Ligon v. LaHood

Case: 09-10860 Document: 00511197675 Page: 1 Date Filed: 08/09/2010

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
August 9, 2010

No. 09-10860 Lyle W. Cayce
Clerk

JACK W LIGON,

Plaintiff - Appellant
v.

RAY LAHOOD, U S Department of Transportation - Federal Aviation
Administration,

Defendant - Appellee

Appeal from the United States District Court
for the Northern District of Texas

Before JOLLY, SMITH, and OWEN, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Jack Ligon appeals the district court’s dismissal of his claim under the Age
Discrimination in Employment Act (ADEA). The district court dismissed Ligon’s
ADEA challenge to a Federal Aviation Administration (FAA) order reducing his
areas of authority as a Designated Engineering Representative (DER) because
it concluded that Ligon, as a DER, was not an FAA employee within the meaning
of the ADEA. Although this may be true, we conclude, more fundamentally, that
the district court lacked jurisdiction to address Ligon’s ADEA claim because that
claim was inescapably intertwined with a challenge to the FAA order itself, and
the courts of appeals, not the district courts, have exclusive jurisdiction over
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No. 09-10860

such challenges. Accordingly, we reverse in part, affirm in part, and remand
with instructions for the district court to dismiss Ligon’s claim for lack of subject
matter jurisdiction.
I.
Under the Federal Aviation Act, the FAA Administrator “may delegate to
a qualified private person” the authority to undertake the “examination, testing,
and inspection necessary” to issue certificates identifying aircraft as compliant
with FAA regulations. 49 U.S.C. §§ 44702(d)(1), 44704. The Administrator,
through local Aircraft Certification Offices (ACOs), appoints independent
contractors, called DERs, to perform these tasks. 14 C.F.R. § 183.11(c)(1).
DERs, though certified by the FAA, are hired by the private aircraft industry to
inspect private airplanes. A DER may have several authorized areas of
expertise, and may only approve or recommend approval of technical data within
his delegated authority by submitting to the FAA a Statement of Compliance
with the Federal Aviation Regulations (FAA Form 8110-3). Each DER is subject
to oversight by the FAA, and the ACO is responsible for providing oversight of
the DERs within its region. The FAA may rescind DER appointments, or choose
not to renew them, at “any time for any reason the Administrator considers
appropriate.” 49 U.S.C. § 44702(d)(2); 14 C.F.R. § 183.15(b).
DER certificates are renewed annually. The renewal process is conducted
by an Advisor employed by the FAA and appointed to the DER. The Advisor
reviews the activity the DER completed during the year in each of his designated
areas. This review is accomplished by submission of a report of activity by the
DER in annual renewal documents, or through review of the FAA Form 8110-3s
submitted by the DER during the course of the year. The Advisor is assisted in
his review by the findings and recommendations of Evaluators, who have
expertise in areas outside the Advisor’s expertise and who review the DER’s
activities in those areas. See FAA Order 8100.8B ¶ 905 (July 14, 2003).

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Ligon was appointed a DER in 1983 after retiring from the FAA. From
1983 until 2002, he accumulated more than 540 areas of delegated authority.
Prior to 2001, Ligon’s annual renewal process was simple, requiring only two to
three hours each year for Ligon to complete the necessary paperwork. This
began to change, however, during the annual renewal process in 2001. Ligon’s
Advisors, Bill Vickers during 2001-2002 and then Jim Rankin from 2003
forward, required Ligon to indicate, in a format of his choice, how many FAA
Form 8110-3s were issued by him each year in his designated areas. Ligon
resisted this additional work, and sought new Advisors who did not require him
to report his activities.
In 2003, Ligon once again resisted his Advisor’s request for a list of his
activities during the year, but eventually provided a rudimentary summary.
Ligon’s list failed to show any activity in helicopters. During the 2004 renewal
process, Ligon again failed to submit any record showing activity in helicopters.
He also failed to report any activity in the areas of mechanical or electrical
equipment. Ligon was notified that if he did not show activity in these areas in
the next year his delegated authority in these areas would not be renewed.
Ligon responded by writing letters to Fran Cox and Fred Stellar of the FAA,
complaining of retaliation and harassment. After receiving no satisfactory
response to his complaints, Ligon subsequently filed the first of three separate
complaints with the EEOC on September 8, 2004.
During the 2005 renewal process, Ligon again failed to show activity in
helicopters, mechanical equipment, or electrical equipment. Consequently, his
Advisor, Jim Rankin, removed 226 of Ligon’s areas of authority for “non-use.”
Because of continued inactivity, Ligon’s areas of authority were further reduced
by an additional 88 areas of authority on April 29, 2008. Ligon again contacted
Fran Cox of the FAA with his concerns, and filed a third complaint with the
EEOC in June 2008.

