McConaha v. Federal Aviation Administration ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 7 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
WILLIAM R. MCCONAHA,
Plaintiff - Appellant,
v. No. 01-5186
D.C. No. 00-CV-793-P
FEDERAL AVIATION (N.D. Oklahoma)
ADMINISTRATION,
Defendant - Appellee,
and
PLANETECHS, a limited liability
corporation,
Defendant.
ORDER AND JUDGMENT *
Before KELLY , BALDOCK , and LUCERO , Circuit Judges.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Plaintiff William R. McConaha appeals from the district court’s order
dismissing his claims against the defendant Federal Aviation Administration
(FAA) for lack of subject matter jurisdiction. Mr. McConaha settled his claims
against his former employer, Planetechs, L.L.C., an aircraft maintenance
company . We affirm.
The parties are familiar with the facts and we will not repeat them, except
as necessary for our discussion.
The district court granted defendant’s motion to dismiss holding that the
United States and its agencies are immune from suit under the FTCA and
Mr. McConaha had not properly alleged an action pursuant to Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388 (1971) .
The court denied Mr. McConaha’s motion to amend his complaint to add
individual defendants, holding that, under current Tenth Circuit law, amendment
would be futile.
On appeal, Mr. McConaha argues that the federal court has jurisdiction to
provide relief. He reasserts that his property was taken without due process and
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contends that the district court should have permitted him to amend his complaint
to name the head of the FAA and its agent as party defendants .
“We review a dismissal for lack of subject-matter jurisdiction de novo,
accepting the district court’s findings of jurisdictional facts unless they are clearly
erroneous.” Montoya v. Chao , 296 F.3d 952, 954 -955 (10th Cir. 2002). We
review the court’s denial of a motion to amend a complaint for abuse of
discretion. Scott v. Hern , 216 F.3d 897, 906 (10th Cir. 2000).
The district court correctly held that Mr. McConaha’s complaint must be
dismissed as originally presented. Mr. McConaha may only bring a damages
claim against the United States under the FTCA. See 28 U.S.C. § 2679.
However, the FTCA does not permit suits against the United States for damages
when the act complained of is “based upon the exercise or performance or the
failure to exercise or perform a discretionary function or duty on the part of a
federal agency or an employee of the Government.” Id. § 2680(a). This court has
held that a suit alleging damages based on the FAA’s “authority to issue airman
certificates was barred by the discretionary function exception to the FTCA.”
Redmon ex rel. Redmon v. United States , 934 F.2d 1151, 1157 (10th Cir. 1991).
Further, Mr. McConaha did not exhaust his administrative remedies. See
28 U.S.C. §§ 2401(b), 2675(a); Duplan v. Harper , 188 F.3d 1195, 1199 (10th Cir.
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1999) (“As a jurisdictional prerequisite, the FTCA bars claimants from bringing
suit in federal court until they have exhausted their administrative remedies.”).
Mr. McConaha specifically excluded the possibility that he was seeking
review of the agency’s actions under 49 U.S.C. § 46110 which requires that
petitions seeking review of agency actions must be filed in the court of appeals.
Lastly, Mr. McConaha cannot proceed under § 1983 . See Wheeldin v. Wheeler ,
373 U.S. 647, 649-50 & n.2 (1963).
Clearly the only possible cause of action which would provide the district
court with jurisdiction over Mr. McConaha’s claims would be a Bivens action
against the individual defendants.
Therefore, we next examine whether such an amendment would be futile as
the district court held. A Bivens action is not available for actions attempting to
hold individual defendants liable for alleged constitutional violations they may
have committed in the process of reaching a final agency decision. Robbins v.
Wilkie , 300 F.3d 1208, 1212 (10th Cir. 2002); Nat’l Commodity & Barter Ass’n
v. Archer , 31 F.3d 1521, 1532 (10th Cir. 1994); Zephyr Aviation, L.L.C. v.
Dailey , 247 F.3d 565, 572 (5th Cir. 2001); Green v. Brantley , 981 F.2d 514, 521
(11th Cir. 1993).
However, a Bivens action may proceed if the wrongful acts plaintiff alleges
are not part of the procedure of reaching a final agency decision. See, e.g. ,
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Robbins , 300 F.3d at 1212; Zephyr Aviation , 247 F.3d at 572-73; Collins v.
Bender , 195 F.3d 1076, 1079-80 (9th Cir. 1999).
In his amended complaint, Mr. McConaha alleged that the FAA had
“deprived Plaintiff of his rights of substantive due process under the Constitution
of the United States in that Defendant F.A.A. deprived Plaintiff of his right to
work after his license had been revoked.” Aplt. App. at 34. Mr. McConaha,
thus, was complaining of actions defendants took which were directly related to
the final agency action . Amendment of his complaint would be futile.
Mr. McConaha cites to Mace v. Skinner, 34 F.3d 854 (9th Cir. 1994), to
support his contention that he should be permitted to amend his complaint.
However, even if Mace were controlling here, and it is not, see Garcia ex rel.
Garcia v. Miera, 817 F.2d 650, 658 (10th Cir. 19 87), it would not help him. The
Ninth Circuit permitted the plaintiff’s action to proceed because (1) the plaintiff
was seeking damages, a remedy not available on review of an agency action; (2)
he was alleging “a broad challenge to the allegedly unconstitutional actions of
the” agencies; and (3) “his complaint [wa]s not based on the merits of any
particular revocation order.” Mace , 34 F.3d at 858.
It is clear that even if Mr. McConaha were permitted to amend his
complaint to add the individual defendants, he could not state a cognizable Bivens
claim. The district court’s dismissal of this action was proper, as was its denial
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of his motion to amend his complaint. See Foman v. Davis , 371 U.S. 178, 182
(1962) (court need not grant leave to amend, if amendment would be futile).
The judgment of the United States District Court for the Northern District
of Oklahoma is AFFIRMED. Counsel’s motion to withdraw is GRANTED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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