1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-1-1998

Aerosource Inc v. Secretary Transp

Precedential or Non-Precedential:

Docket 97-3313

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Recommended Citation

"Aerosource Inc v. Secretary Transp" (1998). 1998 Decisions. Paper 63.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/63
Filed 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 Petitioner 
 Frank 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 review of 

a Federal Aviation Administration ("FAA") action brought by 

Aerosource, Inc., pursuant to 49 U.S.C. S 46110(a).1 In the 

_________________________________________________________________ 

1. Aerosource in its petition for review relies only on 49 U.S.C. S 46110 

as establishing our jurisdiction. In its brief, however, 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 under section 46110(a), 

as the case has been briefed largely under 49 U.S.C. app. S 1486, the 

 2 
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. 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 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. 

S 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 repair2 aircraft and aircraft parts 

regarding the adequacy and suitability of the stations' 

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 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. SS 145.11, 145.31. Propellers, radio 

equipment, accessories, landing gear, and engines are 

examples of categories of ratings. A repair station's rating 

_________________________________________________________________ 

predecessor section to section 46110(a). We note, however that, as we 

explain below, the courts have looked to the Administrative Procedure 

Act in defining the term "order" for purposes of appeal 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 jurisdictional 

contentions. 

2. We use the term "repair" to refer to repair, maintenance, and overhaul 

of aircraft components. Although these terms refer to different 

procedures, the distinction is not relevant to the disposition of this 

case. 

 3 
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. S 145.33. A repair station may repair any equipment 

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 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. 

S 145.59(a). Certified stations have a duty to report defects 

or unairworthiness to the FAA. See 14 C.F.R.S 145.63(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). 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 

 4 
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 

 5 
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.3 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 

_________________________________________________________________ 

3. The timing of the publication of these notices is in dispute. According 

to Aerosource, the SDR was not published until December although it 

was dated in October. According to the FAA, there is no evidence that 

the SDR was not circulated until December. The discrepancy makes no 

difference to our outcome. 

 6 
such circumstances as to render them unreliable. For 

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 the 

FAA requesting that the FAA retract the notice published 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 investigation 

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 wrote 

to the Director of the FAA's Flight Standards Service 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 requesting a 

reconsideration of both the SDR and the Alert. 

On March 28, 1997, the FAA denied these requests for 

rescission. The FAA's letter explained that, at the January 

9 meeting, Aerosource presented sufficient information to 

justify the FAA's reexamination of the teardown reports. 

However, after reexamining all of the information collected 

during the investigation, the FAA found that the 

preponderance of the findings in the reports had been 

substantiated. The FAA also explained that Aerosource's 

ratings had been reissued because Aerosource was 

currently in compliance with all applicable regulations. 

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

_________________________________________________________________ 

4. Having not yet received a response from the FAA, Aerosource wrote a 

similar letter on March 14, 1997, renewing its request for rescission of 

the Alert. Aerosource emphasized that the FAA would have to act 

promptly in order to prevent Aerosource from sustaining additional 

damage to its business. 

 7 
requesting reconsideration of the denial. This letter 

challenged the FAA's explanation contained in its denial 

and made the same arguments as in its original request for 

rescission. The FAA denied this request on May 6, 1997, 

again stating that it based its decision not to rescind the 

notices upon a reexamination of all of the data. Further, 

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 seeking 

review of the FAA's May 6, 1997 letter denying Aerosource's 

request to reconsider the FAA's denial of the request for 

rescission of the SDR and Alert.5 Alternatively, Aerosource 

seeks the same relief through the issuance of a writ 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 (or the 

 Administrator of the Federal Aviation Administration 

 with respect to aviation safety duties and powers 

 designated to be carried out by the Administrator) 

 under this part may apply for review of the order by 

 filing a petition for review in the . . . court of appeals 

 of the United States for the circuit in which the person 

 resides or has its principal place of business. 

While Aerosource contends that we have jurisdiction under 

this section, the FAA argues that we do not have 

_________________________________________________________________ 

5. It appears that Aerosource was not aware that the 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 SDR in our disposition 

of this case. 

