Jack Ligon v. Ray LaHood

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
August 9, 2010 N o . 09-10860 Lyle W. Cayce Clerk

J A C K W LIGON, P la in t iff - Appellant v. R A Y LAHOOD, U S Department of Transportation - Federal Aviation A d m in is tr a tio n , D e fe n d a n t - Appellee

A p p e a l from the United States District Court fo r the Northern District of Texas

B e fo r e JOLLY, SMITH, and OWEN, Circuit Judges. E . GRADY JOLLY, Circuit Judge: J a c k Ligon appeals the district court's dismissal of his claim under the Age D is c r im in a t io n in Employment Act (ADEA). The district court dismissed Ligon's A D E A challenge to a Federal Aviation Administration (FAA) order reducing his a r e a s of authority as a Designated Engineering Representative (DER) because it concluded that Ligon, as a DER, was not an FAA employee within the meaning o f the ADEA. Although this may be true, we conclude, more fundamentally, that t h e district court lacked jurisdiction to address Ligon's ADEA claim because that c la im was inescapably intertwined with a challenge to the FAA order itself, and t h e courts of appeals, not the district courts, have exclusive jurisdiction over

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No. 09-10860 s u c h challenges. Accordingly, we reverse in part, affirm in part, and remand w it h instructions for the district court to dismiss Ligon's claim for lack of subject m a t t e r jurisdiction. I. U n d e r the Federal Aviation Act, the FAA Administrator "may delegate to a qualified private person" the authority to undertake the "examination, testing, a n d inspection necessary" to issue certificates identifying aircraft as compliant w it h FAA regulations. 49 U.S.C. §§ 44702(d)(1), 44704. The Administrator, t h r o u g h local Aircraft Certification Offices (ACOs), appoints independent c o n t r a c to r s , called DERs, to perform these tasks. 14 C.F.R. § 183.11(c)(1). DERs, though certified by the FAA, are hired by the private aircraft industry to in s p e c t private airplanes. A DER may have several authorized areas of

e x p e r t is e , and may only approve or recommend approval of technical data within h is delegated authority by submitting to the FAA a Statement of Compliance w it h the Federal Aviation Regulations (FAA Form 8110-3). Each DER is subject t o oversight by the FAA, and the ACO is responsible for providing oversight of t h e DERs within its region. The FAA may rescind DER appointments, or choose n o t to renew them, at "any time for any reason the Administrator considers a p p r o p r ia te ." 49 U.S.C. § 44702(d)(2); 14 C.F.R. § 183.15(b). DER certificates are renewed annually. The renewal process is conducted b y an Advisor employed by the FAA and appointed to the DER. The Advisor r e v ie w s the activity the DER completed during the year in each of his designated a r e a s . This review is accomplished by submission of a report of activity by the D E R in annual renewal documents, or through review of the FAA Form 8110-3s s u b m it t e d by the DER during the course of the year. The Advisor is assisted in h is review by the findings and recommendations of Evaluators, who have e x p e r t is e in areas outside the Advisor's expertise and who review the DER's a c t iv it ie s in those areas. See FAA Order 8100.8B ¶ 905 (July 14, 2003). 2

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No. 09-10860 L ig o n was appointed a DER in 1983 after retiring from the FAA. From 1 9 8 3 until 2002, he accumulated more than 540 areas of delegated authority. Prior to 2001, Ligon's annual renewal process was simple, requiring only two to t h r e e hours each year for Ligon to complete the necessary paperwork. This b e g a n to change, however, during the annual renewal process in 2001. Ligon's A d v is o r s , Bill Vickers during 2001-2002 and then Jim Rankin from 2003 fo r w a r d , required Ligon to indicate, in a format of his choice, how many FAA F o r m 8110-3s were issued by him each year in his designated areas. Ligon r e s is t e d this additional work, and sought new Advisors who did not require him t o report his activities. I n 2003, Ligon once again resisted his Advisor's request for a list of his a c t i v it ie s during the year, but eventually provided a rudimentary summary. Ligon's list failed to show any activity in helicopters. During the 2004 renewal p r o c e s s , Ligon again failed to submit any record showing activity in helicopters. He also failed to report any activity in the areas of mechanical or electrical e q u ip m e n t . Ligon was notified that if he did not show activity in these areas in t h e next year his delegated authority in these areas would not be renewed. Ligon responded by writing letters to Fran Cox and Fred Stellar of the FAA, c o m p la in i n g of retaliation and harassment. After receiving no satisfactory

