United States District Court, N.D. Indiana, Hammond Division
THOSE AMAZING PERFORMERS, LLC, d/b/a Team AeroDynamix, et al. Plaintiffs,
INTERNATIONAL COUNCIL OF AIR SHOWS, Defendant.
OPINION AND ORDER
S. VAN BOKKELEN UNITED STATES DISTRICT JUDGE
Amazing Performers, LLC, d/b/a Team AeroDynamix
(“AeroDynamix”) sued International Council of Air
Shows, Inc. (“ICAS”) for its role in
investigating and reporting to the Federal Aviation
Administration (“FAA”) on AeroDynamix
performance. ICAS has moved to dismiss for lack of subject
matter jurisdiction arguing that (1) this matter falls under
the exclusive jurisdiction of the courts of appeals pursuant
to 49 U.S.C. § 46110 because the FAA letter dated July
9, 2015, is a final order, and (2) all claims are
inextricably intertwined with the final order of the FAA.
is an aerobatic air show team. Statements of Aerobatic
Competency cards (“SAC cards”) are required by
the FAA to perform airshows. On March 29, 2015, two
AeroDynamix pilots were involved in an incident during an
airshow performance in Alabama. Following this incident, ICAS
led an investigation into AeroDynamix's safety
procedures. ICAS has been delegated authority by the FAA to
investigate and evaluate pilots under the Aerobatic
Competency Evaluation Program specifically designed to
regulate the issuance of SAC cards.
its investigation, ICAS recommended to the FAA the SAC cards
of all ten of AeroDynamix's pilots should be revoked. The
FAA rescinded the SAC cards according to ICAS's
investigated AeroDynamix again on April 17, 2015. Its
recommendations to the FAA after this investigation suggested
that, before AeroDynamix pilots be re-issued their SAC cards,
among other things, it should sign an agreement limiting the
number of pilots flying during a show to four, and all pilots
should sign an agreement indemnifying ICAS. The FAA, upon
review of ICAS's memorandum, accepted and implemented
these recommendations in a letter issued on July 9, 2015.
is suing ICAS for its role in the investigation, its motives,
and the injury it allegedly caused AeroDynamix.
courts of appeals have “exclusive jurisdiction to
affirm, amend, modify, or set aside any part of the
[FAA's] order.” 49 U.S.C. § 46110(c). An order
must be final to be reviewable. Sima Products Corp. v.
McLucas, 612 F.2d 309, 312-313 (7th Cir. 1980). Orders
have been construed very broadly under the Federal Aviation
Act and for purposes of direct review. Id.
argues 49 U.S.C. § 46110 does not apply here because the
FAA's July 9, 2015, letter was not a final order. Courts
have consistently looked at two factors to determine an
order's finality: (1) whether the agency decision imposes
an obligation, denies a right, or fixes some legal
relationship, and (2) marks the consummation of the
agency's decision-making process. See Friedman v.
FAA, 841 F.3d 537 (D.C. Cir. 2016); Green v.
Brantley, 981 F.2d 514 (11th Cir. 1993);
Pucciariello v. United States, 116 Fed.Cl. 390 (Fed.
Cl. 2014); Ligon v. Lahood, 614 F.3d 150 (5th Cir.
2010); Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir.
the FAA's July 9, 2015, letter imposes obligations upon
AeroDynamix to re-evaluate its issuance of SAC cards. For
example, AeroDynamix must enter into an agreement reducing
the number of aircrafts in its air shows before a
re-evaluation of its SAC cards can begin. In addition, one of
the pilot's SAC card revocation was extended to December
31, 2015, and only then be eligible for re-evaluation. (DE
66-1 p. 6). This denies the pilot's right to a SAC card.
the wording of the FAA's July 9, 2015, letter clearly
shows the consummation of the agency's decision-making
process: “After consultation and deliberation, AFS-800
has completed our FAA internal investigation . . . [w]e have
completed our review of the submitted ICAS
recommendations.” (DE 66-1 pp. 5-6).
since the FAA letter has denied rights, imposed legal
obligations, and marks the consummation of the FAA's
decision-making process, it is considered a final order and