George O. Grant v. National Transportation Safety Board, Federal Aviation Administration

959 F.2d 1483 George O. GRANT, Petitioner, v. NATIONAL TRANSPORTATION SAFETY BOARD, Federal Aviation Administration, Respondents. No. 91-70095. United States Court of Appeals, Ninth Circuit. Argued and Submitted Aug. 23, 1991. Decided March 30, 1992. R.N. Sutliff, Anchorage, Alaska, for petitioner. Harry S. Gold, Office of the Chief Council, Federal Aviation Admin., Washington, D.C., for respondents. On Petition for Review of an Order of the National Transportation Safety Board. Before TANG, REINHARDT and RYMER, Circuit Judges. REINHARDT, Circuit Judge: 1 In cases of emergency, the Federal Aviation Act, 49 U.S.C.App. § 1429(a) gives the Federal Aviation Administration (FAA) the power to suspend or revoke an airman mechanic's certificate prior to any hearing on the matter. The certificate holder is entitled to appeal the order of suspension or revocation to the National Transportation Safety Board (NTSB), and the filing of an appeal will ordinarily stay the operation of the order. The FAA is empowered, however, to prevent this stay and thereby effect the immediate revocation or suspension of a certificate by "advis[ing] the National Transportation Safety Board that an…

In cases of emergency, the Federal Aviation Act, 49 U.S.C.App. § 1429(a) gives the Federal Aviation Administration (FAA) the power to suspend or revoke an airman mechanic’s certificate prior to any hearing on the matter. The certificate holder is entitled to appeal the order of suspension or revocation to the National Transportation Safety Board (NTSB), and the filing of an appeal will ordinarily stay the operation of the order. The FAA is empowered, however, to prevent this stay and thereby effect the immediate revocation or suspension of a certificate by “advispng] the National Transportation Safety Board that an emergency exists and safety ... requires *1484 the immediate effectiveness of [its] order.” Congress sought to limit the duration of such pre-hearing orders by directing that in emergency proceedings “the National Transportation Safety Board shall finally dispose of the appeal within sixty days after being so advised by the [FAA].” Thus, although a certificate holder may, in certain types of cases, be deprived of his right to do business by the FAA pending final review by the NTSB, the period of time within which final review must be conducted is limited by statute. The…

dissenting:

I agree with that part of Judge Reinhardt’s opinion which holds that the failure of the NTSB to act within 60 days does not divest it of jurisdiction, but I disagree that the Board’s failure to act in timely fashion has anything to do with the certificate holder’s obligation to file a timely emergency appeal within the ten-day period provided for emergency appeals in 49 C.F.R. § 821 .-55(a). Because I believe the ten-day limit is a clear requirement, I would affirm.

49 U.S.CApp. § 1429(a), which empowers the FAA to suspend or revoke an airman mechanic’s certificate, contemplates both emergency and non-emergency revocations. The emergency rule provides:

49 C.F.R. § 821.55 (a). Consistent with this regulation, the notice — captioned “APPEAL” — that was attached to the FAA’s revocation order stated:

Grant argues that he misinterpreted § 821.55(a) to mean that he had a choice between appealing within 10 days on the emergency track or appealing within the 20 days allowed for non-emergency appeals, 1 thereby foregoing the benefits of expedited emergency procedures. That scheme might be a good idea, but it is not the scheme embodied in the regulations, which say nothing…