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On July 28, 2008, approximately 90 days after learning of the FAA’s
decision to further reduce his areas of authority, Ligon filed suit in federal
district court, alleging that the FAA’s handling of his renewal process and failure
to renew his areas of authority were discriminatory and violated his Fifth
Amendment due process rights. He sought reinstatement of his areas of
delegated authority, damages pursuant to the ADEA, and injunctive relief
pursuant to the ADEA and the Fifth Amendment. After a telephonic hearing on
July 24, 2009, the district court dismissed the Fifth Amendment claim based on
Ligon’s counsel’s acknowledgment that it lacked merit. The court granted the
Government’s motion for summary judgment on the ADEA claim, holding that
Ligon had failed to adduce evidence that he was at any time an employee of the
FAA. Having decided the case on this basis, the district court concluded that
it need not make any decision as to the other issues raised in the FAA’s motion
for summary judgment and motion to dismiss, including the FAA’s assertion that
the court lacked subject matter jurisdiction.
Ligon filed a motion to amend judgment, seeking a transfer of his suit to
the Fifth Circuit Court of Appeals pursuant to 49 U.S.C. § 46110(a) and Federal
Rule of Civil Procedure 59(e). The district court denied this motion. Ligon filed
a timely notice of appeal. This court has appellate jurisdiction pursuant to 28
U.S.C. § 1291.
II.
Before reaching the merits of Ligon’s ADEA claim, we must consider
whether we have jurisdiction to consider it. If the district court lacked subject
matter jurisdiction over the ADEA claim, we have jurisdiction “merely for the
purpose of correcting the error of the lower court in entertaining the suit.”
Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986). Neither
party now challenges the district court’s jurisdiction over Ligon’s ADEA claim,
but “subject matter delineations must be policed by the courts on their own

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initiative.” Ruhrgas A.G. v. Marathon Oil Co., 526 U.S. 574, 583 (1999). We
review questions of subject matter jurisdiction de novo. Paulsson Geophysical
Svcs., Inc. v. Sigmar, 529 F.3d 303, 306 (5th Cir. 2008).
Section 46110(a) of the Federal Aviation Act (the Act) vests the courts of
appeals with jurisdiction over challenges to FAA orders:
a person disclosing a substantial interest in an order issued by ...
the Administrator of the Federal Aviation Administration with
respect to aviation duties and powers designated to be carried out
by the Administrator ... may apply for review of the order by filing
a petition for review in the United States Court of Appeals for the
District of Columbia Circuit or in the court of appeals of the United
States for the circuit in which the person resides or has its principal
place of business.
49 U.S.C. § 46110(a).1 For the purposes of the Act, the term “order” “has been
given expansive construction,” but to be reviewable the order must be final, and
there must be an adequate record for judicial review. Atorie Air, Inc. v. Federal
Aviation Admin., 942 F.2d 954, 960 (5th Cir. 1991). To be sufficiently final, the
order “need only be an agency decision which imposes an obligation, denies a
right, or fixes some legal relationship.” Id. at 960 (internal quotation omitted).
The FAA asserts, and Ligon does not contest, that the FAA’s notification
of its nonrenewal of his designations is an appealable final order pursuant to the
statute. We agree that it is. The letters to Ligon terminating certain
delegations of authority clearly deny a right and fix a legal relationship between
Ligon and the FAA by terminating his ability to examine, test, and inspect in
those areas of authority. The record of the decision not to renew Ligon’s
delegations of authority consists of all of the information reviewed by the FAA
before the non-renewal decisions, including Ligon’s Evaluators’
recommendations and performance evaluations, the summary of activity

