AIR ONE HELICOPTERS, INC., a California corporation v. FEDERAL AVIATION ADMINISTRATION
No. 94-70245
United States Court of Appeals, Ninth Circuit
June 12, 1996
88 F.3d 880
Argued and Submitted Feb. 15, 1996.
Even if we were to give credence to Eric B.‘s argument-which we do not-Eric B. again fails to demonstrate, or even mention, any prejudice suffered from the acts of which he complains.
Accordingly, we affirm the ruling by the district court.22
LEAVY, Circuit Judge, concurring:
I concur in the result reached by the majority on all substantive issues, and agree that the judgment of the district court should be affirmed. I write separately, however, because I see no need to discuss “excludable time” or the defendant‘s implicit consent to exceeding the thirty-day statutory limit. As we are agreed that the trial was within the time allowed by the statute, discussion of excludable time and consent have nothing to do with the outcome and are, therefore, mere dicta.
Even if the issue of speedy trial depended on our consideration of implied consent, I see no basis for criticism of defense counsel. No one suggests that she made any false statements to the court or anyone else. When October 14 was set as the trial date, she had a pending appeal of the magistrate judge‘s denial of her motion for release from custody. If she had been successful on the appeal, the speedy trial issue would have gone away. The court asked, “Do you expect to go to trial within the thirty days’ time?” She answered, “If he‘s in custody, yes, I would.”
On the morning of trial counsel moved to dismiss for violation of the Speedy Trial Act. She argued that under United States v. Andy, 549 F.2d 1281 (9th Cir.1977), the act had been violated. The trial court questioned defense counsel‘s timing of the motion, with the admonition that “there is an expense in getting all these people here.” In denying the motion, the trial court did not find a waiver of the time limits.
Congress passed the speedy trial provision, the President signed it, the United States Attorney decided what charge to make, whom to charge, and when to take the accused into custody. An assistant United States attorney contended that a trial on October 14 was within the time limit. The district court set that date, and we have affirmed. We do not expect a twelve year old child to tell us how to obey the statute, nor should we expect an assistant federal defender to volunteer advice to the government or to the court on how to avoid a dismissal of the charge.
We grant review and end the bureaucratic gridlock. We reverse the FAA‘s denial of Air One‘s application, and direct the FAA to register the helicopter showing Air One as its owner.
Kenneth G. Caplan, Federal Aviation Administration, Washington, D.C., for respondent.
Ronald E. Werner and Denice N. LeBourveau, Werner, Nabb & LeBourveau, San Jose, California, and Patricia E. Fox, Sunnyvale, California, for petitioner.
Before: REINHARDT, THOMPSON and O‘SCANNLAIN, Circuit Judges.
DAVID R. THOMPSON, Circuit Judge:
Air One Helicopters, Inc. (Air One), the undisputed owner of a helicopter, has been ensnared in webs of bureaucratic regulation1
I
FACTS
Air One bought the helicopter, a Sikorski S-58T, serial number 58-1626, in 1990 from a Spanish company, Helisca Helicopters, S.A. (Helisca), and attempted to register the aircraft with the FAA pursuant to federal law and FAA implementing regulations. See
In 1992, the FAA issued an opinion letter which stated that Air One‘s helicopter was not eligible for registration because the aircraft was still registered in Spain. An aircraft cannot have dual registration under the Chicago Convention on International Civil Aviation (Chicago Convention). See 61 Stat. 1180, T.I.A.S. 1591 (December 7, 1944). The FAA instructed Air One to obtain from the Direccion General de Aviacion Civil (DGAC), Spain‘s national aircraft registry, a statement that the helicopter‘s Spanish registration was no longer valid. Without such a statement, the FAA deemed Air One‘s helicopter ineligible for registration in the United States.
Air One unsuccessfully petitioned the DGAC in Spain for a statement of de-registration. The DGAC refused to provide such a statement because the registry showed a lien on the helicopter in the name of a Norwegian corporation, Sameiet Heli Invest I (Sameiet). The DGAC insists Air One must
Sameiet, however, was never a corporate entity registered under Norwegian law or elsewhere, and it no longer exists in any form. Therefore, there is no possibility that Air One will ever be able to obtain the official corporate document from Sameiet which the DGAC in Spain demands.
