Watson v. National Transp. Safety Bd., 74-1437

• Citation: 513 F.2d 1081
• Decision Date: 27 February 1975
• Docket Number: No. 74-1437,74-1437
• Parties: Richard Milford WATSON, Petitioner, v. NATIONAL TRANSPORTATION SAFETY BOARD and Federal Aviation Administration, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1081

513 F.2d 1081

Richard Milford WATSON, Petitioner, v. NATIONAL TRANSPORTATION SAFETY BOARD and Federal Aviation

Administration, Respondents.

No. 74-1437.

United States Court of Appeals, Ninth Circuit.

Feb. 27, 1975.

Dolores Jean Watson, Torrance, Cal., for petitioner.

Carla A. Hills, Asst. Atty. Gen., New York City, Ronald R. Glancz, Karen K. Siegel, Washington, D. C., for respondents.

OPINION

Before ELY, CARTER and GOODWIN, Circuit Judges.

PER CURIAM:

In 1965, the Federal Aviation Agency (FAA) ¹ promulgated a new aviation regulation requiring each person holding a flight engineer certificate issued before February 22, 1966, to exchange his certificate for a new certificate showing a rating for the particular class or classes of aircraft on which the individual was qualified for flight engineering performance. 30 Fed.Reg. 14560 (1965); 14 C.F.R. 63.45 (1974). The regulation provided that pre-1966 certificates would not be effective after a certain date in 1968 but that they could be exchanged for new certificates, upon a showing of compliance with specified requirements, at any time before a certain date in February, 1971.

Watson held a flight engineer's certificate that had been issued in 1960. Subsequently, asserting that he was unaware of the new regulation described above, Watson failed to take any action to have his certificate converted to a new, class-rated certificate until 1973. Upon Watson's inquiry, the FAA informed him that the five-year period for converting his old certificate had expired and that, consequently, the old certificate was no longer valid.

Soon thereafter, Watson filed a petition for review of the FAA's action by the National Transportation Safety Board (NTSB). ² He contended that before the FAA could declare his certificate invalid because of the operation of the new regulation, the agency was required by 49 U.S.C. § 1429(a) and procedural due process to give him personal notice, by mail, of the new regulation and his obligations thereunder. An administrative law judge found that the NTSB had no jurisdiction to entertain Watson's claims and dismissed Watson's petition. Watson now seeks relief directly in this Court.

The administrative law judge was correct. The NTSB's jurisdiction is limited by statute to appeals from adjudicative orders of the FAA. See 49 U.S.C. §§ 1422(b), 1654(b)(2). The NTSB does not have jurisdiction over challenges to FAA regulations of general application, even though such regulations may have substantial effects on individuals. See Air Line Pilots Association, International v. Quesada, 276 F.2d 892, 897-98 (2d Cir. 1960), cert. denied, 366 U.S. 962, 81 S.Ct. 1923, 6 L.Ed.2d 1254 (1961). The FAA action challenged here is clearly rule-making, not adjudication.

Watson should have filed his action as an original proceeding in the appropriate United States District Court. We recognize that there is authority supporting the view that Courts of Appeals may entertain petitions for direct review of FAA regulations pursuant to 49 U.S.C. § 1486(a) when the issues presented are, as here, only legal, not factual. Deutsche Lufthansa Aktiengesellschaft v. Civil Aeronautics Board, 156 U.S.App.D.C. 191, 479 F.2d 912, 915-16 (1973); cf. Greve v. Civil Aeronautics Board, 378 F.2d 651, 656 (9th Cir. 1967) (challenge to constitutionality of an FAA regulation considered in conjunction with a properly-appealed adjudicative order based on that regulation); contra Division of Production, American Petroleum Institute v. Halaby, 307 F.2d 363 (5th Cir. 1962). Nevertheless, for the reason...