       IN THE UNITED STATES COURT OF APPEALS
                FOR THE FIFTH CIRCUIT
                                                       United States Court of Appeals
                                                                Fifth Circuit

                                                            FILED
                                                        January 21, 2009
                              No. 07-31121
                                                      Charles R. Fulbruge III
                                                              Clerk
CHRISTOPHER J DRESSER

                                       Plaintiff - Appellant
v.

JOSEPH N INGOLIA, Individually and In His Official Capacity as the Chief
Administrative Law Judge for the United States Coast Guard; WALTER J
BRUDZINSKI, Individually and In His Official Capacity as a Coast Guard
Administrative Law Judge; THAD W ALLEN, In His Official Capacity as the
Commandant of the United States Coast Guard; KENNETH V WILSON;
ALYSSA L PALADINO

                                       Defendants - Appellees


JAMES M ELSIK

                                       Plaintiff - Appellant
v.

JOSEPH N INGOLIA, Individually and in His Official Capacity as the Chief
Law Judge for the United States Coast Guard; THAD W ALLEN, In His
Official Capacity as the Commandant of the United States Coast Guard;
TERRY M CROSS, In His Official Capacity as the Vice Commandant of the
United States Coast Guard; HANNA LIDDINGTON; GEORGE J JORDAN;
KENNETH V WILSON; MEGAN H ALLISON; JIM WILSON

                                       Defendants - Appellees


MURRAY R ROGERS
                                       Plaintiff - Appellant
v.
                                       No. 07-31121


JOSEPH N INGOLIA, Individually and In His Offical Capacity as the Chief
Administrative Law Judge for the United States Coast Guard; THAD W
ALLEN, In His Official Capacity as the Commandant of the United States
Coast Guard; TERRY M CROSS, In His Official Capacity as the Vice
Commandant of the United States Coast Guard; HANNA LIDDINGTON;
GEORGE J JORDAN; KENNETH V WILSON; MEGAN H ALLISON; JIM
WILSON

                                                  Defendants - Appellees


                   Appeal from the United States District Court
                for the Eastern District of Louisiana, New Orleans
                                No. 2:07-CV-1536


Before KING, HIGGINBOTHAM, and WIENER, Circuit Judges.
PER CURIAM:*
       Three mariners allege that Coast Guard administrative law judges,
clerks, and other staff conspired to “fix” the administrative proceedings relating
to the revocation of their licenses.           The district court dismissed without
prejudice, reasoning, inter alia, that it lacked subject matter jurisdiction under
the Administrative Procedure Act and that plaintiffs’ Bivens claims were
preempted by a comprehensive framework established to address and remedy
their claims. Because we conclude that the district court lacked subject matter
jurisdiction over both the Administrative Procedure Act and Bivens claims, we
affirm.




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

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                                 No. 07-31121

           I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
      Three plaintiffs are part of the present appeal: Christopher Dresser, James
Elsik, and Murray Rogers. Dresser is a marine engineer who volunteered for a
drug screen test and tested positive for marijuana. On March 3, 1998, the Coast
Guard initiated an investigation and Suspension and Revocation (“S&R”) action
against Dresser to revoke his engineering license and merchant mariner’s
document. Elsik is a tugboat captain and holder of a United States Coast Guard
Master of Towing Vessels License Upon Great Lakes, Inland Waters and
Western Rivers. On September 20, 2004, the Coast Guard initiated an S&R
action against Elsik by filing a complaint regarding an alleged allision in
Houma, Louisiana. Rogers is a tugboat mariner and holder of a United States
Merchant Marine Officer License. On June 22, 2004, the Coast Guard initiated
an S&R action against Rogers for actions related to the boarding of the M/V
Bailey Ann in Morgan City, Louisiana.
      All three plaintiffs allege that, over the course of their revocation
proceedings, Chief Administrative Law Judge (“ALJ”) Joseph Ingolia, other
ALJs, and certain Coast Guard staff enforced an unwritten policy to rule against
mariners in S&R proceedings. Plaintiffs put forward myriad allegations of Coast
Guard misconduct in order to support their claims. For example, Dresser alleges
that Chief ALJ Ingolia had threatened the ALJ presiding over his case, Walter
Brudzinski, that he would lose his job unless he ruled for the Coast Guard.
Dresser relies on an affidavit from former ALJ Jeffie Massey to support this
claim. Elsik and Rogers allege that, on February 24, 2005, certain Coast Guard
officials met in order to convince Chief ALJ Ingolia to pressure ALJ Massey to
rule against Elsik and Rogers and to prepare the Commandant and Vice
Commandant for an appeal should Chief ALJ Ingolia be unsuccessful in
pressuring ALJ Massey. Elsik and Rogers point to Chief ALJ Ingolia’s policy

