IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-30301

CHRISTOPHER J. DRESSER,

Plaintiff,

v.

MEBA MEDICAL & BENEFITS PLAN,

Defendant.

CHRISTOPHER J. DRESSER,

Plaintiff–Appellant,

v.

UNITED STATES COAST GUARD,

Defendant–Appellee.

CHRISTOPHER J. DRESSER,

Plaintiff–Appellant,

v.

JOSEPH N. INGOLIA; KENNETH V. WILSON; ALYSSA L. PALADINO,

Defendants–Appellees.

Appeal from the United States District Court

for the Eastern District of Louisiana

United States Court of Appeals

Fifth Circuit

F I L E D

December 22, 2010

Lyle W. Cayce

Clerk

Case: 10-30301 Document: 00511330370 Page: 1 Date Filed: 12/22/2010
Before HIGGINBOTHAM, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:

I

Christopher J. Dresser was a licensed marine engineer. The United States

Coast Guard initiated a Suspension and Revocation (S&R) action against

Dresser’s license after the Coast Guard was notified that Dresser had tested

positive for tetrahyrdocannabinol (THC), a metabolite detected in the urine of

those who have ingested marijuana. Dresser maintains that he tested positive

as a result of his ingestion of hemp seed oil as a dietary supplement, not from

the use of marijuana.

Following hearings in the S&R proceeding, Administrative Law Judge

(ALJ) Boggs issued a Decision and Order finding that Dresser had used a

dangerous drug, marijuana. The Decision also revoked Dresser’s license.

Dresser appealed the Decision to the Commandant of the Coast Guard, who

affirmed. Dresser then appealed to the National Transportation Safety Board

(NTSB), pursuant to that agency’s authority to review Coast Guard S&R

decisions. The NTSB remanded the case for a new hearing because of the

1

appearance of impropriety on ALJ Boggs’s part, the nature of which is not at

2

issue in this appeal.

Chief ALJ Ignolia assigned the remanded case to ALJ Brudzinski, who

discussed the case with his docketing clerks, Wilson and Paladino, who are

defendant–appellees in the present action. ALJ Brudzinski heard Dresser’s case

See 49 U.S.C. § 1133(3) (“The National Transportation Safety Board shall review on 1

appeal . . . a decision of the head of the department in which the Coast Guard is operating [the

Department of Homeland Security] on an appeal from the decision of an administrative law

judge denying, revoking, or suspending a license, certificate, or register in a proceeding under

 . . . chapter 77 . . . of title 46.”).

Commandant v. Dresser, NTSB Order No. EM-195, 2003 WL 21360877, at *2 (June 2

9, 2003).

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on remand and ruled in favor of the Coast Guard, again issuing a Decision

revoking Dresser’s license. Dresser then appealed the second Decision to the

Coast Guard Commandant and simultaneously brought suit in the district court.

In that first suit, Dresser I, Dresser contended that ALJ Brudzinski’s

Decision revoking his license was “unconstitutional.” The district court in

3

Dresser I concluded that it lacked jurisdiction over Dresser’s request for judicial

review of ALJ Brudzinski’s Decision because the pending appeal before the

Commandant meant the Decision was not a “final agency action” as required by

the Administrative Procedure Act (APA). In addition, the district court held

4

that Dresser’s Bivens claims were preempted by the administrative review

5

framework. In an unpublished decision, this court affirmed the dismissal of

6

Dresser’s claims arising under the APA because the pending appeal to the

Commandant meant that the ALJ’s decision was not final. This court also held

7

that the district court did not have jurisdiction over Dresser’s Bivens claims

“because such claims were inescapably intertwined with a review of the

procedure and merits surrounding” the Decision.

8

After the district court’s Dresser I order and before this court’s decision in

that case, the Coast Guard Commandant issued a ruling affirming ALJ

Dresser v. Ingolia (Dresser I), No. 07-1497 c/w 07-1536 & 07-2896, 2007 WL 3353305,

3

at *2 (E.D. La. Nov. 8, 2007) (unpublished).

 Id. at *4.

4

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 5

(1971).

 Dresser I, 2007 WL 3353305, at *8.

6

 Dresser I, 307 F. App’x. 834, 840 (5th Cir. 2009) (unpublished) (per curiam). 7

 Id. at 843.

8

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Brudzinski’s Decision. Dresser then filed new complaints in the district court,

9

which contained the same allegations of unconstitutional action on the parts of

defendant–appellants Ingolia, Wilson, Paladino, and the Coast Guard (together,

Coast Guard). Dresser also filed a complaint against his union health and

welfare benefit plan, MEBA Medical & Benefits Plan, because the plan refused

to pay his fees and costs associated with the litigation in federal court. The

district court consolidated these cases. Dresser and MEBA Medical & Benefits

Plan reached a settlement before that consolidation, and that suit was

dismissed.

