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. e du/thir dc ir c uit_1998/63Filed April 1, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-3313

AEROSOURCE, INC.,
Petitioner

v.

RODNEY SLATER, SECRETARY OF THE U.S.
DEPARTMENT OF TRANSPORTATION; BARRY VALENTINE, ACTING ADMINISTRATOR OF THE FEDERAL AVIATION ADMINISTRATION; U.S. DEPARTMENT OF

TRANSPORTATION AND FEDERAL AVIATION ADMINISTRATION, Respondents

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

(Filed: April 1, 1998)

Louise B. Cobbs (argued) Haight, Gardner, Holland & Knight 2000 K Street, N.W.
Suite 200 Washington, D.C. 20006

Attorneys for PetitionerFrank W. Hunger

Assistant Attorney General Robert S. Greenspan Edward Himmelfarb (argued) Attorneys, Appellate Staff Civil Division, Room 9145 Department of Justice 601 "D" Street, N.W. Washington, D.C. 20530-0001

David M. Wiegand Mgr. General & Administrative Litigation Branch, AGC-410
Office of the Chief Counsel Litigation Division
Federal Aviation Administration Washington, D.C. 20591

James S. Dillman United States Department of Transportation 400 7th Street, S.W. Washington, D.C. 20590

Attorneys for Respondents

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter is before the court on a petition for r eview of a Federal Aviation Administration ("FAA") action br ought by Aerosource, Inc., pursuant to 49 U.S.C. S 46110(a). 1 In the

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1. Aerosource in its petition for review relies onl y on 49 U.S.C. S 46110 as establishing our jurisdiction. In its brief, how ever, it also cites the Administrative Procedure Act, 5 U.S.C. S 702, as a basis for us to exercise jurisdiction. We are deciding this case un der section 46110(a), as the case has been briefed largely under 49 U.S.C . app. S 1486, the

2alternative, anticipating that we might determine t hat we do

not have appellate jurisdiction, Aerosource relies on our jurisdiction to issue a writ of mandamus pursuant t o the All Writs Act, 28 U.S.C. S 1651(a), to achieve the relief it seeks in its petition for review.

A. Regulatory Framework

We find it useful at the outset to describe the reg ulatory framework in which this dispute has arisen. The Administrator of the FAA has a statutory responsibi lity to prescribe regulations and establish minimum standar ds to promote safe civil aircraft flight. See 49 U.S.C. S 44701(a)(2). Thus, the Administrator is responsib le for establishing standards concerning various aspects o f the inspection and servicing of aircraft and aircraft p arts. See
id. The FAA further is authorized to "examine and r ate" stations and shops that repair2 aircraft and aircra ft parts regarding the adequacy and suitability of the stati ons' equipment, facilities, and personnel. See 49 U.S.C. S 44707(2).

Pursuant to this statutory mandate, the FAA has promulgated regulations governing the issuance of r epair 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 th e station to repair. This specification is known as a rating. See 14 C.F.R. SS 145.11, 145.31. Propellers, radio equipment, accessories, landing gear, and engines a re examples of categories of ratings. A repair station 's rating

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predecessor section to section 46110(a). We note, h owever that, as we explain below, the courts have looked to the Admini strative Procedure Act in defining the term "order" for purposes of ap peal under section 1486. See infra note 8. Thus, Aerosource's citation of 5 U.S.C. S 702 as a basis for our jurisdiction has not enhanced its j urisdictional
contentions.

2. We use the term "repair" to refer to repair, mai ntenance, and overhaul of aircraft components. Although these terms refer to different procedures, the distinction is not relevant to the disposition of this

case.

3may be unlimited or limited as to the types of equi pment or

components or a specific model aircraft or engine. See 14 C.F.R. S 145.33. A repair station may repair any eq uipment or component for which it has been rated. See 14 C .F.R.
S 145.51.