                                       3
                                       No. 07-31121

letter to all ALJs, in which he allegedly advocated the Coast Guard’s position on
discovery requests in their S&R proceedings. Elsik and Rogers also allege that
Chief ALJ Ingolia told ALJ Massey that she should always rule in the Coast
Guard’s favor and that she was the only ALJ not following this unwritten policy.
B. Procedural Background
       i. Procedural background in the Coast Guard’s appeals system
       Each of the plaintiffs in the present case was the subject of a separate S&R
proceeding in the Coast Guard. These distinct procedural histories are relevant
to this appeal.
       On March 3, 1998, the Coast Guard commenced an S&R proceeding
against Dresser. After disclosing a potential conflict, the ALJ issued a Decision
& Order (“D&O”) finding that Dresser’s positive drug test demonstrated his use
of a dangerous drug and hence revoked Dresser’s engineer’s license and
mariner’s document.1 Dresser appealed the decision to the Commandant, who
affirmed the ALJ’s D&O, and then to the National Transportation Safety Board
(“NTSB”), which found that there was an appearance of a lack of impartiality
and remanded the case for a new hearing. The new ALJ’s D&O again revoked
Dresser’s engineer’s license and mariner’s document. Dresser appealed to the
Commandant. His case was still pending before the Commandant when Dresser
filed his complaint in the Eastern District of Louisiana and when the district
court delivered its judgment.
       On September 20, 2004, the Coast Guard commenced an S&R proceeding
against Elsik. ALJ Massey, who presided over the hearing, granted Elsik’s
Motion for Interrogatories, though the Coast Guard objected to the related
discovery deadlines. After the alleged February 24, 2005 meeting and Chief ALJ

       1
          After the initial hearing but before the ALJ issued his D&O, Dresser had filed a
products liability action in the Eastern District of Louisiana against the manufacturer of hemp
seed oil that Dresser had ingested and that he alleged caused the positive test result. The
ALJ’s son represented the hemp seed oil manufacturer in the district court trial.

                                              4
                                     No. 07-31121
Ingolia’s issuance of the policy guidelines, ALJ Massey dismissed the misconduct
counts against Elsik with prejudice. The Coast Guard appealed ALJ Massey’s
dismissal to the Commandant, arguing that dismissal with prejudice was
improper because it was based on discovery violations. The Commandant ruled
in favor of the Coast Guard, reversed the dismissal, and remanded for further
proceedings. On remand, the Coast Guard asked the ALJ to dismiss the S&R
action without prejudice. ALJ Brudzinski complied with the Coast Guard’s
request on January 5, 2007. Elsik’s license was neither suspended nor revoked
as a result of these S&R charges.2
      Rogers’s S&R hearing was assigned to ALJ Massey, who approved
discovery at Rogers’s request. Similar to Elsik’s case, the Coast Guard did not
meet a deadline to respond to a subpoena. After inviting suggestions for
sanctions from Rogers, ALJ Massey dismissed the entire case with prejudice on
March 25, 2005. The Coast Guard appealed to the Commandant. Rogers’s case
was pending before the Commandant when he filed his complaint in the Eastern
District of Louisiana and when the district court delivered its judgment.3
      ii. Procedural background in the district court and after the district court’s
ruling
      In federal district court, all three plaintiffs brought separate suits seeking
declaratory and injunctive relief, writs of mandamus, and damages relating to
the revocation of their licenses under Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971). Dresser filed his lawsuit
against Chief ALJ Ingolia (individually and in his official capacity as Chief ALJ),
ALJ Brudzinski (individually and in his official capacity as ALJ), Thad Allen (in

      2
          Elsik’s license was subsequently suspended for three months due to an unrelated
allision, though such suspension was not relevant to the proceedings below.
      3
        Dresser and Rogers thus had a similar procedural posture below: both of their Coast
Guard appeals were pending at the time they filed their suits in the Eastern District of
Louisiana and when the district court dismissed their claims without prejudice.

