Americopters, LLC v. Faa , 441 F.3d 726 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMERICOPTERS, LLC, 
Plaintiff-Appellant, No. 04-15097
v.  D.C. No.
FEDERAL AVIATION ADMINISTRATION, CV-03-00005-JSU
Defendant-Appellee.

JAN’S HELICOPTER SERVICE, INC., 
Plaintiff-Appellant, No. 04-15098
v.  D.C. No.
FEDERAL AVIATION ADMINISTRATION, CV-03-00002-JSU
Defendant-Appellee.

AMERICOPTERS, LLC, 
Petitioner, No. 04-70330
v.  FAA No.
FEDERAL AVIATION ADMINISTRATION, 03-00005
Respondent.

JAN’S HELICOPTER SERVICE, INC.,  No. 04-70348
Petitioner,
v.  FAA No.
03-00002
FEDERAL AVIATION ADMINISTRATION,
OPINION
Respondent.

2923
2924 AMERICOPTERS v. FAA
Appeal from the United States District Court
for the District of Guam
John S. Unpingco, District Judge, Presiding
and
On Petition for Review from
Orders of the Federal Aviation Administration
Argued and Submitted
November 21, 2005—Honolulu, Hawaii
Filed March 21, 2006
Before: Myron H. Bright,* M. Margaret McKeown, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge McKeown
*The Honorable Myron H. Bright, Senior United States Circuit Judge
for the Eighth Circuit, sitting by designation.
AMERICOPTERS v. FAA 2927
COUNSEL
David P. Ledger and Elyze J. McDonald, Carlsmith Ball LLP,
Hagåtña, Guam, for the appellants.
Kenneth G. Caplan, Special Attorney to the United States
Attorney General, San Diego, California, for the appellee.
OPINION
McKEOWN, Circuit Judge:
Jan’s Helicopter Service, Inc. (“Jan’s”) and Americopters,
LLC (“Americopters”) filed petitions for review under 49
U.S.C. § 46110, requesting relief from the actions of certain
officials of the Federal Aviation Administration (“FAA”) that,
according to the flight services, had the effect of halting their
flight operations. In separately filed appeals based on the
same facts, Jan’s and Americopters challenge the district
court’s dismissal of their complaints for lack of jurisdiction
2928 AMERICOPTERS v. FAA
under § 46110, which vests in the court of appeals exclusive
jurisdiction to review FAA final orders.
We dismiss the petitions for lack of jurisdiction because
they were untimely filed without reasonable grounds for
delay. As to the appeals, with one exception, the district court
correctly dismissed the claims for lack of jurisdiction; the
court erred in dismissing the constitutional claims for dam-
ages based upon allegations that the FAA’s actions effected
a taking of property in violation of the Due Process Clause.
BACKGROUND
Jan’s and Americopters are not related by common owner-
ship, although they share the same attorney and face similar
legal issues. The FAA and district court addressed their nearly
identical claims together, and their petitions and appeals have
been consolidated before us. For the sake of clarity, we first
describe the factual background of each company before
reviewing their common history and legal claims before the
FAA and district court.
I. JAN’S AND THE ZEIGLER EMAIL
Jan’s owns a de Havilland Caribou DCH-4A (“Caribou”)
transport plane that is registered in the Philippines. The Cari-
bou is used to transport helicopters, also owned by Jan’s, that
are rented or leased by various commercial fishery operators
in Micronesia to search for tuna. Sometime in 2000, Jan’s
asked the U.S. Department of Transportation (“DOT”) what
authorization it needed to fly the foreign-registered Caribou
out of the Guam Airport. The DOT replied that if Jan’s
owned, operated and crewed the Caribou itself “the operation
would be authorized by regulation under [14 C.F.R. §]
375.30, and no additional DOT operating authority would be
required.” Jan’s took this statement to mean that it could fly
the Caribou out of Guam Airport without any advance DOT
or FAA authorization “so long as there was a unity of owner-
AMERICOPTERS v. FAA 2929
ship between the Caribou and the helicopter being transport-
ed.”
In July 2002, Guam Airport officials told Lewis Zeigler,
regional FAA Aviation Safety Inspector, that a Philippine-
registered Caribou was using the Guam Airport as a base from
which to haul helicopters to other Pacific islands. On July 31,
2002, Zeigler sent an email (“Zeigler Email”) to the Guam
Airport:
What can you tell me about a Philippine registered
Caribou (DHC-4) that is supposed to be based on
Guam and flying around the islands? Supposedly it
used to be a U.S. registered aircraft and is hauling
some small helicopters that are used on fishing
boats. Whoever it is they aren’t authorized to operate
there.
