34 F.3d 854 (9th Cir. 1994), 92-17014, Mace v. Skinner

Docket Nº92-17014.
Citation34 F.3d 854
Party NameGeorge D. MACE, Jr., Plaintiff-Appellant, v. Samuel K. SKINNER, Secretary, Department of Transportation; James B. Busey, IV, Administrator, FAA; C. Dean McGrath, Jr., Acting General Counsel, Department of Transportation; Neil R. Eisner, Assistant General Counsel, Department of Transportation; Kenneth P. Quinn, Chief Counsel, FAA; Gregory S. Walden,
Case DateSeptember 06, 1994
CourtUnited States Courts of Appeals, United States Court of Appeals (9th Circuit)

Page 854

34 F.3d 854 (9th Cir. 1994)

George D. MACE, Jr., Plaintiff-Appellant,

v.

Samuel K. SKINNER, Secretary, Department of Transportation;

James B. Busey, IV, Administrator, FAA; C. Dean McGrath,

Jr., Acting General Counsel, Department of Transportation;

Neil R. Eisner, Assistant General Counsel, Department of

Transportation; Kenneth P. Quinn, Chief Counsel, FAA;

Gregory S. Walden, former Chief Counsel, FAA; Daniel D.

Campbell, General Counsel, National Transportation Safety

Board; John M. Stuhldreher, former General Counsel,

National Transportation Safety Board; John H. Cassady,

Deputy Chief Counsel, FAA; Donald P. Byrne, Assistant Chief

Counsel, FAA; Peter J. Lynch, lawyer, FAA; Mardi R.

Thompson, lawyer, FAA; Aren R. Bury, lawyer, FAA; Joseph

A. Conte, lawyer, FAA; Harry S. Gold, lawyer, FAA; Dewitte

T. Lawson, Jr., Assistant Chief Counsel, FAA; Olivia J.

Valentine, lawyer, FAA, Defendants-Appellees.

No. 92-17014.

United States Court of Appeals, Ninth Circuit

September 6, 1994

Argued and Submitted March 17, 1994.

Page 855

Lawrence B. Smith, Tucson, AZ, for plaintiff-appellant.

Sushma Soni, U.S. Dept. of Justice, Washington, DC, for defendants-appellees.

Page 856

Appeal from the United States District Court for the District of Arizona.

Before: REINHARDT and LEAVY, Circuit Judges, and McLAUGHLIN, [*] District Judge.

LEAVY, Circuit Judge:

In this case we are called upon to determine whether a district court can exercise federal question jurisdiction over a Bivens-type action that challenges conduct arising out of an administrative agency decision, when the relevant statute appears to vest jurisdiction exclusively in the appellate courts. The district court concluded that it lacked subject matter jurisdiction over the action and dismissed the complaint. For the reasons which follow, we vacate the dismissal order and remand for further proceedings.

FACTS AND PRIOR PROCEEDINGS

George D. Mace, Jr. ("Mace") held an aircraft mechanic's certificate, known in the industry as an A & P license, and an Inspection Authorization (jointly, "certificate") issued by the Federal Aviation Administration ("FAA"). This certificate entitled Mace to inspect, repair, and certify as airworthy certain small, general purpose aircraft. On July 9, 1990, the FAA issued an emergency order revoking Mace's certificate as the result of alleged violations of FAA safety regulations stemming from Mace's purported failure to properly inspect and repair airplanes.

Mace challenged this revocation order some two weeks later by appearing before an administrative law judge ("ALJ") of the National Transportation Safety Board ("NTSB"). The ALJ affirmed the revocation order, and Mace appealed from that decision to the full board of the NTSB ("Board"). When Mace failed to file his appellate brief within the prescribed time, however, the Board dismissed his appeal. Mace then sought review of the Board's dismissal in the United States Court of Appeals for the District of Columbia Circuit. The D.C. Circuit denied review by unpublished order. Mace v. National Transp. Safety Bd., 948 F.2d 781 (D.C.Cir.1991) (TABLE).

During the pendency of his appeal to the D.C. Circuit, Mace filed this action in Arizona federal district court. Mace's complaint named as defendants eighteen present and former officials of the FAA, NTSB, and the Department of Transportation ("DOT") (collectively, "Defendants"), all of whom were sued in their individual capacities. As a "General Background Allegation," the complaint described the emergency order revoking Mace's certificate. It then asserted that the FAA's use of the emergency order, and Mace's trial before the NTSB, violated Mace's due process and jury trial rights guaranteed under the Fifth and Sixth Amendments to the Constitution. The complaint enumerated these constitutional violations in thirteen separate causes of action. In these causes of action, Mace alleged that the FAA was not authorized to revoke certificates as a sanction for violating aviation safety regulations, nor was the NTSB authorized to try such revocations; that only fines were authorized as a sanction for safety violations; that the FAA failed to promulgate rules relating to the revocation procedures, to give the public notice of and an opportunity to comment on such rules, and to publish them in the Federal Register; and that the FAA's emergency procedures failed to accord Mace adequate notice of the revocation of his certificate. Besides these broad challenges to the legitimacy of the FAA's revocation procedures, Mace also argued more specifically in his twelfth cause of action that the FAA's revocation of his certificate was irrational because his use of the certificate posed no threat to air safety or to the public.

