David Gary Gladden v. Michael Berry, M.d.;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID GARY GLADDEN,
Plaintiff-Appellant,
v.
MICHAEL BERRY, M.D.; et al.,
Defendants-Appellees.
No. 18-35765
D.C. No. 3:17-cv-00043-TMB
MEMORANDUM*
Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, District Judge, Presiding
Submitted June 11, 2019**
Before: CANBY, GRABER, and MURGUIA, Circuit Judges.
David Gary Gladden appeals pro se from the district court’s summary
judgment in his 42 U.S.C. § 1983 action related to the Federal Aviation
Administration’s (“FAA”) denial of his applications for a second-class airman
medical certificate. We have jurisdiction under 28 U.S.C. § 1291. We review de
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JUN 14 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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novo. Gingery v. City of Glendale, 831 F.3d 1222, 1226 (9th Cir. 2016) (district
court’s subject matter jurisdiction); May v. Baldwin, 109 F.3d 557, 560 (9th Cir.
1997) (summary judgment). We affirm.
The district court properly granted summary judgment on Gladden’s claims
directly challenging the denial of his applications for a second-class airman
medical certificate because it lacked subject matter jurisdiction due to Gladden’s
failure to exhaust his administrative remedies. See 49 U.S.C. § 44703(d)(1), (3)
(denial of an application for an airman certificate may be appealed to the National
Transportation Safety Board (“NTSB”); a person substantially affected by an order
of the NTSB may seek judicial review under 49 U.S.C. § 46110).
The district court properly granted summary judgment on Gladden’s
constitutional claims challenging the FAA’s practices and procedures because it
lacked subject matter jurisdiction under the collateral attack doctrine. See
Americopters LLC v. FAA, 441 F.3d 726, 736 (9th Cir. 2006) (“The collateral
attack doctrine prevents plaintiffs from crafting constitutional tort claims either as
a means of relitigating the merits of the previous administrative proceedings, or as
a way of evading entirely established administrative procedures.” (citations and
internal quotation marks omitted)).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on

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appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.

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