Air Sunshine, Inc. v. Carl

United States Court of Appeals
For the First Circuit

No. 11-1088

AIR SUNSHINE, INC.; MIRMOHAMMAD ADILI;
AIR SUNSHINE DE P.R., INC.,

Plaintiffs, Appellees,

v.

STEPHEN M. CARL,

Defendant, Appellant,

YVETTE HAU-LEPERA; SERGIO LÓPEZ,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Marcos E. López, U.S. Magistrate Judge]

Before

Lynch, Chief Judge,
Torruella and Stahl, Circuit Judges.

Kelsi Brown Corkran, Appellate Staff Attorney, with whom Tony
West, Assistant Attorney General, Rosa E. Rodríguez-Vélez, United
States Attorney, and Barbara L. Herwig, Appellate Staff Attorney,
were on brief, for appellant.
Ronnie Adili, with whom Vincent F. Vaccarella, Vincent F.
Vaccarella, P.A., Carlos J. Morales Bauzá, and Rosselló & Morales,
CSP, were on brief, for appellees.

December 2, 2011
 LYNCH, Chief Judge. This is an appeal from a magistrate

judge's denial of a motion to dismiss two claims in a complaint

against a federal employee on qualified immunity grounds under

Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).

The plaintiffs -- Air Sunshine, an airline based in

Florida and Puerto Rico, and its owner, Mirmohammad Adili

(collectively, Air Sunshine) -- brought suit against a group of

federal defendants, including Stephen Carl, a Principal Maintenance

Inspector employed by the Federal Aviation Administration (FAA),

asserting Bivens claims and other causes of action. See Bivens v.

Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388

(1971). Air Sunshine alleged that the defendants intentionally and

improperly delayed various certifications and inspections, that

these delays amounted to a violation of constitutional rights, and

that the delays substantially destroyed Air Sunshine's business.

Air Sunshine sought $7 million in compensatory damages from the

federal defendants.

The defendants moved to dismiss the complaint on, among

other grounds, qualified immunity. The magistrate judge1 granted

the motion with respect to most of Air Sunshine's claims, and those

dismissals are not the subject of this appeal. See Air Sunshine,

1
At the initial status conference, the issue of referring
the case to a magistrate judge was raised. See Fed. R. Civ. P.
16(c)(2)(H). Both parties consented to having the case tried
before a magistrate judge and the case was assigned to the
magistrate judge. See Fed. R. Civ. P. 73.

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Inc. v. Carl, Nos. 09-2019, 09-2039, 09-2041, 2010 WL 4861457, at

*14 (D.P.R. Nov. 30, 2010). However, the magistrate judge denied

the motion to dismiss with respect to two Bivens claims against

Carl.2 Id. These claims assert that Carl's actions violated Air

Sunshine's procedural due process rights and were in retaliation

for protected First Amendment activity. Id. Carl appealed.

We hold that the allegations in the complaint underlying

Air Sunshine's remaining claims are insufficient to meet the Iqbal

pleading standard so as to deny qualified immunity, reverse, and

direct entry of judgment for Carl.

I.

In an interlocutory appeal from the denial of qualified

immunity on a motion to dismiss on the pleadings, we accept the

well-pleaded facts of the plaintiff's claim as alleged in the

complaint. Soto-Torres v. Fraticelli, 654 F.3d 153, 156 (1st Cir.

2011) (citing Iqbal, 129 S. Ct. at 1950). However, "[w]e do not

accept the complaint's legal conclusions or 'naked assertion[s]

devoid of further factual enhancement.'" Id. (second alteration in

original) (quoting Iqbal, 129 S. Ct. at 1949).

The allegations in the complaint arise from three sets of

facts: the mandatory proving test process for three recently leased

2
The magistrate judge also denied the motion to dismiss with
respect to a second defendant, Sergio López. Air Sunshine, Inc. v.
Carl, Nos. 09-2019, 09-2039, 09-2041, 2010 WL 4861457, at *14
(D.P.R. Nov. 30, 2010). However, Air Sunshine has since
voluntarily dismissed its claims against López.

