Bradshaw v. Fed. Aviation Admin.

• Decision Date: 12 August 2021
• Docket Number: No. 18-14249,18-14249
• Citation: 8 F.4th 1215
• Parties: Walter BRADSHAW, Petitioner, v. FEDERAL AVIATION ADMINISTRATION, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

8 F.4th 1215

Walter BRADSHAW, Petitioner,

v.FEDERAL AVIATION ADMINISTRATION, Respondent.

No. 18-14249

United States Court of Appeals, Eleventh Circuit.

August 12, 2021

John D. Webb, John D. Webb, PA, St Augustine, FL, for Petitioner

Joshua K. Handell, Attorney, U.S. Department of Justice, Criminal Division, Appellate Section, Washington, DC, Abby Christine Wright, U.S. Attorney General's Office, Washington, DC, Charles M. Trippe, Jr., Office of the Chief Counsel, AGC-310;FAA, Washington, DC, for Respondent.

Before BRANCH, LUCK, and ED CARNES, Circuit Judges.

BRANCH, Circuit Judge:

Walter Bradshaw was a designated pilot examiner for the Federal Aviation Administration ("FAA"). Designated pilot examiners test applicants for pilot licenses and, if the applicant passes the test, the designee has the authority to issue the applicant an airman certificate. In June of 2018, the FAA discovered that Bradshaw had certified a pilot applicant without conducting a complete flight test. Thereafter, the FAA terminated Bradshaw's designation. A three-member FAA appeal panel affirmed the termination decision and Bradshaw appealed to this Court.

Bradshaw now argues that the FAA followed the incorrect termination procedure when it terminated his designation and, even if the procedure that it followed was the correct one, the FAA violated its requirements. Because Bradshaw failed to argue to the FAA appeal panel that the incorrect termination procedure was used, we do not review that claim. Further, after examining the procedure that the FAA employed, we conclude that the FAA did not fall short of its requirements.

Bradshaw also raises two constitutional claims. He first asserts that the FAA violated his constitutional right to due process guaranteed by the Fifth Amendment. In rejecting this claim, we join other circuits that have considered the issue and hold that FAA designated pilot examiners do not have a property or liberty interest in their designation. Bradshaw's other constitutional claim—that the FAA violated his right to equal protection because other categories of FAA designees are afforded a hearing before their designation can be terminated—is also without merit. In sum, because none of Bradshaw's claims pass muster, we deny his petition for review.

I.

A. Legal Background

Why and how the FAA terminated Bradshaw's designation makes little sense in a vacuum. We therefore begin with some context. The Federal Aviation Act authorizes the FAA Administrator to issue airman certificates to qualified individuals. 49 U.S.C. § 44703(a). Airman certificates are akin to driver's licenses for pilots. See id. Of course, the FAA Administrator need not issue such certificates himself. Instead, he "may delegate to a qualified private person, or to an employee under supervision of that person, a matter related to [ ] the examination, testing, and inspection necessary to issue a[n] [airman] certificate under this chapter ... and [ ] issuing the [airman] certificate." Id. § 44702(d)(1). The private persons tasked with that authority are called designated pilot examiners ("DPEs"). Generally, the Flight Standards Inspector ("FSDO inspector") for a local Flight Standards District Office ("FSDO") appoints DPEs. 14 C.F.R. § 183.11(b). A DPE's initial appointment expires after one year, but the FAA may subsequently renew it for a term of three years or less. FAA Order 8900.2B, ch. 3, para. 4, 5 (Sept. 23, 2016). The FAA Administrator may terminate—meaning either rescind or not renew—a DPE's designation "at any time for any reason the Administrator considers appropriate." 49 U.S.C. § 44702(d)(2) ; FAA Order 8900.1, vol. 13, ch. 5 § 3, 13-465; see also 14 C.F.R. § 183.15(b)(6).

DPEs must meet the standards set forth in Chapter 7 of FAA Order 8900.2B. To ensure they meet those standards, the FSDO inspectors may, among other things, interview recently certified pilots to confirm that the testing DPE followed the testing procedures. FAA Order 8900.1, vol. 13, ch. 6 § 1, 13-519, 522-23 (Sept. 25, 2017).¹ If the FSDO inspector determines that the DPE's performance is substandard, he may take a number of remedial actions, including ordering additional training or initiating the termination of the DPE's designation. Id. at 13-524, para. B.

