United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 12, 2007 Decided February 19, 2008
No. 06-1424
WILLIAM REDIN ARMSTRONG,
PETITIONER
v.
FEDERAL AVIATION ADMINISTRATION AND
MARION C. BLAKEY, ADMINISTRATOR,
RESPONDENTS
On Petition for Review of an Order of the
Federal Aviation Administration
Richard E. Gardiner argued the cause and filed the briefs
for petitioner.
James F. Conneely, Attorney, Federal Aviation
Administration, argued the cause for respondents. With him on
the brief was Peter J. Lynch, Assistant Chief Counsel.
Before: SENTELLE, Chief Judge, and GINSBURG and
BROWN, Circuit Judges.
Opinion for the Court filed by Circuit Judge GINSBURG.
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GINSBURG, Circuit Judge: William Armstrong petitions for
review of the order of the Federal Aviation Administration
determining that an “emergency” existed, entitling it
immediately to revoke his private pilot certificate. We dismiss
the petition as moot.
I. Background
On October 10, 2006, the Administrator of the Federal
Aviation Administration issued an order revoking William
Armstrong’s private pilot certificate, alleging that Armstrong
had violated numerous federal aviation regulations by
knowingly flying an airplane that was not airworthy and
performing repairs he was not authorized to do. The
Administrator determined that an “emergency” existed,
permitting her to impose the order without first providing
Armstrong an opportunity to respond to these allegations. 49
U.S.C. § 44709(c). The emergency determination also
prevented Armstrong from obtaining a stay of the order while he
appealed it to the National Transportation Safety Board. Id. §
44709(e)(2).
Armstrong did appeal the order to the NTSB, but because
he did not request review of the underlying emergency
determination within two days of receiving the order, he
forfeited his right to an administrative appeal of that
determination. Id. § 44709(e)(3). He instead petitioned this
court for review of the emergency determination. See 49 U.S.C.
§ 46110(a).
While Armstrong’s petition here was pending, an
Administrative Law Judge affirmed all the violations found by
the Administrator but reduced the sanction to a 10-month
suspension of his private pilot certificate. Administrator v.
3
Armstrong, No. SE-17854, 2007 WL 549827 (N.T.S.B. Jan. 25,
2007). Armstrong appealed, and the Administrator cross-
appealed, to the NTSB. Shortly before oral argument in this
case, the NTSB denied Armstrong’s appeal and granted that of
the Administrator, thereby reinstating the order revoking
Armstrong’s certificate. Administrator v. Armstrong, No. SE-
17854, 2007 WL 2846496 (N.T.S.B. Sept. 27, 2007).
II. Analysis
The emergency determination of which Armstrong seeks
review prevented him from obtaining a stay of the revocation
order while his appeal was pending before the NTSB. Once the
NTSB resolved his appeal, the emergency determination ceased
to have any effect. See Robinson v. NTSB, 28 F.3d 210, 211,
213-14 (D.C. Cir. 1994). That would seem to moot the present
case, which concerns only the emergency determination.
Armstrong, however, argues that the case comes within the
exception to mootness for cases “capable of repetition, yet
evading review.” Weinstein v. Bradford, 423 U.S. 147, 149
(1975) (per curiam) (internal quotation marks omitted).
We cannot deem Armstrong’s case capable of repetition
because he has not made “a reasonable showing that he will
again be subjected to the alleged illegality.” City of Los Angeles
v. Lyons, 461 U.S. 95, 109 (1983). More specifically,
Armstrong has not shown it is at all likely he will obtain a new
private pilot certificate and again be subject to an emergency
determination. Furthermore, the issue presented - whether it
was arbitrary and capricious for the Administrator to make an
emergency determination under the specific factual
circumstances of this case - will never arise again. See PETA,
Inc. v. Gittens, 396 F.3d 416, 424 (D.C. Cir. 2005) (declining to
apply exception to a “legal controversy so sharply focused on a
unique factual context” (internal quotation marks omitted)).
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Nor did Armstrong’s case “evade review”; that occurs only
when “the challenged action was in its duration too short to be
fully litigated prior to its cessation or expiration.” Weinstein,
423 U.S. at 149. Here it was Armstrong’s lassitude that
allowed his case to become moot.
First, Armstrong did not file his petition for review until 79
days after the Administrator’s order issued, which was 19 days
after the period for filing a petition for review of an order of the
FAA had expired.* He later filed a motion to extend the time to
file his reply brief by two weeks. A litigant cannot credibly
claim his case “evades review” when he himself has delayed its
disposition. See City of Houston v. Dep’t of Hous. & Urban
Dev., 24 F.3d 1421, 1427 (D.C. Cir. 1994). But cf. United States
v. Seminole Nation of Okla., 321 F.3d 939, 943 (10th Cir. 2002)
(agency order with 30-day statutory life evades review
notwithstanding agency’s failure to seek expedition and its
motions for extension of time to file briefs in particular case).
Having pursued his appeal in so leisurely a fashion, Armstrong
made it impossible for us to say the order of the Administrator
was too short-lived to be reviewed by this court.
Second, Armstrong never filed a motion, either before the
NTSB or in this court, to stay the administrative proceeding.
We join every other circuit to have considered the matter and
conclude that a litigant who could have but did not file for a stay
to prevent a counter-party from taking any action that would
*
A pilot may petition for review more than 60 days after the
issuance of an order if he has “reasonable grounds” for his delay. 49
U.S.C. § 46110(a). Because we dismiss this case as moot, we do not
decide whether Armstrong had such “reasonable grounds.” Nor do we
express a view upon whether Armstrong’s failure to exhaust his
administrative appeals independently deprived this court of
jurisdiction to hear his petition. See id. § 46110(d).
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moot his case may not, barring exceptional circumstances, later
claim his case evaded review. See Iowa Prot. & Advocacy
Servs. v. Tanager, Inc., 427 F.3d 541, 544 (8th Cir. 2005); N.Y.
City Employees’ Ret. Sys. v. Dole Food Co., Inc., 969 F.2d 1430,
1435 (2d Cir. 1992); Koppers Indus., Inc. v. EPA, 902 F.2d 756,
759 (9th Cir. 1990); In re Kulp Foundry, Inc., 691 F.2d 1125,
1129-30 (3d Cir. 1982); cf. Dow Jones & Co., Inc. v. Kaye, 256
F.3d 1251, 1257-58 (11th Cir. 2001); United States v. Taylor, 8
F.3d 1074, 1077 (6th Cir. 1993); In re L.F. Jennings Oil Co., 4
F.3d 887, 890 (10th Cir. 1993).
III. Conclusion
For the foregoing reasons, we conclude that Armstrong’s
petition for review is moot. It is therefore
Dismissed.