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SAAB 340 aircraft, the inspection required for Air Sunshine's fleet

of aging C402 aircraft, and the issuance of a ferry permit needed

to transport one of Air Sunshine's aircraft for repairs. The

inspection of the older C402 aircraft is at the heart of the

procedural due process claims. While unclear from the decision of

the magistrate judge, it appears that all three sets of facts are

involved in the First Amendment retaliation claim.

A. SAAB 340 Aircraft Proving Tests

In late 2005, Air Sunshine entered into a lease to

operate three SAAB 340 aircraft, to expand its business. The FAA

requires aircraft proving runs to take place before certain types

of aircraft may be used in operations.3 As to the SAAB 340

aircraft, this had not happened by July 2008. All of this happened

before there was any alleged involvement by Carl with respect to

Air Sunshine. In August 2008, Carl, the Principal Maintenance

Inspector in the FAA's South Florida Flight Standards District

3
See, e.g., 14 C.F.R. § 135.145(a) (prohibiting certificate
holders from operating an aircraft for which two pilots are
required "if it has not previously proved such an aircraft in
operations under this part in at least 25 hours of proving tests
acceptable to the Administrator"). "Proving tests consist of a
demonstration of the applicant's ability to operate and maintain an
aircraft new to the operator's fleet, or the applicant's ability to
conduct a particular kind of operation . . . ." FAA Order 8900.1
¶ 3-2287(A) (2008). While the complaint refers to this as a
"certification" process, the FAA handbook explains that proving
tests are distinct from "aircraft certification tests, which are
tests conducted by the aircraft manufacturer to demonstrate the
airworthiness of the aircraft." Id. ¶ 3-2287(B). The FAA handbook
is located on the FAA's website, at
http://fsims.faa.gov/PICResults.aspx?mode=EBookContents.

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Office, was assigned to Air Sunshine's matters. Carl met with Air

Sunshine on October 8, 2008, and explained that the proving runs

would not take place until errors in Air Sunshine's operating

manual were corrected. Air Sunshine alleges that the errors in the

operating manual were outside Carl's responsibilities.

During this meeting, Carl mentioned that Yvette Hau-

Lepera, another FAA employee, was a good friend of his. Adili

responded by stating that Hau-Lepera "had done Air Sunshine no

justice," and the certification for which Hau-Lepera was

responsible was mired in unexplained delays. The First Amendment

retaliation claim stems from this conversation. Air Sunshine says

the further actions and delays were a result of their criticism to

Carl of the work of FAA inspector Hau-Lepera.

A week after this meeting, Carl emailed Air Sunshine,

informing them that Carl needed an extra week. At the same time,

Carl sent a letter to Air Sunshine which, Air Sunshine alleges,

"contained numerous questions Air Sunshine had already been asked

and had answered." Air Sunshine asserts that "this letter was

intended to intimate [sic] them, and to interpose yet further

delays" in the proving runs. Air Sunshine responded to the letter

on October 20, 2008, answering the questions and raising concerns

about the delay in holding the proving runs. Air Sunshine

contacted Carl on November 3, stating that it would be very

difficult for Air Sunshine to wait until November 13 to have a

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meeting to address the concerns raised in the October 20th letter.

Carl responded by stating that previous FAA inspectors were

incorrect, and Air Sunshine was not in compliance with FAA

regulations.

Air Sunshine attended a meeting with FAA employees,

including Carl, on November 14 and left with the impression that

proving runs would take place before the end of 2008. However, on

November 24, Carl's assistant sent an email, signed by Carl,

stating that Air Sunshine's most recent submission to the FAA

"lacked procedural format." On December 22, Carl emailed Air

Sunshine, explaining that Carl could not simultaneously accomplish

the SAAB proving tests and the C402 inspections, and that Air

Sunshine had to choose between them. On March 5, 2009, a

consultant hired by Air Sunshine sent a letter to Carl emphasizing

Air Sunshine's economic hardship. The certification of the SAAB

340 aircraft never took place "and Air Sunshine's business was

substantially destroyed."