Stations applying for certification or rating must have adequate inspection procedures to ensure quality co ntrol 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. S 145.59(a). Certified stations have a duty to repo rt defects
or unairworthiness to the FAA. See 14 C.F.R.S 145.6 3(a). A certified station must allow the FAA to inspect the station for compliance with the regulations. See 14 C.F.R. S 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. S 40114(a)(2). P ursuant to this authority, the FAA publishes two documents, Service Difficulty Reports ("SDRs") and General Avi ation Airworthiness Alerts ("Alerts"), relevant here.

The Service Difficulty program is an information sy stem intended to aid owners, operators, manufacturers, a nd the FAA in identifying problems encountered during airc raft
service. The FAA receives relevant information from a variety of sources, including FAA inspectors, owner s, operators, and certified repair stations. The FAA r equests as much information as possible, even "insignifican t reports," and maintains the information for five ye ars to detect trends and failure rates. The FAA publishes a weekly summary of the collected service difficulty informa tion in SDRs. The publication is distributed to the FAA's F light Standards District Offices and Manufacturing Inspec tion 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 throu gh which the aviation community can exchange service experience and thereby improve the reliability, saf ety, and durability of aircraft products. The information in the Alerts

4is selected from the monthly listing of SDRs on a p articular

product. Alerts primarily are directed toward a par ticular segment of the aviation community, but are circulat ed widely within the FAA.

B. FAA's Investigation of Aerosource

Aerosource is an FAA-certified repair station in So merset, New Jersey. The FAA began an investigation of Aeros ource in July 1996 which revealed various deficiencies. T he investigation led to Aerosource and the FAA enterin g into a consent order in August 1996 providing for Aerosour ce voluntarily to surrender its unlimited accessory ra ting 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 addin g parts to Aerosource's ratings because it had safety concerns which arose after execution of the consent order. B ecause the FAA did not provide Aerosource with a further explanation of its concerns at that time, Aerosourc e 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 inconclus ive, but suggesting that "[i]f either of [two aircraft] part s 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 i s a process in which the part is disassembled completel y and is subjected to a detailed inspection. These repair stations performed the teardowns and reported various proble ms with Aerosource's maintenance of the parts.

In December 1996, the FAA circulated an SDR, dated

5October 1996, which identified specific parts that

Aerosource had repaired or overhauled improperly. T he SDR warned the aviation community that Aerosource m ay have maintained other aircraft parts improperly.3 T he SDR stated that an FAA investigation revealed that some components Aerosource had serviced had been returne d to service notwithstanding their failure to meet manuf acturer's specifications. In particular, the SDR named two sp ecific 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 p lace which may have resulted in the returning of compone nts 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 part s.

In December 1996, the FAA published an Alert which repeated the notice from the SDR concerning Aerosou rce virtually verbatim. The Alert, however, included th e following disclaimer language: "This article is pub lished as it was received, except for editorial changes." Bot h the SDR and Alert were based on the reports of the teardown s and inspections which Aerosource's competitors performe d.

In early January 1997, Aerosource responded to the FAA's allegation and on January 9, 1997, met with t he FAA to discuss the validity of the results of the teard own inspections. According to Aerosource, the FAA issue d the SDR and Alert on the basis of unconfirmed, unwitnes sed, and unverified conclusions by Aerosource's competit ors, embodied in the teardown reports. More particularly
, Aerosource alleges that these competitors made the teardown inspections without FAA supervision and un der

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3. The timing of the publication of these notices i s in dispute. According to Aerosource, the SDR was not published until Dece mber although it was dated in October. According to the FAA, there i s no evidence that
the SDR was not circulated until December. The disc repancy makes no
difference to our outcome.

6such circumstances as to render them unreliable. Fo r

example, one facility performed work for which the FAA had not certified it and another facility used a manual outdated for at least 12 years in conducting the inspection and used repair rather than inspection criteria.

On January 17, 1997, Aerosource wrote a letter to t he FAA requesting that the FAA retract the notice publ ished in the Alert concerning Aerosource. In support of its request,
Aerosource cited the indications that the teardowns were unreliable. While the FAA did not retract the Alert it did restore Aerosource's unlimited accessory ratings on January 27, 1997, and closed the enforcement invest igation based upon the teardown reports.