1
This jurisdictional grant was previously codified at 49 U.S.C. § 1486(a) (1992).

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submitted by Ligon, and the letters to Ligon informing him of the nonrenewal
of certain delegations. See Green v. Brantley, 981 F.2d 514, 519 (11th
Cir.1993)(holding that an FAA order revoking a certificate of authority was a
final order under the Act); Gaunce v. deVincentis, 708 F.2d 1290, 1292–93 (7th
Cir. 1983)(holding that an FAA order revoking the plaintiff’s airman certificate
could not be collaterally attacked in federal district court).
It is well settled that the review of any order of the FAA Administrator
must be taken in a court of appeals. See, e.g., Zephyr Aviation, L.L.C. v. Dailey,
247 F.3d 565, 571 (5th Cir. 2001) (“The United States Courts of Appeal . . . have
‘exclusive jurisdiction to affirm, amend, modify or set aside’ orders of the NTSB
or the FAA.”)(quoting 49 U.S.C. § 46110(c)); Merritt v. Shuttle, Inc. (Merritt II),
245 F.3d 182, 192 (2d Cir. 2001)(“Statutes such as Section 46110 . . . preclude
district courts from deciding issues that ‘could and should have been’ raised in
an administrative proceeding or at least in a court of appeals, not merely those
that were actually considered and necessarily decided in the administrative
proceeding.”)(quoting City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 339
(1958))). Specific grants of jurisdiction to the courts of appeals override general
grants of jurisdiction to the district courts. Leal v. Szoeke, 917 F.2d 206, 207
(5th Cir. 1990) (“[W]here Congress has provided for review jurisdiction in the
court of appeals, jurisdiction there is exclusive.”); accord Carpenter v. Dep’t of
Transp., 13 F.3d 313, 316 (9th Cir. 1994); Oling v. Air Line Pilots Ass’n, 346 F.2d
270, 276 (7th Cir. 1965) (“[W]here Congress has provided a statutory procedure
for the review of an administrative order, such procedure is exclusive.”), cert.
denied, 382 U.S. 926 (1965).
Moreover, district courts lack jurisdiction not only over direct challenges
to FAA orders, but also over damages claims that are “inescapably intertwined
with a review of the procedures and merits surrounding an FAA order.” Zephyr
Aviation, 247 F.3d at 572 (internal quotations and alterations omitted); see also,

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e.g., Green v. Brantley, 981 F.2d at 521. That is, a plaintiff may not circumvent
the exclusive jurisdiction of the court of appeals by collaterally attacking an
administrative order in a federal district court. Id. In Zephyr Aviation, we
recognized 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.” 247 F.3d at 572. We ultimately concluded, however,
that the district court did have subject matter jurisdiction in that case because
the plaintiff’s claims “d[id] not relate to an FAA order currently pending against
it”; the only order against Zephyr had been retracted, and the plaintiff’s
challenge was to alleged extra-procedural actions by FAA inspectors. Id. at
572–73. We distinguished the holdings of other circuits, which concluded that
Bivens challenges to FAA officials’ actions surrounding the issuance of an order
were precluded by § 46110, by noting that Zephyr Aviation’s claim 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. at 572.
We later applied Zephyr Aviation in an unpublished decision, Dresser v.
Ingolia, 307 F. App’x 834 (5th Cir. 2009), to conclude that the district court
lacked jurisdiction over a challenge to an administrative order. In that case,
mariners whose licenses had been revoked by administrative law judges of the
Coast Guard alleged improprieties in their adjudications and sought money
damages pursuant to Bivens. Id. at 835–36. We held that “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 [adjudications].” Id. at 843. The allegations of
improprieties “necessitate[d] a review of the ALJs’ decision making and the
merits of each plaintiffs’ arguments regarding whether his license should have
been revoked” and, therefore, “exercising jurisdiction over such claims