The district court again dismissed Dresser’s complaint for lack of subject

matter jurisdiction. The court agreed with the Coast Guard’s contention that,

to obtain judicial review, Dresser should have appealed the Commandant’s

decision to the NTSB and then to a federal circuit court. The district court

concluded that Dresser’s APA claims were an attempt to circumvent the

channeled path for judicial review. The district court dismissed Dresser’s Bivens

claims as inescapably intertwined with his APA claims.

Dresser argues on appeal that the district court erred in dismissing his

APA claims for lack of subject matter jurisdiction and his Bivens claims as

inescapably intertwined with his claims regarding the revocation of his license.

We review de novo the district court’s dismissal for lack of subject matter

jurisdiction. A district court’s interpretation of a statute or regulation is a

10

question of law that we review de novo.

11

 Id. at 839.

9

Borden v. Allstate Ins. Co., 589 F.3d 168, 170 (5th Cir. 2009).

10

See Teemac v. Henderson, 298 F.3d 452, 456 (5th Cir. 2002).

11

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II

Dresser contends that the Commandant’s decision to affirm the ALJ’s

Decision revoking his license was a final agency decision, reviewable under the

APA. Dresser argues that there is no statutorily specified means of obtaining

12

judicial review of the Coast Guard’s final decision; therefore, the APA’s general

provision that “final agency action for which there is no other adequate remedy

in a court [is] subject to judicial review” applies, giving the federal district court

jurisdiction over his claims. The Coast Guard contends that statutes and

13

regulations pertaining to the Coast Guard and NTSB provide for an exclusive

path of review, which may not be replaced by district court review of the

Commandant’s decision.

For the reasons that follow, we conclude that the Coast Guard and NTSB

statutory and regulatory scheme provide for judicial review, but only in a court

of appeals, and only after an appeal to the NTSB. Dresser’s argument does not

take into account all of the language of APA § 10(c) and ignores the statutory

provision for judicial review that precludes the APA’s default rule of review in

a federal district court. We therefore affirm the district court’s dismissal of

Dresser’s complaint.

See Administrative Procedure Act (APA) § 10(a), 5 U.S.C. § 702 (“A person suffering 12

legal wrong because of agency action, or adversely affected or aggrieved by agency action

within the meaning of a relevant statute, is entitled to judicial review thereof.”); id. § 10(c),

5 U.S.C. § 704 (“Agency action made reviewable by statute and final agency action for which

there is no other adequate remedy in a court are subject to judicial review. . . . Except as

otherwise expressly required by statute, agency action otherwise final is final for purposes of

this section . . . , unless the agency otherwise requires by rule and provides that the action

meanwhile is inoperative, for an appeal to superior agency authority.”).

See id. § 10(c). 13

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A

To determine whether the APA’s default rule of review is applicable, we

look to the agency-specific statutes and rules. The Coast Guard, under the

14

authority of the Secretary of the Department of Homeland Security

(Department), has authority to conduct S&R proceedings for mariner licenses.

15 16

S&R proceedings are formal adjudicative proceedings governed by the APA and

conducted by an ALJ. Unless the ALJ’s decision is appealed, the “ALJ’s

17

decision becomes final action of the Coast Guard 30 days after the date of its

issuance.” An individual may appeal the suspension or revocation of his license

18

to the Secretary of the Department within thirty days of the suspension or

revocation. The regulations implementing this statute provide that “[a]ny

19

party may appeal the ALJ’s decision by filing a notice of appeal . . . 30 days or

less after issuance of the decision.” The Coast Guard Commandant reviews the

20

ALJ’s decision “to determine whether the ALJ committed error in the

proceedings, and whether the Commandant should affirm, modify, or reverse the

See Darby v. Cisneros, 509 U.S. 137, 146 (1993) (looking to statutes and agency rules

14

to determine whether APA § 10(c) was applicable after the party had exhausted all

administrative remedies expressly required).

See 6 U.S.C. § 468(b) (transferring the Coast Guard to the Department of Homeland 15

Security).

 46 U.S.C. § 7701(b), (d).

16

Id. § 7702(a) (citing 5 U.S.C. §§ 551-559); see 33 C.F.R. § 20.101(c) (2009) (“Except as 17

otherwise noted, the rules of practice, procedure, and evidence in this part apply to . . .

