Dresser v. Ingolia

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

January 21, 2009

No. 07-31121

Charles R. Fulbruge III

Clerk

CHRISTOPHER J DRESSER

Plaintiff - Appellant

v.

JOSEPH N INGOLIA, Individually and In His Official Capacity as the Chief

Administrative Law Judge for the United States Coast Guard; WALTER J

BRUDZINSKI, Individually and In His Official Capacity as a Coast Guard

Administrative Law Judge; THAD W ALLEN, In His Official Capacity as the

Commandant of the United States Coast Guard; KENNETH V WILSON;

ALYSSA L PALADINO

Defendants - Appellees

JAMES M ELSIK

Plaintiff - Appellant

v.

JOSEPH N INGOLIA, Individually and in His Official Capacity as the Chief

Law Judge for the United States Coast Guard; THAD W ALLEN, In His

Official Capacity as the Commandant of the United States Coast Guard;

TERRY M CROSS, In His Official Capacity as the Vice Commandant of the

United States Coast Guard; HANNA LIDDINGTON; GEORGE J JORDAN;

KENNETH V WILSON; MEGAN H ALLISON; JIM WILSON

Defendants - Appellees

MURRAY R ROGERS

Plaintiff - Appellant

v.

No. 07-31121

JOSEPH N INGOLIA, Individually and In His Offical Capacity as the Chief

Administrative Law Judge for the United States Coast Guard; THAD W

ALLEN, In His Official Capacity as the Commandant of the United States

Coast Guard; TERRY M CROSS, In His Official Capacity as the Vice

Commandant of the United States Coast Guard; HANNA LIDDINGTON;

GEORGE J JORDAN; KENNETH V WILSON; MEGAN H ALLISON; JIM

WILSON

Defendants - Appellees

Appeal from the United States District Court

for the Eastern District of Louisiana, New Orleans

No. 2:07-CV-1536

Before KING, HIGGINBOTHAM, and WIENER, Circuit Judges.

PER CURIAM:*

Three mariners allege that Coast Guard administrative law judges,

clerks, and other staff conspired to “fix” the administrative proceedings relating

to the revocation of their licenses. The district court dismissed without

prejudice, reasoning, inter alia, that it lacked subject matter jurisdiction under

the Administrative Procedure Act and that plaintiffs’ Bivens claims were

preempted by a comprehensive framework established to address and remedy

their claims. Because we conclude that the district court lacked subject matter

jurisdiction over both the Administrative Procedure Act and Bivens claims, we

affirm.

*

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 07-31121

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

Three plaintiffs are part of the present appeal: Christopher Dresser, James

Elsik, and Murray Rogers. Dresser is a marine engineer who volunteered for a

drug screen test and tested positive for marijuana. On March 3, 1998, the Coast

Guard initiated an investigation and Suspension and Revocation (“S&R”) action

against Dresser to revoke his engineering license and merchant mariner’s

document. Elsik is a tugboat captain and holder of a United States Coast Guard

Master of Towing Vessels License Upon Great Lakes, Inland Waters and

Western Rivers. On September 20, 2004, the Coast Guard initiated an S&R

action against Elsik by filing a complaint regarding an alleged allision in

Houma, Louisiana. Rogers is a tugboat mariner and holder of a United States

Merchant Marine Officer License. On June 22, 2004, the Coast Guard initiated

an S&R action against Rogers for actions related to the boarding of the M/V

Bailey Ann in Morgan City, Louisiana.

All three plaintiffs allege that, over the course of their revocation

proceedings, Chief Administrative Law Judge (“ALJ”) Joseph Ingolia, other

ALJs, and certain Coast Guard staff enforced an unwritten policy to rule against

mariners in S&R proceedings. Plaintiffs put forward myriad allegations of Coast

Guard misconduct in order to support their claims. For example, Dresser alleges

that Chief ALJ Ingolia had threatened the ALJ presiding over his case, Walter

Brudzinski, that he would lose his job unless he ruled for the Coast Guard.

