Merritt v. Shuttle, Inc.

• Citation: 187 F.3d 263
• Decision Date: 01 August 1998
• Docket Number: Docket No. 98-6207,MARY-JO
• Parties: (2nd Cir. 1999) RICHARD MERRITT andMERRITT, Plaintiffs-Appellees, v. SHUTTLE, INC., U.S. AIRWAYS INC., TERRY V. HALLCOM, KENT JARRELL, WUSA TELEVISION, STEVEN K. WILSON, JOHN DOES, 1 through 50, in their individual capacities, the last fifty names being fictitious names for employees of Shuttle, Inc., U.S. Airways Inc. and Federal Aviation Administration, Defendants, JOSEPH McNEIL, JOHN BLANKENSHIP, KEVIN O'DONNELL and UNITED STATES OF AMERICA, Defendants-Appellants
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 263

187 F.3d 263 (2nd Cir. 1999)

RICHARD MERRITT and MARY-JO MERRITT, Plaintiffs-Appellees, v. SHUTTLE, INC., U.S. AIRWAYS INC., TERRY V. HALLCOM, KENT JARRELL, WUSA TELEVISION, STEVEN K. WILSON, JOHN DOES, 1 through 50, in their individual capacities, the last fifty names being fictitious names for employees of Shuttle, Inc., U.S. Airways Inc. and Federal Aviation Administration, Defendants, JOSEPH McNEIL, JOHN BLANKENSHIP, KEVIN O'DONNELL and UNITED STATES OF AMERICA, Defendants-Appellants.

Docket No. 98-6207

August Term, 1998

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

Argued May 13, 1999

Decided July 20, 1999

PETER R. MAIER, Department of Justice, Washington, D.C. (Frank W. Hunger, Assistant Attorney General, Washington, D.C., Zachery W. Carter, United States Attorney, Eastern District of New York, Brooklyn, NY, Barbara L. Herwig, Department of Justice, Washington, D.C., of counsel), for Appellants McNeil, Blankenship and O'Donnell..

RICHARD J. MERRITT, Lido Beach, NY, Appellee Pro Se.

Before: MESKILL, PARKER and SOTOMAYOR, Circuit Judges.

MESKILL, Circuit Judge:

Defendants-appellants, employees of the Federal Aviation Administration, appeal from an order entered in the United States District Court for the Eastern District of New York, Platt, J., denying their motion to dismiss plaintiff's Bivens claims on the basis of qualified immunity. We remand with instructions to dismiss the Bivens claims for lack of subject matter jurisdiction.

BACKGROUND

When we review the denial of a motion to dismiss we must accept as true all material facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor. See Kaluczky v. City of White Plains, 57 F.3d 202, 206 (2d Cir. 1995). According to his complaint, plaintiff-appellee Richard Merritt is a commercial airline pilot who was formerly employed by defendant Shuttle, Inc., d/b/a USAir Shuttle (Shuttle). Defendant U.S. Airways owns a stake in Shuttle and manages its operations, which consist mainly of running commercial flights between airports in Washington, D.C., New York and Boston. Defendants-appellants Joseph McNeil, John Blankenship and Kevin O'Donnell are officials of defendant Federal Aviation Administration (FAA). This lawsuit arises out of an incident that occurred while Merritt was piloting a Shuttle aircraft on June 24, 1996.

I. The June 24, 1996 Incident

On the afternoon of June 24, 1996, Merritt was employed by Shuttle as captain of a Boeing 727 assigned to fly from Washington National Airport in Washington, D.C. to LaGuardia Airport in New York City. Between 4:30 p.m. and 5:00 p.m., as Merritt prepared the aircraft for takeoff, a band of severe weather, including a tornado, rapidly approached the airport. Although other employees of Shuttle and the FAA received repeated warnings about the approaching weather system, they failed to communicate that information to Merritt's crew. At 5:11 p.m., FAA officials prepared to evacuate their control tower to avoid the impending tornado but nevertheless cleared Merritt's plane for takeoff.

Unaware of the severity of the approaching storm, Merritt proceeded to take off. As the plane was lifting off the runway, however, the severe weather crossed its flight path. The plane experienced a severe weather phenomenon known as "windshear," which buffeted the plane violently and caused the left wingtip to strike the runway as the plane became airborne. Although officials from Shuttle and the FAA were aware that the plane's wingtip had been damaged on takeoff, they failed to so inform the flight crew, who proceeded on route and landed safely in New York.