Since that time, the FAA has continued to refuse Aerosource's requests to rescind the Alert and the SDR as well. In these requests, Aerosource objected to the reliability of the information on which the SDR and Alert were based. Thus, on February 7, 1997, Aerosource w rote to the Director of the FAA's Flight Standards Servi ce asking that the FAA issue "a special notice withdrawing an inaccurate notice" in the Alert.4 On March 27, 1997
, Aerosource again wrote to the FAA, this time reques ting a
reconsideration of both the SDR and the Alert.

On March 28, 1997, the FAA denied these requests fo r rescission. The FAA's letter explained that, at the January 9 meeting, Aerosource presented sufficient informat ion to justify the FAA's reexamination of the teardown rep orts. However, after reexamining all of the information c ollected during the investigation, the FAA found that the preponderance of the findings in the reports had be en substantiated. The FAA also explained that Aerosour ce's ratings had been reissued because Aerosource was currently in compliance with all applicable regulat ions.

On April 18, 1997, Aerosource sent a letter to the FAA

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4. Having not yet received a response from the FAA, Aerosource wrote a similar letter on March 14, 1997, renewing its requ est for rescission of the Alert. Aerosource emphasized that the FAA would have to act promptly in order to prevent Aerosource from sustai ning additional damage to its business.

7requesting reconsideration of the denial. This lett er

challenged the FAA's explanation contained in its d enial and made the same arguments as in its original requ est for rescission. The FAA denied this request on May 6, 1 997, again stating that it based its decision not to res cind the notices upon a reexamination of all of the data. Fu rther, the FAA explained that the reissuance of Aerosource 's ratings "is an acknowledgment that, at this time, Aerosource meets the Federal Aviation Regulation requirements to provide maintenance services to the aviation community."

Aerosource then filed a petition with this court se eking review of the FAA's May 6, 1997 letter denying Aero source's request to reconsider the FAA's denial of the reque st for rescission of the SDR and Alert.5 Alternatively, Ae rosource seeks the same relief through the issuance of a wri t of

mandamus.

II. DISCUSSION

A. Review of FAA Action

Pursuant to 49 U.S.C. S 46110(a):

a person disclosing substantial interest in an order issued by the Secretary of Transportation (o r the
Administrator of the Federal Aviation Admini stration with respect to aviation safety duties and p owers designated to be carried out by the Administ rator) under this part may apply for review of the order by filing a petition for review in the . . . co urt of appeals
of the United States for the circuit in whic h the person resides or has its principal place of busine ss.

While Aerosource contends that we have jurisdiction under this section, the FAA argues that we do not have

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5. It appears that Aerosource was not aware that th e FAA had issued the SDR until on or shortly before March 27, 1997. App. at 491. Thus, it had sought only a rescission of the Alert prior to that date. We, however, are not distinguishing between the Alert and the SD R in our disposition
of this case.

8jurisdiction to review the FAA action because the F AA has

not issued an order within the meaning of this sect ion.6 We are exercising plenary review on this point as we d ecide the issue through the application of legal principles.

We have not yet determined what constitutes an "ord er" within the meaning of 49 U.S.C. S 46110(a). In fact , few courts have addressed this statute,7 although many have interpreted its predecessor, 49 U.S.C. app. S 1486, which provided that:

[a]ny order, affirmative or negative, issued by the Board or Secretary of Transportation under this ch apter . . . shall be subject to review by the courts of appeals of
the United States or the United States Court of Appeals for the District of Columbia, upon petition, filed within sixty days after the entry of such order, by any person disclosing a substantial interest in such or der.