Dresser relies on an affidavit from former ALJ Jeffie Massey to support this

claim. Elsik and Rogers allege that, on February 24, 2005, certain Coast Guard

officials met in order to convince Chief ALJ Ingolia to pressure ALJ Massey to

rule against Elsik and Rogers and to prepare the Commandant and Vice

Commandant for an appeal should Chief ALJ Ingolia be unsuccessful in

pressuring ALJ Massey. Elsik and Rogers point to Chief ALJ Ingolia’s policy

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No. 07-31121

letter to all ALJs, in which he allegedly advocated the Coast Guard’s position on

discovery requests in their S&R proceedings. Elsik and Rogers also allege that

Chief ALJ Ingolia told ALJ Massey that she should always rule in the Coast

Guard’s favor and that she was the only ALJ not following this unwritten policy.

B. Procedural Background

i. Procedural background in the Coast Guard’s appeals system

Each of the plaintiffs in the present case was the subject of a separate S&R

proceeding in the Coast Guard. These distinct procedural histories are relevant

to this appeal.

On March 3, 1998, the Coast Guard commenced an S&R proceeding

against Dresser. After disclosing a potential conflict, the ALJ issued a Decision

& Order (“D&O”) finding that Dresser’s positive drug test demonstrated his use

of a dangerous drug and hence revoked Dresser’s engineer’s license and

mariner’s document.1 Dresser appealed the decision to the Commandant, who

affirmed the ALJ’s D&O, and then to the National Transportation Safety Board

(“NTSB”), which found that there was an appearance of a lack of impartiality

and remanded the case for a new hearing. The new ALJ’s D&O again revoked

Dresser’s engineer’s license and mariner’s document. Dresser appealed to the

Commandant. His case was still pending before the Commandant when Dresser

filed his complaint in the Eastern District of Louisiana and when the district

court delivered its judgment.

On September 20, 2004, the Coast Guard commenced an S&R proceeding

against Elsik. ALJ Massey, who presided over the hearing, granted Elsik’s

Motion for Interrogatories, though the Coast Guard objected to the related

discovery deadlines. After the alleged February 24, 2005 meeting and Chief ALJ

1

After the initial hearing but before the ALJ issued his D&O, Dresser had filed a

products liability action in the Eastern District of Louisiana against the manufacturer of hemp

seed oil that Dresser had ingested and that he alleged caused the positive test result. The

ALJ’s son represented the hemp seed oil manufacturer in the district court trial.

4

No. 07-31121

Ingolia’s issuance of the policy guidelines, ALJ Massey dismissed the misconduct

counts against Elsik with prejudice. The Coast Guard appealed ALJ Massey’s

dismissal to the Commandant, arguing that dismissal with prejudice was

improper because it was based on discovery violations. The Commandant ruled

in favor of the Coast Guard, reversed the dismissal, and remanded for further

proceedings. On remand, the Coast Guard asked the ALJ to dismiss the S&R

action without prejudice. ALJ Brudzinski complied with the Coast Guard’s

request on January 5, 2007. Elsik’s license was neither suspended nor revoked

as a result of these S&R charges.2

Rogers’s S&R hearing was assigned to ALJ Massey, who approved

discovery at Rogers’s request. Similar to Elsik’s case, the Coast Guard did not

meet a deadline to respond to a subpoena. After inviting suggestions for

sanctions from Rogers, ALJ Massey dismissed the entire case with prejudice on

March 25, 2005. The Coast Guard appealed to the Commandant. Rogers’s case

was pending before the Commandant when he filed his complaint in the Eastern

District of Louisiana and when the district court delivered its judgment.3

ii. Procedural background in the district court and after the district court’s

ruling

In federal district court, all three plaintiffs brought separate suits seeking

declaratory and injunctive relief, writs of mandamus, and damages relating to

the revocation of their licenses under Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388 (1971). Dresser filed his lawsuit

against Chief ALJ Ingolia (individually and in his official capacity as Chief ALJ),

ALJ Brudzinski (individually and in his official capacity as ALJ), Thad Allen (in

2

Elsik’s license was subsequently suspended for three months due to an unrelated

allision, though such suspension was not relevant to the proceedings below.