r e s p o n s e to his complaints, Ligon subsequently filed the first of three separate c o m p la in t s with the EEOC on September 8, 2004. During the 2005 renewal process, Ligon again failed to show activity in h e lic o p t e r s , mechanical equipment, or electrical equipment. Consequently, his A d v is o r , Jim Rankin, removed 226 of Ligon's areas of authority for "non-use." Because of continued inactivity, Ligon's areas of authority were further reduced b y an additional 88 areas of authority on April 29, 2008. Ligon again contacted F r a n Cox of the FAA with his concerns, and filed a third complaint with the E E O C in June 2008. 3

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No. 09-10860 O n July 28, 2008, approximately 90 days after learning of the FAA's d e c is io n to further reduce his areas of authority, Ligon filed suit in federal d is t r ic t court, alleging that the FAA's handling of his renewal process and failure t o renew his areas of authority were discriminatory and violated his Fifth A m e n d m e n t due process rights. He sought reinstatement of his areas of

d e le g a t e d authority, damages pursuant to the ADEA, and injunctive relief p u r s u a n t to the ADEA and the Fifth Amendment. After a telephonic hearing on J u ly 24, 2009, the district court dismissed the Fifth Amendment claim based on L ig o n 's counsel's acknowledgment that it lacked merit. The court granted the G o v e r n m e n t 's motion for summary judgment on the ADEA claim, holding that L ig o n had failed to adduce evidence that he was at any time an employee of the F A A . Having decided the case on this basis, the district court concluded that it need not make any decision as to the other issues raised in the FAA's motion fo r summary judgment and motion to dismiss, including the FAA's assertion that t h e court lacked subject matter jurisdiction. L ig o n filed a motion to amend judgment, seeking a transfer of his suit to t h e Fifth Circuit Court of Appeals pursuant to 49 U.S.C. § 46110(a) and Federal R u le of Civil Procedure 59(e). The district court denied this motion. Ligon filed a timely notice of appeal. This court has appellate jurisdiction pursuant to 28 U .S .C . § 1291. II. B e fo r e reaching the merits of Ligon's ADEA claim, we must consider w h e t h e r we have jurisdiction to consider it. If the district court lacked subject m a t t e r jurisdiction over the ADEA claim, we have jurisdiction "merely for the p u r p o s e of correcting the error of the lower court in entertaining the suit." Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986). Neither p a r ty now challenges the district court's jurisdiction over Ligon's ADEA claim, b u t "subject matter delineations must be policed by the courts on their own 4

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No. 09-10860 in it ia tiv e ." Ruhrgas A.G. v. Marathon Oil Co., 526 U.S. 574, 583 (1999). We r e v ie w questions of subject matter jurisdiction de novo. Paulsson Geophysical S v c s ., Inc. v. Sigmar, 529 F.3d 303, 306 (5th Cir. 2008). S e c t io n 46110(a) of the Federal Aviation Act (the Act) vests the courts of a p p e a ls with jurisdiction over challenges to FAA orders: a person disclosing a substantial interest in an order issued by ... t h e Administrator of the Federal Aviation Administration with r e s p e c t to aviation duties and powers designated to be carried out b y the Administrator ... may apply for review of the order by filing a petition for review in the United States Court of Appeals for the D is t r ic t of Columbia Circuit or in the court of appeals of the United S t a t e s for the circuit in which the person resides or has its principal p la c e of business. 49 U.S.C. § 46110(a).1 For the purposes of the Act, the term "order" "has been g iv e n expansive construction," but to be reviewable the order must be final, and t h e r e must be an adequate record for judicial review. Atorie Air, Inc. v. Federal A v ia tio n Admin., 942 F.2d 954, 960 (5th Cir. 1991). To be sufficiently final, the o r d e r "need only be an agency decision which imposes an obligation, denies a r ig h t , or fixes some legal relationship." Id. at 960 (internal quotation omitted). T h e FAA asserts, and Ligon does not contest, that the FAA's notification o f its nonrenewal of his designations is an appealable final order pursuant to the sta tu te. We agree that it is. The letters to Ligon terminating certain

