Baltimore Air Transport, Inc. vs Clovis Jackson

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________ FILED

U.S. COURT OF APPEALS

No. 10-12966 ELEVENTH CIRCUIT

Non-Argument Calendar MARCH 28, 2011

________________________ JOHN LEY

CLERK

D.C. Docket No. 1:08-cv-01432-HTW

BALTIMORE AIR TRANSPORT, INC.,

Individually and doing business as CorpJet, Inc.,

ARIZONA EXPRESS, INC.,

MIDLINE AIR FREIGHT, INC., Individually and

doing business as CorpJet, Inc.,

RC LEASING, LLC,

CE LEASING, INC.,

lllllllllllllllllllll Plaintiffs - Appellants,

versus

CLOVIS JACKSON,

KEITH BATES,

KAREN ADAMS,

STEVE NEILSON, et al.,

lllllllllllllllllllll Defendants - Appellees.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

________________________

(March 28, 2011)

Before MARCUS, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

Plaintiffs are a collection of related companies engaged in the air freight and

air charter business. Plaintiffs sued pursuant to 28 U.S.C. §1331 and Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct.

1999 (1971), asserting that Defendants, various officials of the Federal Aviation

Administration (FAA), have denied them their constitutionally guaranteed Due

Process and Equal Protection rights. Plaintiffs sought only damages in their

complaint, arguing that Defendants acted arbitrarily and capriciously, intending to

run Plaintiffs out of business. This appeal concerns whether the district court

properly dismissed Plaintiffs’ complaint for lack of subject matter jurisdiction and

failure to state a claim. Finding no error in the district court’s determinations, we

affirm.

I.

We review de novo the dismissal of a complaint for lack of subject matter

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jurisdiction. Doe v. FAA, 432 F.3d 1259, 1261 (11th Cir. 2005). “We review a

district court order granting a motion to dismiss de novo, applying the same

standard as the district court.” Randall v. Scott, 610 F.3d 701, 705 (11th Cir.

2010). We may affirm for any reason supported by the record. Greenwood Utils.

Comm’n v. Hodel, 764 F.2d 1459, 1465 (11th Cir. 1985).

II.

Plaintiffs argue the district court erred when it found it lacked subject matter

jurisdiction over many of Plaintiffs’ claims. The Federal Aviation Act provides a

comprehensive administrative review scheme and “charges the FAA with

prescribing air safety standards, including certification requirements for (among

others) airports, airlines, airplanes, and aircraft pilots and mechanics to ‘promote

safe flight of civil aircraft in air commerce.’” Doe v. FAA, 432 F.3d at 1262

(quoting 49 U.S.C. § 44701(a)). Pursuant to 49 U.S.C. § 1486(a), “the courts of

appeals have exclusive jurisdiction over cases challenging final orders of the

[FAA] . . . .” Green v. Brantley, 981 F.2d 514, 516 (11th Cir. 1993). We give

“‘expansive construction’” to the term “order.” Id. at 519 (quoting Atorie Air, Inc.

v. FAA, 942 F.2d 954, 960 (5th Cir. 1991)). “FAA orders ‘are not final and

reviewable unless and until they impose an obligation, deny a right or fix some

legal relationship as a consummation of the administrative process.’” Green, 981

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F.2d at 519 (quoting Aeromar, C. Por A. v. Dep’t of Transp., 767 F.2d 1491, 1493

(11th Cir. 1985) (per curiam)) (internal quotation marks omitted).

Plaintiffs alleged Defendants1: (1) required Plaintiffs to move their

headquarters from Maryland to Georgia by transferring supervision of Plaintiffs to

the Atlanta Flight Standards District Office without following the proper

procedures for doing so and without permitting Plaintiffs to appeal the decision;

(2) required Plaintiffs to rewrite their maintenance and operations manuals; (3)

refused to grant “check rides” to Plaintiffs’ pilots and refused to allow other FAA

officials to do so; (4) arbitrarily, capriciously, and unlawfully directed Plaintiffs to

stop using a trade name that they had operated under for years, thereby depriving

Plaintiffs of goodwill and reputation and putting them at a competitive

disadvantage; and (5) refused to return certain records and sanctioned Plaintiffs

for not having those records.