B. Aging C402 Aircraft Inspection

As of July 2006, Air Sunshine had operated a fleet of

C402 aircraft for 24 years, and those aircraft needed inspection to

be in compliance with 14 C.F.R. § 135.422. That provision requires

certain aging planes to be inspected before they may continue in

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service.4 The same month, Air Sunshine requested FAA inspection

and certification.

The period in which this inspection needed to take place

expired on December 8, 2008. Air Sunshine alleges it made

unspecified "repeated pleas" for inspection and received an

unspecified "promise" to extend the deadline for the inspection to

take place. No details are alleged, and it is not alleged that

Carl, who had no responsibility as to Air Sunshine before August

2008, was in any way involved.

On December 8, 2008, Air Sunshine's scheduling authority

automatically expired. The next day, Carl informed Air Sunshine

that an extension was not possible and that Air Sunshine had lost

its authority to schedule operations. Still, on December 11, 2008,

Carl told Air Sunshine that his assistant would conduct the

inspection. On December 16, however, Carl told Air Sunshine that

his assistant could not perform the inspection of the fleet alone,

and instead a team would be needed. On January 20, 2009, Air

Sunshine informed Carl that it had hired a former FAA inspector to

4
This regulation precludes owners of multiengine aircraft
that exceed fourteen years in service and contain nine or fewer
passenger seats from operating their aircraft in scheduled
operations unless "the [FAA] Administrator has completed the aging
airplane inspection and records review required by this section."
14 C.F.R. § 135.422(a), (b). A "scheduled operation" is "any
common carriage passenger-carrying operation for compensation or
hire conducted by an air carrier or commercial operator for which
the certificate holder or its representative offers in advance the
departure location, departure time, and arrival location." Id.
§ 110.2.

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complete the inspection. However, Carl refused to accept the

inspection, pending approval of a revision to a manual; Air

Sunshine claims no such revision was required, and presumably it

did not submit one. As a result, the inspection was never

completed, and Air Sunshine's loss of scheduling authority

"resulted in the consequent loss of Air Sunshine's ability to bid

for government contracts."

C. Ferry Permit

On August 25, 2008, Air Sunshine emailed Carl requesting

a permit to ferry one of Air Sunshine's aircraft to Florida for

repairs. Three days later, Carl stated that FAA regulations did

not permit ferrying of the aircraft at issue. Air Sunshine alleges

that this was an incorrect statement of law. Carl continued to

refuse issuance of the permit until October 2008, when he inspected

the aircraft. As a result of this delay, "Air Sunshine lost

revenue of $45,000 per month during the period when the aircraft

remained unrepaired, and incurred corrosion damage to its

aircraft."

II.

The denial of a motion to dismiss on qualified immunity

grounds is immediately appealable as a final decision under 28

U.S.C. § 1291. See Iqbal, 129 S. Ct. at 1946; Soto-Torres, 654

F.3d at 157. We review de novo the magistrate judge's denial of

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Carl's motion to dismiss the complaint on qualified immunity

grounds.5 Soto-Torres, 654 F.3d at 157.

A. Qualified Immunity Standard

Qualified immunity "provides defendant public officials

an immunity from suit and not a mere defense to liability."

Maldonado v. Fontanes, 568 F.3d 263, 268 (1st Cir. 2009). "[T]he

qualified immunity inquiry is a two-part test. A court must

decide: (1) whether the facts alleged or shown by the plaintiff

make out a violation of a constitutional right; and (2) if so,

whether the right was 'clearly established' at the time of the

defendant's alleged violation." Id. at 268-69 (quoting Pearson v.

Callahan, 129 S. Ct. 808, 815 (2009)). "A right is clearly

established only if 'it would be clear to a reasonable officer that

his conduct was unlawful in the situation he confronted.'" Soto-

Torres, 654 F.3d at 158 (quoting Brosseau v. Haugen, 543 U.S. 194,

199 (2004)).

