Ligon v. Lahood

• Decision Date: 09 August 2010
• Docket Number: No. 09-10860.,09-10860.
• Citation: 614 F.3d 150
• Parties: Jack W. LIGON, Plaintiff-Appellant, v. Ray LaHOOD, U.S. Department of Transportation-Federal Aviation Administration, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

614 F.3d 150

Jack W. LIGON, Plaintiff-Appellant,

v.Ray LaHOOD, U.S. Department of Transportation-Federal Aviation Administration, Defendant-Appellee.

No. 09-10860.

United States Court of Appeals,Fifth Circuit.

Aug. 9, 2010.

Rebecca Leona Fisher (argued), Rebecca L. Fisher & Associates, McGregor, TX, for Plaintiff-Appellant.

Donna Kathleen Webb, Asst. U.S. Atty. (argued), U.S. Attorney's Office, N.D. of

Texas, Fort Worth, TX, for Defendant-Appellee.

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

Before JOLLY, SMITH and OWEN, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Jack Ligon appeals the district court's dismissal of his claim under the Age Discrimination in Employment Act (ADEA). The district court dismissed Ligon's ADEA challenge to a Federal Aviation Administration (FAA) order reducing his areas of authority as a Designated Engineering Representative (DER) because it concluded that Ligon, as a DER, was not an FAA employee within the meaning of the ADEA. Although this may be true, we conclude, more fundamentally, that the district court lacked jurisdiction to address Ligon's ADEA claim because that claim was inescapably intertwined with a challenge to the FAA order itself, and the courts of appeals, not the district courts, have exclusive jurisdiction over such challenges. Accordingly, we reverse in part, affirm in part, and remand with instructions for the district court to dismiss Ligon's claim for lack of subject matter jurisdiction.

I.

Under the Federal Aviation Act, the FAA Administrator “may delegate to a qualified private person” the authority to undertake the “examination, testing, and inspection necessary” to issue certificates identifying aircraft as compliant with FAA regulations. 49 U.S.C. §§ 44702(d)(1), 44704. The Administrator, through local Aircraft Certification Offices (ACOs), appoints independent contractors, called DERs, to perform these tasks. 14 C.F.R. § 183.11(c)(1). DERs, though certified by the FAA, are hired by the private aircraft industry to inspect private airplanes. A DER may have several authorized areas of expertise, and may only approve or recommend approval of technical data within his delegated authority by submitting to the FAA a Statement of Compliance with the Federal Aviation Regulations (FAA Form 8110-3). Each DER is subject to oversight by the FAA, and the ACO is responsible for providing oversight of the DERs within its region. The FAA may rescind DER appointments, or choose not to renew them, at “any time for any reason the Administrator considers appropriate.” 49 U.S.C. § 44702(d)(2); 14 C.F.R. § 183.15(b).

DER certificates are renewed annually. The renewal process is conducted by an Advisor employed by the FAA and appointed to the DER. The Advisor reviews the activity the DER completed during the year in each of his designated areas. This review is accomplished by submission of a report of activity by the DER in annual renewal documents, or through review of the FAA Form 8110-3s submitted by the DER during the course of the year. The Advisor is assisted in his review by the findings and recommendations of Evaluators, who have expertise in areas outside the Advisor's expertise and who review the DER's activities in those areas. See FAA Order 8100.8B ¶ 905 (July 14, 2003).

Ligon was appointed a DER in 1983 after retiring from the FAA. From 1983 until 2002, he accumulated more than 540 areas of delegated authority. Prior to 2001, Ligon's annual renewal process was simple, requiring only two to three hours each year for Ligon to complete the necessary paperwork. This began to change, however, during the annual renewal process in 2001. Ligon's Advisors, Bill Vickers during 2001-2002 and then Jim Rankin from 2003 forward, required Ligon to indicate, in a format of his choice, how many FAA Form 8110-3s were issued by him each year in his designated areas. Ligon resisted this additional work, and sought new Advisors who did not require him to report his activities.

In 2003, Ligon once again resisted his Advisor's request for a list of his activities during the year, but eventually provided a rudimentary summary. Ligon's list failed to show any activity in helicopters. During the 2004 renewal process, Ligon again failed to submit any record showing activity in helicopters. He also failed to report any activity in the areas of mechanical or electrical equipment. Ligon was notified that if he did not show activity in these areas in the next year his delegated authority in these areas would not be renewed. Ligon responded by writing letters to Fran Cox and Fred Stellar of the FAA, complaining of retaliation and harassment. After receiving no satisfactory response to his complaints, Ligon subsequently filed the first of three separate complaints with the EEOC on September 8, 2004.

