Jones v. Lahood, 4:08-CV-639-A.

• Decision Date: 27 October 2009
• Docket Number: No. 4:08-CV-639-A.,4:08-CV-639-A.
• Citation: 667 F.Supp.2d 714
• Parties: Kennedy JONES, Plaintiff, v. Ray LAHOOD, Secretary, U.S. Department of Transportation (Federal Aviation Administration), and the United States of America, Defendants.
• Court: U.S. District Court — Northern District of Texas

667 F.Supp.2d 714

Kennedy JONES, Plaintiff, v. Ray LAHOOD, Secretary, U.S. Department of Transportation (Federal Aviation Administration), and the United States of America, Defendants.

No. 4:08-CV-639-A.

United States District Court, N.D. Texas, Fort Worth Division.

October 27, 2009.

Jim Warren Lane, Fort Worth, TX, for Plaintiff/Petitioner.

Donna K. Webb, U.S. Attorney's Office, Fort Worth, TX, for Defendant/Respondent.

MEMORANDUM OPINION and ORDER

JOHN McBRYDE, District Judge.

Now before the court are two motions filed in the above action by defendant Ray LaHood, Secretary of Department of Transportation, (Federal Aviation Administration)("LaHood"): (1) motion to dismiss for lack of subject matter jurisdiction, and (2) motion for summary judgment. Plaintiff filed nothing in response to the motion to dismiss, but filed a response to the motion for summary judgment. Having considered the motions, plaintiffs response, and applicable legal authorities, the court concludes that the motion to dismiss should be granted, and the motion for summary judgment denied as moot.

I. Background and Plaintiff's Claims

A. Designated Engineering Representatives

This case arises by the Federal Aviation Administration's ("FAA") denial of plaintiffs application for appointment as a Designated Engineering Representative ("DER"). Under the Federal Aviation Act ("Aviation Act"), the Administrator of the FAA "may issue airman certificates, type certificates, production certificates, airworthiness certificates, air carrier operating certificates, airport operating certificates, air agency certificates, and air navigation facility certificates," and "may delegate to a qualified private person" the authority to undertake the "examination, testing, and inspection necessary" to issue the certificates allowed under the Act. 49 U.S.C. §§ 44702(a),(d). Stated differently, the DER process enables the FAA to appoint qualified private individuals to perform examinations, tests, and inspections required to determine compliance with FAA airworthiness regulations.¹ A DER ensures that private industry clients who hire the DER are in compliance with FAA regulations for airworthiness standards. See Steenholdt v. FAA, 314 F.3d 633, 634-35 (D.C.Cir.2003). The FAA Administrator has delegated the authority to select DERs to Managers of local Aircraft Certification Offices ("ACOs") or their designees. 14 C.F.R. § 183.11(c)(1) (2009).

The FAA has also issued FAA Order 8100.8C, the Designee Management Handbook ("Handbook"), which establishes the "policy and procedures for the selection, appointment, orientation, training, oversight, renewal, tracking, and termination" of DERs. Def.'s App. to Mot. to Dismiss at 16. The Handbook sets forth a detailed application process, the requirements of which must be strictly followed by an individual seeking a DER appointment. To commence the process, the interested individual must submit an application package to the ACO or his or her designee. The application then proceeds through a detailed, multi-level review, culminating in a decision that the applicant is either appointed, identified as a candidate, or denied appointment. If an applicant is denied a DER appointment, he or she may, within sixty days of the date of receipt of the FAA decision letter, make a written request to the FAA for review by an Appeal Panel. The Appeal Panel may conduct a full review of the application process, including conducting interviews, reviewing the application file, reviewing the initial justification for the initial decision, or considering any other documentation it deems necessary in making its decision. The decision of the Appeal Panel is the final step in the DER application process.

Although an applicant may be a current FAA employee when he or she initiates the DER application process, the employment relationship between the applicant and the FAA must terminate before an applicant may receive a DER appointment. The Handbook makes clear that DERs are not FAA employees.

B. Plaintiff's Claims

Plaintiff began his employment with the FAA in May 2001 as an aerospace engineer. In October 2007, plaintiff, while still employed by the FAA, initiated the DER application process.² On November 10, 2007, plaintiff resigned from his employment with the FAA. On November 19, 2007, plaintiff resubmitted his application package to be considered for DER appointment, and the application proceeded through the review process. Plaintiff was notified by letter dated February 8, 2008, of the denial of his DER application and of his right to appeal within sixty days. Plaintiff timely appealed, and an Appeal Panel was assembled, comprised of individuals who were not part of the initial review of plaintiff's application. On May 8, 2008, the Appeal Panel notified plaintiff of its decision to uphold the denial of his DER application.

