On Petition for Review of an Order of the Federal Aviation Administration (AC No. 43-15) Argued March 9, 1998
Before: Greenberg, Scirica, and Aldisert, Circuit Judges
The opinion of the court was delivered by: Greenberg, Circuit Judge.
This matter is before the court on a petition for review of a Federal Aviation Administration ("FAA") action brought by Aerosource, Inc., pursuant to 49 U.S.C. § 46110(a).*fn1 In the alternative, anticipating that we might determine that we do not have appellate jurisdiction, Aerosource relies on our jurisdiction to issue a writ of mandamus pursuant to the All Writs Act, 28 U.S.C. § 1651(a), to achieve the relief it seeks in its petition for review.
We find it useful at the outset to describe the regulatory framework in which this dispute has arisen. The Administrator of the FAA has a statutory responsibility to prescribe regulations and establish minimum standards to promote safe civil aircraft flight. See 49 U.S.C. § 44701(a)(2). Thus, the Administrator is responsible for establishing standards concerning various aspects of the inspection and servicing of aircraft and aircraft parts. See id. The FAA further is authorized to "examine and rate" stations and shops that repair*fn2 aircraft and aircraft parts regarding the adequacy and suitability of the stations' equipment, facilities, and personnel. See 49 U.S.C. § 44707(2).
Pursuant to this statutory mandate, the FAA has promulgated regulations governing the issuance of repair station certificates, the ratings of such stations, and general operating procedures for certified stations. See 14 C.F.R. Part 145. A station's certificate specifies which types of equipment or components the FAA has certified the station to repair. This specification is known as a rating. See 14 C.F.R. §§ 145.11, 145.31. Propellers, radio equipment, accessories, landing gear, and engines are examples of categories of ratings. A repair station's rating may be unlimited or limited as to the types of equipment or components or a specific model aircraft or engine. See 14 C.F.R. § 145.33. A repair station may repair any equipment or component for which it has been rated. See 14 C.F.R. § 145.51.
Stations applying for certification or rating must have adequate inspection procedures to ensure quality control and qualified inspection personnel. Once certified and rated to perform a particular repair, a certified station must have a qualified inspector inspect the equipment before it is approved for return to service on an aircraft. See 14 C.F.R. § 145.59(a). Certified stations have a duty to report defects or unairworthiness to the FAA. See 14 C.F.R.§ 145.63(a). A certified station must allow the FAA to inspect the station for compliance with the regulations. See 14 C.F.R. § 145.23.
The FAA is required to publish "all reports, orders, decisions and regulations . . . in the form and the way best adapted for public use." 49 U.S.C. § 40114(a)(2). Pursuant to this authority, the FAA publishes two documents, Service Difficulty Reports ("SDRs") and General Aviation Airworthiness Alerts ("Alerts"), relevant here.
The Service Difficulty program is an information system intended to aid owners, operators, manufacturers, and the FAA in identifying problems encountered during aircraft service. The FAA receives relevant information from a variety of sources, including FAA inspectors, owners, operators, and certified repair stations. The FAA requests as much information as possible, even "insignificant reports," and maintains the information for five years to detect trends and failure rates. The FAA publishes a weekly summary of the collected service difficulty information in SDRs. The publication is distributed to the FAA's Flight Standards District Offices and Manufacturing Inspection District Offices and is available to the public at no charge.
Alerts contain information intended to assist maintenance and inspection personnel in performing their duties and provide a channel of communication through which the aviation community can exchange service experience and thereby improve the reliability, safety, and durability of aircraft products. The information in the Alerts
is selected from the monthly listing of SDRs on a particular product. Alerts primarily are directed toward a particular segment of the aviation community, but are circulated widely within the FAA.
B. FAA's Investigation of Aerosource
Aerosource is an FAA-certified repair station in Somerset, New Jersey. The FAA began an investigation of Aerosource in July 1996 which revealed various deficiencies. The investigation led to Aerosource and the FAA entering into a consent order in August 1996 providing for Aerosource voluntarily to surrender its unlimited accessory rating in exchange for limited accessory ratings and the FAA's promise that it would not unreasonably withhold or delay the approval and issuance of additional ratings to Aerosource.
Nevertheless, in October 1996, the FAA ceased adding parts to Aerosource's ratings because it had safety concerns which arose after execution of the consent order. Because the FAA did not provide Aerosource with a further explanation of its concerns at that time, Aerosource made a Freedom of Information Act request for its file. In response, the FAA produced a file in early December 1996, which revealed that one of Aerosource's customers, Raytheon Aerospace Company, had made inquiry of the FAA of the state of its investigation of Aerosource. The FAA responded to Raytheon by letter dated July 31, 1996, stating that the investigation was as yet inconclusive, but suggesting that "[i]f either of [two aircraft] parts were overhauled for your company by Aerosource, you may want to inspect the components for obvious problems and check performance." As a result, Raytheon removed several parts from stock which Aerosource had overhauled and contracted with certain of Aerosource's competitors for teardown and inspections of the parts. A teardown is a process in which the part is disassembled completely and is subjected to a detailed inspection. These repair stations performed the teardowns and reported various problems with Aerosource's maintenance of the parts.
In December 1996, the FAA circulated an SDR, dated
October 1996, which identified specific parts that Aerosource had repaired or overhauled improperly. The SDR warned the aviation community that Aerosource may have maintained other aircraft parts improperly.*fn3 The SDR stated that an FAA investigation revealed that some components Aerosource had serviced had been returned to service notwithstanding their failure to meet manufacturer's specifications. In particular, the SDR named two specific components which "should be suspected as improperly maintained until further evaluations are performed." The notice stated that these components may be subject to early failure and that Aerosource had a system in place which may have resulted in the returning of components to service without proper maintenance. The notice recommended that anyone who had these particular components repaired by Aerosource take appropriate action to determine whether they met applicable standards. The SDR also requested any additional information that recipients of the SDR might have regarding the parts.
In December 1996, the FAA published an Alert which repeated the notice from the SDR concerning Aerosource virtually verbatim. The Alert, however, included the following disclaimer language: "This article is published as it was received, except for editorial changes." Both the SDR and Alert were based on the reports of the teardowns and inspections which Aerosource's competitors performed.
In early January 1997, Aerosource responded to the FAA's allegation and on January 9, 1997, met with the FAA to discuss the validity of the results of the teardown inspections. According to Aerosource, the FAA issued the SDR and Alert on the basis of unconfirmed, unwitnessed, and unverified Conclusions by Aerosource's competitors, embodied in the teardown reports. More particularly, Aerosource alleges that these competitors made the teardown inspections without FAA supervision and under such circumstances as to render them unreliable. For example, one facility performed work for which the FAA had not ...