Courts uniformly imposed judicial limitations on se ction 1486, holding that it applied only to "final orders " of the FAA. See, e.g., Mace v. Skinner , 34 F.3d 854, 857 (9th Cir. 1994); Green v. Brantley, 981 F.2d 514, 519 (11th C ir. 1993); Atorie Air, Inc. v. FAA, 942 F.2d 954, 960 ( 5th Cir. 1991); Southern Cal. Aerial Advertisers' Ass'n v. F AA, 881 F.2d 672, 675 (9th Cir. 1989); Red River Transp. & Dev., Co. v. FAA, 630 F.2d 592, 594 (8th Cir. 1980).8

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6. The FAA does not deny that Aerosource filed its petition for review in
the correct circuit and that it has disclosed a suf ficiently substantial interest to maintain these proceedings.

7. The Court of Appeals for the Ninth Circuit is ap parently the only court of appeals which has addressed this section, but th e holding of this case is not relevant here. See Tur v. FAA, 104 F.3d 290 (9th Cir. 1997) (holding that the district court lacked jurisdictio n to entertain a claim

for
rescission of an order because the statute vests ex clusive jurisdiction

for such claims in the court of appeals).

8. In interpreting the term "order" as used in this section, some courts
have looked to the use of the term in the Administr ative Procedure Act. See, e.g., Southern Cal. Aerial Advertisers' Ass'n, 881 F.2d at 675. The APA broadly defines "order" as "the whole or part o f a final disposition . . . of an agency in a matter other than rulemakin g. . . ." 5 U.S.C. S 551(6).

9Thus, courts have held that the term "order" in sec tion

1486 "applies to an[y] agency decision which impose s an obligation, denies a right, or fixes some legal rel ationship" and which is final. Mace, 34 F.3d at 857 (internal quotation marks omitted); see also Atorie Air, Inc., 942 F.2d at 960; Shea v. Office of Thrift Supervision, 934 F.2d 41, 44-45 (3d Cir. 1991) (using the same language to describefina l agency actions).

In determining what constitutes a final FAA order u nder section 1486, the courts have found that the "order " need not be formal. Thus, letters and other communicatio ns can be final orders depending upon the surrounding circumstances and other indicia of finality. Compar e Tur v. FAA, 104 F.3d 290 (holding that a consent decree wa s an "order" within the meaning of section 46110(a)); Ai r One Helicopters, Inc. v. FAA, 86 F.3d 880 (9th Cir. 199 6) (holding that an FAA opinion letter was a reviewabl e order because administrative remedies were futile); Kemmo ns Wilson, Inc. v. FAA, 882 F.2d 1041 (6th Cir. 1989) (FAA letter was final order), with Blincoe v. FAA, 37 F. 3d 462 (9th Cir. 1994) (letter not final order where by its ter ms the letter suggested that the administrative process wa s incomplete); Air California v. United States Dep't of Transp., 654 F.2d 616 (9th Cir. 1981) (letter warning of imp ending action not final); Red River Transp. & Dev., Co. v. FAA, 630 F.2d 592 (tentative language of FAA letter rendered it not final). Similarly, to be final for purposes of revi ew, the "order" need not be the product of formal agency de cision making, see Southern Cal. Aerial Advertisers' Ass'n , 881 F.2d at 675; Sima Prods. Corp v. McLucas, 612 F.2d 309, 312 (7th Cir. 1980), and "orders" are reviewable un der section 1486 even though the administrator of the F AA has not issued them, see Southern Cal. Aerial Advertise rs' Ass'n, 881 F.2d at 675. In addition, it has been he ld that to be appealable, the "order" must be predicated on an administrative record sufficient to allow a court t o engage in a meaningful review of the order. See Atorie Air , Inc., 942 F.2d at 960; Green v. Brantley, 981 F.2d at 519; Si erra Club v. Skinner, 885 F.2d 591, 593 (9th Cir. 1989).

