Unpublished Disposition, 909 F.2d 1490 (9th Cir. 1990)

MEMORANDUM^** 

On June 26, 1990, the Federal Aviation Administration (F.A.A.) issued an emergency order revoking the operating certificate of Sallee's Aviation, d/b/a Coastal Airways' (Coastal). The effectiveness of an emergency order of revocation is not stayed pending administrative review. 49 U.S.C. § 1429(a).¹  Upon receipt of the order, Coastal stopped carrying passengers for hire. However, it provided free transportation to ticket holders who so requested it. The F.A.A. commenced an action in the district court seeking an injunction on the ground that the "free service" violated the revocation order. On June 28, 1990, the district court granted the F.A.A. a temporary restraining order. Coastal ceased providing free flights and filed a counterclaim which sought an injunction prohibiting the F.A.A. from enforcing the emergency revocation order. Following a hearing on July 5, the district court: (1) denied the F.A.A.'s request for an injunction on the ground that it had "shown no likelihood of success at a trial on the merits," and (2) after determining that it lacked subject matter jurisdiction, denied Coastal's requests for both a preliminary injunction and a finding that no emergency existed on June 26 that would justify emergency revocation of Coastal's operating certificate. Coastal filed a notice of appeal from the district court's order on July 6. Then, on July 15, Coastal filed a petition for review of the emergency revocation order in this court along with an emergency motion for a stay of the F.A.A. order pending expedited review. The motion also sought a hearing citing as authority Nevada Airlines, Inc. v. Bond, 622 F.2d 1017 (9th Cir. 1980). On July 18, we denied the request for a stay and granted expedited review of the petition and appeal. We now review the merits of both.

The district court held that it lacked jurisdiction under the Nevada Airlines case to rule on the issue of whether an emergency constituting a threat to safety existed on June 26, 1990. The procedural posture of this case is practically identical to Nevada Airlines: there, the airline appealed from a district court judgment dismissing its action for injunctive relief against the F.A.A.'s emergency revocation order, and petitioned for review under 49 U.S.C. § 1486(a) of the emergency revocation order. This court affirmed the district court's dismissal holding that under section 1486(a), the courts of appeals have exclusive jurisdiction over a petition for review of an emergency order. Nevada Airlines, 622 F.2d at 1020. Thus, the district court correctly denied Coastal's request for relief. Accordingly, we affirm the district court's dismissal for lack of jurisdiction.

Coastal focuses the majority of its argument on its challenge to the constitutionality of the emergency revocation procedure. Coastal urges us to reconsider Nevada Airlines and its finding that filing a petition for review and emergency motion provides sufficient and prompt review as required by due process.² 

The constitutionality of the emergency revocation procedure has been squarely addressed in at least two cases. See Go Leasing, Inc. v. National Transportation Safety Board, 800 F.2d 1514 (9th Cir. 1986); Air East, Inc. v. National Transportation Safety Bd., 512 F.2d 1227, (3d. Cir.), cert. denied, 423 U.S. 863 (1975). In Go Leasing, Inc. v. National Transportation Safety Board, 800 F.2d 1514 (9th Cir. 1986), we expressly held that "section 1429(a) is not unconstitutional, and that the FAA's procedure does not violate due process." Go Leasing, 800 F.2d at 1524. We find Coastal's attempts to distinguish its case unpersuasive. Moreover, absent en banc consideration, we must refuse Coastal's request to reconsider this issue. See Long v. Bureau of Economic Analysis, 646 F.2d 1310 (9th Cir.), vacated and remanded on other grounds, 454 U.S. 934 (1981) (prior published authority may not be overruled except through en banc procedure).

We conclude that Coastal's other challenges to the emergency revocation order are equally unpersuasive. The order is the result of a 2-month long in depth investigation of Coastal's policies and procedures by the F.A.A. The order was issued only after a decision that it would only be a matter of time before a serious accident occurred. The order details numerous violations of various federal aviation regulations. While it is possible that some of the violations may have been corrected as of June 26, the F.A.A. determined that Coastal lacked "the degree of care, judgment, and responsibility required" of a certificate holder. We believe the order adequately explains the revocation on an emergency basis and that there is sufficient support in the record for its issuance. We, therefore, hold that the FAA's emergency order of revocation was not arbitrary or capricious.

Petition for review is DENIED.