Feyter v. Fed. Aviation Admin.
| Decision Date | 25 March 2011 |
| Docket Number | Opinion No. 2011 DNH 049,Civil No. 10-cv-358-JL |
| Parties | Robert L. de Feyter v. Federal Aviation Administration |
| Court | U.S. District Court — District of New Hampshire |
The question in this case is whether a private citizen can compel the Federal Aviation Administration ("FAA") to impose civil penalties on third parties who have violated FAA regulations. Plaintiff Robert L. de Feyter, who lives near the Apte Heliport in North Conway, New Hampshire, has been complaining to the FAA for years that the heliport is being used for flights at dangerously low altitudes and at night. The FAA, which approved the heliport in 2000 for daytime flights only, investigated the complaints, withdrew its approval, and recommended in 2005 that the heliport be closed. Nevertheless, de Feyter alleges that the heliport is still being used in the same dangerous manner. He has repeatedly asked the FAA to impose civil penalties on the heliport's owner and pilots under the FAA Act, 49 U.S.C. § 46301, but the FAA has declined to do so, noting that its heliport "determinations are only advisory" to state and local governments. 14 C.F.R. § 157.7. This pro se action is de Feyter's attempt to compel the FAA to impose such penalties.
The FAA has moved to dismiss the case for lack of subject-matter jurisdiction, see Fed. R. Civ. P. 12(b)(1), arguing that
(1) there is no private right of action to enforce the FAA Act or related regulations; (2) its decision not to impose civil penalties is committed to agency discretion and therefore not reviewable under the FAA Act, the Administrative Procedure Act
("APA"), 5 U.S.C. §§ 551 et seq., or by petition for a writ of mandamus; and (3) even if that decision were reviewable, only the United States Court of Appeals for the First Circuit or the D.C. Circuit would have jurisdiction to review it, see 49 U.S.C. § 46110. After hearing oral argument, and for essentially those reasons, this court grants the motion to dismiss. De Feyter's request that the case be transferred instead to one of those circuit courts is denied, as transfer is not "in the interest of justice." 28 U.S.C. § 1631; see also Britell v. United States, 318 F.3d 70, 75 (1st Cir. 2003) (where a case clearly lacks merit, "it is in the interest of justice to dismiss it rather than to keep it on life support").
"Facial attacks on a complaint" under Rule 12(b)(1) "require the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction." Torres-Negron v. J & N Records, LLC, 504 F.3d 151, 162 (1st Cir.2007). In making that determination, the court "must credit the plaintiff's well-pled factual allegations and draw all reasonable inferences in the plaintiff's favor." Merlonghi v. United States, 620 F.3d 50, 54 (1st Cir. 2010). Where, as here, the plaintiff is proceeding pro se, the complaint must be construed even more generously, "held to less stringent standards than formal pleadings drafted by lawyers." Estelle v. Gamble, 429 U.S. 97, 106 (1976); accord Rodi v. S. New Eng. Sch. of Law, 389 F.3d 5, 13 (1st Cir. 2004). "If the well-pleaded facts, evaluated in that generous manner, do not support a finding of... subject-matter jurisdiction, " then the court has no authority to review the case, and it must be dismissed. Fothergill v. United States, 566 F.3d 248, 251 (1st Cir. 2009).
As the FAA acknowledges, see document no. 12 at 2 n.2, some of its arguments could be viewed not as jurisdictional challenges, but as arguments that de Feyter has failed to state a claim for relief. Under such circumstances, the court may analyze the arguments under Rule 12(b)(6) of the Federal Rules of Civil Procedure, rather than Rule 12(b)(1). See, e.g., Mercado v. Ritz-Carlton San Juan Hotel, Spa & Casino, 410 F.3d 41, 46 n.6 (1st Cir. 2005); Arroyo-Torres v. Ponce Fed. Bank, 918 F.2d 276, 280 (1st Cir. 1990) (); 5B Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure § 1347, at 51 (3d ed. 2004) (). The Rule 12(b)(6) analysis is similar to the Rule 12(b)(1) analysis: construing the complaint in the same generous manner, the court must determine whether the plaintiff has made factual allegations sufficient to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
In 1997 or 1998, Wylie Apte submitted a "Notice of Landing Area" to the FAA, proposing to establish a heliport on his property in North Conway, New Hampshire. See 14 C.F.R. §§ 157.3 and 157.5 (). Apte had been operating the heliport for more than a decade without FAA approval. After receiving that notice, the FAA conducted an aeronautical study, ultimately issuing a "letter of determination" in early 2000 that gave "conditional" approval to the heliport. See id. § 157.7 (). One of the conditions was that the heliport be used only for daytime flights.