3

Dresser and Rogers thus had a similar procedural posture below: both of their Coast

Guard appeals were pending at the time they filed their suits in the Eastern District of

Louisiana and when the district court dismissed their claims without prejudice.

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No. 07-31121

his official capacity as Coast Guard Commandant), Kenneth Wilson, and Alyssa

Paladino. Elsik filed this lawsuit against Chief ALJ Ingolia (individually and in

his official capacity as Chief ALJ), Thad Allen (in his official capacity as Coast

Guard Commandant), Terry Cross (in his official capacity as Coast Guard Vice

Commandant), Hanna Lidington, George Jordan, Kenneth Wilson, Megan

Allison, and Jim Wilson. Rogers filed his lawsuit against the same defendants

as Elsik.4 The latter two proceedings were consolidated for hearing with

Dresser’s.5

The defendants filed a motion to dismiss under Rules 12(b)(1), 12(b)(5),

and 12(b)(6) of the Federal Rules of Civil Procedure. The district court granted

in part and denied in part defendants’ motion to dismiss. The court ruled, inter

alia, that: (1) Dresser possessed standing because the ALJ’s D&O was a

sufficiently final agency action; (2) Elsik possessed constitutional standing

because he adequately alleged an economic impact resulting from the

investigation; (3) Elsik failed to exhaust his administrative remedies because the

Coast Guard had dismissed its action against him and there was thus no final

agency action; (4) Dresser had exhausted his administrative remedies under the

Administrative Procedure Act (“APA”) because the ALJ’s D&O was a final

agency action; (5) plaintiffs’ Bivens claims were not preempted by the

administrative appeals process in the Coast Guard; (6) the ALJs presiding over

the plaintiffs’ revocation hearings were entitled to absolute judicial immunity

but Chief ALJ Ingolia was not; (7) the defendant staff members and clerks were

entitled to quasi-judicial immunity; and (8) all defendants except Chief ALJ

Ingolia were protected from suit by qualified immunity.

4

The defendants listed in all three actions are hereinafter referred to as “the

defendants.”

5

Rogers did not participate in the proceedings below because his procedural posture was

similar to Dresser’s and his factual history was generally similar to Elsik’s.

6

No. 07-31121

Subsequently, the district court ruled on defendants’ Motion for

Reconsideration and more fully addressed the issues currently appealed. First,

the court granted defendants’ motion in part on the grounds that the plaintiffs

failed to exhaust their administrative remedies. It held that 33 C.F.R.

§ 20.1101(b)(1)6 was “clear on its face” that an ALJ decision was final unless

appealed to the Commandant and that, if appealed to the Commandant,

administrative remedies were not exhausted until the Commandant ruled.

Since Dresser’s and Rogers’s appeals before the Coast Guard were pending, they

had not exhausted their remedies under the finality requirement. Also, the

court reiterated that Elsik’s appeal had been dismissed, thus only affecting his

rights on the contingency of future administrative action and not constituting

a final, appealable decision. Second, the court granted the motion in part on the

grounds that the Coast Guard’s administrative appeal system preempted

plaintiffs’ Bivens claims. The court concluded that the APA granted “federal

courts broad powers to review agency action, including constitutional violations.”

This framework, it reasoned, was “comprehensive . . . to address and remedy

claims of constitutional violations in either the S&R hearings themselves or

upon review in federal court.” Accordingly, it determined that a non-statutory

Bivens remedy was unnecessary under Schweiker v. Chilicky, 487 U.S. 412

(1988). Finally, the district court denied in part defendants’ Motion for

Reconsideration on the grounds that Chief ALJ Ingolia was not entitled to

qualified immunity. The court reasoned that plaintiffs had established a

constitutional due process violation and that Chief ALJ Ingolia had acted in an

6

Though the district court refers to 33 C.F.R. § 22.1101(b)(1), the relevant provisions

have since been moved to § 20.1101(b)(1).

