Bradley J. BURDUE, Petitioner, v. FEDERAL AVIATION ADMINISTRATION, Respondent.
No. 13-4029.
United States Court of Appeals, Sixth Circuit.
Dec. 23, 2014.
775 F.3d 1076
“The answering party may assert lack of knowledge or information as a reason for failing to admit or deny only if the party states that it has made reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny.”
The district court‘s finding that Efacts never stated it made a reasonable inquiry and that it was unable to show that it actually inquired is not clearly erroneous. Moreover, Efacts’ assertion that “even if [it] had admitted the authenticity of the ISP documents, Plaintiffs would still have been required to prepare for and put on at least a portion of the same or similar testimony” from the ISP representatives is meritless. [Appellant‘s Br., § IV.C.]; see United States v. Johnson, 831 F.2d 124, 129 (6th Cir.1987) (pointing out that hearsay objections could be overcome via the business records exception where the objecting party stipulated prior to trial that the documents at issue were authentic business records). Therefore, we conclude that the district court did not abuse its discretion in awarding sanctions.
III. CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED in its entirety.
ON BRIEF: Richard G. Martin, Fraser Clemens Martin & Miller LLC, Perrysburg, Ohio, for Petitioner. Bradley J. Preamble, Federal Aviation Administration, Washington, D.C., for Respondent.
Before: KEITH, BATCHELDER, and STRANCH, Circuit Judges.
OPINION
ALICE M. BATCHELDER, Circuit Judge.
Bradley J. Burdue petitions for review of a Federal Aviation Administration (“FAA“) order revoking his certification as
I.
Burdue was appointed as a DAR-T on December 28, 2001. A DAR-T is a private person authorized by the FAA to conduct aircraft inspections and issue airworthiness certificates. His certification expired
On March 14, 2013, Burdue‘s supervisors were informed of “some issues” related to Burdue‘s export certifications for aircraft being sold overseas. The FAA‘s Special Emphasis Investigations Team (“SEIT“) later concluded that Burdue had engaged in “conduct inconsistent with the care, judgment, and integrity normally associated with, and expected of, an FAA designee.” The SEIT “found that Mr. Burdue performed multiple aircraft inspections out of his assigned geographic area without authorization.” Admin. R. 1. It also concluded that Burdue had issued export certificates to aircraft owned by Burdue and his wife, “[a] clear conflict of interest.” Ibid. Attached to the SEIT‘s findings were thirteen “Items of Proof” on which the SEIT based its findings, including particular aircraft registration numbers, inspection numbers, and dates.
Inspector David Lindsey of the Cleveland Flight Standards District Office (“FSDO“) showed the SEIT‘s findings to Burdue and encouraged him to respond. Burdue then responded to these findings in a lengthy letter sent to Inspector Lindsey. Admin. R. 95-97. After reviewing the SEIT‘s findings and Burdue‘s response, J.D. Martin, the General Aviation Technical Support Branch Manager, recommended to Leroy Moore, Manager of the Cleveland FSDO, that Burdue‘s designation be terminated “for cause.” Admin. R. 102. Martin‘s recommendation analyzed both the SEIT‘s findings and Burdue‘s response.
Moore revoked Burdue‘s certificate on April 29, 2013. Burdue‘s termination letter indicated that the revocation was being made pursuant to both the “for cause” provision of
On May 15, 2013, Burdue submitted a seventeen-page “Appeal Brief,” which included a number of supporting documents. Moore sent a letter to Burdue two days later acknowledging receipt of Burdue‘s request for an appeal and the Appeal Brief itself. On June 21, 2013, over a month after the appeal deadline, Burdue submitted an Appeal Brief Supplement, which highlighted information gleaned from documents Burdue had obtained from the FAA after he filed a Freedom of Information Act (“FOIA“) request. Admin. R. 183-88. Although it was untimely, Martin appears to have provided the Appeal Brief Supplement and its attachments to the appeal panel no later than June 28, 2013. On July 2, 2013, Burdue was informed that “[t]he Appeal Panel was convened and reviewed your appeal documents. It is the Panel‘s decision that the termination of your DAR designation ... be upheld.” Admin. R. 189.
Prior to filing this petition, Burdue brought a Bivens action in the U.S. District Court for the Northern District of Ohio claiming a violation of his Fifth Amendment right to due process and wrongful termination. Burdue requested that the district court order the FAA to revoke his termination and purge its files of any references to his “for cause” termination, order an injunction preventing his termination “without providing full procedural due process,” and award damages. Burdue then filed this petition on August 30, 2013. FAA administrator Michael Huerta moved to stay the Bivens action pending this Court‘s resolution of Burdue‘s petition. The district court then ordered a stay of Burdue‘s district court proceedings,
II.