                                            5
                                       No. 07-31121
his official capacity as Coast Guard Commandant), Kenneth Wilson, and Alyssa
Paladino. Elsik filed this lawsuit against Chief ALJ Ingolia (individually and in
his official capacity as Chief ALJ), Thad Allen (in his official capacity as Coast
Guard Commandant), Terry Cross (in his official capacity as Coast Guard Vice
Commandant), Hanna Lidington, George Jordan, Kenneth Wilson, Megan
Allison, and Jim Wilson. Rogers filed his lawsuit against the same defendants
as Elsik.4    The latter two proceedings were consolidated for hearing with
Dresser’s.5
       The defendants filed a motion to dismiss under Rules 12(b)(1), 12(b)(5),
and 12(b)(6) of the Federal Rules of Civil Procedure. The district court granted
in part and denied in part defendants’ motion to dismiss. The court ruled, inter
alia, that: (1) Dresser possessed standing because the ALJ’s D&O was a
sufficiently final agency action; (2) Elsik possessed constitutional standing
because he adequately alleged an economic impact resulting from the
investigation; (3) Elsik failed to exhaust his administrative remedies because the
Coast Guard had dismissed its action against him and there was thus no final
agency action; (4) Dresser had exhausted his administrative remedies under the
Administrative Procedure Act (“APA”) because the ALJ’s D&O was a final
agency action; (5) plaintiffs’ Bivens claims were not preempted by the
administrative appeals process in the Coast Guard; (6) the ALJs presiding over
the plaintiffs’ revocation hearings were entitled to absolute judicial immunity
but Chief ALJ Ingolia was not; (7) the defendant staff members and clerks were
entitled to quasi-judicial immunity; and (8) all defendants except Chief ALJ
Ingolia were protected from suit by qualified immunity.


       4
        The defendants listed in all three actions are hereinafter referred to as “the
defendants.”
       5
         Rogers did not participate in the proceedings below because his procedural posture was
similar to Dresser’s and his factual history was generally similar to Elsik’s.

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                                       No. 07-31121
       Subsequently, the district court ruled on defendants’ Motion for
Reconsideration and more fully addressed the issues currently appealed. First,
the court granted defendants’ motion in part on the grounds that the plaintiffs
failed to exhaust their administrative remedies.                It held that 33 C.F.R.
§ 20.1101(b)(1)6 was “clear on its face” that an ALJ decision was final unless
appealed to the Commandant and that, if appealed to the Commandant,
administrative remedies were not exhausted until the Commandant ruled.
Since Dresser’s and Rogers’s appeals before the Coast Guard were pending, they
had not exhausted their remedies under the finality requirement. Also, the
court reiterated that Elsik’s appeal had been dismissed, thus only affecting his
rights on the contingency of future administrative action and not constituting
a final, appealable decision. Second, the court granted the motion in part on the
grounds that the Coast Guard’s administrative appeal system preempted
plaintiffs’ Bivens claims. The court concluded that the APA granted “federal
courts broad powers to review agency action, including constitutional violations.”
This framework, it reasoned, was “comprehensive . . . to address and remedy
claims of constitutional violations in either the S&R hearings themselves or
upon review in federal court.” Accordingly, it determined that a non-statutory
Bivens remedy was unnecessary under Schweiker v. Chilicky, 487 U.S. 412
(1988).    Finally, the district court denied in part defendants’ Motion for
Reconsideration on the grounds that Chief ALJ Ingolia was not entitled to
qualified immunity.        The court reasoned that plaintiffs had established a
constitutional due process violation and that Chief ALJ Ingolia had acted in an




       6
        Though the district court refers to 33 C.F.R. § 22.1101(b)(1), the relevant provisions
have since been moved to § 20.1101(b)(1).