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No. 07-31121

objectively unreasonable manner by improperly influencing other ALJs. The

district court then dismissed the case without prejudice.7

The plaintiffs filed a timely notice of appeal in this court. While the appeal

was pending, the Commandant issued its decisions in Dresser’s and Rogers’s

cases. In Dresser’s case, the Commandant affirmed the ALJ’s D&O and also

granted Dresser leave to submit any supplemental filings or briefs. In Rogers’s

case, the Commandant ruled that ALJ Massey had abused her discretion when

she dismissed Rogers’s case with prejudice as a sanction for the Coast Guard’s

failure to comply with a subpoena.8

II. STANDARD OF REVIEW

“We review dismissals for lack of subject matter jurisdiction under Federal

Rule of Civil Procedure 12(b)(1) de novo.” Williams v. Wynne, 533 F.3d 360,

364–65 (5th Cir. 2008). A district court’s dismissal of a case for want of subject

matter jurisdiction due to a failure to exhaust administrative remedies is

reviewed de novo as a question of law. Taylor v. U.S. Treasury Dep’t, 127 F.3d

470, 475 (5th Cir. 1997). Additionally, a district court’s interpretation of a

statute or regulation is a question of law that we review de novo. Teemac v.

Henderson, 298 F.3d 452, 456 (5th Cir. 2002).

This court also reviews de novo a district court’s grant or denial of a Rule

12(b)(6) motion to dismiss, Frank v. Delta Airlines, Inc., 314 F.3d 195, 197 (5th

Cir. 2002), “accepting all well-pleaded facts as true and viewing those facts in

the light most favorable to the plaintiff,” Stokes v. Gann, 498 F.3d 483, 484 (5th

7

The district court also discussed issues relating to mandamus and abstention. The

plaintiffs fail to challenge these determinations on appeal; therefore, they have waived these

arguments. See DSC Commc’ns Corp. v. Next Level Comm’ns, 107 F.3d 322, 326 n.2 (5th

Cir.1997) (“[A] party who fails to raise an issue in its initial brief waives the right to review of

that issue.”).

8

Though the defendants have supplemented the record with the Commandant’s

decision in Rogers’s case, we lack the Commandant’s decision in Dresser’s case.

8

No. 07-31121

Cir. 2007). Dismissal is appropriate when the plaintiff has not alleged “enough

facts to state a claim to relief that is plausible on its face” and has failed to “raise

a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 127

S.Ct. 1955, 1965, 1974 (2007).

III. DISCUSSION

Reviewing the district court’s order dismissing plaintiffs’ cases without

prejudice, we agree that the district court lacked subject matter jurisdiction over

plaintiffs’ claims for judicial interdiction and review under the APA. However,

we do not reach the district court’s conclusion that plaintiffs’ Bivens claims are

preempted because we conclude that the district court lacked subject matter

jurisdiction over plaintiffs’ Bivens claims.

A. Plaintiffs’ Claims Under the APA

“When an aggrieved party has exhausted all administrative remedies

expressly prescribed by statute or agency rule, the agency action is ‘final for the

purposes of this section’ and therefore ‘subject to judicial review’” under the

APA. Darby v. Cisneros, 509 U.S. 137, 146 (1993) (quoting 5 U.S.C. § 704); see

also United States v. Menendez, 48 F.3d 1401, 1411 (5th Cir. 1995). Section

10(a) of the APA provides that a person is entitled to judicial review if he

“suffer[s a] legal wrong because of agency action, or [is] adversely affected or

aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C.

§ 702. Section 10(c) of the APA states that “final agency action for which there

is no other adequate remedy in a court” is subject to judicial review and that a

“preliminary, procedural, or intermediate agency action or ruling not directly

reviewable is subject to review on the review of the final agency action.” 5

U.S.C. § 704. Two conditions must be met for agency action to be final. Bennett

v. Spear, 520 U.S. 154, 177 (1997). “First, the action must mark the

consummation of the agency’s decisionmaking process—it must not be of a

merely tentative or interlocutory nature.” Id. at 177–78 (internal citations and

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No. 07-31121

quotation marks omitted). Second, “the action must be one by which rights or

obligations have been determined, or from which legal consequences will flow.”

