Air Sunshine Inc v. Carl
| Decision Date | 30 November 2010 |
| Docket Number | CIVIL NO.: 09-2041 (MEL),CIVIL NO.: 09-2019 (MEL),CIVIL NO.: 09-2039 (MEL) |
| Parties | AIR SUNSHINE, INC., et al., Plaintiffs, v. STEPHEN M. CARL, Defendant. AIR SUNSHINE, INC., et al., Plaintiffs, v. YVETTE HAU-LEPERA, Defendant. AIR SUNSHINE, INC., et al, Plaintiffs, v. SERGIO LOPEZ, Defendant. |
| Court | U.S. District Court — District of Puerto Rico |
On October 5, 2009, plaintiffs Air Sunshine, Inc., Air Sunshine de P.R., Inc. (together "Air Sunshine"), and Mirmohammad Adili ("Adili," and collectively "plaintiffs") filed a complaint in the instant case against Stephen M. Carl ("Carl"), the principal maintenance inspector in the South Florida Flight Standards District Office ("FSDO") of the Federal Aviation Administration ("FAA"). (Docket No. 1 (the "Carl complaint").) Claiming, inter alia, that Carl intentionally delayed the certification and inspection process for several of Air Sunshine's aircraft, plaintiffs assert federal causes of action under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) and 42 U.S.C. § 1985, and also bring state law claims pursuant to Article 1802 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31, § 5141, and for tortious interference with contract and intentional infliction of emotional distress. Id..
On October 8, 2009, plaintiffs brought suit against FAA employees Yvette Hau-Lepera ("Hau-Lepera") and Sergio Lopez ("Lopez"), asserting identical claims based on the same nucleus of facts. (09-2039, Docket No. 1 (the "Hau-Lepera complaint")); (09-2041, Docket No. 1 (the "Lopez complaint").) Hau-Lepera filed her answer on April 21, 2010, and Carl and Lopez filed their answers on February 22, 2010. (09-2039, Docket No. 9; 09-2041, Docket No. 9; Docket No. 19.) The three cases were subsequently consolidated. (Docket No. 20.)
Pending before the court is defendants' motion for substitution of parties and for dismissal of the complaint. (Docket No. 31.) Plaintiffs opposed the motion and defendants replied. (Docket Nos. 37; 42.)
Air Sunshine is a private airline based in San Juan, Puerto Rico. (Docket No. 1, ¶ 1.) Looking to expand its business, Air Sunshine entered into a lease in late 2005 to operate three SAAB 340 turboprop aircraft. (Docket No. 1, ¶ 8.) As part of that process, Air Sunshine was required to obtain certifications from the South Florida FAA office, necessitating the approval of several manuals and the passing of a number of "proving runs." (Docket No. 1, ¶¶ 9-10.) During the relevant time, Air Sunshine also sought from the same FAA office certification for its fleet of C-420 aircraft and a ferry permit needed to begin repairs on one of its aircraft. (Docket No. 1, ¶¶ 32-47.) SAAB 340 Aircraft
Plaintiffs claim that Air Sunshine submitted its flight attendant manual for the SAAB 340 to the FAA for certification in March 2006, and that it was subsequently approved. (09-2039, Docket No. 1, ¶ 10.) However, in November 2007, defendant Hau-Lepera, a FAA cabin safety inspector, informed Adili, president of Air Sunshine de P.R, Inc.., that the approval of the flight attendant manual was "null and void" and that the manual would have to be resubmitted in an entirely new format since Air Sunshine's principal operations inspector (POI) had not consulted her prior to submitting the manual for approval. (09-2039, Docket No. 1, ¶¶ 11-12.) Of note, plaintiffs do not dispute Hau-Lepera's claim that the POI was required to consult with her prior to approving the manual, stating instead that it was a "matter beyond Air Sunshine's control or knowledge." (092039, Docket No. 1, ¶ 11.) Despite Air Sunshine's protestations that the manual complied with FAA regulations, plaintiffs aver that they agreed to resubmit it to expedite the certification process. (092039, Docket No. 1, ¶ 13.) The Hau-Lepera complaint states that she caused further delay by then refusing to meet with plaintiffs to discuss the requested revisions until February 2008. (09-2039, Docket No. 1, ¶¶ 14-15.) Hau-Lepera finally approved plaintiff's flight attendant manual in August 2008. (09-2039, Docket No. 1, ¶ 16.) In total, plaintiffs claim to have submitted three versions of the flight attendant manual to Hau-Lepera, all of which were "functionally identical" and in compliance with FAA regulations. (09-2039, Docket No. 1, ¶ 16.) Plaintiffs allege that due to Hau- Lepera's conduct, Air Sunshine was forced to abandon its plan to operate the aircraft in a 30-seat configuration. (09-2039, Docket No. 1, ¶ 18.)