These actions all either impose an obligation, deny a right, or fix some legal

relationship, as these actions were “‘the definitive statement on the subject matter

[they] addressed.’” Green, 981 F.2d at 519 (quoting City of Alexandria v. Helms,

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Plaintiffs argue the district court improperly recast the facts and drew inferences in the

light most favorable to Defendants. We have corrected any mistake made by the district court in

framing Plaintiffs’ allegations and have recast the issues as Plaintiffs set out in their brief. We

still find no error in the district court’s order.

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728 F.2d 643, 646 (4th Cir. 1984)). Indeed, in Green we noted the Fifth Circuit

has even held that a “refusal to return confiscated certificates” constitutes a final

order. Green, 981 F.2d at 519. Similarly, the above actions all provide a

definitive statement of the FAA’s position, affect the day-to-day operations of

Plaintiffs, and envision immediate compliance with their terms. These actions

possess the requisite finality to be orders, and the administrative record is

sufficient to support review by a court of appeals—the record would allow us “to

make an informed decision of the procedure afforded and the reasons supporting

the FAA’s action.” See id. (noting “the Ninth Circuit has held that a single letter

was sufficient to allow review of alleged agency procedural defects”).

Rather than seek judicial review of these orders, Plaintiffs filed the present

Bivens action claiming money damages. Because Plaintiffs’ “Bivens claims are

inescapably intertwined with a review of the procedures and merits surrounding

the FAA’s order[s,]” these claims constitute an “impermissible collateral

challenge,” and the district court lacked subject matter jurisdiction over them. Id.

at 521.

Plaintiffs also alleged Defendants “failed to take any action” on a number of

requests, alleging Defendants arbitrarily, capriciously, and unlawfully failed and

refused to review, consider, approve, or reject: (1) Plaintiffs’ new maintenance and

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operations manuals, while insisting that Plaintiffs could not use the previously

approved manuals; (2) Plaintiffs’ request for an increase in the “to be overhauled”

time for certain aircraft engines; (3) Plaintiffs’ request that a pilot in their employ

receive “check airman certification,” while justifying this refusal based on the

“disappearance” of records; (4) Plaintiffs’ application to list two aircrafts on their

Operating Certificate, thereby preventing Plaintiffs from using the aircrafts in their

business.

The district court also lacked jurisdiction over these claims. In George

Kabeller, Inc. v. Busey, the plaintiff filed a letter of complaint with the FAA,

claiming that the City of Zephyrhills, Florida, was not in compliance with FAA

grant agreements. 999 F.2d 1417, 1419 (11th Cir. 1993) (per curiam). The FAA

did not investigate the claim, so over a year later, the plaintiff sued seeking a

declaratory judgment and a mandamus compelling action on his previously filed

claim. Id. The plaintiff argued that “when an agency departs from statutory

authority and fails to follow agency procedures, the action is reviewable in a

district court.” Id. at 1420. Plaintiff argued that the FAA’s failure to investigate

the plaintiff’s complaint was not a final order “because the FAA did not act as

mandated.” Id. at 1421. Thus the plaintiff argued the district court had

jurisdiction over the suit. Id. We disagreed, concluding the district court lacked

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subject matter jurisdiction because “[s]ection 1486(a) vests the circuit courts with

exclusive jurisdiction to review FAA actions, such as here, which might affect the

future adjudicative power of the circuit court.” Id. at 1422.

Here, although the complained-of actions do not constitute “final orders” of

the FAA, the district court lacked jurisdiction over them for the reasons set out in

Kabeller. Plaintiffs try to distinguish this case from Green and Kabeller by

arguing that Defendants, as agents of the FAA, are “guilty of the systematic abuse

of the power of their positions and responsibilities.”2 But the record does not

suggest that the actions complained of are part of a pattern and practice of FAA

officials to violate individuals’ constitutional rights. “The record being bereft of

anything remotely approaching systemic abuse, we discern no need to deviate

from the clear congressional intent under § 1486(a) to vest exclusive jurisdiction

in this Court.” See id.

III.

We now address the claims over which the district court had jurisdiction.

Plaintiffs argue the district court erred when it found both that Plaintiffs had not

set forth a procedural due process claim and that Defendants were shielded from

2

Plaintiffs make these allegations of widespread abuse for the first time in their reply

brief, so we decline to consider them. See United States v. Martinez, 83 F.3d 371, 377 n.6 (11th

Cir. 1996).

