Foster v. Skinner

• Decision Date: 20 October 1995
• Docket Number: Nos. 93-16431,93-17265,s. 93-16431
• Citation: 70 F.3d 1084
• Parties: 95 Cal. Daily Op. Serv. 8804, 95 Daily Journal D.A.R. 15,428 Jerrel Pace FOSTER, Plaintiff-Appellant, v. Samuel SKINNER; T. Allan McArtor; Administrator, Federal Aviation Administration, James B. Busey; and Neil Eisner, Defendants-Appellees. Jerrel Pace FOSTER, Plaintiff, and Lawrence B. Smith, Esquire, Appellant, v. Samuel K. SKINNER, Secretary of Transportation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1084

70 F.3d 1084

95 Cal. Daily Op. Serv. 8804, 95 Daily Journal

D.A.R. 15,428

Jerrel Pace FOSTER, Plaintiff-Appellant, v. Samuel SKINNER; T. Allan McArtor; Administrator, Federal

Aviation Administration, James B. Busey; and Neil

Eisner, Defendants-Appellees.

Jerrel Pace FOSTER, Plaintiff, and Lawrence B. Smith, Esquire, Appellant, v. Samuel K. SKINNER, Secretary of Transportation, Defendant-Appellee.

Nos. 93-16431, 93-17265.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 20, 1995 ^*.

Decided Nov. 20, 1995.

Lawrence B. Smith, Tucson, Arizona, for plaintiff-appellant Foster and appellant pro se.

Nina S. Pelletier, United States Department of Justice, Washington, DC; Sushma Soni, United States Department of Justice, Washington, DC; and Michael A. Johns, Office of the United States Attorney, Phoenix, Arizona, for the defendants-appellees.

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

Before: HUG and LEAVY, Circuit Judges, and JONES, District Judge. ^**

PER CURIAM:

This case represents another episode in Lawrence B. Smith's unrelenting quest to establish that the Federal Aviation Administration (FAA) lacks authority to revoke pilot certificates in response to safety violations. Due to Mr. Smith's litigious behavior, he has helped to develop his own adverse body of law in several circuits across this country. ¹

In the present action, Mr. Smith represents Jerrel P. Foster who asserted a Bivens ² claim against the FAA, contending that the FAA violated his constitutional rights by attempting to revoke his pilot license. The district court dismissed the lawsuit on two alternative grounds: (1) lack of subject matter jurisdiction to entertain a Bivens action against the FAA, and (2) failure to allege a claim upon which relief can be granted. The court also imposed sanctions upon Mr. Smith, pursuant to the pre-December 1993 version of Fed.R.Civ.P. 11.

BACKGROUND

Mr. Foster holds a commercial pilot certificate. In 1986, the FAA revoked the certificate because Foster violated FAA safety regulations while he was flying a helicopter as a television newsman. Foster contested the revocation in an administrative hearing before an administrative law judge (ALJ) of the National Transportation Safety Board (NTSB). The ALJ reduced the revocation to a ten month suspension.

In August 1989, the FAA again revoked Foster's certificate because he landed his helicopter in a school yard. As before, Foster challenged the revocation and received a reduced penalty from the ALJ of 150 days suspension.

After the two revocations, Foster brought this action for damages against officials of the FAA and Department of Transportation. Mr. Foster alleged thirteen claims for relief under the Fifth Amendment which are summarized as follows:

(1) Claims one and nine--the FAA lacks authority to suspend or revoke pilot certificates for safety violations, and has failed to delegate such authority to its officers;

(2) Claim two--the NTSB lacks authority to hold hearings to suspend or revoke pilot certificates;

(3) Claims three and four--FAA suspensions and revocations deny the rights to a trial by jury and to a civil fine as a penalty;

(4) Claims five, six, seven, eight, ten, and eleven--the FAA violated the Administrative Procedures Act by not publishing rules regarding suspensions, and not giving Foster notice and an opportunity to comment on the rules;

(5) Claim twelve--certain FAA officials conspired to selectively prosecute Foster for the safety violations;

(6) Claim thirteen--after Foster served the ten month suspension, certain FAA officials wrongfully deprived him of flight privileges.

The district court interpreted these claims as a Bivens action.

Defendants moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(1), (2), (5), and (6). On September 11, 1992, the district court dismissed the complaint under 12(b)(1), and alternatively under 12(b)(6), holding that it lacked subject matter jurisdiction over the complaint and Foster failed to allege claims upon which relief can be granted. More than a month later, on October 16, 1992, Foster moved for reconsideration of the court's dismissal. The court denied Foster's motion for reconsideration on May 28, 1993. Furthermore, after a hearing to show cause, the court sanctioned Foster's attorney, Mr. Smith, under Fed.R.Civ.P. 11 for filing at least ten frivolous claims which had been repeatedly rejected by this circuit and others. ³ Both parties appealed.