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circumvents administrative review through suit in federal court.” Id. (internal
quotation omitted).
Other circuits addressing a district court’s jurisdiction over a Bivens
challenge to an order administered under the Act have reached the same
conclusion. See, e.g., Gaunce v. deVincentis, 708 F.2d at 1293 (“The statutorily
prescribed requirements cannot be dispensed with merely because the
administrative proceeding dealt with an agency’s proof of specified regulatory
violations, while appellant is raising a due process constitutional claim in the
judicial proceeding.”); Tur v. Federal Aviation Administration, 104 F.3d 290, 292
(9th Cir. 1997) (“Tur’s suit presents a collateral challenge to the merits of his
previous [administrative] adjudication. Section 46110 does not permit such
suits.”). In Green, for example, the Eleventh Circuit addressed the plaintiff’s
allegations under Bivens that FAA officials had revoked his pilot examiner
certificate based on allegedly false accusations. Id. The court concluded that the
district court lacked jurisdiction over the claim because the FAA’s termination
of Green’s certificate was an appealable order that conferred exclusive
jurisdiction on a federal court of appeals. Id. at 519–21. 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.
Similarly, in Merritt v. Shuttle (Merritt I), 187 F.3d 263, 266, 271 (2d Cir.
1999), 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 I 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. Id. at 266. The court reasoned that the pilot’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,

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he was ultimately disputing “the ALJ's factual conclusion that he bore
responsibility for an ill-considered decision to take off.” Id. at 271. The Merritt
I court held that the necessity of this analysis deprived the district court of
jurisdiction, because Merritt’s claim would “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).
On the other hand, some courts have addressed challenges to FAA action
that they held not to be “inescapably intertwined” with an administrative order.
In Mace v. Skinner, 34 F.3d 854, 859 (9th Cir. 1994), for instance, the Ninth
Circuit held that the district court did have jurisdiction over the plaintiff’s
claims because they were “not based on the merits of his individual situation,
but constitute[d] a broad challenge to allegedly unconstitutional FAA practices.”
See also Foster v. Skinner, 70 F.3d 1084, 1088 (9th Cir. 1995) (holding that
although courts of appeals have exclusive jurisdiction over claims that are
“inescapably intertwined” with a challenge to a particular final order, “a district
court has subject matter jurisdiction over broad constitutional challenges to FAA
practices.”). In Merritt II, after having disposed of the plaintiff’s Bivens claim
in Merritt I as described above, the Second Circuit held that Merritt’s claim of
negligence under the Federal Tort Claims Act (FTCA) was not precluded by
§ 46110. 245 F.3d at 191. Merritt’s FTCA claim alleged that FAA employees
had negligently provided him with inaccurate weather information, causing him
to take off in a storm, which was the reason his pilot’s certificate was revoked.
The court distinguished Merritt’s complaints about the behavior of the FAA
employees prior to takeoff, which were not precluded by § 46110, from his
complaints under Bivens about the behavior of FAA employees in issuing an
order suspending his pilot’s certificate, holding that only complaints resulting

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from the order itself could be precluded by § 46110. Id. at 189–90. See also
Beins v. United States, 695 F.2d 591, 598 & n.11 (D.C. Cir. 1982) (holding that
the precursor to § 46110 did not preclude a district court’s jurisdiction over a
pilot’s negligence claim against the FAA because review in the court of appeals
would be “distinct conceptually” from review for negligence).
We conclude that Ligon’s ADEA claim is inescapably intertwined with a
challenge to the procedure and merits of the FAA’s decision not to renew his
designations of authority.2 Like the challenges in Green, Merritt I, and Dresser,
Ligon’s challenge requires a review and balancing of the same evidence used by
the FAA in deciding not to renew his areas of authority, and is essentially a
challenge to the merits and procedure of a particular order that is currently
pending against Ligon.3 Further, the relief Ligon seeks—reinstatement of his
areas of authority—cannot be granted by a district court reviewing an ADEA
claim. See § 46110(c) (granting the courts of appeals “exclusive jurisdiction to
affirm, amend, modify, or set aside any part of the order.”). Ligon’s claim
therefore “could and should have been” raised initially with a court of appeals

