Bradley Burdue v. FAA

Filing

OPINION and JUDGMENT filed : The petition for review is DENIED. The motion to supplement the Administrative Record [5004946-2] is DENIED AS MOOT. Decision for publication. Damon J. Keith, Alice M. Batchelder (AUTHORING), and Jane Branstetter Stranch, Circuit Judges.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0304p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

BRADLEY J. BURDUE,
Petitioner,
v.

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No. 13-4029

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FEDERAL AVIATION ADMINISTRATION,
Respondent.

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On Petition for Review from the
Federal Aviation Administration.
No. DART710615GL.
Decided and Filed: December 23, 2014
Before: KEITH, BATCHELDER, and STRANCH, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Richard G. Martin, FRASER CLEMENS MARTIN & MILLER LLC, Perrysburg,
Ohio, for Petitioner. Bradley J. Preamble, FEDERAL AVIATION ADMINISTRATION,
Washington, D.C., for Respondent.
_________________
OPINION
_________________
ALICE M. BATCHELDER, Circuit Judge. Bradley J. Burdue petitions for review of a
Federal Aviation Administration (“FAA”) order revoking his certification as an Airworthiness
Representative-Maintenance (“DAR-T”).

49 U.S.C. § 44702(d)(2) authorizes the FAA to

rescind this designation “at any time for any reason.” We decline to review the merits of
Burdue’s statutory claims because the FAA’s decision to revoke Burdue’s certification “is

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committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). We also decline to review the
merits of Burdue’s constitutional claims because they should be—and actually have been—
brought in a district court action pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388 (1971).
We also deny as moot Burdue’s motion to supplement the administrative record. Accordingly,
we deny Burdue’s petition for review.
I.
49 U.S.C. § 44702(d)(1) authorizes the FAA to “delegate to a qualified private person . . .
a matter related to—(A) the examination, testing, and inspection necessary to issue a certificate
under this chapter; and (B) issuing the certificate.” The FAA “may rescind a delegation under
this subsection at any time for any reason the Administrator considers appropriate.”
§ 44702(d)(2).

Id.

These “qualified private person[s]” remain subject to the “regulations,

supervision, and review the Administrator may prescribe.”

Id. § 44702(d)(1).

14 C.F.R.

§ 183.13(c) requires that the designation at issue in this case—DAR-T—contain an expiration
date. Section 183.15(b)(6) emphasizes, however, that “[a] designation made under this subpart
terminates: For any reason the Administrator considers appropriate.”
Burdue was appointed as a DAR-T on December 28, 2001. A DAR-T is a private person
authorized by the FAA to conduct aircraft inspections and issue airworthiness certificates. His
certification expired at the end of each year, but each year the FAA renewed it.
On March 14, 2013, Burdue’s supervisors were informed of “some issues” related to
Burdue’s export certifications for aircraft being sold overseas. The FAA’s Special Emphasis
Investigations Team (“SEIT”) later concluded that Burdue had engaged in “conduct inconsistent
with the care, judgment, and integrity normally associated with, and expected of, an FAA
designee.” The SEIT “found that Mr. Burdue performed multiple aircraft inspections out of his
assigned geographic area without authorization.” Admin. R. 1. It also concluded that Burdue
had issued export certificates to aircraft owned by Burdue and his wife, “[a] clear conflict of
interest.” Ibid. Attached to the SEIT’s findings were thirteen “Items of Proof” on which the
SEIT based its findings, including particular aircraft registration numbers, inspection numbers,
and dates.

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Inspector David Lindsey of the Cleveland Flight Standards District Office (“FSDO”)
showed the SEIT’s findings to Burdue and encouraged him to respond. Burdue then responded
to these findings in a lengthy letter sent to Inspector Lindsey.

Admin. R. 95–97.

After

reviewing the SEIT’s findings and Burdue’s response, J.D. Martin, the General Aviation
Technical Support Branch Manager, recommended to Leroy Moore, Manager of the Cleveland
FSDO, that Burdue’s designation be terminated “for cause.”