B. Pleading Standard Under Iqbal

The first prong of the immunity analysis requires that a

claim of violation of a constitutional right be stated. Air

Sunshine's claims fail on this prong.

5
"[A]n appeal from a judgment entered at a magistrate
judge's direction may be taken to the court of appeals as would any
other appeal from a district court judgment." Fed. R. Civ. P.
73(c).

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 For a complaint alleging a recognized Bivens claim to

survive a motion to dismiss, the plaintiff "must plead that each

Government-official defendant, through the official's own

individual actions, has violated the Constitution." Iqbal, 129 S.

Ct. at 1948. The complaint "must contain sufficient factual

matter, accepted as true, to 'state a claim to relief that is

plausible on its face.'" Id. at 1949 (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 554, 570 (2007)). "A claim has facial

plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged." Id. This is not a

"probability requirement," but it does require "more than a sheer

possibility that a defendant acted unlawfully." Id.

In assessing whether the Iqbal standard is met, a court

will "accept as true all of the allegations contained in [the]

complaint." Id. However, this tenet does not apply to "statements

in the complaint that merely offer legal conclusions couched as

facts or are threadbare or conclusory." Soto-Torres, 654 F.3d at

158. Similarly, a court does not accept as true allegations that

"while not stating ultimate legal conclusions, are nevertheless so

threadbare or speculative that they fail to cross 'the line between

the conclusory and the factual.'" Peñalbert-Rosa v. Fortuño-

Burset, 631 F.3d 592, 595 (1st Cir. 2011) (quoting Twombly, 550

U.S. at 557 n.5).

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C. Air Sunshine's Claims

Only two of Air Sunshine's claims remain on appeal: (1)

a Bivens claim alleging that the C402 inspection process amounted

to a deprivation of Air Sunshine's property without due process, in

contravention of the procedural Due Process Clause of the Fifth

Amendment; and (2) a Bivens claim that the delays and other actions

of Carl with respect to all three sets of facts were carried out in

retaliation for Air Sunshine's complaints regarding Hau-Lepera

during the October 8 meeting, in contravention of the First

Amendment. Air Sunshine, 2010 WL 4861457, at *10.

1. The Procedural Due Process Claim

Carl argues the complaint fails even to state a

procedural a due process claim, much less a claim which would

overcome qualified immunity. We agree.

We bypass the question of whether Air Sunshine can even

bring a procedural due process claim under Bivens. Bivens claims

are implied from the Constitution, and such implied causes of

action are disfavored. Iqbal, 129 S. Ct. at 1947-48. While the

Supreme Court has extended Bivens to the Due Process Clause, it has

only done so in the context of "[t]he equal protection component"

of that clause. Davis v. Passman, 442 U.S. 228, 235 (1979). Even

assuming a properly stated procedural due process claim is

cognizable under Bivens, the complaint does not state a claim upon

which relief can be granted.

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 To state a valid procedural due process claim, a

plaintiff must (1) "identify a protected liberty or property

interest," and (2) "allege that the defendants . . . deprived [him]

of that interest without constitutionally adequate process."

González-Droz v. González-Colón, 660 F.3d 1, 13 (1st Cir. 2011)

(second alteration in original) (quoting Aponte-Torres v. Univ. of

P.R., 445 F.3d 50, 56 (1st Cir. 2006)) (internal quotation mark

omitted).

Because Air Sunshine fails to allege a deprivation by

Carl, we do not reach the assertion that there is a protected

property interest in the outcome of the inspection process.

The complaint alleges that the deadline for Air Sunshine

to complete the C402 inspection process was December 8, 2008.6 On

that date, Air Sunshine lost its authority to schedule operations.

The only specific actions the complaint alleges Carl took with

respect to the inspection process all occurred after this date, so

there was no plausible causal connection alleged.