 8 
jurisdiction to review the FAA action because the FAA has 

not issued an order within the meaning of this section.6 We 

are exercising plenary review on this point as we decide the 

issue through the application of legal principles. 

We have not yet determined what constitutes an "order" 

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 chapter . . . 

 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 order. 

Courts uniformly imposed judicial limitations on section 

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 Cir. 

1993); Atorie Air, Inc. v. FAA, 942 F.2d 954, 960 (5th Cir. 

1991); Southern Cal. Aerial Advertisers' Ass'n v. FAA, 881 

F.2d 672, 675 (9th Cir. 1989); Red River Transp. & Dev., 

Co. v. FAA, 630 F.2d 592, 594 (8th Cir. 1980).8 

_________________________________________________________________ 

6. The FAA does not deny that Aerosource filed its petition for review in 

the correct circuit and that it has disclosed a sufficiently substantial 

interest to maintain these proceedings. 

7. The Court of Appeals for the Ninth Circuit is apparently the only court 

of appeals which has addressed this section, but the 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 jurisdiction to entertain a claim 

for 

rescission of an order because the statute vests exclusive 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 Administrative 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 of a final disposition 

. . . of an agency in a matter other than rulemaking. . . ." 5 U.S.C. 

S 551(6). 

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

1486 "applies to an[y] agency decision which imposes an 

obligation, denies a right, or fixes some legal relationship" 

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 describefinal 

agency actions). 

In determining what constitutes a final FAA order under 

section 1486, the courts have found that the "order" need 

not be formal. Thus, letters and other communications can 

be final orders depending upon the surrounding 

circumstances and other indicia of finality. Compare Tur v. 

FAA, 104 F.3d 290 (holding that a consent decree was an 

"order" within the meaning of section 46110(a)); Air One 

Helicopters, Inc. v. FAA, 86 F.3d 880 (9th Cir. 1996) 

(holding that an FAA opinion letter was a reviewable order 

because administrative remedies were futile); Kemmons 

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 terms the 

letter suggested that the administrative process was 

incomplete); Air California v. United States Dep't of Transp., 

654 F.2d 616 (9th Cir. 1981) (letter warning of impending 

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 review, the 

"order" need not be the product of formal agency decision 

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 under 

section 1486 even though the administrator of the FAA has 

not issued them, see Southern Cal. Aerial Advertisers' 

Ass'n, 881 F.2d at 675. In addition, it has been held that 

to be appealable, the "order" must be predicated on an 

administrative record sufficient to allow a court to 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; Sierra 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 the 

 10 
occasion to decide whether to accept the limitations on 

what constitutes an order which other courts universally 

have imposed. Yet, given the similarity between section 

1486 and its successor, section 46110(a), there seems to be 

no reason why the judicial limitations should not apply 

equally to section 46110(a), the current version of the 

statute.9 Moreover, the parties do not argue that this 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 formal 

decision-making process, or be issued personally by the 

Administrator. Of course, it also must impose an obligation, 

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 order and 

thus whether we have jurisdiction: (1) the issuance of the 

SDR and Alert; (2) the March 28, 1997 letter refusing 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 their 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., 

_________________________________________________________________ 

9. The parties do not argue this point in their briefs to this court. 

Rather, 

they cite the cases dealing with section 1486 as though they were 

decided under section 46110 without acknowledging the 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 sufficient for us to make a 

meaningful review. In fact, we make that review in considering 

Aerosource's application for mandamus relief. In this regard, we point 

out that an agency action not predicated on an administrative record 

permitting meaningful review could impose substantial obligations on a 

petitioner who thus reasonably could contend that it is entitled to review 

without regard for the state of the record. We observe that while the 

courts recite that an appealable order must be based on a record 

sufficient to permit a meaningful review, they regularly find the record 

adequate for that purpose. We leave to another day the determination of 

whether, and if so how, a court would exercise appellate jurisdiction 

notwithstanding an inadequate record for the review. 

 11 
Southern Cal. Aerial Advertisers' Ass'n, 881 F.2d at 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 required of a 

"final" agency action. 

