George Kabeller, Inc. v. Busey

Decision Date18 May 1993
Docket NumberNo. 92-8696,92-8696
Citation999 F.2d 1417
PartiesGEORGE KABELLER, INC. d/b/a Zephyrhills Parachute Center, Plaintiff-Appellant, v. James B. BUSEY, Administrator, Federal Aviation Administration; Leonard E. Mudd, Director, Office of Airport Safety and Standards, Federal Aviation Administration; Stephen A. Brill, Manager, Airports Division, Southern Region, Federal Aviation Administration; James E. Sheppard, Manager, Airports District Office, Orlando, Federal Aviation Administration and Richard M. Owen, Airports Plans and Programs Manager, Airports District Office, Orlando, Federal Aviation Administration, Defendants-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

Lawrence H. Brinker, Kuchta & Brinker, Atlanta, GA, Joseph D. Kuchta, Kuchta & Brinker, Washington, DC, for plaintiff-appellant.

Russell G. Vineyard, Asst. U.S. Atty., Atlanta, GA, for defendants-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before FAY, Circuit Judge, JOHNSON, Senior Circuit Judge, and MERHIGE *, Senior District Judge.

PER CURIAM:

This appeal concerns whether the District Court properly granted defendant-appellees' motion to dismiss plaintiff-appellant's Complaint for want of subject matter jurisdiction, and, further, whether the District Court acted properly in refusing to transfer the case to this Court. Finding no error in the District Court's determinations, we AFFIRM.

Plaintiff-appellant operates a private skydiving business at Zephyrhills Municipal Airport. On October 16, 1990, appellant filed a letter of complaint with the Federal Aviation Administration (FAA), claiming that the City of Zephyrillis, Florida (City) was not in compliance with FAA grant agreements because it had discriminated against appellant by approving a more favorable lease to another skydiving business, Skydive City, Inc. On November 1, 1990, the FAA's Orlando Office responded by letter stating that it found the City to be in compliance with federal law. On November 14 and 15, 1990, appellant sent letters to the FAA Regional Headquarters in Atlanta, complaining that the Orlando Division had discriminated against him and that the City had discriminated with regard to the lease agreement. In December, under two separate letters, the Atlanta Office responded, denying appellant's claims.

On January 4, 1991, appellant sent a letter to the FAA in Washington, D.C., requesting that his complaint as to discrimination by the City be investigated. On April 19, 1991, the FAA directed the Atlanta Office to summarize its actions with regard to appellant's complaint. This request was complied with on May 22, 1991. On August 1, 1991, appellant sent another letter to the FAA's Washington, D.C. office requesting that the FAA respond to the complaint. On February 21, 1992, the FAA Washington, D.C. office responded that the claims were being examined, stating that the review "will take the form of FAA Headquarters' reconsideration of all regional FAA determinations in this matter."

On December 10, 1991, appellant filed the instant action in the United States District Court in the Northern District of Georgia, seeking a declaratory judgment and mandamus compelling action on his claim of discrimination by the City. On February 24, 1992, appellees filed a motion to dismiss the Complaint for lack of subject matter jurisdiction. On June 24, 1992, the District Court granted the motion, adopting the reasoning of the D.C. Circuit in Telecommunications Research & Action Center v. FCC, 750 F.2d 70, 75 (D.C.Cir.1984) (hereinafter TRAC), where it was held that "where a statute commits review of agency action to the Court of Appeals, any suit seeking relief that might affect the Circuit Court's future jurisdiction is subject to exclusive review of the Court of Appeals." The statutory provision considered by the District Court concerning review of FAA actions states as follows:

Any order, affirmative or negative, issued by the Board or Secretary of Transportation under this chapter, except any order in respect of any foreign air carrier subject to the approval of the President as provided in section 1461 of this title, shall be subject to review by the courts of appeals of the United States or the United States Court of Appeals for the District of Columbia upon petition....

49 U.S.C.App. § 1486(a) (1992). The court further held that it would not be in the interests of justice to transfer this case to the Eleventh Circuit Court of Appeals because FAA action on this matter was not final, and the case did not pose the type of extraordinary situation warranting the drastic remedy of mandamus. It is from these judgements that plaintiff now appeals.

Two matters are presented on appeal: whether the District Court's dismissal of the Complaint for lack of subject matter jurisdiction was proper and whether the trial court erred in refusing to transfer the matter to this Court. The Court will consider these questions in seriatim.

