Kennedy Jones v. Ray LaHood, et al

Filing

PUBLISHED OPINION FILED. [09-11239 Affirmed ] Judge: HRD , Judge: FPB , Judge: JWE Mandate pull date is 12/27/2010 [09-11239]

Kennedy Jones v. Rayase: 09-11239 C LaHood, et al

Document: 00511283376 Page: 1 Date Filed: 11/03/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
November 3, 2010 N o . 09-11239 Lyle W. Cayce Clerk

K E N N E D Y JONES, P la in t if f -A p p e lla n t , v. U N IT E D STATES OF AMERICA; RAY LaHOOD, Secretary, Department of T ra n s p o r ta tio n , D e fe n d a n t s -A p p e lle e s .

A p p e a l from the United States District Court for the Northern District of Texas, Fort Worth Division

B e fo r e DeMOSS, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM: A t issue is whether, under 49 U.S.C. § 46110(a), the district court had s u b je c t -m a t t e r jurisdiction over Jones's retaliation claims brought pursuant to T it le VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and 42 U.S.C. § 1981. B e c a u s e , under this court's precedent, his claims are inescapably intertwined w it h a challenge to the procedure and merits of a Federal Aviation A d m in is tr a t iv e (FAA) order, we hold that the district court lacked subject-matter ju r is d ic t io n . Accordingly, we AFFIRM the court's dismissal of Jones's claims. J o n e s , a former employee of the FAA, applied to the FAA to be a D e s ig n ated Engineering Representative (DER)--a "qualified private person" who

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Case: 09-11239 Document: 00511283376 Page: 2 Date Filed: 11/03/2010

No. 09-11239 i n s p e c t s and certifies aircraft for compliance with FAA regulations. 49 U.S.C. § § 44702(d)(1), 44704; 14 C.F.R. §§ 183.11(c)(1), 183.15(b). The FAA denied the a p p lic a t i o n , finding that Jones lacked the required integrity and sound ju d g m e n t . Under § 46110(a), Jones could have appealed this decision, but only t o the United States Court of Appeals for the District of Columbia Circuit or the F ifth Circuit. See 49 U.S.C. § 46110(a). He did not. Instead, he sued Defendants in the district court, alleging that the denial was retaliation for his Equal E m p lo y m e n t Opportunity activity while employed at the FAA. At Defendants' r e q u e s t, the district court dismissed all claims with prejudice for lack of subjectm a t t e r jurisdiction. Specifically, the court concluded that "plaintiff's claims are in e s c a p a b ly intertwined with a review of the procedures and merits of the FAA's o r d e r denying his DER application, and the complaint thus constitutes an im p e r m is s ib le collateral attack on the FAA order." Jones v. LaHood, 667 F. Supp 2 d 714, 717 (N.D. Tex. 2009) (citation and internal quotation marks omitted). J o n e s timely appealed. On appeal, Defendants have changed their position on ju r is d ic t io n , but ask us to affirm on alternative grounds.

This court reviews questions of subject-matter jurisdiction de novo. Ligon v. LaHood, 614 F.3d 150, 154 (5th Cir. 2010). Although the parties now agree that the district court had jurisdiction over Jones's claims, this court must determine subject-matter jurisdiction for itself. Id. at 153. The Supreme Court
r e c e n tly reemphasized that, "[w]ithout jurisdiction the court cannot proceed at a ll in any cause. Jurisdiction is power to declare the law, and when it ceases to e x is t , the only function remaining to the court is that of announcing the fact and d is m is s in g the cause." Haywood v. Drown, 129 S.Ct. 2108, 2126 (2009) (citation o m itte d ). Section 46110(a) of the Federal Aviation Act vests the exclusive ju r is d ic t io n over challenges to FAA orders in certain United States Courts of A p p e a ls : 2

Case: 09-11239 Document: 00511283376 Page: 3 Date Filed: 11/03/2010

No. 09-11239 a person disclosing a substantial interest in an order issued by the S e c r e t a r y of Transportation . . . may apply for review of the order by filin g a petition for review in the United States Court of Appeals for t h e District of Columbia Circuit or in the court of appeals of the U n it e d States for the circuit in which the person resides or has its p r in c ip a l place of business. 4 9 U.S.C. § 46110(a). In Ligon, we addressed an indistinguishable situation and fo u n d that there was no subject-matter jurisdiction under § 46110(a). 614 F.3d a t 152. There, the FAA had denied the plaintiff's request to renew his

appointment as a DER in certain areas. See id. at 153. The plaintiff sued in district court, alleging that the denial was a result of age discrimination in violation of the Age Discrimination in Employment Act. See id. This court held that the district court lacked jurisdiction because resolving Ligon's discrimination claim would require a "review and balancing of the same evidence
u s e d by the FAA in deciding not to renew his areas of authority . . . ." See id. at

157. Thus, the court concluded that the claim was "inescapably intertwined" with a challenge to the procedure and merits of the FAA's denial. Id. In
a d d it i o n , the court noted that a district court cannot grant the relief that the p la in t iff sought--renewal of his DER authority--because only the two a p p r o p r ia te circuit courts have the jurisdiction to modify or set aside the orders o f the FAA. See id. L ig o n forecloses the parties' contention that the district court had ju r is d ic t io n .1 Here, it is undisputed that the FAA's denial of Jones's DER

application constitutes a "final order" of the Administrator of the FAA. See Atorie Air, Inc. v. Fed. Aviation Admin., 942 F.2d 954, 960 (5th Cir. 1991). Next,
o u r review of the complaint and the briefs confirms that Jones's Title VII and

In their letter to this court pursuant to Federal Rule of Appellate Procedure 28(j), Defendants concede that Ligon "suggests that the district court lacked jurisdiction over the Title VII claim in this case."

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No. 09-11239 § 1981 claims are inescapably intertwined with a challenge to the procedure and m e r it s of that final order. The complaint alleges a number of procedural

improprieties with the FAA's handling of his DER application. Jones also challenges the merits of the denial by alleging that it was based on false information. In addition, evaluating whether the FAA had a legitimate reason for denying Jones's application and whether the reason was a pretext for retaliation necessarily requires a review and balancing of the same evidence that the FAA had weighed.
Finally, the complaint seeks to set aside the FAA's denial of Jones's DER

application by requesting the court to "[d]irect[] Defendant to place Plaintiff in the position he would have occupied but for Defendant's discriminatory treatment of him . . . ." As the complaint and briefs make clear, Jones alleges that the position that "he would have occupied but for" the discriminatory treatment and retaliation is that of a DER. In sum, under Ligon, Jones's Title
V I I and § 1981 claims are collateral attacks on a FAA order. This panel is bound b y our previous decision in Ligon. Hence, the district court correctly determined t h a t § 46110(a) precludes subject-matter jurisdiction over those claims. A F F IR M E D .

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