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                                         No. 07-31121
objectively unreasonable manner by improperly influencing other ALJs. The
district court then dismissed the case without prejudice.7
       The plaintiffs filed a timely notice of appeal in this court. While the appeal
was pending, the Commandant issued its decisions in Dresser’s and Rogers’s
cases. In Dresser’s case, the Commandant affirmed the ALJ’s D&O and also
granted Dresser leave to submit any supplemental filings or briefs. In Rogers’s
case, the Commandant ruled that ALJ Massey had abused her discretion when
she dismissed Rogers’s case with prejudice as a sanction for the Coast Guard’s
failure to comply with a subpoena.8
                              II. STANDARD OF REVIEW
       “We review dismissals for lack of subject matter jurisdiction under Federal
Rule of Civil Procedure 12(b)(1) de novo.” Williams v. Wynne, 533 F.3d 360,
364–65 (5th Cir. 2008). A district court’s dismissal of a case for want of subject
matter jurisdiction due to a failure to exhaust administrative remedies is
reviewed de novo as a question of law. Taylor v. U.S. Treasury Dep’t, 127 F.3d
470, 475 (5th Cir. 1997). Additionally, a district court’s interpretation of a
statute or regulation is a question of law that we review de novo. Teemac v.
Henderson, 298 F.3d 452, 456 (5th Cir. 2002).
       This court also reviews de novo a district court’s grant or denial of a Rule
12(b)(6) motion to dismiss, Frank v. Delta Airlines, Inc., 314 F.3d 195, 197 (5th
Cir. 2002), “accepting all well-pleaded facts as true and viewing those facts in
the light most favorable to the plaintiff,” Stokes v. Gann, 498 F.3d 483, 484 (5th



       7
         The district court also discussed issues relating to mandamus and abstention. The
plaintiffs fail to challenge these determinations on appeal; therefore, they have waived these
arguments. See DSC Commc’ns Corp. v. Next Level Comm’ns, 107 F.3d 322, 326 n.2 (5th
Cir.1997) (“[A] party who fails to raise an issue in its initial brief waives the right to review of
that issue.”).
       8
         Though the defendants have supplemented the record with the Commandant’s
decision in Rogers’s case, we lack the Commandant’s decision in Dresser’s case.

                                                 8
                                    No. 07-31121
Cir. 2007). Dismissal is appropriate when the plaintiff has not alleged “enough
facts to state a claim to relief that is plausible on its face” and has failed to “raise
a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 127
S.Ct. 1955, 1965, 1974 (2007).
                                 III. DISCUSSION
      Reviewing the district court’s order dismissing plaintiffs’ cases without
prejudice, we agree that the district court lacked subject matter jurisdiction over
plaintiffs’ claims for judicial interdiction and review under the APA. However,
we do not reach the district court’s conclusion that plaintiffs’ Bivens claims are
preempted because we conclude that the district court lacked subject matter
jurisdiction over plaintiffs’ Bivens claims.
A. Plaintiffs’ Claims Under the APA
      “When an aggrieved party has exhausted all administrative remedies
expressly prescribed by statute or agency rule, the agency action is ‘final for the
purposes of this section’ and therefore ‘subject to judicial review’” under the
APA. Darby v. Cisneros, 509 U.S. 137, 146 (1993) (quoting 5 U.S.C. § 704); see
also United States v. Menendez, 48 F.3d 1401, 1411 (5th Cir. 1995).            Section
10(a) of the APA provides that a person is entitled to judicial review if he
“suffer[s a] legal wrong because of agency action, or [is] adversely affected or
aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C.
§ 702. Section 10(c) of the APA states that “final agency action for which there
is no other adequate remedy in a court” is subject to judicial review and that a
“preliminary, procedural, or intermediate agency action or ruling not directly
reviewable is subject to review on the review of the final agency action.” 5
U.S.C. § 704. Two conditions must be met for agency action to be final. Bennett
v. Spear, 520 U.S. 154, 177 (1997).            “First, the action must mark the
consummation of the agency’s decisionmaking process—it must not be of a
merely tentative or interlocutory nature.” Id. at 177–78 (internal citations and