STANDARD OF REVIEW

We review for abuse of discretion the district court's denial of a motion for reconsideration under Fed.R.Civ.P. 60(b). Barber v. Hawaii, 42 F.3d 1185, 1198 (9th Cir.1994); 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). A district court's imposition of sanctions pursuant to Fed.R.Civ.P. 11 is also subject to review for abuse of discretion. Roundtree v. United States, 40 F.3d 1036, 1038 (9th Cir.1994); Hendrix v. Naphtal, 971 F.2d 398, 400 (9th Cir.1992). "An abuse of discretion occurs if the district court does not apply the correct law or rests its decision on a clearly erroneous finding of fact." Allen v. Shalala, 48 F.3d 456, 457 (9th Cir.1995). "We may affirm on any ground fairly supported by the record." Lee v. United States, 809 F.2d 1406, 1408 (9th Cir.1987), cert. denied, 484 U.S. 1041, 108 S.Ct. 772, 98 L.Ed.2d 859 (1988).

DISCUSSION

I. Jurisdiction

Foster's twelfth and thirteenth claims allege case specific mistreatment regarding the revocation and reinstatement of Foster's flight privileges. The district court held that it lacked jurisdiction over those claims pursuant to 49 U.S.C.A. Sec. 46110(a) (formerly Sec. 1486(a)) which vests exclusive jurisdiction in the court of appeals to review claims regarding final agency actions by the FAA, NTSB or Department of Transportation.

In Mace v. Skinner, 34 F.3d 854 (9th Cir.1994), ⁴ we distinguished broad challenges to the constitutionality of the FAA actions, over which the district court may exercise jurisdiction, from claims " 'that are inescapably intertwined with a review of the procedures and merits surrounding the FAA's order.' "

Id. at 858 (quoting Green v. Brantley, 981 F.2d 514, 521 (11th Cir.1993)); see also Clark v. Busey, 959 F.2d 808, 811 (9th Cir.1992) (district court lacked jurisdiction over claims against the FAA involving final orders that are subject to judicial review under the Act). Foster's twelfth and thirteenth claims fall within the latter category; thus, they are subject to the exclusive jurisdiction of the court of appeals. Accordingly, the district court properly dismissed Foster's twelfth and thirteenth claims for lack of subject matter jurisdiction.

However, Defendants concede, as they must, that our decision in Mace resolves the subject matter jurisdiction issue in favor of Foster, with respect to the remaining claims one through eleven. We held that a district court has subject matter jurisdiction over broad constitutional challenges to FAA practices because the Federal Aviation Act, 49 U.S.C.A. Secs. 40101-49105 (1995), provides no remedy for such claims. Mace, 34 F.3d at 858-860. Therefore, the district court erred in holding that it lacked subject matter jurisdiction over claims one through eleven which assert broad constitutional challenges. ⁵ Because the district court had subject matter jurisdiction over those claims, we turn to the issue of whether Foster alleged a Fifth Amendment Bivens cause of action upon which relief can be granted.

II. Failure to State a Claim

Our previous decision in Go Leasing v. NTSB, 800 F.2d 1514 (9th Cir.1986), disposes of many of Foster's constitutional claims. Go Leasing was brought by an air carrier with the assistance of Mr. Smith, and involved claims similar to those in the present action. We held that the FAA has authority to select and impose sanctions on certificate holders, and that FAA regulations were properly adopted and are constitutional. Id. at 1518-26. Several other circuits have arrived at similar conclusions. See Dilley v. National Transp. Safety Bd., 49 F.3d 667 (10th Cir.1995); Rochna v. National Transp. Safety Bd., 929 F.2d 13 (1st Cir.1991), cert. denied, 502 U.S. 910, 112 S.Ct. 305, 116 L.Ed.2d 248 (1991); Tearney v. National Transp. Safety Bd., 868 F.2d 1451 (5th Cir.1989), cert. denied, 493 U.S. 937, 110 S.Ct. 333, 107 L.Ed.2d 322 (1989); Komjathy v. National Transp. Safety Bd., 832 F.2d 1294 (D.C.Cir.1987), cert. denied, 486 U.S. 1057, 108 S.Ct. 2825, 100 L.Ed.2d 926 (1988). In this case, on behalf of his client, Smith merely attempts to relitigate issues which were fully resolved by this circuit in Go Leasing and other courts of appeals. Under the weight of the cited authority, we find that the district court properly dismissed claims one, two, three, four, five, six, seven, eight, ten and eleven. ⁶

With regard to Foster's ninth claim, the lack of a rule expressly delegating authority to the FAA Administrator's subordinates does not constitute a violation of Foster's due process rights because clear authority establishes that the FAA Administrator, in his discretion, may suspend and revoke pilot certificates. See Go Leasing, 800 F.2d at 1523; Dilley, 49 F.3d at 669; Tearney, 868 F.2d at 1454; and Komjathy, 832 F.2d at 1297. Moreover, 14 C.F.R. Sec. 13.19(b) (1995) provides that the FAA Administrator's authority to suspend or revoke certificates may be exercised by "the Chief Counsel, the Assistant Chief Counsel for Regulations and Enforcement, and the Assistant Chief Counsel for the region or the Aeronautical Center." Therefore, case law and the regulations support the conclusion that Foster's ninth cause of action does not state a claim upon which relief can be granted. ⁷ Accordingly,

the district court did not abuse its discretion in denying Foster's motion for reconsideration of the dismissal of his complaint.

III. Sanc...