                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          JAN 7 2003
                            FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


    WILLIAM R. MCCONAHA,

               Plaintiff - Appellant,

    v.                                                  No. 01-5186
                                                   D.C. No. 00-CV-793-P
    FEDERAL AVIATION                                 (N.D. Oklahoma)
    ADMINISTRATION,

               Defendant - Appellee,

         and

    PLANETECHS, a limited liability
    corporation,

               Defendant.


                            ORDER AND JUDGMENT          *




Before KELLY , BALDOCK , and LUCERO , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

      Plaintiff William R. McConaha appeals from the district court’s order

dismissing his claims against the defendant Federal Aviation Administration

(FAA) for lack of subject matter jurisdiction. Mr. McConaha settled his claims

against his former employer, Planetechs, L.L.C., an aircraft maintenance

company . We affirm.

      The parties are familiar with the facts and we will not repeat them, except

as necessary for our discussion.

      The district court granted defendant’s motion to dismiss holding that the

United States and its agencies are immune from suit under the FTCA and

Mr. McConaha had not properly alleged an action pursuant to        Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics           , 403 U.S. 388 (1971) .

The court denied Mr. McConaha’s motion to amend his complaint          to add

individual defendants, holding that,   under current Tenth Circuit law, amendment

would be futile.

      On appeal, Mr. McConaha argues that the federal court has jurisdiction to

provide relief. He reasserts that his property was taken without due process and


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contends that the district court should have permitted him to amend his complaint

to name the head of the FAA and its agent as party defendants .

       “We review a dismissal for lack of subject-matter jurisdiction de novo,

accepting the district court’s findings of jurisdictional facts unless they are clearly

erroneous.” Montoya v. Chao , 296 F.3d 952, 954 -955 (10th Cir. 2002). We

review the court’s denial of a motion to amend a complaint for abuse of

discretion. Scott v. Hern , 216 F.3d 897, 906 (10th Cir. 2000).

       The district court correctly held that Mr. McConaha’s complaint must be

dismissed as originally presented.      Mr. McConaha may only bring a damages

claim against the United States under the FTCA.       See 28 U.S.C. § 2679.

However, the FTCA does not permit suits against the United States for damages

when the act complained of is “based upon the exercise or performance or the

failure to exercise or perform a discretionary function or duty on the part of a

federal agency or an employee of the Government.”        Id. § 2680(a). This court has

held that a suit alleging damages based on the FAA’s “authority to issue airman

certificates was barred by the discretionary function exception to the FTCA.”

Redmon ex rel. Redmon v. United States       , 934 F.2d 1151, 1157 (10th Cir. 1991).

Further, Mr. McConaha did not        exhaust his administrative remedies. See

28 U.S.C. §§ 2401(b), 2675(a);       Duplan v. Harper , 188 F.3d 1195, 1199 (10th Cir.




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1999) (“As a jurisdictional prerequisite, the FTCA bars claimants from bringing

suit in federal court until they have exhausted their administrative remedies.”).

       Mr. McConaha specifically excluded the possibility that he was seeking

review of the agency’s actions under 49 U.S.C. § 46110 which requires that

petitions seeking review of agency actions must be filed in the court of appeals.

Lastly, Mr. McConaha cannot proceed under §         1983 . See Wheeldin v. Wheeler ,

373 U.S. 647, 649-50 & n.2 (1963).

       Clearly the only possible cause of action which would provide the district

court with jurisdiction over Mr. McConaha’s claims would be a        Bivens action

against the individual defendants.

       Therefore, we next examine whether such an amendment would be futile as

the district court held.   A Bivens action is not available for actions attempting to

hold individual defendants liable for alleged constitutional violations they may

have committed in the process of reaching a final agency decision.      Robbins v.

Wilkie , 300 F.3d 1208, 1212 (10th Cir. 2002);      Nat’l Commodity & Barter Ass’n

v. Archer , 31 F.3d 1521, 1532 (10th Cir. 1994);     Zephyr Aviation, L.L.C. v.

Dailey , 247 F.3d 565, 572 (5th Cir. 2001);     Green v. Brantley , 981 F.2d 514, 521

(11th Cir. 1993).

       However, a Bivens action may proceed if the wrongful acts plaintiff alleges

are not part of the procedure of reaching a final agency decision.    See, e.g. ,


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Robbins , 300 F.3d at 1212; Zephyr Aviation , 247 F.3d at 572-73; Collins v.

Bender , 195 F.3d 1076, 1079-80 (9th Cir. 1999).

      In his amended complaint, Mr. McConaha alleged that the FAA             had

“deprived Plaintiff of his rights of substantive due process under the Constitution

of the United States in that Defendant F.A.A. deprived Plaintiff of his right to

work after his license had been revoked.” Aplt. App. at 34. Mr. McConaha,

thus, was complaining of actions defendants took which were directly related to

the final agency action . Amendment of his complaint would be futile.

      Mr. McConaha cites to Mace v. Skinner, 34 F.3d 854 (9th Cir. 1994), to

support his contention that he should be permitted to amend his complaint.

However, even if Mace were controlling here, and it is not, see Garcia ex rel.

Garcia v. Miera, 817 F.2d 650, 658 (10th Cir. 19 87), it would not help him. The

Ninth Circuit permitted the plaintiff’s action to proceed because (1) the plaintiff

was seeking damages, a remedy not available on review of an agency action; (2)

he was alleging “a broad challenge to the allegedly unconstitutional actions of

the” agencies; and (3) “his complaint [wa]s not based on the merits of any

particular revocation order.” Mace , 34 F.3d at 858.

      It is clear that even if Mr. McConaha were permitted to amend his

complaint to add the individual defendants, he could not state a cognizable         Bivens

claim. The district court’s dismissal of this action was proper, as was its denial


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of his motion to amend his complaint.   See Foman v. Davis , 371 U.S. 178, 182

(1962) (court need not grant leave to amend, if amendment would be futile).

      The judgment of the United States District Court for the Northern District

of Oklahoma is AFFIRMED. Counsel’s motion to withdraw is GRANTED.



                                                   Entered for the Court



                                                   Paul J. Kelly, Jr.
                                                   Circuit Judge




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