                                           9
                                  No. 07-31121
quotation marks omitted). Second, “the action must be one by which rights or
obligations have been determined, or from which legal consequences will flow.”
Id. at 178 (internal citations and quotation marks omitted).
      Coast Guard regulations state that, “[u]nless appealed . . . an ALJ’s
decision becomes final action of the Coast Guard 30 days after the date of its
issuance.” 33 C.F.R. § 20.1101(b)(1). If a mariner appeals an ALJ decision to the
Commandant, the Commandant’s decision is final unless the case is remanded.
33 C.F.R. § 20.1101(b)(2) (“If the Commandant issues a decision . . . the decision
constitutes final action of the Coast Guard on the date of its issuance.”); 46
C.F.R. § 5.805(c) (“The Decision of the Commandant on Review, shall be the final
agency action in the absence of a remand.”). In the present case, the district
court held that there was no final agency action by the Coast Guard in Dresser’s
and Rogers’s cases because their appeals were still pending with the
Commandant.       We agree with the district court’s conclusion that “[t]he
regulation is clear on its face that an ALJ’s decision is ‘final’ action, unless the
decision is appealed,” and that, on these facts, “Dresser’s [and Rogers’s] claims
are barred by the APA’s finality requirement.”
      In their briefs to this court, Dresser and Rogers fail to challenge the
district court’s conclusion that the agency action is not final until the
Commandant completes his review of the claims. Instead, they contend that the
district court erred in failing to apply an exception to the finality rule that this
court articulated in United States v. Feaster, 410 F.2d 1354, 1366 (5th Cir. 1969)
(“[J]udicial interdiction of the administrative process [is possible] where there
is a substantial showing that Board action has violated the constitutional rights
of the complaining party.” (internal quotation marks omitted)). Dresser and
Rogers have not succeeded in identifying any case in the forty years since
Feaster was decided in which the complaining party made the requisite showing.



                                        10
                                  No. 07-31121
A case containing only allegations, albeit serious, should not be the first. We
decline to apply any Feaster exception here.
      Furthermore, this court continues to lack jurisdiction because a “party
invoking the jurisdiction of the court cannot rely on events that unfolded after
the filing of the complaint to establish its standing.” Kitty Hawk Aircargo, Inc.
v. Chao, 418 F.3d 453, 460 (5th Cir. 2005) (citing Lujan v. Defenders of Wildlife,
504 U.S. 555, 570 n.4 (1992)); see also Newman-Green, Inc. v. Alfonzo-Larrain,
490 U.S. 826, 830 (1989) (“The existence of federal jurisdiction ordinarily
depends on the facts as they exist when the complaint is filed.”). The Seventh
Circuit has dealt with a similarly “gnarled procedural posture” where (1)
plaintiff’s NTSB appeal was still pending, (2) plaintiff appealed to a federal
district court, and (3) the NTSB ruled on its appeal between the district court
order and the Seventh Circuit’s decision. Gaunce v. deVincentis, 708 F.2d 1290,
1293 n.5 (7th Cir. 1983). Finding that the NTSB’s final order was “not of
jurisdictional consequence,” the court stated that “[i]t 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.” Id. at 1294. The court vacated the district court’s
judgment and remanded with instructions to dismiss the complaint for lack of
subject matter jurisdiction. Id. at 1291. For our purposes, we agree that
Dresser and Rogers cannot now claim that subject matter jurisdiction exists
merely because the Commandant ruled during the pendency of their appeal.
      Finally, we agree with the district court that Elsik also has not exhausted
his administrative remedies by failing to meet the APA’s finality requirement.
The Coast Guard dismissed its claim against him without prejudice. Though
Elsik claims that he may be harmed if the Coast Guard again commences
proceedings against him, the district court correctly reasoned that “a non-final
agency order is one that ‘does not of itself adversely affect complainant but only