Plaintiff filed the instant action on October 23, 2008, alleging that defendants denied his application for a DER because of his race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), and 42 U.S.C. § 1981, and in retaliation for his previous Equal Employment Opportunity activities during his employment with defendant.

II. Applicable Legal Principles

Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a case is properly dismissed when the court "lacks the statutory or constitutional power to adjudicate the case." Home Builders Ass'n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir.1998) (citations omitted). When confronted with a challenge to its jurisdiction, the court has broad power to weigh the evidence and satisfy itself that it has jurisdiction to hear the case. Williamson v. Tucker, 645 F.2d 404, 412-13 (5th Cir.1981). When a defendant challenges the plaintiff's jurisdictional allegations, "the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist." Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001); Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.1980).³

III. Analysis

A. Motion to Dismiss

LaHood contends that plaintiff's claims of race discrimination and retaliation under Title VII and § 1981 are essentially an impermissible collateral attack on the FAA's order denying his application for a DER appointment. The court agrees.

As discussed supra, the Aviation Act designates to the Administrator of the FAA the authority to issue DER certifications to qualified individuals, as determined by the FAA's established application and evaluation process. 49 U.S.C. § 44702; 14 C.F.R. § 183.11(c)(1). The decision to deny a DER application is a final order of the Administrator of the FAA, as it provides a "definitive statement of the agency's position" on the application, has a "direct and immediate effect" on the applicant's day-to-day business, and envisions "immediate compliance with its terms." Atorie Air, Inc. v. FAA, 942 F.2d 954, 960 (5th Cir.1991); see also Green v. Brantley, 981 F.2d 514, 519 (11th Cir. 1993).⁴ Under the statute, a person aggrieved by an order of the Administrator may "apply for review of the order by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit or in the court of appeals of the United States for the circuit in which the person resides or has its principal place of business." 49 U.S.C. § 46110(a). As the courts of appeal are granted exclusive jurisdiction to review FAA orders, this court lacks jurisdiction to review the FAA order denying plaintiffs DER application.

Plaintiffs complaint, however, is before the court not as a direct appeal of the FAA's order, but as claims pursuant to Title VII and § 1981. Nevertheless, a review of the complaint leads to the conclusion that plaintiffs claims are "inescapably intertwined" with a review of the procedures and merits of the FAA's order denying his DER application, and the complaint thus constitutes an impermissible collateral attack on the FAA order. Green, 981 F.2d at 521. A claim is "inescapably intertwined" with an FAA order if it "could and should have been" presented to, and decided by, the court of appeals. Merritt v. Shuttle, Inc. ("Merritt II"), 245 F.3d 182, 188 (2nd Cir.2001)(citing City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 339, 78 S.Ct. 1209, 2 L.Ed.2d 1345 (1958)). In other words, "the test for determining whether an exclusive jurisdiction provision precludes a district court from hearing a given claim is whether the administrative agency had the authority to decide th[e] issue raised by the claim." Id. at 188 n. 9 (internal citations omitted).

Other courts considering the issue have held a plaintiffs claims in district court were "inescapably intertwined" with an FAA order where, for example, the plaintiff's complaint concerned the circumstances giving rise to the FAA's order suspending his pilot's certificate and challenged the "motivations and actions" of those involved in the decision, Merritt v. Shuttle, Inc. ("Merritt I"), 187 F.3d 263, 271-72 (2nd Cir.1999), or where the plaintiffs challenge to the FAA's revocation of his airman's certificate would have required the court to engage in a fresh adjudication of the evidence, testimony, and credibility determinations adduced by the revocation proceedings, Tur v. FAA, 104 F.3d 290, 292 (9th Cir.1997). See also Green, 981 F.2d at 521 (merits of plaintiffs Bivens⁵ claims "inescapably intertwined" with review of the FAA's order rescinding his Designated Pilot Examiner certificate, where consideration of plaintiffs claims would require review of merits and procedures surrounding the FAA's order of rescission).

This is the scenario now before the court. A review of the allegations in plaintiff's complaint makes clear that his claims arise from the FAA's denial of his DER application. The complaint alleges that the DER application was rejected "based on false information," was in...