Case: 09-11239 Document: 00511283376 Page: 1 Date Filed: 11/03/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 3, 2010
No. 09-11239 Lyle W. Cayce
Clerk
KENNEDY JONES,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA; RAY LaHOOD, Secretary, Department of
Transportation,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Texas, Fort Worth Division
Before DeMOSS, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:
At issue is whether, under 49 U.S.C. § 46110(a), the district court had
subject-matter jurisdiction over Jones’s retaliation claims brought pursuant to
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and 42 U.S.C. § 1981.
Because, under this court’s precedent, his claims are inescapably intertwined
with a challenge to the procedure and merits of a Federal Aviation
Administrative (FAA) order, we hold that the district court lacked subject-matter
jurisdiction. Accordingly, we AFFIRM the court’s dismissal of Jones’s claims.
Jones, a former employee of the FAA, applied to the FAA to be a
Designated Engineering Representative (DER)—a “qualified private person” who
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No. 09-11239
inspects and certifies aircraft for compliance with FAA regulations. 49 U.S.C.
§§ 44702(d)(1), 44704; 14 C.F.R. §§ 183.11(c)(1), 183.15(b). The FAA denied the
application, finding that Jones lacked the required integrity and sound
judgment. Under § 46110(a), Jones could have appealed this decision, but only
to the United States Court of Appeals for the District of Columbia Circuit or the
Fifth Circuit. See 49 U.S.C. § 46110(a). He did not. Instead, he sued Defendants
in the district court, alleging that the denial was retaliation for his Equal
Employment Opportunity activity while employed at the FAA. At Defendants’
request, the district court dismissed all claims with prejudice for lack of subject-
matter jurisdiction. Specifically, the court concluded that “plaintiff’s claims are
inescapably intertwined with a review of the procedures and merits of the FAA’s
order denying his DER application, and the complaint thus constitutes an
impermissible collateral attack on the FAA order.” Jones v. LaHood, 667 F. Supp
2d 714, 717 (N.D. Tex. 2009) (citation and internal quotation marks omitted).
Jones timely appealed. On appeal, Defendants have changed their position on
jurisdiction, but ask us to affirm on alternative grounds.
This court reviews questions of subject-matter jurisdiction de novo. Ligon
v. LaHood, 614 F.3d 150, 154 (5th Cir. 2010). Although the parties now agree
that the district court had jurisdiction over Jones’s claims, this court must
determine subject-matter jurisdiction for itself. Id. at 153. The Supreme Court
recently reemphasized that, “[w]ithout jurisdiction the court cannot proceed at
all in any cause. Jurisdiction is power to declare the law, and when it ceases to
exist, the only function remaining to the court is that of announcing the fact and
dismissing the cause.” Haywood v. Drown, 129 S.Ct. 2108, 2126 (2009) (citation
omitted).
Section 46110(a) of the Federal Aviation Act vests the exclusive
jurisdiction over challenges to FAA orders in certain United States Courts of
Appeals:
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a person disclosing a substantial interest in an order issued by the
Secretary of Transportation . . . 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). In Ligon, we addressed an indistinguishable situation and
found that there was no subject-matter jurisdiction under § 46110(a). 614 F.3d
at 152. There, the FAA had denied the plaintiff’s request to renew his
appointment as a DER in certain areas. See id. at 153. The plaintiff sued in
district court, alleging that the denial was a result of age discrimination in
violation of the Age Discrimination in Employment Act. See id. This court held
that the district court lacked jurisdiction because resolving Ligon’s
discrimination claim would require a “review and balancing of the same evidence
used by the FAA in deciding not to renew his areas of authority . . . .” See id. at
157. Thus, the court concluded that the claim was “inescapably intertwined”
with a challenge to the procedure and merits of the FAA’s denial. Id. In
addition, the court noted that a district court cannot grant the relief that the
plaintiff sought—renewal of his DER authority—because only the two
appropriate circuit courts have the jurisdiction to modify or set aside the orders
of the FAA. See id.
Ligon forecloses the parties’ contention that the district court had
jurisdiction.1 Here, it is undisputed that the FAA’s denial of Jones’s DER
application constitutes a “final order” of the Administrator of the FAA. See
Atorie Air, Inc. v. Fed. Aviation Admin., 942 F.2d 954, 960 (5th Cir. 1991). Next,
our review of the complaint and the briefs confirms that Jones’s Title VII and
1
In their letter to this court pursuant to Federal Rule of Appellate Procedure 28(j),
Defendants concede that Ligon “suggests that the district court lacked jurisdiction over the
Title VII claim in this case.”
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No. 09-11239
§ 1981 claims are inescapably intertwined with a challenge to the procedure and
merits of that final order. The complaint alleges a number of procedural
improprieties with the FAA’s handling of his DER application. Jones also
challenges the merits of the denial by alleging that it was based on false
information. In addition, evaluating whether the FAA had a legitimate reason
for denying Jones’s application and whether the reason was a pretext for
retaliation necessarily requires a review and balancing of the same evidence
that the FAA had weighed.
Finally, the complaint seeks to set aside the FAA’s denial of Jones’s DER
application by requesting the court to “[d]irect[] Defendant to place Plaintiff in
the position he would have occupied but for Defendant’s discriminatory
treatment of him . . . .” As the complaint and briefs make clear, Jones alleges
that the position that “he would have occupied but for” the discriminatory
treatment and retaliation is that of a DER. In sum, under Ligon, Jones’s Title
VII and § 1981 claims are collateral attacks on a FAA order. This panel is bound
by our previous decision in Ligon. Hence, the district court correctly determined
that § 46110(a) precludes subject-matter jurisdiction over those claims.
AFFIRMED.
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