Air Sunshine met with FAA officials on or about October 8, 2008 about outstanding issues regarding Air Sunshine's operations manual for the SAAB 340 aircraft. (Docket No. 1, ¶ 13.) During that meeting, plaintiffs claim that Adili told Carl, the principal maintenance inspector assigned to Air Sunshine, that Hau-Lepera, a good friend of Carl's, had done Air Sunshine "no justice," stating that the flight attendant manual remained "mired in unexplained delays." (Docket No. 1, ¶ 14.) Plaintiffs also assert that during the course of the meeting Carl made a racial slur about an African-American FAA employee, which plaintiffs claim caused "great alarm" and "discomfort" to Adili, himself a member of a racial minority. (Docket No. 1, ¶ 15.)
Following the meeting, plaintiffs claim that Carl delayed the proving runs by sending a letter to Adili containing numerous questions that Air Sunshine had already answered. (Docket No. 1, ¶ 17.) Plaintiffs claim that in response to an e-mail from Adili regarding the timing of an upcoming meeting, Carl stated that previous FAA inspectors were incorrect and that Air Sunshine was not in compliance with FAA regulations.(Docket No. 1, ¶ 20.) However, Carl did not inform Air Sunshine what specific regulations it was violating. Id..
On or about November 24, 2008, Adili received an e-mail from Carl's assistant-signed by Carl-stating that Air Sunshine's latest submission to the FAA "lacked procedural format." (Docket No. 1, ¶ 23.) On December 22, 2008, Carl sent Adili an e-mail stating that he could not simultaneously process both the SAAB 340 certifications and the C-402 aircraft inspections, and that Adili had to choose between them, even though Air Sunshine had been waiting for both tasks to be completed for "well over one year." (Docket No. 1, ¶ 25.) In March 2009, an aviation consultant retained by Adili to assist with the manual revisions sent Carl a letter asking him to outline the specific concerns he had with the latest revision of the manual. (Docket No. 1, ¶ 26.) Later that month, the consultant sent an e-mail to defendant Lopez, the office manager of the South Florida FSDO, as well as to the San Juan office manager, requesting that Carl be removed from Air Sunshine's case due to his "flagrant animus against Adili." (Docket No. 1, ¶ 27.) Lopez responded that Carl was doing his job. (Docket No 1, ¶ 29.) On March 22, 2009, Adili sent a letter to Lopez, copying President Obama and other government officials, complaining about the FAA's treatment of Air Sunshine, and of Carl's conduct in particular. (Docket No. 1, ¶ 29.) On March 26, 2009, Carl initiated an investigation of Air Sunshine's furnishings of schedule service.1 Plaintiffs claim that as result of Carl's conduct, Air Sunshine never received the needed certifications, and its business was "substantially destroyed." (Docket No. 1, ¶ 31.)
Air Sunshine also operated a fleet of C-402 aircraft that was required by FAA regulations to be inspected by December 4, 2008. (Docket No. 1, ¶ 32); see 14 C.F.R. § 135.422(b)(2). Plaintiffs claim that they requested the mandatory inspection in July 2006, but that Carl-despite plaintiffs' repeated requests-ignored them until December 11, 2008, after the deadline had passed, when he told Adili that his assistant would conduct the requisite inspection. (Docket No. 1, ¶¶ 33-34.)
Plaintiffs also claim that Carl denied Air Sunshine an extension for its inspection, and that, as a result, Air Sunshine lost its schedule authority, making it ineligible to bid for government contracts. (Docket No. 1, ¶¶ 39-42.)
In January 2009, plaintiffs hired their own airworthiness inspector and claim to have granted him the authority to perform the inspection in an e-mail to Carl. (Docket No. 1, ¶ 36.) Carl denied ever receiving the e-mail, and plaintiffs assert that despite the fact that their inspector completed the task in accordance with FAA regulations, Carl still refuses to accept the inspection pending approval of a revision that is not required by FAA regulations. (Docket No. 1, ¶ 36.) On January 22, 2009, plaintiffs claim that Adili e-mailed Lopez requesting that Carl be removed from the Air Sunshine inspection process, but that Lopez refused. (09-2041, Docket No. 1, ¶¶ 50-51.) As a result of Carl's actions, plaintiffs allege that Air Sunshine lost its lease on the C-402 aircraft, causing "substantial destruction" to Air Sunshine's business. (Docket No. 1, ¶ 38.)
On or about August 25, 2008, Adili e-mailed Carl requesting a permit to transfer by ferry one ofAir Sunshine's aircraft to Fort Lauderdale for repairs. (Docket No. 1, ¶ 43.) Carl responded that FAA regulations did not permit the ferrying of the aircraft at issue, which plaintiffs claim runs contrary to FAA regulations. (Docket No. 1, ¶ 44.) In any event, plaintiffs claim that Carl refused to issue the permit until October 2008, after physically inspecting the aircraft. (Docket No. 1, ¶ 45.) As a result of this delay, the Carl complaint states that Air Sunshine lost revenue for the months the aircraft remained unrepaired, and that the aircraft sustained corrosion damage as a result of its prolonged grounding. (Docket No. 1, ¶ 46.) Plaintiffs also claim that the aircraft is currently undergoing repair and cannot be used because Carl refuses to inspect it. (Docket No. 1, ¶ 46.)
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