                                       11
                                       No. 07-31121
affects his rights adversely on the contingency of future administrative action.’”
Peoples Nat’l Bank v. Office of Comptroller of Currency of the U.S., 362 F.3d 333,
337 (5th Cir. 2004) (quoting Rochester Tel. Corp. v. United States, 307 U.S. 125,
130 (1939)).9
       We thus affirm the district court’s dismissal without prejudice of plaintiffs’
claims arising under the APA.
B. Plaintiffs’ Bivens Claims
       The district court found that plaintiffs’ Bivens claims are preempted by a
comprehensive framework that allowed them to supplement the Commandant’s
record and to subsequently avail themselves of federal court review. However,
the court’s consideration of Bivens preemption was premature because it lacked
subject matter jurisdiction over the claims.
       Generally, “plaintiffs should not be able to circumvent administrative
review through suit in federal court.” Zephyr Aviation, L.L.C. v. Dailey, 247 F.3d
565, 572 (5th Cir. 2001). In the Federal Aviation Administration (“FAA”)
context, this court has stated that “parties may not avoid administrative review
simply by fashioning their attack on an FAA decision as a constitutional tort
claim against individual FAA officers.” Id. Though federal district courts “have
subject matter jurisdiction over Bivens claims raising broad constitutional
challenges to FAA practices,” they lack jurisdiction over claims that are
“inescapably intertwined with a review of the procedures and merits


       9
         Though Elsik also argues that an exception to the finality rule should apply, we find
such arguments unconvincing in light of our previous statements that such an exception is
“extraordinary” and available only when based on an “unambiguous” constitutional violation.
See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Nat’l Ass’n of Secs. Dealers, Inc., 616 F.2d
1363, 1370–71 (5th Cir. 1980) (noting that “only exceptional circumstances justify court
intervention in the administrative process prior to exhaustion of administrative remedies” and
that an exception to the exhaustion requirement requires “a clear and unambiguous statutory
or constitutional violation.”); Coca-Cola Co. v. FTC, 475 F.2d 299, 304 (5th Cir. 1973) (“The
extraordinary remedy of judicial intervention . . . is unavailable unless necessary to vindicate
an unambiguous statutory or constitutional right.”).

                                              12
                                  No. 07-31121
surrounding an FAA order.” Id. (internal quotation marks omitted). In Zephyr
Aviation, a case of first impression regarding the exhaustion requirement and
the availability of Bivens claims, this court ruled that the district court
possessed subject matter jurisdiction over the plaintiff’s Bivens claims despite
plaintiff’s failure to exhaust administrative remedies in the FAA appeals system.
Id. at 573. We reasoned that such jurisdiction existed because “Zephyr’s claims
[did] not relate to an FAA order currently pending against it.” Id. at 572.
Instead, the plaintiff was seeking “monetary relief for alleged extra-procedural
and unconstitutional actions by FAA inspectors,” and “the administrative appeal
procedure outlined in the Aviation Act” could not provide such relief. Id. This
court thus distinguished the holdings of other circuits by stating that Zephyr
Aviation’s case did not “implicate an FAA order that [was] currently in place”
and therefore “could not function as a collateral attack on an FAA order or
action.” Id.
      Though this court has not addressed this issue since Zephyr Aviation,
other circuit courts have concluded that a district court lacks subject matter
jurisdiction when due process claims are “inescapably intertwined” with a review
of the merits and procedure of an agency’s decision. See, e.g., Merritt v. Shuttle,
Inc., 187 F.3d 263 (2d Cir. 1999); Tur v. FAA, 104 F.3d 290 (9th Cir. 1997); Green
v. Brantley, 981 F.2d 514 (11th Cir. 1993). In Merritt v. Shuttle, the Second
Circuit held that a district court lacked subject matter jurisdiction over a pilot’s
Bivens claim because the statutory scheme provided for exclusive review directly
in the court of appeals. The pilot in Merritt alleged that FAA officials had “failed
to conduct a meaningful investigation and instead conspired to conceal their own
negligence” by blaming the plaintiff for flying in bad weather. 187 F.3d at 266.
The court reasoned that plaintiff’s Fifth Amendment due process claim was
“‘inescapably intertwined’ with review of the revocation order” and that, despite
plaintiff styling his Bivens claim in constitutional terms, he was ultimately