d e le g a t io n s of authority clearly deny a right and fix a legal relationship between L ig o n and the FAA by terminating his ability to examine, test, and inspect in t h o s e areas of authority. The record of the decision not to renew Ligon's

d e le g a t io n s of authority consists of all of the information reviewed by the FAA before the non-renewal decisions, including Ligon's Evaluators'

r e c o m m e n d a t io n s and performance evaluations, the summary of activity

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This jurisdictional grant was previously codified at 49 U.S.C. § 1486(a) (1992).

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No. 09-10860 s u b m it t e d by Ligon, and the letters to Ligon informing him of the nonrenewal o f certain delegations. See Green v. Brantley, 981 F.2d 514, 519 (11th C ir .1 9 9 3 )(h o ld in g that an FAA order revoking a certificate of authority was a fin a l order under the Act); Gaunce v. deVincentis, 708 F.2d 1290, 1292­93 (7th C ir . 1983)(holding that an FAA order revoking the plaintiff's airman certificate c o u ld not be collaterally attacked in federal district court). It is well settled that the review of any order of the FAA Administrator m u s t be taken in a court of appeals. See, e.g., Zephyr Aviation, L.L.C. v. Dailey, 2 4 7 F.3d 565, 571 (5th Cir. 2001) ("The United States Courts of Appeal . . . have `e x c lu s iv e jurisdiction to affirm, amend, modify or set aside' orders of the NTSB o r the FAA.")(quoting 49 U.S.C. § 46110(c)); Merritt v. Shuttle, Inc. (Merritt II), 2 4 5 F.3d 182, 192 (2d Cir. 2001)("Statutes such as Section 46110 . . . preclude d is t r ic t courts from deciding issues that `could and should have been' raised in a n administrative proceeding or at least in a court of appeals, not merely those t h a t were actually considered and necessarily decided in the administrative p r o c e e d in g ." )(q u o t in g City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 339 (1 9 5 8 ))). Specific grants of jurisdiction to the courts of appeals override general g r a n t s of jurisdiction to the district courts. Leal v. Szoeke, 917 F.2d 206, 207 (5 t h Cir. 1990) ("[W]here Congress has provided for review jurisdiction in the c o u r t of appeals, jurisdiction there is exclusive."); accord Carpenter v. Dep't of T r a n s p ., 13 F.3d 313, 316 (9th Cir. 1994); Oling v. Air Line Pilots Ass'n, 346 F.2d 2 7 0 , 276 (7th Cir. 1965) ("[W]here Congress has provided a statutory procedure fo r the review of an administrative order, such procedure is exclusive."), cert. d e n ie d , 382 U.S. 926 (1965). Moreover, district courts lack jurisdiction not only over direct challenges t o FAA orders, but also over damages claims that are "inescapably intertwined w it h a review of the procedures and merits surrounding an FAA order." Zephyr A v ia tio n , 247 F.3d at 572 (internal quotations and alterations omitted); see also, 6

