United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 18, 2010 Decided April 19, 2011
No. 09-1278
AVIA DYNAMICS, INC.,
PETITIONER
v.
FEDERAL AVIATION ADMINISTRATION ,
RESPONDENT
On Petition for Review of an Order
of the Federal Aviation Administration
Jason A. Dickstein argued the cause for the petitioner.
Edward Himmelfarb, Attorney, United States Department
of Justice, argued the cause for the respondent. Anthony J.
Steinmeyer, Attorney, United States Department of Justice, was
on brief.
Before: HENDERSON and GRIFFITH , Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON .
KAREN LE CRAFT HENDERSON , Circuit Judge: Petitioner
Avia Dynamics, Inc. (Avia), a manufacturer and distributer of
2
aircraft parts, seeks review of an “Unapproved Parts
Notification” (UPN) posted by the Federal Aviation
Administration (FAA) on its website.1 The UPN declared that
Avia Dynamics had manufactured certain aircraft parts without
FAA production approval. Because Avia filed its petition after
the sixty-day statutory time limit had elapsed and has failed to
demonstrate “reasonable grounds” for missing the deadline, we
deny its petition as untimely.
I.
The FAA has statutory responsibility to enforce minimum
safety standards in civil aviation. 49 U.S.C. § 44701(a)(1). As
part of its statutory mandate, the FAA shall issue a “type
certificate” for any “aircraft, aircraft engine, or propeller, or . . .
appliance” that meets its standards. 49 U.S.C. § 44704(a)(1).
Replacement parts and parts used to modify a “type certificated”
aircraft must be manufactured according to FAA specifications,
except under certain limited circumstances. 14 C.F.R.
§ 21.303(a)–(b). In general, a parts manufacturer must obtain a
“Parts Manufacturer Approval” from the FAA by providing
evidence that its “design of the part” meets FAA airworthiness
requirements and by certifying that it has a “fabrication
inspection system” in place to ensure continued compliance with
FAA requirements. See generally id. § 21.303.
In 1993, the FAA created the “Suspected Unapproved
Parts” (SUP) Program to prevent aircraft parts manufactured
without a Parts Manufacturer Approval—known as “unapproved
parts”—from being installed on type certificated aircraft. FAA
Advisory Circular 21-29C, Detecting and Reporting Suspected
1
The FAA is an administration within the United States
Department of Transportation. 49 U.S.C. § 106(a).
3
Unapproved Parts, ¶¶ 3(b)(1), 3(o), 5(a)–(b) (July 22, 2008).
Through the SUP Program, the FAA identifies a suspected
unapproved part in the market, investigates and then takes one
of several actions. FAA Order 8120.16, Processing Reports of
Suspected Unapproved Parts, ch. 4, ¶ 2 (July 15, 2008) (Order
8120.16). The actions include initiation of a civil enforcement
action against the non-compliant party and/or publication of a
“Field Notification” on the FAA’s website to notify the aviation
community of the unapproved part. Id. ch. 4, ¶¶ 2(i), 4(e).
Avia’s petition involves one such unapproved parts
investigation.
The FAA opened an SUP investigation on October 23, 2006
after an FAA inspector discovered that a type of aircraft current
limiter2 in Avia’s inventory appeared to have been manufactured
without FAA approval. The investigation focused at first on
Elliptical Systems, Inc., the manufacturer of the current limiter,
but it soon shifted to Avia as it became apparent that Elliptical
fabricated the parts according to Avia’s specifications. The
scope of the investigation changed too, branching out from
current limiters to include overhead light switches, also
manufactured by Elliptical, coffee maker brew trays made by
Avia and other aircraft parts not involved herein. On August 6,
2007, after nearly ten months of investigation, the FAA
concluded that the current limiters, overhead light switches and
coffee maker brew trays in Avia’s inventory were all
“unapproved parts.”
Meanwhile, the FAA took steps to initiate an enforcement
action against Avia. On July 24, 2007, it issued a letter of
investigation to Avia, informing the company that it was
2
A current limiter is a device that regulates electrical current in
order to reduce the risk of short-circuit, loss of power or fire.
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investigating “a suspected unapproved parts allegation” and
requesting the company’s cooperation. Letter from Sandy K.
Yamane, Aviation Safety Inspector, Van Nuys Mfg. Inspection
Dist. Office, FAA, to Gary Szerman, Avia-Dynamics Corp.
(July 24, 2007). The FAA asked Avia to explain the reason for
its non-compliance, detail what actions it took to prevent
recurrence and identify any relevant mitigating circumstances.
After Avia’s first response, which the FAA dismissed as
“unacceptable,”Avia submitted a comprehensive report on
February 27, 2008, entitled “Root Cause Analysis and
Corrective Action Report.” Letter from Sandy K. Yamane,
Aviation Safety Inspector, Van Nuys Mfg. Inspection Dist.