In determining whether there is a final agency action, the 

Supreme Court has stated that the "core question is

whether the agency has completed its decision making 

process, and whether the result of that process is one that 

will directly affect the parties." Franklin v. Massachusetts, 

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. Standard 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 Federal 

Trade Commission's ("FTC") issuance of a complaint was 

not a final agency action and therefore was not reviewable 

under the Administrative Procedure Act. See Standard Oil, 

449 U.S. at 238, 101 S.Ct. at 492. The Court reasoned that 

the complaint was, by its terms, not a definitive statement; 

rather, the complaint was only indicative of the FTC's 

"reason to believe" that the party was violating the 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 effect from 

the burdens attending what heretofore has been considered 

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 daily 

operations and expend resources investing in new 

equipment. See id. 

The Standard Oil Court also rejected the argument that 

the petitioner's request of the Commission to reconsider the 

issuance of the complaint somehow rendered it a definitive 

agency action. See id. at 243, 101 S.Ct. at 495. The Court 

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

subsequent denial of it, likely exhausted petitioner's 

administrative remedy with regard to whether the 

Commission had the required "reason to believe" that the 

petitioner was violating the law. See id. But the Court held 

that the issuance of a complaint is a step toward, and 

ultimately will merge into, the Commission's decision 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 whether 

an agency's action is final. See In re Seidman, 37 F.3d 911, 

923 (3d Cir. 1994). An order's finality is "informed but not 

decided by an agency classification" and is characterized by 

the following five factors: 

 (1) whether the decision represents the agency's 

 definitive position on the question; (2) whether the 

 decision has the status of law with the expectation of 

 immediate compliance; (3) whether the decision has 

 immediate impact on the day-to-day operations of the 

 party seeking review; (4) whether the decision inv olves 

 a pure question of law that does not require further 

 factual development; and (5) whether immediate 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 formulation 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 agency's 

position which has a direct and immediate effect on the 

petitioner's day-to-day operations, which has the status 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 be 

treated as orders subject to review. Aerosource contends 

that the May 6 letter was a final order reviewable under 49 

U.S.C. S 46110(a) and thus its petition seeks review of that 

letter. Yet we also must consider the finality of the SDR and 

the Alert and the March 28 letter, as the finality of the May 

6 letter depends on the finality for purposes of review of 

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

denial of an application to reconsider an action which is not 

in itself a final order as a final order, then a petitioner 

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 render the 

complaint a `definitive' action.").11 Accordingly, the FAA 

primarily alleges that neither the March 28, 1997 letter 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 not 

final orders because their conclusions were tentative and 

indicative of an on-going investigation. Thus, they are like 

the complaint issued in Standard Oil, which the Supreme 

Court found was not a final, reviewable order. Indeed, it is 

impossible to characterize either the SDR or the Alert as 

announcing, as set forth in Seidman, the FAA's definitive 

statement, as both publications merely gave advisory 

information predicated on information supplied to the FAA. 

The SDR and the Alert were similar to a letter of which 

a petitioner in the Court of Appeals for the Eighth Circuit 

sought review in Red River Transport & Dev., Co., 630 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 submit any 

evidence which it cared to offer in regard to the 

investigation. In addition, by its terms, the letter in Red 

River did not make any final conclusions or decisions; 

rather, it stated that "[i]f the facts as stated are correct, it 

_________________________________________________________________ 

11. We are not implying that in no circumstance could a denial of a 

request for reconsideration of some action which, in itself, was not a 

final order not be a final order subject to judicial review. Obviously, we 

are only ruling on the situation before us. Conceivably the denial of the 

reconsideration could have consequences going beyond the underlying 

action. But this situation is not present here. 

 14 
appears that there may have been a violation" of federal 

regulations and "[s]hould this investigation substantiate 

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, tentative. 

The notices stated that certain components were suspected 

as being improperly serviced by Aerosource and requested 

any additional information which their recipients could 

produce. But the SDR and the Alert were nothing more 

than what their names implied, for they were advisory in 

nature. They imposed no obligations, denied no right, and 

did not fix or alter a legal relationship. Indeed, the Alert 

recited that the information it contained was significant but 

not "evaluated fully by the time the material went to press." 