During the 2005 renewal process, Ligon again failed to show activity in helicopters, mechanical equipment, or electrical equipment. Consequently, his Advisor, Jim Rankin, removed 226 of Ligon's areas of authority for “non-use.” Because of continued inactivity, Ligon's areas of authority were further reduced by an additional 88 areas of authority on April 29, 2008. Ligon again contacted Fran Cox of the FAA with his concerns, and filed a third complaint with the EEOC in June 2008.

On July 28, 2008, approximately 90 days after learning of the FAA's decision to further reduce his areas of authority, Ligon filed suit in federal district court, alleging that the FAA's handling of his renewal process and failure to renew his areas of authority were discriminatory and violated his Fifth Amendment due process rights. He sought reinstatement of his areas of delegated authority, damages pursuant to the ADEA, and injunctive relief pursuant to the ADEA and the Fifth Amendment. After a telephonic hearing on July 24, 2009, the district court dismissed the Fifth Amendment claim based on Ligon's counsel's acknowledgment that it lacked merit. The court granted the Government's motion for summary judgment on the ADEA claim, holding that Ligon had failed to adduce evidence that he was at any time an employee of the FAA. Having decided the case on this basis, the district court concluded that it need not make any decision as to the other issues raised in the FAA's motion for summary judgment and motion to dismiss, including the FAA's assertion that the court lacked subject matter jurisdiction.

Ligon filed a motion to amend judgment, seeking a transfer of his suit to the Fifth Circuit Court of Appeals pursuant to 49 U.S.C. § 46110(a) and Federal Rule of Civil Procedure 59(e). The district court denied this motion. Ligon filed a timely notice of appeal. This court has appellate jurisdiction pursuant to 28 U.S.C. § 1291.

II.

Before reaching the merits of Ligon's ADEA claim, we must consider whether we have jurisdiction to consider it. If the district court lacked subject matter jurisdiction over the ADEA claim, we have jurisdiction “merely for the purpose of correcting the error of the lower court in entertaining the suit.” Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986). Neither party now challenges the district court's jurisdiction over Ligon's ADEA claim, but “subject matter delineations must be policed by the courts on their own initiative.”

Ruhrgas A.G. v. Marathon Oil Co., 526 U.S. 574, 583, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999). We review questions of subject matter jurisdiction de novo. Paulsson Geophysical Svcs., Inc. v. Sigmar, 529 F.3d 303, 306 (5th Cir.2008).

Section 46110(a) of the Federal Aviation Act (the Act) vests the courts of appeals with jurisdiction over challenges to FAA orders:

a person disclosing a substantial interest in an order issued by ... the Administrator of the Federal Aviation Administration with respect to aviation duties and powers designated to be carried out by 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). ¹ For the purposes of the Act, the term “order” “has been given expansive construction,” but to be reviewable the order must be final, and there must be an adequate record for judicial review. Atorie Air, Inc. v. Federal Aviation Admin., 942 F.2d 954, 960 (5th Cir.1991). To be sufficiently final, the order “need only be an agency decision which imposes an obligation, denies a right, or fixes some legal relationship.” Id. at 960 (internal quotation omitted).

The FAA asserts, and Ligon does not contest, that the FAA's notification of its nonrenewal of his designations is an appealable final order pursuant to the statute. We agree that it is. The letters to Ligon terminating certain delegations of authority clearly deny a right and fix a legal relationship between Ligon and the FAA by terminating his ability to examine, test, and inspect in those areas of authority. The record of the decision not to renew Ligon's delegations of authority consists of all of the information reviewed by the FAA before the non-renewal decisions, including Ligon's Evaluators' recommendations and performance evaluations, the summary of activity submitted by Ligon, and the letters to Ligon informing him of the nonrenewal of certain delegations. See Green v. Brantley, 981 F.2d 514, 519 (11th Cir.1993) (holding that an FAA order revoking a certificate of authority was a final order under the Act); Gaunce v. deVincentis, 708 F.2d 1290, 1292-93 (7th Cir.1983) (holding that an FAA order revoking the plaintiff's airman certificate could not be collaterally attacked in federal district court).

It is well settled that the review of any order of the FAA Administrator must be taken in a court of appeals. See, e.g., Zephyr Aviation, L.L.C....