Air One has diligently attempted to get the DGAC to de-register the aircraft without such a statement, but the DGAC has steadfastly resisted these efforts. Air One provided the DGAC with a sworn affidavit from Asmud Simonson, the President of the parent company of Sameiet, stating that Helisca had paid Sameiet in full for the helicopter. The record indicates that Simonson “formed” Sameiet for the sole purpose of buying and selling this particular helicopter. Although he used the Sameiet name in its corporate form for the transaction, he did not incorporate Sameiet under Norwegian law, or anywhere else. As a result, there never were any officers or directors of Sameiet, and it never had a corporate seal. There is absolutely no way it can provide the official corporate document the DGAC demands.
Simonson‘s affidavit explaining the circumstances was deemed insufficient by the DGAC, which again demanded a corporate document. Air One has since enlisted the assistance of the United States Embassy in Madrid, but it was unable to persuade the DGAC to de-register the helicopter. Air One, with the cooperation of Simonson and Helisca, retained legal counsel in Spain. The attorneys advised Air One that bringing a court challenge there will be unsuccessful because of the Spanish judiciary‘s deference to the DGAC‘s administrative decisions and that a court challenge might take up to ten years.
Air One filed two registration applications with the FAA explaining these circumstances and including all of the relevant correspondence. Each time, the FAA has responded with letters stating Air One‘s helicopter is ineligible for registration in the United States unless Air One obtains a de-registration statement from Spain.
II
DISCUSSION
The first question we consider is whether we have jurisdiction to entertain Air One‘s petition for review. The FAA argues the position it has taken in its opinion letter and in its two additional letters is not reviewable because these letters do not constitute “final agency action” within the meaning of section 1006(a) of the Federal Aviation Act,
Whether or not the letters amount to final agency action, we are not precluded from reviewing the FAA‘s failure to register the helicopter. The FAA has admitted that any further attempts by Air One to obtain a different decision will be futile. It is a common rule of judicial economy that we will not require a party to exhaust administrative procedures when exhaustion would be futile. SAIF Corp./Oregon Ship v. Johnson, 908 F.2d 1434, 1440-41 (9th Cir.1990). Here, there is no question it would be futile for Air One to attempt to persuade the FAA to change the position it clearly sets forth in the letters. Accordingly, we will treat the letters as final agency action and consider the merits of Air One‘s petition for review.
Agency decisions may be set aside only if “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”
The FAA contends that its decision cannot be an abuse of discretion because it lacks any discretion to register Air One‘s helicopter so long as the helicopter is registered in Spain. The FAA argues that this is a basic
Chapter III, Article 18 of the Chicago Convention provides: “An aircraft cannot be validly registered in more than one State, but its registration may be changed from one State to another.” Id. (emphasis added). The FAA has adopted regulations to determine the validity of a foreign registration. See
We hold the FAA‘s decision refusing to register Air One‘s helicopter is contrary to law, because the Spanish registration is no longer valid.
The FAA based its decision on
Air One cannot meet this evidentiary burden. But the reason it can‘t is not because the lien is valid, but because the appropriate Spanish bureaucrat won‘t say the lien is no longer valid-even though everyone concerned knows that it is no longer valid. The appropriate Spanish official refuses to say whether the lien is no longer valid unless he receives a document from the abortive Norwegian “corporation.” That document, however, is not only impossible to provide, it would add nothing of substance to what is already before the DGAC. On the basis of the record, there can be no doubt the lien has been discharged, is no longer valid, and the helicopter‘s registration in Spain is at an end.
Further delay would serve only to diminish even more the value of Air One‘s ownership interest in the helicopter. While Air One has not presented the statement by the foreign official referred to in
III
CONCLUSION
Air One‘s petition for review is granted. The FAA is ordered to register the Sikorski S-58T helicopter, serial number 58-1626, showing Air One Helicopters, Inc. as the owner.
REVIEW GRANTED.