Though the email clearly referred to Jan’s Caribou, Jan’s did
not receive a copy of the message from the FAA, Zeigler or
the Guam Airport. Less than two weeks later, as Jan’s Cari-
bou was preparing to taxi for take off, the Guam Airport
denied ramp access, effectively grounding the aircraft.
Jan’s immediately wrote to the FAA requesting a hearing
to challenge the grounding of its Caribou without prior notice.
Jan’s argued that the Zeigler Email was a final FAA order that
in effect denied Jan’s ramp access without any notice or
opportunity to be heard as required by FAA regulations 14
C.F.R. § 13.20(b)1 and (c).2 Jan’s also asked for rescission of
1
“Unless the Administrator determines that an emergency exists and
safety in air commerce requires the immediate issuance of an order under
this section, the person subject to the order shall be provided with notice
prior to issuance.”
2
“Within 30 days after service of the notice [as required by §13.20(b)],
the person subject to the order may reply in writing or request a hearing
in accordance with Subpart D of this part.”
2930 AMERICOPTERS v. FAA
the directive, as well as actual and consequential damages for
the loss of contract revenues that resulted from the grounding
of the Caribou.
On August 23, 2002, the FAA’s Regional Counsel, Monroe
Balton, sent a “preliminary finding,” indicating that Zeigler
never directed the Guam Airport or anyone else to deny ramp
access to Jan’s Caribou. However, Balton also wrote that
Jan’s needed to apply for a permit to continue flying the Cari-
bou.
II. AMERICOPTERS AND THE KANAE LETTER
Until June 2002, Americopters ran a helicopter tour busi-
ness from a rooftop helipad at a restaurant, Chuck’s Steak
House (“Chuck’s”), in Guam. In February 2002, Clarence
Kanae, Principal Operations Inspector for the FAA’s regional
flight standards office, inspected the helipad at Chuck’s.
According to Americopters, during that visit, Kanae verbally
identified a number of deficiencies of the helipad but never
documented these concerns. Americopters asked Kanae to
“clarify and confirm . . . all of the changes that you would like
us to make to . . . Chuck’s” and provided him a list of
improvements Americopters intended to make.
Americopters received no response from Kanae until four
months later on June 24, 2002 (“Kanae Letter”):
This letter is to inform you that the use of the roof
top as a helicopter-pad, at Chuck’s Steak House, is
considered unsafe, and does not meet the [FAA]
Advisory Circular 150-5390-2A Heliport Design
requirements. This AC is [a]dvisory in nature; how-
ever, this office feels that [14 C.F.R. § 91.13] will
apply to this operation if the AC is not followed.
Therefore, this office is requiring that your company
immediately cease use of the Chuck’s Steak House
rooftop for all flight operations.
AMERICOPTERS v. FAA 2931
Americopters wrote to Kanae’s manager protesting that it had
written Kanae in February 2002 and “agree[d] 100% to each
and every change . . . requested,” but that Kanae failed to
respond and, instead, summarily banned Americopters from
flying from Chuck’s rooftop.
On August 13, 2002, Americopters wrote to the FAA alleg-
ing that the Kanae Letter ordered it to cease operations with-
out prior notice in violation of 14 C.F.R. § 13.20(b).
Americopters requested rescission of the cease operations
order, confirmation that planned improvements to the helipad
at Chuck’s would comply with FAA regulations, and 90 days
to install improvements approved by the FAA. In the alterna-
tive, Americopters requested a hearing under § 13.20(c).
III. FURTHER ADMINISTRATIVE PROCEEDINGS
As the district court put it, at the core of this case is a “bu-
reaucratic snag.” Bureaucratic roadblock may be more apt.
Jan’s and Americopters now find themselves in a sort of pro-
cedural limbo or netherworld, largely the making of the FAA
—first insisting that it did not issue final orders, so as to avoid
holding administrative hearings under its own regulations;
then arguing that it did issue final orders for purposes of
obtaining a dismissal for lack of jurisdiction before the district
court; and now, before us, contending again that it did not
issue final orders, thus depriving this court of jurisdiction.
Jan’s and Americopters, to be sure, contributed to this mess
by taking their own wrong turns in litigating this case, though
their uncertainty is not unsurprising given the way the FAA
addressed their claims.