Admin. R. 102.

Martin’s

recommendation analyzed both the SEIT’s findings and Burdue’s response.
Moore revoked Burdue’s certificate on April 29, 2013. Burdue’s termination letter
indicated that the revocation was being made pursuant to both the “for cause” provision of 14
C.F.R. § 183.15(b)(4) and the discretionary-revocation provision of 14 C.F.R. § 183.15(b)(6).
The letter apprised Burdue of his right to request an appeal of the decision within fourteen
calendar days, at which time Burdue “should include any evidence or statement concerning this
matter.” Admin. R. 103.
On May 15, 2013, Burdue submitted a seventeen-page “Appeal Brief,” which included a
number of supporting documents. Moore sent a letter to Burdue two days later acknowledging
receipt of Burdue’s request for an appeal and the Appeal Brief itself. On June 21, 2013, over a
month after the appeal deadline, Burdue submitted an Appeal Brief Supplement, which
highlighted information gleaned from documents Burdue had obtained from the FAA after he
filed a Freedom of Information Act (“FOIA”) request. Admin. R. 183–88. Although it was
untimely, Martin appears to have provided the Appeal Brief Supplement and its attachments to
the appeal panel no later than June 28, 2013. On July 2, 2013, Burdue was informed that “[t]he
Appeal Panel was convened and reviewed your appeal documents. It is the Panel’s decision that
the termination of your DAR designation . . . be upheld.” Admin. R. 189.
Prior to filing this petition, Burdue brought a Bivens action in the U.S. District Court for
the Northern District of Ohio claiming a violation of his Fifth Amendment right to due process
and wrongful termination. Burdue requested that the district court order the FAA to revoke his
termination and purge its files of any references to his “for cause” termination, order an
injunction preventing his termination “without providing full procedural due process,” and award
damages. Burdue then filed this petition on August 30, 2013. FAA administrator Michael

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Huerta moved to stay the Bivens action pending this Court’s resolution of Burdue’s petition. The
district court then ordered a stay of Burdue’s district court proceedings, “declin[ing] to engage in
the improper act of adjudicating the issue of the Sixth Circuit’s jurisdiction over the plaintiff’s
pending appeal.”
II.
We first turn to Burdue’s statutory claims. Our jurisdiction arises under 49 U.S.C.
§ 46110(a), which provides that “[a] person disclosing a substantial interest in an order issued by
. . . the Administrator of the Federal Aviation Administration . . . in whole or in part under this
part, . . . may apply for review of the order by filing a petition for review . . . in the court of
appeals of the United States for the circuit in which the person resides or has its principal place
of business.” Section 44702(d)(2), which permits the FAA to “rescind a delegation . . . at any
time for any reason,” is “under this part.” See 49 U.S.C. subt. VII, pt. A. Thus, this “court has
exclusive jurisdiction to affirm, amend, modify, or set aside any part of the order.”

Id.

§ 46110(c).
A.
Burdue contends initially that the termination of his designation is not an “order” over
which we possess exclusive jurisdiction under § 46110(a), (c). The term “order” has been given
an “expansive construction.” Atorie Air, Inc. v. FAA, 942 F.2d 954, 960 (5th Cir. 1991). Only
two requirements must be met.1
First, courts have uniformly interpreted the jurisdictional exclusivity provision of
§ 46110(a), (c) and its predecessor to require finality. See, e.g., Aerosource, Inc. v. Slater,
142 F.3d 572, 578 (3d Cir. 1998) (“Thus, we conclude that to be reviewable under section
46110(a), an ‘order’ must be final, but need not be a formal order, the product of a formal
decision-making process, or be issued personally by the Administrator. Of course, it also must
impose an obligation, deny a right, or fix some legal relationship.”). In this case, the finality
requirement has been met. Burdue’s designation was terminated, and Burdue exhausted the
1

Some courts consider these characteristics as elements of what constitutes an “order,” while others use
these characteristics to determine whether an “order” is reviewable.

