Green v. Brantley

Citation981 F.2d 514
Decision Date21 January 1993
Docket NumberNo. 89-8150,89-8150
PartiesJ. Kenneth BRANTLEY, Edgar V. Lewis, Craig R. Smith, and Garland P. Castleberry, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

James R. Schulz, Asst. U.S. Atty., Atlanta, GA, Barbara L. Herwig, Appellate Staff, Civ. Div., Dept. of Justice, Wendy M. Keats, Robert Kopp, Supv. Atty., Washington, DC, for defendants-appellants.

Gerald Cunningham, Office of Gerald Cunningham, Atlanta, GA, for plaintiff-appellee.

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

Before KRAVITCH and ANDERSON, Circuit Judges, and LYNNE *, Senior District Judge.

LYNNE, Senior District Judge:

The question facing the panel on this interlocutory appeal after remand from the en banc Court, Green v. Brantley, 941 F.2d 1146 (11th Cir.1991), is whether the court below should have granted the defendants-appellants' motion for summary judgment based on qualified immunity. First, however, this Court has the obligation to " 'satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review.' " Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986) (quoting Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 165, 79 L.Ed. 338 (1934)), quoted in FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 607, 107 L.Ed.2d 603 (1990). Because the courts of appeals have exclusive jurisdiction over cases challenging final orders of the Federal Aviation Administration ("FAA"), 49 U.S.C. App. § 1486, we find that the district court lacked subject matter jurisdiction over this action. Accordingly, we vacate the district judge's order and remand the case with instructions that it be dismissed for lack of subject matter jurisdiction.

I. FACTS AND PROCEEDINGS BELOW

Plaintiff-appellee, John E. Green ("Green"), held a Designated Pilot Examiner ("DPE") certificate from 1974 until it was rescinded in August of 1986. It had been renewed each year and was scheduled to expire in December of 1986. The Mid-South Flight Standards District Office supervised Green's actions as a pilot examiner. Defendant, J. Kenneth Brantley ("Brantley"), was employed as an Aviation Safety Inspector at that office and had renewed Green's DPE certificate in December of 1985. Defendant, Edgar V. Lewis ("Lewis"), was Supervisor of the Operations Unit for that office, and defendant, Craig R. Smith ("Smith"), was the Office Manager. Defendant, Garland P. Castleberry ("Castleberry"), was Director of the Southern Region of the FAA. Each defendant was an FAA official.

The DPE certificate that Green held was issued by the FAA pursuant to 49 U.S.C.App. § 1355(a) and the regulations contained in 14 C.F.R. §§ 183.11 through 183.23. Section 1355(a) gives the Secretary of Transportation the authority to delegate to private persons any business or function pertaining to the examination, testing, and inspection of pilots and the issuance of pilot certificates. 49 U.S.C.App. § 1355(a). Section 1355(a) further provides that the Secretary "may rescind any delegation made by him pursuant to this subsection at any time and for any reason which he deems appropriate." Id. The Secretary has delegated to "[a]ny local [FAA] Flight Standards Inspector" the duty to certify private pilots as designated pilot examiners "whenever [the inspector] determines there is a need for one." 14 C.F.R. § 183.11(b). Such private pilots are representatives of the FAA. The DPE certificate is valid for one year and may be renewed. 14 C.F.R. § 183.15(b). Also, it may be terminated "(1) Upon the written request of the representative; ... (4) Upon a finding by the Administrator that the representative has not properly performed his duties under the designation; (5) Upon the assistance of the representative being no longer needed by the Administrator; or (6) For any reason the Administration considers appropriate." 14 C.F.R. § 183.15(d). The certificate authorizes private pilots to conduct flight tests for certification of pilots on behalf of the FAA. Examiners may charge a fee for the tests.

The FAA's focus on Green originated from a routine investigation of the pilot examiner program that Brantley conducted in early 1986. Brantley claims that he noted irregularities in Green's flight tests and reported his concerns to Smith, who authorized an investigation. Brantley first told Green of the investigation in early June of 1986, and indicated that there was concern over the brief manner in which Green had conducted flight tests. Although Green immediately wrote several letters requesting information, he was not presented with any specific charges or facts at that time. Based on the preliminary findings of the investigation, Smith and Lewis decided to meet with Green in person on July 7, 1986.