The procedural confusion began on September 19, 2002,
when Jan’s and Americopters, sharing the same counsel,
received one letter from FAA Regional Counsel Monroe Bal-
ton. He denied their respective requests for hearings under
§ 13.20(c) on the basis that the Zeigler Email and Kanae Let-
ter were not actually orders issued by the FAA. Balton
2932 AMERICOPTERS v. FAA
pointed to FAA regulations, which state that only the Admin-
istrator and specific FAA officers3 have the authority to issue
an order under the FAA’s legal enforcement regulations (Sub-
part C of Part 13), at 14 C.F.R. §§ 13.13-13.29. Since neither
Zeigler nor Kanae had the authority to issue grounding or
cease-and-desist orders, “[n]o such orders were issued.” Thus,
according to Balton, without orders to challenge, Jan’s and
Americopters were not entitled to hearings under § 13.20(c).
It is necessary to pause and emphasize how much the Bal-
ton Letter exacerbated the difficult situation already created
by the Zeigler Email and Kanae Letter. Jan’s and Americop-
ters had stopped their respective flight operations at the behest
of FAA officials. By relying upon the dictates of FAA
employees as the official word of the FAA, Jan’s claimed to
have defaulted on a contract because of the Zeigler Email, and
Americopters allegedly lost business running helicopter tours
by complying with the Kanae Letter. But then came the Bal-
ton Letter, which told Jan’s and Americopters that, officially,
the FAA had issued no orders and had done nothing at all, and
that any harm was self-inflicted. The FAA turned an old legal
maxim on its head, telling Jan’s and Americopters: no foul, no
harm.
At this point, Jan’s and Americopters made their own con-
tribution to the procedural morass. They both submitted com-
plaints under 14 C.F.R. § 13.5 to the FAA’s Chief Counsel
alleging that Zeigler and Kanae had acted outside of the scope
of their employment. They filed these complaints even though
3
See FAA Order 2150.3A para. 1209(b). The substance of this FAA
order is contained in FAA regulations. Compare 14 C.F.R. § 13.20(l)
(“[T]he authority of the Administrator under this section is also exercised
by the Chief Counsel, Deputy Chief Counsel, each Assistant Chief Coun-
sel, each Regional Counsel, and the Aeronautical Center Counsel . . . .”)
with § 13.20(a) (“This section applies to orders of compliance, cease and
desist orders, orders of denial, and other orders issued by the Administra-
tor to carry out the provisions of the Federal Aviation Act”) (emphasis
added).
AMERICOPTERS v. FAA 2933
the Balton letter had preemptively discouraged them from
doing so, indicating that the § 13.5 procedures could not be
used to challenge the actions of FAA employees taken within
the scope of their employment.
On November 22, 2002, the FAA denied Jan’s § 13.5
request, noting that Zeigler had acted within the scope of his
employment with the FAA. The FAA also took the position
that the Zeigler Email was not an order, and that Zeigler was
not responsible for the Guam Airport’s decision to ground
Jan’s Caribou. On December 7, 2002, the FAA wrote to
Americopters, noting that it was considering whether a § 13.5
hearing was in order and promising to send a final reply in a
week. Despite follow-up inquiries, Americopters received no
other response to its request for a § 13.5 hearing.
IV. DISTRICT COURT PROCEEDINGS
On February 4, 2003, Jan’s filed a complaint in district
court, and on February 18, 2003, Americopters followed suit.
The complaints, like the previous letters, alleged that the FAA
had violated its own regulations because unauthorized offi-
cials had issued orders that halted flight operations without
“prior notice and an opportunity to respond” as required by 14
C.F.R. § 13.20(b). The complaints requested rescission of the
purported FAA orders—both the Zeigler Email and the Kanae
Letter.
Unlike the earlier letters to the FAA, these complaints
requested penalties and fines pursuant to FAA regulations, 14
C.F.R. §§ 13.15 and 13.16. The more important novelty of the
district court complaints, however, is that they sought dam-
ages based on constitutional violations. Jan’s alleged that
Zeigler’s grounding order was unauthorized and “consti-
tute[d] a violation of the due process requirements under
Amendment V . . . by unlawfully taking Jan’s property.”
Americopters similarly alleged that “Mr. Kanae’s unautho-
rized cease and desist order dated June 24, 2002 constitutes
2934 AMERICOPTERS v. FAA
a violation of due process under Amendment V . . . and there-
fore, an illegal taking of Americopters’ property.” Americop-
ters also alleged that the FAA’s failure to answer its request
for a § 13.5 hearing also constituted an illegal taking of prop-
erty.
The FAA moved to dismiss for lack of subject matter juris-
diction under Federal Rule of Civil Procedure 12(b)(1) on the
grounds that, under 49 U.S.C. § 46110, only a circuit court
has jurisdiction to review FAA orders. Though it maintained
that the Zeigler Email and Kanae Letter were not actually
final orders, the FAA made the seemingly contradictory argu-
ment that, for purposes of the motion to dismiss, the district
court was compelled to accept as true all allegations made in
the complaints.4 According to the FAA, the complaints
alleged that the Zeigler Email and Kanae Letter were final
orders and, thus, § 46110 barred review by the district court.