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administrative appeals process provided by FAA regulations. This termination fixes a legal
relationship between Burdue and the FAA, has a direct and immediate effect on his business,
and, Burdue argues, denies him a legal right. Burdue’s termination is final, and it is also final
agency action for purposes of the Administrative Procedure Act (“APA”), 5 U.S.C. § 704.
Second, courts have also required that “the ‘order’ . . . be predicated on an administrative
record sufficient to allow a court to engage in a meaningful review.” Aerosource, 142 F.3d at
578; see also Sima Prods. Corp. v. McLucas, 612 F.2d 309, 314 (7th Cir. 1980). We have
required something similar prior to exercising the exclusive circuit-court jurisdiction over a
“final order” of the National Transportation Safety Board. See N. Am. Aviation Props., Inc. v.
Nat’l Transp. Safety Bd., 94 F.3d 1029, 1031 (6th Cir. 1996). This requirement, however, is not
a demanding one. See, e.g., Atorie Air, 942 F.2d at 960 (holding that an administrative record
containing only the petitioner’s surrendered FAA certificates sufficed to review a claim of
procedural impropriety); Green v. Brantley, 981 F.2d 514, 519 (11th Cir. 1993) (finding an
“order” where “the administrative record consists of Brantley’s investigation of Green’s alleged
misconduct, letters written by Green and his attorney, and various letters from Smith,
Castleberry, and another FAA official”); S. Cal. Aerial Advertisers’ Ass’n v. FAA, 881 F.2d 672,
673, 676 (9th Cir. 1989) (holding that a single letter announcing the FAA’s order prohibiting
certain aircraft from travelling through certain airspace near Los Angeles was a sufficient record
for the court to review the petitioner’s procedural due process claims). And this requirement is
met easily in this case where the administrative record consists of Burdue’s termination notice,
Burdue’s response and his appeal brief, the decision of the appeal panel, and the SEIT’s lengthy
memorandum. At the very least, the record “suffice[s] to permit review of a claimed procedural
impropriety.” Atorie Air, 942 F.2d at 960.
B.
The APA provides a general cause of action for parties “adversely affected or aggrieved
by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702. Although there is a
presumption favoring judicial review, if the challenged “agency action is committed to agency
discretion by law,” this presumption and the cause of action provided by § 702 no longer apply.
See id. § 701(a).

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In construing § 701(a)(2) for the first time, the Supreme Court in Citizens to Preserve
Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971), abrogated on other grounds by Califano
v. Sanders, 430 U.S. 99 (1977), described this exception as “very narrow,” and “applicable in
those rare instances where ‘statutes are drawn in such broad terms that in a given case there is no
law to apply.’” Id. at 594 (quoting S. Rep. No. 79-752, at 26 (1945)). This exception did apply
in Webster v. Doe, 486 U.S. 592 (1988), where the Supreme Court held that termination
decisions made by the Director of the Central Intelligence Agency were committed to agency
discretion by law under a statute that authorized the director to terminate employment “in his
discretion . . . whenever he shall deem such termination necessary or advisable in the interests of
the United States.” (citing 61 Stat. 495, 498 (July 26, 1947)). The Court said that this provision
fairly exudes deference to the Director, and appears to us to foreclose the
application of any meaningful judicial standard of review. Short of permitting
cross-examination of the Director concerning his views of the Nation’s security
and whether the discharged employee was inimical to those interests, we see no
basis on which a reviewing court could properly assess an Agency termination
decision. The language of § 102(c) thus strongly suggests that its implementation
was “committed to agency discretion by law.”
Id. at 600.
Two sister circuits have considered this exact question—whether § 44702(d)(2) commits
the decision to rescind a designation to the FAA as a matter of law. Both have said that it does.
In Steenholdt v. FAA, 314 F.3d 633 (D.C. Cir. 2003), the D.C. Circuit concluded that the
nonrenewal of a designated engineering representative designation was a decision “committed to
agency discretion by law” because § 44702(d)(2) “give[s] the Administrator of the FAA
unfettered discretion.” Id. at 638. “With regard to the substance of the FAA’s nonrenewal
decision, there is no law to apply.” Id. The court rejected the former designee’s argument that
§ 46110 permits review for “substantial evidence”:
[T]his argument begs the question: substantial evidence of what? For any
decision made by the Administrator, there will always be substantial evidence that
the decision was made “at any time for any reason.” Because there are no
constraints on the Administrator’s discretion, there certainly are no judicially
manageable standards by which to judge the Administrator’s action. Petitioner’s
mistake is that he confuses the presence of a standard of review with the existence
of law to apply.

