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Those Amazing Performers LLC v. International Council of Air Shows

United States District Court, N.D. Indiana, Hammond Division

November 15, 2019

THOSE AMAZING PERFORMERS, LLC, d/b/a Team AeroDynamix, et al. Plaintiffs,
v.
INTERNATIONAL COUNCIL OF AIR SHOWS, Defendant.

          OPINION AND ORDER

          JOSEPH S. VAN BOKKELEN UNITED STATES DISTRICT JUDGE

         A. Legal Standard

         Those Amazing Performers, LLC, d/b/a Team AeroDynamix (“AeroDynamix”) sued International Council of Air Shows, Inc. (“ICAS”) for its role in investigating and reporting to the Federal Aviation Administration (“FAA”) on AeroDynamix performance. ICAS has moved to dismiss for lack of subject matter jurisdiction arguing that (1) this matter falls under the exclusive jurisdiction of the courts of appeals pursuant to 49 U.S.C. § 46110 because the FAA letter dated July 9, 2015, is a final order, and (2) all claims are inextricably intertwined with the final order of the FAA.

         B. Background Facts

         AeroDynamix is an aerobatic air show team. Statements of Aerobatic Competency cards (“SAC cards”) are required by the FAA to perform airshows. On March 29, 2015, two AeroDynamix pilots were involved in an incident during an airshow performance in Alabama. Following this incident, ICAS led an investigation into AeroDynamix's safety procedures. ICAS has been delegated authority by the FAA to investigate and evaluate pilots under the Aerobatic Competency Evaluation Program specifically designed to regulate the issuance of SAC cards.

         After its investigation, ICAS recommended to the FAA the SAC cards of all ten of AeroDynamix's pilots should be revoked. The FAA rescinded the SAC cards according to ICAS's recommendations.

         ICAS investigated AeroDynamix again on April 17, 2015. Its recommendations to the FAA after this investigation suggested that, before AeroDynamix pilots be re-issued their SAC cards, among other things, it should sign an agreement limiting the number of pilots flying during a show to four, and all pilots should sign an agreement indemnifying ICAS. The FAA, upon review of ICAS's memorandum, accepted and implemented these recommendations in a letter issued on July 9, 2015.

         AeroDynamix is suing ICAS for its role in the investigation, its motives, and the injury it allegedly caused AeroDynamix.

         C. Final Order

         The courts of appeals have “exclusive jurisdiction to affirm, amend, modify, or set aside any part of the [FAA's] order.” 49 U.S.C. § 46110(c). An order must be final to be reviewable. Sima Products Corp. v. McLucas, 612 F.2d 309, 312-313 (7th Cir. 1980). Orders have been construed very broadly under the Federal Aviation Act and for purposes of direct review. Id.

         AeroDynamix argues 49 U.S.C. § 46110 does not apply here because the FAA's July 9, 2015, letter was not a final order. Courts have consistently looked at two factors to determine an order's finality: (1) whether the agency decision imposes an obligation, denies a right, or fixes some legal relationship, and (2) marks the consummation of the agency's decision-making process. See Friedman v. FAA, 841 F.3d 537 (D.C. Cir. 2016); Green v. Brantley, 981 F.2d 514 (11th Cir. 1993); Pucciariello v. United States, 116 Fed.Cl. 390 (Fed. Cl. 2014); Ligon v. Lahood, 614 F.3d 150 (5th Cir. 2010); Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006).

         Here, the FAA's July 9, 2015, letter imposes obligations upon AeroDynamix to re-evaluate its issuance of SAC cards. For example, AeroDynamix must enter into an agreement reducing the number of aircrafts in its air shows before a re-evaluation of its SAC cards can begin. In addition, one of the pilot's SAC card revocation was extended to December 31, 2015, and only then be eligible for re-evaluation. (DE 66-1 p. 6). This denies the pilot's right to a SAC card.

         Furthermore, the wording of the FAA's July 9, 2015, letter clearly shows the consummation of the agency's decision-making process: “After consultation and deliberation, AFS-800 has completed our FAA internal investigation . . . [w]e have completed our review of the submitted ICAS recommendations.” (DE 66-1 pp. 5-6).

         Therefore, since the FAA letter has denied rights, imposed legal obligations, and marks the consummation of the FAA's decision-making process, it is considered a final order and ...


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