[s]uspensions and revocations conducted under 46 U.S.C. Chapter 77.”); 46 C.F.R. § 5.19(b)

(2009) (delegating, from the Commandant to the ALJs, the authority to suspend or revoke a

mariner’s license).

 33 C.F.R. § 20.1101(b)(1) (2009). 18

 46 U.S.C. § 7702(b). 19

 33 C.F.R. § 20.1001(a) (2009). 20

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ALJ’s decision or should remand the case for further proceedings.” The

21

Commandant’s decision in such an appeal “constitutes final action of the Coast

Guard on the date of its issuance.”

22

The NTSB statutes and regulations provide for review of the Coast

Guard’s decision. Section 1133(3) of Title 49 requires that the NTSB “shall

review on appeal . . . a decision of the head of the department in which the Coast

Guard is operating on an appeal from” an S&R decision. The implementing

regulations “govern all proceedings before the [NTSB] on appeals taken from

decisions . . . of the Commandant [of the] U.S. Coast Guard[] sustaining orders

of an administrative law judge[] revoking, suspending, or denying a license.”

23

The regulations further provide that a party appealing the Commandant’s

decision must file a “notice of appeal with the [NTSB] within 10 days after

service of the Commandant’s decision upon the party or his designated

attorney.” That period may be extended “for good cause shown.” The

24 25

appellant’s brief is then due to the NTSB within 20 days after the filing of the

notice of appeal. The final level of review provided in this statutory and

26

regulatory scheme is by the “appropriate court of appeals of the United States,”

which “may review a final order” of the NTSB made under 49 U.S.C. Chapter

11.

27

Id. § 20.1004(a). 21

Id. § 20.1101(b)(2). 22

 49 C.F.R. § 825.1 (2009).

23

Id. § 825.5(a).

24

Id. 25

Id. § 825.20(a). 26

 49 U.S.C. § 1153(a). 27

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B

Dresser argues that his appeal of the Commandant's decision to the NTSB

is optional. Accordingly, he contends that the Supreme Court's decision in Darby

v. Cisneros prevents the district court from requiring him to pursue that appeal.

He reasons that the district court should have exercised jurisdiction over his

complaint under the default review provision of the APA. In Darby, the Court

held that APA § 10(c) explicitly requires exhaustion of all intra-agency appeals

mandated either by statute or agency rule. It would therefore be inconsistent,

28

the Court concluded, for courts to require litigants to exhaust optional appeals

as well. The Court’s holding in Darby does not support Dresser’s position.

29

First, the Coast Guard–NTSB–court of appeals path of review is not

analogous to the statutory and regulatory scheme at issue in Darby. In Darby,

the Court reviewed the administrative appeals process for decisions by ALJs for

the Department of Housing and Urban Development (HUD). The HUD

30

regulations provided for review of an ALJ decision, but only at the discretion of

the HUD Secretary: “The hearing officer’s determination shall be final unless

. . . the Secretary . . . , within 30 days of receipt of a request decides as a matter

of discretion to review the finding of the hearing officer.”

31

Here, by contrast, the applicable statute requires that the NTSB “shall

review” an appealed S&R decision from the Coast Guard Commandant. The

32

explicitly discretionary nature of the HUD review scheme thus differentiates it

from the mandatory review by the NTSB when a mariner seeks an appeal from

Darby v. Cisneros, 509 U.S. 137, 147 (1993). 28

Id. 29

Id. at 144.

30

Id. at 141 (quoting 24 C.F.R. § 24.314(c) (1992)).

31

 49 U.S.C. § 1133(3) (emphasis added).

32

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the Commandant’s decision. Therefore, requiring Dresser to seek NTSB review

before he obtains statutorily provided judicial review in a circuit court does not

contradict the Supreme Court’s conclusion that imposing additional, optional

exhaustion requirements on litigants would be contrary to the plain language of

the APA.

33

Second, Darby must be read in light of an earlier decision, Bowen v.

Massachusetts, in which the Supreme Court addressed the issue of whether, in

the absence of a specific statutory provision for judicial review of actions by the

Secretary of Health and Human Services, the APA would provide for judicial

review in federal district court. The Court reasoned that APA § 10(c) was

34

primarily enacted to codify the exhaustion requirement, but that it “also makes

it clear that Congress did not intend the general grant of review in the APA to

duplicate existing procedures for review of agency action.” In other words, a

35

statutory and regulatory scheme that specifically provides for judicial review is

not superceded by the default rule in APA § 10(c).