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Id. at 639. The Ninth Circuit reached the same result when it determined that § 44702(d)(2)’s
predecessor “does not set out specific factors for an FAA administrator to consider in
determining whether to rescind a delegation of power . . . there is no judicially-manageable
standard by which we may review the FAA administrator’s decision not to renew [petitioner’s]
designation as Pilot Examiner.” Adams v. FAA, 1 F.3d 955, 956 (9th Cir. 1993) (per curiam); see
also Greenwood v. FAA, 28 F.3d 971, 974–75 (9th Cir. 1994) (“Greenwood argues that the
FAA’s decisions to suspend and not to renew his PED were arbitrary and capricious. We cannot
review these contentions, however, because we lack jurisdiction to review the merits of an FAA
decision to suspend or not to renew a PED.”).
Our reasoning in Joelson v. United States, 86 F.3d 1413 (6th Cir. 1996), also is relevant.
We refused to review the termination of a private bankruptcy trustee where no statute governed
removal and the appointing officer had informed the trustee that he was subject to discretionary
removal “at any time for reasons associated with [his] application or background check, or for
unsatisfactory performance.” Id. at 1415–16, 1419 & n.1. We concluded that “the relevant
statute and regulations promulgated pursuant to it are broadly drawn, and do not establish
‘meaningful standards, criteria or priorities’ for a court to review a U.S. Trustee’s decision to
remove a panel member from active case rotation.” Id. at 1419.
A more permissive statute than the one present in this case can hardly be imagined. By
its very terms, § 44702(d)(2) places “no constraints on the Administrator’s discretion.”
Steenholdt, 314 F.3d at 639. Review would not only be improper, but it would also be futile.
Paraphrasing Steenholdt, the mere fact that the termination decision was made will always
provide substantial evidence that the termination decision was made “for any reason,” however
ludicrous the reason might be. See id. The FAA could only have abused its discretion, for
instance, if it terminated Burdue outside of the space-time continuum.

And the fact that

Burdue’s designation was terminated “for cause,” instead of merely not renewed, is irrelevant
when determining whether there is “law to apply.”

Although Burdue’s termination letter

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provides reasons for his termination, § 44702(d)(2) authorizes the FAA to rescind Burdue’s
designation whether cause exists or not.2
III.
The fact that an agency’s decision is committed to its discretion by law does not, ipso
facto, preclude review of constitutional claims. Such claims are reviewable “in part to avoid the
‘serious constitutional question’ that would arise if a federal statute were construed to deny any
judicial forum for a colorable constitutional claim.” Webster, 486 U.S. at 603; see also Joelson,
86 F.3d at 1420 (“[O]ur decision that panel membership determinations are committed to the
discretion of the U.S. Trustees does not automatically foreclose our review of Joelson’s
constitutional claims.”). Which federal courts—district courts or courts of appeals—may review
Burdue’s constitutional claims is the question to which we turn next.3
Even though § 46110(c) vests this Court with exclusive jurisdiction “to affirm, amend,
modify, or set aside any part of the order,” a district court may review “general collateral
challenges to unconstitutional practices and policies,” see McNary v. Haitian Refugee Ctr., Inc.,
498 U.S. 479, 492 (1991), or “a constitutional claim based on an individual discharge,” see
Webster, 486 U.S. at 603–04. A Bivens action may be brought provided that the merits of the
claim are not “inescapably intertwined with a review of the procedures and merits surrounding
the FAA’s order.” Green v. Brantley, 981 F.2d 514, 521 (11th Cir. 1993); see also Dresser v.
Ingolia, 307 F. App’x 834, 843 (5th Cir. 2009) (per curiam) (“[T]he district court lacked subject
matter jurisdiction over the plaintiffs’ Bivens claims because such claims were inescapably
intertwined with a review of the procedure and merits surrounding their respective [orders].”).
In Green, the Eleventh Circuit held that a district court lacked subject matter jurisdiction
over a former designated pilot examiner’s Bivens action because his claims should have been
brought in the court of appeals. 981 F.2d at 521. The Bivens action was “an impermissible
2