Thus, neither the SDR nor the Alert had the force of 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 investigation, 

including the source of the information in the SDR and 

Alert and the FAA's meeting with Aerosource resulting in 

the FAA's reexamination of the data on which the SDR 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 review of all 

 of the results, we found that a preponderance of those 

 original findings has been substantiated. 

 We understand Aerosource's concern because of our 

 publication of the Alert and SDR. However, in the 

 interest of aviation safety, and our duty to safeguard 

 the flying public, we have no recourse but to allow the 

 FAA Alert and SDR to stand as published. 

App. at 494-95. 

_________________________________________________________________ 

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

request for reconsideration. 

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

SDR and Alert and establishes that the FAA found that 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 denied in this 

letter is the "right" to the rescission of the publications. The 

letter did not require Aerosource to do anything, and there 

is nothing in the letter with which Aerosource is expected 

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 rescind, 

Aerosource sent another letter to the FAA on April 18, 

1997, urging the FAA to reconsider its decision. The FAA 

responded by letter of May 6, 1997, denying Aerosource's 

request to reconsider the FAA's decision not to rescind the 

Alert. In so denying, the FAA stated that "[o]ur decision not 

to withdraw the Alert was based upon a reexamination of 

all the data that came to our attention during the 

investigation." Aerosource argues that the FAA's May 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 various 

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 added). 

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 FAA's final 

position on the issue of whether it will rescind the SDR and 

the Alert. However, this letter does not anticipate that 

Aerosource will comply with any directive, as the letter sets 

forth nothing with which it must comply. Thus, the May 6 

letter no more imposed legal obligations, fixed rights, or 

altered a legal relationship than did the March 28, 1997 

letter or the SDR or the Alert themselves. At bottom, 

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 

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properly had issued them. Neither Aerosource nor any 

other entity suffered any legal consequences as a result of 

the issuance of the SDR or the Alert or from the sending 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 aircraft 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 seeking 

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 documents 

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 result as 

none of the materials has the indicia of an order. 

Furthermore, we see no reason why a mandatory direction 

to an entire industry could not be an order. Thus, we will 

not create a criterion for an FAA action to be an order that 

it affect only a single company. Nor will we hold that an 

action affecting a single company necessarily is an order. 

Thus, we reject Aerosource's contention that the FAA has 

de facto decertified it, thus entering an order against it. 

In reaching our result, we quite naturally consider our 

recent decision in Hindes v. FDIC, 1998 WL 65978 (3d Cir. 

Feb. 19, 1998). In Hindes, the FDIC notified the Meritor 

Savings Bank that unless Meritor satisfied certain 

capitalization requirements the FDIC would cancel its 

deposit insurance. The demand created a crisis which led 

the Pennsylvania Secretary of Banking to close the bank 

and appoint the FDIC as its receiver on the same day that 

the FDIC notified Meritor of its capitalization requirements. 

The impact of the FDIC's notice on Meritor was dramatic. 

Nevertheless, we held that the Notification was not a final 

agency action for purposes of APA review. We pointed out 

that the Notification was not the FDIC's definitive

statement, did not impose an obligation, deny a right, or fix 

a legal relationship. Rather, the Notification was merely the 

first step of a multi-step statutory procedure which could 

 17 
lead to the termination of the institution's deposit 

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 similar 

principles apply under both statutes. See, e.g., Southern 

Cal. Aerial Advertisers' Ass'n, 881 F.2d at 675. Moreover, 

on the facts in Hindes, an arguably even stronger case for 

judicial review could be made than has been made here. 

After all, in Hindes, the Notification required Meritor to take 

action, failing which the FDIC would initiate an 

administrative proceeding.13 Indeed, the impact of the 

Notification on Meritor reasonably may be characterized as 

more severe than the impact on Aerosource of the SDR 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 final 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 that we do 

not have jurisdiction pursuant to its petition for review, we 

treat the petition as seeking a writ of mandamus and that 

through this device we compel the FAA to rescind the 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 Locomotive 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 timely 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 have no need to reach 

this argument and to spell out its nuances. 

 18 
861 (3d Cir. 1994). In addition, the petitioner generally 

must show irreparable injury caused by the error. See 

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 alternative 

remedy and that its injury has been severe, nevertheless on 

the facts its right to the writ is not clear and indisputable. 

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 writ 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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