Burdue v. Fed. Aviation Admin.

• Decision Date: 23 December 2014
• Docket Number: No. 13–4029.,13–4029.
• Parties: Bradley J. BURDUE, Petitioner, v. FEDERAL AVIATION ADMINISTRATION, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

774 F.3d 1076

Bradley J. BURDUE, Petitioner

v.FEDERAL AVIATION ADMINISTRATION, Respondent.

No. 13–4029.

United States Court of Appeals, Sixth Circuit.

Dec. 23, 2014.

ON BRIEF:Richard G. Martin, Fraser Clemens Martin & Miller LLC, Perrysburg, Ohio, for Petitioner. Bradley J. Preamble, Federal Aviation Administration, Washington, D.C., for Respondent.

Before: KEITH, BATCHELDER, and STRANCH, Circuit Judges.

OPINION

ALICE M. BATCHELDER, Circuit Judge.

Bradley J. Burdue petitions for review of a Federal Aviation Administration (“FAA”) order revoking his certification as an Airworthiness Representative–Maintenance (“DAR–T”). 49 U.S.C. § 44702(d)(2) authorizes the FAA to rescind this designation “at any time for any reason.” We decline to review the merits of Burdue's statutory claims because the FAA's decision to revoke Burdue's certification “is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). We also decline to review the merits of Burdue's constitutional claims because they should be—and actually have been—brought in a district court action pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). We also deny as moot Burdue's motion to supplement the administrative record. Accordingly, we deny Burdue's petition for review.

I.

49 U.S.C. § 44702(d)(1) authorizes the FAA to “delegate to a qualified private person ... a matter related to—(A) the examination, testing, and inspection necessary to issue a certificate under this chapter; and (B) issuing the certificate.” The FAA “may rescind a delegation under this subsection at any time for any reason the Administrator considers appropriate.” Id. § 44702(d)(2). These “qualified private person[s]” remain subject to the “regulations, supervision, and review the Administrator may prescribe.” Id. § 44702(d)(1). 14 C.F.R. § 183.13(c) requires that the designation at issue in this case—DAR–T—contain an expiration date. Section 183.15(b)(6) emphasizes, however, that “[a] designation made under this subpart terminates: For any reason the Administrator considers appropriate.”

Burdue was appointed as a DAR–T on December 28, 2001. A DAR–T is a private person authorized by the FAA to conduct aircraft inspections and issue airworthiness certificates. His certification expired at the end of each year, but each year the FAA renewed it.

On March 14, 2013, Burdue's supervisors were informed of “some issues” related to Burdue's export certifications for aircraft being sold overseas. The FAA's Special Emphasis Investigations Team (“SEIT”) later concluded that Burdue had engaged in “conduct inconsistent with the care, judgment, and integrity normally associated with, and expected of, an FAA designee.” The SEIT “found that Mr. Burdue performed multiple aircraft inspections out of his assigned geographic area without authorization.” Admin. R. 1. It also concluded that Burdue had issued export certificates to aircraft owned by Burdue and his wife, “[a] clear conflict of interest.” Ibid. Attached to the SEIT's findings were thirteen “Items of Proof” on which the SEIT based its findings, including particular aircraft registration numbers, inspection numbers, and dates.

Inspector David Lindsey of the Cleveland Flight Standards District Office (“FSDO”) showed the SEIT's findings to Burdue and encouraged him to respond. Burdue then responded to these findings in a lengthy letter sent to Inspector Lindsey. Admin. R. 95–97. After reviewing the SEIT's findings and Burdue's response, J.D. Martin, the General Aviation Technical Support Branch Manager, recommended to Leroy Moore, Manager of the Cleveland FSDO, that Burdue's designation be terminated “for cause.” Admin. R. 102. Martin's recommendation analyzed both the SEIT's findings and Burdue's response.

Moore revoked Burdue's certificate on April 29, 2013. Burdue's termination letter indicated that the revocation was being made pursuant to both the “for cause” provision of 14 C.F.R. § 183.15(b)(4) and the discretionary-revocation provision of 14 C.F.R. § 183.15(b)(6). The letter apprised Burdue of his right to request an appeal of the decision within fourteen calendar days, at which time Burdue “should include any evidence or statement concerning this matter.” Admin. R. 103.

On May 15, 2013, Burdue submitted a seventeen-page “Appeal Brief,” which included a number of supporting documents. Moore sent a letter to Burdue two days later acknowledging receipt of Burdue's request for an appeal and the Appeal Brief itself. On June 21, 2013, over a month after the appeal deadline, Burdue submitted an Appeal Brief Supplement, which highlighted information gleaned from documents Burdue had obtained from the FAA after he filed a Freedom of Information Act (“FOIA”) request. Admin. R. 183–88. Although it was untimely, Martin appears to have provided the Appeal Brief Supplement and its attachments to the appeal panel no later than June 28, 2013. On July 2, 2013, Burdue was informed that “[t]he Appeal Panel was convened and reviewed your appeal documents. It is the Panel's decision that the termination of your DAR designation ... be upheld.” Admin. R. 189.