Office, FAA, to Gary Szerman, Avia-Dynamics Corp. (Aug. 22,
2007). The FAA signaled its satisfaction with Avia’s submission
in a letter dated April 7, 2008, informing Avia that “this matter
does not warrant legal enforcement action” and that “[i]n lieu of
such action and in consideration of your corrective action
commitments . . . , we are issuing this letter of correction which
will be made a matter of record.” Letter from Christopher B.
Bergen, Manager, Van Nuys Mfg. Inspection Dist. Office, FAA,
to Gary Szerman, Avia-Dynamics Corp. (Apr. 7, 2008).
More than one year later, on May 20, 2009, the FAA
official coordinating the SUP investigation of Avia
recommended to his superior that the case be closed, adding that
“[a]n Unapproved Parts Notification (UPN) has been written for
these three (3) parts and forwarded for release.” Memorandum
from Tony Peplowski, SUP Coordinator, FAA, to Robert
Franklin, SUP Focal Point, FAA, SUP Case 2007-
00016—Recommendation for Case Closure (May 20, 2009).
The UPN announced that “Avia-Dynamics produced and sold
replacement coffeemaker brew trays . . . without an FAA
production approval” and that Elliptical manufactured current
limiters and overhead reading light switches without production
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approval and then “sold these parts to Avia-Dynamics
Corporation, . . . a distributor of aviation parts.” Unapproved
Parts Notification, No. 2009-200700016 (June 22, 2009). The
UPN urged members of the aviation community to search their
aircraft and inventories for any of the unapproved parts “bought
from Avia-Dynamics Corporation” and “quarantine[]” the parts
“to prevent installation until a conclusive determination can be
made about their eligibility for installation.” Id. Although the
UPN was dated June 22, 2009, it was not posted on the FAA
website until August 27, 2009. Id.
Avia first learned of the UPN on September 7, 2009. On
that date, one of Avia’s customers called Avia’s president, Gary
Szerman, to inform him that the FAA had published the UPN on
its website. According to Szerman, standard industry practice is
to “black-list” any company named in a UPN and Avia attributes
a subsequent “significant downturn in [its] sales” to the FAA’s
action. Szerman Decl.¶¶ 17, 23, Avia Dynamics, No. 09-1278
(D.C. Cir. Dec. 10, 2009). Avia sought legal advice on October
26, 2009. On October 27, 2009, Avia petitioned for review of
the FAA order but erroneously filed in the District of Columbia
Court of Appeals. Avia’s petition was forwarded to this court,
where it was filed on November 3, 2009.
II.
We review FAA orders pursuant to 49 U.S.C. § 46110(a),
which provides that any “person disclosing a substantial interest
in an order” issued by the FAA may petition for review within
the statutory deadline set forth therein.3 Although we have
3
Section 46110(a) provides: “The petition must be filed not later
than 60 days after the order is issued. The court may allow the petition
to be filed after the 60th day only if there are reasonable grounds for
not filing by the 60th day.” 49 U.S.C. § 46110(a).
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characterized section 46110(a) as a jurisdictional statute, see,
e.g., City of Dania Beach v. FAA, 628 F.3d 581, 584 (D.C. Cir.
2010); Adams v. FAA, 550 F.3d 1174, 1176 (D.C. Cir. 2008),
cert. denied, 130 S. Ct. 103 (2009); Safe Extensions, Inc. v. FAA,
509 F.3d 593, 601–02 (D.C. Cir. 2007), we have never held that
the limitations portion of section 46110(a)—set forth in the
second and third sentences—is jurisdictional. Bearing in mind
that “[f]iling deadlines, statutory or not, are generally
nonjurisdictional,” Menominee Indian Tribe v. United States,
614 F.3d 519, 523 (D.C. Cir. 2010), we hold that the sixty-day
deadline here does not constitute a jurisdictional bar. See
Arbaugh v. Y & H Corp., 546 U.S. 500, 502 (2006) (if the
Congress does not “clearly state[] that a threshold limitation on
a statute’s scope shall count as jurisdictional, . . . . courts should
treat the restriction as nonjurisdictional in character”). We
assume without deciding that the UPN at issue constitutes a
reviewable “order” both because the FAA concedes as much and
because it is unnecessary to decide the question in light of our
disposition.
A.