The FAA may terminate the DPE's designation with or without cause. FAA Order 8900.1, vol. 13, ch. 5, § 3, 13-465, para. A. A not-for-cause termination "can be for any reason not specific to a designee's performance," such as a lack of need for the DPE or the DPE's voluntary surrender of his appointment. Id. On the other hand, a for-cause termination is one "based on a [DPE's] performance." Id. Reasons for the latter form of termination include "[u]nsatisfactory performance in any phase of [DPE] duties or responsibilities" and "[a]ny actions by the [DPE] that may reflect poorly on the FAA." Id. para. B. Because the FAA terminated Bradshaw's designation for cause, we focus on that form of termination.

FAA Order 8900.1 sets forth the procedures for termination of a DPE's designation. FAA Order 8900.1, vol 13, ch. 5, § 3, 13-467. The FAA office manager of the managing FAA office makes the decision to terminate DPE designations. Id. para. A. Upon doing so, the FAA office manager must provide the termination decision to the DPE in writing, citing the reasons for the termination "as specifically as possible." Id. para. B. When the DPE receives that notification, he must immediately "cease the exercise of his or her designee privileges." Id. FAA Order 8900.1 provides a sample letter for use in providing the written notice of "for cause" termination. Id. at 13-465, fig. 13-4. The "for cause" template letter, in relevant part, states:

This letter is to inform you that your Federal Aviation Administration (FAA) designation as a [type of designee, e.g., Designated Pilot Examiner (DPE) or Technical Personnel Examiner (TPE)] is terminated pursuant to [Title 14 of the Code of Federal Regulations (14 CFR) part 183, § 183.15(b)(4) or § 183.15(b)(6) /Title 49 of the United States Code (49 U.S.C.) § 44702(d)(2).] [You must immediately cease exercising the privileges of your designation] [or ] [Pursuant to our (telephone conference/meeting) on (date), you were to cease exercising the privileges of your designation on (date).]

Your designation is being terminated [for not performing your duties under your designation OR because you no longer meet the eligibility requirements for the designation.] [Cite the reference to the regulations/policy that was violated/noncompliance.]

You may submit a request for appeal in writing to this office no longer than 14 calendar-days from the date of receipt of this letter. At that time, you should include any evidence or statement concerning this matter with your written request for appeal. You will be notified of the outcome of the appeal within 60 calendar-days after our receipt of your written request for appeal.

Id. (alterations in original).

If the DPE who was terminated for cause wishes to appeal the termination, he may submit an appeal to the regional division office, which will convene a panel composed of three members "who were not involved in the original ... termination decision." Id. at 13-467, para. F(2). The panel's decision is final. Id. para. F(3). A former designee terminated for cause cannot reapply for a designation. FAA Order 8900.1, vol. 13, ch. 5, § 1, 13-408 (Aug. 25, 2017).²

B. Factual Background

1. The FAA Terminates Bradshaw

With that legal background in mind, we turn to Walter Bradshaw. The FAA's termination of Bradshaw's designation was based on his administration of a flight test on June 12, 2018.³ On June 13, the Jackson FSDO received a complaint about that flight test and assigned FSDO inspector Mallory ("Mal") Woodcock to investigate. Upon reviewing the flight tapes and radar, and interviewing the pilot applicant, Woodcock's initial conclusion was that Bradshaw did not conduct a full practical test, but nevertheless certified the pilot applicant.

Meanwhile, Bradshaw's application for renewal of his pilot examiner designation (set to expire at the end of June) was pending. Woodcock recognized that the timing of the renewal presented a possible procedural issue: should the FAA renew Bradshaw's designation even though Woodcock was investigating him? Accordingly, on June 21, 2018, Woodcock e-mailed the higher ups at the FAA regional office, including Alvaro Gil and Jay Kitchens. Woodcock's e-mail read:

Sirs:

We seek your concurrence with the following situation. One of our DPE's was recently reported to our office by [the Air Traffic Organization (ATO)] concerning the operation of an aircraft during a practical test. For expediency, I won't go into details now. Bottom line, upon review of the ATC data (tapes/radar), it appears that the DPE did not conduct a full practical test. However, [the Integrated Airman Certification and Rating Application (IACRA)] indicates that he certified the airman. There are other issues concerning the conduct of the flight that are still being investigated.

The DPE has applied for renewal (due to expire at the end of June). We were in the final stages of processing his renewal. However, given the status of our investigation, we do not want to complete his renewal process, until the investigation is complete. Question: Can we "suspend" the renewal process based on the ongoing investigation?

Thank you for your timely response on this matter. Gil responded with the following message: "Just to recap our earlier phone conversation. Please make sure to communicate with the DPE and inform him that all designee activity must stop. In the interim you can hold off on the renewal, but action must be taken depending on what the outcome of the investigation is."

Later that day, Woodcock called Bradshaw and told him to cease all testing activity pending the investigation. Woodcock informed him that the FAA had received a complaint regarding the June 12 flight test and that he...