2
Ligon’s complaint makes several factual allegations that do not directly relate to the
nonrenewal of his delegations of authority, including the removal of his name from the FAA’s
online directory of DERs and occasions on which he was required to perform extra work. To
the extent that these allegations constitute claims of discriminatory adverse employment
actions under the ADEA, they were not precluded by § 46110 because they could not have been
raised in a challenge to a particular order. The district court accordingly had subject matter
jurisdiction over any such claims. However, the district court correctly granted summary
judgment on such claims because Ligon failed to adduce sufficient evidence that he was an
employee of the FAA according to the factors articulated in Arbaugh v. Y & H Corp., 380 F.3d
219, 226 (5th Cir. 2004), rev’d on other grounds, 546 U.S. 500, 504 (2006), and Spirides v.
Reinhardt, 613 F.2d 826, 831 (D.C Cir. 1979). We therefore affirm the district court’s grant
of summary judgment to the extent it applies to allegations under the ADEA not related to the
FAA’s order.
3
Because the ADEA does not authorize a mixed-motive age discrimination claim, Gross
v. GBL Fin. Svcs., Inc., 129 S.Ct. 2243, 2350 (2009), Ligon’s ADEA claim would fail once it was
determined that the FAA order reducing his areas of authority was warranted. That is, his
ADEA challenge does not raise any issues that could not be addressed by a court of appeals
in reviewing the merits and procedure of the order itself.

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according to § 46110. See Merritt, 245 F.3d at 192 (quoting City of Tacoma v.
Taxpayers of Tacoma, 357 U.S. 320, 339 (1958)).4 Accordingly, we conclude that
§ 46110 precluded the district court from exercising subject matter jurisdiction
over Ligon’s claims relating to the FAA’s nonrenewal of his areas of authority.5
III.
For the foregoing reasons, we REVERSE the district court’s grant of
summary judgment with regard to Ligon’s claim that the nonrenewal of his
areas of authority violated the ADEA, REMAND with instructions to enter

4
Ligon and the FAA argue that this case is distinguishable from the cases concluding
that Bivens claims were precluded by § 46110, because Ligon brought his challenge to the FAA
order under the ADEA. No circuit courts have addressed whether an ADEA claim could
constitute a collateral attack on an FAA order. But see Cook v. Pan American World Airways,
Inc., 771 F.2d 635, 643 (2d Cir. 1985) (abrogated on other grounds) (holding that a district
court did have jurisdiction over an ADEA challenge to an integrated seniority list formulated
in an airline merger and approved by the Civil Aeronautics Board, even though CAB orders
are appealable only to the courts of appeals, where the CAB could not have addressed the age
discrimination claim). One district court has concluded that an ADEA claim was not
inescapably intertwined with a challenge to an FAA order, but in that case the challenge was
to personnel actions separate from the FAA order. Breen v. Peters, 474 F. Supp. 2d 1, 6
(D.D.C. 2007). The FAA argues that the Bivens cases are distinguishable because of the
Supreme Court’s hesitation to expand the judicially created Bivens remedy into new contexts.
See Schweiker v. Chilicky, 487 U.S. 412, 421 (1988). But expansion of the Bivens remedy is
irrelevant here, where the question is circumvention of the exclusive jurisdiction set forth by
Congress. See Zephyr Aviation, 247 F.3d at 572. Instead, what matters is whether the
challenge is inescapably intertwined with a challenge to the order, and would therefore
undermine Congress’s intention that FAA orders be reviewed in a certain way. Accord
Carpenter, 13 F.3d at 316 (holding that exclusive jurisdiction in the courts of appeals under
the Hobbs Act overrides the Rehabilitation Act’s provision of jurisdiction in the district court).
5
Ligon asserts that the district court erred in failing to transfer his case to this court
pursuant to 28 U.S.C. § 1631 and 49 U.S.C. § 46110, and alternatively requests that we
exercise jurisdiction over the case on those grounds. Section 1631 provides that if a court finds
that it lacks jurisdiction over an action or appeal, it shall, in the interests of justice, transfer
it “to any other such court in which the action or appeal could have been brought at the time
it was filed or noticed.” 28 U.S.C. § 1631. Even if his ADEA claim could be construed as a
challenge under the Federal Aviation Act, § 46110 requires a petition for review of an FAA
order to be filed within 60 days of the order, and Ligon’s claim in the district court was filed
90 days after the FAA’s most recent order. He has provided no reasonable grounds for his
failure to file by the 60th day, so § 1631 cannot save him from the procedural requirements
of § 46110.

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judgment that, consistent with this opinion, dismisses such claim for lack of
subject matter jurisdiction, and AFFIRM the grant of summary judgment with
regard to any remaining ADEA claims.
REVERSED and REMANDED in part, and AFFIRMED in part.

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