We have not addressed the proper limits to "order" as used in section 1486, and therefore have not had th e

10occasion to decide whether to accept the limitation s on

what constitutes an order which other courts univer sally have imposed. Yet, given the similarity between sec tion 1486 and its successor, section 46110(a), there see ms to be no reason why the judicial limitations should not a pply equally to section 46110(a), the current version of the statute.9 Moreover, the parties do not argue that t his court should interpret the term "order" differently than have other courts of appeals. Thus, we conclude that to be reviewable under section 46110(a), an "order" must be final, but need not be a formal order, the product of a fo rmal decision-making process, or be issued personally by the Administrator. Of course, it also must impose an ob ligation, deny a right, or fix some legal relationship. 10

There are three FAA actions relevant in determining whether Aerosource's petition seeks to review an or der and thus whether we have jurisdiction: (1) the issuance of the SDR and Alert; (2) the March 28, 1997 letter refusi ng to rescind the SDR and Alert; and (3) the May 6, 1997 letter refusing to reconsider its decision not to rescind the SDR and Alert. As discussed above, a finding that these actions, or any one of them, is final is not precluded by th eir lack of formality, see Tur, 104 F.2d at 292; Air One, 86 F.3d at 882, the lack of a formal hearing in this case, see , e.g.,

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9. The parties do not argue this point in their bri efs to this court. Rather, they cite the cases dealing with section 1486 as th ough they were decided under section 46110 without acknowledging t he change in statutory language. Thus, they silently assume that we likewise would impose a finality requirement.

10. We are not predicating our ruling on a possible insufficiency of the administrative record, as we find the record suffic ient for us to make a meaningful review. In fact, we make that review in considering Aerosource's application for mandamus relief. In th is regard, we point out that an agency action not predicated on an admi nistrative record permitting meaningful review could impose substanti al obligations on a petitioner who thus reasonably could contend that i t is entitled to review without regard for the state of the record. We obse rve that while the courts recite that an appealable order must be base d on a record sufficient to permit a meaningful review, they regu larly find the record adequate for that purpose. We leave to another day the determination of whether, and if so how, a court would exercise appe llate jurisdiction notwithstanding an inadequate record for the review

.

11Southern Cal. Aerial Advertisers' Ass'n, 881 F.2d a t 675, or

the fact that the Administrator did not personally issue the letters, see id. Thus, the focus of our inquiry is on whether one of these actions had the type of effect require d of a "final" agency action.

In determining whether there is a final agency acti on, the Supreme Court has stated that the "core question is whether the agency has completed its decision makin g process, and whether the result of that process is one that will directly affect the parties." Franklin v. Mass achusetts, 505 U.S. 788, 797, 112 S.Ct. 2767, 2773 (1992). The action must be a "definitive statement[ ] of [the agency's ] position" with concrete legal consequences. See FTC v. Standa rd Oil Co., 449 U.S. 232, 241, 101 S.Ct. 488, 493 (1980) ( internal quotation marks omitted).

In Standard Oil, the Supreme Court held that the Fe deral Trade Commission's ("FTC") issuance of a complaint was not a final agency action and therefore was not rev iewable
under the Administrative Procedure Act. See Standar d Oil, 449 U.S. at 238, 101 S.Ct. at 492. The Court reason ed that the complaint was, by its terms, not a definitive s tatement; rather, the complaint was only indicative of the FT C's "reason to believe" that the party was violating th e law. See id. at 241, 101 S.Ct. 493-94. The Court found that the complaint did not have the legal force or practical effect on the party's daily business activities indicative of a final agency determination. See id. at 242, 101 S.Ct. at 494. The Court recognized that the complaint imposed the substantial burden of responding to the allegations , but noted that this was "different in kind and legal ef fect from the burdens attending what heretofore has been cons idered final agency action." See id. at 242, 101 S.Ct. at 494. The
Court noted that this burden is the same as that accompanying any major litigation, but not the same type of effect as requiring a company to change its dail y operations and expend resources investing in new equipment. See id.

The Standard Oil Court also rejected the argument t hat the petitioner's request of the Commission to recon sider the issuance of the complaint somehow rendered it a def initive agency action. See id. at 243, 101 S.Ct. at 495. Th e Court

12recognized that such a request, and the Commission' s

subsequent denial of it, likely exhausted petitione r's administrative remedy with regard to whether the Commission had the required "reason to believe" tha t the petitioner was violating the law. See id. But the C ourt held that the issuance of a complaint is a step toward, and ultimately will merge into, the Commission's decisi on as to whether the party violated federal law. See id. at 246, 101

S.Ct. at 497.

