Tur v. Federal Aviation Administration

BEEZER, Circuit Judge:

Robert Tur appeals the district court’s dismissal of his claims for monetary damages against several Federal Aviation Administration (“FAA”) employees and for rescission of а settlement agreement which he entered into with the FAA. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

I

Tur operated his own helicopter as a news reporter. The FAA issuеd an emergency-order revoking Tur’s airman’s certificate in September 1991. The order charged Tur with five violations of FAA regulations. Tur sought expedited administrative review of the revocation. Appellees Samuel Frazier and Peter Evans represented the FAA in the hearing. After an October 1991 hearing, an Administrative Law Judge (“ALJ”) of the Nationаl Transportation Safety Board (“NTSB”) found Tur guilty of two of five charges and sustained the FAA’s Order of Revocation.

The ALJ found Tur violated FAA regulations by operating his helicoptеr close to a pier fire in Redondo Beach. See 14 C.F:R. §§ 91.13, 91.111 (1992). By hovering nearby, Tur whipped smoke and heat from the blaze on firefighters, thereby hindering their efforts. The ALJ also found Tur violаted FAA regulations by flying in formation with a Los Angeles Fire Department Rescue Helicopter without authorization. See 14 C.F.R. §§ 91.13, 91.111 (1992). By flying close to the rescue flight, Tur allegedly forced the оther helicopter to alter its flight and bypass its intended landing site. Captain Patrick Quinn of the Los Angeles Fire Department, who piloted the Rescue Helicopter, testified at the hearing that he was transporting a wounded policeman between hospitals when Tur interfered with his flight.

The NTSB affirmed the ALJ’s decision. We affirmed the NTSB. Tur v. FAA, 4 F.3d 766, 770-71 (9th Cir.1993).

Tur applied for a new airman’s certificate on several occasions between 1992 and 1994. Every application was denied. Tur petitioned the FAA in 1994 to review his denial. Tur met with Evans, who allegedly told Tur that the FAA had no informatiоn indicating that the evidence used against him before the ALJ was false. Tur subsequently ‍​‌‌​‌‌‌‌​​‌​‌​‌‌‌‌​‌​‌‌​​​‌​‌‌​​​‌‌‌‌​‌​‌‌​‌‌‌‌‌‍entered a settlement agreement with the FAA in March 1994. By the terms of that agreement, Tur agreed not to challenge the FAA’s refusal to issue him a new airman’s eertifi-cate or to apply for a new certificate for two years. The FAA agreed to allow him tо apply for a new certificate without prejudice after two years had passed.

The city of Los Angeles also sought to prosecute Tur for his conduct in an incident where he allegedly interfered with a hoist rescue in San Pedro, California.¹ The city eventually dropped its prosecution. In response, Tur brought á' ■ suit for maliciоus prosecution against the city of Los Angeles. Through discovery, Tur learned of a memorandum from Captain Tony Varela of the-Los Angeles Fire Department to Frаzier. This memorandum, informed Frazier prior to Tur’s hearing before the ALJ that Varela had found no evidence indicating that the rescue helicopter had been transрorting a wounded policeman. Varela testified in state court that, in addition to the memorandum, he had orally informed Frazier and Evans of this fact. Varela testified thаt he had also informed Quinn orally.

As a result of these discoveries, Tur commenced this action against FAA attorneys Frazier and Evans and DeWitt Lawson, their supervisor. Tur seeks monetary damages from these individuals for depriving him of his property interest in his airman’s certificate without due process of law through their knowing use of false testimony agаinst him before the ALJ. Tur also seeks rescission of the settlement agreement he entered with the FAA

II

The district court dismissed Tur’s complaint for lack of subject matter jurisdiction. The district court concluded that the “merits of [Tur’s] Bivens claims are inescapably intertwined with a review of the ... merits surrounding the FAA order,” and as such, present an impermissible collаteral challenge to the previous adjudication. We review the district court’s dismissal de novo. Washington Trout v. McCain Foods, Inc., 45 F.3d 1351, 1353 (9th Cir.1995).

The judicial review provision of the Federal ‍​‌‌​‌‌‌‌​​‌​‌​‌‌‌‌​‌​‌‌​​​‌​‌‌​​​‌‌‌‌​‌​‌‌​‌‌‌‌‌‍Aviation ‘ Act states thаt the courts of appeals have “exclusive jurisdiction to affirm, amend, modify, or set aside” an order issued by the NTSB or the Administrator. 49 U.S.C. § 46110(c). The FAA argues that Tur’s action constitutes an attempt to re-litigate the merits of the previous administrative proceedings. Tur’s only recourse, the FAA contends, is to petition this Court to set aside the previous order.² Id.

We agree with the FAA that Tur’s claims are inescapably intertwined with the merits of the previous revocation order. Tur’s suit, if allowed to proceed, would result in new adjudication over the evidence and testimony adduced in the October 1991 hearing, the credibility determinations made by the ALJ, and, ultimately, the findings made by the ALJ. The judicial reviеw provision of the FAA does not permit the district court to entertain such a suit. Id.; see Foster v. Skinner, 70 F.3d 1084, 1088 (9th Cir.1995); Clark v. Busey, 959 F.2d 808, 811 (9th Cir.1992).