The district court granted the FAA’s motion to dismiss,
holding that the Zeigler Email and Kanae Letter were final
orders and that jurisdiction over claims based upon violation
of FAA regulations was “vested exclusively in the Ninth Cir-
cuit as mandated by Section 46110(a).” In addition, citing
Mace v. Skinner, 34 F.3d 854, 858 (9th Cir. 1994), and Foster
v. Skinner, 70 F.3d 1084 (9th Cir. 1995), the district court
held it had no jurisdiction to consider the due process claims
raised by the complaints because they “[did] not constitute
broad constitutional challenges to the FAA’s practices,” and
were “ ‘inescapably intertwined with a review of the proce-
dures and merits surrounding the FAA’s order[s].’ ”
4
Of course, unlike a Rule 12(b)(6) motion, in a Rule 12(b)(1) motion,
the district court is not confined by the facts contained in the four corners
of the complaint—it may consider facts and need not assume the truthful-
ness of the complaint. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir.
2000). Nor was the district court precluded from making a legal judgment
as to the finality of the FAA’s actions and consequently as to its jurisdic-
tion over the claims.
AMERICOPTERS v. FAA 2935
On January 13, 2004, Jan’s and Americopters filed notices
of appeal, along with petitions for review, with this court.
DISCUSSION
The sole issue before us is jurisdiction. We first consider
whether we have jurisdiction over Jan’s and Americopters’
petitions for review, and then we determine whether the dis-
trict court has any “residual” jurisdiction over their respective
complaints.
I. APPELLATE JURISDICTION: PETITIONS FOR REVIEW
[1] We have direct and exclusive jurisdiction over the
review of FAA final orders under 49 U.S.C. § 46110, which
provides in relevant part:
(a) Filing and venue.— . . . [A] person disclosing
a substantial interest in an order issued by . . . the
Administrator of the Federal Aviation Administra-
tion with respect to aviation duties and powers desig-
nated to be carried out by the Administrator[ ] in
whole or in part under this part, part B, or subsection
(l) or (s) of section 114 may apply for review of the
order by filing a petition for review in . . . the court
of appeals of the United States for the circuit in
which the person resides or has its principal place of
business. The petition must be filed not later than 60
days after the order is issued. The court may allow
the petition to be filed after the 60th day only if there
are reasonable grounds for not filing by the 60th day.
...
(c) Authority of court.—When the petition is sent
to the Secretary, Under Secretary, or Administrator,
the court has exclusive jurisdiction to affirm, amend,
modify, or set aside any part of the order and may
2936 AMERICOPTERS v. FAA
order the Secretary, Under Secretary, or Administra-
tor to conduct further proceedings. . . .
Although this statute has its intricacies, for the purpose of
determining our jurisdiction, a single part of the statute is
dispositive—§ 46110. This provision bars us from hearing
petitions filed later than 60 days after the issuance of the chal-
lenged FAA final order.
[2] The parties’ briefs focus on the finality or lack of final-
ity of the FAA correspondence and whether the communica-
tions can be characterized as FAA orders. Because Jan’s and
Americopters filed their petitions much later than 60 days
after the purported final orders were issued, it is unnecessary
for us to address whether either the Zeigler Email or the
Kanae Letter are, in fact, final FAA orders. Jan’s learned of
the Zeigler Email on August 9, 2002,5 and 60 days later was
October 8, 2002. The Kanae Letter was sent on June 24, 2002,
and 60 days later was August 23, 2002. The petitions for
review were not filed until January 2004, almost one-and-a-
half years after the purported FAA orders were issued.
Jan’s and Americopters concede, as they must, that their
petitions were untimely but argue that they had reasonable
grounds for delay because they attempted to exhaust adminis-
trative remedies before filing their petitions.
[3] A court of appeals “may allow the petition to be filed
after the 60th day only if there are reasonable grounds for not
filing by the 60th day.” 49 U.S.C. § 46110(a); see also Sierra
Club v. Skinner, 885 F.2d 591 (9th Cir. 1989). We have sug-
5
The Zeigler Email was submitted to the Guam Airport on July 31,
2002. Jan’s did not receive notice of the email until August 9, 2002, when
the Airport denied ramp access. As a result, the 60-day period was tolled
until August 9, 2002. See Nat’l Air Transp. Ass’n v. McArtor, 866 F.2d
483, 485 (D.C. Cir. 1989) (holding that a defect in notice by the FAA
“do[es] no more than toll the statutory time limit”).