Id. at 178 (internal citations and quotation marks omitted).

Coast Guard regulations state that, “[u]nless appealed . . . an ALJ’s

decision becomes final action of the Coast Guard 30 days after the date of its

issuance.” 33 C.F.R. § 20.1101(b)(1). If a mariner appeals an ALJ decision to the

Commandant, the Commandant’s decision is final unless the case is remanded.

33 C.F.R. § 20.1101(b)(2) (“If the Commandant issues a decision . . . the decision

constitutes final action of the Coast Guard on the date of its issuance.”); 46

C.F.R. § 5.805(c) (“The Decision of the Commandant on Review, shall be the final

agency action in the absence of a remand.”). In the present case, the district

court held that there was no final agency action by the Coast Guard in Dresser’s

and Rogers’s cases because their appeals were still pending with the

Commandant. We agree with the district court’s conclusion that “[t]he

regulation is clear on its face that an ALJ’s decision is ‘final’ action, unless the

decision is appealed,” and that, on these facts, “Dresser’s [and Rogers’s] claims

are barred by the APA’s finality requirement.”

In their briefs to this court, Dresser and Rogers fail to challenge the

district court’s conclusion that the agency action is not final until the

Commandant completes his review of the claims. Instead, they contend that the

district court erred in failing to apply an exception to the finality rule that this

court articulated in United States v. Feaster, 410 F.2d 1354, 1366 (5th Cir. 1969)

(“[J]udicial interdiction of the administrative process [is possible] where there

is a substantial showing that Board action has violated the constitutional rights

of the complaining party.” (internal quotation marks omitted)). Dresser and

Rogers have not succeeded in identifying any case in the forty years since

Feaster was decided in which the complaining party made the requisite showing.

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No. 07-31121

A case containing only allegations, albeit serious, should not be the first. We

decline to apply any Feaster exception here.

Furthermore, this court continues to lack jurisdiction because a “party

invoking the jurisdiction of the court cannot rely on events that unfolded after

the filing of the complaint to establish its standing.” Kitty Hawk Aircargo, Inc.

v. Chao, 418 F.3d 453, 460 (5th Cir. 2005) (citing Lujan v. Defenders of Wildlife,

504 U.S. 555, 570 n.4 (1992)); see also Newman-Green, Inc. v. Alfonzo-Larrain,

490 U.S. 826, 830 (1989) (“The existence of federal jurisdiction ordinarily

depends on the facts as they exist when the complaint is filed.”). The Seventh

Circuit has dealt with a similarly “gnarled procedural posture” where (1)

plaintiff’s NTSB appeal was still pending, (2) plaintiff appealed to a federal

district court, and (3) the NTSB ruled on its appeal between the district court

order and the Seventh Circuit’s decision. Gaunce v. deVincentis, 708 F.2d 1290,

1293 n.5 (7th Cir. 1983). Finding that the NTSB’s final order was “not of

jurisdictional consequence,” the court stated that “[i]t would be unprincipled if

our jurisdiction was dependent on the happenstance of an agency rendering its

final order subsequent to the filing of the notice of appeal, but prior to our

consideration of the appeal.” Id. at 1294. The court vacated the district court’s

judgment and remanded with instructions to dismiss the complaint for lack of

subject matter jurisdiction. Id. at 1291. For our purposes, we agree that

Dresser and Rogers cannot now claim that subject matter jurisdiction exists

merely because the Commandant ruled during the pendency of their appeal.

Finally, we agree with the district court that Elsik also has not exhausted

his administrative remedies by failing to meet the APA’s finality requirement.

The Coast Guard dismissed its claim against him without prejudice. Though

Elsik claims that he may be harmed if the Coast Guard again commences

proceedings against him, the district court correctly reasoned that “a non-final

agency order is one that ‘does not of itself adversely affect complainant but only

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No. 07-31121

affects his rights adversely on the contingency of future administrative action.’”