Appellant first argues that the trial court erred in concluding that it lacked subject matter jurisdiction over his complaint that the City discriminated against him. Appellant contends that because his complaint made out a prima facie case, the FAA was obligated to conduct an investigation and hearing in conformance with 49 U.S.C.App. § 1482(a) and FAA Order 5190.6A. Paragraph 105(c) of the FAA Order states in pertinent part that:

All such complaints shall be acknowledged immediately and investigated as soon as possible.... Where the alleged facts suggest that the owner may not be adhering in all respects to his agreements with the Government, an investigation shall be made and the results recorded.... If there is disagreement as to the facts, independent evidence should be obtained.

Appellant submits that by delaying the investigation, the FAA has not complied with the "as soon as possible" language of Order 5190.6A. It is well-established that when an agency establishes rules to govern its proceedings, these rules must be scrupulously observed. Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959). "It is equally well established that it is a denial of due process for any government agency to fail to follow its own regulations providing for procedural safeguards to persons involved in adjudicative processes before it." Government of Canal Zone v. Brooks, 427 F.2d 346, 347 (5th Cir.1970).

According to appellant, when an agency departs from statutory authority and fails to follow agency procedures, the action is reviewable in a district court.

If an administrative official clearly departs from statutory authority, the administrative action is subject to judicial review even though a jurisdiction withdrawal statute is otherwise applicable. Likewise, judicial review is available where the administrative agency fails to follow procedures outlined in regulations adopted by that administrative agency.

Graham v. Caston, 568 F.2d 1092, 1097 (5th Cir.1978). "[J]udicial relief is mandated by 'agency deviation from its own regulations and procedures,' and the court's finding that the agency had acted in violation of its statutory obligations was a sufficient basis for the court's holding." Jean v. Nelson, 727 F.2d 957, 976 n. 27 (11th Cir.1984) (en banc) (citations omitted), aff'd on other grounds, 472 U.S. 846, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985). See also Haitian Refugee Center, Inc. v. Nelson, 872 F.2d 1555, 1560 (11th Cir.1989), aff'd sub nom., 498 U.S. 479, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991) (concluding that 8 U.S.C. § 1105a, the immigration statute construed in Jean, "does not deprive district courts of jurisdiction to review allegations of systemic abuses by [agency] officials"); Southern Ohio Coal Co. v. Donovan 774 F.2d 693, 700 (6th Cir.1985) (citation omitted) (" 'some residuum of federal question subject matter jurisdiction may exist in the United States District Court, although apparently otherwise precluded by a comprehensive statutory review scheme' "). Further, appellant argues, 49 U.S.C.App. § 1486(a) makes only "order[s]" of the FAA reviewable in the courts of appeals. However, an "order" must be final, San Francisco v. Engen, 819 F.2d 873, 874 (9th Cir.1987); appellant argues that here the FAA has not issued a "final order" because the FAA did not act as mandated. Thus, appellant urges, the FAA's failure to investigate appellant's complaint, allegedly a violation of the FAA's duty pursuant to 49 U.S.C.App. § 1482(a), yet also an inaction that was not an order, was reviewable in the District Court and not exclusively within the domain of this Court.

Whether judicial review of the FAA's failure to issue a final order, granting or denying an investigation or hearing, is vested exclusively in the Court of Appeals, is a question of law subject to de novo review. Newell v. Prudential Ins. Co., 904 F.2d 644, 649 (11th Cir.1990). As noted, 49 U.S.C.App. § 1486(a) provides that any "order" issued by the Civil Aeronautics Board "shall be subject to review by the courts of appeal of the United States or the United States Court of Appeals for the District of Columbia...." 49 U.S.C.App. § 1486(a). This Circuit has never directly addressed the terms of this provision. However, the District Court here relied on Drummond Coal Co. v. Watt, which held that "it is well settled that if Congress ... specifically designates a forum for judicial review of administrative action, that forum is exclusive." 735 F.2d 469, 475 (11th Cir.1984) (citation omitted). Further, in TRAC, also cited by the District Court, the D.C. Circuit stated that "[w]here a statute commits review of agency action to the Court of Appeals, any suit seeking relief that might affect the Circuit Court's future jurisdiction is subject to exclusive review of the Court of Appeals." TRAC, 750 F.2d at 78-79. 1

The Court discerns no reason to depart from the lower court's conclusion as to exclusive appellate...

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