36

Notwithstanding Dresser’s argument that Darby alone controls the

question in this case, Darby did not overrule Bowen—in fact, the Darby Court

specifically acknowledged the continued force of Bowen —and therefore must

37

be read in light of the holding of the earlier case. Reading Darby and Bowen

together clarifies that the actual issue in this case is not merely, as Dresser

argues, whether the Coast Guard Commandant’s decision constitutes final

See Darby, 509 U.S. at 147.

33

 487 U.S. 879, 882, 902-03 (1988).

34

Id. at 903.

35

See Darby, 509 U.S. at 146 (citing Bowen, 487 U.S. at 903); see also Ligon v. LaHood,

36

614 F.3d 150, 154 (5th Cir. 2010) (“Specific grants of jurisdiction to the courts of appeals

override general grants of jurisdiction to the district courts.”).

Darby, 509 U.S. at 146.

37

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agency action, but rather whether the Coast Guard and NTSB statutes and

regulations provide for an adequate remedy in a court for review of final agency

action.

Dresser also relies on an earlier decision of the Supreme Court, Weinberger

v. Salfi, to contend that the district court had jurisdiction to hear his appeal.

Dresser correctly states that the Court in that case set a high bar for a statute

to divest jurisdiction to review agency action from a federal district court. But

38

Dresser’s reliance on Weinberger is misplaced: The question in the case at hand

is not one of jurisdictional divestment, but rather whether a statutory and

regulatory scheme provides for adequate judicial review. Thus, Weinberger does

not control.

Review by a court of appeals is “an adequate remedy” within the meaning

of the APA, and therefore the APA § 10(c)’s default rule of review in a federal

district court is inapplicable. Other courts have held similarly. We are

39

sympathetic to the position in which Mr. Dresser finds himself. But we also

recognize that several of his own decisions extended his wait for judicial review,

and that he received meaningful relief from the NTSB itself in an earlier

iteration of the process.

See Weinberger v. Salfi, 422 U.S. 749, 757 (1975) (recognizing that a statute’s 38

“sweeping and direct” language barred district court federal-question jurisdiction); see also

Dawson Farms L.L.C. v. Farm Service Agency, 504 F.3d 592, 602-03 (5th Cir. 2007) (applying

Weinberger to find that a statute did not contain sufficiently sweeping and direct language to

be a jurisdictional bar).

See, e.g., Hocking v. United States, No. 10-11007-JLT, 2010 WL 2925903, at *1 (D.

39

Mass. July 21, 2010); Kinneary v. City of New York, 358 F. Supp. 2d 356, 360-61 (S.D.N.Y.

2005); Bruch v. U.S. Coast Guard, 736 F. Supp. 634, 635 (E.D. Pa. 1990); Blackwell v. United

States, 586 F. Supp. 947, 948 (S.D. Fla. 1984). But see McDonald v. United States, No. Civ. H04-1845, 2005 WL 1571215, at *4 (S.D. Tex. June 30, 2005).

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III

We also agree with the district court’s refusal to exercise jurisdiction over

Dresser’s Bivens claims. In this court’s unpublished Dresser I decision, we held

that Dresser’s Bivens claims were “inescapably intertwined with a review of the

procedure and merits surrounding” the ALJ’s Decision. The same holds true

40

in this case, even though Dresser filed the complaint at issue in this appeal after

the Commandant had issued his decision. This court recently cited Dresser I

with approval, in Ligon v. LaHood, to support a holding that a plaintiff’s ADEA

claims were inescapably intertwined with a pending Federal Aviation

Administration (FAA) order. The statute at issue in Ligon provided for review

41

of FAA Administrator orders by a court of appeals. Because ruling on the

42

ADEA damages claims would require the district court to review the

Administrator’s order, we concluded that the district court was statutorily

precluded from exercising jurisdiction over the ADEA claims.

43

The reasoning in Dresser I and Ligon applies with equal force here.

Dresser’s Bivens claims allege unconstitutional actions by Coast Guard actors

during the S&R proceedings conducted by the agency. His claim is “inescapably

intertwined” with a challenge to the procedure and merits of the Coast Guard’s

decision to revoke his license. Because the district court did not have

44

jurisdiction to review the Commandant’s S&R decision, it also did not have

jurisdiction over Dresser’s Bivens claims.

* * *

Dresser I, 307 F. App’x 834, 843 (5th Cir. 2009) (unpublished) (per curiam). 40

Ligon v. LaHood, 614 F.3d 150, 155 (5th Cir. 2010).

41

Id. at 154 (citing Zephyr Aviation, L.L.C. v. Dailey, 247 F.3d 565, 571 (5th Cir. 2001)). 42

Id. at 157.

43

See id. 44

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The district court’s dismissal of Dresser’s complaint for lack of subject

matter jurisdiction is therefore AFFIRMED.

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