Martha B. Gaunce, Plaintiff-appellant, v. Pierre H. Devincentis and Jack T. Parrish, Defendants-appellees, 708 F.2d 1290 (7th Cir. 1983)

The district court and the parties extensively discuss whether the procedures of the Federal Aviation Act of 1958, as amended, (the Act), which were invoked to revoke plaintiff-appellant's airman certificate, comport with the fifth amendment's due process requirements; and whether the defendants, Federal Aviation Administration (F.A.A.) employees, are immune from a monetary damages claim. However the basic issue of whether the district court possessed subject matter jurisdiction has been ignored. This court has sua sponte considered this issue.¹  For the reasons stated below we vacate the district court's judgment and remand with instructions to dismiss the complaint for lack of subject matter jurisdiction.

* Pursuant to 49 U.S.C. § 1429(a) the F.A.A. sent notice to appellant informing her of the proposed revocation of her Airman Certificate, for a period of one year, due to the following alleged violations of F.A.A. regulations: Operating an aircraft on two occasions, into and out of Cleveland-Hopkins Airport on June 27, 1979, without having in her possession a current pilot or medical certificate (a violation of 14 C.F.R. Sec. 61.3(a), (c)), failing to have accomplished a current biennial flight review (a violation of 14 C.F.R. Sec. 61.57(a)), violating air traffic control clearance and instruction (a violation of 14 C.F.R. Sec. 91.75), twice refusing to present her pilot logbook for inspection after a reasonable request to do so made by an F.A.A. inspector (a violation of 14 C.F.R. Sec. 61.51(d)), and careless operation so as to endanger the life and property of another by operating in the Cleveland-Hopkins Airport traffic area without maintaining communication with air traffic control (a violation of 14 C.F.R. Sec. 91.75).

Pursuant to 14 C.F.R. Sec. 13.19(c) the notice of the proposed revocation also informed appellant of several options available to her. The option selected by appellant was that of requesting an opportunity to be heard in an informal conference. Appellant was heard in an informal conference on July 18, 1980, with appellees acting in their respective capacities as F.A.A. counsel and aviation safety inspector. The F.A.A. issued its order of revocation that same day, based on its finding that nothing occurred at the informal conference to alter the proposed revocation order. The revocation order informed appellant that she might appeal to the National Transportation Safety Board (N.T.S.B.), and that an appeal within twenty days would stay the revocation order. Appellant chose not to appeal to the N.T.S.B. at that time. On November 30, 1980, appellant filed her appeal with the N.T.S.B. On December 3, 1980, appellant instituted this suit in the district court, which issued a judgment on May 6, 1981, granting appellees' summary judgment motion. On May 14, 1981, appellant filed her notice of appeal to this court of the May 6, 1981 district court judgment. On October 1, 1981, the N.T.S.B. issued an initial order affirming with modification the F.A.A. revocation order. The N.T.S.B. order, inter alia, suspended appellant's certification for 150 days and imposed upon her a re-examination requirement.

II

" [W]here Congress has provided a statutory procedure for the review of an administrative order, such procedure is exclusive." Oling v. Air Line Pilots Ass'n., 346 F.2d 270, 276 (7th Cir.), cert. denied, 382 U.S. 926, 86 S. Ct. 313, 15 L. Ed. 2d 339 (1965); see Whitney National Bank v. Bank of New Orleans & Trust Co., 379 U.S. 411, 420, 85 S. Ct. 551, 557, 13 L. Ed. 2d 386 (1965). The F.A.A. acted in this case pursuant to 49 U.S.C. § 1429(a),²  the statute authorizing reinspection, reexamination, amendment, suspension, and revocation of certification. The statute provides for giving deference to the F.A.A. and N.T.S.B., bodies possessing expertise in areas outside the conventional experience of judges, by requiring the completion of the administrative process, with a ruling by the N.T.S.B. where applicable, before commencing the judicial review proceeding.³  This requirement was not met in this case. And most importantly, in plain disregard of the express terms of section 1486 of the Act, which prescribes direct and exclusive review in the court of appeals,⁴  plaintiff instituted the present action in the district court. This action is in derogation of the well settled principle that collateral attacks upon administrative orders are not permissible. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 48-50, 58 S. Ct. 459, 462-463, 82 L. Ed. 638 (1938); Robinson v. Dow, 522 F.2d 855, 858 (6th Cir. 1975); Oling v. Air Line Pilots Ass'n., 346 F.2d at 276-277; see Administrative Procedure Act Sec. 10(b), 5 U.S.C. § 703 (1976) ("The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action ... in a court of competent jurisdiction."); see also Denberg v. United States Railroad Retirement Board, 696 F.2d 1193 (7th Cir. 1983). It is clear from the statutory scheme established by Congress that the F.A.A. order was not subject to collateral attack in the district court. Robinson v. Dow, supra; Oling v. Air Line Pilots Ass'n., supra. Thus the district court lacked subject matter jurisdiction over the claims asserted by plaintiff-appellant.

