William Wise Robinson, Plaintiff-appellant, v. James E. Dow and Philip M. Swatek, Defendants-appellees, 522 F.2d 855 (6th Cir. 1975)

Ronald D. Krelstein, Gerber & Gerber, Memphis, Tenn., for plaintiff-appellant.

Thomas F. Turley, U. S. Atty., Memphis, Tenn., Leonard Schaitman, Anthony J. Steinmeyer, Dept. of Justice, Appellate Section, Civil Div., Washington, D. C., for defendants-appellees.

Before PHILLIPS, Chief Judge, CELEBREZZE, Circuit Judge, and, TAYLOR,^*  District Judge.

ROBERT L. TAYLOR, District Judge.

This appeal is from an order of the District Judge dismissing appellant's complaint requesting the convening of a three-judge court to grant injunctive and declaratory relief in addition to damages. 28 U.S.C. § 2284. Plaintiff attacked the constitutionality of 49 U.S.C. § 1429 on the grounds that the statute permits the Federal Aviation Administration (FAA) to revoke a pilot's license without a prior hearing and because the statute is impermissibly vague in failing to set forth sufficient criteria to govern the use of the Agency's emergency revocation powers. The District Court, observing that the "F.A.A. Administrator is given broad power to protect the public interests and safety in situations that may well immediately involve a threat to the public well being," dismissed the action. The primary issue before the Court on appeal is whether the District Court erred in dismissing plaintiff's petition and request for the convening of a three-judge court. We conclude that the District Court's dismissal was proper and, accordingly, affirm for the reasons set forth below.

On July 26, 1974 the Federal Aviation Administration, acting pursuant to 49 U.S.C. § 1429(a),¹  issued an emergency order revoking appellant's commercial pilot license.²  Pursuant to an appeal lodged with the National Transportation Safety Board (NTSB) under Section 1429(a), a hearing was held before an administrative law judge, who in an opinion dated the following day sustained the charges against appellant but reduced the sanction from revocation of appellant's license to a retroactive suspension of four months. The administrative law judge's decision was affirmed by the NTSB on October 2, 1974. A rehearing was denied by the Board on October 30, 1974 and appellant has failed to seek review of the Board's order in this Court under 49 U.S.C. § 1486.³  This action was filed in the District Court on August 5, five days after invoking the administrative review process and fifteen days before the administrative hearing, and dismissed on October 8.

Initially, we note that the exhaustion doctrine restricts untimely judicial intervention into agency proceedings until the administrative action has run its full course. This principle, which requires no lengthy discussion, is founded upon the belief that the judiciary should give proper deference to that body possessing expertise in areas outside the conventional experience of judges. Far East Conference v. United States, 342 U.S. 570, 574-575, 72 S. Ct. 492, 96 L. Ed. 576 (1952); Note, Jurisdiction to Review Federal Administrative Action: District Court or Court of Appeals, 88 Harv. L. Rev. 980, 985-989 (1975).

Appellant urges that his action challenged the constitutionality of section 1429 and not necessarily its application and, therefore, he should have been exempted from the exhaustion requirement. It is not axiomatic, however, that challenging the constitutionality of a statute on its face as opposed to its application will permit a litigant to bypass the administrative process since under cases such as this "the effect would be that important and difficult constitutional issues would be decided devoid of factual content . . ." Dubois Clubs v. Clark, 389 U.S. 309, 312, 88 S. Ct. 450, 452, 19 L. Ed. 2d 546 (1967); Delzer Construction Co. v. United States, 487 F.2d 908 (8th Cir. 1973). The DuBois doctrine would appear especially controlling here since appellant's two principal issues, the prehearing suspension procedure and an alleged absence of criteria for invoking the emergency procedures, are necessarily intertwined with the factual setting. Moreover, imposing the exhaustion requirement under the facts of this case does not leave appellant without a forum in which to litigate his constitutional claims, as 49 U.S.C. §§ 1485(a), 1486(a) provide significant procedural safeguards with ultimate review in the Court of Appeals. It is clear that in this latter forum the litigant is free to raise his constitutional issues. Air East, Inc. v. NTSB, 512 F.2d 1227 (3rd Cir., 1975).

It logically follows that once the Board has entered its final order and the administrative process is complete, review lies exclusively in the Court of Appeals under 49 U.S.C. § 1486(a), where the findings are examined under the substantial evidence test. Appellant chose not to pursue this procedure. In this posture, the Administrator's order is not subject to collateral attack in the district court. Myers v. Bethlehem Shipbldg. Corp., 303 U.S. 41, 48-50, 58 S. Ct. 459, 82 L. Ed. 638 (1938); Kesinger v. Universal Airlines, Inc., 474 F.2d 1127, 1131 (6th Cir. 1973); Oling v. Air Line Pilots Association, 346 F.2d 270, 276 (7th Cir. 1965); 88 Harv. L. Rev. at 982.⁴ 

Under the circumstances of this case we find no error in the District Court's failure to convene a three-judge court and dismissal of appellant's complaint.

The judgment of the District Court is affirmed.