Beyond that, the specific allegations regarding Carl do

not state a valid claim for other reasons. The only specific

allegations contained in the complaint are that (1) Carl stated

that an extension of the inspection deadline "was not possible,"

6
The relevant regulation indicates that the inspection
needed to take place "no later than December 4, 2008." 14 C.F.R.
§ 135.422(b)(2). It is unclear from where the complaint derives
the December 8 deadline, but we work with Air Sunshine's date.

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(2) Carl indicated that his assistant could conduct the inspection

of the fleet alone, but five days later stated that a team would be

required, and (3) Carl refused to accept the inspection results of

the former FAA inspector hired by Air Sunshine pending an approval

of a revision to certain manuals.

The complaint does not allege that Carl made the

decision, or even had the authority to make the decision, regarding

whether to grant the extension. This failure to make personal

allegations is alone fatal. Importantly, and independently, the

relevant regulation provides that an extension "may" be made "[i]n

the event of an unforeseen scheduling conflict for a specific

airplane." 14 C.F.R. § 135.422(c). The complaint does not plead

any unforseen scheduling conflict, so there is no plausible basis

to infer that the regulation even granted discretion to anyone to

allow an extension.7 Further, the regulation's use of the word

"may" means the decision to grant an extension is discretionary,

and thus not subject to a Due Process Clause challenge. See Town

of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005) ("[A] benefit

is not a protected entitlement if government officials may grant or

7
The relevant FAA handbook section provides that the
extension may be approved "provided the operator presents written
justification for the scheduling conflict." FAA Order 8900.1 ¶ 6-
2489(A)(2) (2010). The complaint does not allege that Air Sunshine
complied with this requirement.

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deny it in their discretion."). For these reasons as well, the

allegations against Carl fail.8

This result does not change with the remaining

allegations about Carl's assistant or his failure to accept Air

Sunshine's proffered inspection results. Carl's determination that

a team would be needed to conduct an inspection, rather than his

assistant alone, was within his authority and cannot support a

procedural due process claim.9

The bald allegation that Carl refused to accept the

inspection Air Sunshine had conducted, pending revision of certain

manuals, which Air Sunshine had been waiting for Carl to approve,

also does not state a procedural due process claim. The complaint

does not state when the private inspection took place, when the

results were submitted to Carl, when Carl refused to accept the

inspection, why his refusal was improper, and provides no other

8
It is not clear that an extension could have been approved
by anyone. The FAA handbook explains that "[e]xtensions may only
be approved for the seven-year repetitive inspection intervals. In
all cases, the initial compliance threshold to the applicable rule
must be met." FAA Order 8900.1 ¶ 6-2489(A)(2) (2010). The
complaint indicates that Air Sunshine's craft needed the initial
inspection required after fourteen years of operation, rather than
the subsequent seven-year interval inspections for which extensions
may be granted.
9
The FAA handbook contemplates that multiple individuals
might be needed to conduct an inspection. The handbook indicates
that inspectors "possess various degrees and types of experience,"
and that an inspector who "needs additional information or guidance
should coordinate with personnel experienced in that particular
speciality." FAA Order 8900.1 ¶ 6-295(C) (2008).

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information that would provide necessary context for a claim of

constitutional violation.

These and the other "naked assertion[s]" of procedural

due process violations are "devoid of 'further factual

enhancement'" and do not survive the motion to dismiss. Iqbal, 129

S. Ct. at 1949 (alteration in original) (quoting Twombly, 550 U.S.

at 557) (internal quotation marks omitted).

Carl's actions were also entirely consistent with lawful

conduct, which is another reason the complaint fails to meet the

Iqbal standard. See, e.g., Argueta v. U.S. Immigration & Customs

Enforcement, 643 F.3d 60, 75 (3d Cir. 2011) (complaint fails to

state a Bivens claim where the allegations "described conduct

consistent with otherwise lawful behavior" by immigration

officials); Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009)

(complaint fails to state a constitutional claim under 42 U.S.C.

