Avera v. United Air Lines
| Decision Date | 28 January 2010 |
| Docket Number | Case No. 4:08cv550-RH/WCS. |
| Citation | 686 F. Supp.2d 1262 |
| Parties | Troy G. AVERA, Plaintiff, v. UNITED AIR LINES, et al., Defendants. |
| Court | U.S. District Court — Northern District of Florida |
Troy G. Avera, Monticello, FL, pro se.
Erika Ann Hickman, Erin McPhail Wetty, Leslie Michelle Solondz, Seyfarth Shaw LLP, Atlanta, GA, Peter Decklin Leary, US Department of Justice, Washington, DC, Robert Del Stinson, US Attorney, Tallahassee, FL, for Defendants.
ORDER DISMISSING THE CLAIMS AGAINST THE FEDERAL DEFENDANTS
This case is before the court on the magistrate judge's report and recommendation (document 62). No objections have been filed. The report and recommendation is correct and will be adopted as the court's opinion, with these additional notes.
The plaintiff was a commercial airline pilot. He was forced to retire under the Federal Aviation Administration's "age 60 rule." That rule set the mandatory retirement age for airline pilots at 60. Shortly after the plaintiff retired, Congress passed the "Fair Treatment of Experienced Pilots Act." The Act—referred to in this order by the less Orwellian title "Pilots Act"— raised the mandatory retirement age to 65. The plaintiff was eligible to reapply for his old job, or any other, but he had lost his seniority and was unable to obtain a position as an airline pilot.
The plaintiff filed this lawsuit against his former employer—United Air Lines—and against two federal defendants: the FAA and the Department of Transportation. The federal defendants moved to dismiss the claims against them. The report and recommendation correctly concludes that the motion should be granted.
The damages claims against the federal defendants are barred by sovereign immunity.
The claim for injunctive relief against the federal defendants based on the alleged invalidity of the age 60 rule is moot because the rule is no longer in effect and any relief that would be available if it were held invalid—reinstatement, for example— would run only against United, not against the federal defendants.
The claim for injunctive relief based on the alleged unconstitutionality of the Pilots Act provision for mandatory retirement at age 65 fails because the provision is constitutional.
The challenge to the Pilots Act immunity provision—under which a defendant cannot be held liable for actions taken in compliance with either the age 60 rule or the Pilots Act age 65 provision—fails to state a claim against the federal defendants because they would be immune with or without the provision; if the immunity provision were held unconstitutional, it would mean only that the plaintiff could pursue a claim against United, not that he could obtain relief from the federal defendants. This makes it unnecessary, in connection with the federal defendants' motion to dismiss, to address the issue of whether Congress may validly provide immunity against an already-existing and otherwise-well-founded claim.1
This order expressly determines that there is no just reason for delay and expressly directs the entry of judgment in favor of the federal defendants under Federal Rule of Civil Procedure 54(b).
For these reasons and those set out in the report and recommendation, IT IS ORDERED:
1. The report and recommendation is ACCEPTED and adopted as the court's opinion.
2. The motion to dismiss filed by the United States Department of Transportation and the Federal Aviation Administration (document 52) is GRANTED.
3. The clerk must enter a judgment under Federal Rule of Civil Procedure 54(b) stating, "All claims against the United States Department of Transportation and the Federal Aviation Administration are dismissed with prejudice."
4. The plaintiff's motion to strike (document 56) is DENIED.
5. The case is remanded to the magistrate judge for further proceedings on the plaintiff's claims against the defendant United Air Lines.
SO ORDERED.
REPORT AND RECOMMENDATION
The Federal Defendants filed a motion to dismiss, doc. 52, on September 4, 2009, and the pro se Plaintiff was directed to file a response in opposition to the motion. Doc. 53. Plaintiff filed a response to the motion, doc. 58, and the motion to dismiss is ready for a ruling.
Plaintiff has additionally filed a motion to strike the "Fair Treatment for Experienced Pilots Act" and the "Age 60 Rule" as unconstitutional. Doc. 56. The motion is supported by a memorandum of law. Doc. 57. The Federal Defendants have filed a memorandum in opposition to Plaintiff's motion. Doc. 59. Defendants assert that Plaintiff is essentially seeking "an order entering summary judgment on his constitutional claims" and, as such, the motion fails to comply with the requirements of N.D. Fla. Loc. R. 56.1(A). Id. Defendants also point out that Plaintiff's arguments are identical to the arguments Plaintiff raises in his opposition to the motion to dismiss. Id. To avoid repetitious filings, inter alia, Defendants request that the motion be denied.