The Defendants moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(2), (5), and (6). The district court dismissed the complaint with prejudice under Rule 12(b)(1), holding that it lacked subject matter jurisdiction over the action because the power to review Board decisions upholding FAA orders was vested exclusively in the federal

Page 857

appellate courts. Mace then filed a timely motion for reconsideration under Fed.R.Civ.P. 59(e), which the district court denied. Mace has timely appealed from that ruling.

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53 practice notes
  • 351 F.Supp.2d 1119 (W.D.Wash. 2005), C04-763, Green v. Transportation Security Admin.
    • United States
    • Federal Cases United States District Courts 9th Circuit Western District of Washington
    • 7 Enero 2005
    ...finality to warrant the appeal offered by section [46110]. Crist v. Leippe, 138 F.3d 801, 804 (9th Cir.1998) (quoting Mace v. Skinner, 34 F.3d 854, 857 (9th Cir.1994)) (internal quotation marks and citations The No-Fly List and the Selectee List are Security Directives issued by TSA pursuan......
  • Axon Enterprise, Inc. v. Federal Trade Commission, 012821 FED9, 20-15662
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • 28 Enero 2021
    ...within the agency's 'special expertise' nor an integral part of its 'institutional competence.'" Mace v. Skinner, 34 F.3d 854, 859 (9th Cir. 1994). We later concluded that plaintiffs raising "broad constitutional claims that do not require review of the me......
  • 46 F.Supp.2d 1092 (E.D.Wash. 1999), CY-98-30331, City of Yakima v. Surface Transp. Bd.
    • United States
    • Federal Cases United States District Courts 9th Circuit Eastern District of Washington
    • 15 Enero 1999
    ...and merits surrounding the [agency's] order?' " Crist v. Leippe, 138 F.3d 801, 803 (9th Cir.1998) Page 1097 (citing Mace v. Skinner, 34 F.3d 854, 859-60 (9th Cir.1994) (citations The City does not broadly challenge the constitutionality of the agency's action. However, the issue of whe......
  • Green v. Transportation Security Administration, 010705 WAWDC, C04-763Z
    • United States
    • Federal Cases United States District Courts 9th Circuit Western District of Washington
    • 7 Enero 2005
    ...finality to warrant the appeal offered by section [46110]. Crist v. Leippe , 138 F.3d 801, 804 (9th Cir. 1998) (quoting Mace v. Skinner , 34 F.3d 854, 857 (9th Cir. 1994)) (internal quotation marks and citations The No-Fly List and the Selectee List are Security Directives issued by TSA pur......
  • Request a trial to view additional results
53 cases
  • 351 F.Supp.2d 1119 (W.D.Wash. 2005), C04-763, Green v. Transportation Security Admin.
    • United States
    • Federal Cases United States District Courts 9th Circuit Western District of Washington
    • 7 Enero 2005
    ...finality to warrant the appeal offered by section [46110]. Crist v. Leippe, 138 F.3d 801, 804 (9th Cir.1998) (quoting Mace v. Skinner, 34 F.3d 854, 857 (9th Cir.1994)) (internal quotation marks and citations The No-Fly List and the Selectee List are Security Directives issued by TSA pursuan......
  • Axon Enterprise, Inc. v. Federal Trade Commission, 012821 FED9, 20-15662
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • 28 Enero 2021
    ...within the agency's 'special expertise' nor an integral part of its 'institutional competence.'" Mace v. Skinner, 34 F.3d 854, 859 (9th Cir. 1994). We later concluded that plaintiffs raising "broad constitutional claims that do not require review of the me......
  • 46 F.Supp.2d 1092 (E.D.Wash. 1999), CY-98-30331, City of Yakima v. Surface Transp. Bd.
    • United States
    • Federal Cases United States District Courts 9th Circuit Eastern District of Washington
    • 15 Enero 1999
    ...and merits surrounding the [agency's] order?' " Crist v. Leippe, 138 F.3d 801, 803 (9th Cir.1998) Page 1097 (citing Mace v. Skinner, 34 F.3d 854, 859-60 (9th Cir.1994) (citations The City does not broadly challenge the constitutionality of the agency's action. However, the issue of whe......
  • Green v. Transportation Security Administration, 010705 WAWDC, C04-763Z
    • United States
    • Federal Cases United States District Courts 9th Circuit Western District of Washington
    • 7 Enero 2005
    ...finality to warrant the appeal offered by section [46110]. Crist v. Leippe , 138 F.3d 801, 804 (9th Cir. 1998) (quoting Mace v. Skinner , 34 F.3d 854, 857 (9th Cir. 1994)) (internal quotation marks and citations The No-Fly List and the Selectee List are Security Directives issued by TSA pur......
  • Request a trial to view additional results