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O'DONNELL v. BOND

March 27, 1981

John J. O'DONNELL et al., Plaintiffs,
v.
Langhorne BOND et al., Defendants



The opinion of the court was delivered by: GREEN

MEMORANDUM OPINION

Before the Court is the motion of the federal defendants, the Federal Aviation Administration (the "FAA") and its Administrator, Langhorne Bond, to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. The defendants assert that exclusive jurisdiction over this cause vests in a court of appeals under 49 U.S.C. § 1486(a) and not in this court, and, alternatively, that the claims are neither justiciable nor ripe for review. The intervenor-defendants *fn1" by motion and memoranda, support defendants' position. The plaintiffs, John J. O'Donnell, President of the Air Line Pilots Association, International ("ALPA") and ALPA, oppose dismissal on the basis that there is an adequate statutory means, pursuant to 28 U.S.C. § 1337, for this District Court to review the defendants' alleged violations of duty and that, in any event, 49 U.S.C. § 1486(a) does not apply to agency action unsupported by a record adequate for appellate review.

 The complaint, in two causes of action, invokes the jurisdiction of this court to review generally the procedures by which defendants certify aircraft under the Federal Aviation Act ("the Act"), 49 U.S.C. § 1301 et seq., and requests that defendants be enjoined from issuing or maintaining in effect the certification previously granted for DC-9-80 aircraft manufactured by McDonnell Douglas Corporation, one of the intervenors.

 The first cause of action ("count one") is a broad challenge to the regulations promulgated by the FAA to implement its statutory responsibilities to issue certification for those aircraft found to be "of proper design, material, specification, construction, and performance for safe operation ...," 49 U.S.C. § 1423(a)(2). Plaintiffs contend that the FAA certification process here has not complied with the requirements of the Act "to promote safety of flight of civil aircraft," 49 U.S.C. § 1421(a), in that FAA has permitted undue manufacturer dominated influence, arbitrarily excluded plaintiffs and others from participation, rejecting their proposals, withheld other critical safety data, failed to consider appropriately safety requirements and to perform post-certification oversight obligations, all required by the Act.

 Plaintiffs not only challenge the present FAA certification rules and regulations as defective but seek the development of new regulations, asking the court to direct FAA to comply with the Act "by formulating and complementing a program which will assure an objective certification process consistent with the requirements of the Act." *fn2" See Plaintiffs' Memorandum in Opposition to Motion to Dismiss at 2-3 ("Opposition"):

 
Certification procedures are so defective and unlawful that the record of the certification process cannot be relied on to assess whether or not statutory standards of safety have been met.
 
..., plaintiffs seek to enjoin the Administrator to establish certification and post-certification procedures which comply with his statutory duties.

 In count two of the complaint, ALPA avers that the Administrator has conducted a legally defective certification process for the McDonnell Douglas Corporation's DC-9-80 aircraft, alleging that the process followed by the FAA in its issuance of that certificate was deficient, citing examples of "errors" by the FAA, and seeking a curative formulation process and application. See Complaint §§ 32-36, and paragraph (1) of the request for relief.

 Nonetheless in their Opposition, at 8, plaintiffs disavow any intent "to set aside or modify the certification of any aircraft or component." Asserting now that their challenge is not to the issuance of any particular type certificate but instead to the FAA's overall conduct in establishing certification procedures, ALPA characterizes its action as seeking direct changes in the procedures being applied to the ongoing certifications of aircraft and components, that is, that the Administrator "restructure the entire process...." Opposition at 8, 14.

 Notwithstanding plaintiffs' declarations, count two clearly, precisely, and repeatedly challenges a unique certification: that FAA directive certificating the DC-9-80 in August 1980 after lengthy administrative proceedings. The complaint is replete with references to the type certification for the DC-9-80 ("McDonnell Douglas Super 80"). See Complaint, §§ 29, 30, 31, 32, 33, 34, 35, 36, 36a, b, 37, 38 (by inference), 39, 40, 41, 42-43 (by inference) and 45. ALPA specifically requests that the court enjoin the Administrator "from issuing or maintaining in effect any type, production and/or airworthiness certificates pursuant to the provisions of the (Act), 49 U.S.C. § 1301, et seq., for McDonnell Douglas Super 80 aircraft, unless and until the Administrator ... formulate(s) and implement(s) a certification process for the McDonnell Douglas Super 80 aircraft which meets the statutory obligations ...." (emphasis added). See Complaint, request for relief, paragraph 1 and its subparts (i) (v) inclusive at 14, 15.

 On February 13, 1981 the court invited statements from the parties as to the effect on this case of forthcoming executive branch actions, i. e., the appointment on February 11, 1981, of a Presidential Task Force ("Task Force") to review and study the safety of the operation of new generation commercial jet aircraft by two-person cockpit crews, rather than three-person, a matter of "debate between ALPA and the aircraft manufacturers." Department of Transportation press release, February 11, 1981. While the release is not entirely illuminating, it appears that, at least initially, the Task Force's scrutiny will be limited only to the crew complement issue. The aircraft in question include the Boeing 757 and 767, now under development, and the McDonnell Douglas DC 9 "Super 80" which latter aircraft was certified for commercial passenger operations with a two pilot crew. That action is now subject to review by the Task Force whose recommendations are due within 120 days of appointment. According to that press release, Secretary of Transportation Drew Lewis declared that "Mr. O'Donnell has pledged that ALPA will abide by the recommendations of the task force." Id. at 1. It is not known whether ALPA has waived any rights it might possess to seek judicial review of the ultimate federal decision on crew complement. "Other safety issues specified by ALPA will be addressed by the new FAA Administrator, when appointed and confirmed," Id. at 2.

 The plaintiff, in requesting an indefinite stay of the within proceedings, asserts that although the Presidential Task Force deals only with the crew complement issue, the scope of the present litigation goes beyond that issue and includes other certification matters.

 Intervenor-defendant ATA, contending that ALPA has not specifically charged the crew complement question among the many deficiencies assessed against the FAA, (although conceding such complaint may exist inferentially), urges resolution of the pending motion to dismiss on jurisdictional grounds. Intervenors McDonnell Douglas Corporation and Swissair concur.

 The federal defendants continue to seek dismissal averring that nothing resulting from the present actions of the executive branch can alter the jurisdictional ...


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