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Avia Dynamics, Inc v. Federal Aviation Administration

April 19, 2011

AVIA DYNAMICS, INC., PETITIONER
v.
FEDERAL AVIATION ADMINISTRATION, RESPONDENT



On Petition for Review of an Order of the Federal Aviation Administration

The opinion of the court was delivered by: Karen Lecraft Henderson, Circuit Judge:

Argued October 18, 2010

Before: HENDERSON and GRIFFITH, Circuit Judges, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge HENDERSON.

Petitioner

Avia Dynamics, Inc. (Avia), a manufacturer and distributer of aircraft parts, seeks review of an "Unapproved Parts Notification" (UPN) posted by the Federal Aviation Administration (FAA) on its website.*fn1 The UPN declared that Avia Dynamics had manufactured certain aircraft parts without FAA production approval. Because Avia filed its petition after the sixty-day statutory time limit had elapsed and has failed to demonstrate "reasonable grounds" for missing the deadline, we deny its petition as untimely.

I.

The FAA has statutory responsibility to enforce minimum safety standards in civil aviation. 49 U.S.C. § 44701(a)(1). As part of its statutory mandate, the FAA shall issue a "type certificate" for any "aircraft, aircraft engine, or propeller, or . . . appliance" that meets its standards. 49 U.S.C. § 44704(a)(1). Replacement parts and parts used to modify a "type certificated" aircraft must be manufactured according to FAA specifications, except under certain limited circumstances. 14 C.F.R. § 21.303(a)--(b). In general, a parts manufacturer must obtain a "Parts Manufacturer Approval" from the FAA by providing evidence that its "design of the part" meets FAA airworthiness requirements and by certifying that it has a "fabrication inspection system" in place to ensure continued compliance with FAA requirements. See generally id. § 21.303.

In 1993, the FAA created the "Suspected Unapproved Parts" (SUP) Program to prevent aircraft parts manufactured without a Parts Manufacturer Approval-known as "unapproved parts"-from being installed on type certificated aircraft. FAA Advisory Circular 21-29C, Detecting and Reporting Suspected Unapproved Parts, ¶¶ 3(b)(1), 3(o), 5(a)--(b) (July 22, 2008). Through the SUP Program, the FAA identifies a suspected unapproved part in the market, investigates and then takes one of several actions. FAA Order 8120.16, Processing Reports of Suspected Unapproved Parts, ch. 4, ¶ 2 (July 15, 2008) (Order 8120.16). The actions include initiation of a civil enforcement action against the non-compliant party and/or publication of a "Field Notification" on the FAA's website to notify the aviation community of the unapproved part. Id. ch. 4, ¶¶ 2(i), 4(e). Avia's petition involves one such unapproved parts investigation.

The FAA opened an SUP investigation on October 23, 2006 after an FAA inspector discovered that a type of aircraft current limiter*fn2 in Avia's inventory appeared to have been manufactured without FAA approval. The investigation focused at first on Elliptical Systems, Inc., the manufacturer of the current limiter, but it soon shifted to Avia as it became apparent that Elliptical fabricated the parts according to Avia's specifications. The scope of the investigation changed too, branching out from current limiters to include overhead light switches, also manufactured by Elliptical, coffee maker brew trays made by Avia and other aircraft parts not involved herein. On August 6, 2007, after nearly ten months of investigation, the FAA concluded that the current limiters, overhead light switches and coffee maker brew trays in Avia's inventory were all "unapproved parts."

Meanwhile, the FAA took steps to initiate an enforcement action against Avia. On July 24, 2007, it issued a letter of investigation to Avia, informing the company that it was investigating "a suspected unapproved parts allegation" and requesting the company's cooperation. Letter from Sandy K. Yamane, Aviation Safety Inspector, Van Nuys Mfg. Inspection Dist. Office, FAA, to Gary Szerman, Avia-Dynamics Corp. (July 24, 2007). The FAA asked Avia to explain the reason for its non-compliance, detail what actions it took to prevent recurrence and identify any relevant mitigating circumstances. After Avia's first response, which the FAA dismissed as "unacceptable,"Avia submitted a comprehensive report on February 27, 2008, entitled "Root Cause Analysis and Corrective Action Report." Letter from Sandy K. Yamane, Aviation Safety Inspector, Van Nuys Mfg. Inspection Dist. Office, FAA, to Gary Szerman, Avia-Dynamics Corp. (Aug. 22, 2007). The FAA signaled its satisfaction with Avia's submission in a letter dated April 7, 2008, informing Avia that "this matter does not warrant legal enforcement action" and that "[i]n lieu of such action and in consideration of your corrective action commitments . . . , we are issuing this letter of correction which will be made a matter of record." Letter from Christopher B. Bergen, Manager, Van Nuys Mfg. Inspection Dist. Office, FAA, to Gary Szerman, Avia-Dynamics Corp. (Apr. 7, 2008).

More than one year later, on May 20, 2009, the FAA official coordinating the SUP investigation of Avia recommended to his superior that the case be closed, adding that "[a]n Unapproved Parts Notification (UPN) has been written for these three (3) parts and forwarded for release." Memorandum from Tony Peplowski, SUP Coordinator, FAA, to Robert Franklin, SUP Focal Point, FAA, SUP Case 2007-00016-Recommendation for Case Closure (May 20, 2009). The UPN announced that "Avia-Dynamics produced and sold replacement coffeemaker brew trays . . . without an FAA production approval" and that Elliptical manufactured current limiters and overhead reading light switches without production approval and then "sold these parts to Avia-Dynamics Corporation, . . . a distributor of aviation parts." Unapproved Parts Notification, No. 2009-200700016 (June 22, 2009). The UPN urged members of the aviation community to search their aircraft and inventories for any of the unapproved parts "bought from Avia-Dynamics Corporation" and "quarantine[]" the parts "to prevent installation until a conclusive determination can be made about their eligibility for installation." Id. Although the UPN was dated June 22, 2009, it was not posted on the FAA website until August 27, 2009. Id.

Avia first learned of the UPN on September 7, 2009. On that date, one of Avia's customers called Avia's president, Gary Szerman, to inform him that the FAA had published the UPN on its website. According to Szerman, standard industry practice is to "black-list" any company named in a UPN and Avia attributes a subsequent "significant downturn in [its] sales" to the FAA's action. Szerman Decl.ΒΆΒΆ 17, 23, Avia Dynamics, No. 09-1278 (D.C. Cir. Dec. 10, 2009). Avia sought legal advice on October 26, 2009. On October 27, 2009, Avia petitioned for review of the FAA order but ...


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