Under the doctrine outlined in Accardi v. Shaughnessy, 347 U.S. 260, 265–67 (1954), a party may always
challenge an agency’s failure to abide by its own regulations. See also Sheble v. Huerta, No. 13-1136, 2014 WL
2853719, at *2 (D.C. Cir. June 24, 2014). In this case, though, “Burdue does not claim that the FAA did not follow
its new and very limited procedure for DAR-T’s. He challenges the procedure itself.” Reply Br. 19. Accardi does
not apply to this challenge.
3

As noted above, Burdue has already filed a Bivens action in the U.S. District Court for the Northern
District of Ohio, which has been stayed pending resolution of this petition.

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collateral challenge to the agency order” because the former designee “had an avenue for
vindicating his substantive and procedural rights” in the court of appeals, and his Bivens claims
were “inescapably intertwined with a review of the procedures and merits surrounding the
FAA’s order.” Id.; see also Dresser, 307 F. App’x at 843 (“[H]ere the allegations of ALJs
‘fixing’ cases necessitates a review of the ALJs’ decision making and the merits of each
plaintiff’s arguments regarding whether his license should have been revoked. Also, unlike the
plaintiff in Mace, plaintiffs are not broadly challenging the constitutionality of Coast Guard
authority to bring revocation actions or its failure to promulgate rules relating to revocation
procedures. Rather, plaintiffs’ Bivens claims resemble those of the plaintiff in Merritt in that
they require a new adjudication over the evidence and testimony adduced in the prior revocation
hearing, the credibility determinations made by the ALJ, and, ultimately, the findings made by
the ALJ during the course of the proceedings.” (internal quotation marks and citations omitted)).
The Ninth Circuit distinguished Green in Mace v. Skinner, 34 F.3d 854 (9th Cir. 1994),
where the court permitted a Bivens action based on a revoked aircraft-mechanic certificate. First,
the court reasoned that the former mechanic was not seeking to “affirm, modify, or set aside” an
FAA order because he was seeking damages. Id. at 858 (alterations and internal quotation marks
omitted). Second, he brought “a broad challenge to allegedly unconstitutional FAA practices”
pertaining to the procedures surrounding the revocation of his certificate. Id. at 859. Thus,
the administrative record for a single revocation would have little relevance to
Mace’s constitutional challenges here. In addition, any examination of the
constitutionality of the FAA’s revocation power should logically take place in the
district courts, as such an examination is neither peculiarly within the agency’s
“special expertise” nor an integral part of its “institutional competence.”
Id. at 859 (citation omitted). Thus, actions for damages based on an individual termination fall
outside the terms of § 46110(c)’s jurisdictional exclusivity, as do “general collateral challenges
to unconstitutional practices and policies.” McNary, 498 U.S. at 492.
In a pre-McNary case, we considered whether the district court had jurisdiction over
facial constitutional challenges to the FAA’s decision to revoke a pilot’s license. See Robinson
v. Dow, 522 F.2d 855 (6th Cir. 1975). Although the pilot sought damages (in addition to
declaratory and injunctive relief), we affirmed the district court’s dismissal, holding that the

