Oceanair of Florida, Inc. v. U.S. Nat. Transp. Safety Bd.

• Decision Date: 15 November 1989
• Docket Number: No. 88-3900,88-3900
• Citation: 888 F.2d 767
• Parties: OCEANAIR OF FLORIDA, INC., and Air Illinois, Inc., Petitioners, v. UNITED STATES of America NATIONAL TRANSPORTATION SAFETY BOARD, and T. Allan McArtor, Administrator of Federal Aviation Administration, Respondents.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 767

888 F.2d 767

OCEANAIR OF FLORIDA, INC., and Air Illinois, Inc., Petitioners, v. UNITED STATES of America NATIONAL TRANSPORTATION SAFETY

BOARD, and T. Allan McArtor, Administrator of

Federal Aviation Administration, Respondents.

No. 88-3900.

United States Court of Appeals, Eleventh Circuit.

Nov. 15, 1989.

James B. Curasi, Tallahassee, Fla., for petitioners.

Mardi Ruth Thompson, Federal Aviation Admin., U.S. National Transp. Safety Bd., Washington, D.C., for respondents.

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

Before ANDERSON and EDMONDSON, Circuit Judges, and HENDERSON, Senior Circuit Judge.

EDMONDSON, Circuit Judge:

Petitioner, Oceanair of Florida, Inc. ("Oceanair"), holding company of Air Illinois, Inc., appeals a ruling by the National Transportation Safety Board (the "Board") approving action by the Federal Aviation Administration and revoking Oceanair's operating certificate. In February 1987, after giving Oceanair proper notice and opportunity to be heard, the FAA issued an order temporarily suspending Oceanair's operating certificate on the grounds that Oceanair had no plane that it could fly in the United States, therefore lacking adequate equipment and not currently operating as required by Federal Aviation Regulations, 14 C.F.R. Part 121. ¹ Oceanair appealed to the Board, properly requesting an evidentiary hearing before an administrative law judge ("ALJ"). The FAA's suspension order became its complaint in the hearing, see 49 C.F.R. sec. 821.31 (1988), which was set for June 25, 1987.

On May 20, about one month prior to the hearing, the FAA, in the form of an amendment to its complaint, asserted new charges against Oceanair and issued an order of complete revocation of Oceanair's certificate rather than a temporary suspension. The new charges alleged that Oceanair no longer had adequate maintenance facilities to service jet aircraft. ² On June 4, Oceanair requested an opportunity to be heard in the form of an informal conference on the new charges. On June 15, the FAA apparently offered to hold an informal conference prior to the June 25 hearing, but Oceanair declined, citing counsel's workload and scheduling conflicts.

Oceanair filed a motion to dismiss the amendment to the complaint, which the ALJ denied. The hearing was then held as scheduled on the amended complaint, at which time the ALJ ruled that Oceanair's certificate should be temporarily suspended. Both Oceanair and the FAA filed appeals to the Board from this ruling: Oceanair requested a rehearing, while the FAA requested that the order be changed from suspension to revocation. The Board denied Oceanair's request for rehearing, overruled the ALJ's order, and revoked Oceanair's certificate. Actions of the Board revoking operating certificates are directly appealable to this court.

This case presents a question of first impression for this court: whether the FAA violated Section 609(a) of the Federal Aviation Act of 1958, 49 U.S.C.App. sec. 1429(a) (1982), by amending its complaint against Oceanair at the appeal stage to include new charges and a revised order without first granting Oceanair an opportunity to be heard by the FAA on the new charges. We hold that it did. Because the Board and the ALJ based their decisions on both the charges made by the FAA originally and the charges improperly added during the appeal procedure, we cannot allow the decisions to stand. We vacate the Board's decision and remand for proceedings consistent with this opinion, including rescission of the FAA's revocation order and of any charges upon which an informal conference has not been held, as well as a new hearing before an ALJ. ³

Oceanair argues ⁴ that Section 609(a) required that it be given an opportunity to be heard on the additional charges before the FAA's issuance of the order of revocation. ⁵ Our role in appraising Oceanair's contentions about Section 609(a) "is not to make policy, but to interpret a statute." See Neitzke v. Williams, --- U.S. ----, 109 S.Ct. 1827, 1832, 104 L.Ed.2d 338 (1989) (Marshall, J.).

Section 609(a) provides:

Prior to amending, modifying, suspending, or revoking any of the foregoing certificates, the Secretary of Transportation shall advise the holder thereof as to any charges or other reasons relied upon by the Secretary of Transportation for his proposed action and, except in cases of emergency, shall provide the holder of such certificate an opportunity to answer any charges and be heard as to why the certificate should not be amended, modified, suspended, or revoked.

14 U.S.C.App. sec. 1429(a) (1982) (emphasis added). ⁶ The statute clearly states that before revoking the certificate the Secretary must advise the certificate holder of any charges and afford the certificate holder an opportunity to answer those charges. The Secretary of Transportation's duties and powers under this statute are vested in the Administrator of the FAA by 49 U.S.C. sec. 106(g)(1) (Supp.V 1987). The certificate holder's options for exercising the Section 609(a) right to be heard are set out in Federal Aviation Regulation 14 C.F.R. sec. 13.19(c) (1988), and include the right to request an informal conference with FAA counsel. An order of the FAA becomes effective immediately following issuance, unless the certificate holder elects to appeal to the Board. See 14 C.F.R. sec. 13.19(d) (1988). Therefore, "revoking" a certificate, as that word is used in Section 609(a), means issuing an order to revoke. We have held that "no such order shall take effect until the certificate holder has been given notice and an opportunity for a hearing," Pastrana v. United States, 746 F.2d 1447, 1450 (1984); so the opportunity to be heard must occur at the agency level before issuance of the order.

The FAA does not quarrel with the idea that Section 609(a) usually requires an opportunity to be heard by the FAA on the charges before it issues an order of revocation. Instead, the FAA contends that the procedural setting of its action in adding charges and ordering revocation of Oceanair's certificate means that Section 609(a) does not apply. More specifically, the FAA argues that Section 609(a), and consequently 14 C.F.R. sec. 13.19(c), did not apply once Oceanair appealed the original order to the Board. According to the FAA, the Board's Rules of Practice in Air Safety Proceedings governed amendments to the complaint. Pursuant to Board rules, the Administrator is permitted to amend its complaint without leave of the Board at any time more than fifteen days prior to the hearing. See 49 C.F.R. sec. 821.12(a) (1988). But the Board's administrative provisions cannot overrule or modify an act of Congress, such as Section 609(a).

Amendments are improper if they include new charges without first giving the certificate holder notice and opportunity to be heard by the FAA on those charges. To hold otherwise would be to allow 609(a) rights to fluctuate depending on the happenstance that a certificate holder was already engaged with the FAA in a controversy that was the subject of an administrative appeal. We believe that 609(a) plainly fixes the rights of certificate holders and the duties of the FAA as representative of the Secretary. These rights and duties remain constant whether or not the certificate holder is involved in an appeal. ⁷

We think that the FAA acted in good faith in this...