We have applied a factored analysis to determine wh ether an agency's action is final. See In re Seidman, 37 F.3d 911, 923 (3d Cir. 1994). An order's finality is "informe d but not decided by an agency classification" and is charact erized by the following five factors:

(1) whether the decision represents the agen cy's definitive position on the question; (2) whe ther the decision has the status of law with the expe ctation of immediate compliance; (3) whether the decisi on has immediate impact on the day-to-day operation s of the party seeking review; (4) whether the decisi on inv olves a pure question of law that does not require further factual development; and (5) whether immedia te rev iew would speed enforcement of the relevant act.

Id. at 923 (quoting CEC Energy Co. v. Public Serv. Comm'n, 891 F.2d 1107, 1101 (3d Cir. 1989)). This formulati on is in accord with the Supreme Court's conclusion that the following are indicia of finality in the context of other agencies' actions: a definitive statement of the ag ency's position which has a direct and immediate effect on the petitioner's day-to-day operations, which has the s tatus of law, and of which immediate compliance is expected. See Standard Oil, 449 U.S. at 239, 101 S.Ct. at 493.

As noted above, considering the SDR and the Alert together, there are three FAA actions which might b e treated as orders subject to review. Aerosource con tends that the May 6 letter was a final order reviewable under 49 U.S.C. S 46110(a) and thus its petition seeks revie w of that letter. Yet we also must consider the finality of t he SDR and the Alert and the March 28 letter, as the finality of the May 6 letter depends on the finality for purposes of re view of

13these earlier documents. After all, if a court trea ted the

denial of an application to reconsider an action wh ich is not in itself a final order as a final order, then a pe titioner simply by asking for reconsideration could convert a nonfinal action into a final order. Of course, this conversion should not be permitted. See Standard Oil, 449 U.S. at 243, 101 S.Ct. at 495 ("But the Commission's refusal to reconsider its issuance of the complaint does not r ender the complaint a `definitive' action.").11 Accordingly, the FAA primarily alleges that neither the March 28, 1997 l etter nor the May 6, 1997 letter can be a final order unless the SDR
and Alert are themselves final. We discuss each of these FAA actions with respect to their finality.

1. SDR and Alert

We agree with the FAA that the SDR and Alert were n ot
final orders because their conclusions were tentati ve and indicative of an on-going investigation. Thus, they are like the complaint issued in Standard Oil, which the Sup reme Court found was not a final, reviewable order. Inde ed, it is impossible to characterize either the SDR or the Al ert as announcing, as set forth in Seidman, the FAA's defi nitive statement, as both publications merely gave advisor y information predicated on information supplied to t he FAA.

The SDR and the Alert were similar to a letter of w hich a petitioner in the Court of Appeals for the Eighth Circuit sought review in Red River Transport & Dev., Co., 6 30 F.2d 592. There, the court held that the letter was not a final order as it merely notified the petitioner of an on -going investigation and requested the petitioner to submi t any evidence which it cared to offer in regard to the investigation. In addition, by its terms, the lette r in Red River did not make any final conclusions or decisio ns; rather, it stated that "[i]f the facts as stated ar e correct, it

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11. We are not implying that in no circumstance cou ld a denial of a request for reconsideration of some action which, i n itself, was not a final order not be a final order subject to judicia l review. Obviously, we are only ruling on the situation before us. Conceiv ably the denial of the reconsideration could have consequences going beyon d the underlying action. But this situation is not present here.

14appears that there may have been a violation" of fe deral

regulations and "[s]hould this investigation substa ntiate that a violation did or did not occur, you will be informed accordingly." Id. at 593-94.