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No. 09-10860 e .g ., Green v. Brantley, 981 F.2d at 521. That is, a plaintiff may not circumvent t h e exclusive jurisdiction of the court of appeals by collaterally attacking an a d m in is t r a t iv e order in a federal district court. Id. In Zephyr Aviation, we r e c o g n iz e d that "parties may not avoid administrative review simply by fa s h io n in g their attack on an FAA decision as a constitutional tort claim against in d iv id u a l FAA officers." 247 F.3d at 572. We ultimately concluded, however, t h a t the district court did have subject matter jurisdiction in that case because t h e plaintiff's claims "d[id] not relate to an FAA order currently pending against it " ; the only order against Zephyr had been retracted, and the plaintiff's c h a lle n g e was to alleged extra-procedural actions by FAA inspectors. Id. at 5 7 2 ­ 7 3 . We distinguished the holdings of other circuits, which concluded that B iv e n s challenges to FAA officials' actions surrounding the issuance of an order w e r e precluded by § 46110, by noting that Zephyr Aviation's claim did not " im p lic a t e an FAA order that [was] currently in place" and therefore "could not fu n c tio n as a collateral attack on an FAA order or action." Id. at 572. W e later applied Zephyr Aviation in an unpublished decision, Dresser v. I n g o lia , 307 F. App'x 834 (5th Cir. 2009), to conclude that the district court la c k e d jurisdiction over a challenge to an administrative order. In that case, m a r in e r s whose licenses had been revoked by administrative law judges of the C o a s t Guard alleged improprieties in their adjudications and sought money d a m a g e s pursuant to Bivens. Id. at 835­36. We held that "the district court la c k e d subject matter jurisdiction over the plaintiffs' Bivens claims because such c la im s were inescapably intertwined with a review of the procedure and merits s u r r o u n d in g their respective [adjudications]." Id. at 843. The allegations of im p r o p r ie t ie s "necessitate[d] a review of the ALJs' decision making and the m e r it s of each plaintiffs' arguments regarding whether his license should have b e e n revoked" and, therefore, "exercising jurisdiction over such claims

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No. 09-10860 c ir c u m v e n t s administrative review through suit in federal court." Id. (internal q u o t a t io n omitted). O t h e r circuits addressing a district court's jurisdiction over a Bivens c h a lle n g e to an order administered under the Act have reached the same c o n c lu s io n . See, e.g., Gaunce v. deVincentis, 708 F.2d at 1293 ("The statutorily p r e s c r ib e d requirements cannot be dispensed with merely because the a d m in is t r a t iv e proceeding dealt with an agency's proof of specified regulatory v io la t io n s , while appellant is raising a due process constitutional claim in the ju d ic ia l proceeding."); Tur v. Federal Aviation Administration, 104 F.3d 290, 292 ( 9 t h Cir. 1997) ("Tur's suit presents a collateral challenge to the merits of his p r e v io u s [administrative] adjudication. Section 46110 does not permit such s u it s ." ). In Green, for example, the Eleventh Circuit addressed the plaintiff's a lle g a t io n s under Bivens that FAA officials had revoked his pilot examiner c e r t ific a t e based on allegedly false accusations. Id. The court concluded that the d is t r ic t court lacked jurisdiction over the claim because the FAA's termination o f Green's certificate was an appealable order that conferred exclusive ju r is d ic t io n on a federal court of appeals. Id. at 519­21. The court reasoned that " [t ]h e merits of Green's Bivens claims [were] inescapably intertwined with a r e v ie w of the procedures and merits surrounding the FAA's order." Id. at 521. S im ila r ly , in Merritt v. Shuttle (Merritt I), 187 F.3d 263, 266, 271 (2d Cir. 1 9 9 9 ), the Second Circuit held that a district court lacked subject matter ju r is d ic t io n over a pilot's Bivens claim because the statutory scheme provided for e x c lu s iv e review directly in the court of appeals. The pilot in Merritt I alleged t h a t FAA officials had "failed to conduct a meaningful investigation and instead c o n s p ir e d to conceal their own negligence" by blaming the plaintiff for flying in b a d weather. Id. at 266. The court reasoned that the pilot's Fifth Amendment d u e process claim was "`inescapably intertwined' with review of the revocation o r d e r " and that, despite plaintiff styling his Bivens claim in constitutional terms, 8

