Hadi "Max" Falahati v. Tracey Egan ( 2016 )

Case: 15-13029 Date Filed: 02/12/2016 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-13029
Non-Argument Calendar
________________________
D.C. Docket No. 0:14-cv-61511-RLR
HADI "MAX" FALAHATI,
Plaintiff-Appellant,
versus
TRACEY EGAN,
individual,
FRANZ JURAN,
individual,
SERGIO LOPEZ,
individual,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 12, 2016)
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Before TJOFLAT, WILLIAM PRYOR and FAY, Circuit Judges.
PER CURIAM:
This action arises out of the Federal Aviation Administration’s (FAA’s)
surveillance, inspection and enforcement activity with respect to a Learjet, a
common carrier passenger aircraft owned by ExecJet Charter, Inc., which, in turn,
is owned by Hadi Falahati, the appellant. Tracey Egan, Franz Juran and Sergio
Lopez, the appellees, were involved in the inspection. As result of their findings,
the FAA issued an order revoking ExecJet’s air carrier certificate. Falahati and
ExecJet1 appealed the decision to the National Transportation Safety Board
(NTSB), and an administrative law judge found for the FAA. The full NTSB
board affirmed, finding no merit in the allegations of bad faith in appellees’
inspection activities or arbitrary or capricious actions by the FAA. ExecJet’s
appeal of the Board’s order is pending before the Ninth Circuit Court of Appeals.
Meanwhile, Falahati and ExecJet (and others not before the court here)
brought this Bivens action against appellees, 2 seeking damages on the theory that
appellees infringed their due process and equal protection rights under the Fifth
Amendment by “engag[ing] in intentional and hostile activity designed to deny
1
Falahati and ExecJet were joined by others, a fact not relevant here.
2
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct.
1999, 29 L. Ed. 2d 619 (1971) (creating a cause of action against federal government officials for
violations of constitutional rights)
2
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[them] the normal operations of FAA regulations and procedures necessary to
obtain the approvals and certifications essential to conduct their business.” See
First Amended Complaint, at ¶ 50.
Appellees moved the District Court to dismiss the action pursuant to Federal
Rule of Civil Procedure12(b)(1) for lack of subject matter jurisdiction, and the
court granted their motion. Falahati, proceeding pro se, appeals the decision. We
affirm.
The Federal Aviation Act provides:
[A] person disclosing a substantial interest in an order issued by the
[FAA] . . . 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). The circuit courts of appeals have exclusive jurisdiction to
affirm an order, amend an order, modify an order, or set aside any part of an order.
Id. § 46110(c). Therefore, circuit courts of appeals have exclusive jurisdiction
over orders put forth by the FAA, and a litigant may not bypass the congressionally
mandated appeals process by suing for damages in the district court. Id.; Green v.
Brantley, 981 F.2d 514, 521 (11th Cir. 1993). The term “order” also has a broad
construction: an order imposes an obligation, clearly denies a right, or fixes some
legal relationship. Green, 981 F.2d at 519 (11th Cir. 1993). Further, district courts
3
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will not hear cases arising from agency action where it might affect the
adjudicative power of the circuit courts. George Kabeller, Inc v. Busey, 999 F.2d
1417, 1422-23 (11th Cir. 1993).
Falahati’s arguments are foreclosed by Green. The appellees’ findings in
grounding Falahati’s plane and recommending the denial of his certificates are
orders. They denied Falahati’s and ExecJet’s right to operate the Learjet and
imposed obligations that he comply with the FAA’s requirements. Further, even if
their allegedly wrongful actions were not orders, the actions were intertwined with
FAA orders, and therefore, must be reviewed in the court of appeals. 3
AFFIRMED.
3
Falahati argues that the District Court abused its discretion in taking judicial notice of the
NTSB appeal before the Ninth Circuit without giving him a chance to respond. We find no merit
in the argument.
4