Reid v. Engen

• Decision Date: 19 July 1985
• Docket Number: No. 83-7958,83-7958
• Citation: 765 F.2d 1457
• Parties: Amelia C. REID, Petitioner, v. Donald D. ENGEN, Administrator, Federal Aviation Administration; Federal Aviation Administration; National Transportation Safety Board; U.S.A., Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1457

765 F.2d 1457

Amelia C. REID, Petitioner, v. Donald D. ENGEN, Administrator, Federal Aviation

Administration; Federal Aviation Administration;

National Transportation Safety Board;

U.S.A., Respondents.

No. 83-7958.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 13, 1985.

Decided July 19, 1985.

Jay C. White, Redwood City, Cal., for petitioner.

Mardi R. Thompson, Atty., F.A.A., Washington, D.C., for respondents.

Petition for Review of a Decision of the National Transportation Safety Board.

Before WALLACE and POOLE, Circuit Judges, and BREWSTER, ^* District Judge.

WALLACE, Circuit Judge:

Reid appeals from the National Transportation Safety Board's (NTSB) order affirming the suspension of her pilot certificate for 120 days. We have jurisdiction over her appeal under 49 U.S.C. Sec. 1486(a), and we affirm.

I

Reid is the holder of airline transport pilot (ATP) and flight instructor certificates. She owns a Taylorcraft F-19 airplane which she rents to other pilots. The aircraft is a "taildragger," with a two wheel main landing gear and a small tailwheel. On February 3, 1982, a rental pilot groundlooped the Taylorcraft at a small airstrip close to Reid's home field. Upon hearing of the accident, Reid flew to the nearby airport with her son and a certificated mechanic, and brought a replacement landing gear with her. The aircraft had sustained structural damage to a longeron, a steel tube running along the fuselage, causing the tail assembly to be slightly but visibly twisted off center. Reid replaced the damaged main landing gear and removed the damaged tailwheel, leaving only a tail skid. Reid then flew the aircraft back to her home field. While attempting to land on the turf adjacent to the runway to avoid further damage, she also groundlooped the aircraft. Before leaving the site of the original mishap, Reid did not seek any other opinions about the airworthiness of the aircraft.

On February 5, a Federal Aviation Agency (FAA) inspector observed and photographed the aircraft. While inspecting the maintenance records, he noticed the omission of some required information from the January maintenance. In addition, the installation of the temporary landing gear was not recorded in the logs.

On March 23, Reid received notification by letter that her flight instructor certificate was suspended. On April 20, the FAA Administrator ordered a 180-day suspension of her ATP certificate. The suspension of her ATP certificate was based on violations of 14 C.F.R. Secs. 91.9, 91.29(a), 91.165 (1985). Reid appealed to the NTSB. An NTSB Administrative Law Judge (ALJ) held a hearing on October 1, at which the FAA presented witnesses and offered exhibits. Reid cross-examined the witnesses, testified, and offered exhibits. The ALJ concluded that Reid had violated section 91.29(a) (flying an unairworthy aircraft) and section 91.165 (failing to keep proper records), but had not violated section 91.9 (operating the aircraft to endanger other lives or property). The ALJ commensurately reduced the suspension period to 120 days. Reid appealed to the NTSB, and both parties filed briefs. The NTSB affirmed the ALJ.

II

Although Reid raises several issues on this appeal challenging the Administrator's authority on statutory and constitutional grounds, she failed to raise any of them in the NTSB proceeding, and does not challenge the findings of the NTSB in this appeal. As a general rule, if a petitioner fails to raise an issue before an administrative tribunal, it cannot be raised on appeal from that tribunal. See, e.g., United States v. L.A. Tucker Truck Lines, 344 U.S. 33, 37, 73 S.Ct. 67, 69, 97 L.Ed. 54 (1952) (Tucker ); Unemployment Compensation Commission of Alaska v. Aragon, 329 U.S. 143, 155, 67 S.Ct. 245, 251, 91 L.Ed. 136 (1946). This axiom of administrative law is embodied in many legislative schemes, and the language of section 1006(e) of the Federal Aviation Act of 1958 (Act), which controls this case, is typical: "No objection to an order of the Board or Secretary of Transportation shall be considered by the court unless such objection shall have been urged before the Board or Secretary of Transportation or, if it was not so urged, unless there were reasonable grounds for failure to do so." 49 U.S.C. Sec. 1486(e). Thus, we are confronted with the threshold issue of whether we may decide these issues even though Reid failed to exhaust her administrative remedies.

A.