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No. 09-10860 h e was ultimately disputing "the ALJ's factual conclusion that he bore r e s p o n s ib ilit y for an ill-considered decision to take off." Id. at 271. The Merritt I court held that the necessity of this analysis deprived the district court of ju r is d ic t io n , because Merritt's claim would "result in new [district court] a d ju d ic a t io n over the evidence and testimony adduced in the prior revocation h e a r in g , the credibility determinations made by the ALJ, and, ultimately, the fin d in g s made by the ALJ" during the course of the proceedings. Id. (footnotes, in t e r n a l quotation marks, and alterations omitted). On the other hand, some courts have addressed challenges to FAA action t h a t they held not to be "inescapably intertwined" with an administrative order. In Mace v. Skinner, 34 F.3d 854, 859 (9th Cir. 1994), for instance, the Ninth C ir c u it held that the district court did have jurisdiction over the plaintiff's c la im s because they were "not based on the merits of his individual situation, b u t constitute[d] a broad challenge to allegedly unconstitutional FAA practices." See also Foster v. Skinner, 70 F.3d 1084, 1088 (9th Cir. 1995) (holding that a lt h o u g h courts of appeals have exclusive jurisdiction over claims that are " in e s c a p a b ly intertwined" with a challenge to a particular final order, "a district c o u r t has subject matter jurisdiction over broad constitutional challenges to FAA p r a c t ic e s ." ). In Merritt II, after having disposed of the plaintiff's Bivens claim in Merritt I as described above, the Second Circuit held that Merritt's claim of n e g lig e n c e under the Federal Tort Claims Act (FTCA) was not precluded by § 46110. 245 F.3d at 191. Merritt's FTCA claim alleged that FAA employees h a d negligently provided him with inaccurate weather information, causing him t o take off in a storm, which was the reason his pilot's certificate was revoked. The court distinguished Merritt's complaints about the behavior of the FAA e m p lo y e e s prior to takeoff, which were not precluded by § 46110, from his c o m p la in t s under Bivens about the behavior of FAA employees in issuing an o r d e r suspending his pilot's certificate, holding that only complaints resulting 9

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No. 09-10860 f r o m the order itself could be precluded by § 46110. Id. at 189­90. See also B e in s v. United States, 695 F.2d 591, 598 & n.11 (D.C. Cir. 1982) (holding that t h e precursor to § 46110 did not preclude a district court's jurisdiction over a p ilo t 's negligence claim against the FAA because review in the court of appeals w o u ld be "distinct conceptually" from review for negligence). We conclude that Ligon's ADEA claim is inescapably intertwined with a c h a lle n g e to the procedure and merits of the FAA's decision not to renew his d e s ig n a t io n s of authority.2 Like the challenges in Green, Merritt I, and Dresser, L ig o n 's challenge requires a review and balancing of the same evidence used by t h e FAA in deciding not to renew his areas of authority, and is essentially a c h a lle n g e to the merits and procedure of a particular order that is currently p e n d in g against Ligon.3 Further, the relief Ligon seeks--reinstatement of his a r e a s of authority--cannot be granted by a district court reviewing an ADEA c la im . See § 46110(c) (granting the courts of appeals "exclusive jurisdiction to a ffir m , amend, modify, or set aside any part of the order."). Ligon's claim t h e r e fo r e "could and should have been" raised initially with a court of appeals