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liability by the doctrine of qualified immunity.

Plaintiffs alleged that Defendants removed important records from

Plaintiffs’ offices. But that does not constitute a violation of procedural due

process because Plaintiffs had no vested property interest in the records. See 14

C.F.R. § 13.7 (“Each record, document and report that the Federal Aviation

Regulations require to be maintained, exhibited or submitted to the Administrator

may be used in any investigation conducted by the Administrator . . . .”). And the

district court lacked jurisdiction over Plaintiffs’ claim that Defendants refused to

return these records. See supra Part II.

Plaintiffs also alleged that Defendants: (1) knowingly made false statements

to Plaintiffs’ aircraft lessor, thereby interfering with the relationship between

Plaintiffs and their aircraft lessor; and (2) arbitrarily, capriciously, unlawfully, and

intentionally attempted to ground Plaintiffs’ aircraft without notice or the

opportunity for a hearing by circulating an e-mail to all FAA offices that falsely

claimed that“most, if not all” of Plaintiffs’ aircrafts were not airworthy. These

allegations fail to state a Bivens claim—as the district court noted, the questioning

of an aircraft’s airworthiness does not violate the Constitution. Cf. Behrens v.

Regier, 422 F.3d 1255, 1259 (11th Cir. 2005) (“[I]njury to reputation, by itself,

does not constitute the deprivation of a liberty or property interest protected under

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the Fourteenth Amendment.”). And while interfering with a business relationship

may constitute a tort, it is not a constitutional violation. Plaintiffs have simply not

alleged a deprivation of a sufficient property or liberty interest. See Cypress Ins.

Co. v. Clark, 144 F.3d 1435, 1438 (11th Cir. 1998) (rejecting procedural due

process claim against Florida Department of Insurance employee for alleged

defamatory statements which caused the plaintiff’s sole customer to withdraw

from the Florida insurance market). And to the degree that Defendants actually

grounded an aircraft, the district court lacked jurisdiction to review the claim

because such an action would constitute a final FAA order. See supra Part II.

Finally, Plaintiffs allege that Defendants arbitrarily, capriciously, and

unlawfully subjected Plaintiffs’ aircraft to spurious, lengthy inspections that

caused Plaintiffs significant scheduling problems and drove Plaintiffs’ customers

away.3 Qualified immunity protects government officials performing discretionary

functions if their conduct does not violate “clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727 (1982). FAA employees are tasked

with the responsibility of promoting safety in the airline industry under the

3

Plaintiffs waived their conspiracy arguments in the district court, so we do not consider

them here.

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statutory and regulatory FAA scheme, and are granted broad discretion in doing

so. See §§ 44701(a), et seq.; Dilley v. NTSB, 49 F.3d 667, 668 (10th Cir. 1995)

(“The Federal Aviation Act is one of the broadest grants of power given by

Congress to a federal agency.”). And Defendants’ actions in inspecting Plaintiffs’

aircraft does not rise to the level of a violation of a clearly established right. Cf.

United States v. S.A. Empresa de Viacao Aerea Rio Grandense, 467 U.S. 797,

820–21, 104 S. Ct. 2755 (1984) (addressing claims under the federal Tort Claims

Act and holding discretionary the FAA’s decision to implement “spot-check”

system for aircraft certification, stating “[w]hen an agency determines the extent to

which it will supervise the safety procedures of private individuals, it is exercising

discretionary regulatory authority of the most basic kind”).

Finally, no constitutional right is implicated by a complaint that asserts a

property interest in maintaining a business or earning a profit.4 See College Sav.

Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675, 119 S.

Ct. 2219 (1999) (explaining “[t]he assets of a business (including its good will)

unquestionably are property, . . . [b]ut business in the sense of the activity of doing

4

Plaintiffs argue for the first time that the property interests at stake are the “rights they

acquired when the FAA issued their Operating Certificates.” They did not argue this below, and

thus we will not entertain this argument. See Bryant v. Jones, 575 F.3d 1281, 1308 (11th Cir.

2009).

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business, or the activity of making a profit is not property in the ordinary sense,”

and declining to find a due process violation). Because the complaint failed to

state a claim for procedural due process, and the district court properly dismissed

it.

AFFIRMED.

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