AMERICOPTERS v. FAA 2937
gested before that an attempt to exhaust remedies may be a
reasonable ground for delay. See Watson v. Nat’l Transp.
Safety Bd., 513 F.2d 1081, 1082 (9th Cir. 1975) (“Even if we
assume that the sixty day statute of limitations . . . [is] tolled
. . . when [petitioner] erroneously filed his petition with the
NTSB, the filing was yet several years overdue.”). The Eighth
Circuit has explicitly recognized exhaustion as a reasonable
ground under § 46110(a). See Reder v. FAA, 116 F.3d 1261,
1263 (8th Cir. 1997) (holding that an “unsuccessful attempt
to exhaust administrative remedies . . . was a reasonable
ground for not filing [an] appeal . . . by the sixtieth day.”).
Crediting the lapse of time necessary for exhaustion is all the
more important when the FAA advises a petitioner to pursue
administrative remedies. Id. (exercising appellate jurisdiction
under § 46110 in part because “the FAA specifically told
[petitioner] that appealing to the NTSB was the appropriate
next step”).
Here, Jan’s and Americopters requested hearings with the
FAA on August 13, 2002, before their respective 60-day peri-
ods expired. On September 19, 2002, the FAA issued a “final
response” and rejected the requests to convene FAA hearings
under § 13.20(c). Using the generous assumption that a rea-
sonable ground for delay re-starts the 60-day period instead
of tolling it,6 Jan’s and Americopters should have filed peti-
tions for review with this court by November 18, 2002 (60
days after September 19, 2002). They did not file their peti-
tions for review until January 2004.
The residual issue is whether the further delay—from
November 2002 to January 2004—was based upon reasonable
grounds. We hold that it was not.
6
Reder suggests that the “reasonable grounds” clause re-starts the 60-
day period instead of tolling it. See 116 F.3d at 1262-63. We need not take
a definitive position here because this calculation does not affect the out-
come of our analysis.
2938 AMERICOPTERS v. FAA
Although a delay resulting from the exhaustion of applica-
ble administrative remedies may be a reasonable ground for
delay, see Reder, 116 F.3d at 1263, an attempt to exhaust the
wrong remedy is not. That is, a delay stemming from the fil-
ing of a petition or complaint with the wrong court is not, in
general, a reasonable ground for delay. See Sierra Club, 885
F.2d at 593. A delay is even less excusable when the FAA
advised the petitioner of the correct remedies or procedures to
follow, see id. at 593-94 (holding that no reasonable grounds
for delay existed when the petitioner filed a complaint in the
district court despite the FAA’s advice to file in the court of
appeals), and when the petitioner’s procedural missteps were
based on a misapprehension of the law. See id. at 594 (“We
find it difficult to believe that someone among [petitioner’s]
legal advisers did not sound a note of caution as to jurisdic-
tion.”).
At the point the FAA refused their requests for hearings
under § 13.20(c)— September 19, 2002—Jan’s and Ameri-
copters had exhausted their administrative remedies. Instead
of timely filing petitions for review with this court, they
decided to try another administrative route. From late Septem-
ber 2002 until February 2003, Jan’s and Americopters
awaited their pending requests before the FAA for hearings
under the § 13.5 complaint procedure. The FAA explicitly
warned Jan’s and Americopters that, in its view, the § 13.5
complaint procedure “does not apply to complaints against the
Administrator or complaints against FAA employees acting
within the scope of their employment.” In their § 13.5 com-
plaints, Jan’s and Americopters alleged that the FAA employ-
ees acted outside the scope of their employment.
[4] We need not decide whether Jan’s and Americopters
were unreasonable in taking the § 13.5 route—clearly they
were not required to do so—for the ultimately fatal detour
took place when they filed complaints with the district court.
We have held that filing in the wrong court is not a reasonable
ground for delay. See Sierra Club, 885 F.2d at 593 (refusing
AMERICOPTERS v. FAA 2939
jurisdiction because petitioner delayed by initially “fil[ing] for
judicial review of the FAA action in the wrong court”). Only
after the district court dismissed their claims in December
2003 did Jan’s and Americopters finally file petitions for
review with us.
[5] To be sure, idleness did not cause Jan’s and Americop-
ters to miss their deadlines. But their quixotic pursuit of the
wrong remedies was not a reasonable ground for delay. Thus,
even assuming the Zeigler Email and Kanae Letter were final
orders, and even granting the petitioners a generous tolling for
exhausting their initial administrative challenges, their peti-
tions were filed almost a year after their adjusted 60-day
deadlines. Consequently, we have no jurisdiction to consider
the petitions for review filed by Jan’s or Americopters.