O‘SCANNLAIN, Circuit Judge, dissenting:
I respectfully dissent. While I empathize with Air One‘s plight, I conclude that (1) this court lacks jurisdiction to entertain Air One‘s petition for review, (2) the court lacks authority to rule that the Spanish registration is invalid (and has erred by doing so without applying Spanish law), and (3) the majority‘s opinion ordering the FAA to register Air One‘s helicopter in the United States directly conflicts with both a statute and a treaty.
I
The appropriate jurisdictional test is that outlined in Air California v. U.S. Dept. of Transportation, 654 F.2d 616 (9th Cir.1981). In that case, this court stated that under
Air One argues that the FAA letters in this case are final orders because they effec-
The majority states that “[w]hether or not the [FAA] letters amount to final agency action,” this court has jurisdiction to review the FAA‘s alleged “failure to register the helicopter” because exhaustion of administrative remedies would be futile. In support of its conclusion on this point, it states that “[t]he FAA has admitted that any further attempts by Air One to obtain a different decision will be futile.”
I cannot agree with this latter statement. The FAA has not conceded that exhaustion of administrative remedies would be futile; to the contrary, the FAA has said that it would accept a final judgment or decree from a court of competent jurisdiction in Spain that the registration is invalid. See Appellee‘s Brief at 26-27; Jan. 3, 1996 memorandum from Kenneth G. Caplan, Special Attorney to the U.S. Attorney General. The relevant federal regulations state that such a judgment would constitute “satisfactory evidence of termination of the foreign registration.”
Accordingly, Air One has a remedy available to it, and the FAA‘s letters do not “impose an obligation, deny a right, or fix some legal relationship as a consummation of the administrative process.” Air California, 654 F.2d at 621. For that reason, they “are not final and reviewable,” id., and this court lacks jurisdiction to hear Air One‘s appeal.
II
Even if this court has jurisdiction to consider Air One‘s appeal, I do not believe that we have authority to hold that the Spanish registration is invalid.
The majority states that “we can determine when and if a registration in a foreign country remains valid.” Op. at 883 (emphasis added). In doing so, the majority apparently relies on
satisfactory evidence of termination of the foreign registration may be-
....
(2) A final judgment or decree of a court of competent jurisdiction that determines, under the law of the country concerned, that the registration has become invalid.
More important, however, is the fact that the majority does not even purport to apply Spanish law in holding the Spanish registration invalid, as is clearly required by the regulation. Even assuming that we are a “court of competent jurisdiction” to decide the issue, the parties have not provided any briefing on Spanish law, and we should not decide such an issue in a vacuum.
III
Finally, the majority‘s opinion also forces the FAA to register Air One‘s helicopter even though the FAA can do so only by violating both a statute and a treaty. First, under federal law, “[a]n aircraft [owned by a citizen of the United States] may be registered [in the United States] only when the aircraft is-(1) not registered under the laws of a foreign country....”
Second, as the majority notes, Chapter III, Article 18 of the Chicago Convention states that “[a]n aircraft cannot be validly registered in more than one State....” The only Spanish authority yet to rule on the subject has stated that the aircraft is in fact “validly registered” in Spain. Accordingly, the majority‘s opinion clearly places the United States in violation of this treaty. In addition, the majority‘s decision to invalidate the Spanish registration, before the Spanish courts have even been given an opportunity to rule on the subject, contravenes basic principles of international comity. Finally, the majority‘s opinion provides a dangerous precedent which may encourage foreign courts to rule, in subsequent cases, that aircraft registered by the FAA in the United States are not in fact “validly” registered here. The practical effect of the majority‘s ruling is thus to render the treaty a virtual nullity.
IV
There is no question that Air One has been the victim of a protracted, intercontinental bureaucratic nightmare, and I empathize completely with Air One‘s plight and with the majority‘s strong desire to remedy it. However, federal courts are courts of limited jurisdiction. Because of that fact, we sometimes confront cases, such as the one at bar, where we simply lack authority to act. And even if we do act, we must always do so in a manner consistent with federal laws and regulations. Because I fear that the majority‘s opinion may be inconsistent with these principles, I respectfully dissent.