Merritt v. Shuttle Inc., MARY-JO

• Decision Date: 08 January 2001
• Docket Number: MARY-JO,Docket No. 00-6193
• Citation: 245 F.3d 182
• Parties: (2nd Cir. 2001) RICHARD MERRITT &MERRITT Plaintiffs-Appellants, v. SHUTTLE, INC., U.S. AIRWAYS INC., TERRY V. HALLCOM, STEVEN K. WILSON, & UNITED STATES OF AMERICA, Defendants-Appellees. Argued:
• Court: U.S. Court of Appeals — Second Circuit

Page 182

245 F.3d 182 (2nd Cir. 2001)

RICHARD MERRITT & MARY-JO MERRITT Plaintiffs-Appellants, v. SHUTTLE, INC., U.S. AIRWAYS INC., TERRY V. HALLCOM, STEVEN K. WILSON, & UNITED STATES OF AMERICA, Defendants-Appellees.

Docket No. 00-6193

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: Jan. 8, 2001.

Decided: April 03, 2001.

RICHARD MERRITT, Lindenhurst, N.Y., pro se, for Plaintiffs-Appellants.

PETER R. MAIER, Department of Justice, Washington, D.C. (David W. Ogden, Assistant Attorney General, Washington, D.C., Loretta E. Lynch, United States Attorney, Eastern District of New York, Brooklyn, N.Y., and Barbara L. Herwig, Department of Justice, Washington, D.C., of counsel), for Defendant-Appellee United States of America.

Before: VAN GRAAFEILAND, WINTER, and SOTOMAYOR, Circuit Judges.

SOTOMAYOR, Circuit Judge:

Plaintiffs-appellants Richard Merritt ("Merritt") and Mary-Jo Merritt (collectively, "plaintiffs") appeal from a May 2, 2000 judgment of the United States District Court for the Eastern District of New York (Thomas C. Platt, Jr., Judge) dismissing their action as against all defendants. More specifically, plaintiffs appeal the district court's sua sponte dismissal of their claim under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq. (1994), against defendant United States of America (the "United States") for lack of subject matter jurisdiction.

The district court predicated its dismissal of plaintiffs' FTCA claim on 49 U.S.C § 46110 (1994), which vests judicial review of certain administrative orders of the Federal Aviation Administration ("FAA"), the National Transportation Safety Board ("NTSB"), and the Department of Transportation ("DOT") exclusively in the courts of appeals. By order dated December 13, 1996, an administrative law judge ("ALJ") of the NTSB suspended Merritt's pilot's certificate for nine months. Instead of appealing that order to the full NTSB and then to this Court, Merritt filed this action in the United States district court for the Eastern District of New York. Finding that consideration of plaintiffs' FTCA claim was "inescapably intertwined" with review of the NTSB's nine-month suspension order, the district court sua sponte dismissed the claim for lack of subject matter jurisdiction.

For the reasons discussed, we conclude that Section 46110 does not preclude the district court from hearing Merritt's FTCA claim, and we therefore reverse the district court's dismissal of the claim and remand for further proceedings consistent with this opinion.

BACKGROUND

Because we recited the allegations of Merritt's first amended complaint in some detail in our previous opinion, Merritt v. Shuttle, Inc., 187 F.3d 263 (2d Cir. 1999) ("Merritt I"), the following account is limited to those allegations that bear upon the issues that are the subject of the present appeal.

On June 24, 1996, Merritt was employed as a captain by defendant Shuttle, Inc. ("Shuttle") and assigned to captain flight number 6500 from Washington National Airport, Washington D.C. to LaGuardia Airport, New York City. At approximately 4:15 P.M., employees of the FAA ordered Merritt to proceed immediately to his aircraft for an early departure. 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 FAA employees had been notified of the approaching storm, they failed to communicate that information to flight 6500. At approximately 5:11 p.m., as FAA officials prepared to evacuate their control tower to avoid the approaching tornado, they 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, causing a sudden loss of airspeed. The plane experienced a weather phenomenon known as "windshear," which violently buffeted the plane and caused the left wingtip to strike the runway as the plane became airborne. Although FAA employees were promptly informed of the damage to the plane, they failed to convey this information to flight 6500. Merritt continued the flight and landed the plane safely at LaGuardia Airport.

In the course of these events, Merritt claims that he suffered a near death experience, post traumatic stress syndrome, and other mental and physical ailments that rendered him disabled for an extended period of time. In his appellate brief, Merritt adds that "[t]he FAA suspended [his] airman's medical certificate because of personal injuries he sustained on June 24, 1996." Similarly, at oral argument, Merritt alleged that "the FAA revoked [his] medical certificate for a two year period because of the medically documented damages that were involved with [the takeoff incident]."

