Those Amazing Performers LLC v. International Council of Air Shows

Filing 82

OPINION AND ORDER granting 65 International Council of Air Shows' motion to dismiss. Signed by Judge Joseph S Van Bokkelen on 11/15/19. (nal)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
THOSE AMAZING PERFORMERS, LLC,
d/b/a Team AeroDynamix, et al.
Plaintiffs,
v.

Civil Case Number: 2:15-cv-00273-JVB-JPK

INTERNATIONAL COUNCIL OF AIR
SHOWS,
Defendant.

OPINION AND ORDER

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
1

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 The FAA rescinded the SAC cards according to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

2

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 reevaluate 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
subject to the exclusive jurisdiction of the courts of appeals.
Furthermore, any ambiguities as to jurisdiction over FAA decisions should be decided in
favor of the courts of appeals. Suburban O'Hare Com. v. Dole, 787 F.2d 186, 192 (7th Cir. 1986)
(rev’d on other grounds).

D. Inextricably Intertwined
In addition to having exclusive jurisdiction over FAA orders, the courts of appeals have
exclusive jurisdiction over any claims inextricably intertwined with FAA orders. Merritt v.

3

Shuttle, Inc., 187 F.3d 263, 270 (2d Cir. 1999). Among factors courts consider in determining if
a claim is inextricably intertwined are the following: if the injury results from the FAA order,
and if the claim challenges the motivations or circumstances surrounding an investigation
leading to a FAA order. Id. at 270–71; Durso v. Napolitano, 795 F. Supp. 2d 63, 70 (D.D.C.
2011).

1. Injury.
A claim is inextricably intertwined if the alleged injury stems from the FAA order.
Durso, 795 F. Supp. 2d at 70.
Here, AeroDynamix’s injuries stem from the revocation of their pilots’ SAC cards. The
FAA order implementing ICAS’s recommendations is the reason for their injuries because, if it
wasn’t for that order, AeroDynamix would be able to perform and their economic loss would not
have resulted. The damages claimed by AeroDynamix all result from not being able to perform
and conduct business because they do not have its pilots SAC cards. The only thing standing
between them and their SAC cards is the FAA order. Therefore, this Court would not be able to
give them the relief they are requesting without disqualifying the FAA order, at least in part,
which is not within this Court’s jurisdiction.
Because the injuries of AeroDynamix stem from the FAA order, their claims are
inextricably intertwined with that order, falling within the exclusive jurisdiction of the courts of
appeals: “A claim is inescapably intertwined . . . if it alleges that the plaintiff was injured by [an]
order.” Merritt v. Shuttle, Inc., 245 F.3d 182, 187 (2d Cir. 2001).

4

2. Motivations and circumstances of investigation.
Any claims contesting the motivations and circumstances surrounding an investigation
leading to an FAA order are considered inextricably intertwined with that order. Merritt, 187
F.3d at 270–71. This would lead to a review of evidence and the credibility the FAA assigned to
it in issuing its order, making it inextricably intertwined with the order. Id.
Here, AeroDynamix is bringing claims against ICAS for its conduct during its
investigations, specifically is motives and circumstances surrounding the investigations. These
investigations, and ICAS’s recommendations, resulted in the FAA order. If this Court were to
review the motivations and circumstances surrounding the investigation, it would be reviewing
the weight of the evidence presented to the FAA. This is inextricably intertwined with the order,
and all claims related to motivations and circumstances of an investigation resulting in an FAA
order correctly fall under the exclusive jurisdiction of the courts of appeals.
Two cases resulting from the same events best illustrates the concept of inextricably
intertwined: the Merritt cases. Merritt v. Shuttle, Inc., 187 F.3d 263 (2d Cir. 1999); and Merritt v.
Shuttle, Inc., 245 F.3d 182 (2d Cir. 2001). These cases deal with the revocation of the plaintiff’s
pilot license after a tumultuous takeoff in dangerous conditions that resulted in the damage to
one of the plane’s wings. Merritt, 187 F.3d 263 at 265. In both cases the questions of subject
matter jurisdiction in the district court and the doctrine of inextricably intertwined were
examined.
The first case was dismissed because the claims were inextricably intertwined with the
agency order because the plaintiff was challenging the circumstances leading to the order
revoking his pilot’s license. Merritt, 187 F.3d 263 at 270–72. His claim challenged the
motivation and circumstances leading to his pilot’s license revocation. Id.

5

In contrast, in the second case, the plaintiff challenged the negligence of the FAA in
clearing his takeoff. Merritt, 245 F.3d 182 at 189–90. The injury he claimed was not that the
actions of the FAA resulted in the order revoking the pilot’s license, but rather that he suffered
post-traumatic stress and other mental and physical conditions as a result of the takeoff incident.
Id. This claim was found not to be inextricably intertwined with the agency order and therefore
not within the court of appeals exclusive jurisdiction. Id. at 190–92
Similar to the first Merritt case, AeroDynamix’s claimed injuries relate to the FAA order,
unlike the second Merritt case, where the FAA order had no connection to the injuries the pilot
was claiming. Therefore, Plaintiff’s claims are inextricably intertwined with the FAA order and
subject to the exclusive jurisdiction of the courts of appeals.

E. Conclusion
The Court finds that:
1. The FAA letter dated July 9, 2015, is a final order;
2. AeroDynamix’s claims are inextricably intertwined with the FAA order; and
3. This Court does not have subject matter jurisdiction over this case under 49 U.S.C.
§ 46110.
Therefore, the Court grants International Council of Air Shows’ motion to dismiss.
SO ORDERED on November 15, 2019, 2019.
s/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN
UNITED STATES DISTRICT JUDGE

6