§ 1983 where actions of law enforcement officials in conducting

investigation were "consistent with lawful conduct").

2. First Amendment Retaliation

As with the procedural due process claim, no claim of

retaliation in violation of the First Amendment is stated, even

without looking to the additional requirements needed to overcome

qualified immunity.

It is questionable whether Bivens extends to cases

asserting a violation of First Amendment rights or retaliation for

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the exercise of those rights. The Supreme Court has declined to

extend Bivens to an instance of a federal employee allegedly

suffering retaliation for protected speech in violation of the

First Amendment. Bush v. Lucas, 462 U.S. 367, 369, 373, 390

(1983). Further, Iqbal itself stated that the Court has "declined

to extend Bivens to a claim sounding in the First Amendment," while

assuming, without deciding, that a Bivens claim based on the Free

Exercise Clause would be actionable. 129 S. Ct. at 1948. Once

again, we need not decide the question, as even assuming such a

claim is cognizable under Bivens, Air Sunshine's complaint is

deficient.

"In order to succeed on a First Amendment retaliation

claim, a party must show that her conduct 'was constitutionally

protected, and that this conduct was a substantial factor [or]

. . . a motivating factor driving the allegedly retaliatory

decision.'" Gorelik v. Costin, 605 F.3d 118, 123 (1st Cir. 2010)

(alterations in original) (quoting Centro Medico del Turabo, Inc.

v. Feliciano de Melecio, 406 F.3d 1, 10 (1st Cir. 2005)).

The complaint does not meet even this basic standard.

The only even arguably protected activity the complaint alleges is

that Air Sunshine stated, at an October 8, 2008 meeting with Carl,

that an FAA employee, Hau-Lepera, had "done Air Sunshine no

justice." The complaint provides no factual basis plausibly to

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infer that Carl's later actions were motivated by this comment with

respect to any of the three sets of facts.

It is true the period for the C402 inspection process

expired, but not on the basis of any actions by Carl, and so the

retaliation claim fails with respect to that set of occurrences.

As to the ferry permit, all of the specifically alleged

events occurred before the October 8 meeting and so could not have

been retaliatory on Carl's part. The complaint alleges that Carl

initially refused the permit on August 28, 2008, and continued that

refusal until some unspecified time in October 2008, when Carl

conducted the inspection. While the complaint does not state when

the inspection took place, no facts are alleged to provide a

plausible basis to conclude that the period of delay (if any such

period existed) between the October 8 meeting and the inspection

was in retaliation for the comment about Hau-Lepera.

Air Sunshine's SAAB 340 proving test allegations also

fail to provide a plausible basis to infer retaliation for the

comment. The complaint essentially describes a series of delays

regarding the proving test process that began around August 2007

and continued into 2009. These delays are entirely consistent with

permissible and lawful actions, particularly after Carl's 2008

involvement.

First, there are specific procedures which govern the

proving test, and Air Sunshine does not plead that it complied with

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these procedures. The process is detailed and places the burden on

the operator to provide the appropriate material for the proving

test to take place. See FAA Order 8900.1 ¶¶ 3-2286 to 3-2316

(2011). In phase one, the applicant must request authorization

from the FAA to conduct the proving runs; after such a request, an

initial contact meeting occurs and an FAA test team is assigned.

Id. ¶ 3-2312. In phase two, the applicant must prepare a formal

test plan, providing a variety of information, and this plan must

be complete before the evaluation may continue. Id. ¶ 3-2313. In

phase three,10 the FAA test team engages in an "in-depth review and

analysis of the applicant's test plan." Id. ¶ 3-2314. If the

inspector determines that "the material is deficient or

unacceptable, the [inspector] must return the entire submission to

the operator." Id. ¶ 3-4(C) (2011). The Handbook also makes clear

that while FAA employees "may provide advice and guidance" to

applicants, "the development of the final product submitted to the

FAA is solely the responsibility of the operator," not the FAA

employee. Id. ¶ 3-2(C).