The day after the takeoff incident, June 25, 1996, Merritt refused Shuttle's demand that he submit to FAA interrogation, as he believed that the demand violated federal aviation regulations. As a result of this refusal, Shuttle terminated Merritt's employment on July 3, 1996. The FAA thereafter revoked Merritt's airline transport pilot's certificate in an emergency order dated November 1, 1996. See FAA v. Sachon, No. SE-14698/SE-14700, 1996 WL 861978, at *1 (N.T.S.B. Dec. 13, 1996).

Merritt challenged the emergency revocation order in a hearing before an ALJ of the NTSB.¹ Id. During the four day hearing in December 1996, the parties called a total of 31 witnesses and introduced 63 exhibits. Id. at *2. Merritt testified that, at the time he commenced takeoff, the visibility was very good, with just a few clouds in the sky. Id. at *2, *4. Some of the passengers testified, however, that they saw rain and lightning just prior to takeoff. Id. The ALJ found that Merritt, as captain of the flight, bore ultimate responsibility for the decision to take off, had exercised poor judgment and acted carelessly in making that decision,² and had violated federal air safety regulations in the process.³ Id. at *2-*3. The ALJ also found, however, that employees of the FAA failed to communicate the latest weather information to Merritt,⁴ and that this failure constituted a "mitigating circumstance" that lessened Merritt's culpability. Id. at *3.⁵ In light of this mitigating circumstance and Merritt's prior exemplary and unblemished record, the ALJ modified the FAA emergency order by vacating the "supreme sanction" of revocation of Merritt's pilot's certificate and imposing a nine-month suspension in its place. Id. at *4, *6.

Although Merritt initially appealed the ALJ's order to the NTSB,⁶ he soon thereafter abandoned that appeal and filed this action on May 27, 1997. Among numerous federal and state claims against several defendants, the amended complaint included a Fifth Amendment due process Bivens claim against three FAA officials, Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), and an FTCA negligence claim against the United States based on the FAA's failure to warn him of the approaching storm. The defendants moved to dismiss on various grounds. The district court granted a number of these motions and denied the balance. Merritt v. Shuttle, Inc., 13 F. Supp. 2d 371 (E.D.N.Y. 1998). Among the motions denied was the United States' motion to dismiss for lack of subject matter jurisdiction pursuant to Section 46110 and the FAA officials' motion to dismiss the Bivens claim on qualified immunity grounds. Id. at 379, 382.

The FAA officials then brought an interlocutory appeal of the district court's rejection of their qualified immunity defense pursuant to the collateral order doctrine. Merritt I, 187 F.3d 266-67. Instead of addressing this qualified immunity issue, we sua sponte reviewed the district court's denial of the United States' motion to dismiss for lack of subject matter jurisdiction under Section 46110. Finding that Merritt's Bivens claim was "inescapably intertwined" with review of the nine-month suspension order, and that permitting that claim to proceed to trial in the district court "would result in new adjudication over the evidence and testimony adduced in the prior [administrative]... hearing, the credibility determinations made by the ALJ, and, ultimately, the findings made by the ALJ during the course of the proceedings under section 46110," we concluded that Section 46110 deprived the district court of jurisdiction over the Bivens claim. Id. at 271. (internal brackets and quotation marks omitted). We remanded the action "with instructions to dismiss Merritt's Fifth Amendment due process claims against the [FAA officials] for lack of subject matter jurisdiction, and for other proceedings not inconsistent with this opinion." Id. at 272.

On remand, the district court dismissed with prejudice the Fifth Amendment due process claims against the three FAA officials. Finding that Merritt's "common law torts [action] against the United States [was] 'inescapably intertwined' with the Administrative Law Judge's review of the revocation order," the district court also sua sponte dismissed with prejudice Merritt's FTCA claim against the United States.⁷ Merritt timely appealed.⁸

DISCUSSION

We review the district court's Fed R. Civ. P. 12(b)(1) dismissal of the complaint against the United States de novo. See Jaghory v. New York State Dept. of Educ., 131 F.3d 326, 329 (2d Cir. 1997). In reviewing the grant 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. Id.

In determining whether Section 46110 deprives the district court of jurisdiction over Merritt's FTCA claim, we must begin with the text of the statute. Section 46110(a) provides in relevant part that "a person disclosing a substantial interest in an order issued by the... Administrator of the Federal Aviation Administration... under [United States Code, Title 49, Subtitle VII, Part...