Section 702 of Title V provides that judicial review shall be available to a "person" who suffers legal wrong because of an agency action or who is adversely affected by an agency action. Section 701(b)(2) provides that, as used in that Chapter, the word "person" has the meaning given to it by 5 U.S.c. $551. 5 U.S.C. $551(2) provides as follows: "Person" includes an individual, partnership, corporation, association, or public or private organization (Emphasis added.) Thus, the express language of the Administrative Proċedure Act makes it clear that Congress did not intend for government agencies to seek judicial review of the orders of other government agencies. Where, as here, the missions of the two agencies are the same, the logic of that position is compelling. The exclusion of government agencies from the group of "persons" who may seek judicial review of administrative orders under the Administrative Procedure Act has been recognized by several state courts. See e.g., Mead v. State Dept. of Health, W. & R. Serv., Blind Div., 532 P.2d 611 (Nev. 1975), wherein the court stated as follows: It is the rule in the federal system action. 532 P.2d at 612, citing Lee v. C.A. B., supra. See also, State ex rel Broadway Petro. Corp. v. City of Elyria, 247 N. E. 2d 471, 475 (Ohio 1969) and cases cited therein. Since Congress has the power to formulate conditions under which resort to the courts may be had, a determination as to what parties have standing to obtain review of administrative decisions and orders must be made by reference to the terms of the relevant statute. Leavers v. Anderson, 326 U.S. 219, 221 (1945); American Power & Light v. S.E.C., 325 U.S. 385 (1945). The terms of the statute here involved as well as the history show clearly that the FAA does not presently have authority to seek judicial review of decisions of the NTSB. Based upon this history and the cogent reasons for the FAA's present lack of standing, it is submitted that there is no reason for Congress to change its position on this point. It is submitted that there can be no possible reason advanced by the FAA which would justify the change which it suggests. Little would be gained by the FAA and much would be lost to the private individual were the FAA to be granted the standing it seeks. In reviews of agency decisions by the courts of appeal the test which is applied is the substantial evidence test which was discussed above. In applying that test, the court will rarely disturb a decision rendered by an administrative agency. The truth of this proposition is dramatically demonstrated by the many CAB and NTSB decisions in the safety enforcement area which have been appealed to the courts of appeal by those who currently have standing. appealed to the courts of appeal. See e.g., Stern v. Butterfield, 529 F.2d 407 (5th Cir. 1976); Air East, Inc. v. NTSB, 512 F.2d 1227 (3rd Cir.), cert. denied, 423 U.S. 863 (1975); Foreign Study League v. CAB., 475 F.2d 865 (10th Cir. 1973); Haines v. Dept. of Transportation, 449 F.2d 1073 (D.C. Cir. 1971); Doe v. Dept. of Transportation, 412 F.2d 674 (8th Cir. 1969); French v. C. A. B., 475 F.2d 865 (10th Cir. 1973); Nadiak v. C.A. B., 305 F.2d 588 (5th Cir. 1962), cert. denied, 372 U.S. 913 (1963). A balancing of the gain to be had by the FAA against the prejudice which would be suffered by the individual airman shows Clearly that the grant of standing to the FAA would result in clear abuses. In aviation safety enforcement proceedings the FAA is represented by its staff attorneys and, on appeal, by the attorneys employed by the Department of Justice. Under such circumstances, the cost of processing an appeal is of little or no consequence to the FAA. On the other hand, an appeal to the courts of appeal is a tremendously expensive and time consuming proposition which could easily devastate the finances of a private individual. In addition to the above-referenced prejudice to the individual, standing for the FAA to petition the courts of appeals would also be a disservice to the taxpayers. In this context, it is important to realize that when a case is before a court of appeal on a petition for review from an order of the NTSB, three separate federal government agencies are involved which expend considerable time and manpower. Such an appeal involves active participation by the FAA, the NTSB, and the attorneys from the Appellate Section of the Civil Division of the Department of Justice. A bill which would greatly increase the number of petitions for review filed with the courts of appeal is an inflationary bill which would be detrimental to the economy. Aside from the inflationary aspects of having three separate government agencies involved, there is an additional problem which should be mentioned. As can be seen from the above-related history, the Department of Justice has been reluctant to handle petitions for review on behalf of the FAA. Undoubtedly, this reluc tance is based, in large part, on the untenable position in which such a petition for review would place the Department of Justice. When a petition for review is brought before a court of appeal, it is necessary for government agencies like the NTSB and the FAA to be represented in court by the Department of Justice. If the FAA were to be granted standing to petition for review of NTSB orders, the Department of Justice would be faced with the inexorable dilemma of deciding which agency it should represent. Any petition for review filed by the FAA would be a direct challenge to an order of the NTSB. Under such circumstances, the two agencies are clearly in an adversary posture and there is really no solution to the problem of how representation by the Department of Justice would be handled. In summary, the standing which the FAA now seeks has wisely been denied by Congress in the past. In addition, it is clear that such standing is not appropriate. provision of the proposed bill. Consequently, NBAA opposes this XII. SECTION 6--CHANGES IN DISTRICT COURT PROCEDURE Section 6 of the proposed bill would amend Section 903(b) of the Act, 49 U.S.C. $1473(b), to provide that (1) findings of the FAA and the NTSB as to liability and the appropriate amount of civil penalty are not judicially reviewable and (2) the exclusive jurisdiction of the United States District Courts no longer includes civil which relate to these changes have also been set out. In summary, there is no valid reason for taking jurisdiction over civil penalty actions involving amounts less than $10,000 away from the United States District Courts and vesting that jurisdiction in the FAA and the NTSB. Consequently, NBAA opposes the amendments provided by Section 6 of the proposed bill. In conclusion, H.R. 7488 is a bill which is ill-conceived and poorly drafted. The amendments proposed in it would serve little or no purpose in assisting the FAA in its enforcement obligations. At the same time, the bill is highly inflationary and contains numerous provisions which are detrimental to members of the public who engage in air navigation. of this bill. Consequently, NBAA respectfully opposes passage |