The SDR and Alert were also, by their terms, tentat ive. The notices stated that certain components were sus pected as being improperly serviced by Aerosource and requ ested any additional information which their recipients c ould produce. But the SDR and the Alert were nothing mor e than what their names implied, for they were adviso ry in nature. They imposed no obligations, denied no righ t, and did not fix or alter a legal relationship. Indeed, the Alert recited that the information it contained was signi ficant but not "evaluated fully by the time the material went to press." Thus, neither the SDR nor the Alert had the force o f law.

2. March 28, 1977 Letter

The FAA issued a letter on March 28, 1997, denying Aerosource's request to rescind the Alert and SDR. 12 In that letter, the FAA summarized the course of the invest igation, including the source of the information in the SDR and Alert and the FAA's meeting with Aerosource resulti ng in
the FAA's reexamination of the data on which the SD R and

Alert were based. The FAA then stated that:

[w]e have completed our reexamination of all the data that has come to our attention during this investigation. This includes an analysis of the tear- down reports . . . . After compilation and r eview of all of the results, we found that a preponderanc e of those original findings has been substantiated.

We understand Aerosource's concern because o f our publication of the Alert and SDR. However, i n the interest of aviation safety, and our duty to safeguard the flying public, we have no recourse but t o allow the FAA Alert and SDR to stand as published.

App. at 494-95.

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12. The FAA, but not Aerosource, characterizes the letter as acting on a request for reconsideration.

15This letter evinces the FAA's intent not to rescind the

SDR and Alert and establishes that the FAA found th at the
information in the SDR and Alert was not unfounded. Nevertheless, it did not impose an obligation, deny a right, or fix some legal relationship. The only thing deni ed in this letter is the "right" to the rescission of the publ ications. The letter did not require Aerosource to do anything, a nd there is nothing in the letter with which Aerosource is e xpected to comply. Indeed, the letter did nothing more than leave Aerosource in the position it was in after the SDR and Alert
were issued.

3. May 6, 1977 letter

After the FAA denied Aerosource's request to rescin d, Aerosource sent another letter to the FAA on April 18, 1997, urging the FAA to reconsider its decision. Th e FAA responded by letter of May 6, 1997, denying Aerosou rce's request to reconsider the FAA's decision not to res cind the Alert. In so denying, the FAA stated that "[o]ur de cision not to withdraw the Alert was based upon a reexaminatio n of all the data that came to our attention during the investigation." Aerosource argues that the FAA's Ma y 6 letter refusing to rescind the SDR and Alerts was a final order which we may review under 49 U.S.C. S 46110. In so arguing, Aerosource cites excerpts from the FAA's v arious correspondences with Aerosource, and states that"[t ]hese
letters make clear that the FAA has reached afinal reviewable decision." Br. at 20 n.10 (emphasis adde d). Aerosource's arguments treat the March 28 letter as merging into the May 6 letter.

It is clear that this May 6 letter represents the F AA's final position on the issue of whether it will rescind th e SDR and the Alert. However, this letter does not anticipate that Aerosource will comply with any directive, as the l etter sets forth nothing with which it must comply. Thus, the May 6 letter no more imposed legal obligations, fixed rig hts, or altered a legal relationship than did the March 28, 1997

letter or the SDR or the Alert themselves. At botto m, therefore, this case concerns nothing more than the issuance of advisory warnings and the FAA's refusal to withdraw the warnings predicated on its conclusion that it

16properly had issued them. Neither Aerosource nor an y

other entity suffered any legal consequences as a r esult of
the issuance of the SDR or the Alert or from the se nding of

the letters.