Peoples Nat’l Bank v. Office of Comptroller of Currency of the U.S., 362 F.3d 333,

337 (5th Cir. 2004) (quoting Rochester Tel. Corp. v. United States, 307 U.S. 125,

130 (1939)).9

We thus affirm the district court’s dismissal without prejudice of plaintiffs’

claims arising under the APA.

B. Plaintiffs’ Bivens Claims

The district court found that plaintiffs’ Bivens claims are preempted by a

comprehensive framework that allowed them to supplement the Commandant’s

record and to subsequently avail themselves of federal court review. However,

the court’s consideration of Bivens preemption was premature because it lacked

subject matter jurisdiction over the claims.

Generally, “plaintiffs should not be able to circumvent administrative

review through suit in federal court.” Zephyr Aviation, L.L.C. v. Dailey, 247 F.3d

565, 572 (5th Cir. 2001). In the Federal Aviation Administration (“FAA”)

context, this court has stated that “parties may not avoid administrative review

simply by fashioning their attack on an FAA decision as a constitutional tort

claim against individual FAA officers.” Id. Though federal district courts “have

subject matter jurisdiction over Bivens claims raising broad constitutional

challenges to FAA practices,” they lack jurisdiction over claims that are

“inescapably intertwined with a review of the procedures and merits

9

Though Elsik also argues that an exception to the finality rule should apply, we find

such arguments unconvincing in light of our previous statements that such an exception is

“extraordinary” and available only when based on an “unambiguous” constitutional violation.

See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Nat’l Ass’n of Secs. Dealers, Inc., 616 F.2d

1363, 1370–71 (5th Cir. 1980) (noting that “only exceptional circumstances justify court

intervention in the administrative process prior to exhaustion of administrative remedies” and

that an exception to the exhaustion requirement requires “a clear and unambiguous statutory

or constitutional violation.”); Coca-Cola Co. v. FTC, 475 F.2d 299, 304 (5th Cir. 1973) (“The

extraordinary remedy of judicial intervention . . . is unavailable unless necessary to vindicate

an unambiguous statutory or constitutional right.”).

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No. 07-31121

surrounding an FAA order.” Id. (internal quotation marks omitted). In Zephyr

Aviation, a case of first impression regarding the exhaustion requirement and

the availability of Bivens claims, this court ruled that the district court

possessed subject matter jurisdiction over the plaintiff’s Bivens claims despite

plaintiff’s failure to exhaust administrative remedies in the FAA appeals system.

Id. at 573. We reasoned that such jurisdiction existed because “Zephyr’s claims

[did] not relate to an FAA order currently pending against it.” Id. at 572.

Instead, the plaintiff was seeking “monetary relief for alleged extra-procedural

and unconstitutional actions by FAA inspectors,” and “the administrative appeal

procedure outlined in the Aviation Act” could not provide such relief. Id. This

court thus distinguished the holdings of other circuits by stating that Zephyr

Aviation’s case did not “implicate an FAA order that [was] currently in place”

and therefore “could not function as a collateral attack on an FAA order or

action.” Id.

Though this court has not addressed this issue since Zephyr Aviation,

other circuit courts have concluded that a district court lacks subject matter

jurisdiction when due process claims are “inescapably intertwined” with a review

of the merits and procedure of an agency’s decision. See, e.g., Merritt v. Shuttle,

Inc., 187 F.3d 263 (2d Cir. 1999); Tur v. FAA, 104 F.3d 290 (9th Cir. 1997); Green

v. Brantley, 981 F.2d 514 (11th Cir. 1993). In Merritt v. Shuttle, the Second

Circuit held that a district court lacked subject matter jurisdiction over a pilot’s

Bivens claim because the statutory scheme provided for exclusive review directly

in the court of appeals. The pilot in Merritt alleged that FAA officials had “failed

to conduct a meaningful investigation and instead conspired to conceal their own

negligence” by blaming the plaintiff for flying in bad weather. 187 F.3d at 266.