Tur’s reliance on Mace v. Skinner, 34 F.3d 854 (9th Cir.1994), is misplaced. In Mace, we permitted a Bivens action challenging, inter alia, the FAA’s and NTSB’s authority to revoke certificates as a sanction for violations of aviation safety regulations, the FAA’s failure to promulgate rules relating to certificate revocation procedures, and the adequacy of the notice рrovided by the FAA in emergency revocation proceedings. Mace, 34 F.3d at 856. Section 46110 did not proscribe that suit because it was not directed at the merits of a previous adjudiсation. Instead, the plaintiffs in Mace presented us with a facial challenge to the constitutionality of certain agency actions. Id.

The Eleventh Circuit is consistent with our approach in Mace. Green v. Brantley, 981 F.2d 514, 517 (11th Cir.1993). In Green, the FAA revoked plaintiffs Designated ‍​‌‌​‌‌‌‌​​‌​‌​‌‌‌‌​‌​‌‌​​​‌​‌‌​​​‌‌‌‌​‌​‌‌​‌‌‌‌‌‍Pilot Examiner certificate. Id. Eschewing administrative adjudication, plaintiff filed a Bivens action in district court against a number of FAA officials, alleging they had deprived him of liberty and property interests without due process of law. Id. at 518. The Eleventh Circuit held that the district court lacked subject matter jurisdiction over the suit because it constituted “an impermissible collateral challenge to the agency order.” Id. at 521.

In Mace, we contrasted the facial challenge to agency action presented in that case with the Bivens action in Green. “Mace’s claims differ from those asserted in Green, where it was the conduct of FAA officiаls in adjudicating a specific individual claim that was under attack.” Mace, 34 F.3d at 858. Tur’s suit presents a collateral challenge to the merits of his previous adjudication. Section 46110 dоes not permit such suits.

Ill

The settlement agreement entered into by ‍​‌‌​‌‌‌‌​​‌​‌​‌‌‌‌​‌​‌‌​​​‌​‌‌​​​‌‌‌‌​‌​‌‌​‌‌‌‌‌‍Tur and the FAA expired in March 1996.³ As such, Tur asks for relief which, even if jurisdiction were proper, cannot be grаnted by the district court. The question before us, however, is whether the district court has subject matter jurisdiction to entertain Tur’s claim for rescission.

Tur’s claim for rescission, much likе his claim for damages, is subject to the judicial review provision of the Federal Aviation Act if the settlement agreement he entered with the FAA was an “order” within the meaning of 49 U.S.C. § 46110(a). By the terms of the agreement, Tur agreed not to apply for a license for two years. See 49 U.S.C. § 44702(a). The NTSB docketed the agreement. Judicial review is availаble when the NTSB denies an application for an airman’s certificate. See 49 U.S.C. §§ 44702(a), 46110(a). As such, we conclude that the settlement agreement was an “order” subject to the terms of 49 U.S.C. § 46110.

Section 46110(c) vests authority to “affirm, amend, modify, or set aside” an order exclusively with the courts of appeals. The district court properly concluded it lacked subjеct matter jurisdiction over Tur’s claim for rescission.

IV

Because Tur’s claim for damages against FAA officials is a collateral attack on a previous adjudicаtion not permitted by 49 U.S.C. § 46110(c), we conclude the district court lacked jurisdiction to entertain it. Because the NTSB’s ‍​‌‌​‌‌‌‌​​‌​‌​‌‌‌‌​‌​‌‌​​​‌​‌‌​​​‌‌‌‌​‌​‌‌​‌‌‌‌‌‍adoption of the settlement agreement Tur entered into with the FAA constitutes an order, the district court likewise lacked jurisdiction to hear Tur’s claim for its rescission. The district court’s dismissal was proper.

AFFIRMED.

Notes

1 . The FAA had charged Tur with violаting FAA regulations at San Pedro in the revocation proceedings, but the ALJ, citing insufficient evidence, acquitted Tur of this charge.

2 . 49 U.S.C. § 46110(a) provides:

[A] person disclosing a substantial interest in an оrder .issued by the Secretary of Transportation (or the Administrator of the Federal Aviation Administration with respect to aviation safely duties and powers designated tо be carried out by the Administrator) under this part may apply for review of the order by filing a petition for review ... in the court of appeals of the United States for thе circuit in which the person resides or has its principal place of business. The petition must be filed not later than 60 days after the order is issued. The court may allow thе petition to be filed after the 60th day only if there are reasonable grounds for not filing by the 60th day.

3 . After the settlement agreement expired, Tur applied for and was granted a new airman’s certificate.

Case Details

Case Name: Tur v. Federal Aviation Administration

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jan 8, 1997

Citation: 104 F.3d 290

Docket Number: No. 95-56101

Court Abbreviation: 9th Cir.