IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-10860

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

United States Court of Appeals

Fifth Circuit

F I L E D

August 9, 2010

Lyle W. Cayce

Clerk

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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). For the purposes of the Act, the term “order” “has been

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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

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

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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. Like the challenges in Green, Merritt I, and Dresser,

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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. Further, the relief Ligon seeks—reinstatement of his

3

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

Ligon’s complaint makes several factual allegations that do not directly relate to the 2

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.

Because the ADEA does not authorize a mixed-motive age discrimination claim, Gross 3

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)). Accordingly, we conclude that

4

§ 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.

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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

Ligon and the FAA argue that this case is distinguishable from the cases concluding 4

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). 

Ligon asserts that the district court erred in failing to transfer his case to this court

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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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