In the years that followed, the FAA received numerous complaints of nighttime flights at the heliport, including from de Feyter, who lives nearby. In 2005, after conducting an investigation and a hearing, the FAA informed de Feyter that it had concluded "that revocation of the determination letters to both the Apte Heliport [and another nearby heliport] is warranted." Shortly thereafter, the FAA issued a letter to Apte "terminating approval" of the heliport See id. § 157.7(c) (). According to de Feyter, the FAA not only received those reports, but confirmed them through its investigation and a hearing.1 The letter to Apte"recommend[ed] that all operations at the heliport be ceased immediately."
Notwithstanding that recommendation, the Apte Heliport has continued operating for the past six years and, according to de Feyter, still conducts nighttime flights, as well as flights at dangerously low altitudes over populated areas. Apte has not submitted a further "Notice of Landing Area" seeking to reinstate the FAA's approval of the heliport, under either the same or different conditions. Believing that the lack of further notice, coupled with the continued use of the heliport for unauthorized flights, violates FDA regulations (, the notice requirements of 14 C.F.R. §§ 157.3 and 157.5), 2 de Feyter has repeatedly requested that the FAA impose civil penalties against the heliport's owner and pilots under the FAA Act, 49 U.S.C. § 46301. But the FAA has refused to do so, noting that its heliport "determinations are only advisory" to state and local governments. 14 C.F.R. § 157.7. The FAA informed de Feyter by letter in 2010 that "the evidence we found does not warranttaking FAA action" and that "[u]nless you raise new issues to us, we view this matter as closed."
After receiving that letter, de Feyter brought this pro se action against the FAA, requesting that this court "direct the FAA back to its mission" by ordering it to "apply civil penalty(s) against the operator and pilots using the terminated Apte Heliport."3 The complaint itself does not specify which claim(s) de Feyter is asserting; it merely invokes the FAA Act and regulations and then requests the relief quoted above. Recognizing that pro se complaints must be construed liberally, the FAA assumed, for purposes of its motion to dismiss, that de Feyter was asserting (1) a private cause of action to enforce the FAA Act and regulations; (2) a petition for direct review of agency action under the FAA Act and/or the APA; and (3) a petition for writ of mandamus under 28 U.S.C. §§ 1361 and 1651. Those are the claims typically asserted by a private citizen seeking relief of this sort. De Feyter essentially embraced them in his objection, sur-reply, and oral argument. Accordingly, this court will treat them as his claims and analyze each one in turn.
First, the FAA argues that there is no private cause of action to enforce the FAA Act and related regulations, and that this court therefore lacks subject-matter jurisdiction over that claim. The First Circuit has indeed ruled that "Congress, in crafting the [FAA] Act, intended public, not private, enforcement, " and that "neither the Act nor the regulations create implied private rights of action." Bonano v. E. Caribbean Airline Corp., 365 F.3d 81, 86 (1st Cir. 2004) (identifying "a long list of other courts that have concluded" the same); see also Buck v. Am. Airlines, Inc., 476 F.3d 29, 34 (1st Cir. 2007) (). So it is clear that de Feyter cannot bring such a claim. He has not attempted to argue otherwise, or to distinguish this case from those binding precedents.
That does not, however, deprive this court of subject-matter jurisdiction over the claim. "It has long been recognized that where a plaintiff asserts that a private right of action is implied from federal law, federal courts...
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