II. DISTRICT COURT JURISDICTION
Jan’s and Americopters assert that the district court had
jurisdiction over their claims under 28 U.S.C. § 1331. In
rejecting jurisdiction, the district court analyzed two sets of
claims separately. All direct challenges to the Zeigler Email
and Kanae Letter were dismissed as preempted by the exclu-
sive jurisdiction provision of § 46110. The district court also
dismissed the constitutional claims for damages holding that,
though not directly preempted by § 46110, such claims were
“inescapably intertwined” with the procedures involved in a
direct review of the Zeigler Email and Kanae Letter.
A. CLAIMS PREEMPTED BY § 46110
[6] Section 46110 does not grant the court of appeals direct
and exclusive jurisdiction over every possible dispute involv-
ing the FAA. The statute covers claims involving “aviation
duties and powers designated to be carried out by the Admin-
istrator” and orders issued pursuant to “this part, part B, or
subsection (l) or (s) of section 114.” 49 U.S.C. § 46110(a).
Subject matter is a necessary but not sufficient condition for
2940 AMERICOPTERS v. FAA
exclusive appellate jurisdiction. Another important dimension
of § 46110 must also be considered—the statute allows us to
grant only certain kinds of remedies. Under § 46110(c), we
have jurisdiction if the petitioner requests that we “affirm,
amend, modify, [or] set aside any part of the order,” or
remand to the FAA for further proceedings. By contrast, we
have no jurisdiction to grant other remedies, such as damages.
See Mace, 34 F.3d at 858. Thus, there are certain claims chal-
lenging FAA actions over which the district court may have
residual jurisdiction because § 46110 does not explicitly allow
us to hear them.
Jan’s and Americopters argue that all their claims fall
within this residual space and that § 46110 does not preempt
district court jurisdiction. In particular, they argue that the
Zeigler Email and Kanae Letter were non-final orders, that
§ 46110 does not grant us jurisdiction to hear non-final
orders, and that the district court has jurisdiction over such
claims. This argument is based on a mistaken assumption—
that because finality is a predicate to our jurisdiction over an
FAA order, see S. Cal. Aerial Advertisers’ Ass’n v. FAA, 881
F.2d 672, 675 (9th Cir. 1989), its absence necessarily must
confer jurisdiction upon the district court.
The issue of finality leaves Jan’s and Americopters some-
where between Scylla and Charybdis. The dilemma is this: if
the Zeigler Email and Kanae Letter are final orders relating to
“aviation duties and powers,” § 46110 preempts the district
court from considering these claims. But if they are not final,
then the Administrative Procedure Act (“APA”) bars the dis-
trict court from hearing the case for lack of jurisdiction.7 See
5 U.S.C. § 704.
7
Jan’s and Americopters claim that the FAA raised this ripeness argu-
ment for the first time on appeal and thus it should be deemed waived.
Because we must consider any potentially dispositive jurisdictional issues
sua sponte, we are compelled to consider this argument. See S. Cal. Aerial,
881 F.2d at 675.
AMERICOPTERS v. FAA 2941
[7] The finality requirement comes from two sections in the
APA. An “order” is defined as “ ‘the whole or a part of a final
disposition . . . of an agency in a matter other than rule mak-
ing.’ ” Air Cal. v. U.S. Dep’t of Transp., 654 F.2d 616, 620
(9th Cir. 1981) (citing 5 U.S.C. § 551(6)). The APA only
allows judicial review of “final agency actions.” 5 U.S.C.
§ 704. Thus, if an FAA order is not final, neither we nor the
district court have jurisdiction over the case. See Air Cal., 654
F.2d at 622 (holding that this court lacked jurisdiction under
§ 46110 for lack of finality, and that the district court also
lacked jurisdiction because the orders were not final and thus
not ripe for review). As a result of the finality conundrum, the
district court has no jurisdiction over the direct challenges to
the Zeigler Email and Kanae Letter.
B. CONSTITUTIONAL CLAIMS FOR DAMAGES
[8] Section 46110 does not bar all manner of review of
FAA orders by the district court. See Mace, 34 F.3d at 859-60
(“[N]owhere did we say or imply that a district court could
never exercise federal question jurisdiction over any action
brought against FAA, NTSB, and/or DOT officials; rather, we
declared that the district court’s federal question jurisdiction
is preempted by [§ 46110] as to those classes of claims
reviewable under [§ 46110].”) (internal quotation and alter-
ations omitted) (citing Clark v. Busey, 959 F.2d 808, 811 (9th
Cir. 1992)). In principle, a district court may decide a claim
for damages because § 46110 does not grant the court of
appeals jurisdiction over this form of relief. See Mace, 34
F.3d at 858 (noting that a claim for damages is not found in
the precursor to § 46110(c)); § 46110(c) (providing the court
of appeals with exclusive jurisdiction to “affirm, amend, mod-
ify, or set aside any part of the order and [the power to] order
the . . . [FAA] Administrator to conduct further hearings”).