When the July 7, 1986, meeting began, Lewis and Smith offered to have the conversation transcribed. Green said that would not be necessary. Green was told that numerous written and oral complaints had been lodged against him. He again asked for specific information but was told that no information could be released while the investigation continued. Lewis and Smith also told Green that they had reason to question the adequacy of his check flights. At the end of the meeting, Lewis and Smith gave Green a letter that summarized the meeting, the complaints against him, and the status of the investigation. That letter stated expressly that the investigation was "on going." The letter also warned that "[a]ny further evidence of abuse or lack of performance of duties may be grounds for immediate withdrawal of your designation."

In early August, Smith received a letter from Kenneth Terrell complaining about a check ride that Green had administered on August 2, 1986. In his affidavit, Smith stated that "[t]he letter indicated ... that even after our meeting with Mr. Green and our warnings to him that Mr. Green had no intention of changing his method of operation." Smith convened a meeting with Brantley, Lewis, and another inspector to review Green's file. They each recommended that Green's DPE certificate be terminated immediately. Before Smith made the final decision to cancel Green's certificate, he consulted with the regional counsel for the FAA, Ronald R. Hagadore, and another attorney in the office of the regional counsel, Eddie Thomas. Smith also briefed defendant, Garland Castleberry. Smith wrote Green on August 15, 1986, advising him that his DPE certificate was rescinded.

On August 19, 1986, Green's attorney wrote Castleberry to request his assistance in restoring Green's certificate. Castleberry responded on September 8, 1986, advising that he would not stay the action taken by the Mid-South Flight Standards District Office. Green's attorney again wrote Castleberry on September 12, 1986. On November 5, 1986, Castleberry wrote back, saying that the prior decision to cancel Green's designation was correct and in the best interest of the FAA and aviation safety.

It appears that neither Green nor his attorney further pursued the matter through any appeal to the FAA Administrator or otherwise. On October 7, 1986, however, the Director of Flight Standards, FAA Headquarters, wrote a letter on behalf of the FAA Administrator to numerous people who had written directly to the Administrator on Green's behalf. 1

Green filed suit in the United States District Court for the Northern District of Georgia on April 8, 1987, seeking recovery for constitutional torts under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979). Each of his claims was based upon the FAA's termination of his DPE certificate. In his original complaint, Green sued the four defendants in their individual capacities, seeking damages for depriving him of liberty and property interests without due process in violation of the fifth amendment of the U.S. Constitution and the Administrative Procedure Act, 5 U.S.C. § 558(c). He later amended his complaint to allege that, during the course of events resulting in the rescission of his certificate, three of the defendants conspired to present false accusations against him with the intent to cause his financial ruin because in 1982 he had exercised his rights under the first amendment of the Constitution by testifying against the United States in an unrelated action. The district court interpreted the amended claim as contending that the defendants conspired to deprive Green of his first amendment right to free speech. Green v. Brantley, 719 F.Supp. 1570, 1580 (N.D.Ga.1989).

Defendants-appellants moved for summary judgment based on both the merits of Green's claims and qualified immunity. On January 20, 1989, the district court granted the motion in part and denied it in part. Id., 719 F.Supp. at 1572, 1584. The defendants-appellants appealed only the denial of qualified immunity under Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Neither the parties nor the district court ever raised the question of that court's subject matter jurisdiction, which we shall now endeavor to answer.

II. JURISDICTION

Green's complaint asserted that the district court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331. Under 49 U.S.C.App. § 1486, however, the courts of appeals have exclusive jurisdiction over review of "[a]ny order, affirmative or negative, issued by the Board or Secretary of Transportation under this chapter." Initially, we must determine whether a court of appeals would have jurisdiction to review the agency's action under Section 1486. If a court of appeals has exclusive jurisdiction to review the agency's action, we must determine whether a plaintiff may ignore Section 1486 and maintain a Bivens action for damages against the FAA officials who were...

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