Once the plane landed, Shuttle officials detained Merritt for six hours, a period during which Shuttle employees allegedly altered the aircraft's logbooks in an attempt to blame the takeoff incident on Merritt. The next day, Merritt refused Shuttle's demand that he submit to FAA interrogation, as he believed that the order violated federal air regulations. Shuttle fired Merritt on July 3, 1996, citing his general failure to follow Shuttle's instructions, and in particular his refusal to cooperate with federal investigators despite repeated requests from Shuttle and FAA officials that he do so. The FAA thereafter revoked Merritt's pilot certificate in an emergency order dated November 1, 1996.

II. Administrative Proceedings

Merritt challenged the emergency revocation order in a hearing before an administrative law judge (ALJ) of the National Transportation Safety Board (NTSB). The FAA defended its actions on the ground that Merritt had been careless and had exercised poor judgment in deciding to take off in the violent weather. The FAA presented evidence that the severity of the approaching storm was apparent and that Merritt's decision to take off was irresponsible.

Merritt, in contrast, blamed the incident on officials of Shuttle, U.S. Airways and the FAA, asserting their negligence in failing to provide him with adequate information about the danger of the approaching storm. Merritt also argued that Shuttle, U.S. Airways and the FAA immediately and without investigation, agreed to hold Merritt responsible for the incident, in an attempt to "cover up" their own culpability.

At the end of the four day hearing, the ALJ found enough blame to go around. For one, he noted that Merritt, as captain of the flight, bore ultimate responsibility for the decision to take off, and had exercised poor judgment and acted carelessly in making that decision. The ALJ concluded that Merritt had violated federal air safety regulations and that administrative action was warranted.

The ALJ also found, however, that employees of the FAA, U.S. Airways and Shuttle failed to communicate the latest weather information to Merritt, and that their failure constituted a "mitigating circumstance" that lessened Merritt's culpability. Indeed, the ALJ noted his belief that had the crew "been apprised of all the latest weather information, I would find virtually certain that the flight ... wouldn't have come about."

In light of Merritt's prior, unblemished record, the ALJ modified the FAA emergency order by vacating the "supreme sanction" of revocation and imposing a nine month suspension in its place.

III. Merritt's Federal Suit

Merritt initially appealed the ALJ's order to the NTSB, which has authority to "amend, modify, or reverse" orders of the Administrator. See 49 U.S.C. §44709(d). Merritt quickly abandoned that appeal, however, and filed this lawsuit in the district court, naming Shuttle, U.S. Airways, the FAA, and the three FAA officials who investigated the June 24 incident.¹ In essence, the complaint laid blame for the incident at the defendants' door. It also alleged that the defendants failed to conduct a meaningful investigation and instead conspired to conceal their own negligence by blaming the incident on Merritt. Merritt advanced a host of common law, statutory and constitutional claims based on these allegations.

The defendants moved to dismiss on various grounds. In a lengthy written opinion, the district court granted a number of these motions and denied the balance. See Merritt v. Shuttle, 13 F.Supp.2d 371 (E.D.N.Y. 1998). The only ruling now on appeal concerns Merritt's claim, under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), that the individual federal defendants' conduct in investigating the incident deprived Merritt of his Fifth Amendment due process rights.

The defendants-appellants moved to dismiss the Bivens claim on qualified immunity grounds, but the district court denied their motion as a matter of law. In denying that motion, the district court noted that to establish immunity from suit, the FAA officials must demonstrate that the right that plaintiff claims was violated was not "clearly established" at the time of the investigation, or, if the right was clearly established, that it was "objectively reasonable" for the defendants to believe that their actions did not violate that right. 13 F.Supp.2d at 382. Without conclusively determining what right Merritt claimed was violated, the district court noted that "[p]laintiff appears to allege that he was terminated from employment because he refused to comply with an investigation that was contrary to federal air regulations." Id. The district court did not specify what constitutional right Merritt had in continued employment with Shuttle or in the FAA's compliance with federal regulations. Neither did it examine whether any such rights were clearly established at the time of the investigation. The district court did conclude, however, that the individual federal defendants were not entitled to qualified immunity because "[i]f the investigation indeed was contrary to federal air regulations then it was not reasonable for the individual federal defendants to agree to participate in it."² Id.

The individual federal defendants now appeal, arguing that they are entitled to qualified immunity on two alternative bases. First, they argue that (1) because the district court lacked subject matter jurisdiction over Merritt's Bivens claims it follows that (2) he has no federal cause of action and therefore (3) they may not be said to have violated any of Merritt's "clearly established rights." They also argue, in the alternative, that even if the court had jurisdiction, Merritt at most alleged a violation of agency regulations, and failed to allege that they violated any of his constitutional rights. As explained more fully below, we may review this interlocutory order now because it qualifies as a reviewable "collateral order" under the doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).

Also relevant here, the federal defendants and Shuttle challenged the district court's subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). They characterized Merritt's action...