Air Sunshine's complaint makes no attempt either to plead

that it complied with any of these requirements, or to state in

non-conclusory terms how the relevant procedures were not followed

10
It does not appear that phases four and five, which involve
inspection and review, FAA Order 8900.1 ¶¶ 3-2315, 3-2316 (2011),
were ever reached in this case.

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by Carl.11 In fact, the complaint itself states some of the reasons

Carl offered for why the proving tests could not take place,

including Air Sunshine's failure to comply with FAA regulations and

submitting information in an improper procedural format. These

reasons, on their face, are entirely consistent with the procedural

requirements outlined in the FAA handbook.

There is simply no basis to infer that Carl's actions

were motivated by retaliation for a remark critical of a co-worker

and friend. "As between [these] 'obvious alternative

explanation[s]'" for the delays, and the "purposeful, invidious

discrimination [Air Sunshine] asks us to infer, discrimination is

not a plausible conclusion." Iqbal, 129 S. Ct. at 1951-52 (quoting

Twombly, 550 U.S. at 567).

Second, at the time of the October 8 meeting, Air

Sunshine had already been waiting for proving runs for over a year.

This delay occurred before Carl was even assigned to Air Sunshine's

certification. See Gagliardi v. Sullivan, 513 F.3d 301, 308 (1st

Cir. 2008) (allegations of retaliation did not suffice where the

11
The complaint does allege that errors in Air Sunshine's
operations manual, which Carl cited as part of the basis for the
delay, were "outside the scope of his responsibilities." This
statement is conclusory and appears to be incorrect. The FAA
handbook explains that the Principal Maintenance Inspector's "role
in the review process is to provide an independent and objective
evaluation of the operator's manual material. The PMI must ensure
that the operator's material complies with 14 CFR, is consistent
with safe operating practices, and is based on sound rationale or
demonstrated effectiveness." FAA Order 8900.1 ¶ 3-3286(C) (2007).

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complained-of action "long predated the speech and continued"

afterward); McDonnell v. Cisneros, 84 F.3d 256, 259 (7th Cir. 1996)

(dismissing complaint where "[t]he allegedly retaliatory conduct

was merely the continuation of the conduct giving rise to the

complaints").

Third, the complaint does not provide any facts

concerning certification of aircraft owned by similarly situated

companies, general information about how long the certification

process usually takes, allegations explaining why the proffered

reasons for delay were false or unjustified, or any other facts

that would support an inference of differential treatment, much

less that the treatment was motivated by retaliation. Air

Sunshine's "[m]ere broad conclusory allegations of wrongdoing in

the complaint are not a substitute for a meaningful factual

context." Nestor Colon Medina & Sucesores, Inc. v. Custodio, 964

F.2d 32, 42 (1st Cir. 1992).

As a result, the complaint fails to state a claim of

retaliation. Because no constitutional claims were stated, Carl

was entitled to qualified immunity and the magistrate judge erred

in ruling otherwise.

III.

Air Sunshine chose to pursue claims under Bivens, which

provides a remedy only in "limited circumstances" where plaintiffs

lack "any other remedy for the alleged constitutional deprivation."

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Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 67 (2001). Air

Sunshine had other options available to it, which it did not take.

For instance, Air Sunshine, if it believed it was wronged, could

have brought claims under the Administrative Procedure Act. See 5

U.S.C. § 702 ("A person suffering legal wrong because of agency

action . . . is entitled to judicial review thereof."); id.

§ 706(1) (providing reviewing court with the authority to "compel

agency action unlawfully withheld or unreasonably delayed"); id.

§ 551(13) (defining "agency action" as "the whole or a part of an

agency rule, order, license, sanction, relief, or the equivalent or

denial thereof, or failure to act"). A suit seeking $7 million in

damages from individual federal employees on these pleadings was

not viable.

We reverse and direct entry of judgment in favor of Carl

on grounds of qualified immunity. So ordered.

Costs are awarded to Carl.

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