If a plaintiff is entitled to relief in his lawsuit, relief would normally come at the conclusion of the lawsuit. Nevertheless, Plaintiff's motion to strike could only be granted if Defendants' motion to dismiss, doc. 52, is denied. This report and recommendation will address both the motion to dismiss, doc. 52, and the motion to strike, doc. 56.
Claims in the Amended Complaint, doc. 43
This is a hard case on its facts. Plaintiff has 45 years experience as a pilot. He has many years of experience as a commercial airline pilot. During his career, the FAA had a Rule that pilots must retire at age 60. Plaintiff's 60th birthday occurred in May, 2007, and he lost his job with United Airlines. In December, 2007, Congress enacted the Fair Treatment of Experienced Pilot Act ("FTEPA") extending the retirement age to 65. It made the law partially retroactive to Plaintiff and others who had been forced to retire at age 60 but who were still not yet age 65,1 but did not restore their seniority.
Plaintiff has reapplied for his former job, but has not been hired probably because he no longer has seniority.
Plaintiff's amended complaint alleges violation of the Age Discrimination in Employment Act ("ADEA"), the Employee Retirement Income Security Act ("ERISA"), the FTEPA, the Fair Labor Standards Act ("FLSA"), the Due Process Clause, and the Equal Protection Clause of the U.S. Constitution. Doc. 43. Plaintiff further contends the FTEPA is a Bill of Attainder, in violation of the Constitution. Id., at 12, 14.2 The Defendants are the United States of America, the U.S. Department of Transportation, the Federal Aviation Administration (collectively "the federal Defendants"), and United Airlines, Inc. Doc. 43. Plaintiff seeks monetary damages, a declaratory judgment, and requests that the FTEPA be ruled unconstitutional. Id., at 10-14.
Motion to Dismiss, doc. 52
Defendants assert that Plaintiff's "claims for damages are barred by sovereign immunity." Doc. 52, p. 3 on the electronic docket (ECF).3 Further, they contend that Plaintiff's claims for equitable relief based upon a challenge to the "Age 60 Rule" are moot, and that this Court lacks jurisdiction over a final order of an FAA Administrator and over Plaintiff's ADEA challenge. Id. On the merits, Defendants assert that Plaintiff fails to state a claim upon which relief may be granted. Id., at 4-5.
The issue on whether a complaint should be dismissed pursuant to FED.R.CIV.P. 12(b)(6) for failing to state a claim upon which relief can be granted is whether the plaintiff has alleged enough plausible facts to support the claim stated. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Id. Twombly, at 570, 127 S.Ct. 1955. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id., at 556, 127 S.Ct. 1955. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of `entitlement to relief.' " Id., at 557, 127 S.Ct. 1955 (brackets omitted).
Ashcroft v. Iqbal, 556 U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).
Pro se complaints are held to less stringent standards than those drafted by an attorney. Wright v. Newsome, 795 F.2d 964, 967 (11th Cir.1986), citing Haines v. Kerner, 404 U.S. 519, 520-521, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972). Nevertheless, a complaint must provide sufficient notice of the claim and the grounds upon which it rests so that a "largely groundless claim" does not proceed through discovery and "take up the time of a number of other people ...." Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005), quoted in Twombly, 127 S.Ct. at 1966.
Factual Allegations in the Amended Complaint, doc. 43
Plaintiff was born on May 12, 1947, and by age 17, or about 1961, he had qualified for a private pilot's license. Doc. 43, p. 3. Plaintiff was a United States Naval Aviator from 1971-1978, flying an F-4 and F-14 from an aircraft carrier. Id. Plaintiff has over 18,000 hours flying large commercial aircrafts, including the DC-10-30, B-777, and B-747-400. Id. He has flown over 45 years without an accident, incident, or violations, and is an experienced pilot. Id.
From May 8, 1995, until May 31, 2007, Plaintiff was a "flight officer" (pilot) with United Airlines. Id., at 3. Plaintiff's last position with United was flying a Boeing 747-400 aircraft ...
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