(d) (1982). Several months later, the district court dismissed Kolek's appeal for lack of jurisdiction, concluding that jurisdiction for review of NTSB orders lay exclusively in the United States circuit courts of appeals. Kolek then filed in the district court a notice of appeal from the district court's order of dismissal, and in this court, a notice of appeal from the order by the NTSB affirming revocation.

JURISDICTION

Whether we have jurisdiction to hear this appeal presents a question of law reviewable de novo. In re McCauley, 814 F.2d 1350, 1351 (9th Cir.1987). The interpretation Under 49 U.S.C.App. Sec. 1486(a) (1982), jurisdiction to review orders of the NTSB is vested exclusively in the United States courts of appeals and not in the district courts. Nevada Airlines, Inc. v. Bond, 622 F.2d 1017, 1020 (9th Cir.1980). Section 1486(a) requires a party seeking judicial review to file a notice of appeal in the appropriate court of appeals within sixty days from the entry of the NTSB order, see Air Line Pilots Ass'n Int'l v. Civil Aeronautics Bd., 750 F.2d 81, 84 (D.C.Cir.1984), or to establish reasonable grounds for a delayed filing, 49 U.S.C.App. Sec. 1486(a) (1982); Tiger Int'l, Inc. v. Civil Aeronautics Bd., 554 F.2d 926, 931 (9th Cir.), cert. denied, 434 U.S. 975, 98 S.Ct. 532, 54 L.Ed.2d 467 (1977). The FAA urges us to dismiss Kolek's appeal because he failed to justify his five-month delay in filing a notice of appeal in this court. We need not decide whether Kolek has shown reasonable grounds for his delayed filing, however, because we deem this case transferred from the district court under 28 U.S.C. Sec. 1631 (1982).

                of any statute affecting our jurisdiction is also reviewablede novo.    Id
                

Section 1631 authorizes federal courts to transfer appeals in civil actions in order to cure a lack of subject matter or appellate jurisdiction. "It serves to 'aid litigants who were confused about the proper forum for review.' " McCauley, 814 F.2d at 1352 (quoting American Beef Packers, Inc. v. ICC, 711 F.2d 388, 390 (D.C.Cir.1983)). The face of section 1631 sets out three conditions for its application. ¹ First, the transferee court must have been able to exercise jurisdiction on the date the notice of appeal was misfiled. Gioda v. Saipan Stevedoring Co., 855 F.2d 625, 629 (9th Cir.1988). "Second, the transferer court must lack jurisdiction." Id. Third, the transfer must serve the interests of justice. Id.

When this court qualifies as the proper forum under the second prerequisite, we may consider whether transfer would serve the interests of justice and deem the case transferred to this court on our own initiative. See McCauley, 814 F.2d at 1352. A transfer motion and an order by the district court granting or denying the motion are "unnecessary because of the mandatory cast of section 1631's instructions." Id. Furthermore, when, as here, the record reveals the considerations relevant to "the interest of justice," we have dispensed with the convoluted procedure of remanding to the district court to consider whether transfer back to this court is appropriate. Id. (citing Center for Nuclear Responsibility v. United States Regulatory Comm'n, 781 F.2d 935, 945 (D.C.Cir.1986) (Ginsburg, J., dissenting)).

Kolek's appeal satisfies each prerequisite for transfer under section 1631. He filed a notice of appeal in the district court within sixty days of the entry of the NTSB's order. The district court lacked jurisdiction, but this court could have exercised jurisdiction had Kolek filed the notice in this court on that date. Transfer of Kolek's appeal serves the interests of justice because his errant filing was caused in part by his pro se status, lack of fluency in English, and inability to access legal research materials in prison. Accordingly, we deem his appeal, initially but erroneously noticed in the district court, transferred to this court and proceed to the merits.

MERITS

The NTSB reviews certificate sanctions by the FAA to determine whether they are required by air safety and the public interest. 49 U.S.C. App. Sec. 1429(a) (1982). A narrow standard guides our review of these NTSB decisions. Essery v. Department

                of Transp., 857 F.2d 1286, 1288 (9th Cir.1988).  Reversal is warranted only when the decision is "arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with law."    Id. (quoting 5 U.S.C. Sec. 706(2)(A) (1982)).  Findings of fact by the NTSB are binding if supported by substantial evidence in the record.  Id.  Purely legal questions implicated by an NTSB order are reviewable de novo.    Id
                

I. Propriety of Revocation

Although FAR Sec. 61.15(a) specifically authorizes either suspension or revocation of a pilot certificate when the holder is convicted of a state or federal crime relating to narcotics distribution, 14 C.F.R. Sec. 61.15(a) (1988), Kolek maintains that revocation was an excessive sanction. He relies upon a series of NTSB decisions that have reserved revocation under section 61.15(a) to drug violations involving the use of an aircraft by the certificate holder. See, e.g., Administrator v. Amos, 2 N.T.S.B. 1305 (1975). Because his conviction yielded no evidence that he used an aircraft in violating drug laws, Kolek contends that suspension rather than revocation was the appropriate penalty.

This court recently reversed an order of revocation affirmed by the NTSB because revocation grossly exceeded the sanctions imposed in other proceedings for violations of the particular FARs at issue. Essery, 857 F.2d at 1286. In Essery, the court noted that the NTSB has an explicit policy of uniformity in enforcement, which mandates that "[s]imilar violations under similar circumstances should result in the same type of enforcement action and sanction." Id. at 1291 (quoting Department of Transp., Fed. Aviation Admin. Order No. 2150, p 203c.3) (emphasis deleted). The court reviewed several cases involving similar or more egregious conduct than Essery's behavior for which the NTSB ordered suspension rather than revocation. Id. at 1291-92. Because the FAA failed to show any justification for deviating from its established pattern and its policy of...