The court reasoned that plaintiff’s Fifth Amendment due process claim was

“‘inescapably intertwined’ with review of the revocation order” and that, despite

plaintiff styling his Bivens claim in constitutional terms, he was ultimately

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challenging “the manner in which the officials conducted themselves during and

after the June 24 incident” and disputing “the ALJ’s factual conclusion that he

bore responsibility for an ill-considered decision to take off.” Id. at 271. Such

analysis would thus “result in new [district court] adjudication over the evidence

and testimony adduced in the prior revocation hearing, the credibility

determinations made by the ALJ, and, ultimately, the findings made by the ALJ

during the course of the proceedings.” Id. (footnotes, internal quotation marks,

and alterations omitted). Such review, it reasoned, was inappropriate because

the plaintiff “failed to complete the judicial review process by either perfecting

an appeal to the NTSB or filing a petition for review in the appropriate court of

appeals.” Id.

Similarly, in Green v. Brantley, the Eleventh Circuit found that the district

court lacked subject matter jurisdiction over plaintiff’s Bivens claims against

FAA officials. 981 F.2d at 516. The plaintiff alleged that the officials violated

his due process rights by “conspir[ing] to present false accusations against him

with the intent to cause his financial ruin.” Id. at 518. The court concluded that

the district court had no jurisdiction over the appeal because the FAA’s

termination of Green’s Designated Pilot Examiner certificate was an appealable

order that conferred exclusive jurisdiction on a federal court of appeals after

administrative review. Id. at 519–21. Again, the court reasoned that “[t]he

merits of Green’s Bivens claims [were] inescapably intertwined with a review of

the procedures and merits surrounding the FAA’s order.” Id. at 521.

The Ninth Circuit’s approach is also instructive. In Mace v. Skinner, the

court ruled that the district court possessed jurisdiction over a Bivens claim

because it constituted a “broad challenge to allegedly unconstitutional FAA

practices.” 34 F.3d 854, 859 (9th Cir. 1994). In that case, an aircraft engineer

alleged that: (1) “the FAA was not authorized to revoke certificates as a sanction

for violating aviation safety regulations, nor was the NTSB authorized to try

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such revocations”; (2) “only fines were authorized as a sanction for safety

violations”; (3) “the FAA failed to promulgate rules relating to the revocation

procedures, to give the public notice of and an opportunity to comment on such

rules, and to publish them in the Federal Register”; and (4) “the FAA’s

emergency procedures failed to accord Mace adequate notice of the revocation of

his certificate.” Id. at 856.

In the present case, the district court incorrectly assumed that it had

subject matter jurisdiction over plaintiffs’ Bivens claims when it concluded that

there was “a comprehensive framework to address and remedy claims of

constitutional violations.” In fact, the district court lacked subject matter

jurisdiction over the plaintiffs’ Bivens claims because such claims were

inescapably intertwined with a review of the procedure and merits surrounding

their respective D&Os. Unlike in Zephyr Aviation, where the plaintiff did not

have to exhaust its administrative remedies because it was asserting claims that

did not relate to an “order currently pending against it,” here the allegations of

ALJs “fixing” cases necessitates a review of the ALJs’ decision making and the

merits of each plaintiff’s arguments regarding whether his license should have

been revoked. Also, unlike the plaintiff in Mace, plaintiffs are not broadly

challenging the constitutionality of Coast Guard authority to bring revocation

actions or its failure to promulgate rules relating to revocation procedures.

Rather, plaintiffs’ Bivens claims resemble those of the plaintiff in Merritt in that

they require a “new adjudication over the evidence and testimony adduced in the

prior revocation hearing, the credibility determinations made by the ALJ, and,

ultimately, the findings made by the ALJ during the course of the proceedings.”

187 F.3d at 271 (internal quotation marks, alterations, and citations omitted).

We thus conclude that the district court lacked subject matter jurisdiction over

plaintiffs’ Bivens claims and that exercising jurisdiction over such claims

“circumvent[s] administrative review through suit in federal court.” Zephyr

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Aviation, 247 F.3d at 572. Based on this reasoning, we affirm the district court’s

judgment dismissing without prejudice plaintiffs’ Bivens claims.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment

dismissing the plaintiffs’ claims without prejudice.

16