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Burdue v. Federal Aviation Administration

United States Court of Appeals, Sixth Circuit

December 23, 2014

BRADLEY J. BURDUE, Petitioner,

Page 1077

On Petition for Review from the Federal Aviation Administration. No. DART710615GL.


Richard G. Martin, FRASER CLEMENS MARTIN & MILLER LLC, Perrysburg, Ohio, for Petitioner.

Bradley J. Preamble, FEDERAL AVIATION ADMINISTRATION, Washington, D.C., for Respondent.

Before: KEITH, BATCHELDER, and STRANCH, Circuit Judges.


Page 1078


Bradley J. Burdue petitions for review of a Federal Aviation Administration (" FAA" ) order revoking his certification as an Airworthiness Representative-Maintenance (" DAR-T" ). 49 U.S.C. § 44702(d)(2) authorizes the FAA to rescind this designation " at any time for any reason." We decline to review the merits of Burdue's statutory claims because the FAA's decision to revoke Burdue's certification " is committed to agency discretion by law." 5 U.S.C. § 701(a)(2). We also decline to review the merits of Burdue's constitutional claims because they should be--and actually have been--brought in a district court action pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). We also deny as moot Burdue's motion to supplement the administrative record. Accordingly, we deny Burdue's petition for review.


49 U.S.C. § 44702(d)(1) authorizes the FAA to " delegate to a qualified private person . . . a matter related to--(A) the examination, testing, and inspection necessary to issue a certificate under this chapter; and (B) issuing the certificate." The FAA " may rescind a delegation under this subsection at any time for any reason the Administrator considers appropriate." Id. § 44702(d)(2). These " qualified private person[s]" remain subject to the " regulations, supervision, and review the Administrator may prescribe." Id. § 44702(d)(1). 14 C.F.R. § 183.13(c) requires that the designation at issue in this case--DAR-T--contain an expiration date. Section 183.15(b)(6) emphasizes, however, that " [a] designation made under this subpart terminates: For any reason the Administrator considers appropriate."

Burdue was appointed as a DAR-T on December 28, 2001. A DAR-T is a private person authorized by the FAA to conduct aircraft inspections and issue airworthiness certificates. His certification expired

Page 1079

at the end of each year, but each year the FAA renewed it.

On March 14, 2013, Burdue's supervisors were informed of " some issues" related to Burdue's export certifications for aircraft being sold overseas. The FAA's Special Emphasis Investigations Team (" SEIT" ) later concluded that Burdue had engaged in " conduct inconsistent with the care, judgment, and integrity normally associated with, and expected of, an FAA designee." The SEIT " found that Mr. Burdue performed multiple aircraft inspections out of his assigned geographic area without authorization." Admin. R. 1. It also concluded that Burdue had issued export certificates to aircraft owned by Burdue and his wife, " [a] clear conflict of interest." Ibid. Attached to the SEIT's findings were thirteen " Items of Proof" on which the SEIT based its findings, including particular aircraft registration numbers, inspection numbers, and dates.

Inspector David Lindsey of the Cleveland Flight Standards District Office (" FSDO" ) showed the SEIT's findings to Burdue and encouraged him to respond. Burdue then responded to these findings in a lengthy letter sent to Inspector Lindsey. Admin. R. 95-97. After reviewing the SEIT's findings and Burdue's response, J.D. Martin, the General Aviation Technical Support Branch Manager, recommended to Leroy Moore, Manager of the Cleveland FSDO, that Burdue's designation be terminated " for cause." Admin. R. 102. Martin's recommendation analyzed both the SEIT's findings and Burdue's response.

Moore revoked Burdue's certificate on April 29, 2013. Burdue's termination letter indicated that the revocation was being made pursuant to both the " for cause" provision of 14 C.F.R. § 183.15(b)(4) and the discretionary-revocation provision of 14 C.F.R. § 183.15(b)(6). The letter apprised Burdue of his right to request an appeal of the decision within fourteen calendar days, at which time Burdue " should include any evidence or statement concerning this matter." Admin. R. 103.

On May 15, 2013, Burdue submitted a seventeen-page " Appeal Brief," which included a number of supporting documents. Moore sent a letter to Burdue two days later acknowledging receipt of Burdue's request for an appeal and the Appeal Brief itself. On June 21, 2013, over a month after the appeal deadline, Burdue submitted an Appeal Brief Supplement, which highlighted information gleaned from documents Burdue had obtained from the FAA after he filed a Freedom of Information Act (" FOIA" ) request. Admin. R. 183-88. Although it was untimely, Martin appears to have provided the Appeal Brief Supplement and its attachments to the appeal panel no later than June 28, 2013. On July 2, 2013, Burdue was informed that " [t]he Appeal Panel was convened and reviewed your appeal documents. It is the Panel's decision that the termination of your DAR designation . . . be upheld." Admin. R. 189.

Prior to filing this petition, Burdue brought a Bivens action in the U.S. District Court for the Northern District of Ohio claiming a violation of his Fifth Amendment right to due process and wrongful termination. Burdue requested that the district court order the FAA to revoke his termination and purge its files of any references to his " for cause" termination, order an injunction preventing his termination " without providing full procedural due process," and award damages. Burdue then filed this petition on August 30, 2013. FAA administrator Michael Huerta moved to stay the Bivens action ...

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