[9] In practice, we have developed a body of case law that
limits the jurisdiction of the district court, barring it from
hearing a damages claim that is “inescapably intertwined with
2942 AMERICOPTERS v. FAA
a review of the procedures and merits surrounding the FAA’s
order.” Crist v. Leippe, 138 F.3d 801, 803 (9th Cir. 1998)
(internal quotation marks and citations omitted); accord Tur
v. FAA, 104 F.3d 290, 292 (9th Cir. 1997). The purpose of
this restriction is to prevent litigants from using a damages
claim as a collateral attack on a pending FAA order, see Crist,
138 F.3d at 804, and to allow courts to identify and dismiss
damages claims that are actually “thinly disguised attempt[s]
at an end-run around the jurisdictional limitation imposed by
[§ 46110].” Mace, 34 F.3d at 860.
The collateral attack doctrine prevents plaintiffs from craft-
ing constitutional tort claims either as a means of “re-
litigat[ing] the merits of the previous administrative proceed-
ings,” Tur, 104 F.3d at 292, or as a way of evading entirely
established administrative procedures. See Green v. Brantley,
981 F.2d 514, 517, 521 (11th Cir. 1993) (holding that district
court had no jurisdiction over Bivens claims challenging an
FAA order where “neither [plaintiff] nor his attorney . . . pur-
sued the matter through any appeal to the FAA Administrator
or otherwise”). But a damages claim is not “inextricably inter-
twined” with an FAA order and the procedures surrounding
it—and thus may be heard by a district court—if the claim
“constitute[s] a broad challenge to the allegedly unconstitu-
tional actions of the FAA,” Mace, 34 F.3d at 858,8 and is not
a claim merely “based on the merits of [an] individual situa-
tion.” Id. at 859.
[10] The district court concluded that the “inescapably
intertwined” doctrine prevented it from hearing Jan’s and
Americopters’ damages claims. We hold that the collateral
8
See Crist, 138 F.3d at 802-03, 805 (holding that district court had juris-
diction over claims that the FAA violated due process by spoiling evi-
dence during the pendency of the plaintiff’s hearings before the FAA);
Foster, 70 F.3d at 1086-88 (holding that district court could hear Fifth
Amendment claims that the FAA lacked authority to suspend or revoke
pilot certificates and Sixth Amendment claims that such suspensions and
revocations violated right to jury trial); Mace, 34 F.3d at 860 (same).
AMERICOPTERS v. FAA 2943
attack doctrine does not preclude district court jurisdiction
over the damages claims in the unusual circumstances pres-
ented here.
[11] We note first that there is a conceptual, perhaps even
existential, problem with applying the collateral attack doc-
trine to the facts here—there is nothing to collaterally attack.
There are no pending or “live” FAA orders because the FAA
renounced the Zeigler Email and Kanae Letter as issued by
unauthorized officials.9 The Mace line of cases did not con-
template or anticipate the strange situation here. Our collateral
attack cases all assume an FAA order currently in place—that
is, not an action withdrawn or repudiated by the FAA before
judicial review. See Tur, 104 F.3d at 291-92; Foster, 70 F.3d
at 1086-87; Mace, 34 F.3d at 856-57. Here, the FAA repudi-
ated the authority of Zeigler and Kanae to issue orders on
behalf of the FAA long before Jan’s and Americopters’ chal-
lenges reached any court. Even if the Zeigler Email and
Kanae Letter were final orders when issued, there can be no
dispute that they are no longer pending FAA orders against
Jan’s or Americopters. A damages claim in district court is
not fairly characterized as an “end-run” around an order—or
the procedures and merits surrounding it—if the order is no
longer pending or, for lack of a better word, “live.” Cf. Mace,
34 F.3d at 860.
The Fifth Circuit considered a similar set of facts in Zephyr
Aviation, LLC v. Dailey, 247 F.3d 565 (5th Cir. 2001). Its
analysis and resolution are pertinent here. In Zephyr, FAA
inspectors summarily placed notices on an aircraft owned by
Zephyr, effectively grounding it. Sometime later, FAA offi-
9
See, e.g., Americopters Compl. ¶ 14 (“On September 19, 2002, the
Office of the Regional Counsel [a duly authorized FAA official] denied
Americopters’ request for a hearing on quintessential ‘catch 22’ grounds:
since Mr. Kanae had ‘no authority’ to issue the § 13.20 cease and desist
order, it is ‘not really an order’ . . . and therefore, Americopters is not enti-
tled to the hearing . . . .”).
