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Zephyr Aviation, L.L.C. v. Dailey

There is no judicial exhaustion requirement on Bivens actions against FAA officials when the Bivens suit does not implicate existing FAA enforcement actions.

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As amended APRIL 24, 2001

Appeal from the United States District Court for the Southern District of Texas

Zephyr Aviation, L.L.C. (Zephyr) appeals the dismissal of its constitutional tort action against Robert Alan Dailey and Kenneth Wayne Clary (the Defendants). Zephyr contends that the FAA’s administrative remedies do not contemplate constitutional tort actions against FAA inspectors in their individual capacity, and, therefore, the district court erred in dismissing its claims for lack of subject-matter jurisdiction after concluding that Zephyr failed to exhaust its administrative remedies. Zephyr also contends that the district court erred in dismissing its claims under Rule 12(b)(6) before any discovery took place. Though we agree with Zephyr that its suit should not have been dismissed because of a failure to exhaust administrative remedies, we ultimately conclude that Zephyr has failed to state a claim for which relief can be granted. Therefore, we AFFIRM the district court’s judgment of dismissal.

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