We first turn to Burdue‘s statutory claims. Our jurisdiction arises under
A.
Burdue contends initially that the termination of his designation is not an “order” over which we possess exclusive jurisdiction under
First, courts have uniformly interpreted the jurisdictional exclusivity provision of
Second, courts have also required that “the ‘order’ ... be predicated on an administrative record sufficient to allow a court to engage in a meaningful review.” Aerosource, 142 F.3d at 578; see also Sima Prods. Corp. v. McLucas, 612 F.2d 309, 314 (7th Cir.1980). We have required something similar prior to exercising the exclusive circuit-court jurisdiction over a “final order” of the National Transportation Safety Board. See N. Am. Aviation Props., Inc. v. Nat‘l Transp. Safety Bd., 94 F.3d 1029, 1031 (6th Cir.1996). This requirement, however, is not a demanding one. See, e.g., Atorie Air, 942 F.2d at 960 (holding that an administrative record containing only the petitioner‘s surrendered FAA certificates sufficed to review a claim of procedural impropriety); Green v. Brantley, 981 F.2d 514, 519 (11th Cir.1993) (finding an “order” where “the administrative record consists of Brantley‘s investigation of Green‘s alleged misconduct, letters written by Green and his attorney, and various letters from Smith, Castleberry, and another FAA official“); S. Cal. Aerial Advertisers’ Ass‘n v. FAA, 881 F.2d 672,
B.
The APA provides a general cause of action for parties “adversely affected or aggrieved by agency action within the meaning of a relevant statute.”
In construing
fairly exudes deference to the Director, and appears to us to foreclose the application of any meaningful judicial standard of review. Short of permitting cross-examination of the Director concerning his views of the Nation‘s security and whether the discharged employee was inimical to those interests, we see no basis on which a reviewing court could properly assess an Agency termination decision. The language of § 102(c) thus strongly suggests that its implementation was “committed to agency discretion by law.”
Two sister circuits have considered this exact question—whether
[T]his argument begs the question: substantial evidence of what? For any decision made by the Administrator, there will always be substantial evidence that the decision was made “at any time for any reason.” Because there are no constraints on the Administrator‘s discre-
tion, there certainly are no judicially manageable standards by which to judge the Administrator‘s action. Petitioner‘s mistake is that he confuses the presence of a standard of review with the existence of law to apply.
Id. at 639. The Ninth Circuit reached the same result when it determined that
Our reasoning in Joelson v. United States, 86 F.3d 1413 (6th Cir.1996), also is relevant. We refused to review the termination of a private bankruptcy trustee where no statute governed removal and the appointing officer had informed the trustee that he was subject to discretionary removal “at any time for reasons associated with [his] application or background check, or for unsatisfactory performance.” Id. at 1415-16, 1419 & n. 1. We concluded that “the relevant statute and regulations promulgated pursuant to it are broadly drawn, and do not establish ‘meaningful standards, criteria or priorities’ for a court to review a U.S. Trustee‘s decision to remove a panel member from active case rotation.” Id. at 1419.
A more permissive statute than the one present in this case can hardly be imagined. By its very terms,
III.
The fact that an agency‘s decision is committed to its discretion by law does not, ipso facto, preclude review of constitutional claims. Such claims are reviewable “in part to avoid the ‘serious constitutional question’ that would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim.” Webster, 486 U.S. at 603; see also Joelson, 86 F.3d at 1420 (“[O]ur decision that panel membership determi-
Even though
In Green, the Eleventh Circuit held that a district court lacked subject matter jurisdiction over a former designated pilot examiner‘s Bivens action because his claims should have been brought in the court of appeals. 981 F.2d at 521. The Bivens action was “an impermissible collateral challenge to the agency order” because the former designee “had an avenue for vindicating his substantive and procedural rights” in the court of appeals, and his Bivens claims were “inescapably intertwined with a review of the procedures and merits surrounding the FAA‘s order.” Id.; see also Dresser, 307 Fed.Appx. at 843 (“[H]ere 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.” (internal quotation marks and citations omitted)).