Avia contends that the sixty-day filing period under section
46110(a) did not begin to run until it received actual notice of
the UPN on September 7, 2009. We begin our analysis with the
statutory text, bearing in mind that “where filing deadlines are
concerned, ‘a literal reading of Congress’ words is generally the
only proper reading of those words.’ ” Spannaus v. FEC, 990
F.2d 643, 644 (D.C. Cir. 1993) (quoting United States v. Locke,
471 U.S. 84, 93 (1985)). Section 46110(a) requires that a
petition be filed within sixty days of the date the order “is
issued,” which we read to mean that the filing period begins to
run on the date the order is officially made public. See Fla.
Manufactured Hous. Ass’n v. Cisneros, 53 F.3d 1565, 1574
(11th Cir. 1995) (“The verb ‘issue’ clearly refers to an act of
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public announcement . . . .”); Black’s Law Dictionary 830 (6th
ed. 1990) (“issue” as verb means “[t]o send forth; to emit; to
promulgate”); 8 Oxford English Dictionary 137 (2d ed. 1989)
(“issue” as verb means “[t]o give or send out authoritatively or
officially; to send forth or deal out in a formal or public manner;
to publish”). Here, using its usual procedure, the FAA “issued”
the UPN by posting the UPN on the FAA’s website on a page
dedicated to SUP information. See Order 8120.16 ch. 4, ¶ 4(e)
(July 15, 2008) (“primary method of dissemination” for UPN
“will be posting on the SUP website”). Accordingly, August 27,
2009, the date of its online posting, is the UPN’s issue date and
marks the beginning of the sixty-day statutory filing period.
Avia asserts, however, that the filing period did not begin
to run until one of its customers brought the UPN to its attention
on September 7, 2009. In support, Avia relies on Americopters,
LLC v. FAA, 441 F.3d 726 (9th Cir. 2006), and National Air
Transportation Ass’n v. McArtor, 866 F.2d 483 (D.C. Cir.
1989), for the proposition that inadequate notice of an FAA
order tolls the sixty-day deadline for filing a petition for review.
See Americopters, 441 F.3d at 733 n.5; McArtor, 866 F.2d at
485. We note, at the outset, that the passages Avia relies on are
dicta: in both cases, the petitions were filed so long after the
petitioners received actual notice that they would have been
untimely irrespective of the adequacy of the notice.
Americopters, 441 F.3d at 733; McArtor, 866 F.2d at 486. In
addition, both of the cases are distinguishable on the facts. In
Americopters, the “order” in question was an email sent by an
FAA inspector to an airport revoking the petitioner’s
authorization to use the airport’s runway—in effect, a private
communication about which the petitioner knew nothing. 441
F.3d at 729. Here, by contrast, the FAA made the UPN publicly
available on its website—for Avia and any other interested party
to see—pursuant to its established procedure. See Order 8120.16
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ch. 4, ¶ 4(e) (July 15, 2008). In McArtor, the FAA published a
rule in the Federal Register with inaccurate bold-faced headings
and summary paragraphs that left the mistaken impression the
rule was inapplicable to the petitioner, only later issuing an
advisory circular that clarified the rule’s applicability. 866 F.2d
at 485–86. Here, on the other hand, the UPN left no ambiguity
that it applied to parts either manufactured or distributed by
Avia. See supra pp. 4–5. We cannot say, therefore, that the FAA
failed to draft the UPN “in a manner that reasonably put[]
aggrieved parties on notice of the [order’s] content.” McArtor,
866 F.2d at 485. Avia’s lack of actual notice of the August 27,
2009 UPN posting on the FAA’s website did not delay the start
of the sixty-day filing period. See Heide v. FAA, 110 F. App’x
724, 725 (8th Cir. 2004) (unpublished) (“The fact that
Petitioners were not personally aware of the order until
December of 2002 is irrelevant, as it is the date of the order’s
issuance that is pertinent under § 46110(a).”), cert. denied, 544
U.S. 1018 (2005).
Nor is Avia’s notice argument aided by its contention that
the FAA was required to serve notice of the UPN under 49
U.S.C. § 46105(b), which requires that an “order” issued by the
FAA Administrator “shall be served on the parties to the
proceeding and the persons affected by the order,” or under
section 46103, which prescribes the procedure for service on
parties and affected persons. Although we assume the UPN
qualifies as a reviewable “order” under section 46110(a), supra
p. 6, we do not consider the UPN an “order” within the meaning
of every provision of the Federal Aviation Act, 49 U.S.C.
