Mace v. Skinner
| Decision Date | 06 September 1994 |
| Docket Number | No. 92-17014,92-17014 |
| Citation | 34 F.3d 854 |
| Parties | 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. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Lawrence B. Smith, Tucson, AZ, for plaintiff-appellant.
Sushma Soni, U.S. Dept. of Justice, Washington, DC, for defendants-appellees.
Appeal from the United States District Court for the District of Arizona.
Before: REINHARDT and LEAVY, Circuit Judges, and McLAUGHLIN, * District 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.
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
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.
While we would ordinarily review the district court's denial of Mace's motion to reconsider for an abuse of discretion, see School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 2742, 129 L.Ed.2d 861 (1994), we must examine de novo the court's underlying decision to dismiss the complaint for lack of subject matter jurisdiction. See Hooker v. United States Dep't of Health & Human Servs., 858 F.2d 525, 529 (9th Cir.1988).
The relevant jurisdictional provision of the Federal Aviation Act ("Act"), Pub.L. No. 85-726, 72 Stat. 731 (1958) () provides that
[a]ny order ... issued by the Board ... under this chapter ... shall be subject to review by the courts of appeals of the United States.... [T]he court[§ of appeals] shall have exclusive jurisdiction to affirm, modify, or set aside the order ... and if need be, to order further proceedings by the Board[.]
49 U.S.C.App. Secs. 1486(a), (d). For purposes of this section, "order" carries a note of finality, and applies to "an[y] agency decision which 'imposes an obligation, denies a right, or fixes some legal relationship.' " Atorie Air, Inc. v. FAA, 942 F.2d 954, 960 (5th Cir.1991) (). In other words,
[i]f the order provides a "definitive" statement of the agency's position, has a "direct and immediate" effect on the day-to-day business of the party asserting wrongdoing, and envisions "immediate compliance with its terms," the order has sufficient finality to warrant the appeal offered by section 1486.
Atorie Air, 942 F.2d at 960 ().
With respect to direct review of final orders issued by the Board, we recently noted that the jurisdiction afforded the courts of appeals under 49 U.S.C.App. Sec. 1486 (section 1006 of the Act) is exclusive of the district courts. Clark v. Busey, 959 F.2d 808, 811 (9th Cir.1992). In Clark, the plaintiff sought declaratory and injunctive relief against the FAA, arguing, inter alia, that the agency had acted unlawfully by failing to publish in the pages of the Federal Register a verbatim copy of the complainant's original petition for rulemaking. The district court dismissed the action without prejudice after the FAA voluntarily agreed to provide the relief sought in the action. The plaintiff then moved for payment of his costs and attorney's fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. Sec. 2412. The district court denied the motion for fees and costs on the ground that the FAA had been "substantially justified" in its actions, and the complainant appealed.
Although we upheld the denial of costs and attorney's fees, we concluded that the district court lacked subject matter jurisdiction over the underlying action because the challenge to the FAA's final order (i.e., its refusal to publish the complainant's petition) had to be made by way of appeal to this court. Clark, 959 F.2d at 811-12 (discussing 49 U.S.C.App. Sec. 1486). Thus, and for purposes of the instant appeal, Clark may be read as standing for the proposition that section 1006 of the Act generally preempts district courts from exercising jurisdiction under 28 U.S.C. Sec. 1331 over claims against FAA, NTSB, and DOT officials involving final orders that are otherwise subject to judicial review under the Act. 1 Id. at 811.
Two decisions from other circuits reach the same conclusion. See Green v. Brantley, 981 F.2d 514 (11th Cir.1993) and Gaunce v. deVincentis, 708 F.2d 1290 (7th Cir.) (per curiam), cert. denied, 464 U.S. 978, 104 S.Ct. 417, 78 L.Ed.2d 354 (1983). Both Green and Gaunce involved collateral attacks filed in district court in which the plaintiffs attempted to challenge FAA revocation orders on the ground that those orders violated the complainants' due process rights. In both cases the appellate courts held that the plaintiffs could not bypass the congressionally mandated administrative process for challenging final actions of the FAA by bringing suit in federal district court, because section 1006 of the Act preempts district courts from exercising federal question jurisdiction over such claims. See Green, 981 F.2d at 520-21; Gaunce, 708 F.2d at 1292-94. As the court noted in Green,
Where Congress has provided in the courts of appeals an exclusive forum for the correction of procedural and substantive administrative errors, a plaintiff may not bypass that forum by suing for...
To continue reading
Request your trial
-
Magassa v. Wolf
...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) ). Courts also consider the existence of an administrative record and factual findings in determining whether a TSA decision con......
-
Czerkies v. U.S. Dept. of Labor
...are decisions of our sister circuits. Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1572-73 (10th Cir.1994); Mace v. Skinner, 34 F.3d 854, 858-59 (9th Cir.1994); Schneider v. United States, 27 F.3d 1327, 1332 (8th Cir.1994); Shafii v. PLC British Airways, 22 F.3d 59 (2d Cir.1994); Conc......
-
City of Yakima v. Surface Transp. Bd.
...procedures and merits surrounding the [agency's] order?'" Crist v. Leippe, 138 F.3d 801, 803 (9th Cir.1998) (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 whether......
-
Pucciariello v. United States
...a claim for damages because § 46110 does not grant the court of appeals jurisdiction over this form of relief" (citing Mace v. Skinner, 34 F.3d 854, 858 (9th Cir. 1994)). The question remains, therefore, whether 49 U.S.C. § 46110 precludes this court's jurisdiction over plaintiff's Tucker A......