We, of course, recognize the severe adverse impact the
SDR and the Alert had on Aerosource's business. It is quite natural that in the sophisticated market for aircra ft parts repair services the customers would be aware of and
mindful of an SDR and an Alert and would take the
information in such documents into account when see king repair services. Undoubtedly Aerosource's customers did exactly that. Nevertheless, we have concluded that in view
of all the circumstances of this case none of the d ocuments at issue here can be regarded as a reviewable order

. Moreover, contrary to Aerosource's contention, the fact that the FAA's actions were directed at a single company rather than at the industry at large does not affect our r esult as
none of the materials has the indicia of an order. Furthermore, we see no reason why a mandatory direc tion to an entire industry could not be an order. Thus, we will
not create a criterion for an FAA action to be an o rder that it affect only a single company. Nor will we hold t hat an action affecting a single company necessarily is an order. Thus, we reject Aerosource's contention that the FA A has de facto decertified it, thus entering an order aga inst it.

In reaching our result, we quite naturally consider our recent decision in Hindes v. FDIC, 1998 WL 65978 (3 d Cir. Feb. 19, 1998). In Hindes, the FDIC notified the Me ritor Savings Bank that unless Meritor satisfied certain capitalization requirements the FDIC would cancel i ts deposit insurance. The demand created a crisis whic h led the Pennsylvania Secretary of Banking to close the bank and appoint the FDIC as its receiver on the same da y that the FDIC notified Meritor of its capitalization req uirements.

The impact of the FDIC's notice on Meritor was dram atic. Nevertheless, we held that the Notification was not a final agency action for purposes of APA review. We pointe d out
that the Notification was not the FDIC's definitive statement, did not impose an obligation, deny a rig ht, or fix a legal relationship. Rather, the Notification was merely the first step of a multi-step statutory procedure whic h could

17lead to the termination of the institution's deposi t

insurance. Id. at *11-*12. Thus, we concluded that the district court did not have jurisdiction to review the
Notification. Id.

We recognize that the language of the APA in 5 U.S. C. S 702 differs from that in section 46110(a). Yet si milar principles apply under both statutes. See, e.g., So uthern Cal. Aerial Advertisers' Ass'n, 881 F.2d at 675. Mo reover, on the facts in Hindes, an arguably even stronger c ase for judicial review could be made than has been made he re. After all, in Hindes, the Notification required Mer itor to take action, failing which the FDIC would initiate an administrative proceeding.13 Indeed, the impact of the Notification on Meritor reasonably may be character ized as more severe than the impact on Aerosource of the SD R and
the Alert. Yet in Hindes we held that the district court did not have jurisdiction to review the issuance of the Notification because, inter alia, "it was not a fin al agency
action." Id. at *11.14

B. Mandamus

As we have indicated, Aerosource contends that alternatively we have jurisdiction to issue a writ of mandamus pursuant to the All Writs Act, 28 U.S.C. S 1651(a). Thus, it requests that if we conclude th at we do not have jurisdiction pursuant to its petition for review, we treat the petition as seeking a writ of mandamus an d that through this device we compel the FAA to rescind th e SDR and Alert. Mandamus is only appropriate where the petitioner can establish that it has no alternative , adequate remedy and that its right to the writ is clear and indisputable. See Rhoune-Poulenc Rorer, Inc., 32 F. 3d 851,

___________________________________________________ ______________

13. The Secretary of Banking's action obviated the need for the administrative proceeding.

14. The FAA, relying on ICC v. Brotherhood of Locom otive Eng'rs, 482 U.S. 270, 107 S.Ct. 2360 (1987), contends that the petition for review which Aerosource filed on June 9, 1997, was not tim ely as it could have been timely only if measured from May 6, 1997, when the second letter at issue here is dated. In view of our result, we h ave no need to reach this argument and to spell out its nuances.

18861 (3d Cir. 1994). In addition, the petitioner gen erally

must show irreparable injury caused by the error. S ee United States v. Wexler, 31 F.3d 117, 128 (3d Cir. 1994). We have reviewed Aerosource's mandamus argument carefully and find that while it has no adequate al ternative remedy and that its injury has been severe, neverth eless on the facts its right to the writ is not clear and in disputable. Consequently, we are constrained to deny Aerosource 's petition insofar as it seeks mandamus.

III. CONCLUSION

For the foregoing reasons, the petition for review is dismissed and, treating the petition as seeking a w rit of mandamus, mandamus is denied.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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