                                        13
                                  No. 07-31121
challenging “the manner in which the officials conducted themselves during and
after the June 24 incident” and disputing “the ALJ’s factual conclusion that he
bore responsibility for an ill-considered decision to take off.” Id. at 271. Such
analysis would thus “result in new [district court] adjudication over the evidence
and testimony adduced in the prior revocation hearing, the credibility
determinations made by the ALJ, and, ultimately, the findings made by the ALJ
during the course of the proceedings.” Id. (footnotes, internal quotation marks,
and alterations omitted). Such review, it reasoned, was inappropriate because
the plaintiff “failed to complete the judicial review process by either perfecting
an appeal to the NTSB or filing a petition for review in the appropriate court of
appeals.” Id.
      Similarly, in Green v. Brantley, the Eleventh Circuit found that the district
court lacked subject matter jurisdiction over plaintiff’s Bivens claims against
FAA officials. 981 F.2d at 516. The plaintiff alleged that the officials violated
his due process rights by “conspir[ing] to present false accusations against him
with the intent to cause his financial ruin.” Id. at 518. The court concluded that
the district court had no jurisdiction over the appeal because the FAA’s
termination of Green’s Designated Pilot Examiner certificate was an appealable
order that conferred exclusive jurisdiction on a federal court of appeals after
administrative review. Id. at 519–21. Again, the court reasoned that “[t]he
merits of Green’s Bivens claims [were] inescapably intertwined with a review of
the procedures and merits surrounding the FAA’s order.” Id. at 521.
      The Ninth Circuit’s approach is also instructive. In Mace v. Skinner, the
court ruled that the district court possessed jurisdiction over a Bivens claim
because it constituted a “broad challenge to allegedly unconstitutional FAA
practices.” 34 F.3d 854, 859 (9th Cir. 1994). In that case, an aircraft engineer
alleged that: (1) “the FAA was not authorized to revoke certificates as a sanction
for violating aviation safety regulations, nor was the NTSB authorized to try

                                        14
                                  No. 07-31121
such revocations”; (2) “only fines were authorized as a sanction for safety
violations”; (3) “the FAA failed to promulgate rules relating to the revocation
procedures, to give the public notice of and an opportunity to comment on such
rules, and to publish them in the Federal Register”; and (4) “the FAA’s
emergency procedures failed to accord Mace adequate notice of the revocation of
his certificate.” Id. at 856.
      In the present case, the district court incorrectly assumed that it had
subject matter jurisdiction over plaintiffs’ Bivens claims when it concluded that
there was “a comprehensive framework to address and remedy claims of
constitutional violations.” In fact, the district court lacked subject matter
jurisdiction over the plaintiffs’ Bivens claims because such claims were
inescapably intertwined with a review of the procedure and merits surrounding
their respective D&Os. Unlike in Zephyr Aviation, where the plaintiff did not
have to exhaust its administrative remedies because it was asserting claims that
did not relate to an “order currently pending against it,” here the allegations of
ALJs “fixing” cases necessitates a review of the ALJs’ decision making and the
merits of each plaintiff’s arguments regarding whether his license should have
been revoked. Also, unlike the plaintiff in Mace, plaintiffs are not broadly
challenging the constitutionality of Coast Guard authority to bring revocation
actions or its failure to promulgate rules relating to revocation procedures.
Rather, plaintiffs’ Bivens claims resemble those of the plaintiff in Merritt in that
they require a “new adjudication over the evidence and testimony adduced in the
prior revocation hearing, the credibility determinations made by the ALJ, and,
ultimately, the findings made by the ALJ during the course of the proceedings.”
187 F.3d at 271 (internal quotation marks, alterations, and citations omitted).
We thus conclude that the district court lacked subject matter jurisdiction over
plaintiffs’ Bivens claims and that exercising jurisdiction over such claims
“circumvent[s] administrative review through suit in federal court.” Zephyr

                                        15
                                  No. 07-31121
Aviation, 247 F.3d at 572. Based on this reasoning, we affirm the district court’s
judgment dismissing without prejudice plaintiffs’ Bivens claims.
                              IV. CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s judgment
dismissing the plaintiffs’ claims without prejudice.




                                       16