Like virtually all general principles, however, the foregoing principle also has its exceptions. We may decide an issue not raised in an agency action if the agency lacked either the power or the jurisdiction to decide it. See Tucker, 344 U.S. at 38, 73 S.Ct. at 69; Reese Sales Co. v. Hardin, 458 F.2d 183, 187 (9th Cir.1972). This situation is typified by challenges to the constitutionality of a statute, see, e.g., Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 2466, 45 L.Ed.2d 522 (1975) (Salfi ), or challenges to the constitutionality of a regulation promulgated by the agency. See, e.g., Motor & Equipment Manufacturer's Association v. EPA, 627 F.2d 1095, 1114-15 (D.C.Cir.1979), cert. denied, 446 U.S. 952, 100 S.Ct. 2917, 64 L.Ed.2d 808 (1980); Watson v. NTSB, 513 F.2d 1081, 1082 (9th Cir.1975) (per curiam).

Reid raises several constitutional issues which implicate the power and jurisdiction of the NTSB. First, she argues that the suspension process unconstitutionally infringed her right to pursue her chosen profession. Second, she contends that the "public interest" standard of 49 U.S.C. Sec. 1429(a) is too indefinite to satisfy due process. Third, she asserts that the Administrator's ex parte sanction procedure violated her procedural due process rights. These arguments present general challenges to the constitutionality of section 1429(a) and its enforcement scheme, which are beyond the jurisdiction of the NTSB to determine. See Salfi, 422 U.S. at 765, 95 S.Ct. at 2466. As the Supreme Court has explained, "[c]onstitutional questions obviously are unsuited to resolution in administrative hearing procedures and, therefore, access to the courts is essential to the decision of such questions.... [W]hen constitutional questions are in issue, the availability of judicial review is presumed." Califano v. Sanders, 430 U.S. 99, 109, 97 S.Ct. 980, 986, 51 L.Ed.2d 192 (1977). Thus, we conclude that we must address the merits of proper constitutional arguments although they were not raised in the administrative proceeding.

Notwithstanding this principle, a petitioner cannot obtain review of procedural errors in the administrative process that were not raised before the agency merely by alleging that every such error violates due process. "Due process" is not a talismanic term which guarantees review in this court of procedural errors correctable by the administrative tribunal. See Sears, Roebuck & Co. v. FTC, 676 F.2d 385, 398 (9th Cir.1982) ("Exhaustion rules ... avoid the application of judicial resources to matters which might be resolvable at the agency level."); First-Citizens Bank & Trust Co. v. Camp, 409 F.2d 1086, 1088-89 (4th Cir.1969) ("ordinarily, a litigant is not entitled to remain mute and await the outcome of an agency's decision [only to] attack it on the ground of asserted procedural defects not called to the agency's attention"). Reid's first two constitutional claims are not within this category, and thus may be reviewed here. Part of Reid's third constitutional argument, however, falls into this category.

In attacking the Administrator's ex parte sanction procedure, Reid asserts that her due process rights were violated because the 120-day suspension bears no reasonable relationship to her underlying offenses. This, however, is essentially an assertion that the sanction was excessive, an argument that could have been made to the NTSB and if accepted, corrected by the NTSB. The NTSB has the power to review decisions that are contrary to law, constitute prejudicial procedural error, or constitute facially deficient staff action. See 14 C.F.R. Sec. 385.51(b) (1985). The correctability of this error is evident because the ALJ already had reduced Reid's initial suspension period from 180 to 120 days. Therefore, we will treat this argument as one over which the NTSB had power and jurisdiction.

B.

We may still decide issues over which an agency has power and jurisdiction when "exceptional circumstances" warrant such review, notwithstanding the petitioner's failure to present them to the agency. See, e.g., Page v. Donovan, 727 F.2d 866, 868 (9th Cir.1984); Duncanson-Harrelson Co. v. Director, Office of Workers' Compensation Programs, 644 F.2d 827, 832 (9th Cir.1981); Getty Oil Co. v. Andrus, 607 F.2d 253, 256 (9th Cir.1979). See also Board of Public Instruction v. Finch, 414 F.2d 1068, 1073 (5th Cir.1979) (discussing possible factors for defining exceptional circumstances). However, our discretion to undertake such an inquiry is absent when a statute requires exhaustion of claims before the agency. When a statute requires exhaustion, a petitioner's failure to do so deprives this court of jurisdiction. See Montgomery v. Rumsfeld, 572 F.2d 250, 252-53 (9th Cir.1978). Only if there is no statutory exhaustion requirement may we exercise our discretion to apply judicially-developed exhaustion rules. See id. at 253-54.

The statute at issue in this case provides that all issues must be raised before the NTSB or Administrator before this court may consider them, "unless there were reasonable grounds for failure to do so." 49 U.S.C. Sec. 1486(e). Thus, while the statute commands exhaustion, it also vests this court with the discretion to review unraised claims in proper circumstances. See, e.g., Lloyd E. Lockrem, Inc. v. United States, 609 F.2d 940, 942-43 (9th Cir.1979) (applying the "exceptional circumstances" test despite an exhaustion statute because the "exceptional circumstances" exception was...