2944 AMERICOPTERS v. FAA
cials told Zephyr’s attorneys that, despite the placement of
notices on the aircraft, “the Jet’s airworthiness certificate had
never been revoked,” but nevertheless insisted that the jet was
not airworthy. After Zephyr followed measures required by
FAA officials to make the jet airworthy, the “FAA retracted
the condition notice in a letter to Zephyr.” Id. at 569. Zephyr
then brought a damages claim in district court, alleging that
the actions of “two FAA inspectors [were] tantamount to an
illegal taking of property.’ ” Id. at 569 n.3.
The district court dismissed for lack of jurisdiction. The
Fifth Circuit reversed on the issue of jurisdiction (though it
later dismissed the case on other grounds). In doing so, it ana-
lyzed our circuit’s collateral attack cases and concluded that
the reasoning of the Mace line of cases did not apply to
Zephyr:
While we agree that parties may not avoid adminis-
trative review simply by fashioning their attack on
an FAA decision as a constitutional tort claim
against individual FAA officers, we disagree with
the Defendants that this case implicates that concern.
Zephyr’s claims do not relate to an FAA order cur-
rently pending against it. Indeed, to the extent that
Zephyr sought review of the FAA’s attachment of a
condition notice to the Jet, its complaint would be
moot since the FAA has removed the condition
notice.
Id. at 572.
The Fifth Circuit concluded that no exhaustion was
required and the district court had jurisdiction over Zephyr’s
claim for “monetary relief for alleged extra-procedural and
unconstitutional actions by FAA inspectors,” because the
cases barring collateral attacks on FAA orders “have no appli-
cation to cases like this one that do not implicate an FAA
order that is currently in place and hence could not function
AMERICOPTERS v. FAA 2945
as a collateral attack on an FAA order or action.” Id. We
agree with the Fifth Circuit that it makes little sense to apply
the collateral attack doctrine to situations in which no FAA
order is “currently in place.” Id.
[12] The second reason the collateral attack rule does not
apply to this case is that there is no danger that Jan’s and
Americopters would be able to re-litigate, in district court,
previous agency determinations because there were no such
determinations. One rationale for the “collateral attack” doc-
trine is to prevent plaintiffs from using constitutional tort
claims to re-litigate previous administrative hearings, Tur,
104 F.3d at 292, or to evade administrative procedures. See
Green, 981 F.2d at 517, 521. In Tur, for instance, we held that
the district court had no jurisdiction to hear a damages claim
because the result would be a “new adjudication over the evi-
dence and testimony” already considered by an ALJ and
NTSB. 104 F.3d at 292.
Jan’s and Americopters are not in danger of committing
either foul. They did not attempt to evade the FAA’s adminis-
trative procedures. To the contrary, their attempts to invoke
the administrative process were resisted by the FAA at every
turn. Nor can their claims be construed as an attempt to re-
litigate anything—for the word “re-litigate” assumes that
there was some form of previous adjudication. Because of the
FAA’s repeated refusals to provide Jan’s and Americopters
any hearing at all, this case is unlike Tur or cases upholding
district court jurisdiction. By considering Jan’s and Ameri-
copters’ claims, the district court would not disturb any prior
agency fact-findings based on testimony and documents, since
there were none.
[13] None of the rationales for the collateral attack doctrine
will be advanced by denying district court jurisdiction over
the damages claims here. Denying jurisdiction because a fed-
eral court claim is “inescapably intertwined” with an adminis-
trative proceeding or order perforce presumes the existence of
2946 AMERICOPTERS v. FAA
something with which that claim could be intertwined.
Because there is no pending FAA order and because there
were no previous agency determinations on the merits, no
foundation supports the notion of “intertwining.” Thus, the
district court erred in determining that the due process claims
were “inescapably intertwined” with direct challenges to FAA
orders. The district court has jurisdiction to consider constitu-
tional claims for damages.
CONCLUSION
The petitions for review are DISMISSED for lack of juris-
diction. We AFFIRM the district court’s dismissal of the com-
plaints, except the constitutional claims for damages (takings
claims), with regard to which we REVERSE and REMAND
for further consideration.
No. 04-70330 & 04-70348 (petitions): DISMISSED.
No. 04-15097 & 04-15098 (appeals): AFFIRMED IN
PART, REVERSED IN PART AND REMANDED.
Each party shall bear its own costs on appeal.