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administrative exhaustion doctrine, in conjunction with the circuit-court exclusivity provision,
mandated “ultimate review in the Court of Appeals.” Id. at 858. Accordingly, we concluded that
“[i]t is clear that in this [] forum the litigant is free to raise his constitutional issues . . . . [T]he
Administrator’s order is not subject to collateral attack in the district court.” Ibid.
To the extent that Robinson governs a damages action premised on an alleged denial of
constitutional procedural due process rights, Robinson’s holding has been superseded by
McNary. Burdue’s constitutional claims are broad challenges to FAA procedures and are not
contingent on the merits of a particular FAA order.4 His claims allege procedural due process
violations, including a lack of “proper notice and an opportunity to be heard, or any meaningful
due process procedural safeguards on appeal[.]” Pet’r’s Br. 6. Burdue’s pending Bivens action
also seeks damages, a remedy not authorized by § 46110. Thus, his claims may be adjudicated
in a separate Bivens action because they fall outside the circuit-court exclusivity provision of
§ 46110(c) and are not otherwise an impermissible collateral attack on the merits of his
termination.5
A contrary result would prevent meaningful review of Burdue’s constitutional claims.
Central to McNary’s reasoning is that “if not allowed to pursue their claims in the District Court,
respondents would not as a practical matter be able to obtain meaningful judicial review of their
application denials or of their objections to INS procedures . . . .” 498 U.S. at 496. Although
courts of appeals had jurisdiction over “Special Agricultural Worker[]” application denials
during deportation hearings, the lack of an adequate administrative record would stymie review:
Initially, administrative or judicial review of an agency decision is almost always
confined to the record made in the proceeding at the initial decisionmaking level,
and one of the central attacks on INS procedures in this litigation is based on the
claim that such procedures do not allow applicants to assemble adequate records.
As the District Court found, because of the lack of recordings or transcripts of
[Legalization Office (“LO”)] interviews and the inadequate opportunity for SAW
applicants to call witnesses or present other evidence on their behalf, the
administrative appeals unit of the INS, in reviewing the decisions of LO’s and
4
5

Burdue’s pending Bivens action seeks damages, though his complaint in this case does not.

District courts have entertained Bivens-like claims similar to the constitutional claims Burdue raises here.
See, e.g., Tamura v. FAA, 675 F. Supp. 1221, 1224–25, 1228 (D. Haw. 1987) (denying summary judgment to the
FAA on a Bivens claim based on the FAA’s decision not to redesignate an Aviation Medical Examiner); White v.
Franklin, 637 F. Supp. 601, 605, 613–14 (N.D. Miss. 1986) (considering a Due Process Clause claim based on the
FAA’s decision to terminate a flight examiner’s designation).

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regional processing facilities, and the courts of appeals, in reviewing SAW
denials in the context of deportation proceedings, have no complete or meaningful
basis upon which to review application determinations.
Id. at 496.
In Crist v. Leippe, 138 F.3d 801, 804 (9th Cir. 1998), the Ninth Circuit realized that
where a challenge is “not . . . based on the merits of the appealed order . . . additional record
development may be necessary.” Constitutional claims dependent upon factual development
should first be entertained by district courts. “[A]ppellate courts are not equipped to resolve
factual issues.” United States v. Collins, 434 F. App’x 434, 442 (6th Cir. 2011) (internal
quotation marks omitted). In Greenwood, the court refused to address the former designee’s
Fifth Amendment claims because they were “not properly developed for review by this court.”
28 F.3d at 978. By “not properly developed,” the court meant that the administrative record was
insufficient to permit “an informed judicial evaluation of the issues raised.” Id. The claim was
predicated on “evidence which will be developed later in the District Court actions.”

Id.

(internal quotation marks omitted).
Whether Burdue’s procedural due process rights have been violated depends on factual
disputes the administrative record does not resolve. For instance, what is the nature of the
Cleveland FSDO’s “fast-track” employment process?

Did the FAA appeal panel receive

Burdue’s documents in both redacted and unredacted form? Additional factfinding is necessary
for us to engage in a meaningful review of Burdue’s procedural due process claims. Section
46110 does not divest the district court of original jurisdiction to hear broad constitutional claims
that are not inescapably intertwined with a review of the procedures and merits surrounding a
particular FAA order.
IV.
For the foregoing reasons, we deny Burdue’s petition for review. We also deny as moot
Burdue’s motion to supplement the administrative record.