The Ninth Circuit distinguished Green in Mace v. Skinner, 34 F.3d 854 (9th Cir.1994), where the court permitted a Bivens action based on a revoked aircraft-mechanic certificate. First, the court reasoned that the former mechanic was not seeking to “affirm, modify, or set aside” an FAA order because he was seeking damages. Id. at 858 (alterations and internal quotation marks omitted). Second, he brought “a broad challenge to allegedly unconstitutional FAA practices” pertaining to the procedures surrounding the revocation of his certificate. Id. at 859. Thus, the administrative record for a single revocation would have little relevance to Mace‘s constitutional challenges here. In addition, any examination of the constitutionality of the FAA‘s revocation power should logically take place in the district courts, as such an examination is
In a pre-McNary case, we considered whether the district court had jurisdiction over facial constitutional challenges to the FAA‘s decision to revoke a pilot‘s license. See Robinson v. Dow, 522 F.2d 855 (6th Cir.1975). Although the pilot sought damages (in addition to declaratory and injunctive relief), we affirmed the district court‘s dismissal, holding that the administrative exhaustion doctrine, in conjunction with the circuit-court exclusivity provision, mandated “ultimate review in the Court of Appeals.” Id. at 858. Accordingly, we concluded that “[i]t is clear that in this [ ] forum the litigant is free to raise his constitutional issues.... [T]he Administrator‘s order is not subject to collateral attack in the district court.” Ibid.
To the extent that Robinson governs a damages action premised on an alleged denial of constitutional procedural due process rights, Robinson‘s holding has been superseded by McNary. Burdue‘s constitutional claims are broad challenges to FAA procedures and are not contingent on the merits of a particular FAA order.4 His claims allege procedural due process violations, including a lack of “proper notice and an opportunity to be heard, or any meaningful due process procedural safeguards on appeal[.]” Pet‘r‘s Br. 6. Burdue‘s pending Bivens action also seeks damages, a remedy not authorized by
A contrary result would prevent meaningful review of Burdue‘s constitutional claims. Central to McNary‘s reasoning is that “if not allowed to pursue their claims in the District Court, respondents would not as a practical matter be able to obtain meaningful judicial review of their application denials or of their objections to INS procedures....” 498 U.S. at 496. Although courts of appeals had jurisdiction over “Special Agricultural Worker[ ]” application denials during deportation hearings, the lack of an adequate administrative record would stymie review:
Initially, administrative or judicial review of an agency decision is almost always confined to the record made in the proceeding at the initial decision-making level, and one of the central attacks on INS procedures in this litigation is based on the claim that such procedures do not allow applicants to assemble adequate records. As the District Court found, because of the lack of recordings or transcripts of [Legalization Office (“LO“)] interviews and the
inadequate opportunity for SAW applicants to call witnesses or present other evidence on their behalf, the administrative appeals unit of the INS, in reviewing the decisions of LO‘s and regional processing facilities, and the courts of appeals, in reviewing SAW denials in the context of deportation proceedings, have no complete or meaningful basis upon which to review application determinations.
In Crist v. Leippe, 138 F.3d 801, 804 (9th Cir.1998), the Ninth Circuit realized that where a challenge is “not ... based on the merits of the appealed order ... additional record development may be necessary.” Constitutional claims dependent upon factual development should first be entertained by district courts. “[A]ppellate courts are not equipped to resolve factual issues.” United States v. Collins, 434 Fed.Appx. 434, 442 (6th Cir.2011) (internal quotation marks omitted). In Greenwood, 28 F.3d at 978, the court refused to address the former designee‘s Fifth Amendment claims because they were “not properly developed for review by this court.” By “not properly developed,” the court meant that the administrative record was insufficient to permit “an informed judicial evaluation of the issues raised.” Id. The claim was predicated on “evidence which will be developed later in the District Court actions.” Id. (internal quotation marks omitted).
Whether Burdue‘s procedural due process rights have been violated depends on factual disputes the administrative record does not resolve. For instance, what is the nature of the Cleveland FSDO‘s “fast-track” employment process? Did the FAA appeal panel receive Burdue‘s documents in both redacted and unredacted form? Additional factfinding is necessary for us to engage in a meaningful review of Burdue‘s procedural due process claims. Section
IV.
For the foregoing reasons, we deny Burdue‘s petition for review. We also deny as moot Burdue‘s motion to supplement the administrative record.
UNITED STATES of America, Plaintiff-Appellee, v. Thomas L. WRIGHT, Defendant-Appellant.
No. 13-2735.
United States Court of Appeals, Sixth Circuit.
Dec. 23, 2014.