Jack Anthony Jory v. United States , 562 F. App'x 926 ( 2014 )

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            Case: 13-13211     Date Filed: 04/14/2014   Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-13211
Non-Argument Calendar
________________________
D.C. Docket No. 3:12-cv-01235-HES-JRK
JACK ANTHONY JORY,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 14, 2014)
Before MARCUS, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
Jack Jory appeals pro se the district court’s dismissal of his action arising
from the U.S. Coast Guard’s revocation of his merchant mariner credentials
Case: 13-13211    Date Filed: 04/14/2014   Page: 2 of 6
(“MMC”). On appeal, Jory argues that the district court erred in dismissing his
complaint for lack of subject-matter jurisdiction. After careful review, we affirm.
We review dismissals for lack of subject-matter jurisdiction de novo.
Miccosukee Tribe of Indians of Fla. v. U.S. Army Corps of Eng’rs,

619 F.3d 1289

,
1296 (11th Cir. 2010). A court must dismiss an action if it determines at any time
that it lacks subject-matter jurisdiction. Fed.R.Civ.P. 12(h)(3). Federal courts are
courts of limited jurisdiction, and the party invoking the court’s jurisdiction must
prove, by a preponderance of the evidence, facts supporting the existence of
jurisdiction. McCormick v. Aderholt,

293 F.3d 1254

, 1257 (11th Cir. 2002).
Under the U.S. Code, the appeal of a decision of the Coast Guard
Commandant lies with the NTSB:
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 the
decision of an administrative law judge denying, revoking, or suspending a
license, certificate, document, or register in a proceeding under . . . chapter
77 of title 46.
49 U.S.C. § 1133; see also 46 C.F.R. § 401.650(e); 49 C.F.R. § 825.5(a). In turn,
the U.S. courts of appeals hear the appeals of final orders of the NTSB:
[t]he appropriate court of appeals of the United States or the United States
Court of Appeals for the District of Columbia Circuit may review a final
order of the [NTSB] under this chapter. A person disclosing a substantial
interest in the order may apply for review by filing a petition not later than
60 days after the order of the [NTSB] is issued.
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49 U.S.C. § 1153(a). Where Congress has provided administrative and judicial
review procedures designed to permit agency expertise to be brought to bear upon
particular problems, those procedures are exclusive even if Congress did not
expressly provide for their exclusiveness. United States v. Southern Ry. Co.,

364 F.2d 86

, 91 (5th Cir. 1966).1 Thus, as the Fifth Circuit has recognized, the Coast
Guard and NTSB statutory and regulatory schemes allow for judicial review of
revocations only in a court of appeals, and only after an appeal to the NTSB.
Dresser v. Meba Med. & Benefits Plan,

628 F.3d 705

, 708-09 (5th Cir. 2010)
(persuasive authority).
Here, the district court properly dismissed Jory’s complaint for lack of
subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1), because Congress provided
administrative and judicial review procedures to appeal the Coast Guard’s MMC
revocations, which do not include review in a U.S. district court. 49 U.S.C. §§
1133, 1153(a). Jory attempts to circumvent these procedures by raising various
statutes and arguments, but they all fail.
For starters, Jory claims that the district court had jurisdiction under 28
U.S.C. § 1333 because this was an admiralty case, and under 28 U.S.C. § 1346
because this was a civil action founded upon an act of Congress or a regulation of
an executive department. However, 46 U.S.C. § 7702 specifically provides the
1
In Bonner v. City of Prichard,

661 F.2d 1206

, 1209 (11th Cir.1981) (en banc), we
adopted as binding precedent all Fifth Circuit decisions issued before October 1, 1981.
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administrative procedure for the suspension and revocation of merchant seamen
licenses, certificates, and documents, and as the statutes make clear, these types of
decisions are subject to judicial review in a U.S. court of appeals and not a district
court. 49 U.S.C. §§ 1133, 1153(a). His next claim -- that the district court had
jurisdiction under the Administrative Procedures Act (“APA”) because a person
wronged by an agency action is entitled to judicial review -- also fails. The APA
delineates that where the form of proceeding for judicial review is provided for by
“the special statutory review proceeding relevant to the subject matter” -- as it is
provided for here -- the APA does not provide any alternative forms of review. 5
U.S.C. § 703. Thus, once again, review must be sought in the appropriate U.S.
court of appeals, and not in the district court.
Jory also claims that his case never should have been heard by the Coast
Guard since only district courts have jurisdiction to adjudicate the crime of
“assaulting a master.” But in fact, the Coast Guard revoked Jory’s MMC because
it found that he was “a security risk that poses a threat to the safety or security of a
vessel or a public or commercial structure located within or adjacent to the marine
environment,” in violation of 46 U.S.C. § 7703(5), not because he assaulted a
master, in violation of 46 U.S.C. § 11501(6). Nor does the district court have
jurisdiction over Jory’s constitutional challenges to the statutes that were the basis
for the Coast Guard’s revocation of his MMC. Indeed, as we’ve said, once the
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NTSB issued its order dismissing Jory’s appeal, the only court that could review
that order was the court of appeals. Green v. Brantley,

981 F.2d 514

, 521 (11th
Cir. 1993) (holding that the merits of a pilot-examiner’s constitutional claims were
inescapably intertwined with the review of the procedures and merits surrounding a
Federal Aviation Administration order, so the district court lacked subject matter
jurisdiction since Congress provided an exclusive forum for the correction of
procedural and substantive administrative errors in the courts of appeals).
Finally, even assuming Jory’s assertion that he never appealed the
Commandant’s decision to the NTSB is correct, the district court would still lack
subject-matter jurisdiction because exhaustion of administrative remedies is a
general prerequisite to judicial review of any administrative action. See, e.g.,
Hedley v. United States,

594 F.2d 1043

, 1044 (5th Cir. 1979) (concluding that
exhaustion of administrative remedies was implicitly required by the Freedom of
Information Act before a claimant could request judicial relief). In the case of the
Coast Guard’s MMC revocation, Jory could not have exhausted his remedies
because without an NTSB final order, he would not have been able to seek judicial
review.

Id. For these

reasons, the district court plainly was without jurisdiction to decide
Jory’s claim and did not err in granting the government’s motion to dismiss.
Because the district court lacked subject-matter jurisdiction over the case, it is not
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necessary for us to consider any other issues Jory raised in his appeal. Ingram
Contractors, Inc. v. United States,

592 F.2d 832

, 834 (5th Cir. 1979). Furthermore,
issues that are not raised in a party’s initial brief are considered to be abandoned,
so we need not consider the issues raised for the first time in Jory’s reply brief.
Hartsfield v. Lemacks,

50 F.3d 950