Prior to filing this petition, Burdue brought a Bivens action in the U.S. District Court for the Northern District of Ohio claiming a violation of his Fifth Amendment right to due process and wrongful termination. Burdue requested that the district court order the FAA to revoke his termination and purge its files of any references to his “for cause” termination, order an injunction preventing his termination “without providing full procedural due process,” and award damages. Burdue then filed this petition on August 30, 2013. FAA administrator Michael Huerta moved to stay the Bivens action pending this Court's resolution of Burdue's petition. The district court then ordered a stay of Burdue's district court proceedings, “declin[ing] to engage in the improper act of adjudicating the issue of the Sixth Circuit's jurisdiction over the plaintiff's pending appeal.”

II.

We first turn to Burdue's statutory claims. Our jurisdiction arises under 49 U.S.C. § 46110(a), which provides that “[a] person disclosing a substantial interest in an order issued by ... the Administrator of the Federal Aviation Administration ... in whole or in part under this part, ... may apply for review of the order by filing a petition for review ... in the court of appeals of the United States for the circuit in which the person resides or has its principal place of business.” Section 44702(d)(2), which permits the FAA to “rescind a delegation ... at any time for any reason,” is “under this part.” See 49 U.S.C. subt. VII, pt. A. Thus, this “court has exclusive jurisdiction to affirm, amend, modify, or set aside any part of the order.” Id. § 46110(c).

A.

Burdue contends initially that the termination of his designation is not an “order” over which we possess exclusive jurisdiction under § 46110(a), (c). The term “order” has been given an “expansive construction.” Atorie Air, Inc. v. FAA, 942 F.2d 954, 960 (5th Cir.1991). Only two requirements must be met.¹

First, courts have uniformly interpreted the jurisdictional exclusivity provision of § 46110(a), (c) and its predecessor to require finality. See, e.g., Aerosource, Inc. v. Slater, 142 F.3d 572, 578 (3d Cir.1998) ( “Thus, we conclude that to be reviewable under section 46110(a), an ‘order’ must be final, but need not be a formal order, the product of a formal decision-making process, or be issued personally by the Administrator. Of course, it also must impose an obligation, deny a right, or fix some legal relationship.”). In this case, the finality requirement has been met. Burdue's designation was terminated, and Burdue exhausted the administrative appeals process provided by FAA regulations. This termination fixes a legal relationship between Burdue and the FAA, has a direct and immediate effect on his business, and, Burdue argues, denies him a legal right. Burdue's termination is final, and it is also final agency action for purposes of the Administrative Procedure Act (“APA”), 5 U.S.C. § 704.

Second, courts have also required that “the ‘order’ ... be predicated on an administrative record sufficient to allow a court to engage in a meaningful review.” Aerosource, 142 F.3d at 578 ; see also Sima Prods. Corp. v. McLucas, 612 F.2d 309, 314 (7th Cir.1980). We have required something similar prior to exercising the exclusive circuit-court jurisdiction over a “final order” of the National Transportation Safety Board.See N. Am. Aviation Props., Inc. v. Nat'l Transp. Safety Bd., 94 F.3d 1029, 1031 (6th Cir.1996). This requirement, however, is not a demanding one. See, e.g., Atorie Air, 942 F.2d at 960 (holding that an administrative record containing only the petitioner's surrendered FAA certificates sufficed to review a claim of procedural impropriety); Green v. Brantley, 981 F.2d 514, 519 (11th Cir.1993) (finding an “order” where “the administrative record consists of Brantley's investigation of Green's alleged misconduct, letters written by Green and his attorney, and various letters from Smith, Castleberry, and another FAA official”); S. Cal. Aerial Advertisers' Ass'n v. FAA, 881 F.2d 672, 673, 676 (9th Cir.1989) (holding that a single letter announcing the FAA's order prohibiting certain aircraft from travelling through certain airspace near Los Angeles was a sufficient record for the court to review the petitioner's procedural due process claims). And this requirement is met easily in this case where the administrative record consists of Burdue's termination notice, Burdue's response and his appeal brief, the decision of the appeal panel, and the SEIT's lengthy memorandum. At the very least, the record “suffice[s] to permit review of a claimed procedural impropriety.” Atorie Air, 942 F.2d at 960.

B.

The APA provides a general cause of action for parties “adversely affected or aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702....