The statutorily prescribed requirements cannot be dispensed with merely because the administrative proceeding dealt with an agency's proof of specified regulatory violations, while appellant is raising a due process constitutional claim in the judicial proceeding. So long as effective means for judicial review are ultimately available where the constitutional claims can be raised, appellant may not dispense with the requirement of prior administrative review, otherwise judicial review would be an abstract process. "It is not axiomatic ... that challenging the constitutionality of a statute on its face as opposed to its application will permit a litigant to bypass the administrative process since under cases such as this ' [t]he effect would be that important and difficult constitutional issues would be decided devoid of factual content.' " Robinson v. Dow, 522 F.2d at 857-858, quoting DuBois Clubs v. Clark, 389 U.S. 309, 312, 88 S. Ct. 450, 452, 19 L. Ed. 2d 546 (1967); see Peoria v. Gen'l Elec. Cablevision Corp., 690 F.2d 116, 121 (7th Cir. 1982).

For these reasons we vacate the district court's judgment and remand with instructions to dismiss the complaint for lack of subject matter jurisdiction.

III

Additionally it would be improper for us to assert our exclusive jurisdiction to decide on the merits the issues raised in this case. The Act's judicial review provision, 49 U.S.C. § 1486(a), calls for the filing of a petition in the court of appeals within sixty days of the conclusion of the administrative process, unless reasonable grounds for failure to do so are shown. The time requirement has been totally ignored in this case,⁵  and no reasonable grounds for ignoring it have been shown. Not only has the time requirement not been complied with, but most importantly, there has been no notice of appeal filed in this court from a final decision of the administrative agency, as is required under 49 U.S.C. § 1486(a). We merely have a notice of appeal from a judgment of the district court. For us to exercise our exclusive jurisdiction under such circumstances we would, in effect, be rewriting the Act's judicial review provision.⁶ 

The notice of appeal cannot be construed constructively as one from the N.T.S.B. order, rather than from the district court's order. The fact that, prior to issuance of our decision, but after notice of appeal to this court was filed, the N.T.S.B. issued what appears to be a final order, is not of jurisdictional consequence. Our approach is not pedantic. Elementary principles provide for jurisdiction to be established by the facts as they exist at the time suit is commenced, and jurisdiction is not conferred or divested by later changes. Schlesinger v. Councilman, 420 U.S. 738, 742 n. 5, 95 S. Ct. 1300, 1305 n. 5, 43 L. Ed. 2d 591 (1975); Clarke v. Mathewson, 37 U.S. 164, 171 (12 Pet.), 9 L. Ed. 1041 (1838); Lister v. Comm'rs Court, 566 F.2d 490, 493 (5th Cir. 1978); Bowles v. Pogue Distillery Co., 63 F. Supp. 816 (E.D. Ky. 1945); see generally 2 J. Moore, Moore's Federal Practice, p 3.04, p 3.06 (2d ed. 1982). It would be unprincipled if our jurisdiction was dependent on the happenstance of an agency rendering its final order subsequent to the filing of the notice of appeal, but prior to our consideration of the appeal.

IV

For the foregoing reasons we dismiss the appeal, vacate the district court's judgment, and remand the case to the district court with instructions to dismiss the complaint for lack of subject matter jurisdiction.