§§ 40101 et seq. Section 46110(a) provides the mechanism for
“a person disclosing a substantial interest” to challenge an FAA
“order.” We have broadly construed the word “order” as used in
section 46110(a) because of its function in providing for judicial
review. Thus, we recently held that “order” in section 46110(a)
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“should be read ‘expansively’ ” but limited our construction to
“this provision”—referring to section 46110(a) only. City of
Dania Beach v. FAA, 485 F.3d 1181, 1187 (D.C. Cir. 2007)
(emphasis added) (quoting Aviators for Safe & Fairer
Regulation, Inc. v. FAA, 221 F.3d 222, 225 (1st Cir. 2000)); see
also Aviators, 221 F.3d at 225 (“The term ‘order’ is read
expansively in review statutes generally . . . and this statute
specifically.”); Aerosource, Inc. v. Slater, 142 F.3d 572, 578 (3d
Cir. 1998) (“[T]o be reviewable under section 46110(a), an
‘order’ must be final, but need not be a formal order . . . .”); New
York v. FAA, 712 F.2d 806, 808 (2d Cir. 1983) (“For purposes
of review under [predecessor provision to section 46110(a)], the
term ‘order’ should receive a liberal construction.”). Indeed, we
have long recognized a species of FAA action—a so-called
“informal adjudication”—that qualifies as a reviewable “order”
under section 46110(a). We have not held, however, that an
informal adjudication must be formally served as prescribed by
sections 46103 and 46105(b). Cf. McArtor, 866 F.2d at 486
(FAA advisory circular started sixty-day filing period where
petitioner “normally receives such circulars from the FAA” and
publication in Federal Register “alerted aircraft operators
generally”); Safe Extensions, Inc. v. FAA, 509 F.3d 593,
598–600, 604 (D.C. Cir. 2007) (FAA advisory circular is
reviewable “order” under section 46110(a) but also “fall[s] into
the vast category of ‘informal adjudications’ in which agencies
routinely engage” and thus is not subject to APA requirements
of notice and comment and record proceeding); Clark Cty. v.
FAA, 522 F.3d 437, 440–41 (D.C. Cir. 2008) (FAA “Does Not
Exceed” determination is reviewable “order” under
section 46110(a) but also “informal adjudication” not subject to
APA requirement of record hearing); Hudson v. FAA, 192 F.3d
1031, 1032, 1035–36 (D.C. Cir. 1999) (FAA issuance of “type
certificate” allowing production of Boeing 777-300 is “merely
an administrative action, a so-called informal adjudication” not
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subject to APA notice and comment requirements). We
conclude that a UPN, as an informal order that is advisory in
nature, is not subject to the procedural requirements laid out in
49 U.S.C. § 46103 and 49 U.S.C. § 46105(b).
Accordingly, we conclude that the sixty-day clock began to
tick on August 27, 2009, the date the FAA posted the UPN on
its website. Because Avia filed its petition for review in this
court sixty-eight days later, on November 3, 2009, its petition is
untimely.
B.
Finally, Avia argues that it had “reasonable grounds” for its
untimely filing. The FAA contends that Avia has waived the
issue.4 Ordinarily, we do not consider an argument raised for the
first time in a reply brief so that the appellee is ensured an
opportunity to respond. Gen. Elec. Co. v. Jackson, 610 F.3d 110,
123 (D.C. Cir. 2010). Here, however, the FAA was on notice of
Avia’s “reasonable grounds” argument based on Avia’s previous
motions; indeed, the FAA thoroughly responded to the argument
in its brief to this court. Resp’t’s Br. 26–30. In any event, even
if Avia has not waived the argument, it is unavailing because we
have heretofore found “reasonable grounds” only in cases in
which the petitioner attributes the delay to more than simply
ignorance of the order. See Safe Extensions, 509 F.3d at 602–04
(finding “reasonable grounds” where FAA made statements that
“could have confused petitioner and others” about whether order
4
The words “reasonable grounds” do not appear anywhere in
Avia’s opening brief but, in its reply brief, Avia states that the
argument articulated in its opening brief— about the FAA’s alleged
failure to provide notice or service of the UPN—in fact argues the
“reasonable grounds” exception. Reply Br. 5 (citing Pet’r’s Br.
38–42).
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would be revised); Paralyzed Veterans of Am. v. CAB, 752 F.2d
694, 705 n.82 (D.C. Cir. 1985) (finding “reasonable grounds”
where petitioners were “[a]ware that the rule might be
undergoing modification, and unable to predict how extensive
any modification would be” and therefore “elected to wait until
the regulation was in final form before seeking review”), rev’d
on other grounds sub nom. U.S. Dep’t of Transp. v. Paralyzed
Veterans of Am., 477 U.S. 597 (1986). Even if ignorance could
establish “reasonable grounds,” it would not excuse Avia’s
continued inaction during the forty-nine days from September
7, 2009, the date of Avia’s actual notice, until the filing period
closed on October 26, 2009. Finally, Avia’s contention that the
lack of formal notice constitutes “reasonable grounds” for
untimely filing gains no more traction here than it did under our
precedent discussed earlier. See supra pp. 8–10.
For the foregoing reasons, the petition for review is denied.
So ordered.