Ligon's complaint makes several factual allegations that do not directly relate to the nonrenewal of his delegations of authority, including the removal of his name from the FAA's online directory of DERs and occasions on which he was required to perform extra work. To the extent that these allegations constitute claims of discriminatory adverse employment actions under the ADEA, they were not precluded by § 46110 because they could not have been raised in a challenge to a particular order. The district court accordingly had subject matter jurisdiction over any such claims. However, the district court correctly granted summary judgment on such claims because Ligon failed to adduce sufficient evidence that he was an employee of the FAA according to the factors articulated in Arbaugh v. Y & H Corp., 380 F.3d 219, 226 (5th Cir. 2004), rev'd on other grounds, 546 U.S. 500, 504 (2006), and Spirides v. Reinhardt, 613 F.2d 826, 831 (D.C Cir. 1979). We therefore affirm the district court's grant of summary judgment to the extent it applies to allegations under the ADEA not related to the FAA's order. Because the ADEA does not authorize a mixed-motive age discrimination claim, Gross v. GBL Fin. Svcs., Inc., 129 S.Ct. 2243, 2350 (2009), Ligon's ADEA claim would fail once it was determined that the FAA order reducing his areas of authority was warranted. That is, his ADEA challenge does not raise any issues that could not be addressed by a court of appeals in reviewing the merits and procedure of the order itself.
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No. 09-10860 a c c o r d in g to § 46110. See Merritt, 245 F.3d at 192 (quoting City of Tacoma v. T a x p a y e r s of Tacoma, 357 U.S. 320, 339 (1958)).4 Accordingly, we conclude that § 46110 precluded the district court from exercising subject matter jurisdiction o v e r Ligon's claims relating to the FAA's nonrenewal of his areas of authority.5 III. F o r the foregoing reasons, we REVERSE the district court's grant of s u m m a r y judgment with regard to Ligon's claim that the nonrenewal of his a r e a s of authority violated the ADEA, REMAND with instructions to enter

Ligon and the FAA argue that this case is distinguishable from the cases concluding that Bivens claims were precluded by § 46110, because Ligon brought his challenge to the FAA order under the ADEA. No circuit courts have addressed whether an ADEA claim could constitute a collateral attack on an FAA order. But see Cook v. Pan American World Airways, Inc., 771 F.2d 635, 643 (2d Cir. 1985) (abrogated on other grounds) (holding that a district court did have jurisdiction over an ADEA challenge to an integrated seniority list formulated in an airline merger and approved by the Civil Aeronautics Board, even though CAB orders are appealable only to the courts of appeals, where the CAB could not have addressed the age discrimination claim). One district court has concluded that an ADEA claim was not inescapably intertwined with a challenge to an FAA order, but in that case the challenge was to personnel actions separate from the FAA order. Breen v. Peters, 474 F. Supp. 2d 1, 6 (D.D.C. 2007). The FAA argues that the Bivens cases are distinguishable because of the Supreme Court's hesitation to expand the judicially created Bivens remedy into new contexts. See Schweiker v. Chilicky, 487 U.S. 412, 421 (1988). But expansion of the Bivens remedy is irrelevant here, where the question is circumvention of the exclusive jurisdiction set forth by Congress. See Zephyr Aviation, 247 F.3d at 572. Instead, what matters is whether the challenge is inescapably intertwined with a challenge to the order, and would therefore undermine Congress's intention that FAA orders be reviewed in a certain way. Accord Carpenter, 13 F.3d at 316 (holding that exclusive jurisdiction in the courts of appeals under the Hobbs Act overrides the Rehabilitation Act's provision of jurisdiction in the district court). Ligon asserts that the district court erred in failing to transfer his case to this court pursuant to 28 U.S.C. § 1631 and 49 U.S.C. § 46110, and alternatively requests that we exercise jurisdiction over the case on those grounds. Section 1631 provides that if a court finds that it lacks jurisdiction over an action or appeal, it shall, in the interests of justice, transfer it "to any other such court in which the action or appeal could have been brought at the time it was filed or noticed." 28 U.S.C. § 1631. Even if his ADEA claim could be construed as a challenge under the Federal Aviation Act, § 46110 requires a petition for review of an FAA order to be filed within 60 days of the order, and Ligon's claim in the district court was filed 90 days after the FAA's most recent order. He has provided no reasonable grounds for his failure to file by the 60th day, so § 1631 cannot save him from the procedural requirements of § 46110.
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No. 09-10860 ju d g m e n t that, consistent with this opinion, dismisses such claim for lack of s u b je c t matter jurisdiction, and AFFIRM the grant of summary judgment with r e g a r d to any remaining ADEA claims. R E V E R S E D and REMANDED in part, and AFFIRMED in part.

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